Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will.

Law of nature.

This will of his Maker is called the law of nature.(6) For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created *man, and endued him with free-will, he laid down cer[*32] tain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as he is also a being of infinite wisdom, he has

it is a law of nature that particles of matter shall attract each other with a force that varies inversely as the square of the distance from each other; and mathematicians say that a series of numbers observes a certain law when each subsequent term bears a certain relation or proportion to the preceding term; but, in all these instances, we might as well have used the word property or quality, it being as much the property of all matter to move in a straight line, or to gravitate, as it is to be solid or extended; and when we say that it is the law of a series that each term is the square or square root of the preceding term, we mean nothing more than that such is its property or peculiarity. And the word law is used in this sense in those cases only which are sanctioned by usage; as it would be thought a harsh expression to say that it is a law that snow should be white, or that fire should burn. When a mechanic forms a clock, he establishes a model of it either in fact or in his mind, according to his pleasure; but if he should resolve that the wheels of his clock should move contrary to the usual rotation of similar pieces of mechanism, we could hardly with any propriety established by usage apply the term law to his scheme. Where law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz.: disobedience and punishment.

Hooker, in the beginning of his Ecclesiastical Polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers who treat law as a science begin with such an explanation. But the editor, though it may seem presumptuous to question such authority, has thought it his duty to suggest these few observations upon the signification of the word law."-CHRISTIAN.

(6) "The Law of Nature' is a supreme, invariable and uncontrollable rule of conduct to all men; and it is so called because its general precepts are essentially adapted to promote the happiness of man, as long as he remains a being of the same nature with which he is at present endowed, or, in other words, as long as he continues to be man, in all the variety of times, places and circumstances in which he has been known, or can be imagined to exist; because it is discoverable by natural reason, and suitable to our own natural constitutions, because its fitness and wisdom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in which they may be placed; and, lastly, because its violation is avenged by natural punishments which necessarily flow from the constitution of things, and are as fixed and inevitable as the order of nature, as by shame, remorse, infamy and misery, and still further enforced by reasonable expectation of still more awful penalties in a future and more permanent state of existence."-MACKINTOSH.

laid down only such laws as were founded in abstract justice. These are the eternal, immutable laws of good and evil, to which the Creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; on which three general precepts Justinian has grounded the whole doctrine of law(b).

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance, its inseparable companion. As therefore the Creator is a being, not only of infinite power and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own selflove, that universal principle of action. For he has so intimately connected, so *inseparably interwoven the laws of eternal justice with the happiness of [*33] each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connexion of justice and human felicity, he has not perplexed the law of nature with a multitude of abstract rules and precepts referring merely to the fitness or unfitness of things; but has graciously reduced the rule of obedience to this one paternal precept - that man should pursue his own true and substantial happiness. This is the foundation of what we call ethics, or natural law; the primary object of which is to demonstrate, on the one hand, that this or that action tends to man's real happiness, and therefore that the performance of it is a part of the law of nature; on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and many of them derive their force and principal authority from this original.

But in order to apply the law of nature to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law directs in every circumstance of life; by considering what method will tend the most effectually to our own. substantial happiness. And if our reason were always clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide than this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. *This has given manifold occasion for the benign interposition of [ *34] Divine Providence; which, in compassion to the frailty, the imperfection, and

(b) Juris præcepta sunt hæc, honeste vivere, alterum non lædere, suum cuique tribuere. Inst. I. 1. 3. "These juris præcepta are not

rules of law, but short statements of the chief moral obligations on which rules of law are based." Sandars, Inst. Just. p. 87.

Revealed law of
God.

the blindness of human reason, has been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts tend, as does the original law of nature, in all their consequences, to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present vitiated state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same origin with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Though undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law. Because one is the law of nature expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend, mediately or immediately, all human laws; no human laws should be suffered to contradict these. There are, it is true, many matters per se indifferent, as to which nevertheless legislation is needed for the public good, and in foro conscientiæ obedience is due to laws enacted by the constituted government for the benefit of society. With regard to such points as are not indifferent, human laws must be deemed declaratory of and to derive efficacy from the divine ordinances; yet in the moral guilt of violating a law thus promulgated, is involved the ingredient of a disobedience to a de facto social * institu[*35] tion. To instance in the case of murder: this is expressly forbidden by the divine and demonstrably by the natural law; and from these prohibitions arises mainly the turpitude of this crime. Those human laws which annex a punishment to it, do however superadd fresh obligation on each member of the community to abstain from its perpetration. If indeed any human law should allow or enjoin us to commit it, we should be bound to transgress that human law, or else we should offend against both the natural law and the divine (c). But with regard to matters in themselves indifferent, neither commanded nor forbidden by divine laws; such, for instance, as the exporting of wool or other produce into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, there would be no occasion for any other laws, than the law of nature, and the law of God. Neither could any

(c) Members even of the legislative body have ere now avowed an intention to transgress a projected law, if made. Thus, in the debate on the Church Discipline Bill (July 26 1838), the Bishop of Exeter said: I speak advisedly, but I speak not in a spirit of defiance, when I say, that should this bill pass, I shall not feel myself at liberty to obey its main instructions or directions. To other laws I will cheerfully conform, but this will be a law that will strike

at the very root of the essential discipline of our Christian church. I plainly and openly then declare that, should this bill pass, if a clergyman in my diocese conducts himself criminally, I shall call on that clergyman to answer to me for his actions, and if he will not obey my remonstrance I shall proceed to that sentence which this bill tells me I shall not pass-I shall proceed to ex communicate him. (Mir. of Parl.)

Law of nations.

other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any superior but Him who is the author of our being. But man was formed for society; and neither is capable of living alone, nor indeed has the courage to do it (d). However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily [ *36] form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations."(e): which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon international comity (f), or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts, we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject, and therefore in the civil law (g) — quod naturalis ratio inter omnes homines constituit, vocatur jus gentium (h).

Such and so broad as this being the foundation on which international law reposes, we yet learn from our reports that it cannot be allowed to prevail in any case where it runs counter to elementary principles of justice, to the law of nature, or the law of God. Thus, in virtue of international comity, the judgment, decree, or sentence of a foreign court is here held conclusive quoad that which it professes to decide, and yet this rule must be limited by provisos that the foreign court has jurisdiction over the subject-matter, that

the judgment was not obtained by fraud practised on the court for the [ *37]

purpose of procuring it, nor by collusion, nor by the malversation of the court itself (i).

(d) Puffendorff, 1. 7. c. 1, compared with Barbeyrac's commentary.

(e) "The true foundation on which the administration of international law must rest, is that the rules which ought to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return." Story, Confi. Laws, 3rd ed. 45.

(f)" International comity" is "the obligation of nations to give effect to foreign laws, when they are not prejudicial to their own rights and interests." Story, Confl. Laws, 3rd ed. 43.

(g) Dig. 1. 1. 9.

(h) The jus gentium included "the rules of right which govern the transactions of social life and nations in their dealings with each other." What we term international law is expressed more correctly by the term jus inter gentes. Sandars, Inst. Just, 87. 89. (i) Cammell v. Sewell, 5 H. & N. 728; 3 Id. 617, 646.

In Ferguson v. Mahon, 11 Ad. & E. 179, an action of debt was brought upon a judgment of the Court of Common Pleas in Ireland. Plea, that though the judgment was in fact obtained by plaintiff against de

VOL. I.-4

fendant, yet "defendant was not at any time arrested upon or served with any process issuing out of the said court for the cause of action upon which judgment was obtained, nor had he at any time notice of such process, nor did he appear to the action." The question was whether this plea, assuming the facts alleged in it to be proved, afforded any answer to the suit? It was held to do so; Lord Denman observing that the grounds of a foreign judgment may be inquired into where the proceedings which resulted in such judgment were plainly contrary to natural justice. An Irish judgment, he admits, is a record for certain purposes so as to bar any inquiry into the merits of the case or the propriety of the decision, though not to preclude inquiry whether the judgment passed under such circumstances as showed that the court had properly jurisdiction over the litigants; or whether the defendant had had notice of the proceedings, or had been before the court. In this case the defence raised on the particular issue availed the defendant, who had judgment.

Upon the subject of international comity, general principles such as stated in the text may be deduced from Fenton v. Livingstone, 3 Macq.; Scotch App. Cas. 497.

Having premised thus much concerning the law of nature, the revealed law, and the law of nations, I proceed to treat more fully the principal subject of this section, municipal or civil law; that is, the rule by which Municipal law. particular districts, communities, or nations are governed; defined. by Justinian to be (k) quod quisque populus ipse sibi jus constituit. I call it "municipal" law, in compliance with common speech; for though, strictly, that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.

[*38]

*

Municipal law, thus understood, may properly be defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, prohibiting what is wrong, and regulatmunicipal law. ing matters in themselves indifferent." (7) Let us endeavour to explain its several properties, as they arise out of this definition.

Definition of

"a rule."

And, first, it is "a rule": not a transient sudden order from a superior, to or concerning a particular person; but something permanent, uniform, and univerMunicipal law is sal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised; whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

It is also called a "rule," to distinguish it from a compact or agreement, for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, "I will, or will not, do this;" that of the law is, "thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the origin of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be "a rule." [*39]

*

Municipal law is also a rule" of civil conduct." This distinguishes

(k) Inst. 1. 2. 1.

(7) "The design and object of the laws is to ascertain what is just, honorable and expedient; and, when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under an obligation to obey; but especially because all law is the invention and gift of heaven, the sentiment of wise men, the correction of every offense, and the general compact of the State; to live in conformity with which is the duty of every individual in society." Demosthenes Orat. 1. Cont. Aristogit.

'Municipal law is a rule of civil conduct, prescribed by the supreme power in a State, commanding what is to be done, and forbidding the contrary."-SHARSWOOD.