The same author finds several points in which the legislative procedure in the United States is traced naturally to that of England. The system of orig inating legislation by bills passed by both houses arid submitted to the approval or veto of the execu tive, he traces back to the period when parliament began to take the initiative, and legislation arose from itRipetitions to the king. A like origin is at tributed to certain privileges possessed by each house, such as, on the one hand, the judicial rights of the senate and the power of impeachment and of initiating money bills in the house. So also the privileges of members of both houses of freedom of speech, freedom from arrest, and the provision that each house is the judge of the election and qualifi cation of its members ; id.
Most of the American constitutions pro vide, in express though in different terms, for the separation of the three powers of government. See EXECUTIVE POWER. The constitutions of the United States, and a few of the states, do not have sitch a formal provision, but simply vest in the legislature, the legislative power ; in the courts, the judicial power ; in the executive, the execu tive power. In most of them there is not only an express separation of powers, but also a prohibition against the assumption or discharge of the functions of any one de partment by a person or persons exercising the functions of another. And the Ohio con stitution, art. 2, § 32, provides that the legis lature can exercise no judicial power not expressly conferred by the constitution. It is generally conceded, however, that those constitutions which simply vest the three powers in three distinct departments oper ate as clearly and distinctly as enjoining the separation of the departments as those in which there is an express provision, and this may be accepted as a settled principle of American constitutional law. In an early case it was said that "no power can be prop erly a legislative and properly a judicial power at the same time ; and as to mixed powers, the separation of the departments in the manner prescribed by the constitution precludes the possibility of their existence." Bates v. Kimball, 2 D. Chip. (Vt.) 77. It is true, as suggested by another court, that there are many minor duties devolving upon a government which cannot be assigned, strictly speaking, to any one of the three departments ; People v. Provines, 34 Cal. 520. A suggestion has been made to char acterize these nondescript duties as "admin istrative," but it is very truly remarked that this "does not much mend the matter, for it is at once obvious that this does not make a fourth department, but merely gives a name to a group of duties taken from the legisla tive and executive departments." 31 Am. L. Reg. N. S. 438. It might be added that the term administrative in this sense might have an application under the systems of conti nental Europe, where the executive exercises certain legislative functions not belonging to the office as we understand it. See EXECU TIVE Powxs. The three departments are not merely equal, but exclusive, in respect to their duties, and absolutely independent of each other ; Smith v. Myers, 109 Ind. 8, 9 N. E. 692, 58 Am. Rep. 375 ; one cannot in quire into the motives underlying the action of another ; Wright v. Defrees, 8 Ind. 298. The executive power is much more easily defined than the other two. The greater dif
ficulty of determining the boundary line be tween legislative and judicial power has been already alluded to under the latter ti tle, as also have some of the reasons why the legislature has continued to exercise some powers which in their nature are judi cial, even after the general acceptance of the theory that they should be separated. The difficulties of the subject arise more partic ularly in the determination of what are leg islative and what are judicial acts, rather than in the scientific definition of the distinc tive powers. The statement of the principles upon which the definitions rest is compara tively easy, and the cases abound in state ments which in varying terms express the difference with sufficient accuracy ; some of these cases have been cited in the other titles referred to. A terse expression is that of Mr. Justice Field: "The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of the parties are, with ref erence to transactions already had; the other prescribes what the law shall be in future cases arning under it." Union Pac. R. Co. v. U. S., 99 U. S. 761, 25 L. Ed. 496. Another early statement of the distinction is : "A marked difference exists between the employment of judicial and legislative tri bunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the con stitution, those decisions should be founded. It is the province of judges to determine what the law is upon existing cases. In fine, the law is applied by the one and made by the other. To do the first, therefore, to compare the claims of the parties with the law of thd land before established, is, in its nature, a judicial act. But to do the last, to pass new rules for the regulation of new controversies, is, in its nature, a legislative act." Merrill v. Sherburne, 1 N. H. 204, 8 Am. Dec. 52. "The distinction between legis lative and judicial acts is that the former establishes a rule regulating and governing matters occurring after its passage, while the latter determines rights and obligations concerning matters which already exist, and have transpired before the judicial power is invoked to pass upon them." Smith v. Strother, 68 Cal. 197, 8 Pac. 852 ; Lane v. Dorman, 3 Scam. (III.) 238, 36 Am. Dec. 543; Merrill v. Sherburne, 1 N. H. 204, 8 Am. Dec. 52. In cases where the doubt can be other wise resolved, probably the best solution of the difficulty may be found in the suggestion that : "Since the legislative department is the broadest in scope, and perhaps corre sponds most nearly to the original depositary of all the powers," or, it might be added, of the ultimate sovereignty, "it seems logical to leave to it the residuum, and say that everything not clearly executive or clearly judicial is legislative." 31 Am. L. Reg. N. S. 438. "And, in general, it is to be borne in mind that the question always is, not what is the etymological meaning of legislative and judicial, but what were in fact the func tions of legislature and courts, respectively, at the time the constitution in question was framed." Id.; Shepard v. Wheeling, 30 W. Va. 482, 4 S. E. 635 ; Copp v. Henniker, 55 N. H. 179, 20 Am. Rep. 104.