THE LAW AND ITS LIMITATIONS. 195 THE LAW AND ITS LIMITATIONS. IT IS generally agreed that the functions of government are three: legislative, judicial, and executive.^ And it is often assumed that it is the part of the executive to execute the law. As a matter of fact, however, the great bulk of the law in the United States, so far as its forcible execution is concerned, is executed by- sheriffs and their deputies, or other similar officers, who take their orders directly from the courts and are responsible to them.^ And the courts, in the exercise of their judicial function, issue these orders with reference to each particular case without con- sulting the executive department of the government. It is true that many writs read like orders from the chief executive to an inferior officer,^ but this is merely a fiction due to the assumption aforesaid. De facto^ the orders come from the courts ; that is, from the judicial, not the executive department. As Mr. Justice Holmes has put it, " the command of the public force is intrusted to the judges in certain cases." * The law, therefore, may be described as substantially those rules which are used by the courts in deter- mining when and to what extent the public force shall be used against individuals in time of peace,^ — the government being sued by its own citizens by its own consent and not as a matter of law.^ 1 In the convention which framed the Constitution of the United States the first resolution was that "a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." Journal of the Federal Convention, 82, 83, May 30, 1787. 2 It seems to be the other way in France, where the persons who actually execute the law really belong to the executive department, and for mistakes in execution are responsible, not to the courts, but to their executive superiors, under a droit adminis- tratif which has no counterpart in the United States.
- The writs in the Federal courts, for instance, read like an order from the Presi-
dent of the United States. < Mr. Justice Holmes, The Path of the Law, Harvard Law REViEvir, x. 457. fi "The thing to remember is that coercion by the State is the essential quality of the law, distinguishing it from morality or ethics." John F. Dillon, LL.D., The Laws and Jurisprudence of England and America, 12.
- " It is a fundamental principle of our jurisprudence that the Commonwealth can-
not be impleaded in its own courts except by its own consent clearly manifested by act of the legislature." Op. of Mr. Chief Justice Gray, in T. & G. R. R. Co. v. Common- wealth, 127 Mass. 43.
