326 



sideration, namely, that justice should be observed ; and hence, there 

 seems to be no necessity for regarding them as separate and coordinate 

 departments, but rather as two different organizations in the same depart- 

 ment, cliarged with essentially the same functions. 



(6) But tlie judicial department is itself a part of the government, or 

 political organization of the State ; which is charged generally with the 

 maintenance of the State, and its defense against foreign and domestic 

 enemies, and also with the protection of the rights of individuals against 

 aggression : and hence, among its functions is that of protecting the 

 people, and the State generally, against the abuse of the judicial power, 

 as well as against the abuse of the other powers of the State. These 

 functions of the State, exclusive of its judicial (unctions, we have been 

 forced, for lack of a better term, to call its administrative functions. 

 These must be divided, again, into the leginlative function, and the gov- 

 ernmental, or, as it may be otherwise called, the imperial function, and 

 each of these, in an elficiently organized government, should in the main 

 be vested in independent officers and departments, namely, the legislative 

 and the governmental departments ; each O'f which should be coordinate 

 with the other, and with the judicial power, and, in its sphere, supreme, 

 or sovereign. 



(7) The above division of functions, as will be observed, accords, in the 

 main, with the received division of the functions of the State, into the 

 executive, the legislative and the judicial. It differs from it, however, in 

 the following respects : Under the received division of functions, as ex- 

 emplified in our own constitutions, and those of other States, the legisla- 

 tive department improperly exercises the function of legislative jurisdiction, 

 and also many of the govei'nmental functions. The former, as we have 

 said, should be vested in the judicial department, and the latter should be 

 restored to the governmental, or so-called executive department of the 

 State. 



(8) The nature of the legislative department, and of its functions, are 

 sufficiently familiar not to require an extended explanation. It will be 

 sufficient, therefore, to accept the general view upon the subject, noting 

 only where it requires to be modified. Of which modifications, the first 

 to be observed is, that it is not to be regarded as including the function of 

 legislative jurisdiction, or juridical legislation, now generally exercised 

 by it, but which, according to the view we have taken, ought to be vested 

 in the judicial department. 



In addition, it may be observed that it is a matter of grave doubt, 

 whether, in other respects, the modern representative legislature might 

 not, with advantage, be materially modified, and its functions largely 

 reduced. Originally, the legislative power operated simply as a check, 

 or limit, to the exercise of the governmental or regal power ; against which 

 it was its chief function to protect the lives, liberties and propertj'^ of the 

 citizen. And this function, as illustrated in English history, was accom- 

 plished by effectually establishing, first, the principle that no man shall 



