stated in the Introductory chapter, no attempt will be made to enter into a full examination of these topics, or to present in any detailed manner the considerations which would enable us to arrive at a final decision of the question whether our government is so constituted as to promote in the best manner the interests of the people. For a complete discussion of this and kindred subjects, the student is referred to works professedly treating of civil polity, — to Dr. Lieber's "Essay on Civil Liberty and Self-Government," his "Treatise on Political Ethics,' and to "The Federalist."

There are some salient features of this political organization, some fundamental principles upon which it is based, which enter into and give form to the whole structure, to which our attention may well be directed. These features will, therefore, be examined in the succeeding sections of the present chapter.

SECTION I.

THE SEPARATION OF THE GOVERNMENT INTO THREE CO-ORDINATE DEPARTMENTS.

§ 166. We are met at the outset by the fact that the government is separated into three departments, acting in a great measure independently of one another, to each of which is assigned an essentially different class of functions, and yet between which there is so strong a tie of mutual support and correlation that each would be powerless without both the others. These departments are the legislative, the executive, and the judicial.1 When we turn to the separate states, we find all their governments constructed upon the same plan. Was this contrivance accidental, was it based upon any a priori

1 Falck (Cours d'Introduction Générale a l'Étude du Droit, chap. i. § 40, note 33,) denies that the judicial power is a separate branch of sovereign power, or that the judiciary is a separate department in the government. He asserts that it is only a special manifestation of the executive. No doubt a continental theorist finds it difficult to comprehend the independence of the English, and particularly of the American judiciary.

theory, or had it an historical origin? It was both theoretical and historical.

§ 167. If we look to Great Britain, whence we have derived so many ideas of civil polity and so many forms of administration, we discover that her imperial government is modelled after the same pattern. The American President, Congress, and Judiciary are reproduced in the British monarch, Parliament, and Courts. But there is danger in pushing the analogy too far. Nothing has been productive of more confusion than the habit of arguing from the English to the American Constitution. General resemblances there are; but the essential difference in all the practical details, and in many of the fundamental principles, renders it very unsafe to draw analogies from the British organic law as aids in construing our own. When we look close into the English system, we shall perceive that the separation of the three departments with them is not so complete as with us. The actual executive of Great Britain, upon whom rests all the responsibility of administration, the ministers of the crown, have seats in Parliament, and are directly amenable to, and under the control of, that legislature. The highest. judicial officer - the Chancellor is a member of the Cabinet, and presides over the House of Lords; while other judges may be members of the same body. The Chamber of Peers is the supreme tribunal of appeal, which may review the decisions of the courts of law and of equity; while a committee of the Privy Council has a very extensive appellate jurisdiction over other classes of courts.

§ 168. Should a survey be extended over the modern nations of Europe, or over the peoples of ancient times, no others will be found in which this type of government is so distinctly followed; and many have existed in which it has been entirely disregarded. In Rome, during the Republic, there was an approach towards such a division of functions among the Consuls, the Prætors, the Senate, and the People. But when the Empire had become firmly established, and the imperial policy completely organized, the traditions of the Republic were forgotten or abandoned; and all legislative, executive, and judi

cial authority was theoretically and practically lodged in the hands of the august ruler who presided over the destinies of half the world. In France, Austria, Prussia, and especially in Italy, some approach has been made to a constitutional government, and to a separation of legislative and executive powers. In none of these countries, however, except in Italy, does this separation approach in completeness and efficiency that which exists in Great Britain; and in none of them can the judiciary properly be called an independent, co-ordinate department of the government.

§ 169. One fact of history may be considered as established,, —that there has been and is the greatest amount of individual and political liberty in those nations whose governments are framed upon this tri-partite model; and that just so far as the civil polity approaches towards a despotism are all species of power centred in one ruler or body of rulers. If the entire governmental force of a nation is wielded by a single person or class of persons, if he or they may at once make, interpret, and execute laws, there is inevitably abuse of power, destruction of private rights, whether the one ruler be monarch, legislature, or the entire mass of the people themselves.

§ 170. A proposition which is thus historically true, must have some firm foundation in the nature of things. The possession of power is one of the most dangerous gifts which can fall to the lot of humanity. The tendency is always to its abuse. Power grows upon itself. In a perfect state, it is not enough that the rulers at any given time should be perfect men. There must be checks so contrived as to resist the encroachments of authority, which are to be apprehended even from the purest and most patriotic rulers. No other check has proved so effectual as the division of functions into legislative, executive, and judicial, and their assignment to classes of officials physically separate. If the legislature were also judges, their decisions would not be based upon the law as it is; but, as it would be impossible for the same men to keep their two characters entirely distinct, their judgments would rather be arbitrary enactments, special measures of legislation for each particular case. Thus all certainty as to the law

would be lost. If the same person or class of persons were to make and execute the laws, the results would be still more disastrous; for, in applying any particular statute, whatever deficiencies in its provisions had been left by the rulers in their legislative capacity, could be easily supplied by them while acting in their executive capacity. Thus the laws, instead of being general commands enjoining the observance of general rules, would become special commands addressed to individual members of society. This uncertain and special nature of the law is the very essence of an arbitrary and tyrannical government.1

§ 171. Divide these functions, and each is met by resistance from the others; all must conspire to give efficacy to any attempt against personal liberty and private rights. Have the Congress erred, the courts may recall them to their duty. Does the President transgress the limits of his authority, the legislature may force him into his legitimate sphere. Thus the whole government is a nicely-contrived balance, in which the equable poise cannot long be disturbed.

§ 172. The Constitution provides, in Art. I. Sec. I., that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives; " in Art. II. Sec. I. § 1, that "the executive power shall be vested in a President of the United States;" and, in Art. III. Sec. I., that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

§ 173. This language is clear, precise, and apparently without exception or limitation. Yet, when we compare it with other clauses of the Constitution, we shall discover that the separation of functions is not thus perfect; that the several departments are not thus absolutely independent of each other. Indeed, such an ideal independence is impracticable. While the classes of functions committed to the legislature, the executive, and the judiciary may be generally or in the mass distinct, there must be, in the very nature of things, some

1 Montesquieu, Book II. chap. vi.

points of contact, some overlapping, some commingling. All this threefold machinery tends towards one object, the creation and protection of legal rights, and the creation and enforcement of legal duties. It is impossible to keep the lines of communication perfectly separate until they meet in the very point at which they are directed. How much of this intermingling shall be permitted will, of course, depend upon the opinions and convictions of those who frame and adopt a form of government. We do not admit as much as is found in the British constitution. It cannot be denied that the government is stronger, more compact and harmonious, from these partial interferences of the various departments. The problem presented to the people was, to frame a constitution which se cured the largest amount of liberty with a sufficient degree of strength and unity in the entire administration to maintain and perpetuate our free institutions. A. perfect ideal, therefore, had to give way to some practical necessities.

§ 174. Although the Constitution, in its general language, vests the legislative power in a Congress which is declared to consist of a Senate and a House of Representatives, yet a reference to other portions of the organic law shows that this Congress does not, in fact, possess the sole legislative function. No law can be passed without the consent of the Executive, unless two thirds of both houses shall finally concur therein. The assent of the President is as necessary to the enactment of any measure having the nature of law, as that of a majority of both branches of Congress. In this the President legislates. His affirmative or negative decision is a step in the process of creating, and not of executing, laws. By virtue of the various provisions of the Constitution, the Congress is in fact, though not formally and in terms, composed of three distinct bodies, President, Senate, and House of Representatives; and all must concur, with the single exception just noticed, that a two-thirds vote of both the other branches avails against the dissent of the Executive.

§ 175. But the legislative function of the President is in every way inferior to that held by the Senate and by the House of Representatives. This inferiority consists, first, in