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LAW OF NATIONS PRIVATE LAW. 141
For the common law is law in the strict and proper sense, which this international law is not.1 The common law is a municipal law (national, jus civile, ante §9, n.) in being founded on the national sovereignty of England, as the absolutely independent authority for that rule of action which determines the relations of the individuals known as its subjects, according to the principles which define the existence and mode of action of sovereign states. But the historically known law of nations—universal jurisprudence, herein before defined, so far as it contains principles determining relations of private persons, is an indication and criterion of natural reason, to be judicially received, not as having any authority in itself independent of that sovereignty upon which the municipal law of England (national law—both internal and international according to its application) rests, but because already customarily received and allowed as an exposition of its juridical will, unless the law peculiar to the territorial dominion of that sovereignty, founded on local precedents or legislation, requires the application of principles having a contrary effect.
M»te, §§ 11, 12.
Note.—As has been shown in the second chapter, the juristical conception of a universal jurisprudence or law of nations requires the recognition of some persons as alien, or as having sustained relations created by foreign laws; and the exposition of principles having that character cannot be looked for, in the juridical history of any one state or nation, before the time when a peaceful intercourse has subsisted, under its jurisdiction, between the native or domiciled subjects of the state and persons recognized as subjects of foreign states; that is, before a private international law has become a distinguishable part of the national law. (See ante, §§ 92-96). The thirtieth chapter of Magna Charta declares, "All merchants (if they were not openly prohibited before) shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go through England, as well by land as by water, to buy and sell without any manner of evil tolles, by the old and rightful customs, except in time of war." (See 2 Co. Ins. cap. 30). Unless this was only declaratory of an existing common law principle, it must be supposed that, before this, aliens had no legal rights in England, and that it is only after this period that a law of natioru could find place in the common law, by the application of private international law. See Walker's Theory of the Common Law, ch. XX.
THK ESTABLISHMENT OF MUNICIPAL LAW IN THE COLONIES, THE
SUBJECT CONTINUED. OF PRINCIPLES OF UNIVERSAL JURISPRUDENCE, RELATING TO FREEDOM AND ITS OPP08ITE8, ENTERING INTO THE COMMON LAW OF ENGLAND.
§ 147. It is proposed in this chapter to ascertain, from the history of jurisprudence among European nations, what principles, affecting natural persons in those relations which constitute a condition of freedom or of bondage under private law, were judicially known as part of the historical law of nations at the time of the planting of the colonies, and the date of their charters; and next, whether those principles could be applied, in England, as part of the common law derived from the judicial interpretation of natural reason, to determine the condition of natural persons.
This universal law or law of nations, it will be remembered, becomes a topic of judicial recognition by an international comparison of the effects of different systems of municipal law in the relations of persons considered as alien to some one jurisdiction.1 A historical investigation of the law of nations, as forming part of the common (unwritten) law of any one state, involves therefore, in some degree, an exposition of the private international law of that state, as well as the private municipal (internal) law thereof. It is thus necessary, in this chapter, to anticipate somewhat the subject of a succeeding chapter, which
1 Ante, § 94.
ORIGIN OF LAWS. 143
is—the private international law, in England and America, during the colonial period, affecting relations of freedom or of bondage.
§ 148. In the earlier periods of the existence of positive law (as the subject of jurisprudence is herein denominated in respect to its authority), when natural justice—the presumptive will of the state, was ascertained by the autonomous judgment of each judicial tribunal, according to its own apprehension of natural reason,1 there could hardly be said to be any judicial rule, forming part of the municipal (national) law of any one state, which had, beyond any other part of that municipal law, a universal character, or the character of an exposition of the law of nature, or was more directly derived from the natural reason of mankind than any other legal principle. Still less, at a period when international intercourse was almost unknown, or considered beyond the pale of judicial authority, could there be any rule which might be considered a universal law, or law of nations: for it is only by the intercourse of persons subject to different municipal laws that a law of nations can be judicially distinguished. In the imperfect civilization and intercourse of nations in earlier ages the means of collecting and digesting judicial precedents were too limited to allow any settled exposition of natural reason, as a rule of action derived from a comparison of the laws of various states.
The jurisprudence of the several nations of remote antiquity must have contained numerous principles common to each, but, previously to a mutual knowledge of each other's institutions, there could be no definite acceptation of natural reason from the concurrent testimony of the various independent sources of positive law. The laws of the Roman Republic are the earliest of which it can be said positively that they were founded on a recognition of the force of the concurrent usage and legislation of various nations, as an indication of a rule of natural reason deserving to be judicially received by any one state. This recognition was made in legislative action if, as is commonly believed, the laws of the Twelve Tables, B. C. 454, were compiled by persons specially instructed to regard the laws of the
. 'Ante, § 29.
1H THE ROMAN LAW.
Grecian States,' and it has been shown, in the second chapter, in what manner, by judicial action, a part of the Roman law was always regarded not only as national law, but as an exposition of the law prevailing among all nations or among the more civilized. By the extension of the Roman dominion, the whole national law acquired more and more of this character, and this character or quality it has constantly had in every country in Europe: first prevailing, as the customary or common law, in countries which had been under the Roman dominion, and civilized by Roman influence, and then adopted by the northern invading nations, both as the law having territorial extent in the provinces conquered by them, and also as an exposition of the juridical wisdom of all nations and all preceding times: gradually supplanting the personal laws which they brought with them.' In this sense it has been the common law of the greater part of modern Europe, and of all those nations which constitute, in their own vocabulary, the civilized world. Its authority as law nowhere rests upon its intrinsic merit as an exposition of natural reason, but is a matter of the customary law of each nation; though in states which have boasted of a law of national origin, it has been generally referred to, judicially, as if its authority were dependent upon the subjective judgment of the tribunal, accepting it as pure natural right or reason.'
'See Diony. Halicar., Antiq., Lib. X., cap. 57. Heineccius: Hist. Jnr. Civ. Lib. 1, c. 2, § 23, 24. Long's Disc., p. 56, n. Horas Jur., pp. 30, 40. Bat Giambatista Vico held the XII. Tables to have been only a digest of the customary law of Latium; see London Law Review, vol. XX., p. 268; XXL, p. 98.
■ On this subject see Savigny's Hist, of the Roman Law in the Middle Ages, first volume, translated by Cathcart; and Savigny's Heut. Riirn. R, the last volume.
Sir Wm. Jones: Works, vol. III., p. 75: "It [the Code of Justinian] gives law at this time t • the greatest part of Europe: and, though few English lawyers dare make such an acknowledgment, it is the true source of nearly all our English laws that are not of feudal origin."
Papers read before the Juridical Society, vol. 1, part I. London: 1855. Inaugural, by Sir R. Bethell, B. O., p. 2: "It is now clear that the common law which existed in England at the time of the Norman invasion was in a great measure derived from the jurisprudence that had been introduced and administered by the Romans, during the 300 years of their dominion in Britain."
It has been a matter of controversy how far Bracton drew his work from the Corpus Juris: see Reeves' Hist., 2 vol., pp. 86, 87, and 4 vol., p. 570, where he calls Bracton the father of English law.
* See ante, § 34, and note; Domat.: Civil Law, Pref., pp. 1, 2, and Prelim. Tr., c. xi., § 19. "But for the laws of nature, seeing we have nowhere the detail of them except in the books of the Roman law," Ac. The Roman law ma}, or may not, be accordant with the laws of nature. Its authority with the tribunals of modern states depends upon judicial precedent—the fact that it has been recognized as an exposition of those principles which actually do prevail among all nations. But the theory of Domat on this point is very commonly held by English writers, in justifying a reference to the Roman law. See Browne: Civ. A Adm. Law, p. 4. Bowyer: Univ. Pub.Law, passim.
BASIS OF ROMAN LAW. 145
But, as the recorded historical testimony of the juridical reason of many nations and countries, its value has been so repeatedly acknowledged in English jurisprudence' that reference to it is indispensable to ascertain any legal rule which can be attributed to universal jurisprudence and received into the common law of England as the law of natural reason.
§ 149. The jurisprudence of the Roman state has been considered by many of the modern civilians as asserting the identity of law with all rules of right action binding on the conscience of the individual subject, to a greater degree than has been recognized in any modern system. This view would appear to be supported by the meaning given to such words as justitia, jurisprudential and jus, in the exposition of the basis of legal science given by many jurists of the later imperial period. But a particular examination of a very few of the specific topics of Roman jurisprudence would show that the law of judicial tribunals was confined with them, as with the moderns, to the enforcement only of those duties as legal which the supreme power had made such by positive enactment, or through definite juridical recognition and application of natural reason, and had accompanied by a remedial sanction.'
In the view of resting the foundation of law on a moral criterion, or of expressing its jural character, the Institutes of Justinian, Lib. I., tit. 1, § 1, give to the term jurisprudence a more extended signification than that allowed to it by limiting the meaning of law to the sense herein before given as the ordinary practical meaning of the word (ante, § 17). Jurisprudentia est omnium rerum humanarum atque divinarum notitia
1 Hale's Hist. Com. L., p. 24. Holt, C. J., in 12 Modern R., 482. 3 Kent*a Comm., p. 490. Wheaton's EL Int. Law, Introd., p. 22. Wheaton's Law of Nations, p. 81. Duponceau: on Jurisdiction, p. 86. Reddie"s Treatises, passim. Dr. Duck's Treatise on the Use and Authority of the Civil Law in the Kingdom of England. Robertson's Hist. Charles V., vol. I., note, xxv., BB.
* Mackeldey's Comp., § 112. Tr. by Kaufmann. "Law was considered by the Romans as primarily founded on morality, and on a voluntary respect for all that was good and noble. In their view, compulsion was no essential element of a law," &o. The translator's note, to this section, points out the error of this statement