III. OF THE POSITIVE LAW OF INDEPENDENT STATES. Positive law, when applied to a determinate nation, such as France, Spain, or England, is the collection of rules of civil conduct prescribed and enforced by the supreme power Diversities in the state. Differences in climate, locality, wealth, commerce, civilisation, manners and customs, and an infinite variety of external circumstances and relations, lead to an endless diversity of laws among different nations.1 of law in different states. Many positive rules arbitrary. For the same reasons the law of the same people undergoes constant changes, independently of the action of the legislative power. Nor can this instability be justly regarded as a reproach. For it is impossible to imagine a body of positive law equally fitted for all times and circumstances; and experience shows that the symmetry of a sound philosophical system of jurisprudence can only be maintained by adapting it from time to time to the progress and common feelings of the people. In every civilised state there are numerous rules of positive law which are purely arbitrary, and admit of being repealed or altered without doing injustice to any one. Thus the form of solemnising marriage, the number of witnesses required for a testament, the proper age for legal majority, the term of years necessary for prescription, the procedure to be observed in courts of law, and a multitude of other things, are all left indifferent by the law of nature, and are fixed by mere arbitrary regulations, which are different in different states, and may be changed at any time on grounds of public convenience. Nothing, however, is indifferent, when positive law has once enjoined or prohibited it. If the authority of the lawgiver be sufficient, the law must be respected in small things as well as in great, without regard to its wisdom or importance; and, if required, the whole power of the state may be 1 Pascal has expressed himself with bitter irony on the diversities of law in different countries :"Plaisante justice qu'une rivière ou une montagne borne: verité en deça des Pyrenées, erreur au dela." -Pensées, part i. art. vi. § 8. employed to enforce obedience. For "laws are mere nullities without the force necessary to support them;" and if the breach of any one law, however trivial, were tolerated, it would demoralise the people, by diminishing the habit of respect for other laws of vital importance to the public welfare. obligation Apart from the element of force, obedience to the just laws Moral of our country is generally acknowledged to be a moral duty of positive binding on the conscience. This conclusion is rested not law. only on the deductions of reason, but on scriptural grounds; and Jeremy Taylor, in a learned dissertation on the subject, declares this doctrine to be "certain as an article of faith, and as necessary as any rule of manners." No doubt, if the laws of man are directly at variance with the declared will of God, the last must be obeyed as of paramount authority, whatever penalty may thereby be incurred. But no man is wiser than the law, and it must always be presumed, till the contrary be proved, that the human law is just, and not opposed to the divine law; so that disobedience is presumptively wrong in morals, and the responsibility, in case of error, lies on him who disobeys.1 tions in all systems. The best contrived laws being intended for general use, it Imperfecis impossible to shape them so correctly as to suit all the legal variety of cases that may happen; and there are many ways in which men may injure one another without the civil law affording any means of redress. So imperfect, indeed, is the civil law, that, in attempting to do justice, it sometimes puts it in the power of a man to take exorbitant advantages contrary to conscience. Against these imperfections there is no appeal except to the conscience. And here we are reminded of the three general precepts mentioned by Justinian-to live uprightly, to hurt nobody, and to render to every one his due.2 These maxims breathe a fine spirit of morality, and are evidently for the common advantage of men in their social relations; yet, 1 See Black. Com., vol. i. p. 58, este vivere, alterum non lædere, Coleridge's Note. suum cuique tribuere."- I. 1. 1. 1. 2 "Juris præcepta sunt hæc: hon. Positive law written and unwritten. with all their excellence, they fall greatly short of the golden rule of the Gospel:-" All things whatsoever ye would that men should do to you, do ye even so to them.”—Mat. vii. 12. The general security of private rights and of civil life, requires adherence to fixed rules and prior decisions by courts of law, and this occasionally leads to hardship in particular cases; but this particular hardship, after all, is a lesser evil than the general uncertainty and confusion that would spring up everywhere, were the discretion of judges left entirely unfettered by positive rules.1 The positive law of every country may be divided, after the example of the Romans, into written and unwritten. Written or statutory law is enacted by the express authority of the supreme power, and is always reduced into writing. Unwritten or customary law is that which has not been promulgated by the legislature in a written form, but derives its binding power from long usage.2 All laws may be abrogated in whole or in part by other laws, and this may be done either expressly, by the repeal of the old law, or tacitly, when the new law contains provisions contrary to those of the former one; for, whenever a contradiction arises between a new and an old law, the new one has the preference: Jus posterius derogat priori. Unwritten laws, though at first established by usage, may be repealed or altered by an express act of the legislature. They may likewise be abrogated by long disuse; for as they are founded merely on custom, long and uninterrupted disuse affords evidence that they are no longer in force. Sometimes written laws are said to become obsolete, it they have not for any considerable time been put in execution, so that what they enjoin has been long neglected, or 1 Lord Camden has drawn a very alarming picture of the dangers that would result from allowing too great scope to judicial discretion. "The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends up on constitution, temper, passion. what they forbid has been long practised with impunity. But, in principle, no written law can be abrogated by disuse. Nevertheless it was a maxim of the Roman jurists, that as laws may be established by long custom, so they may likewise be abrogated by desuetude or contrary usage.1 In Scotland this doctrine has been adopted and applied even to statutes. For it has been determined that Scotch Acts of Parliament passed before the Union in 1707, may lose their force and become ineffectual by contrary practice, without any express repeal. The law of England follows a different rule, which is, that every statute, however ancient, continues in force till repealed by another statute. A striking illustration of the application of this rule occurred in the wellknown case of Ashford v. Thornton, in 1818, where the Court of King's Bench, in an appeal of murder, sustained trial by battle.2 After this decision, which sanctioned judicial combat in the nineteenth century, an Act was passed repealing the law respecting appeals of murder and wager of battle. Another distinction originated with the Roman jurists, Public and who divided positive law into public and private. Public private law. law is that which treats of the constitution of the state, and the relations existing between the government and the individual members of the community. Private law (sometimes called civil law) is that which treats of the relations of these individual members inter se.3 Public law is sometimes distinguished into political or constitutional and administrative. Under the first head the constitution of the state is considered. Under the second the general administration is traced, including the judicial organisation, military and naval establishments, finance and other departments under the charge of public officers employed by the government. By most of the modern jurists criminal law is treated as a part of public law. It is an 1 I. 1. 2. 11. D. 1. 3. 32. 1. 2 Barn and Ald., p. 405. In his work on the origin and progress of French legislation (Paris, 1816, note, p. 305), M. Bernardi pointed out this strange anomaly, and observed, "I n'est pas possible de porter plus loin 3" Publicum jus est quod ad sta- Division of private law established rule, that the public law cannot be controlled or altered at the will of individuals, by private agreements.1 Though the division of law into public and private has been almost universally adopted by the Continental jurists, it is not to be found in the institutional treatises of English law. Mr Austin contends, that the portion of law usually called public law should be classed under the law of persons, distinguishing between private conditions and political conditions. This is the course followed both by Sir Matthew Hale and by Blackstone. In the first book of his 'Commentaries,' Blackstone treats of the rights and duties of persons, not only as private individuals, but also in their public relations, so as to comprehend a portion of what is called public law. Political persons include all those who share the sovereign power, ministers of state, judges, magistrates, and all other public functionaries; while private persons include chiefly the conditions of husband and wife, parent and child, master and servant, guardian and ward. As to the political constitutions of separate communities, they belong to the public law of each state. This is exclusively municipal in its character, and essentially distinct from that system of jurisprudence which regulates the mutual relations subsisting between independent states.2 Nothing has given rise to more difficulty among jurists according to than the proper division of private law with reference to its subjects. subjects. Justinian, in his Institutes, has treated of the law of persons, the law of things, and the law of actions. This system, though often criticised, has its advantages, not the least of which is, that it has been so often followed that it has become familiar to lawyers in all parts of the world. 1 "Jus publicum privatorum pactis mutari non potest."-Papinian, D. 2. 14. 38. See also Code Civil, art. 6. 3 It may not be uninteresting to notice here some of the most remarkable fundamental acts regarding constitutional law. These are, for Great Britain, the Great Charter of 1215, the Bill of Rights of 1688, and the Reform Bill of 1832; for the United States, the Constitution voted by Congress in 1787; for Germany, the Federal Pact of 1815; for Spain, the Constitution promulgated at Madrid on 23d May 1845; and for France, the different Constitutions established from 1791 till that of 14th January 1852. |