1

never to fight. The same reason applies, indeed, to the entire organisation of the military and naval services, from the highest to the lowest. It is to be borne in mind, that unity of command does not exclude voluntary consultation with others. A military commander, having an undivided power, is not, indeed, encumbered with field deputies, whose consent he must obtain or a council, in which the voices of others are equal to his own; but there is nothing to prevent him from gathering the opinions of others, or asking advice from those competent to give it.2

From these few remarks, it will be seen that the governments of civilised nations act wisely in intrusting judicial and administrative powers, sometimes to one person, and sometimes to a body of several persons, according to the nature of the functions to be performed.

§ 4. The advantages arising from a plurality of members, indicated above, exist also with respect to a legislative body; but in this case there is another important reason for the adoption of the corporate constitution. Unless a Dictator, voluntarily chosen by

confusione. E se si cercasse la cagione della rovina de li eserciti Italiani e Francesi ne'nostri tempi, si troverebbe la potissima cagione essere stata questa.' Compare also the remarks of Mr. Macaulay, Hist. of England, vol. I. p. 542, who refers to the wellknown example of the Dutch deputies. Livy, in comparing the Roman captains with Alexander the Great, points out, among the disadvantages to which the former were subject, the short period of their command, and their liability to have their plans hindered by the incapacity or ill will of a colleague. At, hercule (he continues) reges non liberi solum impedimentis omnibus, sed domini rerum temporumque, trahunt consiliis cuncta, non sequuntur.'-IX. 18. The unity of command in war is at its maximum, when the general is not only unincumbered with a colleague or a council, but is also the sovereign of the country, and therefore receives no instructions from home. Now this state of things, as in the cases of Frederic the Great and Napoleon, is the most favourable for military success.

1 In the earliest, as well as, perhaps, the most interesting council of war which is on record-viz., that held before the battle of Marathon, the decision was carried in favour of fighting (as was stated in a previous note) only by the casting vote of the Polemarch Archon.

Clive called a council of war before the battle of Plassy, which decided by a majority of thirteen to seven against fighting. Clive, however, disregarded the decision of the council, in which he had himself concurred, and commenced the action. On this occasion Orme remarks: It is very rare that a council of war decides for battle; for as the commander never consults his officers in this authentic form but when great difficulties are to be surmounted, the general communication increases the sense of risk and danger, which every one brings with him to the consultation.'—Hist. of Hind. vol. II. p. 171. See Thornton's Hist. of the Brit. Empire in India, vol. I. pp. 235, 281.

2 Quid fieri debeat tractato cum multis: quid vero facturus sis, cum paucissimis ac fidelissimis, vel potius ipse tecum.--VEGETIUs de Re Mil. III. c. 26, who includes this rule among the general maxims of war.

the people, is to be considered a popular form of government,' without a corporate action of the supreme legislature, a popular constitution cannot exist. Whatever advantages, therefore, belong to a popular or non-despotic form of government, whether aristocratic or democratic, they can only be obtained by vesting the supreme power in a body of persons. Without this arrangement, no government except a pure monarchy or despotism can exist.

Supreme political bodies have, even in ancient times, generally delegated to single functionaries, or to small boards or tribunals, the chief part of their executive powers; so that the only part of their power which they exercise constantly is their legislative power. Now, in general, the necessity for immediate action does not exist with respect to the making of laws; and therefore a legislative body possesses the advantages of consultation which arise from a number of counsellors, without the disadvantage of hindering prompt and decisive action, which springs from the same cause. It may be added, that a sovereign body generally delegates to subordinate officers the power of making subsidiary laws, the nearest to practice, in which delay is most inconvenient, and which require the most frequent alterations.2

§ 5. Now, whenever any deliberative political body, or collegium, exists, whether its functions be legislative, judicial, or administrative, there arises a necessity of determining the manner in which its decisions are to be formed; that is to say, whether

1 See Grote, Hist. of Greece, vol. III. p. 130. In the Greek republies, such a dictator was called an alovμvýtns. aipetǹ Tupavvís.—ARISTOT. Pol. III. 9, 10; cf. IV. 8.

2 ‘La différence qu'il y a entre la monarchie et les deux autres formes de gouvernement, et qui rend la première beaucoup plus commode que les dernières, c'est que, dans les démocracies et dans les aristocracies, il faut qu'il y ait certains lieux réglés, pour pouvoir délibérer et faire des ordonnances, c'est à dire, pour exercer actuellement l'autorité souveraine : au lieu que dans une monarchie, du moins lorsqu'elle est absolue, le souverain peut délibérer et donner ses ordres en tout temps et en tout lieu, de sorte que, comme le disoit un ancien, “Rome est partout où se trouve l'Empereur." En effet le peuple, et les sénateurs, n'étant qu'un corps moral, ne peuvent agir sans s'assembler. Au lieu que le monarque est une seule personne physique et individuelle; et par conséquent il a toujours un pouvoir prochain, d'exercer les actes de la souveraineté.'— PUFFENDORF, Droit de la Nature et des Gens, VII. 5, § 9; trad. de Barbeyrac.

If this argument held good, the superiority of a purely monarchical to a popular form of government would be unquestionable. But the difficulty here indicated is, in limited monarchies and republics, obviated by a delegation of the executive power to single functionaries, the only power which requires to be exercised on a sudden. In general, no serious inconvenience arises from the necessity of convening an assembly for the exercise of the legislative sovereignty. Even these rare exceptional cases are provided for in modern free constitutions.

the concurrence of all, or only of a portion, of the members, and if so, of what portion shall be required.

§ 6. In the case of a court of justice, or an administrative board, consisting of a small number of persons, it may be sometimes possible to render unanimity necessary to its decisions.

Trial by jury, as organised in England and the United States, affords an example of an unanimous decision by a judicial body of twelve persons; and a large part of the civil and criminal jurisdiction of these countries is founded on this antique institution. It gives rise in practice to many inconvenient results, such as unmeaning compromises, tossing up for verdicts, the necessity of urging the jury to a decision by debarring them from food while they are in consultation; but it has been found consistent with a regular, if not a very intelligent, administration of justice. In other countries, where trial by jury has been long practised or recently introduced, the rule of unanimity has not been followed, and the verdict of a simple majority, or some other proportion, of the jury has been received. According to the law of Scotland, the jury in criminal cases (except that of treason) consists of fifteen, and they decide by a simple majority. In Jersey and Guernsey the Royal Court, consisting of twelve jurats, also decides by a simple majority. In France, before the Revolution of 1830, the jury, in criminal cases, consisting of twelve, decided in the same manner; but, by an alteration made in 1831, a majority of twothirds, or of eight to four, was rcquired.1

The difficulty of obtaining an unanimous decision, even from small judicial and administrative bodies, is indeed so great, that (however desirable it might be to require unanimity) the almost universal rule is, that their decision is made by a simple majority. The necessity of unanimity in a small body, judicial or administrative, does not, it may be observed, ensure a careful consideration, as the agreement may be the result of a blind reliance on the opinion of one or two of the members of the body, or it may be produced by a senseless compromise. Lord Campbell, in his Lives of the Chancellors, says of Lord Eldon: I have heard him cite with great glee, a saying of Lord Thurlow-that the decrees of the Scotch judges were least to be respected when they were unanimous, as in that case they probably, without thought, had followed the first of their number who had expressed an opinion;

1 Code d'Instr. Crim. Art. 347.

whereas, where they were divided, they might be expected to have paid some attention to the subject.'1

§ 7. In bodies belonging to, or composing, the supreme legislature, (such as the Ecclesia in the Greek Republics, the Roman Senate, the Houses of Parliament in England, the Chambers in France, Belgium, &c., the various legislative bodies of the United States,) it has been the constant practice for the decision to be determined by a mere majority. The same rule likewise obtains in subordinate legislatures, as in colonial Houses of Assembly.

In legislative assemblies, as in judicial and administrative bodies, it would doubtless be desirable to obtain the concurrence of all the members to the decision. In many simple questions, and in which the feelings or interests of the members of the body are not involved, this unanimity is practicable, and often occurs. But in other questions, and those the most important, irreconcileable differences of opinion always prevail among the members of such an assembly, and unanimity of decision is therefore impossible. To require unanimity for the acts of such a body, would be to renew the evils of the Tribunitian power of Rome, or the Liberum Veto of the Polish Diet; 2 it would place the assembly at the mercy of any perverse, factious, or corrupt person, who happened to be one of its members-as he might, by his single voice, arrest its action and paralyse all its proceedings. Entire unanimity, therefore, is plainly inconsistent with the habitual working of such a body; and so great are the difficulties of obtaining the concurrence of a large body of men, to a uniform plan of political management, or even to a complex legislative measure, amidst the distractions and disturbances caused by the alternations of popular feeling, that it has been found inexpedient to require the consent of more than a majority in supreme legislative bodies, and the practice of deciding by a plurality of votes has met with universal acquiescence.

It seems scarcely necessary to prove that, if the decision is not to be unanimous-if the concurrence of all the members of the body is not required—it must be made by a majority, and not by a minority, however determined. If a minority could prevail over the majority, those who were in favour of a proposition would vote

1 Vol. VII. p. 665.

2 Concerning the Liberum Veto, see Lord Brougham's Political Philosophy, vol. II. p. 81. The United Provinces, on questions of great importance, also admitted this mode of voting. See Barbeyrac's note on Puffendorf, VII. 2, § 15.

against it, or would abstain from voting, in order to insure a minority to their side of the question. Besides, there would be no inducement to discuss a question, if, by converting a person to your opinion, you did not strengthen your side in the division when the votes came to be counted. It would be unprofitable to pursue this argument further, as it is obvious that the hypothesis of the minority of a political body prevailing, by their votes, over the majority, leads to all sorts of practical absurdities.

§ 8. Whenever the mode of deciding by a majority of votes obtains, whether it be a legislative assembly, a court of justice, or an administrative board, the opinion of the greater number of the members of the body, properly ascertained and authenticated, acquires the legal effect and power of the opinion of the entire number.

This majority is, in general, any number greater than half the entire number: for example, 51 out of 100 votes. When the numbers on both sides are even, the president or chairman may have a casting vote, or the question may be lost,2 or (in the case of a judicial proceeding) the accused party may be acquitted. Sometimes a majority of two-thirds, or some number greater than a bare excess over a moiety, may be required. This has been the

1 A casting vote may mean either one of two things. It may mean that the president may give a second vote in case of equality; or, that he may only give his one vote, in cases where, without his vote, the numbers are equal. Concerning a casting vote, see Rutherforth, ib. § 3.

2 The rule of the House of Lords, in case of equality of votes, is-Semper præsumitur pro negante.'—MAY's Law of Parliament, p. 215.

3 The rule that, where the votes were equal, the accused was acquitted, obtained both in the Athenian and Roman law. See Æsch. Eum. 752-3; Eurip. El. 1268-9; Aristot. Problem. XXIX. 13; Dig. 42, t. I. 1. 38. Numerous reasons for this humane regulation are assigned by Aristotle, ibid. Also, Senec. Epist. 81, § 25. Reus sententiis paribus absolvitur, et semper quicquid dubium est, humanitas inclinat in melius.' Compare Grotius, ib. § 18; Puffendorf, VII. 2, § 17; Rutherforth, ib. § 3. The Athenian legend supposed the last white ball, in the trial of Orestes by the court of Areopagus, to have been placed in the urn by Minerva, which vote rendered the numbers equal, and thus Orestes was acquitted. As this vote decided the question, the ¥ñpos 'A¤nvâs, or calculus Minervæ, came to mean a casting vote generally. See Dio Cassius, LI. 19. I cannot accede to the interpretation of Otfried Müller, in his Dissertation on the Eumenides, § 73, who supposes that the votes of the Areopagites are equal, and that Minerva gives the thirteenth vote. According to this view, Orestes would have been already acquitted before she gave her vote, and the all-important calculus Minervæ would have decided nothing. The rule of acquittal by equality of votes is evidently understood to be in existence at the trial of Orestes; and the decisive or casting vote was called the vote of Minerva by the Athenians, on account of her supposed decision on this celebrated occasion.

4 Grotius, ib. § 20.