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LAW OF NATURE RECOGNIZED. 11
difference in the origin of the law, as being in part derived from natural principles, or principles of ethics, and in part from the will of society, neither does it imply a denial of the moral foundation of either of these divisions of the law in the obligation of natural rules of action. On the contrary, each of these manifestations of the power of society rather asserts their existence and authority: justifying that power on the ground that those rules are made efficacious by such manifestation.1
The international law, otherwise called "the law of nations," in the sense of a rule of which states are the subjects, as well as the municipal law of any one state, may or may not be consistent with the true dictates of natural reason, or what ought to be received among all nations as natural law. Each of these divisions of the law has changed, while constantly claiming to agree with those principles. Whatever may have been the speculative opinions of philosophers, natural law, or right, has always been confessed by states and jurists to exist, and to be of constant obligation;* but has had effect as law, in the sense of the subject and guide of judicial decision, only so far as acknowledged by sovereign powers, nations, or states.
§ 14. It is not here denied that the true law of nature, the unchangeable dictates of just reason, being, by the supposition, co-existent with the nature of man, must be constantly binding on all mankind, independently of the provisions of human law. * The nature of the mind being such that man is capable of moral choice independently of all earthly power.' The agreement of the human law with the natural or divine precepts must in each case be a question which each person, subject to both, must determine in his own conscience for himself; though the human law may not allow his decision to have any practical effect in
1 Compare, on this question, Phillimore: Internat. Law, Introduction, and ch. iii.
• Lieber: Pol. Eth., B. i., § 89, 40, 41. Bowyer: Univ. Public Law, ch. iv. Reddie's Inquiries Elem. &c, p. 9, 68.
'Austin: Prov. of .lurisp., p. 280, n. 4. "All the older writers on the so-called law of nations incessantly blend and confound international law as it it, with international law as it ought to be; with that indeterminate something which they suppose it muU be, if it conformed to that indeterminate something which they style the law of nature.1*
Vou Martens was the first writer who pointed out the necessity of avoiding this confusion. See Martens: Law of Nations, ch. i. Reddie: Inq. in International Law, eh. ii.; and Austin, continuation of note cited.
'Lieber's PoL Eth, B. iv., o. 2.
12 WILL OF THE STATE SUPREME.
excusing a violation of its own provisions; it being essential to its own existence that it should itself decide as to such agreement, and enforce its own commands without regard to any other judgment. And in this respect it is immaterial whether the individual opposes to the will of the state his single judgment of the natural law, or refers to a recognized body, or church, as authoritative in such questions. The authority of such church in matters of law, resting on its being supported by, or identified with, the supreme power of the state; and in the absence of such identification, acting on the individual by his voluntary choice, or the judgment of his conscience.1
§ 15. Municipal law, according to Blackstone's definition, it "a rule of civil conduct prescribed by the supreme power in a State, commanding what is right, and prohibiting what is wrong." The latter clause of this definition has been criticised as superfluous, if that be right which the supreme power may call such; or inconsistent, in denying the supremacy of that called supreme, by implying another legal criterion of right than its own judgment. And in Blackstone's analysis of this definition, speaking of "the declaratory part"—"declaring what is right, and prohibiting what is wrong," he says, "it depends not so much upon the law of revelation or of nature as on the will of the legislature."
The supreme power in the state must necessarily be absolute, in being subject to no judge.* It may give to its own will the name of right, and enforce it as law; but as the essential conditions of man's nature, and the ends of society, must always be the same,—to support which states exist, a violation or denial of their existence would be to the same degree a destruction of the basis of the state, and would free the individual subject from the obligation of obedience. The limits of the definition are a question of political ethics rather than any part of a view of the law / which should be a statement of what is, rather than
1 D'Aguesseau: (Euv., Tom. i., p. 688. There are, of course, many writers who might be cited against this view. Compare Bowyer's Univ. Pub. Law, p. 73—87. Bunsen's Signs of the Times, ch. v.
* Lessee of Livingston v. Moore and others, 7 Peters R., 546. Johnson J.—"The power existing in every body politic is an absolute despotism.'' Paley: Mor. and Pol. Phil., B. vi, c . 6. Bodin: Repub., B. i, c. 8. Austin: Prov. Jur., p. 295.
ACTION OF SUPREME POWER. 13
of what ought to be,-1 forwhich purpose the abridged definition is comprehensive enough—" municipal law is a rule of action prescribed by the highest power of a state;'" not regarding it as capable of being wrong: that is, not judging it by any rule out of itself.*
§ 16. The supreme power of a state, or, more correctly, the person or persons holding that power, may always claim to interpret their own legislation by a reference to natural law, as having been always the guide and exponent of their intention. And in every sovereign nationality this power must exist, and be somewhere vested. Such interpretation from the source of the law is practically identified with the sovereign act of legislation. But the administrators of the law, as subordinates of this sovereign power, or of its possessors, either executive or judicial, cannot assume to themselves the right of annulling, by a decision under the law of nature appealing to their consciences, the decrees of that sovereignty which gives them their powers, and determines the limits of their judgment.* And where, by the law of that sovereign will, the ordinary course of legislation is delegated to limited governments, the possessors of legislative power cannot alter the limits assigned to them on grounds derived from the law of nature. * So far, however, as the supreme power adopts the natural law in the expression of its own will, and, which is essential to such adoption, refers to a settled interpretation of it, it becomes municipal, or international law, and the rule for private action and judicial decision."
1 Quid sit juris, non quid sit justum aut injusrum. Austin: Prov. Jnr., p. 276. 'Kent's Comm., Lect. xx., pr. "Municipal law is a rule of civil conduct prescribed by the supreme power of a state."
* Co. Lit, fo. 110, a: Of the power of Parliament, "Que il est de tres grand honor et justice, et que nul doit imaginer chose dishonorable:" cites PI. Com., 398, b. Doctor and Student, ca. 55, foL 164. Compare a summary of various authorities on this point in Comment, on Const, and Stat. Law, by E. F. Smith, ch. vii.
4 Bacon's Essays, 67. Calder v. Bull, 3 Dallas, 398. Kant's W., vol. i., Essay on the Faculties.
1 Fortescue: de Laudibus, ch. ziii.
• Austin: Prov. of Jurisprudence Determined, p. 173. "The portion of the positive law, which is parcel of the law of nature (or, in the language of the classical jurists, which is parcel of the jut gentium) is often supposed to emanate, even as positive law, from a divine, or natural source. But (admitting the distinction ot positive law into law natural and law positive) it is manifest that law natural, considered as a portion of positive, is the creature of human sovereigns, and not of the Divine monarch. To say that it emanates as positive law from a Divine, or natural source, is to confound positive law with law whereon it is fashioned, or with law whereunto it conforms."
14: POSITIVE LAW.
§ 17. If natural law were to be recognized in jurisprudence as a rule existing anterior to the will, and independent of the action of states, or society, the portion of law which is confessed to originate solely in the will, or decree of states, might properly be distinguished in jurisprudence as a separate division of law.1 When this distinction is made, such portion is known as positive law; which designation is proper for the purpose when the term is understood to refer only to the origin of that portion in the will of the state. * But if the term positive is used to express the authoritative nature of the law, no one part of the law is more entitled to the term than another; it is all equally authoritative, whether a rule of natural origin, or originating in the autonomous decree of the state. If the term is used to mean that which is determined upon by the state as its will,—set, settled upon, positus,—positive law includes all law recognized as a judicial rule, or the law in the sense herein before given as the ordinary sense, viz., those rules of action which are enforced by the authority of the state.' Some term is necessary to express a rule originating in the decree of the state, and since this term positive law is commonly used to distinguish such law from rules of natural origin enforced by the state, and is also used to express the whole of law in the ordinary sense, the term positive law has become a somewhat ambiguous one. Positive law is now used by the best authors to signify every rule that ie law. Jurisprudence is defined by Austin as being the science of positive law; that is, the science of what the rule given or
1 Grotius: B. et P., Lib. i., c. i., ix. "1. Est et tertia juris significatio quse idem valet quod lex, quoties vox legis largissime sumitur, ut sit regula actuum moralium obligans ad id quod rectum est, etc. "2. Juris ita accepti optima partitio est quse apud Aristotelem exstat, ut sit aliud jus naturale, aliud voluntarium, quod ille legitimum vocat, legis vocabulo strictius posito: interdum et T4 iv rafei, constitutum. Idem discrimen apud Hebrseos reperire est," etc.
Hugo: Encyclopsedia, p. 16, no. 2, takes jus constitutum, or quod ipse populus sibi constituit, for the Latin term corresponding to what is in the text called positive law.
Suarez: De Legibus etc., Lib. i., c. 3, sec. 13.
I Compare Neal v. Farmer, 9 Georgia R., 575.
D'Agnesseau: (Euvres, Tom. L, p. 260. "Au milieu d'un grand nombre de loix positives fournies par les moeurs des Peuples, ou par la volonte Souveraine du Legislateur." But in the same vol., p. 447, natural is discriminated from pontine law.
II Vanghan R., 191, (anno 19 Car. II.) "For the freehold is not a natural thing, but hath its essence by the positive municipal law of the kingdom."
JURISPBUDENCE DEFINED. 15
allowed by the state is.1 The science of what ought to be the rule is the science of political ethies. *
§ 18. If jurisprudence is taken to be the science of law in the strict and proper sense only (which involves the relation ot a superior and inferior, § 1), it is the science of the law of a single nation only, i. e., the science of some one municipal, or, more correctly, of some one national law;' and the international law is known in jurisprudence only as a subordinate part of some one such national law; or, in other words, the international law is known in jurisprudence only as it may be applied by one national source of law to relations of private persons which grow out of the existence of other nations; since international law is not law in the strict sense, except as it may be enforced by some one nation (ante, § 12). The term general, or universal jurisprudence, would signify only the aggregated science of different systems of national or municipal law.
§19. But since the jurisprudence of each state (as a consequence of its jural character) recognizes natural reason as a rule of intrinsic force,4 and in its municipal and international law
1 Savigny: Heut. Rom. Recht, § 5. Austin: Prov. Jurisp., p. 131, and notes; also, p. 197, andante, p. 11, n. 3. Mackeldey, by Kaufmann: Introd., §§ 3, 9, and the notes, distinguishing the philosophy of positive law from philosophical law. Compare Doctor and Student, ch. iv.
Jurisprudence is sometimes used in the sense of the science of abstract right. Long's Discourses, (Law Lib., N. S., vol. 44,) p. 5. "Jurisprudence is the science of right,"— Brande's Diet. Mr. Gushing (Introd. to the Study of the Roman Law, Boston, 1854, p. 6) takes it in the sense of the application of law to particular cases; and, in p. 168, gives it the sense of unwritten law, common law, and judicial law: he also uses the term "jurisprudential" as synonymous with jural. With the French lawyers, jttritprudence is contrasted with the loii, Projet (of the Code Civil), Discours preliminaire, p. xix. *" "On ne pent pas plus se passer de jurisprudence que de lois" Foelix, Dr.: Int Pr., p. 382. "Lois positives et jurisprudence." Mr. Reddie uses it in the sense of the whole national law of some state, or the whole of that rule of action which is applied within a certain national domain. Reddie: Inq. El. &c., ch. v. Law Review, London, Nov., 1855, p. 128: "Some term is necessary to denote the science of law, and we shall so employ the word jurisprudence." * • • "Bylaw is here understood positive law,—that is, the law existing by position, or the law of human enactment. Jurisprudence is the science of positive law," &c., citing Suarez: de Leg. etc., L. i., ch. 103, sec. 13.
* "For the wisdom of the law-maker is one, and of a lawyer is another." Bacon: Adv. Learn., Works, Am. Ed., 1 v., 238.
* Falek: Jurist. Ency., § 11, (French tr.) "Comme le droit prend naissance dans la volonte collective d'une societe civile, il doit y avoir autant de droits qu'il existe de societes civiles ou d'etats,"
4 Bowyer: Univ. Pub Law, pp. 34, 35. Whewell's Elements Mor. &c., B. ii., ch vi., § 213. "Since in all nations the definitions of rights and obligations are intended to be right and just, it is natural that there should be much that is common