CHAPTER XI. THE NATION AND ITS NORMAL POWERS. THE Sovereignty of the nation has its institution in the powers in which the government is constituted. The will of the organic people, in its normal action, works through different members, to which are attached different functions. The nature of these powers and these functions is implicit in the nation in its organism, their manifestation is in the process of freedom and of rights. The formal organization of these powers has obtained its higher construction in the modern age. The distinction of their different organs and their functions, is illustrative of its higher development. In the political body, as in the physical, each organ has its separate use for which it is formed, and each has no separate existence, but they subsist as the organs of one body. The distinction of these powers, although in imperfect outline, is traced by Aristotle. He describes, firstly, the assembly for public affairs; secondly, the chief magistracy, -the executive power; thirdly, the judicial power. The decision in regard to all crimes of a public character is referred to the first or the legislative power and the chief magistracy or the executive power is made subordinate to it. "It is the proper work of the popular assembly to determine concerning war and peace; to make or terminate alliances; to enact laws; to sentence to death, banishment, or confiscation of goods; and to call the magistrates to account for their behavior when in office."1 In modern politics the distinction has been held in 'a 1 Politics, bk. iv. ch. 14. clearer and firmer conception, and obtained a wider actualization through Locke and Montesquieu, but it has been defined by none with greater fullness than by the earlier American publicists, and especially in the writings of President Madison. Its genesis forms one of the most significant pages in the history of modern politics. The assertion of legislative and judicial powers, as original in the civil and political organization, against the sole and exclusive prerogative of a king, to the exercise of all powers, has been indicative of the advance of freedom; and the assertion of the distinction of all these powers, and their ampler development, has been indicative that the more perfect organization of the nation is in the realization of freedom. The distinction of the normal powers of the nation in its civil and political organization has been principally as the Legislative, the Executive, and the Judicial.1 There have been various analyses of these powers, but their value is chiefly illustrative, and they have no correspondent historical justification. The description of Locke, and of Montesquieu, and also of Hegel is, I. Legislative. — Pouvoir legislatif. II. Executive,-Pouvoir exécutif. III. Judicial, - Pouvoir judiciare. B. Constants added to these, IV. An intermediate power, — Pouvoir modérateur. This was an attempt to define more clearly their unity. The executive power has also been further divided into (a.) An administrative power, · Pouvoir administratif; and (b.) A supervisory power, Pouvoir in spectivé. Trendelenburg designates four powers, - vier functionen, - I. The Government, Die Regierung. II. The Military power. III. The Legislative power. IV. The Judicial power. But it is obvious that the Military is not a power corresponding to the other powers, since it is simply the organization of the physical force of the whole; it is in subjection to the political power, and its necessary principle of action is that of entire subordination in the political whole.Trendelenburg. Naturrechte, p. 160. Bluntschli's description indicates the tendency of recent German publicists. The common distinction is criticized as too formal and abstract, as something dry and pedantic, and this also is the criticism of Stahl. In Bluntschli's statement the legislative power is necessarily precedent, and is over against all others and is regulative of them, but in the organization of this power, the Crown and the Parliament, or the President and the Congress form each an integral and inseparable element. The powers are thus defined, as, I. The Gov. ernment, Die Regierungsgewalt, das Regiment. II. The Court, Die Richterlichegewalt, das Gericht. III. The Public Instruction, - Die Statscultur. IV. The Public Economy, - Die Wirthschaft. The presentation of these powers is given with great fullness of historical illustration. - Allgemeines Statsrecht, vol. i. pp. 446, 503. These powers in their origin and content are not determined in some historical accident; nor are they merely the expedient of human ingenuity, for which some substitute may be found in some other and better expedient, whereby, for instance, legislative or judicial functions shall be superseded; nor are they the sequence of some formal law. They are the manifestation of that which is immanent in the organism of the nation.1 These powers represent the will of the organic people in its civil and political organization. Their origin is in the necessary being of the nation, and their action is its normal process. The necessary characteristics of these powers may be traced in their structure. These powers are organic. They are not the mere incident of the action of the state, their distinction is not accidental nor arbitrary. They are not merely an artificial contrivance; their connection and their action is not as in some ingeniously devised mechanism, but as subsistent in the civil and political organism their action is unitary and organic, and in the civil and political development is their ampler organization. There is an abstract conception which represents the state as simple not complex, as arbitrary not natural in its structure, but the law of organic life appears in it also — "More complex, is more perfect, owning more 1 Kant finds the source and the necessity for these powers in the formula of logic, and they are presented as corresponding to its sequence. But they can have their ground in no formal or empty conception, either in logic or law; their ground is in the organism of the state, that is, the political organism, and their correspondence is to its real constitution. The presentation of Kant is consistent, however, with his formal conception of freedom and of rights. — Rechtslehre, sec. xiv. "The exercise of power, whether by an individual or a nation, is naturally divided into thinking, judging, and doing. Action implies all three: thought to originate, will and force to execute a conceived purpose, judgment to compare it with rules of conduct."- Fisher, The Trial of the Constitution, p. 41. The tendency which this conception constantly induces, in its correspondence with an empty and barren conception of freedom, is to eradicate those institutions which have been established in the ampler organization of the state.1 The substitute, when all are swept away, is the reconstruction of the whole after some abstract scheme or some formal design. But freedom is not found in the vacant spaces which this devastating force has opened, nor in the sweep of their bleak and windy plains; the assumption again combines the conceit of individual egoism with the limitless caprice in which freedom is feigned to exist. There is also a representation of these powers, as simply a well adjusted balance, when each is of itself negative or merely restrictive of the other. A trivial and superficial description of their origin and relation is formed after this pattern. The nation is represented as identical with the formal construction of its government, and described as simply an association of men under laws; then a power to make its laws must exist; and as some power is required to execute them, an executive is established; and then as an arbiter is required between them to regulate and settle their differences, a judiciary is established. This representation is defective, since it fails to define the content of these powers and their relation to each other and to the nation, and their subsistence in the unity of the nation. It is also destitute of an historical justification; there has been no people the process of whose government it could presume to describe. Its postulate is a formal and mechanical conception of the state. 1 "Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. If we will abolish the distinction of branches and have but one branch, if we will abolish jury trials and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all forms, a pure despotism.” . Webster's Works, vol. iv. p. 122. These powers are coördinate; that is, neither is so related to another, that it could be defined as in itself a negation, and as existent only as the instrument of another. Such a definition would make the action of a power mechanical, and would leave but one or two actual powers in the state. It would be incorrect to represent the judiciary as existing to receive the opinions and to justify the actions of the legislature, or to represent the executive as only the passive agent and pliant tool in the hands of the legislature, and neither of them as having a determinate character of its own. Since these powers subsist in the organism of the whole, one cannot proceed from another, nor derive its content from another; each subsists in the being and immediately in the sovereignty of the nation. They are, each in its own sphere, invested with the power and formal sovereignty of the nation. Each is not determined from or through another, but, within the limitation of its necessary sphere, exists in the determination of the whole. Neither can assume to represent, in its isolation from the others, the sovereignty of the whole.1 These powers are coextensive; they do not exclude each other, but each implies the other and the action of the other; and each acts in and through the whole. Thus, no individual and no section can be entirely isolated from them. These powers are correlative; not only neither has its ground in the other, but neither has its ground in itself; its ground is only in the whole. Since they subsist in the nation they cannot be regarded as isolated and selfsubsistent, but as existent in a necessary correlation. They are not separate sovereignties, but each is subsistent in 1 "It should be remembered as an eternal truth, that whatever power is wholly independent, is absolute also; in theory only at first, while the spirit of the people is up, but in practice as fast as that relaxes." - President Jefferson, Letters, Sept. 6, 1819. |