theless pay taxes." And here a celebrated rule of the canon law is applicable - quod omnes tangit ab omnibus debet approbari." The meaning of the rule is, that though the corporate acts of a body, such as a chapter, are valid with the consent of the majority, the consent of all is necessary for the purpose of affecting the private individual rights of the members of the body. So the consent of a majority would not per se suffice on sound principles of jurisprudence to affect the private individual rights of property of the minority of the citizens, without an obligation making it the duty of the minority to submit to the decision of such majority. But if an obligation to contribute to the burthens of the State be shown, then it will follow that the powers of imposing taxes and other duties lawfully belongs to that person or those persons in whom it is vested by the fundamental or organic laws of the State. That obligation is similar to the other obligations of secondary natural law, resulting, as consequences, from the institution of civil society; and so it is held by the highest authorities on Public Law. For all the members of a body ought to perform their duties in it, that the body may subsist in the good order in which it ought to be for the common welfare; therefore it is both necessary and just that those who compose a state should consider it their duty to do what is required of them for this common good, which is their own good. This truth, which comprehends all duties to the public, particularly regards the duty of those who compose a state, to contribute towards the expenses which the public service requires, whether for its internal order and administration, or for defending it against external enemies since, without this assistance, the state would perish by injustice, violence, divisions, and sedition, and would be left an easy prey to its enemies.

The same principles prove that it is sometimes just that a person be deprived of his property for the public advantage, as is the case when railroads, canals and other public works are constructed on private property. But in that case the person whose rights are affected has a right to compensation; for the charges of the public service ought to be distributed equally and in a just proportion, and no one (as far as may be) should be burthened beyond his just share. This principle is analogous to the case of goods thrown out to lighten a vessel for the owner of the property is entitled to compensation from the others who

Savigny speaks of "the fiction of representation" in this sense. Traité du Droit Rom. vol. 1, p. 30.

P Zallinger, Instit. Jur. Nat. et Eccles. Publ. tom. 1, lib. 3, cap. 7.

Domat, Droit Publ. liv. 1, tit. 5.

have derived advantage, by the safety of their goods, from his loss." Compensation to persons whose property is taken or injured for public advantage should be given either by the State or by the persons promoting or more immediately benefited by the works.

Such are the chief principles of Public Law regarding a public venue. They are in accordance with the doctrine of Adam Smith, that "the subjects of every state ought to contribute to the support of the government, as nearly as possible in proportion to their respective abilities; that is, in proportion to the revenue which they enjoy respectively under the protection of the State. In the observation or neglect of this maxim consists what is called the equality or inequality of taxation." And so another high authority says:"For what reason ought equality to be the rule in matters of taxation? For the reason that it ought to be so in all the affairs of government, as a government ought to make no distinction of persons or classes in the strength of their claims on it: whatever sacrifices it requires from them should be made to bear as nearly as possible with the same pressure on all, which, it must be observed, is the mode by which least sacrifice is occasioned on the whole. If any one bears less than his fair share of the burthen, some other person must suffer more than his share, and the alleviation to the one is not, cæteris paribus, so great a good to him, as the increased pressure on the other is an evil. Equality of taxation, therefore, as a maxim of politics, means equality of sacrifice. It means apportioning the contribution of each person towards the expenses of the government, so that he shall feel neither more nor less inconvenience from his share of the payment than every other person experiences from his. This standard, like other standards of perfection, cannot be completely realized; but the first object in every practical discussion should be to know what perfection is." It is curious to find something analogous to those principles in the laws of Manou."

t

The charges of the public service are partly defrayed in most countries by public property vested in the sovereign power of the state, for the benefit of the community. And the administration of

r Grot. Droit de la G. liv. 3, ch. 20, § 7; Pufend. Droit des Gens, liv. 8, ch. 5, §7; Vattel, Droit des Gens, liv. 1, ch. 20, § 244; Pandect. lib. 14, tit. 2, De Lege Rhodia; Blakemore v. Glamorganshire Canal Company, 1 Mylne & K. 162; 1 Blackst. Com. 139; 1 Stephen, Com. 133, 134, 154; Simpson v. Lord Howden, 1 Keen, 598, 599; Lister v. Lobley, 7 Ad. & El. 124; Entick v. Carrington, 19 Howell, State Trials, 1066.

• Adam Smith, Wealth of Nations, b. 5, ch. 2, part 2. And see Pufend. Droit des Gens, liv. 8, ch. 5, § 6.

t Mill, Polit. Econ. vol. 2, b. 5, ch. 2, § 2, p. 350.

"Loix de Manou, liv. 7, § 128, 129; and see Pufend. Droit des Gens, 1. 8, ch. 5, § 5.

such property is for the most part entrusted to the executive power, though subject to legislative regulations. Such, in this country, are the crown lands or demesne lands which form part of the ordinary revenue of the crown. This species of property must be distinguished from the private patrimony of the prince, which belongs to him otherwise than by the title of his quality as sovereign."

There is some doubt whether the raising of revenue naturally belongs to the legislative or to the executive branch of government.

Grotius, Pufendorf and Burlamaqui, agree in placing it under a separate head.a But a distinction will easily solve the difficulty. The establishment of a permanent tax must naturally be by the enactment of a law by the legislative power, for this is a general regulation prescribed by the sovereign power of the state. But it does not follow that because in countries where there is a representative assembly, the consent of that assembly is required for the imposition of taxation; therefore, that act of sovereignty is necessarily legislative. Thus, where supplies are raised in the form of a contribution, to be paid once, it is not necessarily an act of legislation, though it may be so in point of form, according to the municipal law of the country. And the actual levying and management of revenue is essentially an executive function, especially where it consists of carrying the law into execution, by receiving and administering a permanent tax. The doctrine that raising a revenue belongs to the legislative power is more political than legal, and it is grounded on unanswerable reasons of policy, whenever the form of government is mixed. We may conclude that the power of taxing the community for the public wants is of an anomalous nature, though frequently exercised by the enactment of laws; but the actual levying of imposts and their management properly belongs, on legal principles, to the executive.

With regard to interference with the rights of property by the State for the public advantage, as in the case of roads, canals and railways, and other public works, it would seem that where this involves a permanent alienation of private property secured by the municipal law, without the consent of the owner, it ought to emanate from the authority of the legislative power; but the actual administration of this function is executive.

Vattel, Droit des Gens, liv. 1, ch. 20, § 244.

y Blackst. Com. b. 1, ch. 8, pp. 245, 246.

L. 2, Cod. De Offic. com. rer. priv.; 1. ult. Cod. De Agricol. et Mancip. Domin. ; 1. 6, ff. De Jure Fisci; Domat, Droit Publ. liv. 1, tit. 6, § 8.

a See my Comment. on the Constit. Law of England, p. 61; Grot. Droit de la Guerre, liv. 1, ch. 3, § 6, num. 4; Pufend. Droit des Gens, liv. 8, ch. 5, § 4; Burlamaqui, Droit des Gens, vol. 4, part 2, ch. 13, § 6, p. 415, edit. Dupin; Martens, Droit des Gens, liv. 3, ch. 3, § 88.

CHAPTER XXI.

OF THE JUDICIAL POWER.

Legal Nature and Necessity of the Judicial Power-Private War-Cases in which the Use of Force by Private Individuals is still lawful in Civil Society-Right of Selfdefence-Jurisdiction- Notio-Proper or ordinary and delegated Jurisdiction-Civil and Criminal Jurisdiction-Distinction between Public and Private Wrongs-Effect of Judicial Decisions-Res judicata-Degrees of Jurisdiction and Appeals.

We have seen that Grotius, in dividing the sovereign power, refers to the judicial branch as the function of the sovereignty which regulates particular private matters, considered as having a relation to the public good. It may, perhaps, here be objected, that the judicial power, which decides doubtful questions regarding the application of laws, frequently pronounces on public as well as on private matters. This is true; but the judicial power never decides a naked proposition. It decides differences which arise in the case of individuals acting in their public or private capacity, or bodies acting as persons in law. Thus, in the trial of a minister of state, or other public functionary, for a state offence, the direct question which the court has to decide, is the guilt or innocence of the accused, though that decision has a relation to and may affect the constitution and welfare of the state. In this respect, Grotius speaks of things under the judicial power, as particular matters, directly or immediately private.

The judicial power is one of the three great branches of the civil power of government, and necessary for the maintenance of civil society. Its legal nature must now be examined as a fundamental part of Public Law.

The legislator constructs the law by discovering the organic nature of the institution or matter which he has to regulate, and drawing from it an abstract rule. But the judge, by an inverse operation, recomposes that which has been decomposed, and of which the law presents a single aspect.b

Laws cannot by the utmost skill of a human legislator be so constructed as to exclude all doubts as to their application; therefore, disputes must arise touching their application to particular cases, and

ibi.

b Savigny, Traité du Droit Rom. tom. 1, ch. 2, § 13, p. 42; 1. 3, ff. De Legib. 1. 8,

it is frequently necessary to examine into a multitude of circumstances, where actions are alleged to be at variance with the law. And before the effect of the law in a particular case can be determined, it is necessary to ascertain the facts. But questions of fact are, as Neratius says, liable to greater doubts and difficulties than questions of law. Now these questions of law and fact must be settled when they arise, otherwise the law would be altogether disobeyed in all such cases, and would take effect only where both its meaning and its application were undisputed. And thus the laws on which the whole system and the order of civil society depend, would be rendered of no effect, for laws would cease to be general rules of conduct. Especially criminal laws would be useless, since offenders would scarcely ever admit their own guilt. Mere natural society presents no sufficient solution of these difficulties, for as it has no sovereign power, every man must be left to vindicate his own rights and those of the persons in whom he is interested or whom he is bound to protect. This method has been called private war, concerning which Grotius says, that the law of sociability, which is in the nature of man, does not forbid all use of force, but only violence contrary to society, that is to say, that which is contrary to the rights of others. For a chief object of society is that each person may enjoy peaceably all that belongs to him, with the assistance of the power of the whole body. Therefore the law of society cannot justly prevent a man from defending and enforcing his own rights, unless society will undertake that task for him. But on the other hand, the right of private war, which makes every man judge in his own cause, and gives an undue advantage to the strong over the weak, is liable to the most serious evils. Civil society furnishes the remedy, and indeed it is by its very nature and objects incompatible with the existence of a system leaving each man to determine and enforce his own rights. For as Domat says, the different engagements or obligations by which man is destined to society on the foundation of the two primary laws, require the use of a government to restrain every one within the order of those which bind him. And for this God has established the authority of the powers which are necessary to maintain society. It is, moreover, contrary to natural reason that any man should be judge in his own cause.h

c Pufend. Droit des Gens, liv. 7, ch. 4, § 4.

d L. 2, ff. De Jur. et Fact. ignor.

e Grotius, Droit de la Guerre, liv. 1, ch. 2, § 1, num. 6.

f Zallinger, Inst. Jur. Nat. et Eccles. Pub. tom. 1, lib. 3, cap. 9, § 140. Domat, Loix Civiles, Traité des Loix, ch. 4, § 6.

h Cod. lib. 3, tit. 5, Ne quis in suâ causâ ; Hob. Rep. 87 ; Voet ad Pand. lib. 2, tit. 2,