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UNWRITTEN LAW. 31
its authority, v. ante, § 17,) it may still be distinguished as the unwritten law, the customary law, the common law of the land.'
emli nihil habeant praeter approbationem, (§ 1, inf. de oblig.) Hoc igitur dicitur civile a causa efficicnte, qurn est voluutas ulieu jus civitatis nut ejus qui jus legis ferendjc b ea habet, non communis gentium aut naturalis ratio. Ab Aristotele legitimum dicitnr: vulgo positivum."
1 Even under a written code, this part of the law must continue. See, as to the recognition of this, under the French Code, Savigny: Vocation of our Age, &c. Hay ward's TV., p. 90. Also, Duponceau on Jurisd., p. 106. Reddie's Inq. Elem. &c., pp. 199—202.
In this description of the mode in which positive law becomes judicially ascertained, there is no distinction of any part of the law which can be distinguished from the rest as equity, or as an equitable rule of action. The distinction which exists in English and American jurisprudence between law and equity is not in the nature of the rule, but in the means by which it is enforced. "In England and America Equity, in the technical legal sense of that term, as opposed to or distinct from the common law, is in reality as much as the common law, customary or judiciary law; a part of the general law of the realm." Reddie: Inq. Elem., p. 124. Blac. Comm., 3, c. 27, p. 432. Every rule of action which the supreme power in England or America enforces as law is equally jural—equally a lex juris. The distinction here is one of jurisdiction, or of remedy—the application of the rule of action, arising from the authority allowed to judicial precedent, and a consequence of that supremacy of law as opposed to arbitrary discretion, which is a characteristic of "Anglican liberty." (For the use of this term, see Lieber: Civil Liberty and Self Government, vol. i., ch. v.) The occasion given to a common misconception of the nature of positive law by the existence of an " Equity Jurisprudence," may excuse an attempt to set this forth in the limits of a note.
The rule of action to which the state gives the authority of law must be enforced or vindicated by the state, if it is to be efficacious in accomplishing the object of the state, i. e., justice. This can only be done by judicial remedies. In a state where precedents have great force as an indication of the will of the supreme power, the remedy which has been applied to enforce the rule of action becomes itself a precedent, that is, it becomes a rule or law of remedy, and thus the efficacy of a rule of action becomes limited to circumstances in which only a remedy has been before applied. The same effect would take place if the remedial mode of enforcing the rule of action were prescribed by statute.
The rule of action will thus, in course of time, fail in many instances of its original intention, i. e., justice: because new circumstances of disobedience to the rule will occur, differing from those to which the known law of remedy applies. The state must, therefore, in order to effect its intention, i. e., justice, either directly prescribe a remedy in those new circumstances, or direct that its tribunals should go beyond precedent in the law of remedy, and enforce the rule of action according to its original intention. The state may establish a separate tribunal with power to carry out the rule of action beyond the remedy given by the precedents of existing tribunals.
In course of time, the remedy given by the new court becomes also a precedent; and has a law of its own. There are thus two systems of remedy intended to carry out one and the same law of right. In English and American jurisprudence, this double system of remedy exists. Equity is not a different rule of action from law; it is a law of remedy.
Papers read before the Juridical Society, Vol. t, Part I., 1855. London: Stevens & Norton. Inaugural Address by Sir K. Bethell, S. G., M.P., p. 3—" And the rules and maxims of the common law were so broad and comprehensive, that they admitted of being made the basis of an enlarged systeci of jurisprudence. A portion of the statute of Westminster the second (13 Edw. I.) was passed with a view of effecting this object, and of expanding the maxims of the common law, so as to render it applicable to the exigencies of an advancing state of society. For this purpose, new write were directed to be framed, as new occasions for remedial justice presented themselves; and if this had been fully acted on, the law of England might have been ma32 COMMON LAW.
It is this which constitutes the common law in the jurisprudence of England and America, when distinguished from statute law.1
§ 36. This recognition and adoption of the natural law occurs in international as well as in municipal (national) law.
As was before said, each nation being independent of other nations, whatever is enforced by its own tribunals as law rests upon its own authority, or is identified, in respect to its authority, with the municipal law of that state. International law, though differing from municipal law in the objects or relations which it affects, does not, as administered by its tribunals, rest on any other authority than the state itself: it is then a part of the municipal (national) law; being then distinguished from other portions of the municipal law only by its application to persons, or as one personal law is distinguished from another.' "Whatever rules the tribunal may administer as international law, are
tured into a uniform and comprehensive system. For it was justly observed by one of the judges in the reign of Henry the Sixth, that if actions on the case had been allowed by courts of law as often as occasion required, the writ of subpoena would have been unnecessary; or, in other words, there would have been no distinctions between courts of law and courts of equity, and the whole of the present jurisdiction of the court of chancery, would have been part of the ordinary jurisdiction of courts of law."
See on this point, Story; Equity Jurisprudence, vol. I. Bacon: Advanc . Learn., B. viii., c. 3, of Univ. Just. Aphorisms, 22 to 46. Ram on Legal Judgment, ch. ii., and authorities; also, Am. Jurist, voL xvii., p. 253, on reform in remedial law. D'Aguesseau: CEuvres, Tom. i., p. 209. Lessee of Livingston v. Moore and others, 7 Peter's R., p. 547 Butler's Horsa Juridicse, p. 44—46.
In the states of Continental Europe, where the administration of justice is on the model of the Roman law, judicial tribunals are less fettered by judicial precedent, and have always had a greater latitude in applying the rule of action. The judicial officer has in practice a large share of administrative power. His power to make law for future cases is less than that of judges under the English system; but his autonomous or discretionary power over the case in hand is far greater. Hence the rights of individuals depend less on pre-existent law, and more on arbitrary discretion.
1 Sir H. Finch: Treatise, p. 74. Sims' Case, 7 Cushing R, p. 313. Shaw, C. J., using the term positive law:—" and this maybe mere customary law, as well as the enactment of a statute. The term ' positive law,' in this sense, may be understood to designate those rules established by long and tacit acquiescence, or by the legislative act of any state, and which derive their force and effect, as law from such acquiescence and legislative enactment, and are acted upon as such, whether conformable to the dictates of natural justice or otherwise." And comp. Neal r. Farmer, 9 Georgia R., 581.
Ram, on Judgment, ch. ii. Savigny: Hent. R. R., 8 18. Reddie's Inq. Elem. Ac., p. 238—252,—a description of the establishment of municipal (national) law, abridged from Savigny.
Bentham: Princ. Morals and Legisl., pref., xiii. "Common law, as it styles itself in England; judiciary law, as it might more aptly be styled everywhere," dtc. Compare Ency. Am., vol. vii., Appendix, Law, 4c., by Story.
Co. Lit., fo. 11., a. An enumeration of the "proofs and arguments of the common law," drawn from twenty several fountains or places; common law being taken in the limited sense; because in the same place communu lex Anglia is included en la ley.
* Seepoit, §53.
INTERNATIONAL LAW HOW DERIVED. 33
derived by it in the same manner as municipal law; viz. firstly, from the positive legislation of the state in reference to relations which are international in their character; that is, relations arising out of the existence of foreign states, and from the recognition of their authority to give laws and hold jurisdiction over persons and things. Such legislation must be recognized by the tribunal on the authority of the state alone to which it belongs, whether it be made by the state singly, or jointly with other states, in the form of treaties and agreements. Secondly: from the recognition of natural law by such criteria or expositions of that law, applied to the same international relations, as may be supposed to be adopted by the state to which the tribunal belongs, and whose will it executes in the administration of international law as well as of the municipal: and these are the same as are adopted in ascertaining the municipal law—decisions of preceding tribunals having the same national authority, the writings of private jurists, and the laws and decisions and customs of all other states;' comprehending herein, also, the recognition of universal jurisprudence, the science of a law of nations historically known: which recognition by judicial tribunals is particularly manifest and necessary in the administration of private international law, as will be shown in the following chapter. International law, thus applied by the judicial tribunals of any state, is only to be distinguished from the municipal law of that state in the nature of the relations which it affects; it is identified with it in respect to its authority over all persons within the jurisdiction of the state.'
1 Grotius: B. et P. Proleg., § 40, Lib. I., c. L, $ 12, 14. I. Kenfa Comm., 18, 19. Reddie: Hist. View L. of Marit Com., 26, 27, 426, 429. Hoffman's Course of Legal Study, vol. i., p. 415-16. Burge: CoL and For. Law, vol. i., xvi. Ram, on Legal Judgment, p. 94. PbUlimore; Internal L., p. 61.
It is only civilized nations, or those of a certain kind of culture, that are thus recognized by their several tribunals as the sources of universal jurisprudence. See Selden : De J. Nat. die, Lib. i., o. vi., who designates them as "genta momtiora," in the language of Grotius: B. et P., Lib. i., 12, 2. Phillimore: Int. L., c. iii. Heffter designates his work—Das Heutige Europaitche Volkerreeht.
This discrimination between different nations as sources of jural rules, is not an a priori assumption by the tribunal making it. It is rather a part of the customary law of the state whose will the tribunal is bound to apply. This act of a judicial tribunal must not be confounded with the sovereign legislative act of a state in adopting a foreign law, as when in the XII. tables, the Romans adopted some of the laws of Greece. Dig. L. I., Tit. 2, c. 2, § 4; "peterentur leges a Gnecis civitatibus."
* This point is more fully considered in the second chapter.
84 NATURE OF ITS AUTHORITY.
§ 37. From the conditions necessary to the existence of a relation between states, or from the fact that though composed of natural persons, each subject to the power of society, they have a distinct existence and power of action in respect to each other, as well as in respect to private individuals, any rule which would decide on the relations of states, as such, towards each other, and maintain their correlative rights and duties, would be an international law. But from the nature of states and their mutual independence, there is no such rule, taking the word law in the strict sense; and the application of such a rule or law could not be made by the judicial tribunals of any state or nation. A coercive determination of these rights and obligations can be expected only from the autonomic force of the parties to whom this law may attribute them.
But from the reciprocal assertion and acknowledgment which all states or nations have in fact made of principles of natural reason, or from that course of practice which is supposed to be founded on a reciprocal reference to such principles in their relations with each other, and from the consideration actually allowed to the ethical views of some private authors in reference to such national practice, an exposition of natural law has arisen, which corresponds with the common law, or judicially ascertained municipal (national) law of any one state, having in practice the character of a rule of action for states; determining their relations to each other, and the correlative rights and obligations of each, though there is no tribunal to decide between them in its application ;—that is, no tribunal which can enforce the rights and obligations, arising under it, in particular cases.1
§ 38. Rules thus recognized form a part of universal jurisprudence, (law of nations in that sense,) to which states or nations reciprocally refer as to an international law having an existence
1 Even Mr. Reddie, who distinguishes the existence of a universal jurisprudence operating as part of the coercive private law of each several nation, seems to hold that there is a law derived in the same manner, and operating on the state as a political person, having the tame kind of authority. See Inquiries Elem. &c., 2d ed, p. 456, and Inq. in International Law, 2d ed., 439, 456.
Wheaton, in his El. of International Law, § 10, cites Heffter as taking the same view; but in the last ed. of Das Europ&ische Vslkerrecht der Gegenwart, Berlin, 1855, p. 2, n. 2, the latter author says that Mr. Wheaton has misconceived his meaning.
LAW OF NATIONS PUBLIC LAW. 35
independent of their several juridical assent. In its origin, this law, of which nations are then taken to be the subjects, is identified with the law applied by judicial tribunals as an interpretation of the law of natural reason between private persons, in both municipal (internal) and international law,—the law of nations, in the sense of private law judicially recognised because existing among all nations. And though it is a law for those nations only in the imperfect sense of the word, it may be called a part of positive law, or be included in jurisprudence—the science of positive law, when the term positive is used not to indicate the coercive quality, but the quality of being an ascertained rule,—a rule having an objective existence independently of the subjective conception of any one state or nation, or of any private person or persons; a rule which is not necessarily the true law of nature or of natural right, but that which many Btates have agreed in applying for such.1 As such it is referred to by sovereign nations for public law, and is enforced by judicial tribunals for private law, being binding on those tribunals until contravened or disallowed by the several juridical action of the states to which they belong, or for which they exercise the judicial function.
§ 39. It is always consistent for sovereign powers to reconsider their own previous judgment in respect to any application of the law of nature. This may be done by single sovereignties in either division of the municipal (internal) law, constituting, in private law, social change or reform,' and in public law, civil or political change or revolution: in either of which forms the
1 The controversial writings of publicists on these questions of definition are noted in all the treatises on international public law. Though it maybe difficult to estimate the actual influence of professed metaphysicians on these subjects, (compare Wheaton: Hist, of the Law of Nations, p. 749, and Heffter: Europ. Vflfkerr., § 9,) it is probable that the distinctions made by Kant, Fichte and Hegel, in their juristical writings, have led to a greater accuracy of expression on these topics. It is worthy of notice that the positions taken by some later authors correspond in a remarkable degree with those of Suarez the Jesuit, one of the earliest writers. That attention to them has been renewed is shown by the proposal of M. Greuse, of Brussels, to republish the entire works of Suarez.
* B. Constant: fours de Politique, (Euvres, Tom. i., p. 174, n. "Souvent lee depositairts du pouvoir sont partis du principe que la justice existait avant les lois, pour soumettre les individus a des lois retroactives, ou pour les priver du benefice des lois existantes; couvrant de la sorte d'un feint respect pour la justice la plus revoltante des iniquites. Tant il importc sur les objets de ce genre, de se garder d'axiomes non dttjnif."