in or by the will of society or the state. The science of what rule ought to be made operative by the will of the state is a different thing; it is a science of rules regarded only as existing, whether operative in civil society-that is, enforced-or not.'

A rule made operative by the authority of society, or of the state, is a rule identified with the expressed will of society or of the state. The will of the state, indicated in some form of expression, is the law,' the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified. with the will of the state so indicated. What the state wills is the conterminous measure of law; no pre-existing rule is the measure of that will.'

§ 6. But a law in the primary sense must be founded on a recognition of the nature of the things which it affects :—that is, of a natural law in the secondary sense of the word: for a rule founded on a contradiction of the nature of things is a rule impossible to be executed, or cannot subsist as a rule. There fore, all laws made for man must recognize some conditions as the conditions of his existence; and hence a recognition of his moral nature, or of a necessity in his nature to regard actions as

'Domat includes natural law, derived by a priori reasoning, in the law-the subject of jurisprudence; and speaks of some rules as being evident without reasoning, and of others which require reasoning to make them evident. Domat: Civil Law. Treatise on Laws, ch. ii., §1-37; and see Bowyer, Univ. Pub. Law, p. 103. In this system, the mind of the individual jurist determines the law; it is his subjective apprehension of a rule of action: and only that rule which, in his judgment, the state ought to enforce. Chanc. D'Aguesseau approves of Domat's system in this respect: see Euvres, Tom. I., p. 645-6. Mr. Reddie, Inquiries El. &c., p. 48, says of Kant's Metaphysische Anfangs Gründe der Rechtslehre, and Fichte's Grundlage des Naturrechts, that "they established in Germany the complete recognition of the distinction between ethics and law, or jurisprudence, between the legality and the morality of human actions." But Mr. Reddie sometimes speaks of jurisprudence as if it comprehended the science of what ought to be law; see Inquiries El. &c., pp. 24, 25.

2

:

Savigny Heut. Rom. Recht, § 7. Tr.: "With reference to this quality of the law, by which it has an actual determined existence in reference to any given state of things in which it may be appealed to, we call it positive law."

3

Molloy de Jure Marit. B. iii., c. 9, § 1, 2. Pufendorf, B. i., c. 6, § 1. Co. Lit. fo. 97, b. Lieber: Pol. Eth., vol. I. p. 98, 249. "Law is the direct or indirect, explicit or implied, real or supposed, positive or acquiesced in expression of the will of human society represented in the state; or it is the public will of a part of human society constituted into a state." Compare Encyc. Am., vol. vii., Append. Law, &c., by Judge Story.

4 Dig. Lib. 1., Tit. 17, § 186. Quæ rerum natura prohibentur nulla lege confirmata sunt. Co. Lit., 92 a. "Lex spectat naturæ ordinem, the law respecteth the order and course of nature. Lex non cogit ad impossibilia. The law compels no man to impossible things. The argument ab impossibili is forcible in law. Impossibile est quod naturæ rei repugnat."

LAW-A RULE OF RIGHT.

being right or wrong, is necessarily made, as the recognition of a fact, in the act of prescribing a law for him founded on the idea of distinguishing between actions as right or wrong, or on the existence of a moral obligation in the rule; that is, an obligation founded on his nature, and also resulting from a law in the primary sense.' Now, since, in point of fact, all laws, enjoined by society or the state, have been founded on this idea, the law prescribed by the state recognizes the existence of a natural law in the primary sense of the word law.❜

§7. But since the state makes this acknowledgment of natural law by classifying or distinguishing certain actions as actions to be done or not to be done, as permissible or not permissible,' it so far interprets this law of nature by asserting it

1 Whewell: Elements of Morality, including Polity, B. i., c. 4, 90. "Rights are not law only nor justice only, (meaning by law the law of society, and by justice that which is right,) they are both Law and Justice; Law, because Justice; Justice expressed in Law;" and see the same, §§ 105, 106, 107. Lieber: Pol. Eth., B. ii., § 31. "The state, I said, is founded on the relations of right; it is a jural society, as a church is a religious society, an insurance company a financial association; the idea of the just, and the action founded upon the idea called justice, is the broad foundation and great object of the state." The same, §§ 33, 35:"The state being a jural society, and rights being imaginable between moral beings only, it follows that the state has likewise a moral character, and must maintain it." The word jural is also employed by Whewell, B. i., c. 4, 90: "By the adjective jural we shall denote that which has reference to the doctrine of rights and obligations; as by the adjective moral we denote that which has reference to the doctrine of duties." And therefore, the state, in establishing coercive rules of action, acts juridically. The term juridical is commonly used as if synonymous with judicial. A tribunal in acting judicially, necessarily, also acts juridically: that is, declares what is justice or right. But the state, when it promulgates laws, promulgates them as rules of right. The word juridical will herein be employed to designate the declaration of law, whether made by the legislative or the judicial function.

The term juridical is sometimes used to designate the province of the private jurist : the proper word for which is juristical, (Ger. juristisch.) A society of jurists in England have called themselves "the juridical society." In the French version of Falck's Juristische Encyclopedie, translated Ency. Juridique, vii., note, it is said: "nous avons ordinairement traduit l'adjectif allemand juristisch par juridique, quoique le mot français signifie, dans l'usage plutôt ce qui se rapporte à la juridiction que ce qui se rapporte au droit. Nous aurions pu souvent le remplacer par légal, mais comme il est nécessaire, surtout dans un exposé de principes, de ne pas confondre le droit et la loi, nous avons evité d'employer l'un pour l'autre, juridique (repondant à juristisch, rechtlich) et légal (repondant à gesetzlich.)"

Reddie's Inquiries Elem. &c., p. 9, 58. There are noble passages in the writings of Cicero, and others, which are frequently cited by authors who base jurisprudence upon natural law; (e. g. Cic. De Rep. iii., 22-the passage given by Lactantius, Inst. vi., 8; Demosthenes Or. contra Aristogit. i.) Whether they have been used to the purpose depends entirely on the definitions assumed for these words. Their force differs essentially as they are used either in a legislative or a judicial point of view.

3 Hobbes: Leviathan, De Civitate, c. xxvi. De legibus civilibus. "Legem igitur civilem sic definio: lex civilis unicuique civi est regula qua civitas verbo scripto, vel alio quocunque voluntatis signo idoneo, ad distinctionem boni et mali uti imperat." Ency. Am., vol. vii., p. 581. Appendix by Judge Story: "By a law we understand

to be accordant with those distinctions. The maintenance of those distinctions being, therefore, the will of the state, those whom it appoints to carry out its will are bound, from their relations to the state, to accept and enforce those distinctions, as the criterion of the law of nature. Judicial tribunals constituted by the state, must, therefore, in interpreting the law, receive these distinctions as the exposition of the law of nature, and as the highest rule to which they can refer. The natural law is included in the law, in this ordinary sense, only so far as the law is the judgment of the state upon what shall constitute right or wrong action; and it is immaterial, for the judgment of the subordinate tribunals, whether the jurisprudence which they have to interpret is considered to admit, in theory, the existence of natural law, or to refer all rules of action to the authority of the state; since, supposing it to admit the pre-existence of natural law, as a rule of action, it assumes the interpretation of it, given by the state, to be the guide for legal decision."

a rule prescribed by the sovereign power of a state to its citizens or subjects, declaring some right; enforcing some duty, or prohibiting some act."

66

This recognition of moral obligation in jurisprudence is entirely independent of the foundation of that obligation, as a question of Ethical Philosophy. It is immaterial in jurisprudence whether the law of nature is called "moral sense; common sense; understanding; rule of right; natural justice; natural equity or good order; truth; doctrine of election; repugnancy to nature," or any such term. Bentham, in quoting these various denominations of the law of nature, asserts the propriety of his own favorite term, "the law of utility," or greatest happiness principle: " which is equally vague, as the description of a rule of action, until some legislator is assumed to exist, who shall determine what is useful, or what is the greatest happiness. See Bentham's Morals and Legislation, ch. ii., 14, note. And compare Austin: Prov. Jurisp., p. 133; note, p. 174; Austin being of the same ethical school. Also, Reddie's Inquiries Elem. &c., 2d ed., p. 54-72. Utility has, in fact, always been recognized in juridical action as an exponent of what the law ought to be. See the same, p. 73; and that there is herein no real inconsistency, see Mackintosh: Progress of Ethical Philosophy.

2 2 Dodson's Adm. Rep., The Le Louis, 247. Speaking of the slave-trade, Lord Stowell says: "I must remember that, in discussing this question, I must consider it, not according to any private moral apprehensions of my own, (if I entertained them ever so sincerely,) but as the law considers it."... (p. 249): "An act must be legally criminal-I say legally criminal because neither this court nor any other can carry its private apprehensions, independent of law, into its public judgments on the quality of actions. It must conform to the judgment of the law upon that subject; and acting as a court in the administration of law, it cannot impute criminality to an act where the law imputes none. It must look to the legal standard of morality."

Hobbes: Leviath., c. 26-"Leges naturæ et leges civiles in eadem civitate se mutuo continent." Massé Droit Commer., Tom. i., 42. Scaccia Tractat. de Commer. Quæst., VII., Par. ii., Ampl. 19, § 4, 19. Hegel, Grundlinien der Philosophie des Rechts,

8. Since the power of the state, or of society, is assumed by the state to be the result of natural law in the signification either of a necessary condition or of a rule, the only natural principles, which the law can recognize as such, are those which admit the existence of society, as natural; and no principles can form a part of it which are founded upon a supposed state of nature, anterior or opposed to society, or on the supposed law of such a state, as being the true law of nature.'

9. The actual conditions of human existence have divided mankind into separate communities or states, each called sovereign, because each exercises, independently of the rest, those powers of society which are essential to the purposes of such separate existence.'

The rules of action prescribed by any single sovereignty or state are known to the individuals under its dominion as the law, in the ordinary sense (in contradistinction to ethics); or national law (commonly termed in English, municipal),' as

§212: "Im positiven Rechte ist daher das was gesetzmässig ist, die Quelle der Erkentniss dessen was Recht ist, oder eigentlich, was Rechtens ist: "

This proposition is almost untranslatable from the want of an English word corresponding with the German Recht, Latin Jus, French droit. Law being used not to designate that only but what is meant by the Ger. Gesezt, Lat. lex, Fr. loi. (Lieber's Pol. Eth., sect. 30, n.). The passage is equivalent to:-In law-the rule identified with the will of the state, that which is legal, or according to law, (lex, loi, Gesetz,) is the means of ascertaining that which is the rule of right—the jural rule, jus, droit, Recht:-and not vice versa.

The American Literature on the Slavery question affords numberless instances, in which the converse of this proposition is made the foundation of the argument.

Spinoza: Tractatus Politici, cap. ii., 15. Domat: Loix Civ. Tr, ch. ii., § 2. Cousin: Introd. Hist. Philo., p. 11: "In the place of primitive society, where all things were in confusion, man created a new society upon the basis of one single idea, that of justice. Justice established constitutes the state. The use of the state is to cause justice to be respected by means of force. Hence arises a new state of society, civil and political society, which is nothing less than justice acting by means of that legal order which the state represents."

Professor Foster's Introductory Lecture before the London University. Law Magazine, N. Y., Feb. 1852. "If asked, therefore, to explain the expression employed at the outset natural law,-the answer would be, that portion of moral obligation which is enforceable by public authority." Comte: Tr. de Legislation, Liv. i., ch. 6. Compare Calhoun, A Disquisition on Government; Works, vol. i., p. 58.

A fact assumed in every system of jurisprudence. Comp. Lieber: Pol. Eth., B. ii., § 61. Bla. Com., vol. i., Introd., p. 42.

This portion of the subject of jurisprudence is ordinarily denominated municipal law by English writers. Blackstone (Comm. I., Introd., p. 44) is most commonly cited as authority for its use: but it was employed by English lawyers long before his time, (see I. Vaughan, R. 191, anno 17, Car. ii.,) to signify the law of any one state or nation; or, what is commonly called "the law of the land" According to the analogy of the languages of Continental Europe municipal law would imply the local law of some political body less than a state or nation-the law of a municipium, a town or

proceeding from the authority of a single polity or state, and having effect only within the territorial limits of its dominion. These rules may or may not be consistent with the law of nature, or true principles of ethics, but in being prescribed by the highest power within the limits of such state, and constituting the judgment of such power on the principles and effect of natural law, they must be taken, within those limits, in all legal or judicial considerations, as the highest rule of action.

§ 10. Since the whole variety of human interests and action cannot, from their nature, be distinctly divided among and included under the limits of different states,' the powers of society, in reference to such interests and action as are beyond the separate control of single states, can only be exercised among states recognizing no superior among themselves, by a united, or reciprocal reference to principles of antecedent authority and universal obligation. They must, therefore, refer to the conditions of man's existence (a law in the secondary sense), and to human reasoning in regard to those conditions, as giving the only law (independent of agreements which themselves rest on that law for their obligation) which can be recognized as a rule of action and one of natural origin-an origin distinct from their own juridical will. But because they recognize no superior among themselves in determining that law of nature, the only exposition of it which can have legal force-that is, a force like

city, or at most, of a province. For a justification of this use of the term nationa law, compare Bentham's Morals and Legislation, ch. xviii., 26. Reddie's Inquiries &c., pp. 93, 94, 236, and the same author's Historical View of the Law of Marit. Commerce, p. 1.

With jurists who have used the Latin language, jus civile is employed as the equivalent of that which is here denominated national law, as by Grotius, B. et P. Proleg., § 1: "Jus civile, sive Romanum, sive quod cuique patrium est " &c., and compare Hobbes' definition of jus civile (ante § 7, n.) The term has generally the same force with the classical Roman jurists: but it was also sometimes used by them in other senses. as will be shown hereafter, (ch. iv.,) and compare Smith's Dict. Antiq., Jus. The name "civil law" cannot well be given to that which is here called national law, since it is already used to indicate the Roman law, or the Roman law as generally received in Europe, in contradistinction with English common law, and is also employed to designate that portion of the law which does not include punitive, or the so-called "criminal" law.

Bowyer: Univ. Pub. Law, p. 139: "For it is impossible to confine the effects of municipal laws absolutely within the territories of each state; and, therefore, the laws of different countries have points of contact which arise from the general intercourse of mankind, and may be looked upon as a necessary part of the scheme of laws which regulate the world, divided as it is into independent nations and sovereignties."