II. The Personal Irresponsibility of the Executive It is a necessary principle under all forms of government The personal irresponsibility of the ministry not necessary. 313, 314 The hereditary executive no more requires a politically responsible ministry than the elective executive Conditions under which a politically responsible ministry is advan- The principles of ministerial responsibility in the French and in the I. The Basis of the Judicial Department. The judiciary is dependent upon the legislature. II. The Judicial Tenure and Term. Nomination by the President, confirmation by the Senate. Commissioning by the President 2. It depends upon the parties to the controversy Judicial interpretation of the language of the Constitution. The Judiciary may interpret the Constitution ultimately for the other To what extent the Judiciary possess the power of independent inter- IV. The Distribution of the Judicial Powers. 1. Original jurisdiction of the Supreme Court. 2. Appellate jurisdiction of the Supreme Court The United States Court may protect their jurisdiction against the How far their procedure is limited by the immunities of the indi- 4. Penalties which the court may inflict. 5. Its judgments are not subject to the pardoning power of the President. Power of the court to reverse its judgment; power of Congress to To the Judicial Committee of the Privy Council I. The Judicial Committee of the Privy Council. Organization of this court; tenure of its members 2. Organization, jurisdiction, and procedure as a high criminal court 342, 343 3. Organization, jurisdiction, and procedure as a court of impeachment CHAPTER III. THE ORGANIZATION AND POWERS OF THE JUDICIARY IN THE GERMAN IMPERIAL CONSTITUTION. The Federal Council is the only constitutional court I. Its power to settle political conflicts between Commonwealths 2. To adjust constitutional conflicts between the legislature and executive 3. To intercede with the government of a Commonwealth in which jus- tice shall have been denied or delayed. Implies the supervision of the administration of justice within the CHAPTER IV. THE ORGANIZATION AND POWERS OF THE JUDICIARY IN THE FRENCH CONSTITUTION. The French judiciary, with the exception of the Senate, is purely statutory. 352 The question of self-organization 2. Jurisdiction in the case of the President and ministers COMPARATIVE STUDY OF THE JUDICIARY. I. The Judicial Power of the Upper House of the Legislature History of the judicial power of the House of Lords. History of the judicial power of the Senate of the United States The Senate of the United States as a court of impeachment The judicial powers of the Federal Council The judicial powers of the French Senate. II. The Position of the Judiciary over against the Other Departments of Power of the legislature over the judiciary in the United States; in Great Britain; in France Advantages enjoyed by the judiciary in the United States Public opinion is the cause thereof Dominant influence of lawyers in the United States Political duties of the legal profession in the United States 356, 357 357, 358 358, 359 PART II. BOOK III. THE CONSTITUTION OF GOVERNMENT. DIVISION I.-THE FORMS OF GOVERNMENT. CHAPTER I. THE TESTS OF GOVERNMENTAL FORMS. IN my book upon the state I endeavored to show that the conception of the forms of state is vitiated, and the current nomenclature employed to give expression to the conception rendered almost useless, by the confounding of the ideas of state and government. The same criticism must be made as regards the usual and orthodox notions of the forms of government. The absence of the clear and correct distinction between state and government is as fatal in the latter case as in the former. In consequence of its absence in the literature of this subject, I am compelled to break new ground in this case, as in the former, or even more completely than in the former. I am compelled also to create, in large degree, a new nomenclature upon this topic, which may appear, in some respects, clumsy, but which I hope to make clear. I. My first canon of distinction will be the identity or non-identity of the state with its government. From this standpoint government is either immediate or representative. I. Immediate government is that form in which the state exercises directly the functions of government. This form of government must always be unlimited, no matter whether the state be monarchic, aristocratic or democratic; for the I state alone can limit the government, and, therefore, where the state is the government, its limitations can only be self-limitations, i.e. no limitations in public law. Nothing prevents immediate government from being always despotic government in fact, except a benevolent disposition. It is always despotic government in theory. Immediate government may be monarchic, aristocratic or democratic, according as the form of state with which it is identified is monarchic, aristocratic or democratic. History does not show that there is much difference between the first and the last, from the standpoint of liberty. The first is, I think, the more favorable to liberty. Happily immediate democratic government cannot be extended over a great territory or a great population. The restraints of family ties and neighborhood thus serve as limitations, in fact, upon its despotic tendencies. Were these removed, no more oppressive system could be conceived. Revolt is the only relief of the subject of immediate government in any case, where the government will not yield, and revolt against democratic government is a far more desperate and hopeless movement than revolt against a monarch. On the other hand, history shows immediate aristocratic government to be more favorable to liberty than either of the other forms, but possessed of far less active power. It has neither the volume of strength of the democracy nor the concentration of the monarchy. It is seldom, however, that the complete identity of state and government actually occurs, except in the monarchy, and even there it is ordinarily more apparent than real. 2. Representative government is, in general definition, that form in which the state vests the power of government in an organization or in organizations more or less distinct from its own organization. Representative government may be limited or unlimited. If the state vests its whole power in the government, and reserves no sphere of autonomy for the individual, the gov |