2G7 



that are worthy of consideration. The first of these is the strict judi- 

 cial theory that regards the administration of justice, not only as the 

 principal, but as the sole, end of the State ; the other admits that this 

 i£ the principal end of government, but holds that, in subordination to 

 this function, and, so far as may be consistent therewith, it also comes 

 within its end, and consequently its function, when necessary, to super- 

 vise, protect and encourage the natural development of society. The 

 former, that is, the judicial function, being the essential and paramount 

 end of government, should obviously be regarded as essentially distinct 

 from all others, which must be held merely subordinate. The exercise 

 of this function, however, obviously demands the existence of a gov- 

 ernment, and the administration of its powers and resources, both with 

 regard to its external and its internal relations ; and, in this adminis- 

 tration, it may be admitted that the general welfare of the community 

 may be legitimately considered ; but this, as we have seen, is a merely 

 incidental or unessential end, which, in itself, would not be sufficient 

 to justify the existence of government. Hence, the functions of gov- 

 ernment should, in the first instance, be divided into (1) the essential 

 and paramount function of causing justice to be observed — which may 

 be called either the judicial function or the function of jurisdiction; 

 and (2) the subordinate functions of government ; all of which are 

 included under what we have called the administrative function. The 

 last should be divided into the legislative and the governmental functions ; 

 and a corresponding division should be made of the first, namely, into 

 the function of legislatioe jurisdiction, and that of ordinary jurisdiction. 

 This accords precisely with the organization of the primitive State, 

 in which the king, apart from his character of military and administra- 

 tive chief, is regarded merely as judge, and the necessity of legislation 

 is not even conceived of (g) ; and it also accords with the subsequent 

 development of the law, which has mainly been the result of the exer- 

 cise of the judicial function, and in which legislation has had but small 

 part. "We perceive, therefore, that our twofold division of the sover- 

 eign functions of the State into the judicial, and the administrative func- 

 tion, and especially the distinction made by us between judicial, and 

 administrative legislation, is not only suggested to us by a consideration 

 of the legitimate ends of the government, and also, historically, by the 

 primitive constitution of the State, but that is also confirmed in the 

 historical development of the law. 



§ 35. Of the Judicial Function of the Government. 



With regard to the judicial function, therefore, its province may be 

 readily determined. It includes, as we have observed, the functions 

 both of legislative, and of ordinary jurisdiction ; and in the exercise of 

 either of these functions the same principle should be applied, as to all 

 other functions of the government, namely, that they should be exer- 

 cised only in aid of the natural development of society, to which the 



