III. The executive function is to see that the laws of the state are carried out. IV. The administrative function is to carry out the laws of the state. V. The judicial function is to interpret the law and to adjudicate its remedies and penalties. Each of these several functions will now be briefly explained. I. The Deliberative Function.-In every state there will always be one or more bodies authorized to discuss and settle on a policy, which will represent the desire and aim of the state. This function in older forms of government is regularly exercised by the executive aided by a council, but in modern states is shared between the executive and legislative departments. At present the function of deliberation seems to be passing into the power of special bodies, nominally controlled by the executive or legislative department, or by both, but for all practical purposes separate and distinct. As illustrations may be noted the development of a cabinet, after the English fashion; or the deliberations of a bench of judges as to what is the law of the land or its proper interpretation; or the development of the permanent committees of American lawmaking bodies, whose chairmen virtually form an inner cabinet for the formulation of legislative policy; or the many commissions appointed to study some problem of importance and to make recommendations respecting a proper policy; or the rise of the constitutional convention, dictating as it does in the constitution a legislative policy binding on the legislature and the other departments of government. II. The Legislative Function.-This policy, when agreed on, is formulated into a command, either defi nitely expressed as legislative law or executive decree or order, or else tacitly expressed and made known through actions of governmental officials. Judicial decisions, for example, are in effect formal notifications of what is the law of the land. III. The Executive Function.-The executive function involves the exercise of oversight, coupled with the power to compel obedience to the law. Naturally this function is chiefly confided to the executive who may recommend to a lawmaking body, as in the President's message, action respecting matters needing attention. But a lawmaking body may itself survey the national situation and take action without waiting for suggestions from the executive. A judicial department also may be given oversight over the activities of lower courts, or a grand jury may survey the crime situation within its jurisdiction and prefer charges against persons suspected of crime. IV. The Administrative Function.-In every state there must be numerous bodies of officials set apart for the performance of the work and routine of governmental business. These bodies collectively make up the administration or civil service, which is usually placed under the direct authority of the executive but may happen to be more immediately under the control of the lawmaking body. By law the control over judicial administration is regularly placed in the courts. There is a tendency in modern governments to differentiate the organization of the administration from the executive department, leaving to the latter only a general power of supervision over administration. V. The Judicial Function.-The judicial function is, of course, chiefly exercised by the judicial department, if one be organized, or otherwise by the executive in old-fashioned governments. But some judicial power is also usually exercised by the executive and legislative departments, even though there is an organized judicial department. The executive, for example, may have judicial functions respecting cases arising in the army or navy or over administrative courts.12 A legislative department may have judicial powers over its own members or over governmental officials through the process of impeachment. Under modern conditions, therefore, even though in form a government may be organized into the usual three departments, each apparently having but one function, it will regularly be found that each of these is performing two or more of these fivefold functions. Warfare, the primary activity of the state, may be used as a simple illustration of this classification of governmental functions. The head of the army, acting for the state in war, first deliberates on a policy or plan of action. The decision when made is announced in the form of a command. The proper officials at once proceed to carry out the details of the plan under the oversight and direction of the head. If a subordinate should disobey orders, he is brought to trial, his disobedience and the extent of his offense are shown, and a proper penalty imposed. These fivefold functions are involved in every complete exercise of sovereignty, whether manifested in primitive or in modern times; thus a town meeting, for example, may deliberate, formulate, appoint a committee from its own membership to perform the order, supervise the doing of it, and punish by reprimand for neglect or disobedience. Origin and Differentiation of These Functions.One might naturally expect that there would be five distinct divisions of government, each authorized to perform one of the five classes of functions; but in practice such a formal separation would be impossible. If the divisions of government are traced historically, it will be found that in primitive or ancient governments all of these functions were exercised by a body of elders or by a king aided by his council. The same body formulated a policy, in other words, made it into a decree, carried out its injunctions, supervised the performance of it, and settled finally all violations. At later stages of development these various functions separate or differentiate to some extent and are performed by different sets of officials. The deliberative function, for instance, may be exercised by a special body of persons who would personally advise the king or executive as his council. This deliberative power may be supplemented by adding the right to formulate its decisions into law (legislation) on approval of the king. Again, the decision of judicial questions may be left to picked men expert in the law, who sit on the king's seat and make decisions in his name. Or, lastly, the management of certain parts of the administration may be transferred to responsible and capable men, who would perform their functions with but slight control or interference on the part of the executive. The modern government in its formal organization usually consists of three great divisions: the executive, the judicial, and the legislative. But, as already mentioned, in ancient or old-fashioned states, there is usually but one department, the executive aided by a council, which performs all of the functions of gov ernment. CHAPTER XI THE DIVISIONS OF GOVERNMENT THE SEPARATION OF POWERS The development of the three usual divisions of government has furnished to students of political philosophy two important theories, that of the separation of powers and the check and balance theory. A brief account of these important principles may prove useful. Montesquieu's Theory.-When all governmental power was centered in the hands of the executive there was little need to originate theories in respect to the separation of powers, but when a differentiation really had taken place, then some discussion became necessary. Aristotle gave us the first formal statement of it when he divided governmental functions into the deliberative, administrative, and judicial, lawmaking in the modern sense being almost unknown in his day. His discussion had no practical importance under the autocratic Macedonian and Roman empires but was revived during the Renaissance and played some part in the political discussions of that period. In the eighteenth century Montesquieu in his study of the English Constitution came to admire that system of government, and in his Spirit of Laws sought to show the advantages of a Politics, Book IV, Chap. XIV (Bohn edition). |