POWER IN THE CONSTITUTIONAL SYSTEM. 235 



and placed at the same time in the hands of distinct persons; for both of them 

 requiring the force of the society for their exercise, it is almost impracticable 

 to place the force of the commonwealth in distinct, and not subordinate 

 hands; or that the executive and federative pow^er should b^ placed in persons 

 that might act separately, whereby the force of the public would be under 

 diflferent commands : which would be apt some time or other to cause disorder 

 and ruin." 



Montesquieu's triple division was the same : -■* 



" In every government," he says, " there are three sorts of power : the 

 legislative ; the executive, in respect to things dependent on the law of na- 

 tions ; and the executive in regard to things that depend on the civil law. By 

 virtue of the first, the prince or magistrate enacts temporary or perpetual 

 laws, and amends, or abrogates those that have been already enacted. By 

 the second, he makes peace or war, sends or receives embassies, establishes 

 the public security, and provides against invasion. By the third, he punishes 

 criminals, or determines the disputes that arise between individuals. The 

 latter we shall call the judiciary power, and the other simply the executive 

 power of the state." 



Both of these writers grouped judicial and " executive " powers 

 in one department which Locke designated " executive " and Mon- 

 tesquieu " judicial." Each considered the conduct of foreign rela- 

 tions a distinct department of government, which Locke called 

 " federative " and Montesquieu, " executive." Confusion results 

 from the different meaning given to the term " executive " by the 

 two men, but in substance their classifications were precisely the 

 same. This classification of departments was also that which they 

 actually observe in the British government of the time. 



84. A Fourth Department. British and Colonial Precedents. 



In the i8th century the prerogative of the British Crown in 

 Council concerned largely war, foreign relations, colonies, appoint- 

 ments and removals, the summoning, proroguing and dissolution of 

 Parliament. The Crown administered the finances and the com- 

 mercial regulations but it did so under authority delegated by Par- 

 liament, which levied all taxes, made all appropriations, and 

 passed general laws for defining commercial policy. With the ex- 

 ception of taxation, however, domestic administration was almost 



-* L'Esprit des Lois, Ixi, c. 6, Philadelphia, 1802, i: 181. Note Madison's 

 paraphrase of this in the Federal Convention, infra, note 34. 



