266 



bound, and by which, in the great majority of cases, their mutual claims 

 and demands upon each other are habitually and voluntarily regulated 

 by themselves. 



i^ 33. Another Division of the Functions of Government. 



We will, therefore, for the purpose of marking this distinction, regard 

 the function o( judicial legislation, or legislative jurisdiction, as part of 

 the judicial function, and the function of legislation as including only 

 that of administrative legislation. Our divisions of the functions of gov- 

 ernment will then stand thus, viz.: (1) The governmental, or so called 

 executive function ; (2) the legislative function, including only that of 

 administrative legislation : and (3) the judicial function, including that 

 of legislative jurisdiction. 



§ 33. Of the Twofold Division of the Function of Government. 



But even this, perhaps, may be improved. For, if attentively consid- 

 ered, the legislative, seems to belong properly to the administrative func- 

 tion ; of which the two special functions, namely, the legislative and the 

 governmental, appear to be merely different modes of exercising the same 

 general function, rather than as themselves being essentially distinct. 

 For, precisely as, in individual life, the conduct of men, in matters not 

 governed by moral considerations, is directed partly by general rules 

 founded on experience, and partly by particular judgments formed upon 

 the occasion as it presents itself, so the State, in matters non-judicial, will 

 find it necessary sometimes to govern its conduct by general rules or laws, 

 and sometimes by the suggestions of the particular occasion ; but in both 

 cases, the end in view, and the corresponding function, is the same, 

 namely, the efficient administration of its affairs. It is indeed obviously 

 expedient that the administrative functions should be divided into ilie 

 legislative and governmental ; but the ends of both are the same, namely, 

 to administer the non-judicial affairs of the State, and the difference is 

 merely in the mode of effecting this end. We must, therefore, I think, 

 regard the tripartite division of the functions of government as erroneous, 

 or, rather, inaccurate, and adopt the twofold division, namely, into the 

 judicial and the administrative functions, distributing — as will be ex- 

 plained more fully when we come to treat of the organization of the 

 government — the function of legislative jurisdiction to the former and 

 that of administrative legislation to the latter. And this division of the 

 functions of government, it will be found, is theoretically confirmed by a 

 consideration of the ends of government, and historicilly by a considera- 

 ation of its primitive organization, and of the subsequent development of 

 the judicial function and of the law. 



§ 34. Theoretical and Historical Argument in Support of this Division. 



The ends of the State were considered in the preceding chapter, and 

 it was there shown that there are only two theories with regard thereto 



