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The Three Powers of Government.
The Origin of the United States; and the Status
of the Southern States, on the Suppression of
The Three Dangers of the Republic.
IN THE LAW SCHOOL OF HARVARD COLLEGE, AND IN
DARTMOUTH COLLEGE, 1867–68, AND '69.
NE w Y 0 Ꭱ Ꮶ :
Entered according to Act of Congress, in the year 1869, by
JOEL PARKER, in the Clerk's Office of the District Court for the District of Massachusetts.
THE THREE POWERS OF GOVERNMENT.
Delivered in the Law School of Harvard College, in January, 1867, and in Dartmouth
College, in April, 1869.
Gentlemen of the Law School :-
The subject of my lecture to-day is in the department of Constitutional Law. For two years past I have devoted the closing lecture of my course for the autumn term, to some of the topics embraced in that department, which were of prominent interest in connection with passing events, and I propose to continue that arrangement.
My subject at the present time is the three great powers of government, to wit, the Legislative, Judicial, and Executive, with a view to the consideration of the appropriate functions of each, in a constitutional republic, and especially under the constitutions of the several States, and of the United States; showing the absolute necessity that they should be kept separate, and the action of each confined to its appropriate sphere.
You are at once aware, from this announcement, that I must necessarily traverse some of the debatable ground, which has recently been contested by different parties with a greater degree of zeal than of knowledge or discretion. From the prominence which has lately been given to the discussion of some portion of the subject, or, perhaps, I should rather say the prom. inence which has been given to violent assertions of opinion, and violent denunciations of opinion, on topics connected with the subject, it may well be supposed that you have all of you, to some extent, greater or less, formed opinions in relation to them. It is quite probable that those opinions may not be entirely alike, and perhaps the opinions which some of you have formed may be not entirely in accordance with those which I am about to .express. If so, I pray you, as I have done before, to rest assured that in whatever I may say I have no party to serve, nor any party purpose to subserve, nor any personal interest to promote. Will it be too much for me to ask of your faith and trust an unhesitating confidence, that my sole purpose is to aid, as far as I may, in a sound exposition of the principles of constitutional law, particularly as they are applicable to the Constitution of the United States, which in my belief is essential to the interests of republican liberty, and to the stability of our institutions.
Government, in one sense of the term, has been defined to be “the exercise of authority ; direction and restraint, exercised over the actions of men, in communities, societies, or states ; the administration of public affairs, according to established constitution, laws, and usages, or by arbitrary edicts.” In another sense it is “ the system of polity in a state ; that form of fundamental rules and principles, by which a nation or state is governed, or by which individual members of a body politic are to regulate their social actions ; a constitution, either written or unwritten, by which the rights and duties of citizens and public officers are prescribed and defined.”
The legitimate purpose of government in this “exercise of authority,” is not merely the administration of public affairs, and the enforcement of the duties, and the imposition of the restraints which are necessary to that administration, but it is also the establishment and security of private rights, and the protection of all who are under its jurisdiction in the enjoyment of those rights, the protection of their persons from unlawful violence, of their reputation from the assaults of malice, and of their property and possessions from all unlawful interference.
Systems of government are of three sorts, Monarchical, the government of one ; Oligarchical, that of a few; Democratic, that of the whole.
It is the first which is most often a despotism. But either of these three forms may be despotic. Absolute power - authority unlimited and uncontrolled, acting according to no prescribed rule, or disregarding at pleasure a rule which has been prescribed, and punishing a person for an act which was against no rule, and therefore innocent when it was done, or depriving a person of his property, according to the will of the party exercising the authority at the time — may be exercised by several persons acting as a council, or by a majority in a democracy, as well as by a single ruler whose will is the law of the state.
There are, essentially inherent, in every system of government, three principal powers, — the Legislative power, the proper office of which is to make the laws; the Judicial, which is rightly exercised in the interpretation of the laws, inquiring also into their infraction, and applying remedial justice ; and the Executive, which manages the affairs of the state committed to its charge, according to the laws, and enforces, if necessary, the decrees of the judicial department.
The security of the people, in their rights of person and property, depends upon the separation of these three powers into distinct departments, and upon the adoption of rules of government which shall limit and prescribe the powers to be exercised by each department, providing that each shall operate as a check upon each of the others, in such a mode as to restrain all within their proper limits.
How to effect this is a problem not yet solved. The experience of the last few years leads to a fear that it is one which is never to be finally solved, until righteousness and peace pervade the whole earth.
In some governments the three powers are mixed and confused, without definite limits, running into each other, and perhaps retrospective and ex post facto in their operation, and not exercised alike in their relation to all persons and all actions.
The monarch who reigns without restraint, and whose will is the law of his realm, who directs what shall be done, and how and when it shall be done, approves or condemns at pleasure what has been done, and punishes without remorse or mercy the most venial, and even meritorious acts, with the same severity as the most atrocious crimes, is a lawgiver, a judge, and an executive potentate. It may be his pleasure to define the action which is required of his subjects, by particular rules prescribed for their observance. It may be that the rule is, that whatever is done without his permission may be treated as an offence committed. These are both instances of a rule which is prospective. It may be that he blends the legislative, judicial, and executive powers in a single action of his will, by which he regards something done, or left undone, by one of his subjects, as an offence which he punishes at his discretion. It may be that he exercises but one of these powers in a par