245 



implies the power to decide erroneously, or even dishonestly. For the 

 question here is, as to the extent of the power with which it is necessary 

 to vest the government, in order that it may be able to perform its func- 

 tions efficiently ; and when the extent of its power or right is thus deter- 

 mined, no act of the government within the limit of its right, can be held 

 unlawful, however erroneous in fact, or criminal of intent, it may be. 



Thus — to make use of an illustration already used — it is the function of 

 the judge to administer justice ; but his jurisdiction, or power, is "to 

 hear and determine the subject in controversy ;"* and this obviously im- 

 plies the power, or right, to decide erroneously, and even unjustly. 

 Hence, judgments depend for their validity, not upon their being correct, 

 but simply upon the jurisdiction, or right of the court, to determine the 

 cause. Hence, it has been wittily and truly said, referring to the defini- 

 tion of jurisdiction, "as power to hear and determine," that, "it is in 

 truth the power to do both, or either — to hear without determining, or to 

 determine without hearing."! In the same way, the validity of all the 

 acts of government, like that of the acts of private individuals, is to be 

 determined, not by the wisdom of the act, or by the motives of the actor, 

 but by the single consideration whether it is within its right. If so, it is 

 valid, however mistaken or wicked it may be. 



The distinction between the question of function and the question of 

 right is also illustrated by the discussion that has arisen with reference to 

 the provision of the late Democratic platform, declaring the protective 

 policy of the government to be unconstitutional. Conflicting opinions 

 on this point, from a Democratic point of view, may be reconciled by say- 

 ing that this policy is within the right, but outside of the function of the 

 federal government ; and, therefore, that it is unconstitutional, as not 

 being the exercise of a constitutional function ; but constitutional, as 

 being the exercise of a constitutional right. 



§ 20. Of the Essential Functions of Oovernment. 



The functions of government are necessarily determined by its nature 

 and end, and this, again, by the principles or qualities of human nature, 

 which give rise to the necessity of government, and which thus consti- 

 tute its raison d'etre, or the cause of its genesis and continued exist- 

 ence. This subject was considered in the last chapter, and it was there 

 shown at length that this cause, or reason for the existence of govern- 

 ment, is the tendency of men to commit injustice, and the consequent 

 necessity of government, or organized political force, in order to secure 

 to individuals immunity from injustice ; and hence, in the language of 

 Cousin: "Government, in principle at least, is precisely what Pascal 

 desired — ^justice armed with force." Hence, the principal end of govern- 

 ment — to use the language of the Constitution of the United States — is, 

 " to establish justice," or, in other words, to protect the rights of indi- 



*R. I. vs. Mass., 12 Pet., 657-717. 

 t Bennett's Case, 44 Cat., 88. 



PROC. AMER. PHII.OS. SOC. XXXIV. 148, 2 F. PRINTED OCT. 5, 1895. 



