United States v. Dodge, 14 Johnson, 95, Campbell, 6 Hall's Am. Law Journal, 113, 408 28, 116 296 464 492, 493 88, 140 Warder v. Arrel, 2 Washington, 1, Va., 282, Ward v. Jenkins, 8 Law Reporter, 538, 444 408, 469 Ward v. Mann, 9 Law Reporter, 493, Watson v. Tarpley, 18 Howard, 517, Wells v. Newkirk, 1 Johnson's Cases, 228, Wheaton and others v. Peters and others, 8 Peters, 591, Winchendon v. Hatfield, 4 Mass., 123, White v. Chambers, 2 Bay, 70, Wilkinson v. Leland, 2 Peters, 627, CORRECTIONS. PAGE 39, note, line 3 from bottom, for "the result either," read, "either the result." Page 75, line 14 from top, for "The motives for that practice are immaterial,” read, "The motives which may have actuated the State, in this, are immaterial." Page 119, note 1, line 3, for "18 East," read, " 10 East." Page 133, note 1, for "1 Comstock," read, " 4 Comstock." Page 158, note 2, line 6, for "Novell. 162, c. 3," read, "Novell. 156." Page 211, line 5 from bottom, for "vontre," read, 66 66 ventre." Page 221, note 1, line 1, after "Swedish," insert, or Danish," Page 228, line 5 from bottom of the text, for "further," read, "fuller." Page 230, line 19 from top, for “1559,” read, “1659.” Page 265, note 1, line 3, for "restructed," read, "restricted." Page 285, note 1, for "1 Zabriskie's R., 368, 378," read, "1 Spencer, 368, and State v. Post, 1 Zabriskie, 699." Page 329, line 13 from top, for "laws. No laws," read, “laws, no laws." Page 344, line 7 from top, for "Code Noir," read, "Edict of Louis XV." Page 349, line 12 from top, insert “the," before “question.” Page 362, for the numbers of the notes, "3, 4," read, “1, 2.” Page 369, in the note, dele 59, after R. Page 377, line 18 from top, for "primitive," read, "punitive." Page 493, note 1, line 5, for "Tuff," read, "Tutt." Pages 494, 495, for "CONCURRENT," in the running title, read, “ CONTESTED." Page 495, note 3, for "92, 313; 5 of same, 301, 330," read, "92-103, 301–330." Page 496, line 1, for "two," read, "four." Page 501, note 1, line 9, after " Fitzpatrick," insert, “3 Caines, 36, and Foot v. Ste vens." Page 505, last line in note, for "See note," read, “ (2) See note 1." THE LAW OF FREEDOM AND BONDAGE. CHAPTER L LAW DEFINED AND DIVIDED ITS OBJECT, ORIGIN, EFFECT, § 1. The word law has, in common use, two leading significations; one, which is generally considered the primary sense -that of a rule of action, prescribed by a superior to an inferior; in the idea of which the possibility of action contrary to the rule is implied: the other-a meaning sometimes considered secondary to that first given, by a metaphorical use of the word that of a mode of existence, or of action, excluding the idea of the possibility of action contrary to that mode ;—a relation necessary in the nature of the thing existing or acting: whether the co-existence of a superior author or cause of that relation be supposed or not.' § 2. Every being, existing under conditions over which it has no control, is subject to law in the secondary sense ;-therefore, called the law of its nature. The nature of man, or the conditions of his existence, are to him a law in this sense-the law of nature; and, being by this law capable of choice and action, he may also be subject to law in the primary sense.' 1 Brande's Dict., Law. Blackst. Com., Introd., sec. 2, note by Christian. Austin: Province of Jurisp., pp. 19, 130, 184. Montesq.: Spirit of L., ch. i.; and De Tracy's Comment. Reddie's Inquiries Elementary &c., pp. 4, 16, 17. The primary and secondary meanings of the term law must not be confounded The idea of law in the primary sense implies the relation of superior and inferior; and the elementary principle in the science of law, in this sense of the word law, is the existence of the legislator anterior to the law. When the word law is applied to rules of action for man, the existence of such a legislator, as to man, must be taken for a fact, or relation, independent of the rule itself; or as being a principle of the law of nature, in the secondary sense of the word law.' § 3. In the various views of the conditions of man's exist ence—that is, of the law of his nature (law in the secondary sense), which have been advanced by authors who have professed to treat of jurisprudence, or the science of law, there have been two theories as to the existence of this legislator, or the source of law in the primary sense. According to some authors, the first principle of the science of law is, that man exists in society organized into political states, and that the state is the highest source of law as a rule of action. This principle being assumed to be a law of nature, in the secondary sense of the term, and the law of nature, in this sense, being considered as the only law of nature which can, in any system of jurisprudence, be regarded as having an existence independent of the state." According to others, there is a law in the primary sense, anterior to the legislation of the state; by which actions are with a primary and secondary law; whether so called in reference to order of time or of authority. Conditions of things are necessarily presupposed in the enunciation of a rule of action, and in this connection the former may be called the primary and the latter the secondary law. Some elementary writers speak of a primary and secondary law of nature. Their primary law being a condition of things-a law in the secondary sense: e. g. Bowyer: Univ. Pub. Law, p. 20. Ayliffe's Pandects, pp. 5, 6. Wood's Civil Law, p. 92. Domat: Loix Civ. Traité des Loix, ch. i., § 3. Reddie's Inq. Elem. &c., p. 16-19. In illustrating the assertion of this doctrine, writers on jurisprudence usually cite Carneades, apud Lactantium, Lib. v., c. 15; and Aristippus and Pyrrho, apud Diog. Laert., Lib. ii, c. 8: see Selden, De J. Nat. et Gen. juxta Disc. Eb., ch. 3; Rutherf., B. ii, c. 1; Pufend., B. ii., c. 3; Grot., B. et P. Proleg. 5. But these are only early dogmatisms on one side of a never-ending ethical controversy; of which more systematic assertions might be found nearer our own day. It is not, in fact, possible to cite any system of jurisprudence or any legislative or juridical authority, ancient or modern, heathen or Christian, which denies the pre-existence of natural justice-the jural character of every rule which is a rule of law; unless piratical communities and robber feudal barons can be called juridical authority when denying the existence of any law: compare Lieber: Pol. Ethics, vol. i, 231. ३ Spinoza: Ethices, Pars iv., prop. 37, schol. 2: Tract. Politici, cap. ii.: Tract. Theologico-Polit., cap. xvi. Hobbes is commonly misrepresented as having denied the existence of natural law otherwise than in this sense. JURISPRUDENCE DEFINED. 3 enjoined, allowed or prohibited, independently of the rule proceeding from the state, and under which, as a law of nature, and a law in the primary sense also, the state is to be considered as existing; which law is to be recognized in jurisprudence as constantly binding on mankind.' 4. The questions of the existence of natural law,-in the primary sense of the word law, of the nature of its injunctions, and of the limits of the power of the state as a source of rules of action for mankind, are questions regarding the nature of man, or of the law of his nature, in the secondary sense of the term law: they are questions of ethics,-the science of his nature as a being capable of choice and action in reference to a rule which it is possible for him to disobey; whether they are determined by the precepts of a religious creed, taken to be the revelation of a divine will, or by the dictates of human reason. Whether they also belong to jurisprudence, or not, is merely a question of definition: that is, depends on the meaning of law, and of jurisprudence as the science of law." § 5. A law in the secondary sense is spoken of as something which exists absolutely; which necessarily both exists and operates; which is necessarily enforced, if it exists at all; such a law being a state of things. But a law in the primary sensea rule of action, may be supposed to exist without being enforced; or without operating except in creating a moral obligation: because a possibility of action contrary to the rule is implied in the idea of a law in this sense. A law of this kind may therefore be recognized either as a law merely existing, or as a law operating or being enforced. Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced 'Lieber: Pol. Ethics, B. L., § 30. Rutherford, B. ii., c. 2. Mackintosh: Prog. Eth. Phil., Sect. iv. v.: Grotius: B. et P. Prolegom., §§ 6, 7, 8, 16, and notes. Vattel: c. ii, § 1. Aristot.: Rhet., Lib. i., cap. 13 et 15, and various other ancient authorities cited by Selden, De J. Nat. &c., Ebr. Lib. i., ch. vi. Reddie's Inquiries &c., p. 19; also, ch. ii., and the citations. A very recent comparison of the best authors on this point in Bowyer on Universal Public Law, ch. ii., iii., iv., vii., Vol. 84, of Philad. Law Library. 2 Comp., Doctor and Student, ch. i., ii. In connection with the subject of this chapter, there will be frequent occasion to recall the maxim of Iavolenus, Dig., Lib. 1., Tit. 17, § 202. Omnis definitio in jure civili periculosa est, parum est enim ut non subverti possit. |