ment of the state, and confiding it directly to the body of citizens within the limits of the district."1

§ 164. We have thus a plain, historical origin of the principle of local self-government. This element lay at the foundation of the whole Saxon polity. It has been preserved in the English shires and ancient municipal corporations or boroughs, with their immemorial privileges. In many of the American states it is guarded with even more jealousy than in the mother-country. We have extended the principle a step farther; to our towns and counties we have added the states. But all of this scheme is but the outgrowth from the primitive germ that existed in the Saxon Tything.

As these local divisions, with their gatherings of the people, and their territorial jurisdiction, preserved the seeds of liberty in England, and finally triumphed over the crown in the progress of their development into a complete representative form of government, so are the same and similar local communities among us necessary to the preservation of liberty and the maintenance of that due balance which shall at once prevent anarchy and absolutism.

1 Pomeroy's Introduction to Municipal Law, §§ 386-890

CHAPTER II.

THE EXTERNAL FORM AND ORGANIZATION OF THE GOVERN

MENT.

§ 165. THE subjects presented in the present and succeeding chapters require a constant and careful examination of the very letter of the Constitution. Thus far the organic law has rather been treated as a whole, as the work of one people, as the expression of the national will. An endeavor has been made to obtain a just conception of its general character, and of some elemental ideas of civil polity which find utterance in its provisions; we now pass to the instrument itself, and commence to investigate its several parts, and answer the most important and practical inquiry, What are the Powers of the National Government?

In the discussion of this question, I now proceed to describe the external form, structure, and organization of the government which the people contrived and established as the means of creating, interpreting, and enforcing a system of national law for themselves. This scheme, so far as it is a mere external form, may be readily comprehended; the written provisions which describe and set it forth are concise and plain : little amplification of the very text is needed. The point which naturally suggests itself is, whether this plan be well adapted to work out those grand results which were proposed to themselves by the framers of the Constitution, the formation of a perfect union, the establishment of justice, the maintenance of domestic tranquillity, provision for the common defence, promotion of the general welfare, and security of liberty to ourselves and our posterity. For these high purposes was the Constitution ordained, and the government established. Are the means the most appropriate to the ends? But, as was

stated in the Introductory chapter, no attempt will be made to enter into a full examination of these topics, or to present in any detailed manner the considerations which would enable us to arrive at a final decision of the question whether our government is so constituted as to promote in the best manner the interests of the people. For a complete discussion of this and kindred subjects, the student is referred to works professedly treating of civil polity, to Dr. Lieber's "Essay on Civil Liberty and Self-Government," his "Treatise on Political Ethics," and to "The Federalist."

There are some salient features of this political organization, some fundamental principles upon which it is based, which enter into and give form to the whole structure, to which our attention may well be directed. These features will, therefore, be examined in the succeeding sections of the present chapter.

SECTION I.

THE SEPARATION OF THE GOVERNMENT INTO THREE CO-ORDINATE DEPARTMENTS.

§ 166. We are met at the outset by the fact that the government is separated into three departments, acting in a great measure independently of one another, to each of which is assigned an essentially different class of functions, and yet between which there is so strong a tie of mutual support and correlation that each would be powerless without both the others. These departments are the legislative, the executive, and the judicial. When we turn to the separate states, we find all their governments constructed upon the same plan. Was this contrivance accidental, was it based upon any a priori

1 Falck (Cours d'Introduction Générale a l'Étude du Droit, chap. i. § 40, note 33,) denies that the judicial power is a separate branch of sovereign power, or that the judiciary is a separate department in the government. He asserts that it is only a special manifestation of the executive. No doubt a continental theorist finds it difficult to comprehend the independence of the English, and particularly of the American judiciary.

theory, or had it an historical origin? It was both theoretical and historical.

§ 167. If we look to Great Britain, whence we have derived so many ideas of civil polity and so many forms of administration, we discover that her imperial government is modelled after the same pattern. The American President, Congress, and Judiciary are reproduced in the British monarch, Parliament, and Courts. But there is danger in pushing the analogy too far. Nothing has been productive of more confusion than the habit of arguing from the English to the American Constitution. General resemblances there are; but the essential difference in all the practical details, and in many of the fundamental principles, renders it very unsafe to draw analogies from the British organic law as aids in construing our own. When we look close into the English system, we shall perceive that the separation of the them is not so complete as with us. Great Britain, upon whom rests all ministration, the ministers of the Parliament, and are directly amenable to, and under the control of, that legislature. The highest judicial officer - the Chancellor is a member of the Cabinet, and presides over the House of Lords; while other judges may be members of the same body. The Chamber of Peers is the supreme tribunal of appeal, which may review the decisions of the courts of law and of equity; while a committee of the Privy Council has a very extensive appellate jurisdiction over other classes of courts.

three departments with The actual executive of the responsibility of adcrown, - have seats in

§ 168. Should a survey be extended over the modern nations of Europe, or over the peoples of ancient times, no others will be found in which this type of government is so distinctly followed; and many have existed in which it has been entirely disregarded. In Rome, during the Republic, there was an approach towards such a division of functions among the Consuls, the Prætors, the Senate, and the People. But when the Empire had become firmly established, and the imperial policy completely organized, the traditions of the Republic were for gotten or abandoned; and all legislative, executive, and judi

cial authority was theoretically and practically lodged in the hands of the august ruler who presided over the destinies of half the world. In France, Austria, Prussia, and especially in Italy, some approach has been made to a constitutional government, and to a separation of legislative and executive powers. In none of these countries, however, except in Italy, does this separation approach in completeness and efficiency that which exists in Great Britain; and in none of them can the judiciary properly be called an independent, co-ordinate department of the government.

§ 169. One fact of history may be considered as established, - that there has been and is the greatest amount of individual and political liberty in those nations whose governments are framed upon this tri-partite model; and that just so far as the civil polity approaches towards a despotism are all species of power centred in one ruler or body of rulers. If the entire governmental force of a nation is wielded by a single person or class of persons, if he or they may at once make, interpret, and execute laws, there is inevitably abuse of power, destruction of private rights, whether the one ruler be monarch, legislature, or the entire mass of the people themselves.

§ 170. A proposition which is thus historically true, must have some firm foundation in the nature of things. The possession of power is one of the most dangerous gifts which can fall to the lot of humanity. The tendency is always to its abuse. Power grows upon itself. In a perfect state, it is not enough that the rulers at any given time should be perfect men. There must be checks so contrived as to resist the encroachments of authority, which are to be apprehended even from the purest and most patriotic rulers. No other check has proved so effectual as the division of functions into legislative, executive, and judicial, and their assignment to classes of officials physically separate. If the legislature were also judges, their decisions would not be based upon the law as it is; but, as it would be impossible for the same men to keep their two characters entirely distinct, their judgments would rather be arbitrary enactments, special measures of legislation for each particular case. Thus all certainty as to the law