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Full text of "Political Science Of The State"

264                             POLITICAL  SCIENCE.

is a judicial procedure. In one or more of the colonies,
further, the upper house, like the house of lords, was a high
court of appeals, a function now no longer pertaining to it,
owing, perhaps, to the incompetence of such bodies to grap-
ple with high questions of law. So also, as in England,
divorce was granted formerly by many legislatures, which
thus exercised concurrent power with the courts, and the
same bodies to some extent had the pardoning power in their
hands. What is more remarkable, the judiciary, as in England,
and as the Roman praetor by his edict, has a most important
and most useful power of unfolding existing law, so as to ap-
ply its principles to new cases not contemplated in the origi-
nal law or statute, thus approaching near to the functions of
a law-making body. A slighter invasion of another province
is seen when an officer of government, a finance minister, for
instance, lays down, for the interpretation of the revenue law,
rules which must stand until a private person chooses to test
their validity before a court. But the most remarkable case
of a blending of powers is in the president's qualified veto, by
which he overcomes a majority in the houses of congress of
less than two-thirds, and which has been a very living part
of our constitution ; while the analogous power of the British
monarch which suggested it has now become obsolete through
the working of a government by responsible ministries. This
is certainly not an executive act, yet it does not reach the
positive character of a law-making process, but simply stands
in the way of legislation. It is one of those checks of which
the political wisdom of the Anglican race has devised so
many, by which we violate theory in order to gain a practical
end.

But is there not danger of conflict and encroachment, if

Danger of con- ^e departments are equal or nearly equal ; and

flktofdepamnems.

cendancy, commit unconstitutional acts, or, in a time when
party spirit runs high, strive to alter the constitution ? With-
out doubt»there is some danger from this source. The great
strife between Charles I. of England and the parliament led