§8. We have thus arrived at the conclusion that the work of government should be distributed under three main heads, as Legislative, Executive, and Judicial, each division being allotted to a separately constituted organ. This result is broadly in accordance with the actual constitutions of modern States: and I shall accordingly adopt it as determining the main outlines of the structure of government, which will be worked out into further detail in the chapters that follow. I think it, however, important to show that this triple division of governmental work cannot well be made complete. For this purpose, I shall now examine somewhat more closely the meaning of the fundamental terms that we have adopted to denote these organs and functions; in order to ascertain (1) how far the general notions of the functions are clearly distinguishable, and (2) how far the functions, as distinguished, are conveniently separable.
In this examination we must, of course, discard the associations and habits of thought which lead us to consider anything done officially by a judge as a judicial act, to take any Act of Parliament for a piece of legislation, and to regard the regulations laid down by the Privy Council, or by individual Ministers, as essentially different from legislation. We must give the terms a purely abstract meaning, independent of the actual distribution of governmental functions in England or elsewhere.
1. Generality of application appears to be an essential feature in the notion of a ``law''; legislation, therefore, according to its most obvious abstract definition, will be the laying down of general rules, enforced by penalties of some kind, either for the conduct of members of the community generally, or for the members or servants of government. Now it seems clearly impracticable to lay down that all general rules required to control the conduct of subordinate members of the executive must be framed by the legislature; thus depriving the heads or councils that have supreme executive authority in different departments of the power of giving general orders to their subordinates. Hence legislation, as thus defined, so far as it directly affects persons in the service of government---and indirectly other members of the community who have dealings with them---must clearly be shared with the executive. It is, however, possible to restrict the notion of ``legislation'' to the function of laying down rules directly binding on members of the community other than the servants of government: and we have already seen that it is broadly and generally desirable, for the security of the governed, that the legislative function---in this restricted sense---should be vested in an organ distinct from the executive. But it would be highly inconvenient to carry this principle so far as to leave the executive no power of laying down such rules. Not only at exceptional crises---of which I have before spoken---but ordinarily wherever it is desirable that governmental regulations should be elastic, varying with circumstances, and easily modifiable from time to time in accordance with the results of experience,---as, for instance, in enforcing precautions against infectious diseases---it seems expedient to let the details of these regulations be determined by the executive organ, On this view, therefore, the executive must have a share of the legislative function, even if taken in the narrowest abstract sense that seems at all admissible; and we have already seen that this must also be the case to some extent with the judicature, so far as judicial precedents are held to be binding.
2. It is a less easy matter to distinguish ``judicial'' and ``executive'' functions in the work of applying law to particular cases---even if we restrict the term ``laws'' to rules laid down by the legislature. In discussing this distinction---since the functions classed as executive are, as we have seen, multifarious,---it seems best to begin by framing a definite general conception of judicial functions. We should, I think, agree to apply the term ``judicial'' to any proceeding by which a competent authority determines the question whether a person has, by violating a law, deserved a legal penalty, or whether he possesses a certain legal right, or is subject to a certain legal liability, that another disputes with him. Now, doubtless, the non-coercive part of executive business has no affinity with judicial business, as, thus defined; e.g. the purchase of articles for the army and navy, the coining of money, the conveyance and delivery of letters, the maintenance of schools, the economic management of public property. The same may be said, for the most part, of such coercive work of the executive as consists in carrying out decisions of judges; e.g. the execution or imprisonment of a convict. But there are other indispensable kinds of coercive interference which have to be performed before or apart from any decisions arrived at by the judicial organ: and in this region the distinction between executive and judicial functions is liable to be evanescent or ambiguous, since executive officials have to ``interpret the law'' in the first instance, and they ought to interpret it with as much judicial impartiality as possible.
Consider, for example, the arrest of persons suspected of crime. In England when such arrest is made---as is sometimes necessary---without a warrant, we regard it as an executive act, whereas the issuing of a warrant to arrest is commonly regarded as a judicial act: but there seems to be no essential difference between the intellectual process by which a constable decides to arrest without a warrant and that by which a magistrate decides to issue a warrant. Similarly, when an executive official has to estimate the value of an individual's property, with a view to direct taxation, he ought to be guided by precisely the same considerations as would determine the decision of a judge if a disputed estimate were brought before him. Again, so far as the rules for the management of convicts undergoing imprisonment are legislatively determined, the executive officials who manage the prisons have to exercise essentially judicial functions in deciding whether and how far convicts are to be punished for violation of rules. But further, in the prevention of mischief unintentionally caused by men, or due to other than human agency, and in the regulation of industries dangerous to moral and physical wellbeing, there are various minor kinds of governmental interference which it is difficult to class decisively as ``executive'' or ``judicial'';---such as the issue of orders to remove or destroy public nuisances and the issue of licences to follow certain trades. Perhaps we may say that in such cases, where the official has a discretionary power to act or not to act, according to considerations of expediency, the function is property regarded as executive; but even so, it involves at least a quasi-judicial application of the law, if their power is exercised justly, and with due regard to the private interests affected by it. Finally, the control exercised by the heads of departments over salaried and dismissible subordinates must involve judicial, or quasi-judicial work, so far as the tenure of office is---legally or practically---on ``good behaviour''; since, in inflicting the penalty of dismissal, the superior will have to consider not whether it would be advantageous to get rid of the subordinate, but whether he has committed a sufficiently grave breach of duty; and this judicial function is of course increased in importance when the superior has to apply the specially stringent rules and severe penalties which are held to be necessary in the case of military service.
On the other hand, considerations of particular expediency, similar to those that normally determine executive decisions, are not to be altogether excluded from the processes of strictly judicial reasoning; for instance, in deciding on the punishment to be allotted to a criminal, it may be a judge's duty to consider whether an example of severity is required at the particular place and time.
It should be added that it would be inconvenient not to give the judiciary some power of making decisions and issuing orders (besides the warrant before-mentioned) which must be regarded as executive rather than strictly judicial: that is, for the arrangement of judicial business, the fulfilment of prescribed forms of procedure by parties to actions, the maintenance of order during trials; for the summoning of witnesses, and as to the mode of investigation of facts relevant to the issues tried; and for the execution of such of their decrees as are unresisted.
3. Let us now consider how. far it is possible or desirable to withdraw from the legislature the power of making decisions, whether of the executive or the judicial kind, on individual cases. In Rousseau's famous theory of the sovereignty of the people, fundamental importance is attached to the separation of this function from that of legislation. The people, he holds, have inalienable supreme legislative power; no law can be binding on a people but such as is the expression of its general will; but the general will, to be really such, must be general in its object as well as in its essence; it must ``proceed from all in order to be applied to all''; it ``changes its nature'' and ``loses its natural rectitude'' when it aims at an ``individual and determined object''.
It does not, however, appear possible to attain the ends of legislation without rules that are particular in their application, allotting special duties or special exemptions to particular classes of persons on the ground of special circumstances. And this being so, it does not seem possible, by any constitutional rule, effectually to prevent the legislature from dealing with individual cases if it be disposed to do so; since any individual case is practically distinguishable from all other cases by a combination of general characteristics; and it would be hardly practicable to lay down that no general rule should be valid if it were not in fact applicable to more than one individual. Nor would it conduce to real equity to preclude the legislature from making exceptional regulations to meet exceptional cases. Hence, though the principle which Rousseau laid down, regarded as a general maxim for the guidance of a legislative organ, appears to me sound, I do not think that the protection against legislative injustice which he has in view can be satisfactorily secured by any restrictive definition of legislative functions. For the same reason, if the independence of the executive is to be effectually secured against encroachment on the part of the legislature, it must be by some expedient other than that of confining the legislature to the function of laying down general rules; either the legislature must be precluded from dealing at all with certain administrative matters---such as selection of officials, organisation of the army, peace and war, and treaties with foreign states---or the executive in its turn must have some control over legislation.
Still more clear is it that this distinction between ``general'' and ``particular'' decisions cannot be usefully applied to limit the financial control of the legislature over the executive. It is, no doubt, easy to distinguish the laying down of general rules of taxation, as a properly legislative function, from the actual collection of the taxes, or the estimation of private property for the purpose of taxation, which are properly executive. But if the financial control of the legislature is to be effective, it must obviously have the power of examining particular details of expenditure and appropriating funds to particular purposes.
The need of subordinate executive officials---clerks, messengers, etc.---for the transaction of the business of a legislative assembly, is a point of minor importance, which it is sufficient merely to mention.
4. It is more easy to frame constitutional rules restraining the legislature from exercising strictly judicial functions. However unlimited may be the power assigned to the legislature of modifying the future legal rights of the governed, this may be kept quite distinct from the power of allotting punishments or damages for an alleged past breach of law; and there seems to be no difficulty in precluding the legislature from exercising this latter power, either directly by a ``bill of pains and penalties'', or indirectly by ``ex post facto'' legislation. It may be said that this restriction will be merely formal; since the legislature will still be able to inflict on any citizen any injury that it may desire to inflict, only not avowedly as a penalty. But (1) there is no reason why the ordinary legislature should not be constitutionally precluded from ordering certain kinds of injuries---such as death or personal chastisement---to be inflicted on the citizens, otherwise than as judicial penalties; and (2) even if it is not so precluded, the moral restraint of a constitutional prohibition against punishing for past acts is likely at least to prevent the legislature from any invasion of the established rights of individuals which could not be plausibly defended unless regarded as a penalty.
Still, though the withdrawal of judicial functions from the legislature is to this extent possible, and, for the reasons before given, generally desirable, there are certain exceptional cases in which it would be either plainly or probably inexpedient. For instance, if the legislative organ---as is actually the case in modern States---consists in whole or in part of one or more numerous assemblies, it seems desirable to give these assemblies the final determination of penalties for breaches of order at their meetings, with a view to the due maintenance of their dignity and the prevention of organised disturbance of their debates. It has also been widely held that such assemblies should have the power of punishing outsiders for attempts to obstruct or prevent legislation by intimidating legislators or otherwise; that, if representative, they should have the power of deciding contested elections of their members; and that judicial proceedings against highly placed members of the executive or judicial organs should be conducted by the legislature. These, however, are more doubtful questions, the consideration of which must be reserved for subsequent chapters.
On the whole, the conclusion seems clear that the separation of governmental functions among the organs which we have distinguished as legislative, executive, judicial, cannot, from the nature of the case, be complete, notwithstanding the strong general reasons that we have seen for establishing it. Still, we may say that the business of the legislature---at least in internal affairs---should be mainly to modify the general rules of law and determine taxation; the business of the judicature, mainly the judicial application of law to individual cases; the business of the executive, all else that has to be done to carry laws into effect. And we may say that while judicial decisions will almost entirely relate to questions of strict right and duty, executive decisions will be largely determined by considerations of particular expediency, which will but rarely enter into judicial reasonings.
Before concluding this preliminary survey, we have to take note of another distribution of the work of government, which cuts across the lines of division which we have so far been examining: I mean the distribution between central and local organs. In an earlier chapter we briefly considered certain reasons why the operations and effects of government should vary somewhat from district to district within the limits of the same State: we have now to observe that---partly for these reasons, partly on grounds that will be considered in subsequent chapters---it is universally held to be desirable that certain portions of governmental work should be allotted to organs whose sphere of operation is confined to particular local divisions of the territory. As we shall see, the extent of the powers vested in local governments will reasonably vary very much, owing to differences in the internal constitution and circumstances of different political societies; but it is generally held to be desirable that the local executive organs of government should be, at any rate to some extent, independent of the central executive. There will therefore be a need of rules determining the division of functions, laid down either by the ordinary central legislature or else by the extraordinary legislature that has the function of making changes in the constitution. And if it is thought desirable that there should be not only division of functions between central and local governments, but also some supervision of the latter by the former, it may be convenient to constitute one or more special departments of the executive for the purposes of this supervision.
[Back to:]