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Again the theory of the equality of the departments has never obtained in England; there has always been a supremacy, at first of the executive department as represented by the King, and later of the legislative department. At the present time not only is the legislative department in the English Government virtually supreme, but in the legislative department a preponderating influence is exercised by the House of Commons.

§ 111. Separation of Departments Under the Government of the United States. It was in the United States that the doctrine of the independence and equality of the three departments of government was first worked out to its completion. The government of the United States is one of checks and balances, and provisions are inserted to enable each department to protect itself against the others. The President is given the veto power to protect himself against the legislative branch of the government; the independence of the judiciary is secured by their power to declare acts of Congress unconstitutional; while to Congress is given the power of impeachment, as a weapon against encroachment on the part of either the executive or the judiciary. The most startling innovation contained in our Constitution, from the standpoint of all foreign governments, was the power given to the courts of disregarding acts of the legislative department, when the same were in conflict with the Federal Constitution. Such a power is essential to the preservation of the Constitution. The alternative to this would he that the legislative body could at any time abrogate the fundamental laws of the country by an ordinary legislative act. It is this power granted to the courts which alone makes the distinction between constitutional and statutory provisions of practical importance.

The provisions of the United States Constitution as to the division of powers and as to these checks and balances were mainly in accord with the existing laws on these subjects in a majority of the States; they were, however, a radical departure. from the Articles of Confederation. In the Articles of Confederation the powers of the Government were centered in the egislative department; there were no executive, and the most important of the judicial powers were vested in special committees appointed by Congress. The Virginia and New Jersey plans in

the Constitutional Convention both provided for this three-fold division of powers, but the Virginia plan alone contained this idea in its complete form.

The Federal Constitution blocked out the allotment of power to the three different departments and, as a general rule, powers granted to one department belong to that one exclusively and cannot be exercised by one of the others; one department should not encroach upon the proper jurisdiction of either of the others. Each of the three departments should possess powers, in their respective spheres, co-extensive with these possessed by either of the others."

§ 112. Primacy of the Legislative Department. While, however, in theory in the United States the three departments are supposed to be equal in dignity and power, still no government has ever yet been organized in which some one of these departments did not have a certain superiority over the other two. In all free governments this department almost of necessity must be the legislative; and such is the case in the United States.

There are many reasons why this primacy of the legislative department is of advantage to free institutions. The larger number among whom the legislative power is divided renders any concerted action for its abuse more difficult, and the (in gen eral) shorter term of legislative officers has also a strong similar tendency. Again the open discussions which generally exist in legislative bodies, together with the length of time which generally elapses before final action is taken therein, enables public opinion to make itself strongly manifested against any proposed violent abuse of power. Any usurpation of power on the part of the legislative is also checked by the requirement of a twothirds vote to enable it to exercise its supreme functions-the passage of a measure over the President's veto, or the impeachment of a public official.

§ 113. The Legislative Department. The powers of the legislative department of the United States Government, i. e., of

'Kilbourn v. Thompson, 103 U. S. 190.

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Sinking Fund Cases, 99 U.S. 718.

Worcester v. Georgia, 6 Pet. 515.

In the Congress of the United States the so-called "executive sessions" of the Senate are held in secret.

Congress, are limited to the jurisdiction granted by the Constitution. Such jurisdiction, however, may be assumed when granted either expressly or by implication. All legislative acts in excess of such jurisdiction are void." Whatever a legislative body cannot do directly it cannot do indirectly.10 No judicial power is vested by the Constitution in Congress11 except in cases of impeachment.12 Congress, however, has a general control over the judicial department through the fact that the provisions of the third article of the Constitution are not self-executing and legislation is necessary to put them into operation.13 Congress can at any time create or abolish inferior Federal courts, increase or decrease the number of judges of the Supreme or inferior courts, enlarge or decrease the jurisdiction of the courts (within the maximum jurisdiction prescribed in the Constitution), or change the procedure in the courts.

Congress has a similar control over the number and duties of the officers of the executive department, except those of the President and Vice-President.

Congress cannot delegate any part of its legislative powers either to the executive or judicial departments of the United States Government, to any department of any State government, to any other body or to any individual.14

No legislative body can bind subsequent legislatures in matters of public law relating to public subjects.15

§ 114. The Executive Department. To the executive department belongs the execution of the laws as enacted by the legislative department and interpreted by the judicial department. The enforcement of the Constitutional guaranty to a State of a

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republican form of government belongs to the executive department,16 and the decision of political questions and the management of foreign relations falls primarily within its jurisdiction.17

The pardoning power is vested by the Constitution in the President as the head of the executive department; but this provision is not exclusive so as to forbid the passage by Congress of general amnesty acts.18

No encroachment by the executive department upon the proper jurisdiction of the judicial department is permitted under the United States Constitution. No subordinate administrative or executive tribunal can, consistently with due process of law, enforce its orders by fine or imprisonment,19 nor has any administrative body established by Congress the general power of making inquiry into the private affairs of any citizen.20

§ 115. The Judicial Department.-Under the constitutional law of England the judicial department is by far the weakest of the three departments of government. Nowhere else in the United States Constitution do we see such a radical advance as in the power and protection given to this department. The great power given to the judges of declaring acts of Congress unconstitutional has already been referred to and will be treated of in detail in the chapter on the judicial department.21

The judiciary department, however, is not allowed to encroach upon the proper jurisdiction of the legislative department. The duty of the judiciary is to interpret the Constitution and the acts of Congress, not to itself legislate.22 Judicial power is to be exercised for the purpose of giving effect to the will of the legislature, not that of the judge;23 courts must expound the law as they find it.24

16 Taylor v. Beckham, 178 U. S. 578.

"See Chapter IX.

18 Brown v. Walker, 161 U. S. 601.

19 Interstate Commerce Commission v. Brunson, 154 U. S., 485.

20 Id.

21 See Chapter X. and Marbury v. Madison, 1 Cranch, 137.

22 Luther v. Borden, 7 Howard, 1. 23 Osborn v. The United States Bank, 9 Wheaton, 738, 866.

24 Fletcher v. Peck, 6 Cranch, 131; United States v. Des Moines, Ete., Ry., 142 U. S. 544; Angle v. Chicago, Etc., Ry., 151 U. S. 18; Ex parte McCardle, 7 Wallace, 514.

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Courts cannot inquire into the motives of a legislative body in passing an act ; nor into the question whether an act is unwise, unjust or oppressive.25 The remedy for an unjust or inconvenient law lies with the people, through the election of legislative officers, not with the courts.2 The power of confiscation and banishment is not judicial, but legislative.27 No court can question the validity of an executed and ratified treaty, 28 but the construction of treaties is within the province of the judiciary.29 The judicial department cannot encroach upon the executive. The writ of mandamus cannot be used to direct or control an executive officer in the discharge of an executive duty involving the exercise of judgment or discretion;30 nor can the courts interfere in political questions.31 No nonjudicial powers can be conferred on United States courts or judges.32

§ 116. The Government of the United States as a Whole.— The powers granted to, and the restrictions placed upon, the three departments will be treated of in detail in the four following chapters.

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The effect of the elaborate system of checks and balances in the United States Government is to secure safety and stability in the Federal Government, but at the expense, to a certain extent of freedom of political action. The two-thirds vote required to pass a bill over the President's veto may result in preventing either pernicious or necessary legislation. The same is

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