220 



sider any one of said rights, we shall presently see that the holding of all the rest will pro- 

 duce no effect in the conservation of peace and justice, the end for which all commonwealths 

 are instituted. And this division is it whereof it is said, " a house divided in itself cannot 

 stand," for unless this division precede, division into opposite armies can never happen. If 

 there had not first been an opinion, received by the greatest part of England, that those 

 powers were divided between the King and the Lords and the House of Commons, the peo- 

 ple had never been divided and fallen into this civil war, first, between those that disagree 

 in politics, and after, between the dissenters about the liberty of religion ; whicli have so in- 

 structed men in tliis point of sovereign right that there be few now in England that do not 

 see that these rights are inseparable. It will be so generally acknowledged at the next re- 

 turn of peace, and so continue till their miseries are forgotten ; and no longer — except the 

 vulgar be better taught than they have hitherto been " {Lev., p. 88). 



The doctrine " that the sovereign power may be divided," is " plainly and directly against 

 the essence of a commonwealth." " For what is it to divide the power of a commonwealth 

 but to dissolve it ; for powers divided mutually destroy each other" {Id., 149). 



In connection with this proposition, is to be noted a strange contradiction in Hobbes' doc- 

 trine. For — as has been shown — the sovereign powers are necessarily divided in every 

 form of government, except that of a simple monarchy ; yet he admits that there may be 

 " three kinds of commonwealths ; namely, ' Monarchy,' where ' the representative (or sov- 

 ereign) is one man;' 'Democracy,' where the sovereign is 'an assemljly of all that will 

 come together,' and 'Aristocracy,' where the sovereign is ' an assembly of part only,' " {Id., 

 85). This concession was, however, forced upon him by the necessity of admitting the his- 

 torical existence of such forms of government. But in his opinion the first was at least the 

 preferable, and perhaps the only legitimate form {Id., pp. 92, el seq.). 



{q) One of the most deleterious effects of the Austinian theory upon the minds of the 

 modern English jurist, is that it has apparently rendered him incapaVjle of conceiving a 

 power limited by right unless the right is also capable of being enforced. To his mind " a 

 right without a remedy is a vain thing ; " by which he understands that such a right cannot 

 exist ; and to him the notion that the power (». «., the right) of the Roman king was limited 

 by law, while in fact his actual power was practically irresistible, is incomprehensible. But 

 the passage cited had a nobler meaning in the mind of Chief Justice Holt, by whose lips it 

 was first uttered ; the inference drawn from it by him was, that where the remedy was want- 

 ing, it ought to be furnished — as expressed in the maxim of the law : ubijus ibi remediutn. 

 And in fact such is the constitution of human nature, that where a right is firmly fixed in 

 the conscience of a people, it will sooner or later find its remedy. And, even though the 

 remedy be long coming, it will only render the case more hopeless to infer therefrom that 

 the right does not exist. Thus, at Rome, during the monarchy, no legal remedy could be 

 found for the violation of the law bj' the king ; nor could he be made in any way respon- 

 sible ; for he was king for life, and, when he ceased to be king, could no longer be reached 

 by human power. But when, for the king holding for life, there were substituted consuls, 

 chosen annually, in whom was vested the kingly power unaltered, the principle at once came 

 to have a practical application ; for while the consul's power was irresistible, and his person 

 sacred, during his term, he became liable upon its expiration, and, like any other person, 

 might be called to account for his violation of the law — as was frequently exemplified la 

 actual practice. 



An analogous case is presented by the early Norman kings of England ; whose power — as 

 elsewhere under the feudal system — could in practice be restrained only by force. It was, 

 however, a principle of the law then recognized, that the power or right of the kind was 

 limited by the law ; or, as expressed in Bractou's maxim : " Ipse autem rex non debit esse sub 

 homine, sed sub Deo et lege, quia lexfacil regem " (Spence, Eq. Jiir., 125). 



Among the limits thus imposed by the law upon the king's power was the principle of im- 

 munity of life, j)erson, and property in the citizen. This right was habitually violated, and 

 with impunity, by the king ; but the i)rinoii)le nevertheless continued to be recngnized and 

 asserted, and after a long struggle, commencing with Miigiia Cliarta, in the reign of .bihn, 

 and ending with the habeas corpus Act, in the reign of Charles II, it was finally vindicated 

 in practice, and the power of the king effectually limited. 



