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The Judiciary may interpret the Constitution ultimately for the other
departments of government

To what extent the Judiciary possess the power of independent inter-
pretation of the law

IV. The Distribution of the Judicial Powers.

1. Original jurisdiction of the Supreme Court.

2. Appellate jurisdiction of the Supreme Court

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The United States Court may protect their jurisdiction against the
Commonwealth courts

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How far their procedure is limited by the immunities of the indi-
vidual

VII. The Senate as a Court of Impeachment.

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2. To adjust constitutional conflicts between the legislature and executive
within a Commonwealth

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in Great Britain; in France

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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

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