272 



(e) " This theory, according to which three powers are admitted, namely, the legisla- 

 tive, the executive, and the judicial, was propagated by Montesquieu, who believed that 

 he had derived it from the Constitution of England. But the Constitution of that country 

 did not recognize such a separation of powers, since the king is there an integral part of 



the parliament But, as the theory of Montesquieu, adopted even in England 



(Blackstone), did not respond to the political reality, which presented in the royal power 

 something more than a power purely executive, it was found necessary to complete it by 

 the theory of the royal prerogative, which is useless when the governmental power of the 



State is well understood We see also that in France, during the first revolution, 



Clermont Tonnerre, and, later, B. Constant, sought to complete the theory by the doc- 

 trine of a fourth power, called the royal power; and in Germany, there is generally 

 added to the three powers an »!sperftfe power, which is equally comprehended, as we 

 shall see, in the just notion of the governmental power— such as exists in democracies as 

 well as in monarchies." 

 B. Constant says, in his Cours de Politique Constitutionelle : 



"It will be regarded as strange, that I distinguish the royal power from the executive 

 power. This distinction, always misconceived, is very important ; it is, perhaps, the key 

 to all political organization. I do not claim the honor of having invented it; the germ 

 is to be found in the writings of a man who perished during our troubles" (ib., note). 



"There is, then," continues Mr. Ahrens, " in the State, a governmental function, or 

 power, of which the peculiar functions consist essentially in giving impulse and direc- 

 tion to the public life, in inspecting and supervising the social movement, in keeping 

 itself in touch with its needs, in exercising the initiative in legislation, and in adminis- 

 tration, in representing the State in its international relations, and in constituting the 

 point of union and connection for all the other powers and their principal functions. 

 For this last and important need, the government ou^t to participate in legislation, by 

 exercising an initiative, and by a veto, either absolute or at least suspensive. Likewise 

 the government inspects and supervises the juridical functions, and directs directly the 

 administration " (Cours de Droit Naturel, p. 357). 



" Government or Administration (Regierungsgewalt). The usual expression, ' Executive 

 (volhieliende) power,' is unfortunate, and is the source of a number of errors, misunder- 

 standings in theory, and mistakes in practice. It neither expresses the essential char- 

 acter of government, nor its relation to legislation and the judicial power 



"The essence of government consists rather in the power of commanding in particular 

 matters what is just and useful, and in the power of protecting the country and the 

 nation from particular attacks and dangers, of representing it, and guarding against 

 common evils. It consists especially in what the Greeks call the Roman's imperium, the 

 Germans of the Middle Ages Mundschafl and Vogtei (tutelle and bailloge). Of all other 

 powers government is the ruling, and, without doubt, the highest, being related to ihe 

 others as the head to the limbs of the body. It includes what is called the representative 

 power" (Bluntschli, Theory of the State, p. 521). 



(/) "The judicial (richtcrliche) power is often regarded as the power which judges 

 (urtheilen)—& confusion which is favored by the French (and English) expressions (jjom- 

 voirjudiciaere). But the essence of judicial power consists not in judging (urtheiten), but 

 in laying down the law (richten), or, according to the Roman expression, not injudicio, 

 but injure. ' Judging,' in the sense of recognizing and declaring the justice in particular 

 cases, is not necessarily a function of government, nor the exercise of a public power. 

 In Rome it was commonly entrusted to private persons asjudiccx, in mediaeval Germany 

 to the assessors (Sclioffcii), not the judges [Ric/itcr). In modern times it is often entrusted 

 to popular juries. Maintaining the law, on the other hand, and protecting the rights of 

 individuals and of the community, has always been considered as a magisterial func- 

 tion" (Bluntschli, Theory of the State, p. 523). 



These observations are just : except that I do not see that the English expression, " the 

 judicial power," or the corresponding French expression, is open to objection. Etymo- 

 logically it precisely expresses the idea of Mr. Bluntschli. 



(g) " It is certain," says Sir H^nry Maine, " that in the infancy of mankind, no sort of 

 legislator, nor even a distinct author of law, Is contemplated or conceived of." " Zeus, 



