« SebelumnyaLanjutkan »
respect to such act of obedience, and in respect to his duty to obey, a private person ; and every commandment in a civil society primarily fows from the totality of its members, from the public, — but is formally uttered by some representatives of that totality, be these representatives monarchs, hereditary or elected delegates, or electors who choose these delegates. The Public Law, therefore, embraces all those precepts which impose duties or confer rights upon the political superiors in the state, supreme or subordinate ; upon those who organically represent the state as a body politic. Those rules which control the subject members of the state in their relations with the whole body, ought in strictness to be ranged in the Private Law; but as these relations are public in their nature, the rules themselves are also considered as a part of the Public Law.
§ 5. A conception of the Public Law as a distinct division of the entire body of jurisprudence will be made clearer by ascertaining what great departments are included in the Private Law. These departments may be thus enumerated :
1st. The Civil Law proper (droit civil, Civilrecht); consisting of (a) the Law as to Persons (jura personarum); (b) the Law as to Things (jura rerum); (c) the Law as to Obligations.
2d. Ecclesiastical Law (jus ecclesiasticum) in those countries where the Church is regarded as having a legal status, as something more than a voluntary association. This subdepartment does not exist in the United States, but does in England, and generally throughout Europe.
3d. Supervisory Law (droit de la Police, Polizeirecht). 4th. The Law as to Crimes and Punishments.
5th. The Law as to Civil and Criminal Procedure. The Private Law, therefore, includes those rules which define the rights, powers, capacities, and incapacities of various classes of persons, private, domestic, or professional; the rights of property in all its grades which may be had in or over things; and the rights which flow from contracts and all other sources of obligations between determinate individuals. It also embraces a description of those delicts or offences which the state punishes, and which are called crimes, together with the means and methods by which these crimes are punished, and those by which civil rights and duties are protected and enforced. Finally, under the denomination of Police are ranged all those governmental means proper to maintain good morals, public security, order, health, and the like; in general, all those means which augment the convenience and promote the tranquillity of social life.
It should be carefully noticed that, although the state by virtue of its sovereignty is the source of all these rules, and, at the call of a person interested, interferes by certain classes of functionaries, such as magistrates, judges, administrative officers, in enforcing duties and protecting rights, and interferes directly in its own name and by its own authority in punishing criminals and exercising social supervision, yet all these rules primarily and essentially concern the members of the civil society in their private, individual, separate capacities; the state is not involved in its separate, organic unity as a body politic; although interested, it is rather so incidentally than directly
$ 6. The Public Law, on the other hand, touches and affects the state in its organic unity. It regards that state as one body politic in its juridical relations, whether those relations be with its own subjects, or with other independent states. As these two classes of relations do and ever will exist, the Public Law may properly be divided into the two corresponding departments : Political Law, or State Law properly so called (Staatsrecht), and International Law (jus inter gentes, Völkerrecht). The department of International Law may be dismissed with this mention as entirely foreign to the purposes of this work.
$ 7. As an aid in ascertaining with definiteness what classes of rules properly fall within the division of Political Law, it will be advantageous to advert briefly to the essential feature of the state under its necessary conditions. This essential feature, without which the state cannot exist, consists in the possession of sovereign power. The nature of sovereignty both in respect to the external and the internal relations of
the state, will be fully developed in a subsequent chapter; it is sufficient now to say that the sovereign power consists in the collective will and in the faculty of wielding and disposing those forces which obey that will.
This sovereign power should be conceived of as indivisible in its nature, and as appertaining to the totality of members of the body politic - to the entire people : for, except under peculiar circumstances, there exists no reason for excluding from participation in the common will and action either one or many of those who directly take part in the political society.
§ 8. If this idea of the primary source of sovereignty can be accepted by the German theorist, by Americans it should certainly be regarded as axiomatic, and as lying at the very bottom of our conceptions of the state, and of the political structure we have erected in accordance with those conceptions. The expression, All power proceeds from the People, is trite enough, but the full significance of the expression is perhaps not sufficiently apprehended. According to the American theory, here reproduced by Falck, sovereignty does not reside in legislators, or executives, who are chosen, nor in the body of electors who immediately choose, but in the total aggregate of persons who are members of the state, and who by the present constituted order of things are primarily represented by the existing body of electors, and ultimately, by the legislative and'executive officers.
§ 9. Although it is truly said that the sovereignty resides in the aggregate of members, yet in states of a certain extent it is not possible, and even in the smallest it would not be convenient, for this totality of the people to deliberate and act. These functions of deliberation and action, which con: stitute the exercise of the sovereign power, are therefore confided to many, or to one, of the members of the body politic, and in that case it is often said of these persons that they possess the sovereign power. Practically, there is nothing improper in this form of expression, so long as the constituted order of things in any particular state subsists; the totality having delegated their capacity to deliberate and act to representatives, have not generally reserved to themselves any legal and constitutional right to recall the delegation ; such recall, when made, must be extra-legal, or extra-constitutional, or, in other words, revolutionary. How far this is true in ou. . own country, will be considered in the sequel. The common expression referred to is, however, theoretically incorrect; in strictness it should be said that these persons are entrusted with and wield the sovereign power.1
It is this delegation by the totality of the function of exercising the sovereign power, which creates the necessity of establishing a fixed rule to which the depositaries of this power
the various orders of actors in the government — ought to conform in their relations with other members of the state ; or, in other words, there thence arises the possibility of a constitution in a juridical sense of the term. As a consequence, a gove ernmental power, not possessing sovereignty in itself, but only wielding it by delegation, cannot, according to the very conception of its existence, be unlimited, absolute; although it is not indispensable that the rules which restrain it should be formally expressed. In the United States, these rules are formally expressed ; in England, they are not. That which we call an unlimited, absolute government is so in appearance only : it is one whose acts, for the time being, do not depend for their validity upon any open expression of assent by the people, or by their direct representatives. The government, on the other hand, which we usually call limited, is one that is subjected to this dependence.
§ 10. This brief analysis of the nature and mode of exercise of that sovereign power which is the essence of a state, will enable us definitely to fix the limits of the department of jurisprudence called Political Law. That department must be concerned with the extent, manner, and means of the exercise of sovereign power, su far as this exercise is confined to the interior relations of the state. The complete theory of these interior relations has a triple object : First, the fundamental organization of the whole of the relations which subsist between the government and the people; secondly, the established order of the functions by which the action of the political power with respect to the people may be carried on ; thirdly, the manner of procuring the means and physical forces which the action of the government demands. This theory in its entirety is called Political Law. In a strict sense, therefore, Political Law is the science which investigates and describes the form and constitution of the state, and which consequently responds to the three following questions: 1st. In whose hands is placed the exercise of the sovereign power? 2d. To what laws is this exercise subjected ? 3d. By what means and combinations is the observance of these laws assured ?
1 See Jameson, The Constitutional Convention, chap. ii. SS 21–24. See, also, Austin, Lectures on Jurisprudence, Vol. 1, Lect. VI. Austin seems to me to have fallen into grave errors while discussing this whole subject. He either too much narrows the meaning of the term sovereign power, and confounds it with the mere capacity to exercise that power according to the constituted order of things in a particular state ; or else he ütterly ignores the idea that sovereignty resides in the totality of members of a state as a political unit.
$ 11. The actual constitutions of states have been, and are, exceedingly varied; and the political forms commonly admitted - democracy, aristocracy, and monarchy - do not express all the differences which appear in fact, because they refer only to the number of persons who exercise the power, and not at all to their juridical relations. Thus the government of our own country cannot with accuracy be referred to either of these divisions as they are commonly understood. It is certainly not a democracy; and, although not in outward form an aristocracy or a monarchy, it is subjecte.' to the same limitations in kind, but far greater in degree as those which are usually placed upon the latter species of government. Indeed, Austin, with theoretical correctness, ranges limited monarchies and representative republics under the head of aristocracies. 1 In those constitutional forms of government only which may be essentially referred to the group of aristocracies, or to that of monarchies, can there be any question of a law which limits the political power, and consequently of means and combinations to ensure the maintenance of this law. In a pure democracy, such a law is simply impossible ; for, as the totality
1 Lectures on Jurisprudence, Vol. 1, pp. 191-200, Lect. VI.