conclusive between them in every other suit. It may, as Savigny observes, seem natural, that when the justice of a decision comes in question in a new judicial proceeding, it ought to be examined over again, because if there be error, equity demands that it be rectified. But, on the other hand, the evils pointed out by Paulus would arise from this conclusion, which would produce a perpetual uncertainty of legal rights. We have to choose between two dangers. The question is, which of the two involves less injury to society. This is a question of Public Law.h Long experience, and the law of different nations, show that the uncertainty of law has been looked upon as the greater evil and as an intolerable one, and to prevent it recourse has been had to an institution of positive law. The danger of unjust or erroneous judgments arising therefrom has been diminished by the establishment of degrees of jurisdiction and appeals. The important positive institution intended to accomplish the end above mentioned may be generally defined as the authority of res judicata, that is to say, a fiction of truth which protects final judgments from being impeached or modified. This fiction or absolute presumption of truth gives to a matter of judicial procedure a powerful effect on legal rights themselves; for it may engender a right which did not previously exist, or destroy or restrict an existing right, or modify that which it contains. But the real practical value of this institution, as well as its object and spirit, are to maintain just and correct judgments. For legal rights are often uncertain and doubtful, and the means of proof vary at different times with regard to the same facts. Therefore, the second judge may decide erroneously a case rightly decided by the first; and a final decision is better for the parties than perpetual uncertainty.* We find here a remarkable instance of the way in which institutions of positive law contribute to the machinery and government of civil society, and also the peculiar equity belonging to them, which consists in their relation to and use in the order of society. In this peculiar equity their spirit is to be found and their relation to the two primary laws on which society is constructed. We come now to degrees of jurisdiction and appeals. This institution seems at first sight inconsistent with what has been said regarding the importance of settling every litigation by a final decision. But it is not so; for this institution only makes the suit pass through different degrees or stages, to arrive at a final solution. Its advantages to prevent erroneous judgments are thus shown by Savigny. In the h Savigny, ubi sup. p. 265. ¡ Ibi, p. 266. * Ibi, pp. 268, 269. first place, the revision of a decision is a powerful means both for the parties and the judge to study and thoroughly master the questions in dispute. It is a still greater advantage to submit the final decision to a greater number of judges selected with much care. The new examination may however take place before the same court. These considerations are doubly important in criminal cases, especially where the punishment is very severe. For, as Carpezovius says, the salutary remedy of appeal is more especially to be allowed where the question in dispute involves, not a mere civil and perhaps trifling right, but the life of a man and an irreparable evil. Therefore, the civil law gives the prisoner (except in certain cases wherein the public safety will not admit any delay in the punishment of a notorious offender) a general right of appeal, and allows any byestander to appeal for him even against his will." Such is the spirit of the institution of appeals, of which, however, Ulpian says-nonnunquam bene latas sententias in pejus reformat. And thus we see the importance and difficulty of so framing and regulating institutions according to their spirit, as to attain, as far as the imperfection of human means will allow, the end which that spirit points out. CHAPTER XXII. THE CONNEXION OF THE JURA MAJESTATIS WITH EACH OTHER. Difficulties arising from the Union of equal Powers by a Convention only-Union by means of Civil Government-Historical Illustrations-Chief Defect of several Federal Constitutions-The United States of America-Pufendorf's Argument regarding the Division of the Jura Majestatis or Parts of the Sovereign Power-Necessity of Unity in the Sovereign Power-Historical Illustrations-The same Proposition demonstrated-Principles on which the Sovereign Power may be divided-Constitutional Balance of Power-Insufficiency of Laws alone to preserve it. PUFENDORF examines somewhat fully the connexion between the branches or parts of the civil power of government; and though the conclusion to which he arrives is not unanswerable, his arguments 1 Savigny, ibi, § 284, pp. 294, 295. Carpezov. Pract. Rer. Crim. pars 3, quæst. 139, num. 7. " Mathæus, De Criminibus, p. 744; 1. 6, ff. De Appell.; 1. 29, Cod. eod. tit.; 1. 2, § ult. ff. Quando appellandum est. • L. 1, ff. De appell. deserve consideration, because they illustrate many important things in Public Law, showing certain difficulties which arise whenever those parts are separated and vested in different persons or bodies. There is, says the learned jurist, such an indissoluble connexion between the parts of sovereignty, that if it be supposed that they are in the hands of different persons, so that each may exercise his functions independently of the others, the result is an irregular state. For there are two principal ties which may unite the will of several persons or assemblies, namely, conventions or agreements, and government. Those who are united by agreements only, without subjection to a common government, are bound to the performance of their engagements by natural law; but in other respects they remain equal, as all men are by nature. If either of the parties break natural law by violating his agreement, there remains no remedy in case of his obstinate refusal to do what justice requires, except the use of force, that is, the right of war. Thus concord can exist among those who are united simply by convention between equals-only so long as each party executes what he has engaged; and a breach of the contract leads to terminate the alliance and causes war. Hence it appears that conventions alone are not by themselves a sufficiently strong bond to keep several persons long united in a body politic, especially as it is sometimes the more powerful of the parties who violates the compact; and even if the compact provide that whenever any one of the parties violates his engagements, the others shall unite against him, that clause would be useless when several of them simultaneously break the treaty. It would be necessary that the parties should at least constitute a sort of common government; otherwise another convention would be requisite, regulating in what way those should be dealt with who refuse to lend their assistance against the violators of the alliance, and another convention to support the former, and so on ad infinitum. But civil government forms a far more powerful union for those who are subjects of the same sovereign authority do not remain the equals of the person or body in whom that authority is vested. For the sovereign has the power of commanding, and punishing those who disobey. Thus the citizens are placed under a greater necessity of conforming to his orders than if they were united by a simple convention, leaving to each a perfect equality, and full power to act according to his will.P : These reflections of Pufendorf are illustrated by the constitution of the United States of America, under the articles of Confederation of 1777. For though by that constitution all the federal authority of P Pufend. Droit des Gens, liv. 7, ch. 4, § 9. Kent furnishes another ex- the nation was vested in the federal council or congress, the articles of confederation carried the decrees of that assembly to the states in their sovereign or collective capacity. Thus disobedience to the laws of the union must have been submitted to by the government, or those laws enforced by war.9 ample from the history of Switzerland. Helvetic alliance, the cantons were bound to submit any difference that might arise between them to arbitrators. In the year 1440, a dispute arose between Zurich on the one side, and the cantons of Schweitz and Glaris on the other, respecting some territorial claims. Zurich refused to submit to a decision against her, and the contending parties resorted to arms. All Switzerland was of course armed against Zurich, the refractory member. She sought protection from her ancient enemy, the House of Austria, and the controversy was not terminated in favour of the federal decree until after six years of furious and destructive war. The great defect of all former federal governments, such as the Amphyctionic, the Achæan and Lycian confederacies, in ancient Greece; and the Germanic, the Helvetic, the Hanseatic, and the Dutch republics, in modern history, is, that they were sovereignties over sovereigns, and legislations, not for private individuals, but for communities in their political capacity. The only coercion for disobedience was physical force, instead of the decree and the pacific power of the civil magistrate. The inevitable consequence, in every case in which a member of such a confederacy chooses to be disobedient, is either a civil war or the annihilation of national authority. This defect in the political system of the United States of America was, in a great degree, remedied by the General Convention of 1787, which agreed to the plan of government now forming the constitution of that country. That constitution leaves, indeed, the residuary sovereignty of the States, but it grants specifically, and by necessary implication, powers to the union sufficient for a government, whose authority extends over every person within the entire federation. And thus the power of a civil government was made effectual to unite all the members of the body politic together. Pufendorf goes on to argue, that it is easy to see that there is so great a connexion between the parts of sovereignty that no one of them can be separated from the others without producing an irregular government, wherein the union of the parts of the government Kent, Comment. vol. 1, part 2, sect. 10, pp. 213, 214; Story, Comment. on the Constitution of the United States, vol. 1, §§ 248, 251; The Federalist, No. 15. r Ibi. is formed by a convention, the effect of which is unsafe. Let us suppose, for example, that one person or assembly has originally and independently the legislative power, while another holds, in the same manner, the coactive or executive power. In that case, either the former must be useless and ineffectual, or the other must be its ministerial servant. For of what use would it be to make laws without the power of enforcing or executing them? And if the executive be invested with the power of taking cognizance of, and deciding whether the decrees of the legislature are to be executed, the legislative power vanishes. Pufendorf concludes that they must both depend on the same will. So he argues that the power of making peace and war cannot be separated from that of establishing taxes and other imposts. For how could the citizens be bound to take up arms for the defence of the country, or to contribute from their property towards the necessary expenses of the state, in peace and war, unless those who refuse to contribute can be lawfully compelled? It would also, he says, be absurd to give the power of making treaties and alliances regarding peace and war, to any person who has not also the direction of the affairs of peace and war. To explain more fully the necessary connexion of the parts of sovereignty or jura majestatis, Pufendorf thus examines the different ways in which they may be conceived to be separate. Let us suppose the power of making peace and war to be vested in a prince, the legislative and judicial power in the hands of a senate, and the power of establishing taxes in those of an assembly of the people. If the king order the citizens to place themselves under arms, and they refuse to obey, either he has the power of compelling them to obedience himself, or he must have them judged by the senate. In the former case, it seems that not having the judicial power, he could not have that of ordering the punishment of the refractory citizens who refuse to be enrolled. But if the king must bring them before the senate, that body will decide whether the king had sufficient cause to levy troops, and whether the war ought to be undertaken, and so his power would be reduced to nothing. For we have supposed the senate to have an independent sovereign authority, not emanating from the prince, and therefore it would not be restricted to merely enforcing his commands. The same sort of result arises from comparing the right of the king with that of the people. For the power of making war is nugatory without that of raising supplies. And the assembly of the people will grant none, unless they are satisfied that the war is right and politic. Our author concludes that, if the parts of sovereignty be separated, an irregular body will be produced, the members of which will not be |