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majesty's marriage, a further supply was found necessary; and by stat. 3 and 4 Vict. c. iii. the annual sum of 30,000/. was settled upon his royal highness prince Albert by parliament.
Here terminate our inquiries into the fiscal prerogatives of the queen, or her revenue, both ordinary and extraordinary. We have, therefore, now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the queen's majesty considered in her several capacities and points of view.
The judicial branch of the absolute sovereignty, or supreme civil power in the constitution of England, has already been in a general manner considered, under the head of the royal prerogative, because it flows from and is administered in the name of the crown. But the judicial power is a distinct branch of the civil power of government, and must therefore be separately examined.
In the ensuing and several subsequent chapters that important subject will be considered.
OF THE JUDICIAL POWER AND JURISDICTION IN
Having now taken a view of the legislative and the executive parts of government in the constitution of England, it is necessary that we should proceed to the third of those great branches into which the supreme power of the state has been divided, namely, the judicial authority.
The necessity of the judicial function, whereby right is maintained, and wrongs are vindicated or redressed; the impossibility of maintaining in existence any human society without that authority; and the very objects of civil society, which are not only the promotion of the general welfare and happiness of man, but especially the enforcement of right and the redressing of wrongs ;—these things shew that judgments rest upon the same foundations of secondary or derived natural law, as all the other institutions absolutely requisite for the existence of man in that state or condition in which it is his duty to live.
All government, and every scheme of society, would be illusory, if men were allowed to be the arbiters and vindicators of their own rights; and it may be said without hyperbole, that human society could rather exist without any law whatever, than without judges or arbiters; and that it would be better that there should be no law, than that an irresponsible power of interpreting and applying the law should be vested in every citizen; for the rule would give rise to more pretences for subverting right, than it would afford instances of the just application of and obedience to the law.
Laws cannot, by any skill of the legislator, be so framed as to comprehend clearly every possible case that may occur;1 therefore disputes must arise touching their application to particular cases; and it is frequently necessary to examine into a multitude of circumstances where particular actions of individuals are complained of, and alleged to be at variance with the law.2 And as it would be subversive of all civil society to allow that every citizen should interpret and enforce the law in his own case, the judicial power, which consists in examining and deciding the differences that arise among persons in the state, examining accusations, and decreeing the punishment of those who have violated the law, is an essential branch of the supreme power of government.3
The judicial power in civil society is erected as a substitute for private war, the avoiding and preventing of which is one of the chief objects of that association ;4 and thus the right of individuals to enforce and administer justice to themselves is utterly taken away, excepting in those cases wherein, as Grotius says, the path of civil justice is not open to them.5 Thus, every man has a right to defend himself or his property, or even to defend others, where there is not time or opportunity to call for the aid of the civil power: and, indeed, if this were not
1 Salvius Julianus, 1. z. ff. de legib,
2 Pufendorf, Dr. de la N. et des Gens, 1. vii. c. Iv. § 4.
* Hugon. Donelli. Comment, tom. iv. lib. xvii. cap. ii. Pufendorf, ibid. And see L. Unic. Cod. Ne quis in sua causa. L. 13 ff. Quod metus caus. L. 176 ff. De reg. jur.; et vid. Fabri. Comm. ad tit. Pand. de reg. jur.; ad L. 137.
4 Lampredi, Jur. Public. Univers. par. iii. c. xi Carmignani, Elem. Jur. Crim vol. i. p. 214.
4 Grot. Dr. de la G. et de la P. 1. i. c. iii. § 3.
lawful, men would find themselves in a less advantageous situation in those cases, as members of a civil commonwealth, than living in a state of nature. Thus, the Roman jurisconsult Paulus says, " It is not to be allowed lor private persons to do of themselves that which the magistrate is able to do for them by his authority, otherwise great disorders would ensue."1 It follows from these principles, that the administration of justice is one of the duties of the state,—which is likewise bound to provide a remedy in every case where there is a wrong,—so far as the imperfection of human institutions will permit.
Jurisdiction is sometimes taken to mean every species of authority over persons, or over things with reference to persons, which is not a mere right of property ;2 but, in its stricter sense, jurisdiction is the public power of deciding causes civil and criminal ;3 or the cognisance and decision of disputes which arise among men, the examination of accusations, and the punishment of the guilty according to law.4
Jurisdiction is exercised by the interpretation of the law; that is to say, by the declaration of the judge, whereby he pronounces that the particular fact in dispute before his tribunal is or is not comprised in the law.5 Thus, as Cicero most elegantly expresses it, the magistrate is a speaking law, and the law a silent magistrate.6
'"Non est singulis concedendum quod per magistratum publice possit fieri, ne occasio sit majoris tumultus faciendi."—L. 176 ff. De divers, reg jur. And see the comment of J. Gothofredus thereon.
1 Pufendorf, Dr. de la N. et des G. 1. iv. c. iv. § 14. fin.
3 Voet ad Pand. 1. ii. tit. i. § De jurisd.
4 Pufendorf, Dr. de la N. et des G. 1. vii. c. iv. § 4. And see (Coke) 4th Inst. Prooem.
6 Lampredi, Jur. Pub. Univ. par. ii. c. iii. § 17. 6 "Magittratiu lex loquens; lex autem mulus magistratus."—Cic. de Legib.
The principal division of jurisdiction, with reference to its object, is that which distinguishes it into two branches, namely, criminal and civil. Both these branches are subdivided again into, 1st, civil or temporal; and, 2d, ecclesiastical.
Criminal jurisdiction is the public power taking cognisance of crimes, and imposing punishments, for the public welfareor, as it is defined by Pufendorf, the power of examining accusations, and commanding the punishment of the guilty according to law.
Civil jurisdiction is that which has for it objects the application of laws not intended for the punishment of offenders, but for the maintenance of civil or natural rights. By civil jurisdiction questions of private right are heard and determined.2 The distinction between civil and criminal jurisdiction has, by some writers, been held to consist in this,—that to the former belongs the redress of private wrongs, and to the latter the vindication of public wrongs. Some unlawful acts, or wrongs (wherein we must include omissions as well as actions), tend directly to injure the commonwealth, while others are injurious to individuals.3 But it is impossible to settle, by any general invariable rule grounded on abstract principles, the boundary between public and private wrongs; for every wrong to an individual is an offence against the community, which is established for the protection of men's rights, and the welfare of all its members. Certainly there are offences directly affecting the community alone; and others which, by reason of their pernicious nature, appear to be injuries inflicted on society, as well as directly hurtful to some of
1 Boehmerus, Jur. Crim. sect. 1. cap. iii. § 60. Carmignani, Elem. Jar. Crim. vol. i. p. 212, 113. Renazzi, lib. iii. c. ii. § 2. n. 2. - Erskine, lust . b. i. tit. ii. § 5. 3 Vinnius ad last. Paratit. ad tit. i. lib. iv.