264 



Executive. This class of functions are subordinate in their nature, and 

 have no place in a division of the sovereign functions, and carresponding 

 rights or powers of theStatj; and hence the term ejcecutioe fuactions is 

 to be understood as denoting merely the functions of the chief executive. 

 But, in this sense, the terna is inappropriate and involves a grave 

 error ; for its U5e in this connection is founded upon the erroneous notion 

 that the functions of the king, president, or other chief executive, consist 

 merely in executing the enactments, or expressed will, of the legislative 

 department, which is not true, (d) For, wliile it is the function of the 

 head of the State to see that the legislative will, when not i/ltra vires, is 

 carried out, and also the judgments of the courts, when within their juris- 

 diction, these are not his only functions, but he is vested with others 

 which are independent of the other departments. On this account, it has 

 been suggested by eminent publicists that these independent functions 

 should be distinguished by some appropriate term ; and for this purpose 

 several terms have been suggested, as, for instance, by Blackstone, "the 

 Royal Prerogative ;" by German writers, "the Inspective, or Supervisorial, 

 Power;" by Clement Tonnerre and B. Constant, "the Royal Power;" 

 by Bluntsclili, "the I>aperial Power" (Lnperium), and by Ahrens, "the 

 Governmental Power." (e) Of these, the last is justified by the usage, 

 according to which, in England, the ministry is called "the govern- 

 ment," and in America the title of Governor applied to the chief execu- 

 tive of the State. It also, if we have regard to the original sense of the 

 term, agrees precisely with the term "royal power," suggested by M. 

 Constant; though for the latter the term "regal power," the "potestas 

 rectoria" of Kant, or, still better, the "Imperial Power," might, perhaps, 

 be advantageously substituted. Thus understood, all these terms well 

 express the nature of the power in question ; but as the term royal, or 

 regal, or imperial, carries with it an unpleasant sound to republican ears, 

 it will be better to adopt the term suggested by Mr. Ahrens, and to call 

 the function in question governmental; the term to be regarded, not as 

 the name of a, fourth function, but as the true name of what is erroneously 

 called the exeeutioe function, and to be substituted for that term. 



§31. Of the So-called Legislative Function, and Herein of Juiieial 

 Legislation or Legislative Jurisdiction. 



The term legislative function is even more unfortunate. For legislation 

 is one of the modes in which the judicial function is exercised, and the 

 function of legislation is to this extent judicial. For the judicial func- 

 tion consists in the function of determining controversies between men, 

 or classes of men, as to their mutual rights and obligations, and obviously 

 may be exercised in two ways, — namely, the one, by determining contro- 

 versies between individuals, that are submitted to the courts, or, in 

 other words, in the exercise of jurisdiction, in the narrow sense of that 

 term used by the lawyers ; the other, by establishing general rules 

 for determining in advance classes of controversies that may be aniici- 



