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OF THE LEGISLATIVE POWER. THE PARLIAMENT ITS
The introductory part of this treatise has now been brought to a close, and we must proceed to its real and principal subject—the Constitutional Law of England.
The municipal law of England, that is to say, the rule of conduct prescribed by the sovereign power of the state for the guidance of its subjects, and which they are bound to obey, has been considered with reference to the mode of its enactment. It has thus been divided into written law and unwritten law. Then that peculiar species of supplementary jurisprudence, called equity, has been distinguished from the ordinary written and unwritten law of the kingdom.
The law of England must now be viewed in a new light. It must be considered with reference to the subjects to which it applies.
The law of all countries, considered under this aspect, is divisible into two parts, namely, private law and public law. "The science of law (says Ulpian) has two parts; public law and private law. Public law is that which regards the state of the Roman commonwealth. Private law concerns the welfare and interests of individuals. For some things are useful for public, and others for private purposes. Public law is that which regards the affairs of religion, the priests, and the magistrates."1
1 L. 1. ff. de Just, et Jur. § 2. Vinnius ad Inst. L. ]. t. i. § 4. Cajacias, tom. i. col. 800, col. 8, col . 821. Voet ad Pand. tit. de
There is not much difficulty in comprehending the nature of private law. It is that which regulates the dealings and contracts between man and man, marriages, inheritance, wills, and other matters having reference principally to the interests and affairs of individuals, though they all have a bearing on the general welfare of society.1
Public law, on the other hand, is that which establishes and maintains the form of civil government, the magistrates, and all public functionaries, and the institutions necessary for the preservation of public tranquillity, for the administration of justice, and the security of the commonwealth from foreign aggression or injury. Public law protects the institutions, the endowments, and the public functions of the Church. To public law belongs also the punishment of all crimes and offences; and the definition, as well as the enforcing, of the reciprocal duty of those who govern and those who are governed.
This distinction between private and public law, our English jurisprudence necessarily has in common with that of all countries, though it is but little noticed by our legal writers.2 Different portions of the public
Just, et Jur. Merlin, Repertoire, verb. Droit. It must be observed that this division is here taken, and was intended by TJlpian, as a classification of municipal law; otherwise a distinction between internal and external public law would have been necessary. The former regulates the internal administration of a commonwealth; and the latter governs its relations with other states, and is also called international law. Chancellor d'Aguesseau, Inst . au Droit publ. § 7.
1 Hugonis Donelli Comment, tom. i. 1. ii. c. v. vi. There the reader will find this matter most learnedly and admirably explained.
2 Bracton recognises the distinction in question. The passage is interesting, and in some places not inelegant. "Est autem jus publicum, quod ad statum reipublics pertinet, et consistit in sacris, in sacerdotibus, in magistratibus. Interest enim reipublics ut habeat ecclelaw of the realm have, however, been distinguished by special appellations: such as jus coronae or the law of the crown, crown-law or criminal law, parliamentary law, ecclesiastical law, military law, and constitutional law. With that portion of our national jurisprudence which comes under the head of private law we have no concern. The distinction between private and public law has been chiefly explained, for the purpose of confining our attention to the latter. The most important portion of public law is that which relates to the sovereign power. To that subject we must first direct our attention. The sovereign power is defined by Grotius to be “that power, the acts of which are independent of any superior power, so that they cannot (except by mere force) be annulled by any other human will.” That power must exist somewhere in every separate state, though it may be limited with reference to some other power beyond the limits of the state, in which case the state is not perfectly independent. The supreme or sovereign power that rules the state governs it either directly by itself, or by means of magistrates and other ministers.
sias, in quibus homines veniam petant peccatorum suorum. Expedit etiam esse sacerdotes, a quibus de peccatis nostris poenitentiam accipiamus, et quiorent pro nobis, et Dei adjutorium nobis adquirant et providentiam. Expedit etiam magistratus reipublicae constitui, quia per eos qui juredicendo praesunt effectus rei accipitur. Parum est enim jus in civitate esse, nisi sint qui possunt jura gerere. Jus autem privatum est quod ad singulorum pertinet utilitatem principaliter, et secundario pertinet ad rempublicam ; unde dicitur, expedit quidem reipublicae nequis resua male utatur, et sic vice versa quod reipublicae principaliter interest quod sic secundario respiciat utilitatem singulorum.”—Lib. 1. c. i. § 2, 3.
* Grot. D. de la G. et de la P. l. i. c. iii. § 7.; et vid. Boehmerus, Jur. Crim. § 2. c. v. ,
The supreme power regulates either general affairs or particular matters. It regulates general affairs by enacting and abrogating laws. The particular or individual matters are either directly public or else private, but considered as having a relation to and affecting the public good. Under the head of those particular matters which are directly public, are included the declaration of war, and the conclusion of treaties of peace and alliance, and other things of that nature. Those particular matters which are private comprehend the affairs of individuals, which are settled by the public power, so far as the peace and welfare of society requires such an interference. In these things, Grotius concludes, consists the civil power, or the power of civil government,1
This analysis gives us the division of the civil power of government into three parts;—the legislative power, which regulates general affairs: that is to say, establishes rules which are to be followed in all cases where those rules apply;—the executive power, which administers particular matters which are directly public: such as the means which compel obedience to the laws, peace and war, the revenue, and the distribution of offices;—and the judicial power, which settles the affairs of individuals, so far as is necessary for the public good. It must be observed, that both the executive and the judicial power must act in obedience and according to the general rules established by the legislative power.
It will, perhaps, be objected, that the judicial power, which decides all doubtful questions regarding the application of the laws, frequently pronounces on public as well as on private matters. This is true; but the judicial power never establishes a naked abstract proposition, but decides differences which arise in the case of individuals 1 Grot . D. de la G. et de la P. l . i. c. iii. § 7.
acting in their public or private capacity, or bodies acting as individuals. It is in this respect that Grotius speaks of things, under the governance of the judicial power, as particular matters which are directly private, but considered as having a relation to and affecting the public good.
Thus, in the trial of a minister or other public functionary for state-offences, the direct question to be decided by the court is, the guilt or innocence of the accused, though the decision has a relation to, and affects the constitution and welfare of the state. The judicial power includes that of examining accusations against individuals, and deciding whether, in the particular case brought before the judge, the law has been violated and its penalties incurred by the accused.1
Strictly speaking, the word executive does not apply to any thing but the compelling obedience to or executing the laws. It is, however, made by Blackstone and other writers to include other functions, which Burlamaqui and Pufendorf place under separate heads.2 Such are the rights of peace and war, and of contracting treaties and alliances with foreign powers; of appointing magistrates and other public functionaries; and of superintending public instruction.
The executive has this important feature of diversity from the judicial power. The judicial power cannot act excepting according to the law, of which it is the depository and oracle; but the executive in many cases proceeds where the positive laws are silent.3 In those cases the executive must act upon sound discretion, which is
1 Burlamaqui, Droit de la Nature et des Gens, tom iv. par. i. c . viii. 4 Burlamaqui, loc. cit . Pufendorf, D. des G. 1. vii. c. iv. Pufendorf, Devoir de l'Homme et du Citojen, l . ii. c. vii. 3 Locke on Gov. ii. § 166.