325 



It seems, therefore, that in this respect a reform is imperatively de- 

 manded, at least in the State governments ; and the nature of this reform 

 is equally obvious. It consists of the principle oi proportional representa- 

 tion, the most approved form of which is that knovvn as the Hare plan ; 

 with reference to which, it may be said, as far as it is possible to foresee 

 the result of an untried experiment, that in it is to be found a remedy for 

 the principal political evils of the day : For, first, it will emancipate 

 minoiities, and our legislative assemblies will become truly representative, 

 representing minorities as well as majorities ; secondly, it will altogether 

 dispense with political conventions and professional politicians ; thirdly, 

 it will restore to the individual citizen, who desires to participate in the 

 government of the country, that independence of thought and of action of 

 which, as a condition of entering into politics, he is now absolutely de- 

 prived ; and, fourthly, it will admit of the facile organization of third pnr- 

 ties. representing all the several interests, opinions and principles, existing 

 in the country ; and thus, in place of the dead level of character, and in- 

 tellect, that is engendered by the existing system, it will substitute the 

 free and harmonious development of all the natural tendencies of society. 



(3) With regard to the distribution of sovereign powers in the govern- 

 ment, the most general principle that should govern our conclusions is 

 suggested by the consideration that the State, as expressed by the German 

 publicists, is -a jural State (Rechtsstaat). or, in otlier words, that its prin- 

 cipal end and function is to establish justice ; which can be practically 

 effected only by protecting the rights of men, individually and collec- 

 tively, from the aggressions of human power, whether exercised by indi- 

 viduals, or the State. 



(4) To effect this end, it is necessary that a judicial power should be 

 constituted, competent to determine controversies between individuals, 

 and between individuals and the government, with reference to their 

 mutual rights and obligations ; and, in order that the judicial power may 

 be adequate to the performance of this function, it is obviously desirable 

 that it should, as far as possible, be independent, or, in other words, 

 sovereign, and therefore coordinate with the other sovereign departments 

 or officers of the government. 



(5) It is necessary to the efficient administration of justice, that with 

 reference to rights otherwise indeterminate, general rules should be estab- 

 lished ; and, as we have already shown, the establishment of such rules, 

 determinative of questions of right, constitutes part of the function of the 

 judicial department. But the function of establishing such rules, or, in 

 other words, the function of legislative jurisdiction, or judicial legislation, 

 should be distinguished from that of ordinary jurisdiction, and should be 

 vested in a different body, or organization, from that of ordinary judges. 

 Hence, in the most efficient organization of the judicial department, it 

 would consist of the courts, and of a judicial commission, or legislature. 

 It is to be observed, however, that the performance of the respective 

 functions of these two departments should be governed by the same con- 



PROC. AMER. PHILOS. SOC. XXXIV. 148. 2 P. PRINTED NOV. 6, 1895. 



