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same time established an occasional mixture of each with the others, and a mutual dependency of each upon the others. The slightest examination of the British constitution will at once convince us that the legislative, executive and judiciary departments are by no means totally distinct and separate from each other. The executive magistrate forms an integral part of the legislative department; for parliament consists of king, lords and commons; and no law can be passed except by the consent of the king. Indeed, he posseses certain prerogatives, such as, for instance, that of making foreign treaties, by which he can to a limited extent impart to them a legislative force and operation. He also possesses the sole appointing power to the judicial department, though the judges, when once appointed, are not subject to his will or power of removal. The house of lords also constitutes not only a vital and independent branch of the legislature, but is also a great constitutional council of the executive magistrate, and is in the last resort the highest appellate judicial tribunal. Again, the other branch of the legislature, the commons, possess in some sort a portion of the executive and judicial power, in exercising the power of accusation by impeachment; and in this case, as also in the trial of peers, the house of lords sits as a grand court of trial for public offenses. The powers of the judiciary department are indeed more narrowly confined to their own proper sphere. Yet still the judges occasionally assist in the deliberations of the house of lords by giving their opinion upon matters of law referred to them for advice; and thus they may, in some sort, be deemed assessors to the lords in their legislative as well as judicial capacity." As co-ordinate branches of one government they are politically connected and bound together; but their powers and functions are not blended; they occupy no common ground, nor do they exercise any concurrent jurisdiction.
To some extent, and for certain purposes, the powers appropriate in their nature to one department are exercised by each of the others; sometimes by express direction of the supreme law; but otherwise only when it is done incidentally or as a means of exercising its own proper power.?
1 Story on Const. § 525.
kins v. Holman, 16 Pet. 60, 61;
2 Taylor v. Place, 4 R. I. 324; Wat- Wayman v. Southard, 10 Wheat. 1,
§ 4. The whole legislative power delegated to the federal government is vested in congress, with the exceptions made in the constitution, as in the instance of making treaties. Congress has only enumerated powers; the residue is retained by the states, and is vested by their constitutions in their legisla tures, subject to restrictions and limitations in the federal constitution and that of the particular state. In creating a legislative department of a state government, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the constitution of the United States. So all the executive power which can be exercised is vested in the executive department, and all the operative judicial power in the judiciary department.2
5. The power which is entirely and exclusively vested in the judiciary department is the power conferred on judicial courts and tribunals to administer punitive and remedial justice to and between persons subject to, or claiming rights under, the law of the land. The exercise of this power includes invariably actor, reus and judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings. It is part of this judicial power to determine what the law is; and all questions involving the validity and effect of statutes when thus determined are authoritatively settled.3
§ 6. The legislative power. It results from this division of the fundamental powers that the legislature is confined to the exercise of the law-making power; its sole function is the enactment of laws. None of these great powers are defined
42; The Auditor v. Atchison, etc. R. R. Co. 6 Kans. 500; s. c. 7 Am. R. 575; Flint, etc. P. R. Co. v. Woodhull, 25 Mich. 99.
Cooley's Const. Lim. (4th ed.) 100; Donnell v. State, 48 Miss. 661; Governor v. McEwen, 5 Humph. 241; Knoxville, etc. R. R. Co. v. Hicks, 9 Baxt. 442.
Taylor v. Place, 4 R. I. 324. 3Shumway v. Bennett, 29 Mich.
465; Taylor v. Porter, 4 Hill, 146;
in constitutions. They are distributed by name, and, therefore, their scope and limits have to be determined from their intrinsic nature. They are deemed thus sufficiently distinguishable. A state legislature, by this grant of legislative power, is vested with all power which is of that nature, whether it had been exercised wholly by the parliament of Great Britain, or in part, by prerogative, by the crown. As legislative power is merely a power to make laws, its nature may be inferred from the definition of statutory law; for a statute formulates whatever is resolved, ordained or enacted by the forms of legislation in the exercise of that power.
§ 7. Statutory law, in general. A statute is, in a general sense, the written will of the legislature rendered authentic by certain prescribed forms and solemnities, prescribing rules of action or civil conduct. This is comprehensive as applied to
1In Merrill v. Sherburne, 1 N. H. 203, Woodbury, J., said: "No particular definition of judicial power is given in the constitution, and considering the general nature of the instrument none was to be expected. Critical statements of the meanings in which all important words were to be employed would have swollen into volumes; and when these words possessed a customary signification a definition of them would have been useless."
Lowrie, C. J., in Reiser v. The William Tell Saving Fund Association, 39 Pa. St. 146, said: "We must again insist that the making of laws and the application of them to cases as they arise are clearly and essentially different functions, and that one of them is allotted by the constitution to the legislature and the other to the courts. 9 Casey, 495. Chief Justice Gibson expressed this in Greenough v. Greenough, 1 Jones, 494: 'Every tyro or sciolist knows that it is the province of the legislature to enact, of the judiciary to expound, and of the executive to enforce.'"
In Maynard v. Valentine, 1 W.
Coast Rep. 843, Greene, C. J., speaking of the distinction between legislative and judicial functions, said: "It could not be destroyed without destruction of one or the other function. For it consists in diversity of the deep-seated organic relations which court and legislature respectively bear to the central sovereignty which speaks and acts through them. The sovereign, through the legislative organ, speaks spontaneously, and imposes on that organ no obligation to reply to any petition. It speaks through its courts upon petition only, and obliges its courts to answer every petition. The voice of the court is explanatory, and assertative of that of the legislature; the voice of the legislature is determinative of that of the court. Legislatures declare about persons and things in general, and, in particular, what the sovereign will is. Courts declare what, according to that will, the parties before them are bound or free to do or suffer. In fine, the legislature gives, and the court applies, the law." 2 Wash. Ty, 3.
21 Kent's Com. 447.
persons. "Statute law may, we think," says Wilberforce, “be properly defined as the will of the nation expressed by the legislature, expounded by the courts of justice. The legisla ture, as the representative of the nation, expresses the national will by means of statutes. These statutes are expounded by the courts so as to form the body of the statute law." Mr. Austin says: "A law in the literal and proper sense of the word may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him." He also says: "Legislative powers are powers of establishing laws and issuing other commands." "
In what capacity does a legislature act in issuing other commands? In other words, in what other way, or to what other end, may “legislative powers" act or issue commands than to establish laws? It would seem to be a truism that the product of law-making is law. The foregoing definitions confine law to persons. If it is so confined, then the legislature in the exercise of the law-making or legislative power may not legislate in regard to things. Nor should those doctrines and principles which have been accepted as part of the common law, relating to things, be regarded as law. The truth is that law. is a rule, not necessarily a rule of conduct, though a rule of conduct is a law a branch, not the whole of it. As a rule a statute may, besides prescribing a rule of civil conduct to sentient subjects, create or establish legal qualities and relations, operating as a fiat. Statutes may be institutive, creating and organizing legal entities and endowing them with qualities and powers--for example, public and private corporations. They create offices, courts, and other governmental agencies; they define crimes and torts; property, corporeal and incorporeal; titles, contracts; prescribe remedies and punishments; they impart a legal vitality to and regulate all the minutia of civil polity, including every social and business relation or institution deemed conducive to the well-being and happiness of the governed.*
§ 8. As a rule for persons, it is not a transient, sudden order from a superior to or concerning a particular person, but some
1 Wilb. St. L. 8.
2 Austin's Jurisprudence, vol. 1, p. 3,
3 Id. § 230.
4 License Cases, 5 How. 504, 583; Mann v. Illinois, 94 U. S. 113, 125.
thing permanent, uniform and universal. It is a rule, because not merely advisory, but imperative; it emanates from the supreme power as a command, and does not depend for effect on the approval or consent of its subjects; it is a rule of civil conduct, because it does not extend into the subjective domain of morals or religion; it is prescribed, and therefore operates prospectively, though it may under certain circumstances and limitations operate retrospectively, as will be seen hereafter.? It is permanent, uniform and universal, not in the sense of being irrepealable or necessarily operating upon all the persons and things within the jurisdiction of the legislature, but because a law in general has a continuing effect and operates impartially throughout the state or some district of it, or upon the whole or a class of the public.3
11 Black. Com. 44.
2 See post, ch. XVII.
3 In Slack v. Maysville, etc. R. R. Co. 13 B. Mon. 22, Marshall, J., speaking for the court, said: "It would be difficult, perhaps impossible, to define the extent of the legislative power of the state, unless by saying that so far as it is not restricted by the higher law of the state and federal constitutions, it can do everything which can be effected by means of a law. It is the great, supervising, controlling, creative and active power in the state, subject to the fundamental restrictions just referred to. Whatever legislative power the whole commonwealth has, is by the constitution vested in the legislative department, which, representing the popular majorities in the several local divisions of the state, and under no other restraint but such as is imposed by the fundamental law, by its own wisdom and its own responsibilities, may regulate the conduct and command the resources of all, for the safety, convenience and happiness of all, to be promoted in such manner as its own discretion may determine. The legislative department performs and finishes its office by the mere enactment of a law."
The nature and scope of legislative power in the enactment of laws as treated in an article on "The Constitutionality of Local Option Laws" in 12 Am. L. Reg. (N. S.) 129, are too narrow. Contrary to the assumptions there made, it is believed that all valid acts of the legislature, whether national or state, are laws. The enumerated powers granted to congress are legislative in their nature; no other would vest in a state legislature under a general grant of legislative power. Other clauses in the constitutions, requiring or regulating the action of the legislature in reference to specific subjects in the internal system or polity of the state, are not intended to confer or regulate any other than the power of making laws — saving the special jurisdiction in cases of impeachment, and such as relate to the autonomy of the separate branches or are incidental to the exercise of its legislative function. Hope v. Deaderick, 8 Humph. 1; Lusher v. Scites, 4 W. Va. 11; Myers v. Manhattan Bank, 20 Ohio, 295; Anderson v. Dunn, 6 Wheat. 204-235; Kilbourn v. Thompson, 103 U. S. 168; Von Holst, Const. L. § 28. The taxing power is legislative. Marr v. Enloe, 1 Yerg. 452; Lipscomb v. Dean, 1 Lea, 546.