STATUTES. CHAPTER I. THE LEGISLATIVE POWER AS DISTINGUISHED FROM OTHER SOVEREIGN POWERS, AND THE GENERAL NATURE OF STATUTORY LAW. § 1. The order of subjects.-The elementary nature of statutory law; the source and extent of its authority; the process of enactment; its commencement and duration, and the mode of proving it, when necessary, are subjects which naturally precede any consideration of the legal principles by which courts determine its meaning, construction and effect. Therefore, this order and sequence of topics will be pursued. § 2. The three departments of government and their respective functions. In our republican system a written constitution is the great charter by which the sovereign people establish and maintain government, define, distribute and limit its powers. It is the organic and paramount law. In the federal constitution, and in the state constitutions, the three fundamental powers- the legislative, executive and judicial—have been separated and organized in three distinct departments. This separation is deemed to be of the greatest importance; absolutely essential to the existence of a just and free government. 1 About the middle of the last cen. tury Baron Montesquieu uttered words of wisdom to patriots and statesmen. He said: "When the legislative and executive powers are united in the same person, or the This is not, however, such same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again there a separation as to make these departments wholly independent; but only so that one department shall not exercise the power nor perform the functions of another. They are mutually dependent, and could not subsist without the aid and is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of nobles or of the people, to exercise these three powers-that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." Spirit of Laws, B. 11, ch. VI. Dr. Paley remarks in his Moral Philosophy, B. 6, ch. 8: "The first maxim of a free state is that the laws be made by one set of men, and administered by another; in other words, that the legislative and judicial characters be kept separate. When these offices are united in the same person or as sembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends. Whilst they are kept separate general laws are made by one body of men, without foreseeing whom they may affect; and when made, they must be applied by the other, let them affect whom they will." Blackstone, in his Commentaries (vol. 1, 146), says: "In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing laws, is vested in the same man, or one of the same body of men; and whenever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But when the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject." He also says in another part of his Commentaries (vol. 1, 269): “In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the crown, consists one main preservative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by co-operation of each other. Under the constitutions the legislature is empowered to make laws; it has that power exclusively; the executive has the power to carry them by all executive acts into effect, and the judiciary has the exclusive power to expound them as the law of the land between suitors in the administration of justice. The legislature can do no executive acts, but it can legislate to regulate the executive office, prescribe laws to the executive which that department, and every grade of its officers, must obey. The legislature cannot decide cases, but it can pass laws which will furnish the basis of decision, and the courts are bound to obey them. The functions of each branch are as distinct as the stomach and lungs in our bodies. They are intended to co-operate; not to be antagonistic; they are functions in the same system; when each functionary does its appropriate work no interference or conflict is possible." 3. A distinguished writer and jurist says: "When we speak of a separation of the three great departments of the government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. This has been shown with great clearness and accu any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legis lative." In Dash v. Van Kleeck, 7 John. 508, 5 Am. Dec. 291, Kent, C. J., speaking of the legislative and judicial powers, said: "It is a wellsettled axiom that the union of these two powers is tyranny." Federalist, No. 47. 2 Smith v. Judge, 17 Cal. 557. 3 Reiser v. The Wm. Tell S. F. Asso., 39 Pa. St. 147. racy by the author of the Federalist. It was obviously the view taken of the subject by Montesquieu and Blackstone in their commentaries; for they were each speaking with approbation of a constitution of government which embraced this division of powers in a general view; but which at the 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 possesses 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 giv ing 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 4 Federalist, No. 42. 5 Story on Const., § 525. |