271 



§ 37. Of the Function of Political Organization. 



One of the advantages. of the above division of political functions is 

 that it enables us to separate clearly the organic function, or function 

 of political organization, from the functions of the ordinary govern- 

 ment. The exercise of this function is illustrated by its practical work- 

 ings in the Constitutions of this country, and, from this, has come to be 

 generally recognized as an essentially distinct function by European 

 jurists. The practical mode in which it is usually exercised is too 

 familiar to us in this country to require any explanation, and it will, 

 therefore, be sufficient to say of it that the principles which should 

 govern its exercise are simply those of natural right, and, subordi- 

 uately to these, considerations of the common welfare. 



NOTES. 



(a) " Now in all States there are three particulars, in which the careful legislator 

 ought well to consider what is expedient to each form of government ; and if these are 

 in a proper condition, the State must necessarily prosper ; and according to the variation 

 of each of these, one State will differ from the other. The first of these is the assembly 

 for public Htl'dirs ; the second, the officers of the State (that is, who they ought to be , 

 and with what power they should be invested, and in what manner they should be 

 appointed) ; and the third, the judicial department" (Politics, Chap. xiv). 



(6) Esprit des Lois, Bk. xi, Chap, vi, a work that has had an immense influence on 

 political thought, and is still very entertaining reading, but which has no pretensions, or, 

 at least, no just pretensions, to the character of science. A better title for it, it has been 

 suggested, would have been, Esprit sur Lois. 



(c) Constitution U. S., Art. i, ii and lii; Constitution Cat., Art. iii, Sect. 1. See also the 

 Constitutions of other States. 



(d) This error, with many others, is exemplified by Kant : " Every State contains in 

 itself THREE POWERS, the universal, united will of the people being thus personified in a 

 political triad. These are the legislative power, the executive power aud the judiciary power : 

 (1) The legislative power or the sovereignty in the State is embodied in the person of the 

 lawgiver ; (2) the executive power is embodied in the person of the ruler who adminis- 

 ters the law ; and (3) the judiciary power, embodied in the person of the judge, is the 

 function of assigning every one what is his own, according to the law {Potestas legislato- 

 Tia,recloria et judiciaria). These three powers may be compared to the three proposi- 

 tions in a practical syllogism : The major, as the sumption, laying down the universal 

 law of a will ; the minor presenting the command applicable to an action according to 

 the law, as the principle of the subsumption, and the conclusion containing the sentence 

 or judgment of right in the particular case under consideration" (Philosophy of Law, 

 p. 165). 



We add Mr. Bluntschli's view of this position: "Another error which is almost 

 childish, is that which treats the organism of the State as a logical syllogism : the legis- 

 lative power determining the rule or major premise, the judicial power subsuming a 

 particular case under it (minor premise), while the executive carries out the conclusion. 

 All the functions of the different powers would thus be united in every judicial deci- 

 sion, and government would be only the policeman to execute this judgment " (Theory 

 of the State, -p. 520). 



