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THE CONTENTS OF THE FOLLOWING PAGES WEBB PLANNED AND
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Otommentarteg
ARE,
WITH FEELINGS OF MOST SINCERE RESPECT, GRATITUDE AND ATTACHMENT,
DEDICATED AND INSCRIBED.
EXPLANATION
REFERENCES TO THE CORPUS JURIS CIVILIS.
The Pandects are indicated by the letters ff.
The letter L. means Law, and the mark means Section of the Law. The words
after the letters ff. give the rubric or heading of the title or chapter. Thus for instance,
L. 49, 1, ff. De Act. Empt. signifies Law 49, parag. 1, in the Pandects: title, De
Actione Empti.
To find the passage referred to, look in the table of contents or headings, which is in
every edition of the Pandects, alphabetically arranged. You will there find the page
where the particular title is. Then the number of the law will show you the particular
law that you seek. The references to the headings are usually abbreviated thus : De
hered. instit. for De heredibus instituendis. But any one can readily find what title the
abbreviations indicate, by running his eye down the index or table of headings of the
titles in the Pandects ; and then the number in the table shows the page. This is the
most usual mode of referring to the Pandects, and that which I have followed. There
are other ways of referring to the Pandects. Some writers give the first words of the law
which they cite. Another mode of reference is thus : D. dejure dotium, L. profectitia,
si pater, meaning Digest (which is the same as the Pandects), title Dejure Dotium,
the law commencing with the word profectitia, and the paragraph commencing with the
words si pater.
In some writers the letters Pand. are used instead of ff., or D., or Dig., all of which
signify Justinian's Pandects.
Sometimes the letter or letters indicating the Pandects are placed last thus:
L. profectitia, si pater, D. Dejure Dot.
Or the numbers of the law and paragraph are given instead of their initial words
thus :
L. 5, G, Dejure Dotium.
The law cited is sometimes indicated by the letters Fr. instead of L.
It is not unusual to cite the Pandects by the numbers of the book, title, law, and
paragraph thus : D. (or Pand. or ff.) 25. 3. 5. 6., or Lib. 25. tit. 3, L. 5, 6.
The three books in the Pandects, Be Legatis et Fideicomnrissis, are cited by their
numbers and their heading.
THE CODE.
The Code of Justinian is cited in the same way as the Pandects and indicated by the
letters Cod. or C. And some writers use the letters Constit.(Constilutio) instead of L.
b
VI EXPLANATION OF REFERENCES.
THE INSTITUTES.
Justinian's Institutes are indicated by the letters Inst. or Instit. or I. They are cited
by the number of the paragraph, followed by the rubric or heading of the title thus :
3, Inst. De Nuptiis. The title is easily found by referring to the table of rubrics.
Sometimes the reference is made^by the numbers of the paragraph, book, or title
thus :
3, Inst 1. 10.
The letters princ.,pr. or princip. indicate the commencing paragraph of a title, as the
numbering commences with the second.
The Novels, or later Constitutions in the Corpus Juris, are indicated by the words
Nov. or Novel.
GaOTIUS AND PUFENDORF.
Grotius and Pufendorf are cited from Barbeyrac's translations, because those trans-
lations are the books generally in use ; and his notes on both, and his references from
Grotius to Pufendorf, make the two works together one Corpus of the Law of Nations
which has not yet been equalled in extent, learning, richness of illustration, and acu-
men. Like Co. Litt. these translations have superseded the original for practical and
scientific purposes. So PufendorPs little book De Officio Hominis el Civis is cited from
Barbeyrac's translation, on account of his notes and references, which add much to its
value.
TABLE OF CONTENTS,
CHAPTER I.
INTRODUCTION ........... Page 1
CHAPTER II.
THE ORIGIN AND FOUNDATION OF LAW ..... 14
CHAPTER III.
THE ORIGIN AND FOUNDATION OF LAW ....... .22
CHAPTER IV.
THE ORIGIN AND FOUNDATION OF LAW. PRIMARY AND SECONDARY NATURAL
LAW ............. 32
CHAPTER V.
THE Two BRANCHES OF NATURAL LAW PRIMARY AND SECONDARY FURTHER
CONSIDERED ACCORDING TO THE JURISTS ....... 44
CHAPTER VI.
GENERAL PLAN AND NATURE OF HUMAN SOCIETY ON THE FOUNDATION OF THE
Two PRIMARY LAWS .......... 52
CHAPTER VII.
ON THE NATURE AND SPIRIT OF LAWS. IMMUTABLE LAWS .... 63
CHAPTER VIII.
ON THE NATURE AND SPIRIT OF LAWS. OF ARBITRARY OR POSITIVE LAWS,
AND THE LEGISLATIVE POWER ......... 79
CHAPTER IX.
ON THE NATURE AND SPIRIT OF LAWS. OF ARBITRARY OR POSITIVE LAWS . 86
CHAPTER X.
THE NATURE AND SPIRIT OF L\ws. OF ARBITRARY OR POSITIVE LAWS . 91
CHAPTER XL
ON THE NATURE AND SPIRIT OF LAWS. REFLECTIONS ON THE SCIENTIFIC Use
AND DIVERSITIES OF NATURAL AND ARBITRARY LAWS .... 101
Vlll CONTENTS.
CHAPTER XII.
THE NATURE OF PUBLIC LAW, TEMPORAL AND SPIRITUAL . . Page 107
CHAPTER XIII.
REFLECTIONS ON THE END OF HUMAN SOCIETY AND THE RELATIVE USES OF THE
SPIRITRAL AND TEMPORAL LAWS. THE DIVISION OF MANKIND INTO STATES AND
NATIONS. LEGAL CHARACTER OF THAT INSTITUTION. CONSEQUENCES WITH RE-
FERENCE. TO POLITICS AND ECONOMIC SCIENCE .... 118
CHAPTER XIV.
THE DIVISION OF THE WORLD INTO STATES AND NATIONS CONSIDERED WITH
REFERENCE TO ECCLESIASTICAL PUBLIC LAW.
The Anglican Church The Greek (separated) Church The Roman Catholic Church
Its Construction Superiority and Obedience, or Subordination The Hierarchies
of Order and Jurisdiction The Four Elements of Human Society Relation of
Society to Ecclesiastical Public Law Ecclesiastical Public Law independent of the
Divisions of the World into Civil States But that Division not neglected by Eccle-
siastical Public Law Contact of Ecclesiastical Public Law with the Political Divisions
of the Earth, and Temporal Laws How it operates with them . . 127
CHAPTER XV.
OF THE DIVERSITY OF LAWS AND POLITICAL INSTITUTIONS IN DIFFERENT COUNTRIES,
AND OF THE CONFLICT OF LAWS.
Examination of the Diversity of Municipal Laws Diversity of Forms of Govern-
ment Dispute as to the best Form of Government Difference of Opinions Abso-
lute Monarchy Opinion of Mariana and St. Thomas Aquinas Doctrine of the
Deposition of Tyrants Divine Right of Kings Indivisibility of the Jus Majestatis
Other Classes of arbitrary Matters Analogies between the Roman and the Hindu
and Muhammadan Laws The Conflict of Laws First Principles The Comity of
Nations, and the Spirit of the Conflict of Laws ..." 138
CHAPTER XVI.
THE CONFLICT OF LAWS.
Personal Laws as contradistinguished from Territorial Laws Laws of British India
Concurrent Systems of Jurisprudence Municipal Conflict of Laws General Rules
regarding the Conflict of Laws Real and Personal Statutes The Comity of Na-
tions Lex Loci Rei Sitae Domicil Rule as to Movables Jurisprudence as to
Personal Statutes Status Conflict of Laws regarding Marriage, and its Conse-
quences Divorce Effects of Marriage as to Property Conflict of Laws regarding
the Jurisdiction of Courts and Legal Remedies Foreigners . . . 156
CHAPTER XVII.
OF THE CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. EXTRADITION.
REFUGEES. GENERAL REFLECTIONS ON THE CONFLICT OF LAWS. . , 179
CONTENTS. IX
CHAPTER XVIII.
OF THE LEGAL ORIGIN AND NATURE OF CIVIL SOCIETIES OR STATES.
The Three Parts or Orders of Human Society Matters of Public and of Private Law
Detail of the Matters of Public Law, and Construction of Civil Society Neces-
sity of Civil Government, and its Divine Right The Doctrine of the Social Com-
pact Doctrine of Hooker, Blackstone, Pufendorf, Hobbes, Grotius, Zallinger, Locke,
and Barbeyrac The true Origin of Civil Societies Savigny's Doctrine on the Sub-
ject . . . . . . . . Page 194
CHAPTER XIX.
OF THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.
The Civil Power Principle of Subordination Authority of a Majority Perfect and
imperfect Societies Necessity of the governing Power in Civil Societies Analysis
of the Civil Power by Grotius The Sovereign Power Doctrine of the Sovereignty
of the People . . . . . . . .206
CHAPTER XX.
OF THE PARTS OR BRANCHES OF THE SOVEREIGN POWER.
The Three Parts of the Civil Power Jura Majestatis Merum et Miitum Imperium
and Merum Imperium Jurisdiction The Legislative Power Place and Effect of
Legislation in the Formation of Municipal Law Customary Law Political and
Legal Character of the Legislative Power The Executive Power Power of inflict-
ing Punishments Its Nature and Objects Fundamental Principles of Criminal
Law Power of Pardoning The Appointment of Magistrates and Officers, and
their Uses and Functions Right of War and Peace Negociations with Foreign
States Power of assembling and arming Forces Revenue Jus Eminens and Do-
minium Eminens True Foundation of the Right of Taxation The Interference of
the State with Private Property for the Public Use Equality of Taxation re-
quired. ......... 215
CHAPTER XXI.
OF THE JUDICIAL POWER.
Legal Nature and Necessity of the Judicial Power Private War Cases in which the
Use of Force by Private Individuals is still lawful in Civil Society Right of Self-
defence Jurisdiction Notio Proper or ordinary, and delegated Jurisdiction Civil
and Criminal Jurisdiction Distinction between Public and Private Wrongs Effect
of Judicial Decisions Res judicata Degrees of Jurisdiction and Appeals. . 231
CHAPTER XXII.
THE CONNEXION o? THE JURA MAJESTATIS WITH EACH OTHER.
Difficulties arising from the Union of equal Powers by a Convention only Union by
means of Civil Government Historical Illustrations Chief Defect of several Fe-
deral Constitutions The United States of America Pufendorf 's Argument regarding
the Division of the Jura Majestatis or Parts of the Sovereign Power Necessity of
X CONTENTS.
Unity in the Sovereign Power Historical Illustrations The same Proposition de-
monstrated Principles on which the Sovereign Power may be divided Consti-
tutional Balance of Power Insufficiency of Laws alone to preserve it . Page 239
CHAPTER XXIII.
THE FORMS OF CIVIL GOVERNMENTS. REGULAR STATES OR GOVERNMENTS.
REGULAR REPUBLICS.
The Constitution of a State Equality of Sovereign States The Place of Political
Constitutions in the Scheme of Universal Human Society Character of Organic
Laws of States General Classification of P'orms of Government Regular or Simple
States or Governments Democracy Aristocracy Monarchy Oligarchy Causes
of peculiar Municipal Institutions The Republican Form of Polity Nature of a
Republic Mixed Governments True Definition of a Republic The Representa-
tion of the People examined By what Constituency the Representatives should be
chosen Universal Suffrage considered Constituent Assemblies and Conventions
Authority of a Majority Secret Voting or Vote by Ballot Indirect Election. 247
CHAPTER XXIV.
OF REGULAR STATES. SIMPLE OR REGULAR MONARCHY. HEREDITARY AND
ELECTIVE MONARCHY.
Monarchy Tyranny Limited Monarchy of two sorts Montesquieu's Distinction
between Monarchy and Despotism General Principles of Monarchical Government
Effect of intermediate Powers Influence of the Church Absolute Power and
limited Power The different sorts of Laws that modify the Royal Authority Pro-
mises and Oaths of Sovereigns Distinction between Sovereign and Absolute Power
The Commissary Clause or Clause of Forfeiture The two Classes of Fundamental
Laws limiting the Royal Authority Power to change Fundamental Laws and the
Constitution of a State In what Sense an Absolute Monarch is above the Law
Hereditary and Elective Monarchy considered Agnatic and Cognatic Succession
The Salic Law Different Modes of Election Interregnum Death of a heredi-
tary King, leaving his Widow with Child Precedents in History . . 264
CHAPTER XXV.
ON MIXED GOVERNMENTS, AND THE DIVISION OF THE SOVEREIGN POWER AND THE
THREE GREAT DEPARTMENTS OF GOVERNMENT.
Nature of irregular or mixed Governments Division of the Sovereign Power Ba-
lance of Powers in a State How the Government of the United States of America
is a limited and mixed Government Distinction between the Distribution of Powers
and the mere Division of Departments Reasons of the Division of Departments,
and of the Distribution of Powers -Principles of mixed Governments The Utility
of those Governments in particular Cases Examination of the Nature of Liberty,
Natural and Civil Definition of Liberty by Florentinus Liberty considered with
reference to its Degree or Extent Use of the Balance of Powers with reference to
Liberty Political Liberty Principles on which mixed Governments are constructed
Theory of Montesquieu Principles of Blackstone and Story How the Division
of the Three Powers of Government is rendered consistent with the Unity of Go-
vernment Doctrine of Madison on this Subject Difficulty of preventing the En-
CONTENTS. XI
croachments of the Three Powers on each other Government constructed on the
Principle of combining Monarchy, Aristocracy and Democracy The Three Ingre-
dients of this sort of Government examined Maxim that the King can do no
wrong The hereditary Peerage Privileges of the Peers Impeachments The De-
mocratic Part of a mixed Constitution ..... Page 282
CHAPTER XXVI.
THE DISTRIBUTION AND BALANCE OF THE POWERS OF GOVERNMENT, AND THE MEANS
OF MAINTAINING THAT BALANCE.
General Principles exemplified by English and American Constitutional Law Com-
parison of the Three Branches of Government with reference to their relative Strength
and means of Self-protection Preponderating Power of the Legislative Branch, and
difficulty of restraining it Weakness of the Judicial Power Appeals to the People
in Convention suggested as a Remedy against the Encroachments of the Legis-
lative Power Inconveniences and insufficiency of this Remedy The Constitutional
Balance of Power explained Doctrines of Madison, Story and Blackstone Con-
sideration of the Subject with reference to each of the Three Branches of Govern-
ment The Legislature Use and Importance of dividing this Department The
Negative of the President of the United States Comparison of this Provision with
the Legislative Prerogative of the Crown in England Double Legislative Assemblies
considered and compared with a single Assembly Duration of Representative As-
semblies Executive Department Its Unity The Civil List Responsibility of
Ministers The Judicial Department Permanency of the Judges Mode of appoint-
ing them Connexion of the Judicial with the Executive and Legislative Depart-
ments Trial by Jury ....... 303
CHAPTER XXVII.
OF COMPOUND STATES OR SYSTEMS OF STATES.
Provinces Colonies and Colonial Policy States united by having one King in com-
mon States joined by Confederation Mode of deciding Questions among Con-
federates Dissolution of Confederations Mixed Federal States exemplified by the
Constitution of the United States of America. , 325
CHAPTER XXVIII.
THE PUBLIC LAW OF THINGS.
Double Aspect of the Law of Things Distinction between the Public and Private
Law of Things The Four Classes of Things not Private, according to Justinian
Domat's general View of the Public Law of Things Things common to all Men
Common Right over Rivers The Common Rights of Mankind over the High Seas,
and the Freedom of the Seas Appropriation of Parts of the Sea Jurisdiction over
Ships, and Right of Search Public Things Rivers, Ports, Shores of the Sea, and
Banks of Rivers Territories of a State Uninhabited and partly inhabited Countries
and Land Hunting Ground of Savage Tribes Effect of the Change of the Course
of Rivers which are Boundaries Law regarding Alluvion or Alluvial Accretions
Lakes Acquisition of Territories by Occupancy Analysis of the Property of a
Nation Public Property Imposts and Taxes Dominium eminens Res universi-
tatis The Property of Bodies Corporate Res nullius Ecclesiastical Things
Conclusion. ...... ... 347
3, STONE BUILDINGS,
LINCOLN'S INN, w.c.,
October, 1876.
DEAR SIR GEORGE BOWYER,
I have now read with great interest your
valuable work, which might well have been styled an
introduction to the effectual reform of the Law of
England.
To me it is a great pleasure, perhaps a
selfish one, to find an original thinker with views
so nearly corresponding to my own. I have long
thought the placing of the legal estate in a mortgagee
one of the most crying evils of our system (p. 39). I
quite agree that grants and contracts ought to do all
that is wanted (p. 50). I would abolish all terms of
years in trustees (p. 51). I would have a register of
deeds, not of title (p. 61), and have them printed
(p. 63) with separate registers for hypothecs and leases.
I sincerely hope that under your leadership, reforms
which I have long desired and done my best to
advocate, though with little effect, may ultimately be
carried through.
Believe me,
Dear Sir George Bowyer,
Yours faithfully,
JOSHUA WILLIAMS.
COMMENTARIES
UNIVERSAL PUBLIC LAW.
CHAPTER I.
INTRODUCTION.
THOSE who have thoughtfully observed the events of our own time,
especially during the last six years, may apprehend, not without some
show of reason, that in a great part of the world permanent govern-
ment on any fixed principles of Public Law is becoming extremely
difficult, if not impossible.
On the conclusion of the Treaty of Vienna, it seemed strange that the
French Revolution and the conquests of Napoleon should have produced
such small tangible results. One single new dynasty, that of Sweden,
remained ; the constitution of Germany was remodelled ; and two
republics were extinguished. But a transition in the history of
Europe had commenced. The minds of men had been unsettled by
a period of anarchy denying everything and spurning the very idea of
obedience ; and then came a time of military despotism, the very type
of power, the majestas of government unmitigated by any checks or
restraints.
We see in our time a reproduction of those phenomena, but with
very peculiar and curious circumstances.
The revolution which overthrew the house of Orleans was effected
not so much by its own power as by the unsoundness of the system
which it destroyed. That revolution was grounded on no principle
and on no definite want; consequently, the results came by a sort of
chance. The very leaders of the movement were unprepared to com-
mence any new system, because they were not at the head of any
party in the country contending for a practical object, such as the
2 INTRODUCTION.
redress of a given grievance, or the attainment of some specific
improvement in the economy or government of the nation. Paris and
France fell into the hands of a successful orator and a knot of worth-
less adventurers; and then commenced a strange caricature upon
statesmanship, showing very strikingly with how little wisdom a great
nation can be governed, even during a time of the highest civilization.
In this uncertain state, when France had accidentally got a republic
which she did not want, and no one could say for what purpose the
monarchy had been overturned, it was imagined that in the midst
of the despotism of the Provisional Government, the nation was to
determine its future Civil Polity, by means of a Sovereign Constituent
Assembly chosen by universal suffrage.
The revolution itself being without any practical public object, it
followed that the Constituent Assembly had no basis of Public Law
to work upon. It had to invent everything; not only to erect a new
edifice, but to discover a new style of architecture, and new purposes
or uses for the building, pointed out by no previous want. The result
was an absurdity. Whereas all statesmen and public lawyers had
thought that a republic should be cunningly devised so as to afford
checks and counterpoises to the different powers of government,
keeping them in their right places and preventing all irregular action,
it was on the contrary determined that the nation should be governed
on an opposite principle. The theory was propounded, that, to prevent
any violence or convulsion, all resistance or restraint must be removed.
The nation was to be treated like a dangerous lunatic, who is placed at
liberty in a room covered with soft cushions, where he may give vent
to every impulse without injury. But we will not enter into a
criticism of that absurd creation of Monsieur de Lamartine and his
colleagues. Our object must be to consider the nature of the means
by which the Republic was erected, namely, the Constituent
Assembly.
When these events took place, a disposition had been manifested
by the governments of Italy and Germany to accord what are called
liberal institutions to their subjects. A good deal of enthusiasm had
been raised. Perhaps neither the sovereigns nor the subjects saw
very clearly what results they were coming to. The principles of
Public Law were little understood, and men did not clearly see what
practical objects they themselves had in view, or how these were to
benefit the community. Liberty was worshipped as an unknown
goddess, or a beautiful myth, to which every man attached whatever
ideas were most agreeable to his wishes or his fancy. In short,
nothing could be more different from the material epochs of our own
constitutional history, in which we always see clearly defined objects
INTRODUCTION. o
contended for, and definite principles of Public Law asserted and
disputed on either side.
One important characteristic of that time was, that there existed
comparatively little commanding talent on the continent of Europe.
There was a want of those great and powerful minds which seem to
control the course of human events. In Italy especially, public
opinion was deified. No statesman had the power to direct public
opinion ; and those who seemed to lead it, such as Gioberti, were in
reality only its organs and its flatterers. And indeed, the fact that so
shallow and vague a writer obtained a very great share of popularity
and power, in itself characterises the times.
Under this state of circumstances, almost every country on the
continent fell into a more or less servile imitation of France. The
mob of the capital assumed supreme authority over the nation, and
decreed that their sovereign had ceased to reign. Louis Philippe
had laid it down that no king could continue on the throne who had
fired on his people; but the converse of that proposition has been
established by subsequent experience. The only question everywhere
was, whether the troops would act, and could act effectually ? Day
by day it was solemnly announced to the world, that tranquillity reigns
in this or that capital, which meant that the city was in the possession
of the mob and the sovereign a fugitive.
Then was the period of Provisional Governments, and, in imitation
of France, a general cry for Constituent Assemblies followed. The
king of Sardinia had given free institutions to his own subjects, and
had marched to assist the Lombard insurrection. The spirit of servile
imitation was so strong, that it was determined by the Piedmontese Par-
liament that, on the successful termination of the invasion, a Consti-
tuent Assembly, elected by universal suffrage by Piedmont and Lom-
bardy, should determine the future constitution of both. It is evident
that if this had been effected, the only resource of the king would
have been to rely on his victorious army against the Republic created in
the very bosom of his monarchy. But it seemed an established prin-
ciple of Public Law that no form of civil polity, however well adapted
to the purposes of government, could be lawful unless it had been
invented and agreed to by a Constituent Assembly.
In the midst of all this confusion an attempt was made in Germany
and in Italy to solve the difficult problem of a federal democratic con-
stitution ; but, here again, instead of resorting to America, where it
had been already tried instead of going to Kent and Story and the
Federalist, they fell into a servile imitation of the French method of
making constitutions, by means of provisional governments and con-
stituent assemblies. From this, however, posterity may derive some
u2
4 INTRODUCTION.
benefit (if it be true that nations learn by experience), for the utter ab-
surdity of those assemblies has been established by the experiments
tried within the last few years all over Europe. But to this subject I
shall return.
Much may be learned by a careful study of events since the year
1848, for they present an extraordinary variety of political and legal
phenomena. Yet we must admit that the attempts made during the
period in question to establish constitutions, wherein, as Fortescue
says, the sovereign power is restrained by political laws, 8 were at-
tended by many unfavourable circumstances. And, accordingly, only
two of those constitutions those of Sardinia and Hanover survive.
The former was probably saved by the failure of the two invasions of
Lombardy, and by the good sense with \vhich the government declined
to join the Italian constituent assembly.
Among the unfavourable circumstances of the times, none was more
powerful than the existence of the Socialist and Red Republican party,
to whom the French Revolution of 1848 had given great power and
activity. We will not attempt any analysis of the different opinions
comprehended within those general denominations ; suffice it to say,
that they are either hostile to or incompatible with the existence of
any government, and strike at the very root of the Secondary Natural
Law ; but they are recommended to the discontented multitude, who, as
Hooker observes " Know the manifold defects whereunto every kind
of regiment is subject; but the secret lets and difficulties, which in public
proceedings are innumerable and inevitable, they have not ordinarily
the judgment to consider." 6 These opinions have no doubt been em-
braced by considerable bodies of men on the Continent, and are pro-
pagated with much zeal and ability by their leaders. Even in this
country the tenets of Socialism are not unknown, and some of the
peculiar terms and phrases, at least, of the sect, have been adopted by
well-meaning persons, who, perhaps, do not see the danger of being
led further by notions which are adorned with a fair show of Christian
philanthropy.
That the existence of the Socialist party in Europe is, and must be,
more and more one of the chief difficulties of civil government, can
scarcely be doubted. That party strives for a total alteration of civil
society, and the other institutions from whence Secondary Natural
Law arises, and for the subversion of any government not based on
certain impracticable doctrines. And all this is clothed with pretences
of philanthropy, and the greater welfare of the greatest number,
a Fortesc. de Laud. chap. 9.
b Hooker, Eccles. Polit. book 1, 1.
INTRODUCTION. 5
highly attractive to the minds of many, especially the large classes,
who, in all countries and at all times, are more or less suffering.
The effect of all these things on the minds of the better educated
classes those who have property, and whose welfare depends on the
stability of laws and civil power is very important. They feel the
want of that certainty of duration, without which municipal govern-
ment cannot be said to fulfil adequately the very first objects of its in-
stitution. They desiderate above all things a powerful government a
sovereign power, able at all times to protect them. And thus there is
now, among those who are called the party of order on the Continent,
a tendency, more or less strong, towards despotism. Those who are
in possession of power feel naturally loath to part with it : and so it
comes to pass, that the distinctive feature of the system prevailing in
the greater part of Europe is, government by means of standing
armies, with a ready appeal to Martial Law, or what is technically
called the state of siege.
Acts of state are no longer judged according to the ordinary rules
of Public Law. Policy, real or supposed or pretended, overrides Law.
A coup-d'etat is no longer held anything very extraordinary. Salus
populi suprema lex esto, seems to have become an ordinary maxim of
government, rather than an exceptional principle, to be kept among
the arcana of state for rare cases of emergency.
The state of those affairs which appertain to the international branch
of Public Law has of late years been equally remarkable. We have
seen diplomacy turned to purposes beyond the recognized scope of
diplomatic functions involving something very like what has been
called political propagandisrn, and dealings with parties or factions for
the purpose of producing political changes in the internal government
of countries. We have seen a revolutionary government in Italy
suppressed by a foreign invasion, unauthorized by any treaty, or by
any request of the lawful Sovereign. And then the invading power
has been recommended and pressed not to permit that Sovereign to
return to his dominions, except under conditions regarding the internal
management of his government and the exercise of his undoubted
prerogative.
Of the policy of these things I say nothing ; I only look at and
refer to them as facts material with reference to the present practice of
International Law.
The inference drawn by some from all the various circumstances
referred to and the present aspect of public affairs is, that Public Law
must now be treated as a thing obsolete and cast aside by the common
consent of European statesmen. And it may indeed seem, that in our
times those who are entrusted with government in the greater part of
6 INTRODUCTION.
Europe, can scarcely be expected to do more than meet, by energetic
action and commanding force, the dangers or difficulties which from
time to time arise ; and that vigilance and power must take the place
of law, and even of justice. And so the uncertainty of governments
renders the practice of International Law, in many cases, subordinate
to state craft.
But this notion, which would throw back European civilization in
one of its highest branches for many centuries, seems to me both
shallow and unsound. The reader will remember that fine passage in
Grotius, where he laments the readiness with which nations went to
war on the smallest pretences, and the lawless manner in which they
carried it on when once the sword was unsheathed. He does not draw
the conclusion from thence, that, because, as Cicero says, Silent leges
inter arma, because nations seemed bent upon referring everything to
the tribunal offeree and blood, therefore the jus gentium was a mere
dream or a philosophical hypothesis, useless to practical men. On the
contrary, he tells us that this, which he calls horrible barbarism, was
one of his chief inducements to write his glorious book on the Laws
of War and Peace.
And of all times, perhaps, in modern history, the present is that in
which especially it behoves thoughtful men to investigate the science
of Public Law. When society and property, and that due subordina-
tion of persons without which neither can exist, are perseveringly and
ingeniously attacked, it becomes important to know scientifically the
grounds and reasons of those institutions from whence spring the great
branches of Secondary Natural Law, and to see the consequences to
which they lead. When the insecurity of human government in a
great part of the civilized world seems to make political institutions
as changeable as the scenes of a theatre, and drives men to throw
themselves into the arms of any power that appears to promise pro-
tection from perpetual revolutions, it is surely interesting and useful
to study the laws on which the different forms of political society are
constructed, and the reasons of those laws. And when the mutability
of governments and constitutions, and the sense of danger in most
countries felt, renders the practice of International Law irregular and
uncertain ; then especially the grounds of that law and the legal prin-
ciples on which the relations of different human societies with each
other should be regulated, ought to be learned and studiously con-
sidered. And, indeed, as in a time of general sickness the cultivation
of medicine is particularly important, so at a period of political dis-
tempers it is most useful to investigate those principles whereby they
may be cured or prevented.
c Grot, de Jur. Belli et Pads Proem. 29, 30.
INTRODUCTION. 7
Another circumstance of the present time renders the study of
Public Law especially important. Many things concur to show that
European society is in a state of transition. Opinions are singularly
undefined and variable. And yet there are forces arrayed against each
other so powerfully, that it is difficult to say which will in the end
prevail. A multitude of experiments in government have been tried
within the short space of three years, of which very few can be said
to have met with any success whatever. Aristocratic institutions,
which have hitherto been so great an element of stability, by support-
ing the executive and influencing the democracy, are everywhere giving
way or perishing. In France, the aristocracy, which might have been
like piles driven into a quicksand, has succumbed to the operation of a
despotic and luxurious court an emigration a military tyranny, and
three revolutions. The spirit of hostility to aristocracy has vibrated
from thence throughout Europe.
The Roman Catholic Church alone presents an extraordinary spectacle
of the stability denied to human institutions. Her form of polity is the
most ancient in the world. The Venetian republic boasted the singu-
lar honour of a constitution which had lasted a thousand years ; but
Venice has perished while the constitution of the Church remains
intact and vigorous, after the lapse of eighteen centuries, during which
it has undergone no organic change. Its divine origin and authority,
and the truth of the faith which it teaches, sufficiently account for
this immunity from the common lot of other institutions. We are
here to consider only its effect upon political communities, regarding
its institutions and laws as part of the Public Law of Europe. Giving
the sanction of religious teaching to morals and natural law, and the
principle of authority and obedience; exercising a strong influence
over intellectual civilization and all the relations of life, and presenting
to the eyes of men a regular society, governed by a complete system
of machinery, complicated yet simple, and tried by the experience of
ages, the Church must be the strongest support to human government.
And belonging exclusively to no one country, but everywhere formed
in the same mould, regulated by the same laws, and imbued with the
same principles, the Church must also be the strongest bond of union
common to the whole human family on earth, and the universal vincu-
lum of human society.
The Church was not intended to supersede the civil magistrate and
temporal government : each has its proper province in the system
whereby the world is governed : but if every human government were
extinguished, the Church would supply a form of external polity
capable at least of keeping human society from dissolution and ruin.
The operation of this great power upon the present state of man-
8 INTRODUCTION.
kind is one of the most important problems of Politics and Public
Law. I however now only refer to it in order to show fully that
which has been described as a state of transition, in which it seems
to be the only permanent element, while all the rest is constantly
changing and moving on to some distant unknown point.
What I have said applies chiefly to foreign countries; for a variety
of causes have rendered the civil polity of this kingdom the most
striking exception to that constant series of fundamental changes
which characterize the legal and political history of our times. Yet
when we consider how the events and institutions of one country act
more and more on those of others, we must feel how important the various
matters to which we have referred must be for ourselves, even where
their more immediate bearing is on other nations. And changes in
foreign states, but especially in France, naturally suggest speculations
and opinions regarding laws and institutions here, raising the hopes
and fears, and unsettling the minds of men.
Hence it becomes in our times more and more useful for English
lawyers and statesmen, and others engaged in public affairs, to make
themselves acquainted with the principles and reasons on which human
society, with its innumerable consequences, are based. The whole
system of the external government of mankind depends on those
principles and reasons. The very institution of property, from whence
springs the greater part of private law, is based upon them. And so
Hermogenianus, in the Pandects, d refers to one origin (the Jus Gen-
tium) a variety of things, some appertaining to public and others to
private law, such as the distinction of men into nations, the founda-
tion of kingdoms, the limitation of boundaries to lands, dealings
between men, contracts, and obligations.
What is called the progress of laws and institutions must be go-
verned by the reasons and principles to which I have referred, or it will
violate some law of the immutable class and produce evil. And at a
time like the present, when civil government seems so precarious in a
great part of Europe, and the institutions of human society are every-
where ingeniously and inclefatigably misrepresented for revolutionary
purposes, it behoves all those who have any share in making or ad-
ministering laws, to be well grounded in the soundest doctrines of Public
Law, whereby they may meet this mischief and prevent the success-
ful diffusion of those dangerous theories, and at the same time discern
changes which may be safely and advantageously made. To lawyers
the study of Universal Public Law must be especially and deeply im-
portant. A slight knowledge of the Reports suffices to show how
d L. 5, ff. De Just, et Jur. And see the comment of Cujacius thereon, torn. 7,
col. 30. Edit. Venet. Mutin.
INTRODUCTION. 9
often the Law of Nations, and other branches of Public Law, are
resorted to in the administration of justice. I refer to the Common
Law and Equity Reports, for it is superfluous to say anything of the
Admiralty Reports, and especially of Lord Stowell's decisions.
In Conn v. Blackburn, Dougl. 619, Mr. Law, afterwards Lord
Ellenborough, arguing in an action of assumpsit, before Lord Mans-
field, cites Grotius, and refers to the question agitated by Quintilian
and commented on by Pufendorf, regarding the instrument of obliga-
tion from the Thebans to the Thessalians, found by Alexander the
Great upon taking Thebes.
In the case of the Duke of Brunswick v. The King of Hanover
(6 Beav.), the most abstruse doctrines of Public Law regarding the
immunities of a sovereign prince in a foreign country were considered.
And in the older books, the case of Monopolies (11 Rep. 85) is
discussed on grounds of Public Law. And so Calvin s case (7 Rep.
1) is full of points of Public Lavy, as, for instance, when it is held
that the highest and the lowest dignities are universal ; for, if a king
of a foreign nation come into England by leave of the king of this
realm, he shall sue and be sued by the name of a king, for he is a
kino- here, whereas a foreign duke or other nobleman has no such
privilege, but is a commoner here.
The multitude of cases wherein this kind of learning has been used
in the Courts of Common Law and Equity, renders any further re-
ference to them unnecessary here.
With regard to our treatises and text books, Fortescue, in his work
De Laudibus Legum Anglice, enters, especially in the tenth and fol-
lowing chapters, into disquisitions on the first origin of kingdoms and
nations and other questions of Public Law, citing St. Thomas Aquinas,
De Regimine Principum, and St. Augustine, De Civitate Dei. And
Blackstone's Commentaries are full of luminous discussions of the same
nature. Lord Hale, in the tenth chapter of his Pleas of the Crown,
expounds the Law of Allegiance, not only with English authorities, but
referring also to the Law of Nations. And I need scarcely remind the
reader of Butler's note to Co. Litt. 261 a, on the Jus Maris, where he
learnedly discusses the celebrated dispute of Selden and Grotius on the
liberty of the seas, and Bynkershoek's treatise on the Rhodian Law.
In the face of these authorities, and the many others that might be
added, it is impossible to deny that Public Law ought to be part of
legal education here.
The present prospects of the legal profession render this proposition
still clearer. What will be the ultimate effect of the New County
Courts on the administration of justice, and what the precise result of
the changes which they are directly or indirectly bringing about, it
10 INTRODUCTION.
may at present be difficult to say with much confidence. But this new
form of judicial polity must in all probability not only break that
system of concentrating the bar in London, which was believed to
conduce so much to its dignity and importance, but in divers ways
diminish its emoluments. That this is a severe trial to the legal pro-
fession, not only individually but as a body, no one can deny. Super-
ficial observers may perhaps say, that this is of no consequence to any
one but to lawyers, and that the change must be one of unmixed ad-
vantage to the nation at large. But whoever considers that the great
leading principle of our constitution is government according to law,
and that "the Common Law is the greatest inheritance that the king
and the subject have," must perceive how deeply important is the
maintenance of that body from whom the judges of the land are
selected, and who with them are entrusted with the administration of
the law.
It is impossible to doubt the value of those reforms having for their
object the cheap and speedy administration of justice; but, like other
inventions of human wisdom, they are not unaccompanied with certain
dangers of inconvenience. And those dangers must be met, not only
for the sake of the legal profession, but for the love of our country.
If ever a time should come when the bar of England has fallen into
a vulgar mediocrity, with no more learning than is necessary to earn a
daily subsistence, unadorned by great legal science, dignity and in-
dependence, then the constitution of this country will be in imminent
peril. And this may come to pass, unless care be taken to provide a
remedy against the circumstances of the times just adverted to, by
raising as high as possible the standard of legal education.
Barristers will probably not in future make very great and rapid
fortunes, and so be the founders of powerful families among the landed
aristocracy. But this need not necessarily lead to the decay of our
order. In the first of the celebrated letters of Camus on the Pro-
fession of an Advocate, he tells the young candidate that the exercise
of that profession leads rather to honour than to fortune ; and yet at
the time when he wrote, the French bar was in a high state of im-
portance ; and this shows that the diminution of professional emolu-
ments need not necessarily be prejudicial to the status and public
utility of the bar. But that diminution must be counterbalanced by
an increase of learning.
In future lawyers must fit themselves, not merely to earn their
bread by the practice of the law in the particular branch which they
especially follow, but they must apply themselves to the general study
of the law in all its branches with a more comprehensive spirit, and
thereby not only enlarge their professional sphere of knowledge, but
INTRODUCTION. 1 1
also qualify themselves to perform the duties of legal statesmen in
parliament, and in the general business of the country. For this pur-
pose they must extend their learning, so as to embrace the whole range
of the legal science ; and such is the wonderful harmony of Universal
Jurisprudence, and the connection of all its parts, that they will find
even their special cultivation of certain branches of law facilitated by
the study of the science as a whole.
But these Commentaries are designed not only for lawyers by pro-
fession, but for all who have any concern in the administration of
public affairs. For our reflections on the political events of late years
show clearly how much the practice of Public Law has lately been left to
chance ; and how principles have been neglected or violated by a blind
following of what has been called public opinion, which has brought
about the necessary result of government by force of arms and vigor-
ous measures of repression. And these remedies have been received
with acquiescence, if not with thankfulness, by people who feared an
overthrow of all government and the dissolution of human society.
Although the science of politics, based on experience and prudence,
is distinct from that of law, yet we shall see ho\v the two sciences are
linked together, and that the same spirit of justice must preside over
both, so as to cause a harmony and unity in the scheme or system
whereby mankind are governed under Divine Providence. If it were
otherwise, we must embrace the false doctrines of the Manicheans,
who recognised two powers, one good and the other evil, dividing
between them the government of the world. It follows, that as the
administration of human affairs is conducted by both those sciences,
and as they must have the same end by Divine appointment, so their
principles must be consistent, and the rules of one of them cannot be
violated without injury to the other, and prejudice to the interests of
mankind.
These reflections show how necessary Public Law is to politics and
statesmanship. For as St. Thomas Aquinas says, " the government of
particular states must be modelled on that of the world." And there-
fore the rules of practical government are derived from principles be-
longing to the original design of human society, and from natural
law, which points out the state prescribed by the nature of man and
the will of the Creator. From thence springs the whole science of
Public Law.
These observations will give an idea of the plan of our Commentaries
on Universal Public Law. But some further explanation may be re-
quisite to show their scope and use.
Public Law, in its widest sense, includes International Law. But
the latter is so vast and complicated, that it requires to be treated as a
12 INTRODUCTION.
distinct branch of jurisprudence. In these Commentaries it is often
adverted to, but not fully and professedly explained. International
Law is founded on the great principles of jurisprudence, and the laws
on which human society is constructed ; and it can never be fully
understood, without a knowledge of the juridical nature of the commu-
nities called nations, or states, with their essential organic laws, and
their relation to the government of mankind. These Commentaries,
therefore, contain the sources of the Law of Nations, and the doctrines
from whence its most important parts are deduced. But we have
here chiefly in view, Public Law in the more confined sense of the
term, that is to say, without International Law.
The object of these Commentaries is to explain the origin and struc-
ture of universal human society, and of the different kinds of commu-
nities into which it is divided, in order to show the system by which
the world is governed, and the principles on which that government is
grounded, and whereby it is regulated. This investigation will facili-
tate the solution of many difficulties in the sciences of jurisprudence
and government, and refute errors and false doctrines prejudicial to the
peace and welfare of society.
The leading practical idea in the science of universal Public Law,
is to view mankind as governed by laws and obligations. It regards
mankind as an aggregate divided into particular communities, or
bodies politic, and forming an universal system in this world, regulated
and governed by an infinite variety of laws, which, notwithstanding
their great diversities, are capable of being classified and arranged so
as to show how the different sorts of laws work, and what principles in
them are essential or useful, or prejudicial to the interests of society ;
and these laws are connected, in a multiplicity of ways, with religion
and morality, and with politics and those different sciences which
relate to the intercourse of mankind, and the uses of all things in the
world.
Such is the general spirit of this book. It is entitled, Commentaries on
Universal Public Law, because it is not confined to the Public Law of
any particular country, but embraces that of human society in general
throughout the world, including the foundations of International
Law.
This vast subject is here treated on a method of development from
fundamental principles. Thus we have commenced with an exposition
of the origin and foundations of law, and then proceeded to show the
plan of society on the foundation of those two great primary laws on
which all others depend. Then follows a full explanation of the nature
and spirit of laws and their different kinds. And as the laws of man
are the rules of his conduct, and that conduct consists of the steps
INTRODUCTION. 13
which he takes towards his end, 6 which is also the ultimate end of
human society; this investigation includes the most essential parts of
the government of mankind. And it also shows the connection of
Public Law with all the other parts of universal jurisprudence. We
then proceed to the detail of Public Law, the elements or parts of
human government, and the different forms of civil polity, with the
legal reasons and principles belonging to them.
Such is the general scheme of these Commentaries. On every
material point abundant references to authorities are provided. Thus
the reader will be able to prosecute his inquiries by tracing our pro-
positions and arguments to their sources, and at the same time to
judge in doubtful questions on which side the weight of authority
preponderates.
The author is encouraged by the circumstance, that there does not
exist in the English language any treatise on this the highest and
most abstruse part of temporal jurisprudence; and therefore the
novelty of the undertaking may recommend it, and also be some
excuse for its imperfect execution.
The reader need not be deterred for want of previous legal know-
ledge from using these Commentaries. They are written not only for
lawyers but for all persons interested in government and public affairs.
Therefore everything is here explained in simple language, avoiding
technical terms as much as possible : and the elementary parts are
sufficiently complete to render the remainder easy. And indeed those
elementary portions of the work may serve as an introduction to other
branches of law : for they contain the fundamental principles on which
all jurisprudence is built.
Care has been taken to avoid partizanship and political bias. All
questions have been considered legally and philosophically on their
own merits. Yet reference is freely made to events of our own time
wherever they seemed calculated to illustrate the matter in hand, and
give a practical character to theories and arguments. Much use is
made in the following pages of the great constitutional legal writers of
that wonderful Republic, to which we are bound by so many ties both
of race and interest. They are not known in this country so generally
as their learning, profound reasoning, and wisdom deserve : and some
of their most valuable arguments and opinions have therefore been
transferred verbatim to this book. It has also been endeavoured to
take as wide a range as possible in choosing the materials of this
work. Civilians, canonists, jurists, theologians and political writers,
ancient and modern, have been freely used, that the reader might be
e Domat, Loix Civiles, Trait des Loix, ch. 1, 3.
14 INTRODUCTION.
furnished with abundance of authority, and introduced to many
sources of learning. Three years of constant labour have been con-
sumed in the composition of these Commentaries, which I now pre-
sent to the public, in the hope that so new and difficult an undertaking
will be indulgently received as a zealous effort for the advancement of
knowledge.
CHAPTER II.
THE ORIGIN AND FOUNDATION OF LAW.
THESE Commentaries have commenced with a general consideration of
the relation which Universal Public Law that branch of juris-
prudence which contains the laws whereby human society is formed
and governed bears to the history of our own times and the present
state of European affairs.
Before we proceed to a nearer inspection of this part of general juris-
prudence, some investigation of the nature and properties of laws will
be necessary. The reason is, that the science of universal jurisprudence
comprises all those rules of conduct or laws, whereby the human
race is under Divine Providence governed ; and if laws be considered
in this light, that is to say, not as establishing or defining certain
specific legal relations, and so constituting the rights of individuals,
but as rules of human government, all laws come within the sphere
of Universal Public Law. And this is one link between Public Law
and every other branch of jurisprudence.
And thus Savigny/ after saying that law is divisible into two
branches, Public and Private, goes on to say : " The former has
for its object the state, that is, the organic manifestation of the people ;
the latter embraces the legal relations between individuals, and is the
rule or expression of those relations. But those two sorts of law
have many points both of resemblance and of contrast. Thus the
constitution of the family, the authority of the father, and the
obedience of the children, bear a striking analogy to the constitution
of the state ; g and many corporate bodies have nearly the same legal
condition as individuals. But what distinguishes public from private
law is, that the former relates to the aggregate of society, and con-
1 Trait^ du Droit Rom. torn. 1, chap. 2, 9. Trad, par Guenoux, 1840.
t St. Thomas Aquinas makes the same observation. Opusc. De Regimine Prin-
cipum, lib. 1, cap. 1, in fin.
THE ORIGIN AND FOUNDATION OF LAW. 15
siders individuals in a secondary light ; while the latter is directed to
the individual exclusively, and concerns itself with his existence and
his different legal states." These profound observations of the great
German civilian, which form a good commentary on the celebrated
law of Ulpian in the Pandects distinguishing public from private law, h
show that if a law be considered in its relation to the commonwealth,
that is to say, simply as a law, it has an aspect relating to public juris-
prudence, though its object be private. And thus Papinian describes
law as follows :
" Lex est commune prceceptum" ******
" Communis reipubliccB sponsio " 1
Such is the light in which I intend to contemplate and explain the
nature of laws. This preliminary disquisition will not only lead to a
clearer knowledge of Public Law, but also enforce the great principle,
that universal jurisprudence, comprehending all laws, is one science
composed of branches intimately connected one with the other, though
to the superficial observer quite separate and unconnected.
Our chief guide will be Domat, of whom the Chancellor D'Aguesseau k
said, that no one had ever given a better plan of human society and
the origin and nature of laws. He has, indeed, been blamed by Pro-
fessor Lerminier, and other modern writers, for mingling law with
Religion. But the following observation of the great canonist Zallinger 1
shows that criticism to be unsound and shallow. He says, that some
writers on natural jurisprudence fall into error at the very outset of the
science, by taking a maimed and imperfect view of the nature of man,
and referring all that man ought to regard in the observance of
natural laws to this temporary life only, and to its interests; and so they
deem themselves more philosophical, in proportion as they separate
Religion from Natural Law.
Domat commences his argument thus, " We cannot take a more
simple or a surer way for discovering the first principles of laws, than
by laying down two primary truths, which are only bare definitions.
One is, that the laws of man are the rules of his conduct, and the
other, that his conduct is nothing else but the steps which a man takes
towards the end for which he was created." m
And we find the same principles in Pufendorf, where he says, that
h L. 1, 2, ff. De Just, et Jur. And see Bracton, De Legib. lib. 1, c. 1, 2, 3.
1 L. 1 , ff. De Legib. et Senatusc.
k D'Aguesseau, CEuvres, torn. 1, p. 273. The chancellor mentions that the work
was composed under his own eyes.
1 Zallinger, Instit Jur. Eccles. in Decretal. Prolog, cap. 2, 7, p. 8.
m Domat, Loix Civiles, Traite des Loix, chap. 1, $ 3.
16 THE ORIGIN AND FOUNDATION OF LAW.
the dignity and excellence of man require that he should conform his
actions to a certain rule, and that our soul is given to us whereby we
know the rule, not merely to animate the body, and preserve it from
corruption, but in order that, by the good use of our faculties, we may
serve our Creator, and also render ourselves happy."
Now these first notions of law show that it is impossible to separate
the fundamental doctrines of jurisprudence from Religion, unless you
throw out of your consideration the more excellent part of man and the
only permanent existence of which his nature is capable. To do so
would be a radical error, for as Zallinger truly observes, nothing is
more important in teaching the fundamental principles of law than to
consider the nature of man both correctly and completely.
It follows, as Domat teaches, that in order to discover the founda-
tion of the laws of man, it is necessary to know what is his end ; be-
cause his destination to that end will be the first rule of the way which
leads him to it, and consequently his first law, and the foundation of
all the others.
This, which we may call the directive aspect of law, is to be found in
the celebrated definition of St. Thomas Aquinas. Lex est qucedam regula
et mensura secundum quam inducitur quis ad agendum, vel ab agenda
retrahitur. Suarez observes that this definition includes not only
men but animals and inanimate things. And so it is, because those
creatures are governed by rules directing them to their end, which is
the purpose for which they are made. p And those rules may be
called laws, if (as Hooker says) we apply the word law not to that
only rule of working, which a superior authority imposes by way of
obligation, but in the more enlarged sense in which any kind of rule
or canon, whereby actions are framed, is called a law. Both kinds of
rules have this in common, that they direct things or persons towards
the end for which they are created.
Before we learn from Domat how the two fundamental laws given
to us in the Gospel are derived from the end of man's creation, it will
be useful to see how Pufendorf and Grotius have deduced the origin
of law from the nature of man.
The former examines very judiciously the question, whether it would
be consistent with the nature of man to live without any law. q
The question arises thus. As God has given free will to men, that
is to say, the faculty of bringing their minds, by an interior movement,
n Pufend. Dr. des Gens, trad, par Barbeyrac, Liv. 2, ch. 1, 5.
Suarez, De Leg. lib. 1, cap. 1, $ 1. And see Hooker, Eccles. Polit. book 1,^3.
P Suarez, ubi supr. et lib. 2, cap. 3, 12.
J Pufend. Dr. des Gens, 1. 2, ch. 1 ; per tot. Grot. D. de la G. & de la P. 1. 1,
Disc. Prelim.
THE ORIGIN AND FOUNDATION OF LAW. 17
to whatever they approve, and rejecting the contrary, it has been
doubted whether it would not have been conformable to the goodness
of the Creator to leave them in the full enjoyment of their liberty of
will. Man is gifted with a greater power of free will than any other
animals possess, and yet he is fettered on all sides by obligations, and
is therefore less free than they.
The answer to this difficulty is in the proposition, that liberty with-
out limit would be not only useless, but also pernicious to human
nature ; and that therefore our own interest requires that our freedom
should be restricted by some law. This principle is also important as
giving a clue to the question, how far free-will may reasonably be left
without bridle.
Suarez r accordingly shows that law is necessary. He argues that
law is not absolutely necessary in itself, because God does not require
law, and a law supposes something created, to be governed thereby.
And a law, properly so called, supposes the existence of a rational crea-
ture, because it must be imposed on free will and free acts. But he
.concludes, that assuming the creation of rational beings, a law is not
only useful but necessary to direct them to good and restrain them
from evil, and that they may live in a manner conformable to their
nature. Man is an intellectual creature and has a Superior, under
whose providence and rule he is placed, and being intelligent, he is
capable of moral government; therefore, Suarez argues, he must be
subject to the will of that superior whereby he is governed by law.
With regard to animals, their condition is very inferior to that of
man, and they can be subject to no law, properly so called, in their
relations with each other or with man, and thus they have liberty
independent of law. The reason is, that they have not souls capable of
perceiving and knowing right or obligation. 5
There is, however, a law of Ulpian in the Pandects where he speaks
of a natural law common to men and all animals : " Jus naturale
est quod natura omnia animalia docuit. Nam jus istud non humani
generis proprium sed omnium animalium quce in terra, quce in mari
nascuntur, avium quoque commune est. Hinc descendit maris atque
' fcemince conjunctio quam nos matrimonium appellamus: hinc liberorum
procreatio, hinc educatio : vidimus etenim castera quoque animalia
feras etiam istius juris peritia censeri." ' And he then goes on to say
that the jus gentium differs from natural law, because it is exclusively
belonging to mankind ; that jus gentium is the true natural law.
This celebrated text of the Pandects requires some explanation here.
r Suarez, De Leg. lib. 1, cap. 3.
Pufend. lib. 2, cli. 1, 4.
' L. 1, 3, ft'. De Just, et Jar.
18 THE ORIGIN AND FOUNDATION OF LAW.
Savigny observes," that, in the writings of the Roman jurisconsult!,
we find two great divisions of law considered with reference to its
origin. The first is bipartite. It is this: 1st. Jus civile the law
peculiar to the Romans. 2ndly. The Jus gentium, or, Jus naturale
which is common to all men. The second division is tripartite, that is
to say: 1st. Jus civile the law belonging to the Romans. 2ndly.
Jus gentium the law common to all nations; and 3rdly. Jus naturale
the law common to men and to animals. The learned writer is of
opinion that the first of these two classifications is the only rational
one, expressing the true doctrine of the Roman Law, while the latter
is an attempt at a more extensive classification, which has not been
generally recognized, and has had no influence on the doctrines of the
Roman Law.
The Institutes of Gajus throw light on this subject. He represents
the jus gentium as the primitive and most ancient law founded on natu-
ralis ratio." He also calls it jus naturale; and when he speaks of the
natural modes of acquiring property, or the ownership of things, he re-
fers them indiscriminately to jus naturale and to naturalis ratio. y And
the principle laid down by him, (which is also in the English Law), that
the property of the soil carries with it that of the buildings, rests both
on the jus civile and on the jus naturale. And Gajus calls agnation
and cognation " Civilia et naturalia jura." z Thus it appears that
Gajus clearly lays down the bipartite division of law. It is also fol-
lowed by Modestinus, Paulus, Marcian, Florentinus, and Licimus
Rufus, as Savigny shows. a
The tripartite division is explicitly taught by Ulpian, Tryphoninus,
and Hermogeniamis. Savigny is of opinion that it rests on the fol-
lowing hypothesis. There was a time when the mutual relations of
men were only those which exist among animals. Then came the
period when civil government, slavery, private property, and obliga-
tions were uniformly established among men. Later still, the modifi-
cations of general law ; and new institutions formed in each state
peculiar laws.
This hypothesis is evidently not founded in fact, at least so far as
regards the first period, and it is useful only to explain the legal doc- *
trine of Ulpian. Donellus says that Ulpian speaks by way of figure
of speech, meaning, not that there can be any law among beasts (who
* Savigny, Traite du Droit Rom. torn. 1, Appendice 1.
* Gajus, 1, 1 ; 1. 9, ff. De Just et Jur. ; I. 1, ff. De Adquir. rer. domin.
y L. 1, ff. De Adquir. rer. domin. ; Gajus, 2, ^ 65, 73.
* L. 2, ff. De Superfic.; Gajus, 1, 158.
a Savigny, ubi sup. p. 407.
THE ORIGIN AND FOUNDATION OF LAW. 19
are incapable of obligations), but that there is among them a similitude
of law in the relations which are governed by instinct and natural im-
pulses, and so resemble those of mankind. Savigny defends Ulpian
in the same manner. He lays it down that every legal relation has for
its basis some fact on which it arises, and to which the law applies.
In most legal relations, the given matter, that is to say, the fact, such
as ownership and contracts, is not so necessary that the human species
could not subsist without it. But with regard to those relations which
are common to mankind and to animals, it is different, for they are
necessary to the continuance of the human race. Therefore those legal
relations are common to men and to animals in a certain sense. This
view of Ulpian's doctrine gives it its true use and value. Savigny
observes that the Roman jurisconsulti were no doubt led to this notion
by seeing that certain institutions belonging in common to all nations
must be regarded as more or less natural. But he rejects the tripartite
division as a mere individual theory of Ulpian, while that of Gajus is
the true principle of Roman Law.
In substance Cujacius does not differ from Savigny. He says that
many things which men do under the guidance of reason, and obeying
an obligation of natural law, are done by animals by instinct and
natural impulse, and that in this sense there is a law common to men
and beasts. The same doctrine is taught by the great canonist Reif-
fenstuel. d And, indeed, Cujacius carries the doctrine rather further by
citing an observation of Polybius, that even monarchy (which is a part
of ihe jus gentium) is common to men and some beasts, 6 for many
animals have their leaders whom they obey. f
This explanation of Ulpian's doctrine respecting natural law is im-
portant, not only because the subject has been much considered by the
learned, but as illustrating the value of the method introduced by
Cujacius, who is not satisfied with taking the body of civil law com-
piled by Justinian as a whole, but investigates the separate texts of
which the Pandects are composed, and so discovers the opinions held
at different times by the Roman jurisconsulti. And we shall thereby
be assisted in the exposition of the origin of law, to which I now re-
turn.
St. Thomas Aquinas teaches us that, though the ultimate end of the
Divine government of the world is exterior to the world, yet its irame-
f Donelli Comment, lib. 1, cap. 6, 6.
d Reiffenst. Jus Can. Univ. proem, parag. (chapter) 1, num. 11. And see Scbmatz-
grueber, Jus Eccles. Univ. torn. 1, proem. ^ 2, num. 46.
e L. 5, ff. De Just, et Jur.
1 Cujac. Op. torn. 7, col. 16, 17. See the same idea in St. Thomas Aquin. De
Regim. Princip. 1. 1, cap. 12.
c2
20 THE ORIGIN AND FOUNDATION OF LAW.
diate object is the order of things therein; from whence, indeed, he
argues that there must be a Divine Providence. And he observes that
inanimate things are governed without their exercising judgment, that
is to say, by natural causes and effects ; and brutes, though they have
a species of judgment, are governed by natural instinct. But mankind
have judgment and free-will, liberum arbitrium; and their actions, per-
formed in the exercise thereof, are good when directed to the true end
of man according to reason. g
Pufendorf accordingly argues that the dignity of man, above other
animals, requires that he should conform his actions to a certain rule,
without which there would be no order or fitness in mankind. 11 In fact,
man would be an exception to the general principle laid down by St.
Thomas as to the immediate end of the Divine government, for neither
physical causes and effects nor instinct could suffice to regulate his
actions.
This is evident from the mental and physical powers of doing evil,
in which man surpasses all other animals the number of his passions
the versatility of his mind and the prodigious variety of character
and disposition among men, which must cause horrible confusion
unless brought to a certain harmony by laws : and that variety itself,
duly regulated and controlled, becomes both beneficial and ornamentaj
to human society.'
These considerations show the necessity of laws as a portion of the
Divine Polity, from whence we must infer that law, in its most ex-
tended sense, including both lex and jus, springs from the design and
will of the Creator ; and this Hooker has learnedly and splendidly
shown with other things in the first book of his Ecclesiastical Polity.
But here we must take care not to fall into the errors of which
Savigny writes as follows :
" In order that free creatures placed together in the world may
mutually assist and not injure each other in the development of their
action, a line of demarcation must circumscribe limits within which the
parallel development of individuals may find independence and secu-
rity. The rule which fixes those limits and preserves that freedom of
action is right or law"
" Some writers endeavour to reach the idea of law by an inverse
process, and place its fundamental basis in injustice. According to
them injustice is the violation of freedom by an extraneous power,
which is an obstacle to the development of man and the evil which
requires a remedy ; and, in their opinion, law is that remedy. Some
* Div. Thomas Summa, quaest. ciii. art. 1, 2; quaest. Ixxiii. art. 1.
h Pufend. Droit des Gens, 1. 11, ch. 1, 5.
1 Pufend. ibid. ^ 6, 7.
THE ORIGIN AND FOUNDATION OF LAW. 21
make it derived from a reasonable agreement of individuals who sacri-
O
fice a part of their liberty to secure the rest. Others deduce it from
an exterior force alone able to restrain the will of individuals naturally
inclined to a state of war. These writers base their doctrines on a
negation, as if disease ought to be the point of departure for studying
the laws of life. According to them, the State is a coercive power
which might be dispensed with if the will of all men were regulated
by justice. But, in my opinion, the State would, under such a con-
dition of things, shine with augmented grandeur and power." k
Thus Hooker shows that the angels are in perfect obedience to the
Divine Law, 1 and this St. Thomas Aquinas assumes throughout his
disquisitions on their nature and attributes. The reasoning of Savigny
is confirmed by Pufendorf 's doctrine, that the weakness of the indi-
vidual man with reference to his wants shows the necessity of law.
No animal perhaps is so miserable as an insulated man in what has
sometimes erroneously been called a state of nature that is to say, a
savage state. And even if we suppose a family living together in that
state, their condition would evidently be more disadvantageous than
that of animals, because their wants are greater, and their means of
satisfying those wants quite insufficient ; m and, indeed, this shows
that such a condition is not the natural state of man, that is to say, it
is not a state in conformity with his nature.
That nature evidently requires what is called the social state, because
the nature of man, as a reasonable creature with an immortal soul,
points it out as the state for which he was intended by his Creator. 11
In this state alone can mankind satisfy all the wants which arise from
the dignity of their nature. Now, unless we suppose the human race
to consist of insulated individuals, which is absurd, men must be placed
in various relations with each other ; and those relations generate obli-
gations regulated by law or right; and in the social state those rela-
tions, and the rules governing them, must be exceedingly complicated
and numerous, including the duties of the man and the citizen. It is
indeed impossible to conceive the social state fully accomplishing all
the purposes for which it is intended, unless the actions of individuals
are directed by rules of conduct which constitute law. Therefore,
k Savigny, Traite de Droit Rom. torn. 1, pp. 326. 327; liv. 2, ch. 1, 52.
1 Hooker, Eccles. Polit. b. 1, 4.
m Pufend. Droit des Gens, I. 11, c. 1, 8. And see St. Thomas Aquinas, Opusc.
De Regimine Principum, lib. 1, cap. 1.
n See my Readings at the Temple, p. 7. St. Thomas Aquinas says, " Videtur
autem ultimus finis esse multitudinis congregatse, vivere secundum virtutem. Ad hoc
enim homines congregantur ut simul bene vivant, quod consequi non posset unus-
quisque singulariter vivens. Bona autem vita est secundum virtutem. Virtuosa
igitur vita est congregations humanse finis." De Regim. Princip. lib. 1, cap. 14.
22 THE ORIGIN AND FOUNDATION OF LAW.
Hermogenianus, in the Pandects, describes civil society and the
necessary transactions among men, as springing from jus gentium, by
which he means natural law; which, in the words of Gajus natu-
ralis ratio inter omnes homines constitute? Law is not intended
merely to restrain man from injustice and war, but to direct human
society to the common welfare ; and its origin and use are to be found
in the very nature of man impressed upon him by his Creator. Law
is not merely delictorum coercitio, but commune proeceptum, virorum
prudentium consultum.^
So Cardinal Contarini, in his work on the Constitution of Venice,
says, that the commonwealth should be governed by something more
excellent than the will of man, that its objects may be obtained, and
therefore, by Divine council, the government of men is committed to
laws/
CHAPTER III.
THE ORIGIN AND FOUNDATION OF LAW.
SOME may perhaps think, that instead of commencing with the foun-
dations of legal philosophy, we should have proceeded in these Com-
mentaries at once to the practical part of Public Law, giving a sum-
mary of rules and authorities applicable to different events and affairs,
with reasons and consequences. The course which we have adopted
requires some explanation.
Even in mathematics, axioms are laid down as first principles from
whence truths are demonstrated. But the use of first principles is as
important in the study of moral sciences, such as ethics and law, as in
mathematics. Burke observes, that the excellence of mathematics is
to have but one thing before you, but he forms the best judgment in
all moral disquisitions who has the greatest number and variety of
considerations in one view before him, and can take them in with the
best possible consideration of the mesne results of all. a It follows
that those sciences are necessarily of a very complicated nature, and
every proposition that is not a primary truth depends on reasoning
L. 5, ff. De Just, et Jure.
P L. 9, ibi.
* L. 1, ff. De Legibus.
r Delia Repub. e Magistr. di Venetia del Card. Contarini, lib. 1, pp. 22, 23.
Burke, Speech in the House of Commons, May 8th, 1780.
THE ORIGIN AND FOUNDATION OF LAW. 23
which connects it with a multitude of rules and doctrines derived from
fundamental principles which are the basis of the entire science : and,
indeed, the moral sciences are so intimately connected together that it
is often difficult to show their various points of contact and separation.
Law must be considered as one single science, though it has many
different branches, because they are all connected together, and all
depend directly or indirectly on certain principles from whence the
vast multiplicity of laws, rules and doctrines are deduced.
It follows from these characteristics of moral science; and law espe-
cially, that what is commonly called the practical ought to be inse-
parable from the theoretical part ; and it is difficult to obtain a
masterly knowledge of any considerable branch of law, or to arrive at
a tolerable proficiency in general jurisprudence, without a careful in-
vestigation of fundamental principles and doctrines which are the
primordia of law.
So the Chancellor D'Aguesseau advises his son to go to the very first
principles of law, and examine the grounds of natural law. " You
perhaps thought," says the Chancellor, " that when you finished the
study of philosophy you had taken leave of metaphysical investiga-
tions. But you will return to them when you examine the origin of
natural law and its consequences, and all those matters which may be
called the metaphysics of jurisprudence. I should not, however,
advise you to devote your time to that subject, if its study were
calculated more to adorn the mind than to form it. But you will find
that almost all the principles of the most venerable laws, that is to say
those which are universal and immutable, depend thereon, as so many
natural consequences derived from that original justice of which God
is the source, and the first notions whereof He has engraven in our
very existence. You must, therefore, make the metaphysics of law a
study preliminary to every other study of jurisprudence. And I
advise you for that purpose to read the first book of Cicero de
Legibus, where he examines the first principles of all laws." b And
then the Chancellor particularly recommends the careful and profound
study of Domat's Treatise on Laws.
This is the opinion, not of a professor or a mere writer on law, but
of a great judge and statesman actually engaged in the administration
of justice, who knew by experience the importance of combining prac-
tical with theoretical science. And Savigny, in his History of the
Roman Law, c shows that this combination caused the success of the
first school of civilians the Glossators. He observes that the dis-
tinction between legal theory and practice may be traced to those
b D'Aguesseau, CEuvres, torn, i, pp. 270, 271, Prem. Instruct.
c Savigny, Hist, du Droit Rom. torn. 3, ch. xli.
24 THE ORIGIN AND FOUNDATION OF LAW.
times, and that the life or death of both depends on the spirit govern-
ing the partition of those two branches of science. Considered in a
purely theoretical point of view the glossators might have derived
nothing from their labours beyond exercise of the mind, but the active
part which they took in judicial and political affairs saved them from
that danger. When in the middle of the thirteenth century the sci-
entific spirit of legal studies was extinguished, the progress of science
became impossible, and it fell into a sterile condition. This shows
how important the science of law must be to its practice.
To every branch of public law these observations apply with very
great force. Public is of a more generalizing nature than private law,
because it regards wider interests and rights, including what relates to
the common welfare of the state and of society ; and these matters
flow from certain principles to which the social state and human go-
vernment, and the various institutions and laws arising therefrom,
may be traced. The reasons of all these things cannot be clearly
understood, unless the fundamental doctrines from whence they di-
rectly or indirectly spring are first studied.
Therefore the doctrines regarding the origin and nature of law are
material to the science of Public Law, and indeed they are the very
root of all jurisprudence. They will give us a broad view of legal
science, without which its details cannot be so completely or easily
mastered.
We have seen, as St. Thomas Aquinas teaches, that the eternal law
directs all things towards their proper end. And thus Domat lays it
down, that to discover the first principles of laws, two primary truths
should be laid down ; first, that the laws of man, that is to say, those
whereby he is governed, are the rules of his conduct ; and, secondly,
that his conduct, directed by those rules, consists of the steps which
he takes towards the end for which he was created. d
And here we find a connection between law and theology ; because,
as man has an immortal intelligent soul, his end cannot have reference
solely to his existence here, but must relate to his moral nature and
immortality.
Domat, whose words derive additional authority from the fact that
they were written under the advice of the Chancellor D'Aguesseau,
continues thus : " Among the objects which offer themselves to man
in the whole world, even including his fellow creatures, none of them
is worthy to be his end. With regard to himself, so far will he be
from finding his happiness there, that he will see nothing but the
seeds of misery and death. And round about him, if we go over
d Domat, Traitd dea Loix, chap. 1, 3.
THE ORIGIN AND FOUNDATION OF LAW. 25
the whole creation, we shall find nothing there that is fit to be given
as an end either to his mind or to his heart. And the things which
we see are so far from being our end, that we are theirs, since they
are made for us. e And we see plainly that everything there is so
little worthy both of our mind and of our heart, that as for the mind,
God has hidden from it the knowledge even of creatures beyond
what regards the ways of using them. And the sciences which apply
to the knowledge of their nature, discover nothing further in them
than what may be of use to us, and grow darker and less intel-
ligible the more they attempt to penetrate into that which is not
required for our use/ And as for the heart, the whole world is not
capable of filling it, and it was never able to make any one happy.
In short we must learn from Him who has made man, that it is He
alone who is both the beginning and the end of man, g and God only
can fill the infinite vacuity of that mind which he has made for
Himself."
" It is therefore for God himself that God has made man. It is
that he may know Him that He has given him understanding. That
he may love God, He has given him a will. And it is by the ties of
this knowledge and of this love that He would have men unite them-
selves to Him, that they may in Him find their true life and their
only happiness." h
We find the same doctrine briefly stated by St. Thomas Aquinas in
his treatise De Regimine Principum, where he says, that all things are
ordained to a certain end ; and so man has an end to which all his life
and all his actions are directed, because he is an intelligent agent, and
therefore capable of working out his own end. 1
From this argument, Domat deduces the first Law of Man, which is
laid down in the Gospel as the first and great commandment, that is
to say, the Love of God. k
This, he says, is the first law, which is the foundation and first prin-
ciple of all others. For this law, which commands men to search after
and to love the Sovereign Goou, being common to all mankind, it
implies a second law which obliges them to unity among themselves,
and to the love of one another. But, he observes, there is no law com-
manding man to love himself, because no one can better love himself
than by keeping the first law and regulating his life thereby.
e Deut. iv. 19.
f Eccles. iii. 22.
z Rev. xxii. ; Isai. xli. 4.
h Prov. xvi. 4 ; Isai. xliii. 7 ; Deut. xxvi. 19.
' Div. Thorn. Aquin. Opusc. De Regimine Principum, lib. 1, cap. 1.
k Domat, Tr. des Loix, cap. 1, 6.
26 THE ORIGIN AND FOUNDATION OF LAW.
" It is by the spirit of these two laws," continues the learned civilian,
" that God designing to unite mankind in the possession of their com-
mon end, bound them together in the use of the means conducting
them thereto, and then has made this union, which is to be their hap-
piness, to depend on their use of the first law which is to form their
society." That is to say, their union in the love of God is the source
and principle of their union among themselves.
And in order to unite them in this society or social state, God has
made it essential to their nature. And as we see in the nature of man
his destination to the Sovereign Good, we also discover in it his des-
O '
tination to society, and the several ties which on all sides engage him
in it; and we see that these ties, which are consequences of the desti-
nation of man to the exercise of the two primary ^laws, are at the
same time the foundation of the particular rules of all his duties, and
the fountain of all laws. 1
Domat notices the objection, that society, though it ought to be
grounded on those two primary laws, does nevertheless subsist, not-
withstanding that their spirit has apparently little influence over it.
He very judiciously answers, that though men have violated these
fundamental laws, and though society be in a state different from that
which ought to be raised on them, yet it is nevertheless true that these
Divine Laws, which are essential to the nature of man, remain immu-
table and have never ceased to be obligatory. And it is likewise
certain, as will be shown hereafter, that all the laws which govern
society, even in its actual condition, are consequences of the two pri-
mary laws. And therefore it was necessary to establish these first
principles.
There is a remarkable agreement between the two primary laws
laid down by Domat, and the three prcecepta of Ulpian, which we
must now examine. Ulpian thus lays down three primary laws : Juris
prcecepta sunt hac: honeste vivere, dlterum non Itedere, suum cuique
tribuere. Savigny, commenting on this law, says, that honeste vivere
is the maintenance of the moral rectitude of the individual, neminem
Icedere is the observance due to other men, and suum cuique tribuere is
the recognition of the rights vested in others. These, he observes, are
not properly rules of law, but principles of morals proper to found
rules of law. Thus the third precept, suum cuique tribuere, is evi-
dently the moral law of justice. And many of the most important
laws are derived from the second precept, neminem Icedere. And the
first precept, honeste vivere, is also the source of more than one rule of
1 Domat, ubi sup. 8. And see Zallinger, Instit. Jur. Natur. et Eccles. 1. 1, c. 20,
22.
> L. 10, 1, ff. De Just, et Jur.
THE ORIGIN AND FOUNDATION OF LAW. 27
law, and is therefore a real juris prceceptum in the sense understood by
Ulpian. From it flow the laws protecting morals, such as those
whereby contracts are rendered void by an immoral consideration.
With the same principle are also connected the numerous rules of law
requiring sincerity and honesty in contracts, and also the extensive in-
fluence exercised by the law regarding fraud over matters of private
law. Thus the three prsecepta of Ulpian are not rules of law, but
general principles calculated to form categories of rules of law.
" If," says Savigny, "the three praecepta are to be classified accord-
ing to their essence, the first must be placed at the head of them, as
the most profound, and as containing the germ of the two others.
The second has an exterior character still more visible in the third.
Thus, the two latter may be obeyed without reference to the morality
of the agent. But if they be considered with reference to their legal
importance, the result is opposite. The third is the most fertile source
of rules, then comes the second, and lastly the first. This arises
from the nature of law, which is required to regulate the outward rela-
tions of common life."
Now the first precept, honeste vivere, bears an analogy to the first
law laid down by Domat, the love of God, which includes specially all
those obligations which do not directly regard other men. That pre-
cept may be considered as the pagan version of the Christian doc-
trine, which makes duty to God the root of all law. But, as it does
not directly regard obligations towards other men, it produces fewer
legal results than the other two. They are included in Domat's second
primary law, which comprises man's duty to his neighbour. But, as
Savigny judiciously observes, the first precept contains the germ of
the other two ; and from the first law of Domat, the obligatory force
of the others and of all laws is derived. This is well shown in a cele-
brated letter of Barbeyrac to Leibnitz, and, indeed, it appears from
the description of natural law given by Grotius, who says, that it con-
sists of certain principles of right reason, which enable us to know
that a certain action is right or wrong according to its congruity or in-
congruity with the reasonable and social nature of man, and conse-
quently that God, who is the author of nature, commands or forbids
that action. Grotius thus reduces the obligation of natural law to
the will of and duty to God.
Barbeyrac argues thus: Either the obligatory force of the rules
of justice among men is absolutely independent of the divinity and
founded solely on the nature of things, like principles of arithmetic
11 Savigny, Traite du Droit Rom. torn. 1, p. 4024.
Grot. Droit de la G. liv. 1, cli. 1, 10.
28 THE ORIGIN AND FOUNDATION OF LAW.
and geometry, or it is not founded on the nature of things. p ' Now
the nature of things cannot by itself impose on us an obligation pro-
perly so called. If there be a given relation of equality and propor-
tion, of fitness or unfitness in the nature of things, that only obliges
us to recognise such relation. Something more is requisite to restrain
our freedom, to oblige us to regulate our actions in a certain way.
Reason considered by itself, and independently of the Creator who
has given it to us, cannot place us under the moral necessity of follow-
ing those principles, though it may approve of them as founded on
the nature of things. For our passions oppose those abstract prin-
ciples, by offering to us objects which, if less in conformity with fit-
ness, are more attractive to our feelings ; and apart from an exterior
power, a being above us, there is nothing obliging us to resist them.
Reason, it will be argued, shows us clearly that by observing the
rules arising from fitness founded on the nature of things, we shall
act in a manner more conformable to our interests than we should do
by being guided by our passions. But the question is one not of
utility, but of duty and obligation. No doubt our interests require,
upon the whole, that we should follow the dictates of reason. But is
not every one at liberty to renounce an advantage, provided there be
nothing to prevent him from doing so ? Thus by not conforming to
fitness founded on the nature of. things, a man would only act impru-
dently, and imprudence is not here opposed to any duty, for we have
to discover whether there be any duty.
But it is moreover very material to observe, that our reason, con-
sidered apart from all dependence on its Creator, from whom we hold
it, is in substance nothing but ourselves. Now no one can impose
upon himself an obligation towards himself, obliging him to act or not
to act in a particular manner. Hence the common maxim of law
debitum et creditum non possunt concurrere in eadem persona. And in
the civil law a debt is extinguished by confusion when this concurrence
takes place. Nemo potest sibi debere ; and therefore the concurrence
of right and obligation in the same person extinguishes both. q The
same legal doctrine may be seen in Littleton, sects. 222, 223, 224, &c.,
where he treats of the extinction of rents and services. Its reason is
that no necessity to do or not to do any act can exist, if it be subject
to the will of persons affected by such supposed necessity. Now
Justinian correctly defines an obligation as vinculum juris quo neces-
P Jugement d'un Anonyme, etc., printed with Pufendorf 's Devoir de 1'Homme et du
Cit., translated by Barbeyrac. And see Grot. Droit de la Guerre, 1. 1, ch. 1, 10,
note 4, by Barbeyrac : and Barbeyrac 's Pref. to Pufendorf, Dr. des Gens, 5.
Voet. ad Pand. lib. 46, tit. 3, 18; Bowyer, Com. on the Modern Civil Law, 260.
THE ORIGIN AND FOUNDATION OF LAW. 29
sitate adstringimurJ And if the person on whom that necessity is
imposed be the imponent, he will be able to relieve himself from it
whenever he pleases.
Barbeyrac concludes that even the maxims of reason are not by
themselves obligatory, however agreeable they may be to the nature
of things, until we discover the author of the existence and nature of
all things. The question remains to be considered, whence comes
obligation ? Is it from the will of God, or from any other thing in
Him?
It is, in the first place, impossible to form a just idea of God with-
out recognizing his right to limit at pleasure the faculties which He
has given to us. And it is clearly God's will that men should follow
the light of reason, as that which is most excellent in them, and can
lead them to their natural destination. And in His will we find all
that is requisite to constitute an obligation, since it is the will of the
Master of all mankind, and a will ever in accordance with the percep-
tion of the divine nature. Why then seek any other principle than
this, which is comprehensible to all men, and so naturally arises from
the relation between the Creator and the creature ?
Choose any other attribute of the Divinity and view it apart from
His will. You will not find in it a more solid foundation for obliga-
tions than in the nature of things. If, for example, it were possible to
conceive, after the fashion of the Epicureans, a God indifferent whether
men act or no according to the nature of things and their own nature,
the contemplation of such a Divinity with all infinite perfections
would only furnish an example which does not by itself produce a
necessity to imitate it. And if it be not the will of God that all His
rational creatures should follow the rules of justice with each other,
how can we conceive the existence of divine justice ? Can we believe
the Creator to be just, if it be indifferent to Him whether men are so,
and if He do not impose on them the obligation of observing justice.
And the divine will cannot be made a mere accessory to an already
existing independent obligation. If this were so, the supreme autho-
rity of God would be restricted to things in themselves indifferent.
And thus no more force would be attributed to the will of God with
regard to the rules of justice than to that of a prince, a father, a
master, or any other human superior, who wishes his dependents to be
honest men. Moreover, we commonly find the practice of duty and
virtue described in Holy Writ as doing the will of God.*
With these arguments, Barbeyrac very conclusively establishes the
origin and nature of the obligatory force of natural law, and shows
r Instit. lib. 3, tit. 14, pr.
Matt. v. 48 ; Luke, vi. 36.
30 THE ORIGIN AND FOUNDATION OF LAW.
how law derives its obligation the vinculum juris from the primary
fundamental law of the Gospel prescribing our duty to God.
We come now to a part of the subject in which the difficulty arises
that our language does not contain any word answering to the Latin
word jus, as contradistinguished from lex. That distinction is, how-
ever, quite necessary for comprehending the civilians and jurists.
St. Thomas Aquinas says, jus non est lex, sedpotius id quod leye prce-
scribitur, seu mensuratur. Law lex is a rule of conduct prescribed
by the will of a superior, whereby he imposes on those who are subject
to him, the obligation of acting in a particular way, which he pre-
scribes to them.* Thus lex is the law looked upon as a rule prescribed,
that is to say, extrinsically, and jus is the law considered as a prin-
ciple, and intrinsically, with reference to what it prescribes, and what
particular obligations it creates. And therefore the word jus is also
used (as Grotius shows) to signify a moral quality belonging to a per-
son, by virtue of which he may lawfully have or do certain things, that
is to say, a right."
We must now consider the foundations of law, taken in the sense of
the word jus.
Grotius lays it down that natural law consists in certain principles
of right reason, which teach us that an action is morally right or
wrong, according to its necessary conformity with, or repugnance to,
a rational and social nature, and that consequently God, who is the
author of nature, commands or forbids that action. 1
We have to investigate the first part of this definition, the principle
on which the distinction between those two classes of actions rests,
that is to sayjws the law viewed intrinsically, apart from the com-
mand of a superior, whereby it is made obligatory.
Gajus agrees with Grotius in holding that natural law consists of
principles of reason. y He lays it down in a very celebrated law in
the Pandects, that all nations, governed by laws and morals, make
use partly of their own peculiar laws, and partly of laws common to
all men. For, he continues, the law which each nation constitutes for
itself is proper to that city, and is called jus civile. But that which
natural reason has constituted among all men is observed everywhere,
and is called jus gentium, because all nations use it. We shall see,
hereafter, the relation between civil and natural law, when we come to
the distinction between arbitrary and immutable laws.
Grotius cites a passage of Carneades and of Horace, calling utility,
1 Pufendorf, Devoir de 1'Homme et du Cit. 1. 1, ch. 11, 11, not. Barbeyrac.
* Grot. Dr. de la G. 1. 1, ch. 1, 4.
* Ibid. 10.
* L. 9, ff. De Just, et Jur.
THE ORIGIN AND FOUNDATION OF LAW. 31
as it were, the mother of justice and equity. And he observes, that
this is not strictly correct, for human nature itself is the mother of
natural law, because it would lead us to seek intercourse with our
fellow creatures, even if we were in want of nothing. And even civil
or municipal law draws its obligatory force from natural law, because
the duty of obeying municipal laws is essential to the existence of civil
society, which is an institution prescribed by natural law.
The truth is (as Grotius observes), that utility accompanies natural
law, because the Author of nature has ordained that each individual
shall be weak by himself, and shall be in need of many things, in order
that we may be induced to maintain the social state. And so the prin-
ciple of utility has given occasion to civil laws ; for the association
of men in civil society, and their submission to a common authority,
were originally commenced with a view to some advantage.
Grotius accordingly thus distinguishes between the sciences of poli-
tics and law. " I have abstained from touching what belongs to
another subject, i. e. giving the rules of what is expedient, for that
belongs to a peculiar science, namely, politics. Aristotle correctly
treats that subject by itself, unmixed with any other, instead of which
Bodinus often confounds it with the science of law." z And Barbeyrac
observes, on this passage, that though sound policy sanctions nothing
but what is just, yet justice and utility are two separate and distinct
things, even in politics. Thus, to undertake war legally, there must
be a just cause of war. But however just the cause, it may be highly
injurious to engage in war, and to do so would be an error in politics.
This doctrine is not inconsistent with the maxim of Cicero. Eadem
utilitatisque honestatis est regula* for his real meaning is, that nothing
is truly and solidly useful except what is just. And so far from sanc-
tioning the views of those who hold utility to be the test of justice,
he maintains that justice and morality are the real test of utility.
Thus he establishes one rule, namely, that of right and wrong, so far
at least, that nothing is to be done on the plea of utility contrary to the
dictates of justice and morality.
Cujacius, in commenting on the law, Omnes populi, b which we have
just cited, says, that Epicurus did not, likeGajus, deduce the law com-
mon to all men from nature, but drew it from the principle of utility or
advantage. And he adds, " We follow the Stoics, who derive that law
from nature, and deduce the law proper to each city, that is to say,
civil or municipal law, from common utility ; that is to say, what is
useful and advantageous to the community."
z Grot. Dr. de la G. Disc. Prelim. 59.
8 Cic. De Offic. lib. iii. c. 18.
b Cujac. Op. torn. 7, col. 48 ; Donelli Comment, lib. 1, cap. 6, 10.
32 THE ORIGIN AND FOUNDATION OF LAW.
Thus Donellus teaches, that naturalis ratio, of which Gajus speaks,
is the Law of God written, as St. Paul says, in our hearts; and that
this is evident from the mere fact that all men bear witness to this
law; for when they offend against it themselves their conscience
accuses them, and they always condemn others so offending and hold
them deserving punishment. 11 It would indeed be absurd to say, that
whereas the Creator gave us reason and a sense of right and wrong,
requiring of us the performance of certain duties towards Himself and
to our fellow men, yet we are unable to perceive those duties by the
use of our reason. Thus we know that certain acts are wrong, not
merely because they are contrary to the rules of utility, but because
they are violations of naturalis ratio, that Law of God written, as St.
Paul says, in our hearts.
All these legal doctrines will become clearer when we pursue our
examination of Domat, who looks upon them from a somewhat differ-
ent point of view to that of Grotius and Pufendorf.
We have examined them hitherto principally with reference to cer-
tain questions which have obtained much celebrity among the learned.
And in doing so we have noticed several famous laws in the Pandects,
on which much has been written.
In the next chapter, the systematic explanation of the way in which
different classes of laws are deduced from the two primary laws will
be continued.
CHAPTER IV.
THE ORIGIN AND FOUNDATION OF LAW. PRIMARY AND SECONDARY
NATURAL LAW.
WE have shown the origin of the first principles of law from the
two prime truths, that the laws of man are the rules of his conduct,
and that his conduct is nothing else but the steps which he takes
towards his end. And then, after demonstrating the true end of man
by taking a view of his nature, we have laid down, under the guidance
of Domat and'the Chancellor D'Aguesseau, the two primary laws, taken
c Rom. ii. 14, 15.
d Donelli Comment, lib. 1, cap. 7, ^ 2.
PRIMARY AND SECONDARY NATURAL LAW. 33
from the Gospel, prescribing the duty of man to God and to his neigh-
bour, from whence hang all laws. 6
This system agrees with divers texts in the title of the Pandects De
justitia ct jure, and with the doctrines of commentators and jurists,
who have nevertheless looked on the origin of law from a somewhat
different point of view. So we have seen that Ulpian, in the tenth
law of the title just referred to, lays down three precepts, which bear
an analogy to Domat's two primary laws. And Grotius and Pufen-
dorf both confirm the doctrines of Domat, though they do not trace
the origin of law quite so high as he does, because they do not derive it
from primary laws springing immediately out of the will of God mani-
fested in the Creation, and written, as St. Paul says, in the heart of
man. In St. Thomas Aquinas we find a more direct confirmation of
Domat's principle, since he distinctly teaches, that all things are or-
dained to an end, and that so man has an end to which his whole life
and all his acts are directed, because he is an intelligent ao'ent. to whom
* O ^J *
it is proper to work out his end. And then St. Thomas establishes
the social nature and destination of man, calling him animal sociale et
polilicum. And he shows the true scope of that nature and destina-
tion to be something beyond temporal utility and convenience. f Now
the laws of mankind, whereby they are under Divine Providence
governed, are evidently the rule of their conduct with reference to their
end or ultimate destination. In this sense we may accept the defini-
tion of Ulpian Jurisprudentia est divinarum atque humanarum rerum
notitia ; justi atque injusti sciential Thus Cujacius, commenting on this
celebrated text, shows it to mean, that jurisprudence is that wisdom,
which by the investigation of things both human and divine determines
the rules of justice. 11
It is true that Voet interprets this text, as referring in part to the
public law of the Romans ; which, as Ulpian says, regards ecclesias-
tical as well as civil matters. Jus publicum in sacerdotibus, in sacris,
in magistratibus consistit. 1 But it must also be understood as teach-
ing that jurisprudence, even temporal, is derived not only from human
nature and human affairs by themselves, but from the relation which
they bear to things divine. And we have accordingly shown that the
obligatory force of natural law springs from the Divine Will. And
here we see the connexion between jurisprudence and theology, and
the impossibility of entirely separating those sciences two truths
e Domat, Traite des Loix, 3.
f Div. Thorn. Aquin. De llegim. Princip. 1. 1, cc. 1, 14.
8 L. 10, ^2, De Just, et Jur.
h Cujac. Op. torn. 7, col. 54.
1 Voet ad Pand. lib. 1, tit. 1, 4, 7; 1. 1, 2, ff. De Just, et Jur.
D
34 THE ORIGIN AND FOUNDATION OF LAW.
on which the soundest jurist*, but especially the canonists, strongly
insist.
The canon law furnishes a remarkable example of the principle re-
ferring law to an ultimate end, which is its essential and fundamental rule.
The canon law is thus defined : Est igitur jus canonicum quod civium
acliones ad finem sterna beatitudinis diriyit.^ Now the canon law,
which is the body of rules provided for the government and adminis-
tration of the Catholic Church, has two objects, an immediate object,
and an ultimate object. The former is the due performance of Divine
Worship and the fulfilment of the other exterior functions and duties
belonging to the Church. The latter is that described in the passage
just cited, namely, the end of the Church itself. And this end or ulti-
mate purpose of the canon law only differs from that whence Domat
deduces the two primary laws, inasmuch as it is more definite and
specific. And the canon as well as the temporal law hangs on
those two primary fundamental laws.
So do we see the beautiful harmony of the parts of universal juris-
prudence, and the way in which they conjoin together for the regula-
tion of human affairs. This indeed is no cause for astonishment,
because man is brought into the world for one end or purpose, as
Domat shows ; and since laws are those rules of conduct whereby he
is directed to that end, they must (though appertaining to different
parts or aspects of human life) partake of the unity of the end itself.
And we cannot conceive the scheme of Divine government apart from
unity of purpose, without forming a notion inconsistent with Divine
perfection, which seems to imply consistency and harmony, generated
by that unity. This idea becomes a very important subject of medita-
tion if we take a comprehensive view of universal jurisprudence as
the aggregate of all those rules and principles whereby mankind are
externally governed under Divine Providence. When we come to
examine the classification of laws, this view of universal jurisprudence
will be clearer. It is sufficient to say here that every law, whatever it
may be, either bears or is supposed and ought to bear some relation,
however indirect, to the fulfilment of the purposes of human society,
and to the ultimate end of that society. The reasons on which dif-
ferent kinds of laws are founded are various. 1 But though municipal
laws may be more or less adapted to the end for which they ought to
be framed ; yet such is the nature which the Creator has given to man,
that all municipal laws not inconsistent with that nature must be con-
sequences, direct or indirect, of the two primary laws. And so Suarez
k Lancelot. Instil Jur. Can. lib. 1, tit.l, 1 ; Reiffenstuel, Jus Canon. Univ. proem.
iii. num. 36 ; Barbosa, Collectanea Doctorum, torn. 5, p. 16, in part 1 Decreti
Distinc. iii. c. 1.
1 See my Readings at the Middle Temple, Reading X.
PRIMARY AND SECONDARY NATURAL LAW. 35
lays it down that all human laws are originally derived, in some way
or other, from divine law, and he cites this fine passage of St. Augus-
tine : Conditor legum temporalium, si vir bonus est et sapiens, legem
aternam consulit, ut secundum ejus immutabiles regulas, quid sit pro
temporejubendum vetandumque discernat. m
It is on this principle that simply human laws are in general bind-
ing on men's consciences, as Blackstone says. We cannot break a
human law without violating a part of the secondary natural law, which
requires us to obey lawful authority, for the maintenance of human
society and the attainment of its ultimate objects. And thus we find
the duty of obedience to the civil magistrate repeatedly laid down in
Holy Writ. This obedience is, no doubt, a general duty, though it
has exceptions in certain extreme cases, where the civil power com-
mands things repugnant to the two primary laws, or forbids acts com-
manded by divine law.
We have now to consider the plan of civil society drawn by Domat
and sanctioned by the high authority of the Chancellor d'Aguesseau."
In the first place civil society is founded on the two primary laws.
We have seen in St. Thomas Aquinas that the social state is designed
to enable man to fulfil his end, that is to say, the purpose of his
creation, more completely than he could do living in a solitary condi-
tion. And in order to unite men in society, God has made it essential
to their nature.
"As we see," says Domat, " in the nature of man, his destination
to the Sovereign Good, so we shall also discover several ties which on
all sides bind him in it ; and these ties, which are consequences of
the destination of man to the exercise of the two first laws, are at the
same time the foundation of the particular rules of his duties, and the
foundation of all laws."
" But before we proceed any further to show the connection which
links all the laws with the two first, it is necessary to obviate the re-
flection, that though society ought to be founded on the two first laws,
it does nevertheless subsist though their spirit has but little influence
on it, so that it seems to maintain itself by other principles. How-
ever, although men have violated these fundamental laws, and although
society be in a state strangely different from that which ought to be
raised on these foundations and cemented by this union, it is still true
that these divine laws, which are essential to the nature of man, remain
immutable and never cease to be binding on mankind. And it is
likewise certain, as will hereafter appear, that all laws which govern
m Suarez, De Leg. lib. 1, c. 3, 17 ; Div. August. De Vera Relig. c. 31 ; Reiffen-
stuel, Jus Can. Univ. proem. 13.
n D'Aguesseau, GEuvres, torn. 1, p. 273.
D 2
36 THE ORIGIN AND FOUNDATION OF LAW.
society, even in its present condition, are consequences of these first
laws. Thus it was necessary to establish these first principles; and
besides, it is not possible to comprehend rightly the manner in which
we see society subsist at present without knowing the natural state in
which it ought to be ; and considering in it the union which the divi-
sions of mankind have broken, and the order which they have dis-
turbed."
" For the purpose therefore of judging of the spirit and use of the
laws which maintain society in its present condition, it is necessary to
draw a plan of this society on the foundation of the two primary laws,
to the intent that we may discover therein the order of all the other
laws, and the connection which they have with the two first. And
then we shall see what method God has taken to make society subsist
in the state in which it is, and among those persons who, not govern-
ing themselves in it according to the spirit of the fundamental laws,
ruin the foundations which He has laid for it."
This passage points out very well the province of jurisprudence to
determine the principles from whence laws are derived, and the way
in which society is founded thereon, though different causes disturb
the effect of the two primary laws, and thereby alter in divers ways
the plan which would otherwise result from them. One great object
of government is to meet and counteract those causes, and this shows
the importance of studying the philosophical part of jurisprudence,
which teaches the true system of laws with reference to the fulfilment
of God's ordinances and the constitution of human society. Moreover,
though those true principles are often disregarded and violated, yet in
the main all society, and the whole system on which the world is
governed, are founded on them, and can be maintained only by their
observance, so that any violation of them necessarily produces incon-
venience more or less prejudicial to the body politic. So St. Augustine,
in his treatise De Civitate Dei, p says: ubi non est vera justitia, juris
consensu sociatus ccetus hominum non potest esse. And he explains that
a commonwealth (Respublica) cannot be without justice, because
the very idea of a commonwealth implies an association of men for
the common advantage, which cannot exist without law and justice.
Thus Cicero says, Non modo falsum esse istud sine injuria non posse,
sed hoc verissimum, sine summa justitia rempublicam regi non posse.
The relation which the state of man in this life bears to the first of
the two primary laws is simple. He is not in possession of the sove-
reign good, but placed here to attain it. And his understanding and
his free will enable him to pursue that object which is the end of his
Domat, Loix Civiles ; Traite des Loix, ch. 1, 8.
P Div. August, de Civit. Dei, lib. 19, cap. 21.
PRIMARY AND SECONDARY NATURAL LAW. 37
creation. And for this purpose his conduct must be in conformity
with the first law commanding the love of God, from whence the
obligation of all other laws is derived. We need not enter here into
any explanation of the truths of religion. It suffices (as Domat ob-
serves) to assume those truths, for the purpose of giving an idea of the
plan of society, because we are considering law as a rule of men's
outward actions. That rule is not however sufficient in itself for the
government of mankind. This is so not only because the government
of men's minds, which are the most excellent part of them, is ne-
cessary even for the purpose of regulating their outward acts, but also
because, as I have already shown, man must be considered with re-
ference to the immortality of his soul even in regard to human govern-
ment. If this be neglected, an imperfect view will be taken of the
scheme whereby Divine Providence intended that the world should
be governed, and the result must be an imperfect plan of social polity.
The truths of religion have an immediate connection with the first
law, which we are considering, and spring from the same source as all
law. But religion regards the interior forum primarily, and looks on
men in their relation to a future existence; whereas the province of
law is the regulation of outward acts in this world, since law is a rule
of conduct, and not of the interior movements of the soul. Though
Ecclesiastical Law regards men as members of the Universal Church,
or in their relation to it, yet the same principle applies that it is a rule
of external conduct. q Thus the common maxim declares Ecclesia
nonjudicat de occultis. And the canonists show that the canon law is
a rule of civil conduct, that is, a rule to direct the actions or conduct of
the citizens of that commonwealth (civitas) of which it is the law,
namely, the Church/
It follows, therefore, that we are here to regard the first law in its
relation to the rules of conduct, that is to say, the laws of the outward
acts of men, whereof it is the source, though it is also a fundamental
principle of religion. There is no difficulty in seeing why law and
religion have that first principle in common. It is because they have a
common object, which is the end for which man was created.
We come now to the second primary law. The various reasons
which have already been explained, showing man's destination for the
social state, lead him to observe that second law. That state is called
by the soundest jurists the natural state of man, because it is the only
condition in conformity with his nature, having regard to his destina-
tion here on earth. And Domat very judiciously observes, that, "As
"> Suarez, De Leg lib. 4, cap. 12, 13 ; Decret. Gratian. Tract. De Pcenit. cc. 14, 31 ;
Can. et Decret. Concil. Trident, sess. xxiv. div. inform, matrim. c. 1.
T Lancelot. Instit. Jur. Can. 1. 1, tit. 1, 1 ; ReifFenstuel, Jus Can. proem 3.
38 THE ORIGIN AND FOUNDATION OF LAW.
to the second law, God has so arranged men among themselves and
adapted the creation to mankind, that the same objects which ought
to excite in them the love of the Sovereign Good, engage them like-
wise to society and a mutual love of one another. For we see no-
thing," he adds, " and we know nothing either within or without man,
but what points out his destination to society."
"Thus, exteriorly to man the heavens, the stars, the light, the air,
are objects which present themselves to mankind as benefits common
to them all, and of which every person has the entire use. And the
things which the earth and the waters bear or bring forth are for the
use of man, but in such wise that no one of them passes to our use
but by the labour of several persons, and thus renders men necessary
one to the other, and forms among them different unions or con-
nections for the purposes of agriculture, commerce, arts, sciences, and
all the other communications which the various wants of life may
require."
This remarkable passage of Domat bears an analogy to the cele-
brated law of Hermogenianus in the Pandects, where he says that from
the jus gentium (which must be understood to mean natural law) are
derived the separation of mankind into nations, the institution of pro-
perty, dealings and commerce among men, and a variety of other
things and obligations except those which were introduced by civil
luw. s All these things arise from the social nature of man, and are
governed by rules deduced from the second of the two primary laws.
" Thus," continues Domat, " within man we see that God has
formed him by an incomprehensible conjunction of spirit and matter ;
and has created him by the union of a soul and a body, in order to
render that conjoined soul and body and that divine structure of
senses and members, the instrument of two uses essential to society.
" The first of these uses is to bind the minds and hearts of men
together by the communication of their thoughts and sentiments.
The second use of the body is that of applying men to all the different
works which God has made necessary for their wants, because it is
for work that God has given us senses and members. And though it
be true that the labours which occupy men are a punishment inflicted
on them, yet it is certain that man is so naturally destined to work,
that it was enjoined to him even in his state of innocence. 1 But one
of the differences between the labours of that first state of man and
those of the present consists in this, that the labour of man in his
state of innocence was an agreeable occupation to him, without pain,
without disgust and without weariness ; whereas our labour is im-
L. 5, ff. De Just, et Jur. * Gen. ii. 15.
PRIMARY AND SECONDARY NATURAL LAW. 39
posed on us by way of penalty." Thus the law enjoining labour is
essential both to the nature of man and to the condition to which his
fall has reduced him ; and this law is also a natural consequence of the
two primary laws. By placing man in society they engage him to
labour, which is a bond thereof, and appoint to each his particular
work, distinguishing by its diversity the different employments and
conditions which should compose society.
" It is thus that God having destined mankind for society has con-
stituted the ties which engage him to it ; and as the general ties which
He makes among all men by their nature and by their destination to
the same end, under the same laws, are common to the whole of
mankind, and they do not constitute in each individual any singular
relation which connects him more with one person than with others,
He adds to these general and common ties, other ties and engagements
O ' O D
of divers sorts. By these He unites men more closely among them-
selves, and determines every one to exercise towards some particular
persons the duties which no one can exercise towards all mankind in
general. So that these engagements are to each as it were particular
laws, defining what the second law requires of him, and which conse-
quently regulate his duties. For the duties of men towards each
other are the effects of that which is prescribed to them by the second
law, according to the engagements under which every man happens
to be.
" These particular engagements are of two sorts. The first is of
those which are constituted by the natural ties of marriage between
man and woman, and of birth between parents and children ; and this
kind of engagements comprehends the engagements or obligations of
relationships and alliances which are consequences of marriage and
birth.
" The second kind of engagements comprehends all the other sorts
of engagements, which draw all manner of persons nearer to one an-
other. They are constituted differently, either in the several commu-
nications of work, or labour or industry, and different sorts of offices,
services, and other aids which pass among men, or in the relations
regarding the use of things. Herein are comprehended all the divers
uses of arts, employments and professions of all kinds, and all that can
connect men together according to the several wants of life, either by
gratuitous or by commercial communication.
" It is by all these engagements of two classes that God forms the
order of the society of mankind, to link them together in the exercise
of the second law ; and as He marks in such engagement that which
is prescribed therein, so we discover in the characters of the various
Gen. iii. 19.
40 THE ORIGIN AND FOUNDATION OF LAW.
sorts of engagements, the foundations of the different rules of that
O O '
which justice and equity require of each person according to the con-
junctures in which his particular engagements place him."
This masterly classification of the engagements on which human
society is constructed, requires some further investigation before we
proceed with the famous plan drawn by Domat and the Chancellor
d'Aguesseau.
Zallinger deduces natural law, like Domat, from the two primary
laws or precepts of the Gospel Diliges Dominum Deum tuum ex toto
corde tuo, et in totd anima tud, et in tola mente tud ; hoc est maximum
et primum mandatum. Secundum autem simile est huic, diliges prox-
imum tuum sicut teipsum." He observes, that not only external acts,
but even the internal movements of the will, are subject to natural
laws. x This is the reason why intention is material to the legal effect
of human actions ; and hence we see the connexion between natural
jurisprudence and ethics. But the science of ethics is more extensive
than that of natural jurisprudence, because it comprehends the whole
range of morality, and treats of all virtues and vices, and the principles
by which moral men are governed ; whereas natural law has regard
chiefly to duties and rights considered as a rule of external conduct
for man, regarded as a social responsible being bound to procure, as
far as in him lies, the welfare of society.
This explains how it is that Domat deduces from the two primary
laws which are addressed to the soul of man and intended, in the first
instance, to govern his mind the ties or engagements on which
human society is built, and to which men are led by the nature of
things.
Domat's classification of those engagements will be further ex-
plained and rendered more useful by examining the distinction between
absolute and conditional or hypothetical rights and obligations, whereby
natural law is divided into two parts or branches primary and se-
condary natural law. . This distinction is a most important point in
the science of jurisprudence, without which the works of the civilians
and jurists cannot be understood.
The civilians hold that there is a sort of jus gentium innate in man
from the very beginning, and another sort engendered subsequently
by human wants. The former they call primary, or primaeval, and
the latter secondary . y
The primary jus gentium comprises man's duty to God, and to other
n Matt. xxii. 3739.
1 Zallinger, Instil. Jur. Natur. et Ecclesiastic! Publ. lib. ], c. 4, 22.
y Donelli Comment, lib. 1, cap. 7, 8, 9 ; Reiffenstuel, Jus Canon. Univers. proem.
2, num. 3133.
PRIMARY AND SECONDARY NATURAL LAW. 41
men in the common relations of human nature, without more. Such
are the three heads enumerated by Pomponius religious duty to God,
and the obligation to our parents, and to the community in which we
live. 2 There may, it is true, be some doubt as to the third head,
because duty to the community pre-supposes an institution. Yet that
institution, which Pomponius calls patria, may be held so necessary a
part of human being that it is matter of primary law. And so Cuja-
cius, commenting on this text, says that duty to our country should
have been placed before filial duty." Again, the precept alterum non
Icedere belongs to the primary jus gentium.
The secondary jus gentium in the civil law is that which, though
flowing from natural reason, arises from certain things instituted to
meet human wants. Examples are given by Ulpian and Hermoge-
nianus in the Pandects. b The former begins by laying it down that
the manumission of slaves is juris gentium. And he explains that by
natural law all men are born free, and that by the usage of mankind
which he here calls jus gentium slavery was introduced, and then
came the benefit of manumission. Thus, manumission is matter of
natural law, arising from the institution of slavery, which Florentinus
describes as contrary to nature.
Hermogenianus, in the celebrated text often referred to before,
enumerates a variety of heads of law arising from the introduction of
the rights of property, and other institutions generated by the wants
and interests of mankind. Donellus, commenting on this law, observes
that the heads mentioned therein are somewhat confused, and it does
not show how they are distinguished from the former branch of jus
gentium. And then he proceeds to the exposition of the text, arguing
that in the beginning of the world, when men were few, it was not
necessary that things should be appropriated to individuals, but after-
wards the institution of property became requisite to prevent strife and
confusion, and for the better enjoyment of things, and for other
purposes of society. Hence that great head of the secondary jus
gentium which comprises the laws of property. And from the same
source came the different contracts, and commerce, and dealings
among men regarding property, all of which are referred to by Her-
mogenianus.
To secure these things, and for other purposes of life, bodies of men
came together, and buildings were collected, constituting towns and
cities. By those means men, being congregated together, were better
1 L. 2, ff. De Just, et Jur.
Cujac. Op. torn. 7, col. 23, E.
b L. 4, 5, ff. De Just, et Jur.; Grotius, Droit de la G. 1. 1, ch. 1, 9, num. 7.
c L. 4, 1, ff. De Statu Horn.
42 THE ORIGIN AND FOUNDATION OF LAW.
able to secure and defend themselves, and to combine in the duties,
and for the ends, of civilized life.
Then for the government of aggregations of men kingdoms were
constituted, and different sorts of commonwealths created : and cities
and kingdoms having been formed, wars arose, and thence sprung the
laws of war. Such is the law regarding captures in war. And so
Grotius says that the maxim silent leges inter arma applies only to
the civil and ordinary laws which belong to times and affairs of
peace. a
Donellus observes that the things enumerated in the second branch
of jus gentium are not so clearly belonging to natural law as those in
the first. Thus no one can deny religious duty to God, and the
obligations between parent and child, to be of natural law. But it
may be doubted whether this is so with regard to the distribution of
property, and to contracts, and the laws of war. These are part, not
of the natural law innate in man, but of that which was by the guid-
ance of nature afterwards introduced. They arose out of what Gajus
calls naturalis ratio. b And they are matters of natural law, because
natural reason shows them to be requisite for the purposes of human
society.
On this principle, and in accordance with the famous law of Her-
mogenianus, which we have been considering, Suarez holds that the
political power of government, considered per se, is of divine right. d
We must now briefly compare these important doctrines of the
civil law with those laid down by Domat.
The general ties which God constitutes among men by their nature,
and by their destination to the same end under the same laws, are
evidently part of the first branch of the jus gentium. It is the same
with regard to the first of the two kinds of particular engagements
which, according to Domat, determine men to exercise towards some
particular persons duties which cannot be performed towards all
mankind. These are the bonds of marriage and those of blood and
affinity.
The second kind of particular engagements is much more extensive,
for we have seen that it comprehends all the other sorts of engage-
ments arising from the intercommunion of men in the affairs and
interests of social life. This class includes all the matters mentioned
by Hermogenianus, and also those which he refers to by the last words
of the text exceptis quibusdam qui a jure civili introductce sunt.
Grot. Droit de la G., Disc. Prelim. 27.
b L. 9, ff. De Just, et Jur.
c Donelli Comment, lib. 1, cap. 7, ^ 16.
d Suarez, De Leg. lib. 3, cap. 4, 5.
PRIMARY AND SECONDARY NATURAL LAW. 43
These words regard a multitude of matters not part of the jus gentium,
but instituted by municipal positive law, which is that described by
Gajus Nam quod quisque populus ipse sibi jus constitute id ipsius
civitatis proprium est: vocaturque jus civile, quasi jus proprium ipsius
civitatis*
With this exception the second kind of particular engagements
belongs to the secondary jus gentium of the civil law. Domat's
classification is more comprehensive than that which we have been
investigating in the civil law, because he draws the plan of human
society regarded with reference to all the obligations and engagements
which constitute and perpetuate it. And he gives that plan, on the
foundation of the two first laws, in order to show how all that multi-
plicity of laws whereby mankind are governed flow from the two
primary laws which are pointed out to man by his reason, and taught
to him by positive revelation in the Gospel.
And here we see how the Christian Religion, by teaching man
beyond doubt the real end of his creation, has given him a clearer
view of law, which is the rule of his conduct, directing him towards
that end. And as the end of his creation is contained in the first of
the two laws, out of which the second flows, so must all laws be in
some way derived from them. All laws are either immediate results
of the two first, or else bear a relation to the order of society which is
founded on them, and are consequences of some law derived directly
from those two primary laws.
But all this will appear more clearly in the further prosecution of
our inquiries.
The next chapter will explain the doctrines of the jurists respecting
the division of natural law into parts, and compare it with the classifi-
cation of Domat.
e L. 9, ff. De Just. et'Jur.
44 THE TWO BRANCHES OF NATURAL LAW.
CHAPTER V.
THE TWO BRANCHES OF NATURAL LAW PRIMARY AND SECONDARY
FURTHER CONSIDERED ACCORDING TO THE JURISTS.
THE doctrines of the Civil Law regarding the two branches of
Natural Law have now been explained. We must consider the same
subject according to the jurists who have taken a more extended view
of it than the commentators on Justinian. The object in view is to
give an account of a portion of legal science necessary for the useful
study of jurisprudence ; and also to compare Domat's masterly
scheme with other systems. We shall subsequently find that by thus
establishing fundamental classifications and principles on a broad and
sure basis, we are able to attain a far more easy and complete
initiation into the mysteries of Public Law than would be possible by
more abrupt method.
We must now go on to consider the way in which the jurists have
divided natural law, and compare it with the classification of ties or
engagements springing from the two first laws, on which Domat has
constructed his plan of society.
Zallinger thus describes the rights and obligations belonging to
primary natural law. Innate rights and obligations (jura connata)
are those which are based on the nature of man and of things; and as
the nature of man is the same in each individual, so these rights and
obligations are the same in like manner, and thus they are universal. 8
The first of them is a certain legal equality among men considered
simply as such, whereby whatever is legally due to any one that is to
say, is just towards him is in like manner just towards everyone else.
There is not by the law of nature any legal prerogative of one man
considered .simply as such over another, whatever may be their
difference in mental and physical powers.
From this doctrine many important doctrines of public law are
derived. Vattel has thus shown the source from whence they flow as
regards international law : " As men are naturally equal, and their
rights and obligations are the same, as equally proceeding from nature,
so nations composed of men, and considered as free persons living
together in a state of nature, are naturally equal, and have from
nature the same rights and the same obligations. Power and weak-
Zallinger, Inst. Jur. Natur et Eccles. lib. 1, 15 ; Pufend. Droit des Gens, liv. 2,
ch. 3, 24.
PRIMARY AND SECONDARY ACCORDING TO THE JURISTS. 45
ness produce no difference in this respect. A dwarf is as much a man
as a giant ; and a little republic is as much a sovereign state as the
most puissant kingdom."
" A necessary consequence of this equality is that whatever is lawful
for a nation is so also lawful to others, and vice versa"
"A nation is therefore mistress of her own actions, provided they
do not affect the proper and perfect rights of another
" Nations being free, independent and equal, and each being bound
to judge for herself what she ought to do for the performance of her
duties, the effect of this is to cause, at least externally and among
mankind, a perfect equality of rights among nations in the administra-
tion of their affairs and the result of their claims, irrespective of the
intrinsic justice of their conduct, of which others have no right to
judge definitively. Thus, what is lawful to one is lawful also to
another, and they must be considered in human society as having
equal rights." 5
Pufendorf has devoted a chapter to the consideration of this
natural equality of men. c He observes that the better to comprehend
it, the doctrines of Hobbes should be examined. That writer reduces
it to a mere equality of natural powers and faculties observable among
grown-up men, from whence he infers that they all naturally have
cause to fear each other. For he says, though one man be weaker
than another, yet by the use of skill or stratagem, or by weapons, he
can kill the stronger man, so that any full grown man can inflict on
another, however strong he may be, the greatest of natural evils. d
Thus, those who have to fear from each other similar evils, being
equal between themselves, and as those who can cause to each other
the greatest evils can inflict on each other lesser ones, it follows that
all men are naturally equal. Hobbes adds, that the inequality now
existing among men owes its origin to civil laws. But Pufendorf
observes, that that inequality derived from civil laws regards only the
states and condition of men, and not their natural powers. Therefore,
it is not correct reasoning to juxtapose the inequality introduced by
civil laws to the natural equality of human powers. And he also
disapproves of the position which Hobbes endeavours ingeniously to
maintain, that there is more equality in the faculties of the mind than
in the strength of the body among men. Hobbes advances, that
prudence proceeds solely from experience, and nature gives that
quality in an equal space of time to all those who apply to anything
b Vattel, Droit des Gens, Prelim. 18, 19.
c Pufend. Droit des Gens, liv. 3, ch. 2 ; Devoir de 1'Homme et du Cit. I. 1, ch. 6.
d Hobbes, Leviathan, chap. 13.
46 THE TWO BRANCHES OF NATURAL LAW.
with the same degree of application. But this is not so "in general,
as every day's experience shows, though in certain ordinary matters
all men may be in some respects on a par. And though everyone is
ready to resent being treated as below the usual level of human under-
standing, and disposed to dislike those who profess to be wiser than
their fellows, yet it does not follow that no one will acknowledge
another to be superior in skill or parts to himself. But no one has a
right to require that those who are less wise and less able than him-
self should on that account submit to his rule without their consent,
especially if they are satisfied with whatever capacity nature has given
them.
The equality which we are considering is of another nature than
that of which Hobbes writes. As Pufendorf observes, its recognition
is very important to mankind, for without it a well-regulated harmony
cannot be maintained in that great variety of degrees in which nature
dispenses to men the advantages of the body and of the mind. As in
a well-regulated commonwealth every citizen enjoys liberty equally,
though one be more wealthy and more highly considered than another;
thus whatever advantages an individual may have over others in
respect of the natural qualities of the body and the mind, he is never-
theless bound to practise towards them the rules of Natural Law which
they are bound to observe towards him. And he has no more right
to injure them than they to hurt him. On the other hand even those
who are most ill-treated by fortune and by nature are entitled to the
full and peaceful enjoyment of the rights common to all men. In
short, cceteris paribus there is no one of whatever condition who has
not a right to require at the hands of others what they require from
him. And to this principle is applicable that maxim of the Pandects,
which says, Quod quisque juris in alterum statuerit, ut ipse eodemjure
utatur.* And so Seneca says, Prima pars cequitatis est cequalitas.
This equality of right, or legal equality, is founded on the principle
that as the duties of sociability and the social state are necessary
consequences of the constitution of human nature considered as such,
they impose on all men in common an equally powerful and indispen-
sable obligation. And this equality of law requires that as those who
have advantages should not injure or insult those who are less for-
tunate, so the latter should abstain from envying or dispoiling the
former or disturbing them in the enjoyment of those advantages.
Pufendorf also calls this natural equality of men, equality of power,
or of liberty. It consists, he says, in this. No one (with an exception
which will be mentioned presently) has any authority over any one
else irrespectively of some human act or institution or convention.
This equality is susperseded by the establishment of civil societies,
e Pand. lib. 2, tit. 2.
PRIMARY AND SECONDARY ACCORDING TO THE JURISTS. 47
wherein one or more persons have power to govern and command the
others, who are bound to obey, whereby great inequality of persons
has resulted, and the distinction between subjects and sovereigns.
The exception referred to regards the status of fathers and mothers
of families, and the relation between husband and wife, which produce
an inequality of persons anterior to civil societies. But that inequality
does not interfere with the natural equality which I have shown to
exist between man and man considered simply as such. The relations
between father and son, and husband and wife, are something super-
added to that between man and man, and they do not indeed super-
sede that equality of rights which results from primary natural law.
But to this subject we shall return.
As for the other inequalities existing in civil societies, they, as
Pufendorf observes, clearly proceed from the will of the sovereign
power. The inequalities among citizens after the institutions of sove-
reign power, proceeds either from the administration of the government,
which requires that certain persons be entrusted by the sovereign to
exercise over others a portion of the supreme authority, or from some
privilege granted by the sovereign. The relative diversity of fortunes
produces by itself no real inequalities among citizens. Great wealth
indeed gives the means of injuring or benefiting others, and so is a
source of influence. But even real civil inequalities do not destroy
the legal consequences of the natural equality of men/
The doctrine of natural equality is very important, not only as a fun-
damental principle of Natural Law, but because it establishes as it were
a plane surface on which divers rights and obligations are built. If it
were otherwise, if men were created not with equal primary natural
rights and obligations, but in different conditions or status simply as
men, it would follow that there must be a different natural law for dif-
ferent classes or kinds of men, and this would alter the whole science
of jurisprudence.
Thus Pufendorf combats the opinion which existed among the
Greeks, that some men were naturally slaves, contrary to that of
Ulpian, who says, that all men are by natural law born free. 8 There
are, it is true, men who seem more fit to be slaves than to enjoy free-
dom. But a natural adaptation to a particular state or condition does
not suffice to place a person in that state. And it is clear that the
distinction between free men and slaves is not by natural law. So
Florentinus says, that slavery is an institution of the jus gentium,
whereby a man is subjected to the dominion of another, contrary to
f See on this subject, D'Aguesseau, Essai sur 1'Etat des Personnes, D'Aguesseau,
CEuvres, torn. 5, p. 416.
e L. 4, ff. De Just, et Jur.
48 THE TWO BRANCHES OF NATURAL LAW.
nature?" He means that slavery is an institution of the arbitrary jus
gentium, that is to say, a custom of nations arising out of war. And
when Gajus says that the chief division in the law of persons classi-
fies them as free men and slaves, 1 he refers to the classification of men
not by natural law but by the Civil Law of Rome.
We may here observe how it is that this doctrine of the natural
equality of men has been perverted and made the source of false theo-
ries. This has arisen from not seeing that the doctrine in question
belongs only to primary natural law, or innate rights and obliga-
tions (jura connata) which arise from the nature of man simply
considered, that is to say, the relation between men merely as such,
without more. And all that is to be found on the subject in the writ-
ings of the great civilians jurists and theologians shows this. They all
confine the doctrine of equality to the common rights of mankind,
exclusive of the rights and obligations which arise from various pecu-
liar relations which men bear to each other regarding the rights of
persons and of things.
Thus we have seen that Domat k speaks of the general ties which
God makes among men by their nature and their destination to one
and the same end under the same laws.
But it is manifest, as he shows, that other particular ties must exist
as well as those general ties with regard to which all men are equal.
Primary natural law is evidently insufficient for the purposes of hu-
man society. And indeed the relations of father and child and
husband and wife cause a natural inequality.
And natural equality and the rights arising therefrom are, as we
have seen, so far from being incompatible with the various inequalities
of power, arising from the wants of human society, that they actually
confirm the rights springing from those inequalities. And such ine-
qualities do not supersede or destroy the equality of men according to
the primary natural law.
We must now pursue the subject of absolute or innate rights and
obligations. From the doctrine of the equality in law of all men con-
sidered simply as such, it results that they have the same abso-
lute rights. And thence it follows that no one should injure or
infringe the absolute rights of another.
The duties of a man with reference to other men are of two classes.
The first consists of those which are solely founded on the mutual
obligations which the Creator imposes on men in common, simply as
h L. 4, 1, ff. De Statu Horn.
1 L. 3, ff. De Statu Horn. And see Somerset v. Stuart, Lofft. 1 ; Zallinger, Inst.
Jur. Nat. et-Eccl. lib. 1, 15; Montesq. Esprit des Loix, lib. 15, ch. 7.
k Domat, Trait^ des Loix, ch. 2, 3.
PRIMARY AND SECONDARY ACCORDING TO THE JURISTS. 49
such, and the other class supposes some human establishment, either
instituted or adopted by men, or an adventitious or accessary state
such as that of father and son, master and servant, &c. The former
must be practised by and towards all men, whereas the latter are obli-
gatory only with reference to certain persons. This classification, taken
from Zallinger and Pufendorf, very clearly shows the two branches
into which the jurists divide Natural Law. 1
The absolute or innate duties of man with reference to other men
are ranged by Pufendorf under three heads. The first consists of the
general duty of doing no harm or injury to any one. This is the
second of the three precepts of Ulpian, namely, alterum non Icedere,
A consequence thereof is the obligation of making reparation or com-
pensation for any injury or damage which you have done to any one.
Zallinger observes, that this is not properly itself an absolute obliga-
tion and right, because it arises from an act done. But it is neverthe-
less correctly placed by Pufendorf, because it is a necessary conse-
quence of the rule of law alterum non Icedere, and included therein. The
second head comprises all the rights and obligations arising from the
natural equality of men. The third includes what are called the
common duties of humanity. "The third general duty," says Pufendorf,
" whereby you are bound towards all other persons, considered simply
as members of the human race, is, that each ought to contribute, so far
as he conveniently can, to the benefit and advantage of others." n
The duties included under this general head are those which have
been called of imperfect obligation. They are comprehended in uni-
versal justice, which requires the performance of all duties towards
others : whereas particular justice regards only those which, because
they are necessary for the preservation of mankind and the maintenance
of human society in general, may be enforced by human authority and
power.
These duties of imperfect obligation are virtues belonging to the
province of morality and religion. And yet they also appertain to
natural law, because even the mere outward fulfilment of those obliga-
tions is highly beneficial to the peace and welfare of society. And so
Pothier observes, in a note on the first precept of Ulpian, honeste
vivere, that it forbids not only what is forbidden by express laws, but
1 Zallinger, Inst. Jur. Nat. et Eccles. Publ. lib. 1, 15 ; Pufend. Devoir de 1'Homme
et du Cit. 1.1, ch. 4, 1 ; Pufend. Droit des Gens, 1. 2, ch. 3, 24.
m L. 10, 1, ff. De Just, et Jur.
n Pufend. Devoir de 1'Homme et du Cit. ch. 8.
Pufend. ibi, 1. 1, ch. 2, 14, n. 1, Barbeyrac ; and see Pufend. Droit des Gens,
1. 1, c. 7, 7, 8. The same doctrine is less clearly expressed by Zallinger, Inst. Jur.
Nat. et Eccles. Publ. lib. 1, 17.
E
50 THE TWO BRANCHES OF NATURAL LAW.
everything against good morals, piety and honour. p And Papinian, in
a celebrated law in the Pandects, says, defining legal impossibility,
Qua facia verecundiam, officium, pietatem nostrum l&dunt, et generaliter
contra bonos mores sunt, nee facere nos posse dicendum est.^ And so
St. Thomas Aquinas includes in natural law, not only precepts, but
counsels/
This general view of the obligations called innate, and belonging to
primary natural law, shows that they do not suffice by themselves,
because they look on each man, apart from any dealing or engage-
ment with other men, and from any of those establishments or institu-
tions, such as civil government and property, which are requisite for
human society. And this. observation leads us to hypothetical or con-
ditional obligations, with their correlative rights. They are matter of
secondary natural law.
Zallinger defines them to be those rights and obligations which
cannot exist except on the hypothesis of some previous act, or adven-
titious status, and circumstances of place and time. According to him
hypothetical rights and obligations are of three classes ; as they arise
from agreement or pact, from the abolition of the community of things,
that is to say, the introduction of exclusive property, and from social
states or conditions. 8 So we have seen that Domat teaches, that be-
sides those general and common ties which God has constituted among
men by their nature and their destination to the same end under the
same laws, He has added other particular engagements. And these
are of two kinds, namely, those which are formed by the natural ties
of marriage and birth, comprising consanguinity and affinity ; and in
the second place, those which arise from other sorts of engagements
among men. 4
The right which men have of binding themselves, by their consent,
is an original or innate or absolute right. And so Savigny, treating of re-
lations of law, that is to say, legal obligations and rights arising between
individuals, starts from the free will of man to act within certain limits
of right. He shows that that will may be applied to things or to per-
sons. And by virtue of it we may have dominion over things, or over
some act or acts of another person. In the former case the result is
property in its simplest form, and in the latter, what is designated as
obligation, that is to say, the relation of law, whereby we control a
P Pothier, Pand. Justin, lib. 50, tit. 17, sect. 1, art. 2, 1. 18.
) L. 15, ff. De Condition. Instit.
r Suarez, De Leg. lib. 2, cap. 8, $11.
8 Zallinger, ubi sup. lib. 1, cap. 3, 16. The first class here added by Zallinger
seems grounded on a too subtle distinction. Pufeud. Droit des Gens, I. 2, ch. 3, 24.
1 Domat, Loix Civ. Traitd des Loix, ch. 2, 3.
PRIMARY AND SECONDARY ACCORDING TO THE JURISTS. 51
determined act or acts -of a person." This obligation may resolve
itself into a sum of money or some other thing, that is to say, transfer
property to us. And the greater number of obligations have for their
object the absolute acquisition or the temporary enjoyment of property.
The aggregate of the relations which thus extend the power of an indi-
vidual over things, is called his property (bona), and the institutions
which regulate them are called the law of things*
The obligations and rights thus described and classified by Savigny
are what the jurists call hypothetical, or conditional, and they belong
to secondary natural law, so far as they are not regulated by positive
law. They are called hypothetical or conditional, because they pre-
suppose an act of human will, and the institution of property ; that is
to say, exclusive rights over things. Zallinger observes that the
greater number of hypothetical obligations spring from the introduc-
tion of dominium, or the right of property. Taken in its widest sense,
it includes both dominion over the thing itself, irrespective of right as
against any particular person, and right to a thing by virtue of an obli-
gation of a person, arising either from consent, or from the law without
such consent, but in consequence of some fact. The former is called
jus in re or dominium, in the strict acceptation of the term, and the
latter jus ad rernJ
The social state and its consequences are also the causes of a multi-
tude of hypothetical or conditional rights and obligations, which, except
so far as they belong to positive law, are also part of the secondary
natural law.
All these heads of hypothetical or conditional obligations are among
those particular ties, as contradistinguished from the general ties,
which, according to Domat, unite men among themselves. And they
are originally grounded on the two primary laws, for as God has di-
rected man to accomplish those laws, and for that purpose has des-
tined him for society, so He has ordained those rights and obligations
which are the ties uniting men in that state, and rendering it capable
of accomplishing the object for which it was instituted.
We have now sufficiently examined the distinction between the two
chief branches of natural law, as taught by the civilians and jurists,
and we have shown the bearing of their doctrines on the plan drawn
by Domat in his treatise of laws.
The full value of this will appear, when we come to consider the
various sorts of laws by which society is governed, and the ways in
which they accomplish their object.
Savigny, Trait du Droit Rom. torn. 1, ch. 1, p. 328 333, 53.
* Ibi, pp. 333, 334.
> Zallinger, ubi supra, 16, 3.
E2
52 GENERAL PLAN AND NATURE OF HUMAN SOCIETY
CHAPTER VI.
GENERAL PLAN AND NATURE OF HUMAN SOCIETY ON THE FOUNDATION
OF THE TWO PRIMARY LAWS.
WE have examined the general character of the two branches of
natural law, and their connection with the two primary laws on which
Domat has founded his plan of human society. That investigation
shows how the distinction between primary and secondary natural
law bears upon the classification given by Domat of the ties which
unite men in the association to which they are destined, for the exer-
cise and accomplishment of the two great fundamental or primary laws
prescribing man's duty to God and to his neighbour.
Thus the general ties which God has constituted among men by
their nature, and their destination to the same end under the same
laws, belong to primary natural law. a But those general ties are not
sufficient, and the particular engagements which bind men together in
the exercise of the second of the two great primary laws, constitute
particular laws prescribing to every man what that law requires of
him. These, for the most part, belong to secondary natural law,
because they pre-suppose some act done, such as a contract, or some
institution, such as property and civil society.
I say for the most part, because among the particular ties are those
which arise from the relation between the two sexes, which are so
necessary a part of human nature that they must be considered as
matters of primary natural law.
It will appear more and more, as we proceed, that these distinctions
and classifications are valuable both for scientific and for practical
purposes.
We will now see how Domat works out his plan of human society
on the foundation of the two fundamental or primary laws command-
ing love of God and of our neighbour.
He first lays it down that God forms the order of human society, by
the ties of both sorts, to bind men together in the exercise of the
second law. And because each engagement shows what it prescribes
to those whom He has bound by it, we may see in the characteristics of
the different sorts of engagements, the foundations of the rules of that
Florentinus says, " Inter nos cognitionem quamdatn natura constituit;'' 1. 3, ff. De
Just, et Jur.
ON THE FOUNDATION OF THE TWO PRIMARY LAWS. 53
which justice and equity require of each person according as he is
placed.
Domat then proceeds to the first sort of those particular engage-
ments among mankind those which marriage constitutes with all
its consequences. Marriage and the birth of children constitute a
particular society in each family, which has been held to be the germ
of all others.
In a law of Ulpian we find both the conjunction which among man-
kind is called marriage, and the care and rearing of the young,
included among the things regulated by that supposed natural law
common to man and other animals. b And Pomponius holds the
obligations between children and parents to be of primary natural law. c
Thus Domat, placing the engagement of marriage first among the
particular ties which unite men in society, teaches that not only all
the laws regulating the duties of husband and wife, but also the laws
of the Church, and the civil laws regarding marriage, are founded on
the mode in which God instituted that engagement at the creation of
man.
The bond of marriage is followed by that of birth, which unites the
parents with their children, and is the foundation of all the duties
arising from that relation. Thus children are made dependent on
their parents in their infancy, and the parents on their children in
age and infirmity ; and a strong mutual affection is implanted in the
breasts of both by the Creator. Thence comes all that civil laws
have regulated regarding the reciprocal duties of parent and child
such as the paternal power over the persons and property of children,
and the right of parents to receive aliment from them. And on the
same ordinance of God, whereby children receive life from their
parents, are grounded the laws which give the property of the parents
at their death to their children. The reason is, that property is given
to men for the different wants of life. Therefore, on the death of their
parents, the inheritance should devolve on the surviving issue as an
accessory of life derived from their progenitors.
Marriage and birth also constitute two other sorts of natural ties,
which are consequences following them. The first is that of colla-
terals, called consanguinity or agnation, and the latter is that of
alliance, or affinity or cognation.
Consanguinity unites collaterals, that is to say, those whose birth
originates from a common ascendant or ancestor, and hence is derived
the relationship which unites them. This connexion is the foundation
b L. l,ff. De Just, et Jur.
c L. 2, ff. De Just, et Jur. And see Suarez, De Leg. lib. 3, ch. 1, \.
54 GENERAL PLAN AND NATURE OP HUMAN SOCIETY
of divers civil laws in different countries such as those which forbid
marriages among near relatives, give inheritances and guardianships,
and exclude witnesses and judges related to a party to a suit.
Alliance or affinity is the connexion which marriage constitutes
between the husband and his wife's relations, and the wife and her
husband's relations. It is grounded on the close union between the
husband and the wife, whereby those who are bound by relationship
to either of them, are also bound to the other. And it is the reason
of many laws analogous to those just mentioned. d
This sketch will suffice to show the nature of the first sort of ties
which unite men together, and whereby God has bound them in order
to the formation of civil society.
We now proceed to the second kind of engagements or ties ; and
this is, perhaps, the most masterly part of Domat's celebrated plan. 6
As the engagements of marriage and birth, and the ties resulting
from them, are limited between particular persons with regard to each
other, and God has placed men in society to exercise generally the
second of the two primary laws, He has rendered necessary in society
another sort of engagements, which bind together indifferently persons
of all kinds. It is to constitute this sort of engagements that God
multiplies the wants of men, and makes them necessary to each other
for all those wants. And in two ways they are placed in the order of
engagements to which they are destined.
The first of these ways is the arrangement of persons in society,
where each has his place assigned to him, indicating the relations
which bind him to others, and the duties proper to that place. And
this is effected by birth, by education, by disposition or inclination,
and by the other effects of his conduct, which cause the arrangement
or placing of men in the community to which they belong. By this
first means God constitutes to all men the general engagements of
conditions, professions, and employments, and places every person in
some certain condition of life of which particular engagements are to
be the consequences.
The second way is the disposal of events and conjunctures which
lead each man to particular engagements, according to the occasions
and circumstances in which he finds himself.
All these sorts of engagements of this second kind are either volun-
tary or not voluntary ; that is to say, they arise from consent, or are
constituted independently of the consent of the party bound. For as
man is free there are engagements into which he enters by his will ;
and as he is dependent on the Divine order, so there are engagements
d Domat, Loix Civ. Traite des Loix, ch. 3. e Ibi, cli. 4.
ON THE FOUNDATION OF THE TWO PRIMARY LA.WS. 55
in which God places him without his own choice. But whether the
engagements originate from, or independently of, his consent, it is by
his free will that man acts in them. And every part of his conduct
bears these two characteristics that is to say, dependence on God,
whose ordinance he ought to follow, and his free will, which should
lead him to that obedience. Thus all these kinds of engagements are
proportioned both to the nature of man and to his condition during
this life.
The voluntary engagements are of two kinds. Some are mutually
formed among two or more persons, who by their will bind and engage
themselves reciprocally one to another. And others are constituted by
the will of one person, who engages himself to another person or per-
sons without their treating with him.
Domat gives the following examples of these two kinds of engage-
ments. As an illustration of the first kind, he observes, that for the
different purposes for which men require to communicate one with an-
other their work and industry, and for the different commerce in all
sorts of things, they form associations or partnerships, buy and sell,
let and hire, borrow and lend, exchange, and enter into other sorts of
mutual contracts.
And to explain the second kind of engagements, Domat refers to
that of an heir, who becomes liable, according to the civil law, to the
debts of the deceased. For by the civil law an heir (whether testa-
mentary or legal) is una eademque persona cum defuncto* arid, there-
fore, is liable for all his debts that are not extinguished by his death.
The old civil law was modified in this respect, for Justinian granted
to heirs the benefit of inventory, that is to say, the power to provide
an authentic inventory of the estate and effects, and thereby discharge
themselves from all liability to his debts beyond the value of the in-
heritance. 5 But still the principle of hereditary representation remains
part of the civil law. And it is evident that the engagement of the
heir to the creditors of the deceased, arises without any agreement or
dealing between him and them. Another instance of this sort is to
be found in the civil law quasi contract, called negotiorum gestorum. It
is thus explained by Justinian : " When any one has transacted the
business of an absent man (negotia absentis gesserit) there arise mutual
actions between them, which are called actions negotiorum gestorum."
The person who received the service has the actio directa, and the
other the actio contraria. These actions spring from no contract, for
they obtain where any one spontaneously undertakes business or the
f See my Commentaries on the Modern Civil Law, p. 299.
E Instit. lib. 2, tit. 12, De Heredum Qualitate, 5. And see Cod. lib. 6, tit. 30,
De Jure Deliberandi, L. ult.
56 GENERAL PLAN AND NATURE OF HUMAN SOCIETY
management of the property of another, without any mandate or au-
thority. This law was received by reason of its utility, that the busi-
ness of those who are absent may not be neglected : for no one would
take this care upon himself unless he had an action to recover what he
had expended." h A further example of this nature is to be found in
divers offices or employments, the acceptance of which produces an
obligation to fulfil the engagements that are the consequences thereof.
The person accepting such office or employment is bound to those in-
terested in its duties, though there is no agreement or dealing between
him and them.
We come now to involuntary engagements. They are those in
which men are placed without their own will and choice. Thus there
are municipal and legal offices or duties, such as that of sheriff and
jurymen, which some persons are not permitted to decline without law-
ful excuse. So it is with the office of guardian in the civil law. And
when the business of an absent man has been done v without his know-
ledge and authority, the civil law requires him to repay what has been
reasonably expended and to ratify what has been well done. 1 He
whose merchandise has been saved in a storm by the ship being dis-
charged of goods thrown into the sea to lighten it, is bound to bear
his share of the loss in proportion to what is saved for him. k The
condition of those without means and incapable of working for their
subsistence ingenders an engagement on the part of the others to ex-
ercise towards them the second of the two fundamental laws which
prescribes our duty to our neighbours, by enabling them to live. And
on this principle the poor law is founded as Blackstone shows. And
so Domat lays it down that every man being a member of society has
a right to live therein; and what is necessary for those who have
nothing and cannot earn their livelihood is consequently in the hands
of the others, who cannot therefore refuse them relief. On the same
principle, in times of public necessity individuals are compelled, even
by legal authority, to assist the poor according to their wants. 1 And
so the condition of persons suffering from injustice and oppression or
unlawful wrong causes an engagement on the part of those who are
invested with offices of justice and good government to protect them. m
To these examples may be added the various obligations incumbent
on every man as a member of human society, which are independent
h Instit. lib. 3, tit. 28, 1.
1 Ibi; and see the French Civil Code, art. 1372.
k Pandect, lib. 14, tit 2, ad Leg. Rhodiam ; Voet ad Pand. lib. 14, tit. 2, and the
authors cited there ; French Code Civ. 415.
1 Domat, Trait6 des Loix, ch. 4, ^ 4.
m See Magna Chart. Nulli negabitnus, &c.
ON THE FOUNDATION OF THE TWO PRIMARY LAWS. 57
of his own act or consent, because he cannot refuse to fulfil those
obligations without violating secondary natural law. And that law
arises from the ordinance of God and not from the will of man.
This theory of obligations, arising without the act and consent of the
party bound, is a very important part of Public Law, which we shall
have occasion to examine further hereafter. The false doctrines of
Rousseau, in his Contrat Social, may be traced to ignorance of this sub-
ject. His system is based on the false notion that all obligations and
engagements must arise from consent of the party bound."
That notion is partly countenanced by the error of Trebonian, who,
in the Institutes, entitles obligations arising neither from a contract nor
from a wrong, by the denomination of obligations quasi fx contractu.
And this some civilians have explained by deducing those obligations
arising without consent, from tacit or presumed or feigned consent.
But the correct doctrine is that they are independent of consent and
have therefore nothing in common with contracts, but they arise from
the law. Obligations arising thus from the law without consent or
agreement are of two classes. First, those which spring from the
law alone, without any act of the person on whom the obligation is
imposed. Secondly, those which arise from the law, on the occasion
of an act of the person obliged, or of an act of the person to whom
he becomes bound, or of a fortuitous occurrence. 1 " The obligations
whereby every man is bound to pay taxes and perform certain public
duties in the community to which he belongs, are instances of obliga-
tions springing from the law alone.
Obligations of the first class arise immediately, as those of the
second spring mediately from the law, for every obligation must pro-
ceed from the law, either natural or municipal.
Obligations arising mediately from the law are brought into exist-
ence by the law on the occasion of some act. Thus the obligation of
a thief to restore the goods which he has stolen, arises from the law of
property to which he has rendered himself amenable by his own act.
The act of the person to be bound thus precedes the obligation, and
is a condition precedent to the existence of the obligation ; but the
obligation springs from the law on the occasion of the act.
That act may be either lawful or unlawful. Of the first descrip-
tion are those obligations which Trebonian in Justinian's Institutes
derives quasi ex contractu, and of the second are those which he
deduces ex delicto and quasi ex delicto.*
n Rousseau, Contrat Social, ch. 4.
See my Commentaries on the Modern Civil Law, ch. 11, where the subject is
fully explained.
P Ibi, p. 236.
Ibi, pp. 236, 237.
58 GENERAL PLAN AND NATURE OF HUMAN SOCIETY
All these various classes and descriptions of engagements bind man-
kind together in a multitude of different ways in that social condition
for which they are intended. And it is evident, as Domat tells us,
that God constitutes them and places men under them for the purpose
of uniting mankind together in the exercise of the second fundamental
low, commanding us to love our neighbour/ And all the duties
prescribed by those engagements are the effects which that law ought
to produce according to the different conjunctures and circumstances.
Thus the rules which prescribe to render to every man what is due to
him, to wrong no one, and to observe faithfulness to promises, and
sincerity, 8 are included in the second law. And the same may be said
of the duties of a guardian to his ward, and of persons holding offices
and employments, and indeed of the duties required by all other en-
gagements among men. Domat gives as an example the case of a
man who has in his possession the sword of a madman, or of a person
inflamed with violent passion. He is bound by virtue of the second
law not to restore the weapon to its owner until he is in a condition to
make no bad use of it.
And that great jurist adds, that his object is to show that as the
second fundamental law is the spirit and principle of all those which
regulate engagements among mankind, it is not sufficient to know, as
even barbarians do, that we ought to render to every man that which
is his, and to wrong no one, and to observe good faith, and similar
rules ; but it is necessary also to regard the spirit of those rules and
the source of their truth in the second law, in order to give them all
the effect and extent which they ought to have. And he observes,
that for want of this doctrine judges sometimes look upon those rules
simply as political laws, without understanding their spirit, which
requires a more abundant justice, and therefore do not give them the
extensive effect which they ought to have, but tolerate breaches of
faith and injustice which judges would repress if the spirit of the
second law were their principle.
Domat further observes, that engagements require the use of a
government to keep every one in the order of their obligations. It is
for the purposes of government that God has established the authority
of powers requisite to maintain society. And it is necessary to add
here with regard to engagements and government, that there are some
constituted through the order of that government, such as those
between princes and subjects, and between persons in public dignities
and offices and private persons, and others of that nature.
r Domat, Loix Civ. Traite des Loix, ch. 4, 5.
L. ff. De Just, et Jur.
ON THE FOUNDATION OF THE TWO PRIMARY LAWS. 59
One great feature of this general plan, drawn by the masterly hand
of Domat under the immediate advice of the Chancellor D'Aguesseau,
is, that it is based not on any imaginary system or hypothesis such as
the social compact, or that state of hostility among men invented by
Hobbes, but on the different classes of ties or obligations which actually
unite men together in the social state, and are all deduced from the
two primary laws laid down in the Gospel as the foundation of all law.
Domat constructs his system by analysis of human society, showing
the means whereby Divine Providence has led mankind to, and main-
tains them in the social state, according to the principles of the law of
nature.
In order to complete the plan of society, it is now necessary to give
an idea of the succession which perpetuates it ; and we shall next see
how God causes it to subsist in its present state.
The order of successions is grounded on the necessity of continuing
and transmitting the state of society from the passing generation to
that which follows. And this is done imperceptibly, by causing
certain persons to succeed in the place of those who die, to enter into
their rights, their duties, and those relations and engagements which
are of a nature to pass to successors.
It would be out of place to enter here into the different modes of
succession or inheritance by the natural order and that of municipal
laws, and by the will of persons appointing those who are to succeed
them. It is sufficient to observe here, that successions must be
distinguished from the engagements hitherto considered. For though
succession constitutes an engagement into which those persons enter
who succeed to others, yet successions ought not to be considered
under this aspect. They should be looked upon with reference to the
change by which property, rights, and obligations, pass from those
who die to their successors. 1
According to the civil law, which makes the heir, or the coheirs, the
representative of the deceased, this view of successions is obvious.
And even in the English and Scotch laws, which make a distinction
between real and personal, or heritable and personal estate, it is
correct. For the executor or administrator must be considered as the
temporary successor of the deceased in his personal property, which is
vested in him until he has fully administered the estate. But with
reference to Public Law the heir is the principal successor, because he
succeeds to real property and hereditary dignities and offices, and
takes the place in the community which was occupied by the deceased.
And legatees maybe looked upon as successors of the deceased, so far
as regards the legacy which is transmitted from him.
' Domat, Loix Civ. Trait des Loix, ch. 7.
60 GENERAL PLAN AND NATURE OF HUMAN SOCIETY
A legal capacity also belongs to certain fictitious beings, called
juridical persons, which exist only for certain legal purposes. Their
legal character appertains, as Savigny observes, principally to private
law having reference to property," but they cannot be omitted in a
plan of human society.
With respect to these corporate bodies, called in the civil law
universitates, which are considered in law in the light of persons/
they have no successors, for they are invested with a sort of legal
privilege of immortality. Yet there is a succession within them
whereby new members are put in the place of those who die, or cease
to be members. This succession is regulated according to the con-
stitution of each corporate body. Although the parts composing these
bodies be constantly changed, yet the identity of the whole remains. y
And persons succeed others in various offices and employments by
different ways, such as appointment and election.
By all these means society is perpetuated and handed down from
one generation to another, with the various modifications which from
time to time it undergoes.
We have now to consider the condition of society after the fall of
man, and how God makes it subsist in the condition to which that
fall reduced it.
Domat teaches, that everything we see in society contrary to order
is a natural consequence of disobedience to the first law, which com-
mands the love of God ; for as that law is the foundation of the
second, which commands men to love each other, man could not
violate the first without falling at the same time into a condition which
made him break the second also, and consequently disturb society.
The first law (continues the great civilian) should have united men
in the possession of the Supreme Good, and they would have found
therein two perfections which would have made them happy in com-
mon, one that it may be possessed by all, and the other that it can form
the entire happiness of each. But man, having broken the first law,
and having forsaken that true happiness which he could only find in
God, sought it in material temporal things, in which he found two
defects, one that those things cannot be possessed by all, and the
other that they cannot make any one perfectly happy. Thence divisions
and discord necessarily arose, because those who place their happiness
in the possession of things of that nature, must clash in their pursuit
Savigny, Traite" de Droit Remain, torn. 2, pp. 234, 236.
* Voet, Comm. ad Pand. lib. 3, tit. 4, 1 ; Pand. lib. 46, tit. 1, De Fidejussoribus,
1. 22. And see Domat, Droit Publ. liv. 1, tit. 15.
y Pand. lib. 5, tit. 1, De Judiciis, 1. 76; Pand. lib. 3, tit. 4, Quod cujusque Uni-
versitatis nomine, 1. 7, 2.
ON THE FOUNDATION OF THE TWO PRIMARY LAWS. 61
of the same objects, and they violate all kinds of obligations and
engagements, according to the dictates of their desire for the things
which they seek to obtain. 2
But out of that principle of selfishness, contrary to the mutual good
will which is the foundation of society, God has devised a remedy
which causes it to subsist. For that principle of division among men
becomes a bond which unites them in a thousand ways, and maintains
the greater part of their engagements. The following reasons will
show the truth of this position.
The fall of man multiplied his wants and augmented the necessity
of labour and commerce, and also of engagements and ties among
men ; for as no one can alone suffice to himself, the diversity of wants
engages men to an infinite diversity of ties or connections without
which they could not live.
This condition of mankind leads those who act only on selfish mo-
tives, to submit themselves to labour and engage in commerce and
obligations which their wants render necessary. And in order to
render those things useful to themselves, they are obliged, for the sake
of their credit reputation and interest, to observe good faith and ho-
nesty. Thus selfishness adapts itself to circumstances, and knows so
well how to regulate the means according to the end in view, that it
even imitates all the virtues.
Self-love therefore, that principle of evil, is in the present state of
society a cause of many effects which, being in themselves good, ought
to have a better origin ; and thus that poison of society may be re-
garded as a remedy provided by God to sustain it.
The other causes whereby God sustains society are of a different
nature, because they are not evils out of which good is produced, but
they are the natural foundations of order. Domat divides them into
four different sorts, comprehending all that maintains society.
The first is Religion, which causes all that is regulated by the spirit
of the two primary laws.
The second is the secret providence of God over society in the
whole world.
The third is the authority which God gives to powers.
The fourth is that light retained by man after his fall, which teaches
him the natural rules of right and wrong.
It is that light of reason which, showing to all men the common
rules of justice and equity binding upon them by the Divine Will,
is a law to them; a and it has remained in their minds in spite of the
z Domat, Loix Civ. Traite des Loix, ch. 9, 1.
8 Rom. ii. 14; L. 7, ff. De bon. damn. ; Schmalzgrueber, Jus Eccles. Univers. ; Dis-
sert, proem. ^ ii. 54 ; Suarez, De Leg. lib. 1, c. 6, n. 13.
62 GENERAL PLAN AND NATURE OF HUMAN SOCIETY
darkness which self-love has spread there. Thus all men bear in their
minds the impression of the truth and authority of these natural laws,
that they ought to wrong no man, that they should render to every
one what belongs to him, that they are bound to be honest in en-
gagements, and faithful to execute promises, and other similar rules of
justice; for the knowledge of these rules is inseparable from reason,
and indeed reason itself is their knowledge and use.
And, as Domat truly observes, though this light of reason giving a
perception of those truths to men ignorant of their first principles, does
not reign over every one in such wise as to make him regulate his
conduct thereby, yet it so far prevails, that even the most unjust, love
justice enough to condemn and hate injustice in others ; and each man
being interested in the observance of those rules towards himself, the
greater number compel obedience on the part of those who resist their
precepts and commit wrong against others. This shows that God has
engraven on the minds of all men, that sort of knowledge and love of
justice without which society could not subsist. And by means of that
knowledge of natural laws, even nations ignorant of religion have
maintained their society.
But this would not suffice to be the foundation of society without
the government which God exercises over mankind, and the order
which is preserved in human society by Divine Providence. Thereby
the earth is divided among the human species; nations are distinguished
one from the other with the diversity of kingdoms, republics, and other
kinds of states ; their extent and duration are determined by the course
of events, and society is sustained in each state by the distinction of
persons to fill different stations, employments, and places. And the
same Providence, to maintain society, establishes therein two kinds of
powers calculated to keep men in the order of their engagements.
The first consists in natural'powers regarding natural engagements,
such as the authority which marriage gives to a husband over his
wife, and birth to parents over their children. But as this sort of
authority is restricted within the limits of families, God has ordained
another kind of authority extending over the universal order of all sorts
of engagements and all that regards society. And He gives this power
differently in kingdoms, republics and other states, to kings, princes,
and other persons raised into authority by birth, by election, and by
other means. And for the same order the exercise of that authority
is communicated to and distributed among different persons, with vari-
ous sorts of degrees and power.
We have now a sketch of the nature of human society, showing its
derivation from the two primary laws, by means of the ties which con-
stitute and maintain it.
ON THE FOUNDATION OF THE TWO PRIMARY LAWS. 63
We must next examine the nature and spirit of the various sorts of
laws which govern mankind, and which are all derived from those two
primary fundamental Divine Laws.
CHAPTER VII.
ON THE NATURE AND SPIRIT OF LAWS. IMMUTABLE LAWS.
IN the last chapter a plan of society has been drawn on the foun-
dation of the two great first Laws, by showing the relation which the
state of man in this life has to each of them, and the way in which
God having destined man to society has constituted the ties which
engage him in that state.
We have seen that it is by those ties or engagements that God forms
the order of the society of mankind to link them together in the exer-
cise of the second Law. And as God marks in every engagement
what He enjoins to those who are bound by it, so the characters of
the different sorts of engagements show the foundations of the several
rules prescribing that which justice and equity require of every person
according to the conjunctures in which his particular engagements
place him. We have seen how ties or engagements imply and require
the use and advantage of a civil government to restrain every one
within the order of those that belong to him. And we have seen
also that there are four foundations of the order of society in its
present state, that is to say, the general knowledge of justice or right
and wrong, the government of God over society, the authority which
God gives to supreme powers, and true religion, which includes and
explains the three first.
And in a former chapter I have shown the origin and necessity of
laws, whereby the actions of men are regulated in all the relations and
engagements in which they are placed on earth ; and this according
to the definition of St. Thomas Aquinas, who says, Lex est qucedam
regula et mensura secundum quam inducitur aliquis ad agendum vel non
agendum.
We must now proceed to examine the nature and spirit of laws and
their different kinds.
Suarez first divides laws into Eternal and Temporal Laws. By the
former he means (following St. Augustine) what Plato calls Divine Law,
that is to say, a law existing in God himself and the same with the rea-
son of Divine Providence. The latter differs from it as that which is
created differs from that which is uncreated. It includes that kind of
64 ON THE NATURE AND SPIRIT OF LAWS.
Divine Law, which God creates, as it were, extraneously to himself, as
well as all other laws that are not eternal.
Suarez then gives the distinction recognised by all the theologians,
and frequently used in the works of the Saints, that is to say, that of
natural from positive law. b It is also to be found in the Pandects.
This distinction is the basis of the system of Domat, to which we
will principally direct our attention.
Domat begins by laying it down that every sort of laws may be
reduced to two kinds, which comprehend all laws of whatever nature.
One is, of the laws which are immutable, and the other of those that
are arbitrary. These two characters are the most essential part of the
nature of all laws.
The former class of laws include those which the theologians com-
prise under the term Lex tsterna. St. Augustine says, Legem ceternam
esse summam raiionem in Deo existentem cui obtemperandum est. A The
latter words show that he means natural law, considered as a rule of
conduct applied to men, and this remarkable passage agrees with the
definition of St. Thomas Aquinas. Lex naturalis nihil aliud est
quam participatio legis ceternce in rationali creatura.* But this part of
the subject should be fully explained before we proceed, because it is
important to establish fundamental doctrines as clearly as possible.
St. Thomas Aquinas discusses the question whether it can properly
be said that the attribute of justice belongs to God, and, according to
his usual method, he states divers objections, the chief point of which
consists in the difficulty of supposing justice where there is perfect
freedom of will, and no duty or obligation.
He answers that there are two species of justice. One consists in
mutual obligations or giving and accepting, such for instance as buying
and selling, and other communications or commutations of like nature,
which is called commutative justice. And this cannot be an attribute
of God. The other species consists in distribution, and is called dis-
tributive justice, according to which a governor gives to each in pro-
portion to his deserts/ Grotius explains the same distinction, and
says, that distributive justice, considered as a rule of human actions, is
the companion of the virtues which tend solely to the advantage of
others, such as liberality, compassion and wise conduct in the govern-
ment of a state.* 5
b Suarez, De Leg. lib. 1, cap. 3, ^ 6, 7.
c Pand. lib. 1, tit. 1, 1. 9.
d L. 1, De liber. Arbitr. c. 6.
e 1, 2, qusest. 91, art. 2.
f Div. Thorn. Summa Theol. par. 1, quaest 21, art.l.
Grot. Dr. de la G. 1. 1, ch. 1, $ 8 ; Pufend. Dr. de la N. et des Gens, 1. 1 , cb. 7, $ 1 1 .
IMMUTABLE LAWS. 65
St. Thomas continues, " As therefore the fitting and due govern-
ment of a family, or of any multitude, shows this sort of justice in their
ruler, so the order of the universe, which appears both in natural things
and in voluntary things, shows the justice of God." "Asa
right apprehended by the intellect is the object of will, it is impossible
that God should will anything except that which is according to the
rule of his wisdom. Hence he does justly according to his will, as
we do justly what we do according to the law. But we act according
to the law of a superior, whilst God is a law to himself." St. Thomas
goes on to show that in one sense things may be due from the Divine
will. For it is due to things created that they should have that to
which they are ordained, and so God works justice by giving to each
that which is due to it according to the principles of its nature and
condition as Divine wisdom has ordained. So that God's justice con-
sists in the fulfilment of His wisdom. On the other hand it is due of
right to God that his wisdom and his will should be fulfilled. Debitum
est Deo ut impleatur in rebus id quod ejus sapientia et voluntas habet
et quod suam bonitatem manifestat : et secundum hoc justitia Dei re-
spicit decentiam ipsius secundum quam reddit sibi quod sibi debetur. h
From these doctrines several important consequences may be de-
duced. They explain the celebrated dispute between Barbeyrac and
Leibnitz respecting the efficient cause of natural law. 1 Leibnitz
charged Pufendorf with seeking that efficient cause, not in the nature
of things and the maxims of right reason conformable thereto, and
which emanate from the Divine mind, but simply in the will of a su-
perior. Barbeyrac, however, shows that Pufendorf admits, in accord-
ance with St. Thomas, a natural law, founded on the nature of things,
which the Divine will could not contravene without being inconsistent
with itself. k And then he continues thus : " Our author does not pre-
tend that all that is called right or justice emanates from the arbitrary
will of a superior. He speaks of right and justice which are fitting
for independent beings. And he seeks for the rule of human actions.
He says that God is supremely just and follows inviolably the rules of
justice, which are in conformity with His infinite perfections ; so that
He cannot act otherwise, but also, no one can require Him to act in
a particular manner. And Pufendorf holds that with regard to men,
though they are entirely dependant on the Creator, yet God has not
made right and justice by an arbitrary will ; and that God could not,
h Div. Thorn. Summa Theol. par. 1, qusest. 21, art. 1. And see Grotius, Dr. de la
G. 1. 1, ch. 1, 10, num. 5.
1 Jugement d'un Anonyme, p. 406, printed with the Devoir de 1'Homme et du
Citoyen, edit. Amsterdam, 1735.
k Pufend. Droit de la Nat. et des Gens, 1. 1, ch. 2, 5, 6.
F
66 ON THE NATURE AND SPIRIT OF LAWS.
without inconsistency with his own perfections, prescribe to men any
other rules than those of justice. But our writer maintains, notwith-
standing, that the will of God, who, as their sovereign master, has full
right to restrain their freedom as he thinks fit, is the proper and direct
reason why men are obliged, and under a moral necessity, to obey the
rules of justice."
The doctrine of St. Thomas respecting the nature of Divine justice,
and Barbeyrac's explanation of Pufendorf's meaning, show that the
idea of justice is not necessarily connected with that of a superior, if
justice be regarded abstractedly. But if considered as a law for man-
kind, that is to say, as a rule of human actions, its obligatory force
must emanate from a superior. Thus Grotius defines natural law to be
principles of right reason which enable us to know that a certain action
is right or wrong, according to its congruity or incongruity with the
reasonable and social nature of man, and, consequently, that God, who
is the author of nature, commands or forbids the action. 1 And with
this definition the canonists agree. And we have seen in the pre-
ceding chapter, that the light retained by man after his fall, which teaches
him the natural rules of right and wrong, is one of the causes whereby
God sustains society, and one of the natural foundations of order therein.
The doctrines of St. Thomas regarding Divine justice also show
why it is that natural law is immutable. For, as it is impossible to
suppose that God can prescribe to men any rules of conduct inconsis-
tent with the Divine justice, so those rules must be immutable with
the justice from which they emanate.
We have now to discover the root of those immutable laws. Domat
tells us that they are called immutable, because they are naturally so
just, always and everywhere, that no authority can change or abolish
them, whereas arbitrary laws are those which a lawful authority can
establish, change, and abolish, according to circumstances. And he
continues thus " These immutable or natural laws are all those
which are necessary consequences of the two primary laws, and so es-
sential to the engagements which form the order of society, that they
could not be altered without injuring or destroying the foundations of
that order. But arbitrary laws are those which may be differently
established, changed, or even abolished, without violating the spirit of
the two primary laws, and without wounding the principles of the order
of society."
I Grot. Dr. de la G. 1. 1, ch. 1, 10.
"Zallinger, Inst. Jur. Nat. et Eccles. lib. 1, c. 2, 8, 11 ; Reiffenstuel, Jus Canon,
proem. 14.
II Zallinger, ubi sup. 10; Suarez, De Leg. lib. 2, c. 13.
Domat, Traitc des Loix, c. 11, 1.
IMMUTABLE LAWS. f>7
Grotius was somewhat misled by this idea of universality attached
to natural law. He says that a thing may be proved to be of natural
law in two ways, either a priori or a posteriori. The first method is
in substance that of Domat. It consists in showing the conformity or
inconsistency of a given act with the reasonable and social nature
of man. The second concludes that anything is of natural law,
because it is held to be so among all nations, at least the most civi-
lized. For as an universal effect presupposes an universal cause, such
general consent of mankind can scarcely be attributed to anything but
to what is called common sense. p Without going so far as Hobbes,
who argues that an appeal to the consent of mankind would require ab-
solute unanimity, it must be admitted, that Pufendorf and Barbeyrac
rightly reject this argument a posteriori, as unsafe and surrounded by
a multitude of difficulties. q Grotius has overloaded his pages with
quotations and references, for the purpose of showing that consent.
Equally unsound is his position that there is a jus gentium or law
of nations, which has acquired force by the consent of all nations,
or at least of several/ The consent of all is not to be found, as Pu-
fendorf justly remarks. 3 And indeed this voluntary jus gentium, distinct
from natural law, is shown by Pufendorf and Barbeyrac to have no ex-
istence. For in the first place, the name of law cannot correctly be given
to that, the obligation of which springs, not from the authority of a
superior, but from consent ; and as all independent nations are naturally
equal, no one nation can impose a law on others, nor can they together
prescribe laws to themselves. 4
The rights of ambassadors are placed by Grotius among the things
which belong to this supposed customary law of nations. But the
sacredness of these persons springs, as Pufendorf observes, from
natural law, because it is necessary for procuring, preserving, and
confirming peace among nations, and cannot without injustice be
denied to persons employed for such purposes." And so it is with
other things which have been attributed to this voluntary or arbitrary
law of nations. They for the most part rest on natural law.
There are indeed certain arbitrary customs used among civilized
nations. But if a sovereign think fit to give full and due notice that
he does not intend to observe them, he can only be blamed at most
for a want of courtesy and liberality, provided he do not violate any
P Grot. Dr. de la G. 1. 1, ch. ], 12.
<J Pufend. Droit de la Nat. et des Gens, 1. 2, ch. 3, 7.
r Grot. Dr. de la G. ubi sup. | 14. And see 1. 3, ch. 7, 9.
* Pufend. ubi sup.
' Pufend. Droit des Gens, 1. 2, c. 3, | 23, and notes.
Grot. Dr. de la G. 1. 2, ch. 18.
F 2
68 ON THE NATURE AND SPIRIT OF LAWS.
principle of natural law. x But it is no doubt best to observe those
customs, and in general it would be a violation of natural law to
disregard them without giving full and due notice to the other party.
It is evident, however, that they cannot be considered as laws.
Pufendorf rightly embraces the doctrine of Hobbes on this subject,
who divides natural law into the natural law of men and the natural
law of states, which is the law of nations. " The precepts of both (adds
the latter writer) are the same; but since states, when they are once insti-
tuted, assume the personal qualities of individual men, that law which,
when speaking of individual men, we call the law of nature, is called
the law of nations when applied to whole states, nations, or people." y
It follows from this definition and the principles just laid down,
that it is incorrect to speak of the agreements made in treaties among
nations as part of the law of nations. Those agreements must be
inviolably kept by virtue of a maxim of natural law which requires us
to perform our promises; yet they cannot for that reason be called
laws, except in an improper sense. And they no more constitute a
branch of law than contracts among individuals, which are certainly
not part of municipal law. 2
Domat, as we have seen, adopts the a priori method of proving the
immutable nature of laws, that is to say, that of showing that they
are natural laws. His system differs from that of other jurists in this
respect, that he makes the two primary laws the test of all others, and
holds that immutable or natural law is that which follows as a neces-
sary consequence from those two fundamental laws, on which he has
based his whole plan of human society.
And the same method is evidently applicable to every branch of
public law. The obligation to obey powers is a consequence of the-
first law, because God has established them : and it is a consequence
of the second law that we ought not to wrong any one, but ought to
render to every man what is due to him. These rules are essential to
the order of society, and they are therefore immutable or natural laws.
And so it is with all the particular rules which are essential to the
same order, and to the engagements which follow from the first laws.
Thus it is a rule essential to the engagement of a guardian, that as he
holds the place of a father to the orphan under his charge, he ought
to watch over the conduct and property of that orphan, and this is an
immutable law. Thus it is a rule essential to the engagement of a
borrower in the contract of commodatum, that he ought to preserve the
* Pufend. Droit des Gens, 1 2, c. 3, 23 ; Grot. Dr. de la G. 1. 1, c. 1, 14, n. 3,
Barbeyrac ; Wheaton, Elements of International Law, vol. i. p. 39.
y Pufend. ubi sup.
1 Pufend. Droit des Gens, 1. 2, c. 3, 23.
IMMUTABLE LAWS. 69
borrowed property, and be answerable for any breach of that duty.
These are immutable laws. a
We must observe here, that the theologians consider man in two
natures with reference to natural law. First, according to simple
human nature, and the light of reason belonging to a reasonable mind ;
and secondly, according to the nature of grace, and the divine and
supernatural light of faith by which he is governed in life. On these
two principles they distinguish two sorts of natural law, one simply
natural with respect to man, and the other, which though supernatural
with regard to man, may be called natural as regards grace, because
grace has its nature and essence and light, not only directing man to
the due operation of that supernatural influence, but also dispelling
errors touching the simply natural law, and prescribing its observance
under a higher reason. Thus, as the simply natural law is divine
because it emanates from God, so still more is the other branch
divine. For the former is from God through the medium of nature,
while the latter is from God infusing grace and a supernatural
light. 5
Both these branches of law evidently spring from the two primary
laws prescribing the love of God and of our neighbour; and this
shows the connexion of theology with jurisprudence, and the harmony
of those two sciences. The theological distinction just given is also
important with reference to ecclesiastical jurisprudence. For though
ecclesiastical law has for its object (as Suarez learnedly shows) the
external acts of men, (according to the common maxim, Ecclesia
non judicat de occultismyet it has for its ultimate object that which
cannot be done without the more divine branch of natural law. c It is
a rule of civil conduct, a rule to govern the actions of the citizens of
that commonwealth of which it is the municipal law, that is to say,
the Church. And its final object is to direct those citizens to things
beyond this life and world. So Reiffenstuel says that the canon law
is constituted for these purposes : ad recte vivendum, aternarnque salu-
tem consequendam , et justitiam in populo Christiana conservandam. d
Consequently the canon law, though operating as a rule of external
actions, must also have a reference to that Divine natural law which
regards man according to grace and the light of faith.
ReifTenstuel says in the passage just referred to, Jus canonicum est
jus positivum. But he means this only in the sense that it is as it
* Domat, Loix Civiles, Traite des Loix, ch. 11, num. I.
b Suarez, De Leg. lib. 1, cap. 3, 2.
c Ibi, lib. 4, cc. 12, 13; Decret. Gratian. Tract, de Pcsuit. cc. 14, 31 ; Concil. Tri-
dent, sess. 24, De Reform. Matrim.
d Lancelot, Inst.Jur. Can. lib. 1, tit. 1, 1; Reiffenstuel, Jus Can. proem. iii. 36 41.
70 ON THE NATURE AND SPIRIT OF LAWS.
were the municipal law of the Church, deriving its authority, in its form
as municipal law, from the legislative authority in the Church. And
it is evident that the doctrines of Domat respecting mutable and immu-
table laws apply to ecclesiastical law. This is another analogy between
ecclesiastical and temporal laws.
But in ecclesiastical jurisprudence there are Divine positive laws,
that is to say, those immediately enacted by the Divine will, and not
necessary consequences of the two primary laws. 6 They are immu-
table so far as regards any human authority. And indeed they may
be traced indirectly to the first of the two primary laws, because the
love of God requires obedience to His laws.
Suarez argues that the necessity for these Divine positive laws is not
absolute in order to their supernatural end, but as it were hypothetical,
that is to say, necessary in consequence of a given fact, such as the
existence of the Church. For though a supernatural law is necessary,
that law which is of the nature of grace might have been sufficient.
And the necessity of adding a Divine positive law arose from the
institution of a mystical spiritual body, the Church. Subject to this
modification the principles of St. Thomas Aquinas are applicable to
this positive law/ For St. Thomas says, that the Divine law is ne-
cessary for four purposes or reasons. The first is to direct man to a
supernatural end. And we have seen that this is the ultimate object
of ecclesiastical laws. The second reason is, that man may live
even in this natural state so as not to do wrong. The third is, to re-
gulate even his internal acts. And the fourth, to forbid all evil, which
human law cannot do. g
The last of these reasons contains a profound thought, which fur-
nishes a key to many difficulties regarding the relation of Divine to
human laws. To understand it we need only reflect how vast are the
consequences of the two primary laws, and how necessary those con-
sequences are for the maintenance and welfare of human society ; and
yet human laws are manifestly insufficient to give them their full effect
among men.
This shows the insufficiency of temporal governments even for the
purpose of obtaining full benefit from the institutions of human society.
We have seen that civil government is necessary to keep men within
the order of their engagements. But even this can at best be done
imperfectly by governments and laws. And still less can they make
men fulfil all the obligations which the two primary laws prescribe.
Yet as those two laws are the foundation of all the laws of man which
e Suarez, De Leg. lib. 1, cap. 3, 14.
f Ibi, 16.
s Ibi, 15.
IMMUTABLE LAWS. 71
are the rules of his conduct directing him to his end, b it is evident that
the more completely they are fulfilled, not only in letter but in spirit,
the happier will be human life and human society. And none of the
direct consequences of those two primary laws (which are all natural
immutable laws) can remain unfulfilled without injury to man.
Moreover we have seen that the general ties which God has formed
to engage man in society, arise from the destination of all mankind
to one end under the same laws ; and they are therefore common to
all the human race.' But civil governments are confined to separate
communities of men, and are therefore not co-extensive in their
operation with those general ties. The scheme of society would con-
sequently be imperfect without some system of a more extensive
nature than civil governments. And jurisprudence would be incom-
plete as a system comprising all the laws whereby the conduct of man
is to be regulated and directed towards his end. For only a small
part of the immutable laws composing the body of natural law can be
confirmed and enforced by municipal laws. Yet it would be absurd
to say that any part of natural law is useless or to be neglected, be-
cause ye cannot suppose that any Divine law is superfluous. All laws
given by God concur to the same end, and are required for the economy
of Divine government.
And so that branch of natural law regarding man according to
grace and the light of faith, is not unnecessary even on earth ; yet it is
manifestly beyond the sphere of civil laws and polity. We have seen,
as Suarez teaches, that this sort of natural law directs the interior
man, dispels errors concerning the simple natural law, and prescribes
its observance under a higher reason. k It is a branch of the Divine
law regulating and directing the interior acts of the soul, and their
exterior manifestations, with reference to the rule of conduct shown by
grace, and the light of faith. It belongs essentially to theology, be-
cause grace and faith are things purely spiritual ; l and if looked upon
objectively, that is to say, in itself abstractedly, it is a matter exclu-
sively theological. But if regarded subjectively, that is to say, in
man as its subject, and with reference to acts internal and external, as
a rule of conduct, it is a portion of universal jurisprudence. 1 " And
here we see the impossibility of separating jurisprudence entirely from
theology. So even a pagan jurisconsult says, Jurisprudentia est di-
h Domat, Loix Civiles, Traite des Loix, ch. 1, ^ 3.
t Ibi, ch. 2, 3.
k Suarez, De Leg. lib. 1, ch. 3, 2.
1 Devoti, Inst. Canon, lib. 2, tit. 2, 2; Lancelot, Inst. Jur. Can. lib. 2, tit. 1,
princip.
m Zallinger, Inst. Jur. Nat. et Eccles. lib. 5 ; Liber subsidiarius, cap. 1, 2.
72 ON THE NATURE AND SPIRIT OF LAWS.
vinarum atque humanarum rerum notitia ; justi atqne injusti sciential
But this is sufficiently pointed out by the first of the two primary
laws, and the relation of man to, and his dependence on, his Creator,
Governor and ultimate end.
These reflections on the vastness of the system of immutable laws,
and the limited scope of municipal laws and government, lead to very
important consequences with reference both to universal jurisprudence
and to the practical part of Public Law.
Let us take a glance at the general plan of universal jurisprudence.
In the first place the whole system springs from the two primary laws.
Natural or immutable laws are direct consequences of those primary
laws. And arbitrary laws derive their authority from the same source,
because the obligation to obey powers springs from the two primary
laws.
On those two laws depends the peace of human society, which St.
Augustine beautifully describes as ordinata imperandi obediendique con-
cordia, and the fruits of that peace to which the use of temporal
things is referred in temporal society, which he calls civitas terrena. p
Now the classification of laws, with reference to the authority from
which they emanate, shows two great branches human laws and
Divine laws. Human laws are either temporal or ecclesiastical. The
former have sole direct regard to the welfare of the civitas terrena
human society considered in itself. The latter are the laws of a mys-
tical spiritual body, which, being composed of men, is partly temporal,
but is distinct from civil society.
Divine laws, in like manner, have reference to human society con-
sidered as such, or to that mystical spiritual body the Church. 1 Thus
the Divine law, requiring us to obey powers of civil government, re-
gards human society, while that which ordains the hierarchy of the
Church belongs to a distinct separate society of men.
Many of those Divine laws are copied and enforced by human laws,
as we shall see more fully when we come to consider the subject of
arbitrary or mutable laws. And, again, many ecclesiastical laws are
enforced by temporal laws. The reason of these double laws (both
human and divine) is, that God has delegated his authority to human
powers, that they may fulfil the objects which Divine Providence has
committed to them. We have seen that government is required to keep
every man within the order of the ties and engagements which bind
him in human society for the fulfilment of the second of the two pri-
n Ulpian, 1. 10, ff. De Just, et Jur.
Zallinger, Inst Jur. Nat. et Eccles. lib. 5, cap. 11, 60, 63.
P Div. August. De Civ. Dei, lib. 19, cap. 14.
' Suarez, De Leg. lib. 1, cap. 3, 16.
IMMUTABLE LAWS. 73
mary laws ; and, therefore, human powers must enforce the Divine laws
by the power given to them, so far, at least, as those laws come within
the scope of their commission. r This, indeed, as St. Augustine tells
us in one of his finest passages, is absolutely essential to the existence
of human society falsum esse quod a quibusdam non recte
sentientibus did solet id essejus quod ei qui plus potest ittile est. Quo-
circa ubi non est vera justitia, juris consensu sociatus ccetus hominum
esse non potest, et ideo nee populus* And so Cicero says Non modo
falsum esse istud sine injuria non posse, sed hoc verissimum sine summa
.justitia rempublicam regi non posse. And St. Thomas Aquinas tells us
that human government is the more exalted in proportion as it is best
ordained to the ultimate end of man/ which is that of the Divine law
directing his conduct towards his end.
With regard to the other sort of double laws those which are both
temporal and ecclesiastical their reasons depend on the relation be-
tween the functions of the two powers, temporal and spiritual, which
ought to conjoin together for the good government of mankind, the
one assisting the other."
A careful meditation on this plan of universal jurisprudence shows
that there is a great and necessary part of the system beyond the
operation and scope of municipal laws and human government. In
the first place, their direct object is confined to the temporal objects of
that human society which St. Augustine calls civitas terrena. But
man requires a further guidance, assistance and rule of conduct, because
he has a reasonable soul, x and the end of his creation is beyond that
terrestrial city. Consequently, the laws which are to govern man must
belong not only to the terrestrial but also to the celestial city, and to
the civitas Dei, which extends over both. The Divine law must,
therefore, be far more vast in its operation than that law partly Divine
and partly human, which is a rule of conduct to man solely with refer-
ence to the terrestrial city that is to say, to human society and the use
of temporal things.
r Prov. viii. 15 ; Wisd. vi. 4 ; Deut. xvii. 19 ; Rom. xiii. 4; Div. Thomas Aquin.
Opusc. De Regim. Princip. cap. 8.
Div. August. DeCiv. Dei, lib. 19, c. 21.
1 Div. Thomas Aquin. Opusc. De Regim. Princip. lib. 1, cap. 14,
Extrav. Unam Sanctam, De major et obedient. ; D'Aguesseau, CEuvres, torn. 1,
p. 416; Domat, Loix Civiles, Traite des Loix, ch. 10.
Sed ne ipso studio cognitionis propter humanae mentis imfirmitatem in pestem ali-
cujus erroris incurrat, opus habet magisterio divino, cui certus obtemperet, et adjutorio
ut liber obtemperet. Et quoniam quamdiu est in isto mortal! corpore, peregrinatur a
Domino ; ambulat per fidem, non per speciem ; ac per hoc omnem pacem vel corporis
vel animae, vel simul corporis et animoe, refert ad ilium pacem, quae homini mortali est
cum Deo immortali ; ut ei sit ordinata in fide sub aeterna lege obedientia. Div. August.
De Civ. Dei, lib. 19, cap. 14.
74 ON THE NATURE AND SPIRIT OF LAWS.
No part, however, of that Divine law can be a mere abstraction, for
the whole of it is prescribed as a rule of conduct to man ; and it is so
interwoven together in all its parts that it forms one system which
cannot be dismembered or divided, springing from the two primary
laws.
It follows that there must be some system of government more
extensive than civil governments, capable of preserving, teaching and
giving effect to those laws which temporal powers are unable to enforce
or can enforce but imperfectly.
Thus Domat holds Religion to be the most natural foundation of the
order of society y among mankind, and we have seen that it cannot be
separated from jurisprudence.
Savigny writes as follows : " Public Law is also in contact with
ecclesiastical law. Humanly speaking, the Church, considered as a
community, a corporation, might belong to both public and private
law, and be comprised within their domains. But its authority over
the interior man rejects such an assimilation. History shows us that
the Church and its law have at different times held a very different
place in the State. Among the Romans the jus sacrum was part of
the public law, and was regulated by the State. Christianity, by reason
of its universality, cannot be subjected to a purely national direction or
government." 2 This remarkable passage shows how the Christian
religion and the Catholic Church filled up a void in jurisprudence and
government or polity which could not be filled by the Old Testament
and the Jewish Church, because they had not the character of univer-
sality, but were given to a particular people, so that their legal nature
was chiefly positive and municipal. Savigny says, that " ecclesiastical
law is a special body of law independent both of public and of private
municipal law." a
We must conclude that the Catholic Church and the laws of the
Church belong to a system of public law invested with a wider unity
than that of municipal law, public and private, and embracing the
whole human race. Being a visible society composed of men, it must
have a visible form and government ; b and it is also a mystical spiritual
body, having not only unity on earth, but a unity with its invisible part
belonging to what St. Augustine calls civitas Dei. Its laws are there-
fore universal, so far as they are essential and immutable.
y Domat, Loix Civiles, Trait< des Loix, cb. 9, 8.
Savigny, Traite de Droit Rom. torn. 1, pp. 26, 27, Paris, 1840. And see Ma-
riana, De Rege, lib. 1, cap. 10.
Ibi.
b Devoti, Inst. Jur. Canon. Prolegom. cap. 1, 5 ; Zallinger, Inst. Jur. Natur. et
Eccles. lib. 5, cap. 1, 316, 317.
IMMUTABLE LAWS. 75
Without this character of universality they could not be the com-
plement of universal jurisprudence, because they would be municipal
laws and of a restricted nature, and therefore inconsistent with the
universality of Christianity. They would not be the universal sanction
(sanctio) of the whole Divine law in all its branches ; and that sanc-
tion can only be given by c a body partaking of the same universality,
existing, as Savigny says, beside the State in each country, but revolving
round a different centre from that of the political system of the State,
because it belongs to a polity invested with a wider and an universal
unity.
Many writers who attempt to solve the difficult problem of the
relation between the temporal and spiritual powers, have neglected
these important doctrines of Universal Public Law, because they con-
sider the questions in dispute as belonging to municipal public law, or
the constitutional law of each state. But that problem appertains to
universal jurisprudence, and can only be understood by investigating
the place which the laws of the Church hold as part of that science,
and also the characteristics of unity and universality essential to the
Church with reference to those laws and their administration, both
interior and exterior.
CHAPTER VIII.
ON THE NATURE AND SPIRIT OF LAWS. OF ARBITRARY OR POSITIVE
LAWS, AND THE LEGISLATIVE POWER.
THE difference between immutable and arbitrary laws has already been
briefly shown. But this subject requires full consideration. We have
seen that immutable or natural laws affecting men are those derived
from the two primary laws of which they are consequences. Thus the
rules of equity mentioned by way of example in the last chapter, and
other similar rules, are that which the spirit of the second law requires
in each engagement.
The laws not essential to the two primary laws, and the engage-
ments derived therefrom, are arbitrary laws. They may, therefore,
be differently established, changed and even quite abolished, without
violating the spirit and intent of the two fundamental or primary laws,
and without injuring the principles of the order of society. Thus it is
not material, with reference to the two primary laws, whether two
c Reiffenstuel, Jus Canon. Univers. proem, ^3, num. 36.
76 ON THE NATURE AND SPIRIT OF LAWS.
witnesses or three be required to a will or deed, or whether the form
of government in a given country be a monarchy or a republic.
The first point which we have to consider is the human power to
make laws.
St. Thomas Aquinas throws light on this subject. d He argues as
follows : In all things ordained to a certain end, where they may
proceed in one way or another, some direction is necessary whereby
that end may be attained. Now man has an end to which all his
life and actions are ordained, because he acts by understanding.
St. Thomas then shows that it is according to man's nature, and
indeed necessary to him, to be a sociable and politic animal ; and as it
is natural that man should live with many other men, so it is necessary
that among men there should be something to govern that multitude,
because if every man sought what he pleased, the body would be dis-
solved for want of some power to direct the members to the common
good.
That power is what Grotius calls the civil power, which is the moral
power of governing a community. It acts either in general affairs or
regarding particular matters. General affairs are regulated by certain
general rules called municipal laws. 6
Suarez follows the same line of argument as St. Thomas ; f and he
draws the celebrated distinction between imperfect and perfect human
societies. The imperfect is that of the family or domestic, and the
perfect is the politic society. They are so called because the former
cannot have within itself all that is requisite for the purposes of
human society and life. The consequence of that imperfection is, that,
ex necessitate rei, a more extensive community is required, that is to
say, the politic society, which is called perfect because it is sufficient to
itself, containing all those temporal things for which men are brought
together by the Divine will, in the civil social state.
The second point is, that a perfect society or body politic requires a
power by which it is governed ; and as nature is not wanting in what
is necessary, it follows, that since a perfect community is in accord-
ance with reason and natural law, so must likewise be the power of
governing, without which it would fall into confusion. The same
reasons prove the existence of a due authority and subordination in
the family or imperfect community.
The third point proved by Suarez is, that the human magistrate or
civil power, if supreme in his order, has the authority to make civil or
d Div. Thomas, De Regim. Princip. lib. 1, cap. 1.
* Grot. Droit de la G. 1. 1, c. 3, 6.
1 Suarez, De Leg. lib. 3, cap. 1.
ARBITRARY OR POSITIVE LAWS AND LEGISLATIVE POWER. 77
municipal laws, The reason is, that the civil magistrate being essen-
tial in the commonwealth, and the making of laws one of his most
necessary functions, therefore the power to make laws must exist in
the civil magistrate or government of civil society. For whoever
receives an office, receives also the authority necessary for its ex-
ercise. 5
Such are the principal arguments of Public Law, by which the
legislative power in civil society is shown to belong to that secondary
natural law which springs from the institution of the social state.
We must now see the application of these principles to the ecclesi-
astical branch of Public Law. In the first place, the Catholic Church
is a perfect body or society, because it has within itself everything
necessary for the accomplishment of the end for which it was founded,
and that end is that of man's existence. h It follows that the Church
must have the power which belongs to other perfect societies or bodies
to make laws for its internal regulation. Being a visible body, it
must be governed by a visible power ; and the functions of that power
are analogous to those of other politic supreme powers. '
Suarez refutes the error of those who deny the existence of a legis-
lative authority in the Catholic Church. He asserts that there exists
in the Church a peculiar power to regulate and govern. And this he
proves with abundant authorities, both from the Scriptures and the
writings of the Fathers. 14 And he argues, that as the Church is a
mystical body of Divine institution, therefore it must be constructed
completely and in order, which would not be without a sufficient power
to rule and govern it. Therefore, there is in the Church a Sovereign
authority in spirituals. And that authority has the faculty of ordain-
ing by general rules.
It is a true legislative authority. The principles already laid down
prove this, as well as the character of the authority itself, for a perfect
community or society cannot be governed without laws. The power
of making general permanent rules of conduct is legislative, and those
rules called canons are the laws of the Church. 1
Those who erroneously hold the Church to be an imperfect body,
naturally infer that the Church has no legislative power, because, being
within the State, it is for the State to make ecclesiastical as well as
civil laws. The Chancellor D'Aguesseau holds that the Church is
* L. 2, ff. De Jurisdic. ; 1. 5, ff. De offic. ejus cui mand. est Jurisdic.
h Durand de Malliane, Inst. du Droit Can. torn. 1, pp. 52, 53; Suarez, De Leg.
lib. 4, cap. 1, $ 5 ; Vattel, Droit des Gens, liv. 1, ch. 2, 14, 15.
1 Devoti, Inst. Canon. Prolegom. cap. 1, 5; cap. 2, 17.
k Suarez, De Leg. lib. 4, cap. 1.
1 Devoti, Inst. Canon. Prolegom. cap. 3, 25, 26.
78 ON THE NATURE AND SPIRIT OF LAWS.
within the State, and not the State within the Church. But that
great magistrate wrote with the prejudices of a Minister of State.
And the description which Grotius gives of the civil power does not
agree with that opinion. It is true that Grotius speaks of a right of
the civil power regarding the affairs of Religion, but he admits that it
is a limited right and power." And no doubt he is correct in this sense,
that the State has power to restrain any religion manifestly contrary to
morality and the welfare of society, which must be a false religion.
And Barbeyrac, in a note to Pufendorf, observes that Religion was
anterior to civil societies, and formed no part of their establishment. 1 *
It follows, therefore, that even according to the opinion of these writers,
there is a province in government exclusively belonging to the spiri-
tual power, that is to say, the Church. Within this province they
must admit that the Church is supreme, and therefore has power to
make laws for its own government. The only question therefore is,
as to the extent of that power ; for if the Church were simply a body
within the State, it would follow that the State would have an abso-
lute unlimited power over it, as over other municipal bodies. And
this would be at variance with the principles explained in the last
chapter, which establish that both universal jurisprudence and civil
government, considered as part of public law, would be incomplete
without an ecclesiastical law and a church, both of them universal, and
therefore separate from the civil laws and government, which are
municipal.
This would suffice to show the error of Pufendorf and Febronius,
who make the Church a college, or municipal corporate body politic.
This is a correct description of local religious bodies contained within
the limits of municipal law. But it cannot apply to the Universal
Church, which, from its essential constitution, embraces all mankind,
and is the same everywhere ; its constitution being part, not of the
municipal law of each or any country, but of Universal Public Law.
To say that the Church is within the State is to say that the greater is
contained by the less, or reduce the relation of the Church in a parti-
cular place with the remainder in other places, to a mere speculative
unity instead of a visible constitutional unity consisting in an un-
broken subordination of powers in regular progression under a
general law, from the apex, or centre of unity, to the base of the
pyramid.
m D'Aguesseau, CEuvres, torn. 1, p. 416.
n Grot. Droit de la G. liv. 1, ch. 3, 6.
Noodt, Dissert, de Religione ab Imperio Jure Gentium Libera ; Noodt, Op. torn. 1,
p. 6H.
P Pufend. Droit des Gens, liv. 7, ch. 4, 11, n. 2.
ARBITRARY OR POSITIVE LAWS AND LEGISLATIVE POWER. 79
According to the principles of jurisprudence that is the only sort of
unity of which the parts of a visible body politic, q governed by visible
means, are susceptible. The opinion of D'Aguesseau above referred
to can only be received in this sense (in which probably he meant it),
that with regard to double or mixed laws, that is to say, laws both
municipal and ecclesiastical, the Church is considered as within the
State by a sort of legal fiction, so far as the municipal laws affect it.
And, indeed, the Chancellor explains his views of Church and State
consistently with the famous Decretal Unam Sanctam,* for he says
that a king must serve God, not only as a man, but as a king ; and
that he should assist the authority and laws of the Church. D'Agues-
seau, therefore, fully recognizes the distinction between the temporal
and the spiritual powers even in exterior things.
Domat says that Religion and temporal government have their
common foundation in the Divine order, and therefore they should
assist and support each other; but yet, as they are different, God
has separated the administration of the one from that of the other. 5
And herein he agrees with the canonists, who hold that the two
powers temporal and spiritual are separate and distinct, having
each a particular province in which it is supreme. 1 This is the only
doctrine on the matter in question that agrees with the principles of
Ecclesiastical Public Law, on which the constitution of the Universal
Church is constructed. For the universality and the unity of the
Church are not abstractions, nor theological opinions, but practical
visible realities of Ecclesiastical Public Law, because the Catholic
Church is a real visible commonwealth, in the form of a monarchy,
every part of which is united with the rest according to an uniform
organic law. And the system extends beyond the State, and attaches
itself therefore to an exterior point or centre of unity. Consequently
the Church must necessarily have a self-governing power, separate
and distinct from that which governs each state or nation.
The difference of the origin of the two powers is a further argument
to show that they are separate and independent, though, for certain
purposes, they conjoin together. The State comes from secondary
natural law," being a consequence of the social condition of mankind,
i It is corpus ex distantibus as Pomponius says ut corpora plura non soluta sed
uni nomini subjecta, veluti populus, legio, grex. L. 30, ff. De Usurp, et Usucap. And
see 1.1, 3, ff. De Rei Vindicat. 1. 23, 5, ff. ibi ; Instit. Tit. de Legat. 18.
r Extrav. Unam Sanctam, De major, et obedient.
8 Domat, Loix Civiles, Traite des Loix, ch. 10. And see Mariana, De Rege, lib. 1,
cap. 10.
I Devoti, Inst. Canon. Prolegom. cap. 1, 6; Zallinger, Inst. Jur. Eccles. et Pub.
lib. 5, cap. 6, 3fi5.
II L. 5, ff. De Just, et Jur.
80 ON THE NATURE AND SPIRIT OF LAWS.
which natural law points out. And though the civil power be of
Divine institution, yet Suarez shows the specific form of the civil
power, or political power of government in each particular country, to
be juris humani,* and therefore positive and mutable.
But the Church is of direct Divine institution.* And being given
for all mankind, and not (as civil governments are) for particular coun-
tries or nations, its constitution is substantially the same everywhere.
It has that uniformity which we see in works of creation. And that
constitution is of Divine institution in the form which its organic laws
give to it.
It is impossible, even on mere legal principles, to deny that the two
bodies politic thus described, with reference to their origin and general
character, must be separate and distinct, and have separate powers of
self-government.
The case is different where there is an established Church or reli-
gious body recognised and privileged by municipal laws, whose entire
visible system is complete within the territory governed by the state
or civil government. Such a body is legally municipal, even though
it were a connection with or affinity to exterior bodies, provided they
be not an essential part of its constitution. The Church is within the
State and not the State within the Church. It has functions different from
those of the civil magistrate, but there is no principle of public law
to show that it must have a separate power of self-government. Its
laws are municipal, and may be made by the legislative authority of
the State, since they affect exclusively the subjects of the sovereign
power in that particular country. 2 Those laws ought not to violate
the rights of conscience, and religious liberty of the members of the
established religion; but this does not affect the principle that they
are municipal laws forming part of the municipal legislation of the
country. It only proves that, like other municipal laws, they ought
not to be harsh or unjust. A religious body of this kind may, how-
ever, possess a subordinate power of making regulations in the nature
of bye-laws with the concurrence of the civil magistrate, as is the case
with the two convocations of the Anglican Church. a
Those laws which the Chancellor D'Aguesseau calls mixed, afford
no argument against the doctrine of the separation and independence
* Suarez, De Leg. lib. 3, cap. 4, 5 ; Covarruvias, Op. torn. 1, p. 189 ; Reiffenstuel,
Jus Can. lib. 1, tit. 2, p. 62; Grot. Dr. de la G. lib. 1, ch. 3, 6, 7; Pufend. Dr.
des Gens, 1. 7, ch. 3, 2.
y Devoti, Inst. Jur. Canon. Prolegom. cap. 1, 3.
* See the able summary of Hooker's views, given by the Right Hon. W. E. Gladstone,
in " The State in its Relations with the Church," p. 7 9.
Middleton v. Crofts, 2 Atk. 605 ; Stra. 4056.
ARBITRARY OR POSITIVE LAWS AND LEGISLATIVE POWER. 81
of the two powers within their respective provinces. For they are
Ecclesiastical Laws which have received the sanction of the temporal
legislator, or regulations made by the Church regarding certain tem-
poral matters, viewed in their relation to spiritual things, and not
otherwise.
Thus Domat says, " It may be thought that the spiritual powers
have made regulations on temporal matters, such as are in the canon
law, those which regard contracts, wills, prescriptions, crimes, the
order of judicial proceedings, the rules of law, and other matters of
like nature : and that we also see laws made by temporal powers in
matters spiritual, such as some constitutions of the first Christian
emperors, and ordinances of our princes touching matters of faith and
of church discipline. But what is in the canon law relating to tem-
poral matters cannot prove that the ecclesiastical powers regulate
temporal concerns. It appears on the contrary, that at the beginning
of the canon law, where distinction is made between Divine laws and
human laws, it is said, that the human laws are the laws of princes,
that it is by these laws that the rights to everything that man can
possess are regulated, and that even the goods of the Church are pre-
served to it by the authority of those laws, because God has given to
princes the ministry of the government in temporal things. 6 Since
therefore there can be nothing in the canon law which overturns this
rule, it follows, that the rules which we see therein concerning temporal
matters are capable of being reconciled with this principle. And this
is not difficult if we reflect on the use that the rules relating to tem-
poral affairs have in the canon law. For we shall find that, for
example, the rules concerning the order in judicial proceedings relate
to the ecclesiastical jurisdiction : that those about crimes establish
the canonical punishments, that is to say, the punishments which the
Church enjoins for the penance of criminals; that the rules which
relate to contracts, wills, prescriptions, and the like, relate to them only
in reference to spirituals, as because of the prohibition of certain
dealings to ecclesiastics, because of the religion of an oath, and be-
cause of the use of covenants for churches and particular ecclesiastics,
and other similar views ; that some of these rules are only answers of
the Popes to consultations ; and lastly, that whatever rules are there
which relate purely to temporal things among laymen, ought to be
considered only as rules binding the subjects of the territories of the
b Distinc. 8. can. 1. Quo jure defendit villas ecclesiae. Divino an humano? Di-
vinum jus in scripturis Divinis habemus humanum in legibus regum. Unde quisque
possidet quod possidet? Non-ne jure humano ? Jura autem humana jura imperatorum
stint: quare? Quia ipsa jura humana per imperatorem et rectores saeculi Deus dis-
tribuit humano generi.
G
82 ON THE NATURE AND SPIRIT OF LAWS.
See of Rome in which the Popes are temporal princes. And without
those territories they have no other authority than what is given to
them by the temporal sovereigns who receive the use of them among
their subjects. Concerning which it may be observed, that these sort
of constitutions in the canon law regarding temporal matters, show
plainly enough that they are derived from temporal authority, seeing
the greatest part of them have been taken out of the Roman Law,
though it be true that some of them are contrary to it."
" As for the regulations which temporal princes may have made
touching spiritual matters, they have not extended their authority to
the spiritual ministry that is reserved to the ecclesiastical powers, but
they have only employed their temporal authority to put the laws of
the Church in execution in the external order of the government of the
Church. And even those very ordinances which our kings call political
laws are only to maintain the external policy of the Church, and to
restrain those who disturb it by transgressing the ecclesiastical laws."
" And likewise it appears from the ordinances themselves, that the
princes ordain nothing in them but what properly belongs to their
temporal power, and call themselves therein the protectors, guardians
and defenders of the faith, and executors of what the Church teaches
and ordains."
This remarkable passage shows the nature of mixed laws. We
may gather from it that they are of three sorts. The first are laws ap-
parently mixed, because they are included in the canon law emanating
from the Holy See, and regard temporal matters. But they are really
temporal laws, for they were made by the popes as temporal princes for
their own territory in Italy. The second are ecclesiastical laws touch-
ing temporal matters in their immediate relation to the Church. The
third are laws of temporal princes regarding spiritual matters.
The second of these classes are evidently within the legislative au-
thority of the Church, because as the Church is a visible society of
men, and its functions and administration require the use of things of
a temporal nature, it follows that the ecclesiastical laws must regulate
and govern certain things, though in themselves temporal, so far as is
requisite for the ends for which they are used to a spiritual purpose.
And thus the acts of certain persons, though in their nature temporal,
must in some instances be forbidden or regulated by the ecclesiastical
law with reference to a spiritual object. Of all these things we have
seen that Domat gives instances. As for the third class, they must
be considered spiritual laws, to which the civil power only adds a tem-
poral sanction and confirmation. The separation of the two powers is
c Domat, Loix Civiles, Traite des Loix, ch. 10, 11 13.
ARBITRARY OR POSITIVE LAWS AND LEGISLATIVE POWER. 83
thus made more evident by examining mixed laws, wherein they at
first sight seem blended together.
An explanation has already been given of the diversity between
temporal and spiritual laws, with reference to the place which the
Church and the law of the Church hold in the system of universal
jurisprudence. Some further points in the same subject remain to be
considered with regard to the distinction of the two legislative powers,
temporal and spiritual.
Though those two sorts of laws resemble each other in all the fea-
tures constituting the essentials of law, and though they have certain
objects in common, yet both their matter and their spirit are different
and distinct. For as the one law is temporal and the other spiritual,
so the matter of the former is temporal and that of the latter spiritual.
And it cannot be objected to this diversity, that both may command
in matters relating to all the virtues. For, as Suarez shows, the im-
mediate matter (materia proxima) of the law is the act itself, and that
which it concerns or affects ; and that may be either the thing or the
person regarding which the act commanded or forbidden is done.
But other things consequentially belong to the matter of the law by
reason of the nature of the act. Thus the immediate and principal
matter of the spiritual law is a supernatural act, such as an act of faith ;
and therefore all laws relating to faith are ecclesiastical, because their
matter is entirely spiritual. So it is with respect to the acts of the
sacraments. And thus acts, which in other respects are natural and
human (such as matrimony, inasmuch as it is a human contract), be-
long to ecclesiastical law, because they are elevated into sacraments.
It is the same with regard to other sacred acts, and those especially
which belong or relate to Divine worship. And from thence the
consequence has been drawn that the things which those actions re-
late to, immediately belong to the matter of the ecclesiastical law, as
for instance sacred persons, places and churches, sacred vessels and
utensils, and the like.
It follows also, that the wrongs contrary to the acts and things
above referred to, belong also to the matter of canonical law which
forbids them. And as all sinful acts are adverse to spiritual good and
to the supernatural end of man, and are injuries against God, there-
fore they belong to the same order, and are the matter of ecclesiastical
law, so far as it is useful to make laws regarding them.
Suarez remarks that this declaration of the matter of the canonical
law shows that of the temporal or civil law. For that matter, fit for
human law, which does not reach the degree of spiritual things, is
temporal, in which are included proximately the moral acts necessary
to human society, and mediately all the things to which those acts
84 ON THE NATURE AND SPIRIT OF LAWS.
relate, and also persons, inasmuch as the state or human polity (civitas)
is composed of them. d
Suarez gives, as a second difference between the two laws, that the
spiritual law is more universal and of a more excellent nature. Of its
universality we have already treated, in order to show that it is a.
necessary part of universal jurisprudence, though it stands, as it were,
by the side of the municipal law in each state. We must here con-
sider the other quality attributed to it by Suarez.
Cardinal Contarini, in his book on the Constitution of Venice, 6
makes the following valuable reflections on the nature and spirit of
municipal laws. He speaks of positive laws, or at least of laws con-
sidered as such, that is to say, as emanating from the human legislative
authority.
" It has been much doubted whether the government of a city
should be given to one man, to a few, or to a multitude. And it has,
in my opinion, been most excellently and wisely held that the govern-
ment of men should not be granted to one man, but that there must
be something more divine to which the office of government should
be given. And this may be seen clearly from the example of animals,
which are not under the rule of one of their own nature, but of a far
more excellent creature, that is to say, man. Therefore as the com-
monwealth is ordained for the government of its citizens in the use of
the duties of life and of virtue ; the highest reason shows that some-
thing more excellent than man ought to govern men, in order that
those objects may be successfully attained.
" But as no creature in worldly affairs known to the senses is of a
more excellent nature than man, and he is an animal constituted of
different parts, being similar to beasts in the inferior impulses of his
mind, and approaching a Divine nature in the superior powers of his
soul, it is therefore right that that which in man is Divine should have
the office of government. This office must therefore not be entrusted
to a man, for he is often swayed and diverted from the paths of reason
by the inferior forces of his mind ; but it should be committed to the
mind, pure and free from those perturbations. And for this reason, as
that object could not otherwise be effected, it seems that by the inven-
tion of laws, mankind has by Divine council obtained this, that the
office of governing commonwealths be committed to the mind and to
reason free from passions. I know not whether this gift of God can
be deemed inferior to any other, if the utility of laws be judiciously
considered. For before they are ordained, many wise men assemble
d Suarez, De Leg. lib. 4, cap. 11, 68.
e Delia Repub. e Magistr. di Venetia del Card. Contarini, lib. 1, p. 2224.
ARBITRARY OR POSITIVE LAWS AND LEGISLATIVE POWER. 85
together, who, educated in the experience of many things, compare the
inventions of others and the examples of past times, and after long-
consultation they decide that which they think best ; nor are they
turned by hatred, friendship or any other passion, because a private
man has not an individual interest in the making of laws, as is the
case in decisions on particular matters. When the laws are once
established, if any man violate them and suffer the penalty which
those laws command, he cannot reasonably feel aggrieved on that
account against any one. And, therefore, there is not danger of sedi-
tions or strife in such cases. Whereas, if any one is punished by a
judgment, not of the law but of men, serious discord and enmities are
apt to arise, for we cannot help feeling ill-disposed towards any one
who has done us any mischief. Therefore I know not whether nature,
the mother of all things, ever gave to the human species anything
greater than this invention of laws, which was by the ancients reason-
ably consecrated to the Gods. And Aristotle, prince of the philoso-
phers, in that book which he wrote to King Alexander, found nothing
resembling God, except the ancient law of a well-governed city. This
is therefore the opinion of the great philosopher, that God is in the
universe what that ancient law is in a civil community. And in the
books wherein he treats of the republic, he says that the law is a mind
without appetite, meaning that it is a mind pure, lucid, and unstained
by any infirmity of passions. From these things, even a man of slow
apprehension may see why it is most necessary that something more
divine than man should rule and govern communities of men."
These profound observations of Contarini, whose wisdom had been
matured in some of the highest offices in his republic, agree with the cele-
brated description of law by Papinian. Lex est commune prceceptum ;
virorum prudentum consultum ; delictorum . . . coercitio; communis rei-
publicoe sponsio. And so Hooker says : " Even they which brook it
worst that men should tell them their duties, when they are told the same
by the law think very well and indifferently of it. For why ? They
presume that the law doth speak with all indifFerency : that the law
hath no onesided respect to their persons : that the law is as it were
an oracle proceeding from wisdom and understanding. Hovvbeit that
laws do not take their force from the quality of such as devise them,
but from that power which doth give them strength of laws." f
This important part of the spirit of municipal laws belongs also to
the canonical laws considered in the light of municipal laws of the
Church ; but with this difference, that they are made for a super-
f L. 1, ff. De Legib. ; Hooker, Eccles. Polit. b. 1, 10. And Mariana says, " Est
enim lex ratio omni perttirbatione vacua, a mente Divina huusta, hontsta et salularia
prcescribens, prohibensque contruria," De Rege, lib 1, cap. 2.
86 ON THE NATURE AND SPIRIT OF LAWS.
natural end which must be universal, because it embraces all man-
kind, and has relation to a point of unity beyond human society.
Consequently, their spirit must partake of the nature of that end even
when they are purely positive laws, in the same way that the spirit of
temporal laws belongs to the nature of their own end, which is that of
the civil state.
This diversity of the spirit of the temporal and' spiritual laws is a
further proof that they are made by legislative powers separate and
distinct from each other. They both spring from the two primary
fundamental laws directly or indirectly, and yet they have distinct
immediate ends, the one considering man as a member of human
society, and of a particular community of men, and the other regarding
him as belonging to a commonwealth or body politic comprehending
the whole world, and whose end is supernatural. This fundamental
doctrine of Public Law, that the temporal and the spiritual powers are
distinct and separate and independent of each other, is the only one
that can solve the various problems which the relation between the
Church and the State in different countries give rise to.
We have now shown the nature and origin of the legislative power
in its two great branches, and the diversity of the laws springing from
each. And by placing temporal and ecclesiastical laws as it were side
by side, we have been enabled more fully to understand the spirit and
characteristics of both. This will be an answer to those who may be
surprised to find so much ecclesiastical matter in a legal treatise. A
comprehensive method is indeed particularly necessary for the study
of Public Law, which ought to include the system of all those rules,
whatever be their origin, whereby human society is constructed and
regulated, and mankind led, under Divine Providence, to the end for
which they were created.
CHAPTER IX.
OF THE NATURE AND SPIRIT OF LAWS. OF ARBITRARY OR
POSITIVE LAWS.
THE nature and spirit of arbitrary or positive laws cannot be explained
without a careful examination of their use in human society. We
have seen that they are those which not being necessary consequences
of the two primary laws on which society is founded, may be esta-
blished, changed, and abolished, without injury to the principles of
social order.
ARBITRARY OR POSITIVE LAWS. 87
But though these laws are thus mutable, for which reason they
are called arbitrary or positive laws, yet their arbitrary nature must
be understood in a somewhat modified sense. For we have seen it
laid down by Domat, that all the laws which regulate society, even in
the state in which it is, (so strangely different from what the Divine
law requires,) are consequences of the two primary fundamental laws. 8
His meaning is, that as human society is grounded on these two laws,
the rules of conduct directing the actions of man therein must bear a
relation to them, unless they be repugnant to the end of society. For
as we see in the nature of man his destination to the accomplishment
of the first law (which is very fully shown by St. Augustine), h so we
find therein his destination to society, and the several ties which
engage him to it. And these ties, which are consequences of the
destination of man to exercise the two primary laws, are also the
foundation of the particular rules of all his duties, and the fountain of
all laws. Municipal laws may be more or less calculated for the end
which the lawgiver ought to have in view; but such is the nature
which the Creator has given to man, that all municipal laws not
contrary to that nature are consequences direct or indirect of the
two primary laws. And thus Suarez lays it down, that all human
laws are originally derived in some way or another from the Divine
law, and he cites this fine passage of St. Augustine: Conditor
legum temporalium, si vir bonus et sapiens est, legem ceternam consulit,
ut secundum ejus immutabiles regular, quid sit pro tempore jubendum
vetandumque discernat. Reiffenstuel holds that all laws are derived
from the eternal law. 1 And St. Thomas Aquinas says, that all human
laws are derived from natural law. k Some explanation is required to
show the meaning of those great writers.
Suarez teaches, on the authority of St. Thomas Aquinas and others,
that a human civil law is binding on the conscience of those who are
subject to it; and he proves this by showing that the civil legislator
makes laws as the minister of and by power received from God ;
that Divine and natural law require obedience to the laws of the civil
authority ; and that the power of making laws is necessary for the
due government of human commonwealths. 1
These propositions have already been proved, and they lead to the
conclusion that the authority of human positive laws is from the
5 Domat, Loix Civiles, Traite des Loix, ch. 1, 8.
h Div. August. De Civitate Dei, lib. 19.
1 Suarez, De Leg. lib. 1, cap. 3, 17; Div. August. De Vera Religione, c. 31 ;
Reiffenstuel, Jus Canon, proem. 13.
k Apud Suarez, De Leg. lib. 3, cap. 21, 10.
1 Suarez, De Leg. lib. 3, cap. 21, 57.
88 ON THE NATURE AND SPIRIT OF LAWS.
natural and Divine law ; and, indeed, the first of the two fundamental
laws evidently prescribes obedience to laws made by an authority
which God has established for the government of man in civil society ;
and the second as clearly requires submission to an institution so
necessary and beneficial to the human race as civil municipal laws.
But the writers cited above go a step further, for they teach that
positive laws themselves are derived from the law of nature ; and
Domat says, that they are consequences of the two fundamental
primary laws. We shall see hereafter how this is so with regard to
those positive laws which decide things left undecided by immutable
law, but yet necessary to be settled for its practical operation ; and
even purely arbitrary laws are rules of the society or social state to
which God has destined man, and which is constructed on the foun-
dation of the two primary laws ; and those arbitrary laws have or
ought to have a sort of justice, consisting in their fitness and conve-
niency for the end of civil society. And even a purely arbitrary law
must be a consequence, more or less remote, of the two fundamental
primary laws, so far as it is fit and convenient for the purposes of civil
society which is founded upon them. All laws, indeed, have the same
ultimate end, which is that pointed out by the two primary laws ; and
this will appear more clearly when we come to show how immutable
and positive laws are combined together, and the relation which they
bear to each other as classes forming that infinite detail of rules of
civil conduct which we observe in every body of municipal legislation.
Hooker says, that merely human laws are those the matter of which
is any thing that reason but probably teaches to be fit and convenient, n
as contradistinguished from immutable laws, the justice and therefore
the fitness of which can be demonstrated on principles of right reason.
This observation is well worthy of consideration, as pointing out one
of the characteristics of positive law, namely, the uncertainty of the
principles on which it is constructed. There must be in every given
state of circumstances requiring purely positive legislation, some pos-
sible law which is absolutely fit and convenient. Reason, however, but
probably teaches what that law should be, and to discover this, in each
case, is the problem to be solved by legislators. So we find great
difference of opinion among honest men on matters of politics and
public economy, but not on questions of justice and injustice right
and wrong.
These reflections show that the making of purely positive law
belongs to the science of politics or government, which differs from
public jurisprudence, inasmuch as the latter shows what is just and
m Suarez, ubi sup. 10. n Hooker, Eccles. Polit. b. 1, 10.
ARBITRARY OR POSITIVE LAWS. 89
unjust or fit and unfit in the government of a state, while the former
points out what is useful or advantageous. Grotius thus draws that
distinction : " I have abstained from touching that which belongs to
another subject, such as the rules of what is expedient. That is the
province of another science I mean Politics. Aristotle correctly treats
that subject by itself, unmingled with any other, instead of which
Bodinus often confounds it with the science of law." Barbeyrac ob-
serves on this passage, that though sound policy sanctions nothing but
what is just, yet justice and utility are two separate things even in
political affairs. Thus, to undertake war legally, there must be a just
cause of war. Yet, however just the cause, it may be injurious to the
state to engage in war, and to do so would be an error in politics. p
The difficulty of distinguishing between the sciences of politics and
law by the test thus laid down consists in this : There are many
things in natural law that seem grounded on a principle of utility.
Thus the two fundamental laws require many things of us, because
they are beneficial to ourselves or others ; and the institution of civil
society is shown to be of natural law by discovering its conformity with
the nature of man rightly understood, and therefore its utility to him,
and the will of the Creator that he should live therein. This is one of
those institutions from which, as we have seen, the hypothetical or
secondary natural law springs. They are deduced from the applica-
tion of principles of right reason to the nature of man, showing that
his nature requires them. Such is the institution of property, with-
out which society must be dissolved in a general scramble for such
things as are desirable, and the right of the strongest become the only
rule ; or industry and frugality, the progress of art, agriculture, com-
merce and manufactures must be extinguished or arrested ; and thus
the things of this earth would soon become insufficient for the wants
of man, so that we should all be overwhelmed in one common bar-
barism and poverty ; q and many parts of the internal public law of
states are of the same nature. Such is the sovereign power, in all
its parts, which we have seen to be of natural law, because it is neces-
sary for the subsistence of human society. And so we find Vattel
summing up the duties of a nation towards itself, by saying that it
ought to preserve and improve itself for the general welfare of the
whole body politic and its members. 1 " But all these things are neces-
sary consequences of the two primary fundamental laws, and there-
fore, so far as they extend, they are matters of immutable law. They
Lampredi, Diritto Publ. Univ. vol. 1, p. 34.
P Grot. Dr. de la G. Disc. Prelim. 59; and see 17.
M'Culloch, Princip. of Polit. Econ. ch. 2, 2, pp. 82, 90.
r Vattel, Droit des Gens, lib. 1, ch. 2, 14.
90 ON THE NATURE AND SPIRIT OF LAWS.
are necessary to the order of human society : they are, consequently,
not matter of choice, but of natural obligation, binding on men as the
subjects of the Creator.
We may conclude, therefore, that even these things, which are showr
to be of natural law by their fitness and necessity, are not binding
merely because of their use, but as necessary consequences of the twc
fundamental laws. And from them flows the vast body of secondary
natural law, the rules of which are included in the general descriptor
of justice by Ulpian Justitia est constans et perpetua voluntas suun.
cuique tribuendi* And when Cicero says, eadem utilitatis quce hones-
tatis est regula, 1 he means, as the context shows, that justice and mo-
rality are the only sound test of utility, contrary to the doctrine of the
Epicureans, who make utility the first principle and rule of justice and
morality." The Roman jurisconsulti, in the Pandects, do not confound
justice with utility. And the Christian Religion has put an end to the
utilitarian theory.
We may deduce from all these authorities and reflections, that purely
arbitrary laws bear some relation to the two primary laws, and that
they are grounded on certain principles of fitness and convenience,
with reference to the purposes of civil society and the general objects
of all human laws. But there may be laws unfit for, or repugnant to
those purposes and objects; and their authority rests solely on the
principle that obedience to the civil power is necessary for the main-
tenance of society, and therefore part of the natural or immutable law.
Thus the authority of all municipal laws is derived from natural law.
And in a perfect system of municipal laws, even the most purely posi-
tive and arbitrary would be a more or less remote consequence of
some part of the rules flowing from the two primary fundamental
laws, and would have a sort of justice arising from its relation to the
order and welfare of society.
8 L. 10, ff. De Just et Jur.
1 Cicero, De Offie. lib. 3, c. 8.
Cujacius, Op. torn. 7, col. 48, ad L. 9, ff. De Just, et Jur.
ARBITRARY OR POSITIVE LAWS. 91
CHAPTER X.
THE NATURE AND SPIRIT OF LAWS. OF ARBITRARY OR
POSITIVE LAWS.
PERHAPS it may be argued, with some apparent show of reason, that
immutable laws, that is to say natural laws, should be sufficient for the
purposes of mankind, because no others are necessary consequences of
the two primary laws on which the order of society is founded. But
as we see in the whole economy of the world, that some things are
given to man, while others are left to be devised by his invention and
executed by his skill, so it is with laws also. And the arguments by
which we have shown that the legislative power in the Church and in
the State is of natural law, prove the authority to make human laws,
not only in confirmation of the law of nature, but also positive or
purely human. And as God himself has given Divine positive laws
besides the purely Divine Law,* so He has left to the ecclesiastical and
civil governments of mankind, that is to say, the Church and sovereign
states or kingdoms, power to add human positive laws beside the law
of nature, and not contrary thereto. Thus a great canonist says :
Quceritur quid sit jus humanum ? Est jus quod homines a Deo accepta
potestate condiderunt ac promulgarunt : sive quod obligandi vim imme-
diate obtinet a libera voluntate hominis publica authoritate uliquid prcs-
cipientis vel prohibentis. y And the same writer thus gives a general
definition of positive law. Jus positivum ita dicitur quod ultra ea qua
jus naturale prcecipit, prohibet, vel permittit, aliquid ponat : estque illud
quod procedit ac pendet a libera voluntate superioris, scilicet Dei vel
hominis, aliquid pr&cipientis, prohibentis vel permittentis. 2 These defi-
nitions imply a mutable addition or supplement to immutable laws ;
something commanded or forbidden, beyond what is commanded or
forbidden by immutable law. But all this will appear clearly by ex-
amining the nature and uses of positive laws.
Two general causes have rendered necessary the use of positive laws
in human society, and are the source of that infinite variety of such
laws which we see in the world.
x Devoti, Instit. Canon Prokgom. ^ 31 ; Schmalzgrueber, Jus Canon. Univers. Dis-
sert, proem. 3.
y Schmalzgrueber, Jus Canon. Univers. Dissert, proem. ^ 4, num. 112.
1 Ibi, \ 3, num. 86.
92 ON THE NATURE AND SPIRIT OF LAWS.
St. Thomas Aquinas observes that there are two modes whereby a
law may be deduced from natural law. One is by way of conclusion
from a general principle of natural law, and the other is by way of de-
termination (per modum deter minationis), because the law of nature
commands something generally, as for instance, that imposts are to be
paid and crimes punished. And from that general precept it follows
that the amount of the impost and the specific nature of punishments
must be determined by the human legislator, by the power which God
has given to him.* This is the first cause of positive laws. It is, as
Domat tells us, the necessity of regulating certain difficulties arising
in the application of immutable laws, where the difficulty is such that
it can only be provided for by a law, and yet no immutable law regu-
lates it. b A few examples will show the nature of these difficulties and
of this sort of arbitrary laws.
It is an immutable law (belonging to secondary natural law), that
whoever is the absolute owner of anything should remain so until he
voluntarily divests himself of his property, or it is alienated from him
by some just and lawful means. And it is another immutable law
that possessors should not be always in danger of being disturbed, and
that he who has possessed for a long time should be held to be the
owner, because men are naturally careful not to give up what belongs
to them, and no one should, without proof, be presumed an usurper. d
If, as Domat observes, the first of these laws be too much extended,
which requires that no one be deprived of his property except by a
good title, it will follow, that whoever can show that he or those
through whom he claims have been owners of the property, though
for more than a century they have been out of possession, will recover
it from the possessor, unless the latter can prove a good title which di-
vested the right of the original owner. If, on the contrary, the rule
which presumes possessors to be owners be too far extended, all those
who are not in possession will be unjustly deprived of their property.
It is evident, continues Domat, that the conflict which would be
produced by these two laws, one of which would reinstate the former
owner to the prejudice of the old possessor, while the other would
maintain the new possessor against the true proprietor, requires regu-
lation by an arbitrary law, that those who are not possessors, but
claim as owners, be required to prove their right within a certain time ;
and that after the lapse of such time possessors who have not been
disturbed be maintained. And this has been done by arbitrary laws,
a Suarez, De Leg. lib. 3, cap. 21, 10.
b Domat, Loix Civiles, Traite des Loix, cap. 11, 6.
c L. 11, ff. De Reg. Jur. ; Petri Fabri Comment ad Tit. De Reg. Jur. ad I. 11.
d Faebeus, De Reg. Jur. Canon, tit. 3, reg. 2, pp. 45, 46.
ARBITRARY OR POSITIVE LAWS. 93
which regulate the time required for prescription and limitation of
actions. 6
Those laws form an important part of the jurisprudence of all coun-
tries, and constitute one of the broadest and most important institu-
tions of the civil law/ Thus usucapion operates as a mode of ac-
quisition by the civil law as contradistinguished from the jus gentium:
and it is neatly denned by Modestinus to be Adjectio dominii per con-
tinuationem possessionis temporis lege definiti. s
Another feature of this branch of arbitrary law is the distinction be-
tween usucapion or acquisition by possession and prescription, which
consists in the loss of a right of action or legal remedy by the uninter-
rupted silence of him who was entitled to it. h They were practically
blended together by Justinian, but still the distinction exists. 1
So in the English law there is this same prescription, or title ac-
quired by use and time, and defined to be titidus ex usu et tempore
substantlam capiens ab auctoritate legist And we have the limitations
of actions by divers statutes, 1 which establish titles by the extinction
of adverse rights of action. These distinctions are mentioned here for
the purpose of showing how a great deal of arbitrary law is generated
by the use of the class of immutable laws described above. It occurs
thus : the operation of one or more immutable laws must be defined
by some arbitrary rule, and from that rule a number of deductions and
distinctions, more or less logical, are drawn for the purpose of meeting
different cases. And thus divers branches of arbitrary law have been
created.
The law of prescription will enable us to show how the principles
of Domat are to be considered with reference to international law.
Grotius, according to Savigny, lays down dereliction or abandon-
ment as the basis of prescription." 1 In some cases there may be a real
abandonment of the property by the original owner. But there the
possessor acquires the property jure gentium, and not by positive law ; D
and, as Savigny points out, that abandonment would, if taken as a
e Domat, Loix Civiles, Traite des Loix, cli. 11, 8; Savigny, Traite de Droit Rom.
torn. 4, pp. 316 319, edit. Paris, 1845.
f Savigny, ibi, p. 310.
& Vinnii Comment, ad Inst. 1. 2, tit. G, princip. ; 1. 3, ff. De Usurp, et Usucap. Sue
the observations of Savigny, ubi sup. p. 319, &c., cap. 3, 178, 6.
h Savigny, ibi, p. 308, 309.
1 Vinnii Com. ibi.
k Co. Litt. 113; ibi, 114; 4 Rep. 32.
1 Co. Litt. 115.
m Grot. Droit de la G. 1. 2, ch. 4.
n Inst. Justin, lib. 2, tit. 1, 46.
Savigny, Traite du Droit Rom. torn. 4, pp. 318, 319.
94 ON THE NATURE AND SPIRIT OF LAWS.
general principle, rest on a presumption of law founded on a supposi-
tion, in most cases purely arbitrary and fictitious. Grotius, indeed,
states the correct doctrine that prescription is a creature of municipal
law. And he says, that Vasquez is therefore of opinion that prescrip-
tion cannot take place between sovereign states. But he argues that
this opinion would, if admitted, cause great inconvenience, for there
would be no end to disputes about kingdoms and their territories.
And then, according to his system, he gives a number of instances to
show that prescription is part of the law of nations by the common
sense of mankind. And he thinks that there are grounds for holding
that immemorial uninterrupted possession gives the right of ownership
or dominion, by virtue of the arbitrary law of nations, arising from the
common consent of nations. 13 But I have already shown, as Barbeyrac,
the learned annotator of Grotius and Pufendorf, points out, that this
arbitrary law of nations, springing solely from general consent, does
not exist. And Grotius himself, referring acquisition by long posses-
sion among nations to the abandonment of the original rights of
ownership by dereliction, and to the importance of preventing inter-
minable disputes, q shows that the supposed arbitrary law of nations is
here unnecessary. This is rendered clear by the doctrine of Domat
given above, that there is a principle of natural law in the law of pre-
scription, although in its form, as a positive institution, it belongs to
arbitrary law ; and Cujacius goes so far as to hold, that usucapion is
for the public good, but contrary to natural equity/
Pufendorf explains this subject very well, by saying that as the
institution of property has been introduced for the peace of mankind,
it follows that, after a certain time, bona fide possessors ought to have
an incontestable right to what they hold, and thus prescription in itself,
separate from the precise time limited by law, is a dependance and a
consequence of the institution of property. It follows that even
among those who have no law in common but natural law and the
law of nations, possession acquired in good faith, and preserved with-
out interruption for a long time, is a good title. And this is the more
reasonable, because much greater evil arises from the disturbance of
the possession of a sovereign than in the case of a private person.
Pufendorf however observes, that in disputes between sovereigns, it is
often superfluous to rely on prescription, because the possessor can
and ought to found his right on a more solid title.*
All these reflections show the true foundations of those parts of the
P Grot. Dvoit de la G. liv. 2, ch. 4, | 1, 9.
i Ibi, 35.
T Cujac. ad 1. 1, ff. De Usurp, et Usucap. ; Cujac. Op. torn. 1, col. 963, ed. Veaet.
Pufend. Dr. des Gens, liv. 4, ch. 12, 9, 11.
ARBITRARY OR POSITIVE LAWS. 95
law of nations which have been erroneously referred to custom, con-
stituting an arbitrary law of nations, but are matter of natural law,
to which usage has only given a form. And thus Wheaton appeals
to the constant and approved practice of nations, in support of inter-
national prescription, because such is the form that it has acquired. 1
And thus the rights of ambassadors have been supposed to rest on
custom, whereas they derive only their form from custom, which de-
fines rules of natural law, as the sort of arbitrary laws, above explained
by Domat, define immutable laws which are of their own nature
general and indefinite. This analogy is very important, for it shows
the true legal nature of these customs. They are not absolutely
binding as law, except so far as the rules of natural law extend,
though it is exceedingly convenient and desirable to follow scrupu-
lously all usages received among civilized nations." And no material
part of them should be deviated from, without sufficient notice to the
other party.
The law of prescription has given us a view of the class of arbitrary
laws now under consideration. But some further illustration of the
subject will be useful.
" It is an immutable law," says Domat, " that persons who have
not yet sufficient use of their reason, for want of age, knowledge and
experience, should not have the management of their property and
affairs, and that after they acquire those qualifications, they should
have such management. But as nature does not give to all, at the
same age, the full reason required for that purpose, the use of this law
has rendered necessary that of an arbitrary law making a rule for all
cases. Thus the laws of some countries have left to fathers the power
to decide to what age their children shall be under the guidance of a
guardian, while others have determined the age below which persons
are in the state called minority, after the expiration of which they
reach that of majority." 11 The justice of an arbitrary law deter-
mining the age of majority must consist in its adopting a fair medium
and establishing a rule which will be correct in the greater number of
cases. To these sort of laws those texts in the Pandects apply which
say that laws should _ be made for cases which commonly occur.
Nam ad ea potius debet aptari jus, qua ct frequenter, et facile, quam
qucB perraro eveniunt. y
The doctrines explained above are applicable to ecclesiastical as
' Wheaton, Elements of International Law, p. 206.
" Pufend. Droit des Gens, 1 2, c. 3, 23 ; Grot. Dr. de la G. 1. 1, ch. 1, 14,
note 3, Barbeyrac ; Wheaton, Elements of International Law, vol. 1, p. 39.
x Domat, Loix Civiles, Traite des Loix, ch. 11, 9.
i L. 5, ff. De Legib.; and see 1. 3, 4, 6; 1. 64, ff. De Reg. Jur.
96 ON THE NATURE AND SPIRIT OF LAWS.
well as to temporal laws. But an example from the canon law must
not be omitted. It is an immutable law that benefices should not be
left vacant to the prejudice of divine service. And it is also an immu-
table law that patrons entrusted by the church with the jus pair onatus
should not exercise it in a hurry, but should be careful to seek fit
persons for promotion. To reconcile these two natural laws, giving to
each its proper effect, an arbitrary law is required, determining within
what time vacant benefices shall be filled. And, therefore, the Third
Council of Lateran provided that benefices shall be filled within six
months : and Pope Innocent III. declared that archbishoprics and
bishoprics should be filled within three months. 2 And after the lapse
of the time limited, the right of patronage devolves on the next imme-
diate superior. For the principles of the canon law do not permit the
service of the Church, and the welfare of the people, to suffer from
the omission of any one to do his duty, and therefore a remedy is sup-
plied to the neglect of patrons and prelates, by the law of devolution
or lapse.
It is necessary to observe in all these and similar examples
of arbitrary laws consequences of immutable laws, that each of
those arbitrary laws has two characters which must be seen and
distinguished one from the other, and which make them as it
were two laws in one. For a part of that which they prescribe
is of natural law, and the remainder is arbitrary. Thus the law
determining the age of minority contains two dispositions. One
provides, that persons incompetent for want of maturity and ex-
perience, shall not be entrusted with power which they would use
in a manner dangerous to themselves and their families, and the
interests of society ; and the other limits the age of minority. So a
law establishing some tax or impost contains in like manner two
dispositions. One requires the payment of those supplies without
which civil government and society cannot be supported," and the
other determines the particular amount required, and the sources from
whence it is to be raised. The same distinction is to be observed in
criminal laws establishing punishments of acts forbidden by immu-
table laws. In each of these examples of double laws, the first is an
immutable, and the second is an arbitrary or positive law.
We have now sufficiently considered the first cause of arbitrary
laws. The second cause consists in the invention of certain artificial
arbitrary institutions which have been thought beneficial to society.
2 Van Espen, Jus Eccles. torn. 3, pp. 105, 106; Decretals, lib. 1, tit. 10, c. 3 ;
Schmalzgrueber, Jus Eccles. torn. 1, pars 2, p. 424.
a Suarez, De Leg. lib. 3, cap. 21, 10, A. p. 289; Grotius, Dr. de la G. 1. 1, c. 3,
6, and 1. 1, c. 1, 6; Pufend. Droit de la Nat. et des Gens, 1. 7, c. 4, 7 ; Zallinger,
lust. Jur. Nat. et Eccles. Pub. torn. 1, lib. 3, cap. 7.
ARBITRARY OR POSITIVE LAWS. 97
Such are feudal tenures, entails, settlements, and various professions
and trades. Of the same nature are different forms of government
and political institutions, as republics, kingdoms, parliaments, senates,
and other assemblies of various forms and sorts. And in ecclesiastical
law we may give as instances various bodies, offices, and dignities,
such as chapters, regular orders, confraternities, prebends, deaneries,
and the like. These are part of the polity or constitution of the
Church, but they have been invented, altered, and in some instances
abolished, according as circumstances required, by the Supreme Eccle-
siastical Authority. And even international law has to deal with
institutions of this sort, established by treaty, as well as with some of
those referred to above. Such are factories, free ports, and other
establishments for foreign trade, fortified places, and the like. These
things, though they have certain relations with international law, are
arbitrary matters regulated by municipal law.
All these various institutions and matters are regulated by a vast
detail of laws of the same nature as themselves. Thus we see in
human society, as Domat remarks, the use of two sorts of matters.
For there are some so natural and essential to the most common
wants, that they have always been more or less in use ^everywhere,
and seem pointed out by nature. Such are exchange, letting and
hiring, deposit, loans, and divers other contracts, wardships, succes-
sions, and other things. And we also find the use of invented
artificial things. But even these have their foundation in some prin-
ciple of the order of society. Thus the feudal system was founded not
only on the freedom of men to make agreements, but on the public
advantage of securing the defence of the kingdom. So settlements
are intended to secure the maintenance of families. And again,
different forms of civil polity, parliaments and councils, are intended
for the good government and peace of the community to which they
belong.
Domat observes, that though it may seem that these artificial
matters should be regulated solely by arbitrary laws, they notwith-
standing have several immutable laws. And on the other hand, the
matters which may be called natural, are governed not only by natural
and immutable laws, but also by arbitrary laws. Thus in the feudal
system it is an immutable law, that the conditions on which the land
was granted ought to be faithfully observed by the tenant. Thus in
the matter of guardianships, which is natural, the precise mode in which
the guardian is to pass his accounts, and the authority to which he is
amenable, are determined by arbitrary laws. These examples suffice
c L. 5, ff. De Just, et Jur.
98 ON THE NATURE AND SPIRIT OF LAWS.
to show that in all matters, natural or artificial, immutable and arbi-
trary laws are mingled together. But in natural matters there are
few arbitrary laws, of which there is an infinite number in those other
matters which have been artificially invented . d
Arbitrary laws then are of two sorts, according to the two causes
which established them. The first consists of arbitrary laws which
are consequences of natural laws, (as, for instance, those which define
the age of majority and the limitation of actions), and the second is of
those invented to regulate arbitrary matters, such as the law of entail,
and of remainders and settlements. 6
The characteristics of the justice and authority of natural and
arbitrary laws appear from the distinction between them, and from the
reflections already made on both. And as laws derive from their
justice and their authority the power which they ought to have over
our reason, it is important to consider and distinguish what is the
justice and authority of natural laws, and what the justice and
authority of arbitrary laws.
The former being essential to the two primary fundamental laws and
the engagements arising from them, they are just in every place and
at all times. But the latter are not essential to those foundations of
the order of society, and therefore they may be altered or abolished
without injuring it, and the justice of those laws consists (as we have
shown in the preceding chapter) in the particular utility of establishing
them.
The universal authority of all laws consists in the Divine order
which subjects men to their observance; but there is a difference
between the authority of the two classes of laws which we are com-
paring. Natural laws have the natural authority of justice over our
reason ; but as some men have not the capacity to see them clearly,
or the rectitude to obey them, the authority of temporal powers gives
to them another force independent of the approbation of men, com-
pelling obedience to their precepts. On the other hand, the authority
of arbitrary laws consists only in the force given to them by those
who have power to make laws, and the ordinance of God commanding
obedience to temporal government.
This difference between the justice and authority of natural laws,
and that of arbitrary laws, leads to the conclusion that the former
being naturally known to man by the use of reason, are obligatory
without any publication, but the latter take effect only from the time
of their promulgation/
d Domat, Loix Civiles, Trait des Loix, ch. 11, 11 16.
e Ibi, 17.
f Ibi, 20.
ARBITRARY OR POSITIVE LAWS. 99
Though natural or immutable laws are essentially just and cannot
be changed, it does not follow that they are subject to no exception.
Suarez explains this proposition thus : natural laws require no dispensa-
tions or equitable construction in the nature of a dispensation, because
they contain an intrinsic principle of justice and morality ; or because
the precepts of this law are necessary propositions, which are inferred
from natural principles, and those propositions cannot in any particular
instance fail or be false. 8 Thus Domat says, that as laws derive their
justice and authority from their relation to the order of society and
the spirit of the two first laws, it follows that when that order and
spirit require exceptions to general rules, those exceptions must take
place ; but, nevertheless, those natural laws are immutable, though the
exceptions make them less general than those which are subject to no
exceptions, such as the law which forbids fraud, and commands good
faith and fidelity to lawful engagements. The exceptions have their
foundation in the spirit of the laws, and they are themselves other
laws which do not alter the nature of those to which they are excep-
tions. Thus the laws are in harmony and agree among themselves
by common spirit, which constitutes the justice of all. For the justice
of each law is limited within its boundaries, and no one extends to
what is otherwise regulated by another law. Thus laws subject to
exceptions, must be considered as general rules applying to what
occurs commonly; and those which make exceptions as particular
rules for certain cases ; but both are laws and rules equally just, accord-
ing to their use and extent. 11
Suarez observes that his proposition cited above does not apply to
natural laws in the form of positive laws, that is to say, municipal
laws giving a sanction to natural laws. For they must be construed
according to the language and intention of the legislator ; and there-
fore cases may occur where they are unjust, and a dispensing power
may be required, though the law taken per se, as a natural law, would
always be just. 1
Those who neglect the distinctions between different sorts of laws,
which I have endeavoured to explain, fall into the error of confounding
all laws together under the one head of positive laws. For the autho-
rity of those laws is more striking and obvious than principles of
reason and justice, because they are published by the temporal power
of the state, and enforced as a rule of conduct on the citizens. But
this error renders it impossible to understand the nature and spirit
of laws, a necessary and fundamental part of jurisprudence in all its
t Suarez, De Leg. lib. 2, cap. 16, 3.
h Domat, ubi sup. 20, 22.
1 Suarez, De Leg. lib. 2, cap. 16, 16.
H2
100 ON THE NATURE AND SPIRIT OE LAWS.
branches. And those distinctions are especially indispensable for the
science of Universal Public Law. It contains such a vast multiplicity
of laws, having such various objects according to the branch of Public
Law to which they belong, that no one can obtain any clear notion of
the whole, or of its details, without accurately distinguishing one sort
of law from another, and so seeing the distinctions which run through
the whole science and simplify the system. Public Law has for its prin-
cipal subject, not the relations of individuals but aggregates of men,
and the relations of men to such politic bodies. It looks on natural
persons in a secondary point of view, in their relation to the Church
or the State, and on States both in themselves and in reference to
each other. k And the harmony of the system on which mankind are
governed under Divine Providence requires that there should be cer-
tain common principles on which the laws of that government are
constructed. I have shown that they are all derived in one way or
another from the two fundamental laws. And the distinctions which
I have explained, between the different sorts of laws, arise from their
different relations to those two laws on which the whole scheme of
human society is constructed by means of various ties and engage-
ments. This would suffice to show what use is to be derived, as to
Universal Public Law, from the knowledge of those distinctions, and
the nature and spirit of laws.
These reflections include Ecclesiastical Law, because there is a cer-
tain analogy between the Church and the civil commonwealth ; l and
the canon law is a rule of civil conduct, to direct the citizens of the
monarchy, of which it is the law, that is to say, the Church. m The
immediate objects of the two laws, temporal and spiritual, are dif-
ferent," but both may be traced to and hang from the two great
fundamental laws laid down in the Gospel, from which we have
obtained the doctrines and distinctions already expounded.
k Savigny, Traite du Droit Rom. torn. 1, p. 22 ; 1. 1, ff. De Just, et Jur. ; 1. 2. ff. De
Orig. Jur. ^ 46.
1 Devoti, Inst. Canon. Prolegom. cap. 1, 5, 6.
"Lancelot, Inst. Jur. Canon, lib. 1, tit. 1, 1 ; Reiffenstuel, Jus Canon, proem. 3.
n Zallinger, Inst. Jur. Nat. et Eccles. Pub. torn. 1, lib. 3, cap. 6, p. 450.
USES AND DIVERSITIES OP NATURAL AND ARBITRARY LAWS. 101
CHAPTER XI.
ON THE NATURE AND SPIRIT OF LAWS. REFLECTIONS ON THE SCIEN-
TIFIC USE AND DIVERSITIES OF NATURAL AND ARBITRARY LAWS.
DOMAT dwells much on the importance of knowing the nature and
spirit of laws for the purpose of applying them. And this is most ne-
cessary for the use of the Roman Law as written reason in every
branch of the science of jurisprudence, but especially in ecclesiastical,
international, and municipal private law. The great French civilian
gives the following example to show the difficulty of distinguishing
natural from arbitrary laws.
A celebrated law of Papinian, in the Pandects, decides that pupil-
lary substitution excludes the legitim of the mother.
By the Roman Law, no one can make a will who is under the age
of puberty. But the father can make a will for his son under that
age, by what is called pupillary substitution, that is to say, by substi-
tuting some one in the place of the son as heir, in the event of the son
dying in pupillage, that is to say, before puberty. Now the decision
of Papinian is, that if that power be exercised, and the son die before
puberty so as to let in the substitute, the mother loses her legitim,
though the son could not by his will deprive her of it. The reason of
Papinian is, that it is the father who takes away the legitim (by
giving the estate to the substituted heir) and not the son, and the
father has the power to do so, though the son has not. Domat ob-
serves, that the difficulty arose in this case from the apparent conflict
between a natural law and an arbitrary law. And the decision prefers
to the natural law which gives to the mother the right of succeeding
to her son's estate, the arbitrary law which permits the father to sub-
stitute, extending that power so far as to give the property to the
substitute, and deprive the mother of her legitim. It was so de-
cided, according to the spirit of the old Roman Law, which favoured
the power of testators, and even allowed a father to disinherit his
children without any reason. And, according to that spirit, the subtilty
was invented of holding that the substitution being the act of the
father, it was he who disinherited his wife, and not the son who
disinherited his mother. But it is clear, that according to the
principles of natural law, the mother should not be disinherited. The
property belonged not to the father but to the son ; and the father
L. 8, 5, ff. De inoffic. Testam,
102 ON THE NATURE AND SPIRIT OF LAWS.
being entrusted with the power of making a will for his son by pupil-
lary substitution, should not be allowed to do with the son's property
what the son ought not to do himself. p Therefore this is a technicality
of the Roman Law which ought not to be followed, except where that
part of the Roman law is received. It is not written reason.
Domat observes, that as it is important not to injure natural equity
by technicalities and false consequences drawn from arbitrary laws, so
on the other hand care must be taken not to extend a natural law
beyond the limits assigned to it by an arbitrary law which puts it in
harmony with another natural law, and gives to both their proper
effect. Thus it is a natural law, that he who does any damage to ano-
ther should repair it. But if that law be so extended as to oblige a
debtor, who has not paid at the time when the debt was due and pay-
able, to repair all the loss or damage which the creditor has suffered
by the default, as for instance, if his goods have been taken in execu-
tion, or his house has fallen down for want of the money, that appli-
cation of the law would be unjust. For it would wound an arbitrary
law which provides that a debtor, who does not pay a debt which is
due, shall be obliged to compensate the creditor by the payment of
interest at a certain rate or per centage, and restricts the compensation
for default of payment to such interest. And thereby two natural laws
would be violated. One forbids that men be made liable for unfore-
seen events, which are rather the act of God or fortuitous occurrences
than anything that can be reasonably imputed to them. And the other
requires that the infinite variety of injury which creditors suffer by
delay of payment, be reduced within some general rule to an uniform
compensation, because not only that variety is caused by the difference
of accidental circumstances for which no one should be answerable,
but it would give rise to an endless and mischievous multiplication of
litigation. q
Here again we see an example of the use of arbitrary laws, and
this shows that there are difficulties which require to be regulated by
that sort of laws. But Domat points out that there are in the science
of jurisprudence an infinite variety of other difficulties which cannot
be solved by any precise rules, and which require especially a com-
plete knowledge of natural laws. Those laws, though they are
naturally taught by reason, are both more difficult and more important
to be known than arbitrary laws. And there are two reasons which
make a complete study of them necessary.
The first is that natural rules are exceedingly numerous, and on ac-
P Domat, Loix Civiles, Traite des Loix, ch. 11, 24.
i Domat, Trait6 de Loix, liv. 1, tit. 2, 2, art. 18.
USES AND DIVERSITIES OF NATURAL AND ARBITRARY LAWS. 103
count of their multitude and diversity they are not evident to all men ;
and reason alone does not suffice to find them and apply them to all
cases. And the second reason is, that these laws are the foundation of
the whole science of law.
And with regard to the study of natural laws, Domat observes, that
they are of two sorts. One consists of those which convince the mind
without any reasoning, by their evident truth. Such are the rules that
agreements are in the place of laws among those who are parties to
them, and that he who has received a deposit must restore it. And
the other sort consists of those rules which are not so evident, and the
truth of which is discovered by means of reasoning, showing their
connection with the principles from which they depend. One example
will suffice to illustrate this/ If two parties to a lawsuit agree to a
compromise, no one can doubt that they are bound by their agreement.
But let us suppose that the case has been decided by a final judgment
before the compromise, and that they entered into it being ignorant
that the judgment has been delivered. In that case it is not so evident
whether the compromise or the judgment is to prevail. For the general
rule is that agreements must be performed. But in the case of a com-
promise of a suit already ended by a judgment, that rule ceases, be-
cause compromises are made only where a disputed matter is undecided,
and men give up their rights only from apprehension and in peril of a
disadvantageous result. Thus, in a case where the matter in dispute
in no longer undecided and where there is no longer uncertainty or
peril, the ignorance of the party in favour of whom judgment has
been given, ought not to avoid the effect which the authority of a
decree gives to truth and justice. And thus the law decides this case,
where the judgment is final and not subject to appeal. This is one of
those rules not in themselves so self-evident that no one can doubt. 5
This and some other examples taken from Domat belong particularly
to Private Law, but their principles are also applicable to Public Law.
And they are given here for the purpose of explaining the nature and
spirit of laws considered as part of Public Law, that is to say, regard-
ing laws not only as the rules for deciding questions arising between
private individuals, but also as the rules of man's conduct whereby he
is guided to the end of his creation, and the measure of those ties and
O '
obligations on which human society is constructed. And, indeed, if
we look at the decision just explained as a matter between two indi-
viduals who compromised their private rights, we may on the other
r See an analogous position in Perrone, Praelect. Theolog. vol. 5, p. 58, that man
can know some truths in the natural order without grace. And see vol. 1, p. 30, | 77.
8 Domat, Loix Civiles, Traite des Loix, ch. 11, ^ 26, 27, 29 ; Domat, Loix Civiles,
liv. 1, tit. 13, 2, art. 7.
104 ON THE NATURE AND SPIRIT OF LAWS.
hand regard it as affecting the authority of the judicial power, which is
matter of Public Law. 1 So we find that in jurisprudence, the same
subject may have relation to different branches of the science accord-
ing to the aspect in which it is seen, and the uses to be derived from
it. The reason of this is, that all laws are drawn from the two primary
laws of the Gospel; and whether temporal or spiritual, their ultimate
end, and that of human society, is or ought to be the same. For as
St. Thomas Aquinas says : Non est ultimus finis multitudinis con-
gregates vivere secundum virtutem, sed per virtuosam vitam pervenire ad
fruitionem divinam Tanto autem est regimen
sublimius quanta ad finem ulteriorem ordinatur* And this is the end
of all laws, because it is that of government and human society, of
which they are the rules. And thus it is that (as I have shown) tem-
poral laws refer directly and principally to the peace and welfare of the
commonwealth, the civitas terrena; and therefore the universal system
of jurisprudence, which comprehends all the laws that are the rules of
man's conduct directing him to his end, would be imperfect without
laws belonging directly to the celestial city," and an universal visible
commonwealth forming part of that city. It would be imperfect be-
cause it would want something for the full accomplishment of the
fundamental principles from which it springs, and because it would
fall short of the. object and reason of man's existence here. It would
provide only indirectly for the ultimate end of his actions, and there-
fore it would be insufficient for the government or direction of hj$
mind, though temporal laws are obliged constantly to take cognizance
of his intentions, which are beyond the sphere of its action.
All the distinctions which I have explained regarding the nature
and spirit of laws, find their place in this great scheme of jurispru-
dence, and are necessary for its comprehension ; and this will appear
clearly when we come to examine Public Law more in detail. It is
sufficient here to point out the great scope and extent of the doctrines
regarding laws which have been explained, and to observe, that the
unity of laws arising from their general common origin and ultimate
end, and the consequences that follow therefrom, producing a general
analogy between all the branches of jurisprudence, seem essential to
the harmony of the system which Providence has ordained for the
government of mankind by the appointment of those rules of conduct
called laws. There are, it is true, many things in the government and
legislation of all countries at variance with that harmony ; * but the
1 Domat, Loix Civiles, Traite des Loix, ch. 9, 42, 43.
8 Div. Thomas Aquin. Opusc. De Regim. Princip. lib. 1, cap. 14.
* Div. August. De Civit. Dei, lib. 19, cap. 14.
y See my Readings at the Middle Temple, Reading X. On the Reasons of Laws.
USES AND DIVERSITIES OF NATURAL, AND ARBITRARY LAWS. 105
truth of the principles of Universal Public Law is not impeached
thereby. Experience, indeed, shows how the violation of those prin-
ciples always causes mischief; and whatever peace and good govern-
ment we see in the condition of nations is produced by them. This
proposition is not difficult to understand ; for the polity and mode of
government of nations and kingdoms should be derived (as St. Thomas
Aquinas says) from those of the world, 2 which are directed to attain
the object or end for which man was created by the fulfilment of the
two fundamental laws in all their consequences. And therefore that
great saint and philosopher says, that civil government is so much
the more exalted in proportion as it is calculated for the attainment of
that end. a Consequently whatever is contrary thereto in laws and
civil institutions must be injurious to mankind. And there must be a
science of jurisprudence showing a consistent system of laws, which,
as Domat tells us, are the rules of man's conduct ; and that conduct
consists of the steps which he takes towards the end of his creation.
And Public Law directs the government of society and the conduct
and administration of bodies politic to the same end, in harmony with
private law, which, in like manner, directs the actions of persons in
their private capacity. This is the true key to the unity of universal
jurisprudence, which we have seen exemplified in detail by the distinc-
tions and fundamental doctrines which run through all its branches.
Domat further shows the general uniformity and unity of the
system of all laws, by pointing out that the distinction between immu-
table and arbitrary laws includes that between human and Divine laws,
and that of natural and positive laws, or rather, those three distinctions
are but one. For there are no natural and immutable laws that do not
come from God ; and human laws are positive or arbitrary because
men may establish, change, or repeal them.
It may be thought, continues our great jurist, that Divine laws are
not all immutable, for God himself abolished several of those which
he gave to the Jews, because they were not in accordance with the
new law. But still it is true that those laws were immutable, so far
as regards the power of men ; and the Divine laws which regulate our
present state are in like manner not susceptible of change. b Those
positive Divine laws were, indeed, rather temporary and of a restricted
operation than mutable, and they could not be altered by any human
authority.
There is another general division which comprehends all laws under
two distinct heads, that of the laws of religion, and temporal laws. In
1 Div. Thorn. Aquin. Opusc. de Regim. Princip. lib. 1, cap. 14.
a Ibi, p. 202.
b Domat, Loix Civiles, Trait des Loix, ch. 11, 23.
106 ON THE NATURE AND SPIRIT OF LAWS.
both these classes there are immutable and arbitrary laws. Thus,
among the laws regarding religion, there are some regulating external
ceremonies of Divine worship and matters of ecclesiastical discipline,
which are arbitrary laws established by the authority of the Spiritual
Powers : and on the other hand, there are among temporal laws many
immutable laws, such as those which command obedience to lawful
powers, and require all men to observe good faith and honesty, and
to wrong no one. Thus as the law of religion and those of civil go-
vernment contain both immutable and arbitrary laws, they must be
distinguished from each other by some different character or test.
The laws regarding religion, or the spiritual law, is that which regu-
lates the conduct of man by the spirit of the two primary laws, and by
the internal dispositions which lead him to his duties towards God,
towards himself, and towards others, both as regards his own person,
and in the public order. This comprehends all the rules of faith and
morals, and those of external Divine worship and ecclesiastical dis-
cipline.
The temporal law, or the law of civil government, is that which
regulates the exterior order of civil society among all men, without
reference to their knowledge or ignorance of religion, and their obedi-
dience or disobedience to its principles.
These temporal laws, or, as Domat calls them, laws of temporal
policy, are of several sorts, according to the different parts of the order
of society, of which they are the rules.
As the human species compose an universal society divided into
divers nations, which have their separate governments, and those na-
tions have different communications with each other both in peace and
war, it follows that certain laws are necessary for the regulation of
those matters. These are called the Law of Nations.
The universal polity of society, which regulates the relations of nations
with each other by the law of nations, governs each nation by two sorts
of laws.
The first consists of those which regard the public order of govern-
ment, such as the laws called laws of the state, which regulate the
way in which sovereigns are called to govern by succession or elec-
tion, those which regard public functions and offices for the admi-
nistration of justice, of military and financial affairs, the government
and administrations of towns and provinces, and the like. These are
Public Laws.
The second sort are the laws which regulate matters between pri-
vate individuals as such, contracts, successions or inheritance, wills,
c Domat, Loix Civiles, Trait des Loix, ch. 11, 34.
USES AND DIVERSITIES OF NATURAL AND ARBITRARY LAWS. 107
guardianships, and other things of that nature. They constitute
private law. d
Domat observes that these are commonly called civil laws, and the
principle that private law regulates matters between individuals does
not clearly distinguish it from Public and Ecclesiastical Law, and the
Law of Nations ; for many questions between individuals may arise in
matters belonging to those branches of jurisprudence. And thus we
find a blending of one branch of law with another, and a mixture of
laws regulating human society, which, however, it is necessary to
distinguish in a general way by their chief characteristics.
These classifications will suffice until we come to consider Universal
Public Law more in detail.
CHAPTER XII.
THE NATURE OF PUBLIC LAW, TEMPORAL AND SPIRITUAL.
A FOUNDATION has now been laid for the consideration of Public
Law more in detail. For we have examined the origin of laws, their
use, and their principal diversities, and also the nature and spirit of
laws. This investigation has given us a view of the whole extent of
universal jurisprudence. And we have seen the origin and general
frame of society and government, which can best be understood by
deducing them from the obligations and laws on which they are
founded. The nature of Public Law has been made to appear in the
course of these investigations. But this subject must now be more
diligently examined.
We have frequently seen how every branch of law is connected and
entwined with the others, and the causes of this, which in part con-
stitutes the unity of jurisprudence. Notwithstanding that intimate
mutual relation of the different branches of law, they must be distin-
guished one from the other by means of their characteristics, and the
purpose for which they are designed in the general scheme whereby
the world is governed.
Savigny, after some reflections on law, considered abstractedly as a
rule whereby men live in society, proceeds to divide it into two branches,
politic law and private law. The former, he says, has for its object
the State, that is to say, the organic manifestation of the people or
d Domat, LoixCiviles, Traite des Loix, ch. 11, 40, 41.
108 THE NATURE OF PUBLIC LAW,
nation; and the latter embraces all the relations of law existing
between individuals, and is the rule or expression of those relations.
But those two sorts of law have, he says, several points of resemblance
and contact. Thus the consjtitution of the family, the authority of the
father and the obedience of the children, present a striking analogy to
the constitution of the State, and divers bodies corporate have nearly
the same legal conditions of existence as natural persons. But that
which profoundly distinguishes politic from private law is this, that one
relates to the aggregate, considering individuals as a secondary object,
while the other has for its exclusive end the individual himself, and
only regards his legal existence and his different states or conditions.
The State, however, he continues, exercises many influences over
private law; in the first place, with regard to its very reality. It is,
indeed, the State that personifies the nation, and gives to it the capacity
to act. Though a private law could be conceived out of the State as
an abstraction founded on community of ideas and of manners, nothing
gives to private law within the State reality and life but the establish-
ment of the judicial power. But, he continues, it must not be believed
that there really was in history a time (that of nature) anterior to the
foundation of the State, when private law had that incomplete exist-
ence. Every nation is a state from the moment that it shows life.
That supposed state of nature is an imaginary hypothesis of the mind
looking on the people abstractedly, and without the State. 6
This passage of Savigny is very valuable, for it shows the relation
of public to private law, and the principle which distinguishes the one
from the other, pointing out at the same time the error of that
supposed state of nature from whence many false theories have been
drawn, both in jurisprudence and in politics. The civil law is in
accordance with Savigny.
Ulpian divides law into public and private, thus : Publicumjus est
quod ad statum rei Romance, spectat : privatum quod ad singulorum
utilitatem* And he explains this by saying, that some things (in the
law) have for their object public, and others private utility. This
division of the law has reference to its direct or immediate object.
The welfare of the community is, or ought to be, essentially one of the
ends of all temporal laws; 8 but some are immediately directed to that
end, while others have for their immediate object the regulation of
the interests and rights of individuals considered as such. h
e Savigny, Traite" du Droit Rom. torn. 1, p. 23, edit. Paris.
' L. 1, 2, ff. De Just, et Jur. And see the same in Bracton, lib. 1, c. 1, 2, 3.
s Suarez, De Leg. lib. 1, cap. 7 ; et ibi cit. Div. Thomas.
h Cujac. in tit. Dig. De Just, et Jur. ad 1. 1, Hujus Studii; Cujac. Op. torn. 7,
col. 15; Donelli Comment, torn. 1, lib. 2, ch. 5, 6.
TEMPORAL AND SPIRITUAL. 109
The canonists take the same view of this distinction. Thus
Schmalzgrueber says : Jits publicum estjus quod de causis publicis ad
publicam utllitatem directe principaliter et immediate est constituturn. 1
The reflections of St. Augustine on the analogy and relation existing
between the government of families and that of the commonwealth
(referred to, as we have seen, by Savigny,) will make this subject
clearer. St. Augustine k says : Hominis domus initium sive particula
debet esse civitatis. And he argues that as every commencement must
be referred to an end of its own kind, and every part to the whole
whereof it is part ; so it follows that domestic peace has a necessary
relation to the public peace, that is to say, the regulated harmony of
authority and obedience of those who live together as a family has
relation to the regulated harmony and obedience of citizens or sub-
jects. 1 Here we see a beautiful explanation of the doctrine hinted at
by Savigny, showing a point of contact of Public with Private Law,
arising from the connexion between public and private welfare, which
are the objects of laws.
Suarez shows at considerable length, with his usual learning and
acumen, that the common good is an object essential to law, con-
sidered in its abstract nature as a common rule of action, ordained by
a superior. But he states the difference laid down in the Pandects
and Institutes between public and private law," and explains it by
drawing two distinctions as follows. The common good is of two*
sorts. One is in itself and primarily common, because it is not within
the dominion of any private person, but belongs to the community for
whose use it is immediately ordained. Such are churches or sacred
things, magistrates and other public authorities, common pasturages,
public buildings and fortifications, and the like. Another sort of com-
mon good is so only secondarily. It is immediately private, as ap-
pertaining to private persons, and inter.ded directly for their benefit.
It is, however, deemed common for two reasons : because the common-
wealth has a certain superior right over the property of individuals,
from whence arises the right of levying taxes and other imposts;
and also, because as each person is part of the community, the good of
each, which does not redound to the prejudice of the others, is the
good of the community. And thus 'the civil law declares that it is
1 Schmalzgrueber, Jus Eccles. torn. 1, Dissert. Proem. 5 ; torn. 1, p. 69.
k Div. August. De Civ. Dei, lib. 19, cap. 16.
1 Id est ut ordinata imperandi obediendique concordia cohabitantium referatur ad ordi-
natam imperandi obediendique concordiam civium.
m Suarez, De Leg. lib. 1, cap 7, Utrum de rat tone legis sit ut propter commune
bonum Jeratur.
n L. 1, | 2, ff. De Just, et Jur. ; Inst. De Just, et Jur. Hujus Sludii.
See Zallinger, Inst. Jur. Nat. lib. 2, cap. 7.
110 THE NATURE OF PUBLIC LAW,
advantageous to the commonwealth that the citizens be rich, and that
no one should misuse his property.?
The second distinction of Suarez is this. In human actions the
proximate matter is distinguished from the motive or reason. And as
the law is a moral act, the same distinction applies to it. Therefore
the matter which the law relates to, is sometimes the common good
primarily, and in other cases it is primarily a private advantage, and
the common good secondarily. The former is the matter of Public
Law, and the latter that of Private Law.
These authorities and reflections sufficiently explain the general
principle which divides public from private law. Before we proceed,
a celebrated law of Papinian must be examined. It is as follows,
Jus Publicum, privatorum pactis mutari non potest.^ It relates to
cases of real or apparent conflict between the freedom of contracts
and laws providing for the public welfare. Cujacius makes the follow-
ing observations in his comment on that law. The words jus publicum
are used in three senses. In the first place, jus publicum is that which
consists in sacred things, the priesthood, religion, and the magistracy
or public authorities/ Secondly, the fiscal law is called public, though
it relates to the private revenue of the prince. Thirdly, the common
law, that is to say, the civil law, laws, plebescita, senatusconsulta, the
edicts of the Praetors and the usages of the Roman people, which are
for the common welfare of all, are called the public law. This com-
mon law cannot be altered or overruled by any private agreement or
other act. Thus, for instance, a testator cannot provide that the tes-
tamentary laws shall not affect his will. 5 But private rights may be
changed by private agreements or other acts, according to the common
maxim Licet unicuique juri pro se introducto renuntiareS So any one
may release a right of action which the law gives to him in his private
capacity." It appears, therefore, that this doctrine of the inviolability
of the Public Law extends not only to the Public Law, strictly so
called, but to the whole common law, subject to an exception when
the law leaves private persons at liberty to make such exception to
the general rule, and where the law is simply permissive and directoiy .*
Cujacius observes, that the principle of this law of Papinian Jus
P Instit. De his qui sunt sui vel alieni juris, Sed et major.
i L. 38, ff. De Pactis.
1 L. 1, ff. De Just, et Jur.
L. 55, ff. De Legat.
' L. 29, Cod. De Pactis; 1. 31, ff. De Pactis; 1. 14, 9,ff. jEdilitio aedicto.
u L. ult. Cod. De Temp, et repar. appell.
* Cujac. Op. torn. 4, col. 18, 19; torn. 1, col. 821, 822, edit. Venet. Mutin.
TEMPORAL AND SPIRITUAL. Ill
Publicum applies to the laws of the Church, for the Church is often
looked upon as legally analogous to the commonwealth.
We have now to consider the distinction between Public and Private
Law in Ecclesiastical Jurisprudence, for the purpose of showing the
nature of Ecclesiastical Public Law.
In one sense it may be said that there is but a small part of Eccle-
siastical Law that does not belong to Public Law. The reason of this
is important. It is to be found in the diversity between the Civil State
and the Church. The former has chiefly reference to the use of tem-
poral things, with a view to temporal peace and welfare, which are
secondary objects in the latter/ And this distinction is well explained
by Devoti and Zallinger, who show that the two commonwealths, the
civil and the ecclesiastical, are distinct and separate, each having its
independent province and authority, one providing for the temporal
welfare of its citizens and human society, while the other regards
Sacred and Divine things, and has the care of whatever leads men to
eternal beatitude. 2 If we compare these fundamental doctrines of
jurisprudence with Ulpian's definition of Public and Private Law, it
will appear clearly that the greatest part of what falls under the latter
head belongs to temporal law. And indeed the ecclesiastical law pre-
supposes and assumes the existence of a temporal law, regulating the
relations and transactions between men in civil society, and makes use
of that temporal law, a especially when the Church has to deal in-
cidentally with such matters. This further reflection must be added.
There is in ecclesiastical jurisprudence more of that which may be
called the public element, than exists in temporal jurisprudence. For
the spirit of ecclesiastical law is essentially that of the Church, the
commonwealth whereof it is the municipal law ; and it regards men
more in their relation to that body politic and with reference to their
place, rights and duties therein, than as individuals, or in their relations
towards each other. The reason of this is, that the Church is not only
a visible body politic, but also a mystical spiritual body, whose fun-
damental laws do not spring from human nature, as is the case with
civil society; and they are consequently only so far affected by the
natural and legal relations between persons, as they are framed for the-
regulation and government of men as citizens of the visible exterior
monarchy called the Church. Thus, for instance, the hierarchies of
y Div. August. De Civ. Dei, lib. 19, cap. 14. Omnis igitur ususrerum temporalium
refertur ad fructum terrenes pads in civitate terrena : in ctelesti autem civitate refertur
tid fructum pads eeterrue, etc.
1 Devoti, Inst. Jur. Canon. Prolegom. cap. 1, ^ 6, 7 ; Zallinger, Inst. Jur. Nat. et
Eccles. Pub. torn. 1, lib. 3, cap. 6; Nardi, Elementi di Diritto Ecclesiastico, torn. 1,
p. 367, 243.
* Schmalzgrueber, Jus Eccles. Univers. torn. 1, Dissert, proem. 7, num. 236.
1 12 THE NATURE OF PUBLIC LAW,
order and jurisdiction 'and the Supremacy of the See of St. Peter are
positive Divine constitutions, not springing from any principle in created
nature or human society ; but there are subordinate ecclesiastical laws
regarding the exercise of sacred functions, or collateral to them, such
as those limiting local boundaries and regulating administrative matters,
which are grounded on the same kind of reasons as temporal laws.
We perceive here a principle dividing ecclesiastical laws into two sorts,
each having a certain distinctive spirit, and being grounded on a dif-
ferent class of reasons. But the spiritual character of the Church is
the most excellent and the most essential to its very nature as a mys-
tical body politic ; and so it is the real spirit of all ecclesiastical juris-
prudence. Therefore, the spirit of ecclesiastical laws is to regard
persons in their relation to that mystical body rather than to each
other, and this makes the public more considerable than the private
element of the system. We see this position exemplified by the way
in which ecclesiastical jurisprudence treats of the sacraments. Their
mixed nature 15 places them within the province both of law and of
theology. The canon law defines and regulates them as part of the
public administration of the authority of the Church, leaving to theology
their end and effect on the particular person. In the same manner
truths which theology proposes to each person individually as dog-
matic to be believed, assume in jurisprudence the form of rules of out-
ward action, and laws for the constitution, government, and peace of
the Church.
These reflections on the spirit of Ecclesiastical Law with reference
to the distinction between Public and Private Law may seem rather
abstruse, and they do not lead to the establishment of any clear line
of demarcation, but they are necessary to understand the peculiar
nature of Ecclesiastical Public Law according to the canonists.
Zallinger explains that Ecclesiastical Public Law comprehends the
rights, powers, and obligations of those who by Divine institution
preside in the Church, that is to say, the bishops and especially the
Supreme Roman Pontiff. Their power, he continues, is called Public,
because it is not confined to the interior forum, but extends to govern-
ing the faithful in spiritual matters and exercising jurisdiction, and to
an established order of authority and subordination. And Ecclesiastical
Public Law is either common and universal, belonging to the whole
Catholic Church, or public and particular, consisting in special usages
of particular countries or places, and in concordats between different
b Devoti, Inst. Canon, lib. 2, tit. 2, 1, 2; Concil. Trident, sess. 7, can. 8; Decret.
Gratian. can. 32, (list. 2 ; Tract, de Consecratione.
c Zallinger, Inst. Jur. Natur. et Eccles. Publ. torn. 2, p. 211 ; Lib. Subsid. cap. 1,
5, torn. 3, Prolegom. cap. 7, 76.
TEMPORAL AND SPIRITUAL. 1 13
nations and the Holy See. d The latter for the most part belongs to
history, and forms an important part of the Public Law of Europe.
It cannot be understood without a knowledge of the Ecclesiastical
Public Common Law, to which it is a sort of exception and supple-
ment. That Common Law is chiefly to be found in the Decretals,
but mingled with other matters. The following sketch will show
sufficiently for the present purpose what it is.
The Book of Decretals begins with the title De Summa Trinitate
et Fide Catholica. This is also the first rubric of Justinian's code,
of the Sexte and the Clementines ; for, as Reiffenstuel says, this is
the source of all justice/ and especially necessary for an ecclesiastical
judge/ This title comprises the doctrine of one Universal Church,
which is the foundation of Ecclesiastical Public Law.
The Church having thus been placed before the eyes of the reader,
the next step leads to the public governing ecclesiastical authority.
Zallinger explains this authority to be a complex of various rights
belonging to the government of the Church. It comprehends the
right of preaching the faith and doctrine of Christ, and deciding
infallibly controversies regarding them : baptizing and administering
the other sacraments ; prescribing Divine worship and sacred rites ;
enrolling and ordaining the ministers and Priesthood, and especially
instructing and training them : deciding disputes among them ;
restraining and punishing offenders, &c. g Zallinger goes on to say,
that there are two things to be taught regarding ecclesiastical autho-
rity. The first, that it is of Divine institution altogether separate and
distinct from all natural, civil, and political powers : and the second,
that it is distributed according to certain organic laws among those
to whom, by institution of Christ or by disposition of the Church, it
belongs.
Our Lord constituted the Church in the form of a commonwealth
or body politic, separate and distinct from the civil state ; and he gave
to it peculiar magistrates, with power to govern and administer it. h
That power was, in the first place, given to St. Peter and his succes-
sors, 1 constituting the summit and plenitude of jurisdiction, and then,
that Supreme Primacy having been constituted, power was given to
d Zallinger, Inst. Jur. Natur. et Eccles. Publ. torn. 3, Prolegom. cap. 7 ; De Jur.
Eccl. Publ. etc. 74.
e Reiffenstuel, Jus Canon, torn. 1, p. 34.
f Schmalzgrueber, Jus Eccles. torn. 1, p. 168.
R Zallinger, Inst. Jur. Eccl. torn. 3, p. 52, Prolegom. cap. 7.
h Devoti, Inst. Jur. Canon, lib. 3, tit. 1, 2.
1 St. Matt. xvi. 13; St. Luke, xxii. 31 ; St. John, xxi. 14, et seq. ; Bolgeni, 1'Epis-
copato, torn. 1, cap. 2, art. 2; cap. 7, art. 2.
I
114 THE NATURE OF PUBLIC LAW,
the Apostles, including St. Peter, and to their successors, 11 except with
regard to those extraordinary rights and powers which terminated
with the Apostles themselves. 1
By Divine ordinance, besides St. Peter and the Apostles, and the
successors of both, (that is to say, the Roman Pontiff and the other
Bishops,) ministers of an inferior order are instituted. And for the
more convenient government of the Universal Church certain degrees
or gradations of offices are appointed by ecclesiastical authority, and
dioceses, provinces, and larger districts are defined, from whence
diocesan bishops, metropolitans, primates, and patriarchs, are entitled.
And again, synods diocesan, provincial, national, and general or
O3cumenical. m
These sacred persons and degrees present the idea of the hierarchy.
In it there is the distinction between the powers of order and of juris-
diction, both of which are distributed in regular gradations. And
jurisdiction is of two sorts, that of the internal forum, and that of the
external forum. The latter is public and governing, and chiefly
resides in the episcopate and its various gradations. These are to be
looked upon in two ways, that is to say, as regards each separate
bishop, and assemblies or synods. And in both respects their relation
to the See of Peter is to be considered. 11
Ecclesiastical Public Law having defined the form, and, as it were,
the machinery of ecclesiastical polity, proceeds to the objects over
which the public power of the Church extends. These are either
matters of Divine law, or matters of human law. The former are
called causes of faith and morals, and the latter causes of discipline.
Causes of faith and morals are matters of natural right and wrong,
and causes of religious truth or dogma, or of communion, or separa-
tion, or schism. Discipline is usually referred to the following four
heads. Liturgical or internal discipline, to which belong acts of
religion and virtue, ceremonies, festivals, penances, fasts, and the like.
The remainder of discipline is external, and consists of the creation
and ordination of ministers, promotion to offices, and the whole polity
of the clergy ; the government of the Church, that is to say, the mode
of exercising the legislatorial, inspectorial, and the judicial powers;
and, lastly, the management and use of the temporal property of the
Church.
k St. John, xx. 19; St. Matt, xviii. 18 ; St. Matt, ult.; St. Mark, ult. ; St. Paul,
Ephes. ii. 20 ; St. John, Apocal. xxi. 14; Bolgeni, 1'Episcopato, torn. 1, cap, 2, art. 6.
1 Zallinger, Inst. Jur. Eccles. torn. 3, Prolegom. cap. 7, 80, 81. See also Hooker,
Eccles. Polit. b. 7, 4.
m Zallinger, ibi, 82, 83.
n Ibi, i 84. Ibi, $ 85, 86.
TEMPORAL AND SPIRITUAL. 115
One head of Ecclesiastical Public Law remains to be noticed. It
regards the relations between the Church and the State or civil
government. For, as Zallinger observes, though the ecclesiastical is
separate and different from the natural and political powers, yet the
temporal power has rights or duties of defence or protection, and
patronage regarding the Church and ecclesiastical causes. 1 "
This analysis of the subject shows that Ecclesiastical Public Law
comprehends the whole law of the constitution of the Church, which
may be thus summed up. The canon law regards the Church as a
monarchical body, or a body politic in the nature of monarchy, of
which the Supreme Pontiff is the Sovereign Head. q This body politic,
thus fashioned in a monarchical form, has a senate called an oecume-
nical or general council, of which the Pope is the head and a neces-
sary component part/ The Catholic Church unites a federal to a
monarchical constitution. It is composed of a variety of ecclesiastical
bodies or churches, each of which has its superior bishop, its synod or
church senate, and its peculiar laws, customs and privileges. All
these bodies are represented (though not by way of delegation) in the
oecumenical council by their bishops. And they stand respectively in
divers relations to the civil communities of the countries where they
exist, and are affected in divers ways by the temporal laws, customs
and institutions of those communities. But notwithstanding these
local peculiarities, they are all bound together into one body by iden-
tity of faith, by similarity of constitution, by community of laws,
and by their submission to one supreme power the Holy See, which
is the centre of their unity, and the summit of the hierarchy of
jurisdiction.
It is easy to perceive, on examining this sketch, the points of con-
tact of ecclesiastical with temporal Public Law, and the way in which
both operate together in the government of man and the direction of
his actions towards the end of his creation. The universality of Chris-
tianity forbids that its laws should be subjected to a purely national
or municipal direction. 8 They therefore extend beyond, and, as it were,
over temporal municipal laws, but without weakening or injuring their
authority. For the Church was not intended to supersede temporal
laws and governments ; as its origin and objects are different from
those of civil polity. 1 And this, according to St. Augustine, is the
meaning of the declaration of our Lord, My kingdom is not of this
P Zallinger, Inst. Jur. Eccles. torn. 3, Prolegom. cap. 7, 87.
i Devoti, Inst. Canon. Prolegom. cap. 6, 19.
r Ibi, 21, 22.
Savigny, Trait de Droit Romain, torn. 1, p. 27, edit. Paris (trad.), 1840.
' Suarez, De Leg. lib. 3, cap. 5, 5; Div. August, de Civ. Dei, lib. 19, cap. 17.
I 2
116 THE NATURE OF PUBLIC LAW,
world." In each country, the relation between the Church and the
State, and the subjection of persons and things to the temporal law,
(or the latter circumstance only, where the Church has no relations
with the State,) produce a contact between Ecclesiastical Public Law
and Municipal Law. And this proposition applies even in countries
where the laws of the Church are not enforced by the civil power, for
there those laws exist as matter of fact, and are practically observed
by those who belong to the Church, so that practically they operate
on the government of society, through the power of religious belief and
duty. And the universality of Ecclesiastical Public Law places it in
contact with the general law of nations, of which in one aspect it forms
part.
The force of these reflections will appear when we consider that
among all the aggregations of men, constituted and governed by or-
ganic laws for various purposes in the entire world, the Roman Catholic
Church is the most numerous and the most extended. The world is
governed by the laws of different bodies politic, such as nations, states,
provinces, and cities, and by the civil power of those communities,
within their respective territories : but the Catholic Church is not con-
fined to any particular territory, and it is not only a spiritual mystical
body, but also a perfect body, and a community having peculiar muni-
cipal laws, and an outward system of government and administration
complete in itself. Therefore the Catholic Church is one of the means
whereby mankind are governed. And its Public Law is an essential
part of the Public Law of the world. I have already shown the unity
which exists between ecclesiastical and temporal law, though each has
its own immediate object and its peculiar spirit. And this unity, to-
gether with the distinction between the province of each, makes the two
systems harmonize together and concur in directing man towards the
end for which he was created. Thus St. Augustine beautifully shows, 1
that the part of the City of God which is on earth requires that tem-
poral peace which it is the province of the terrestrial city (civitas terrend)
to procure. And on the other hand, I have fully proved that temporal
laws and government are not able to carry into effect all consequences
which arise from the two primary fundamental laws, nor to dispose
men's minds to their fulfilment; and that therefore the spiritual law
and authority are necessary to fill a void in universal jurisprudence
and to bring the law of grace in aid of the temporal law.
It is important to observe regarding the relations of the two kinds
of powers and laws (the temporal and the spiritual) with each other,
that the former are necessarily local and restricted within territorial
St. John, xviii. 36 ; Devoti, Inst. Canon, lib. 3, tit. 1, 8, 9.
T Div. August, de Civ. Dei, lib. 19, cap. 17.
TEMPORAL AND SPIRITUAL. 117
limits, while the latter are required by their very nature to be uni-
versal. Temporal laws (except the immutable part) y differ according
to the form and nature of the government of each country/ and the
habits, customs, wants, and character of the people. And a form of
government useful and wise in one country would be utterly impracti-
cable, or at least inconvenient in another, though there are certain
principles on which all governments are founded. The reason of this
diversity is that the mode of obtaining the temporal advantages which
are the immediate object of civil government, must differ according to
circumstances of time and place, and according to the various wants
of man. And as the laws of civil society are derived from nature, so
their form and results must vary as nature varies. And these diver-
sities necessarily lead to the conclusion that temporal laws and govern-
ments must be restricted within certain territories. Therefore when they
are unduly extended, so as to violate the principle called nationality,
inconveniences or even convulsions ensue. Thus Hermogenianus refers
the separation of mankind into nations, to the jus gentium* But it
is otherwise with the Church and the Ecclesiastical Law. They are not
affected by the causes of diversity above referred to. The constitution
of the Church is the same everywhere in all its essential characteristics,
and the spirit of its laws is the same ; and those laws differ in each
country only in that subordinate part which is not essential to the
Public Law of the Church, but merely regards the details of adminis-
tration and what are called mixed matters, which fall both under the
temporal and the ecclesiastical law. And as the Church is a positive
Divine institution having an universal mission, its fundamental and
essential laws are also universal. Their direct purpose is not the at-
tainment of temporal advantages and objects which differ according
to time and place, the variety of human wants and other circumstances,
but the fulfilment of a spiritual end beyond this life, 5 and common to
all mankind. Therefore the Public Laws of the Church are not re-
stricted within particular territories, but belong to a commonwealth
unlimited in extent and universal. And so we find that though for
temporal purposes mankind are divided into various nations, kingdoms
and states, the laws and government of which differ very widely, the
unity of the human race is preserved by the Catholic Church and by
Ecclesiastical Public Law, which are everywhere essentially the same
and governed by the same spirit, that of the Gospel.
y L. 9, ff. De Just, et Jur.
1 Montesquieu, Esprit des Loix, lib. 2, ch. 1 ; 1. 9, ff. De Just, et Jur.
L. 5, ff. De Just, et Jur.
b Eat igitur Jus Canonicum quod civium actiones ad Jinem teternte beatitudinis dirigit.
Lancelot. Inst. Jur. Canon, lib. 1, tit. 1, 1.
118 ON THE END OF HUMAN SOCIETY.
CHAPTER XIII.
REFLECTIONS ON THE END OF HUMAN SOCIETY AND THE RELATIVE
USES OF THE SPIRITUAL AND TEMPORAL LAWS. THE DIVISION OF
MANKIND INTO STATES AND NATIONS. LEGAL CHARACTER OF THAT
INSTITUTION. CONSEQUENCES WITH REFERENCE TO POLITICS AND
ECONOMIC SCIENCE.
DOMAT has prefixed to his book on Civil Law, a plan of the order of
society, establishing its first principles and foundations, because all
the laws of men's conduct among themselves are the rules of that
society in which God has placed them, and therefore those laws and
their subject matter are to be discovered in that order. c And the great
civilian resorts to the same plan in the preface to his work on Public
Law, for the purpose of giving an idea of the matters of Public Law
which he is about to treat, and the laws which are the rules of those
matters.
This method is grounded on profound reason. For, as St. Thomas
Aquinas shows, the end for which man was created and placed here
is the first fundamental principle of society , d though the immediate
purpose of human society is temporal peace, and the advantages to be
derived from temporal things; 8 and therefore the excellence of civil
government, and its laws, depend on that fundamental principle of the
order of society and the consequences arising therefrom. Tanto autem
est regimen sublimius quanta ad jinem ulterior em dirigitur. f The doc-
trines of Domat are in conformity with this maxim of St. Thomas.
The necessity of regarding the ultimate end of human society, which
is that of man, in all political science, is shown in the chapter of St.
Augustine just cited. And it cannot be neglected without violating
the two primary laws and causing discord and other evils. Macchi-
avelli's famous treatise, though written for a different purpose, exem-
plifies both these positions, which are denied by implication in other
books, less notoriously immoral, belonging to that school called utili-
tarian, because it makes temporal utility the ultimate end of law and
politics, contrary to the sublime doctrine of St. Thomas, who will not
c Domat, Droit Publ. Preface.
d Div. Thorn. Opusc. de Regimine Princip. lib. 1, cap. 14.
e Div. Augustin. De Civ. Dei, lib. 19, cap. 14.
f Div. Thorn, ubi sup.
RELATIVE USES OF SPIRITUAL AND TEMPORAL LAWS. 119
allow that even virtue is the real end of civil society. 8 And this impor-
tant truth, that the end of man is not the enjoyment of mere temporal
good, we have already seen fully explained by Domat. Every system
of law and politics that denies it, either directly or by implication, or
takes no account of it, is grounded on a fiction, and by starting from
an incomplete view of the nature and obligations of man, leaves out a
great portion of legal and political science. Those who fall into this
error must omit a considerable part of the laws and principles by
which the world is governed. For the laws of man are the rules of
his conduct, and that conduct must have an object to which those
rules direct his actions. We cannot, therefore, discover them all if we
take for the ultimate object one which is only intermediate and subor-
dinate. These reflections may perhaps seem, at first sight, somewhat
too abstruse for practical use. But the contrary is shown all through
our Commentaries.
For the mind of the reader has constantly been recalled to the two
primary laws as the source of all others in this world, both human and
divine, h and as directing man to the end of his creation. And so I
have shown the unity of jurisprudence, and the way in which it is
connected with theology and the other moral sciences which teach and
direct the internal man. Thus it appears, how ecclesiastical and civil
polity and laws really harmonise and concur together, though they
sometimes seem to clash, because their immediate objects are different:
whereas, without unity of purpose in the government of man, they
would draw him in opposite directions, and become essentially dis-
cordant with each other, like circles each traced from a different centre.
And in like manner I have shown the necessity of the Universal
Church and her laws to fill that void in the government of mankind
and jurisprudence which temporal polity and laws must leave, because
it is impossible that they should give all the rules required to direct
even the outward actions of man towards his end, by the fulfilment of
all the consequences of the two primary laws. No system of juris-
prudence, excluding the Catholic Church, can fill that void. And her
laws once known demonstrate the great truth which St. Thomas
Aquinas has just told us. Non est ultimus finis multitudinis congregates,
vivere secundum virtutem, sed per virtuosam vitam pervenire ad fruitio-
nem Divinam. And if this be the object of human society, it is clear
* Sed quia homo vivendo secundum virtutem ad ulteriorem finem ordinatur, qui
consistit in fruitione Divina, ut supra jam diximus ; oportet eundem finem esse multi-
tudinis humanae quse est hominis unius. Non est ergo ultimus jinis multitudinis con-
gregatee vivere secundum virtutem, sed per virtuosam vitam pervenire ad fruit ionem Di-
vinam. Div. Thorn. De Regim. Princip. lib. 1, cap. 14.
h Matt. xxii. 38.
120 ON THE END OF HUMAN SOCIETY.
that all the laws of society must be directed to that object. But with-
out the Church and the Spiritual Law, the laws of human society
cannot attain it, and the end of that institution will be frustrated.
Man will be reduced simply to what St. Augustine designates as
civitas terrena, which being imperfect (insufficient for its ultimate end)
will not accomplish even its immediate temporal purposes fully.
We may find the key to many problems of history and politics in
this conclusion. But we must confine ourselves here to one point,
namely, the objection that some countries enjoy great peace and pro-
sperity, though the principles given above are violated or disregarded.
Domat furnishes an answer. He observes, that society subsists and
flourishes though the spirit of the two primary laws has very little
power there, and it seems therefore to be maintained by other princi-
ples. But he urges, that though society is in a state strangely different
from that which those laws require, yet this does not affect their vali-
dity ; and they are nevertheless essential to the government of man-
kind, so that whatever degree of peace and order are to be found in
the world may be traced to their operation. 1 And in the study of
all political science, we see frequently a state of facts apparently
contradictory to principles which are nevertheless true. So there are
not wanting instances of countries (such, for instance, as the republic
of Venice and other Italian States), which have flourished both mate-
rially and intellectually under a more or less bad government, appa-
rently in defiance of the rules of politics. This paradox is explained
by collateral circumstances, which leave untouched the true principles
of politic science. And a careful examination will show, that in truth
those principles can never be violated without causing evil sooner or
later. Besides, many men are prosperous, happy, respected by the
world, and even amiable and useful, though they habitually disregard
religion, and many precepts of morality. But this does not refute the
position that religion and morality are the best and only real founda-
tion of happiness and usefulness even in this life.
These arguments all apply to the particular objection that the pro-
sperity and greatness of some countries seems to refute practically the
doctrines of Public Law, which show that the Universal Church and
the Spiritual Law are requisite to attain even the temporal objects of
human society completely ; and on this subject some further reflections
are requisite. It is difficult to believe a priori, that whereas civil
society has an immediate end or object regarding the terrestrial city,
and an ultimate end belonging to the celestial city (which includes
the Church), and the laws of both cities on earth spring from the two
1 Domat, Loix Civiles, Trait des Loix, ch. 1, 8.
RELATIVE USES OF SPIRITUAL AND TEMPORAL LAWS. 121
primary laws, yet those two polities are- not intended to be useful and
necessary to each other, for the attainment of the ultimate end of
man's creation. Such a belief would be absurd. So St. Augustine
shows how that part of the celestial city (Civitas Dei) which is on
earth requires the peace of the civitas terrenaf though in another
sense he frequently tells us how the world and the Church are con-
stantly striving with each other, because the passions of men make
mere temporal pleasures and advantages their ultimate object. There-
fore we may conclude that civil society is insufficient, by itself (not-
withstanding appearances to the contrary in particular instances), when
the Church is oppressed and disregarded.
But the argument may be carried further. For wherever the
Catholic Church has exercised influence over a whole nation, it has left
results which centuries cannot obliterate, though later generations may
attribute them to other causes. It has left a spirit in its jurisprudence
a character impressed on the people and even external institutions
and living laws, which all come from the Civitas Dei, the Catholic
Church. Can it be said, for example, that the laws and institutions,
and civilization of England, would be what they are if they had not
existed side by side with the Church and her laws ? Moreover, the
general effect of the Catholic Church and its laws on mankind, and
on the formation of legislation and jurisprudence and governments in
modern Europe, must not be forgotten by those who appeal to results
in particular countries, as being derived from merely temporal causes.
They should also ask themselves and impartially consider whether
temporal laws and civil society alone could have led to and accomplished
all that they so much admire in modern institutions and civilization.
And, lastly, they should inquire whether there are not social and ma-
terial evils in the proudest and richest countries, which the temporal
law, and the power and influence of civil society, cannot by themselves
remedy ? Experience proves that the Church and the Spiritual Law
can deal with those evils ; and this is precisely because, as I have
shown, it fills a space which temporal jurisprudence and government
leave vacant. And acting on mankind through the law of grace, and
by its universal system and various external means, it is able to ac-
complish what nothing municipal can do, because all municipal or
national institutions are necessarily subservient to the national opinion,
swayed by temporary and local influences, and shackled bylaws grounded
on mere temporal administrative convenience ; whereas, that which is
required is not part of mere municipal law and government, but
belongs to the system of general polity and universal jurisprudence,
k Div. August. De Civ. Dei, lib. 1 9, cap. 7.
122 ON THE END OF HUMAN SOCIETY.
whereby the human species is governed. It is the branch of jurispru-
dence omitted from the scheme of municipal laws, considered as such,
and it belongs not to particular, but to Universal Public Law. It
is, indeed, part of the system of a body politic of a mixt nature, visi-
ble and mystical or spiritual, a portion whereof only is contained in
this world, and which, therefore, cannot be identified with the legal
and political institutions of any particular state or country, or with
any temporal laws or government.
But these objections are here dealt with merely to meet the apparent
difficulty arising from the condition of some countries, where the tem-
poral law and human society seem at first sight to fulfil every purpose,
without the Universal Church. I will only add, that even in those coun-
tries the Universal Church exists and exercises a local living influence
on society ; besides that which operates on mankind in general, and
besides the laws and institutions, civil and ecclesiastical, originally
derived from those of the Church. But this disquisition belongs pro-
perly to the philosophy of history and politics, and, indeed, it ought
to be treated separately, for the purpose of showing the influence of the
Catholic Church on the formation of European society, and on the
history of the construction of governments. We have here only to
examine that aspect of the subject which belongs to Public Law,
and to lay down principles of pure science, the truth of which cannot
be shaken by apparent difficulties arising from circumstances, social
and political, of different countries, or from the disturbing forces of
human passions and corruptions.
This comprehensive view of the greatest principle on which the unity
of public law and of human society depends (the proposition that the
ultimate object of society and government is the end of man's creation,
and that so the laws, both temporal and spiritual, of man's conduct,
though with different direct purposes, have but one ultimate design),
lead us naturally to consider the two aspects in which mankind may
be seen, that is to say, as one body, and as distinct communities, or
nations and states.
The primary natural law has no regard to any divisions among
mankind, because, as we have seen, it comprises the absolute, as con-
tradistinguished from the hypothetical duties and rights of man. 1 This
is a principle to be kept in mind, because the secondary does not de-
stroy the primary natural law, from which many important consequences
flow.
Zallinger divides natural jurisprudence under four heads: I. Private
Natural Law; II. Social Natural Law; III. Public Natural Law; and
1 Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1, lib. 1, cap. 3, 16; ibi, cap. 1
3 ; Pufend. Droit de la Nat. et des Gens, liv. 2, ch. 3, 24.
RELATIVE USES OF SPIRITUAL AND TEMPORAL LAWS. 123
IV. the Jus Gentium. The first considers man simply in his essential
natural condition, unaffected by any adventitious status or relation.
The second regards secondary, hypothetical, or adventitious natural
law, including that which arises from the lesser associations of men.
The third is concerning civil society. The fourth comprises the rights
and duties of states or nations, considered as moral persons or bodies
polific.
The two first of these heads are, as it were, anterior to and inde-
pendent of any divisions of mankind or of territories, though the
second includes the whole of private secondary natural law, that is to
say, the natural law regulating the rights and duties between man
and man in consequence of their dealings and transactions with each
other, especially those arising from the institution of property. The
third requires to be traced from its source with reference to the matter
now under examination.
Savigny observes, that the rules of law differ in the nature of their
origin ; for they may spring from law properly so called (jus or
cequitas), or from something foreign to jurisprudence. These foreign
elements which introduce themselves into the law, sometimes produce
results contra rationem juris. This he names anomalous law, as con-
tradistinguished from that proceeding out of law ( jus) itself, which he
calls nomal law, and the Romans sometimes designate as jus com-
mune. The anomal law is described thus by Paulus, under the name
of jus singulare. Jus singulare est quod contra tenorem rationis
propter aliquam utilitatem auctoritate constituentium introductum est. "
Savigny gives several examples of these exceptional arbitrary laws
arising out of matters of fact, and most frequently having the charac-
ter of privilegium, though not of a personal individual character. Of
this nature are laws making exceptions to the general rules of law in fa-
vour of particular sorts or classes of persons. In some cases, this class
of laws arise from old national usages and habits. In all it is foreign to
jurisprudence, strictly so called, though legal consequences may arise
from the jus singulare itself.
This general view will enable us to understand the scope of a
celebrated, but rather obscure law of Modestinus, wherein he says,
enumerating the sources of law Omne jus aut consensus fecit, out
necessitas constituit, aut firmavit consuetudo. The first refers to
written law, the third to custom, and the second, quod necessitas con-
stituit, is one sort of anomal law, or jus singulare. Cujacius says,
that this division was derived from Menander, and observes, that it
m Savigny, Traite du Droit Rom. torn. 1, ch. 2, pp. 58, 59, trad. Paris, 1840.
n L. 16, ff. De Legib.
L. 40, ff. De Legib.
124 ON THE END OF HUMAN SOCIETY.
must be taken as a classification not of all laws, but only of three
sorts of Roman Laws, that is to say, lex, senatus-consultum, et longa
consuetudo. p And he shows, from a law of Pomponius, q that the fol-
lowing was the reason of the origin attributed to senatus-consultum.
The increase of the Roman people, which made their assemblies diffi-
cult and inconvenient, caused public affairs to fall into the hands of the
Senate. Necessitas ipsa curam reipublicce ad Senatum deduxit. "And
so the Senate commenced making regulations or laws, which were
called senatus-consulta. The same cause in later times produced the
invention of assemblies composed of the representatives of the people.
And in the constitutional history of England, another illustration is to
be found, for the inconvenience of assembling in Parliament the lesser
tenants in capite, caused them to elect representatives; and hence
arose the parliamentary representation of counties by knights of the
shire. , Here we find the way in which legal institutions are created
by the operation of the very same principle from which the anomal
law or jus singular e springs, quod propter aliquam utilitatem (vel neces-
sitatem) introducturn est. For necessity, as Savigny observes, differs
not in principle from utility. And it would be very interesting to trace
the effect of this sort of laws in the formation and development of
legislation and political institutions, so as to show the reasons on
which they were originally grounded, and their historical spirit.
This principle explains the origin of the division of mankind into
nations or states. For the increase of mankind beyond the numbers
for which the simple patriarchal rule could suffice, led to the institu-
tion of civil governments, and the human race was necessarily divided
because no government could extend its authority or its functions to
the whole. Thus Hermogenianus, enumerating the different subjects
of t\\& jus gentium, says, Ex hoc jure gentium .... discretes gentes, regna
conditaJ The separation of nations is mentioned in the
Pandects as springing from secondary natural law. It is matter of
jus singulare and quod necessitas constituit. It arises from civil go-
vernment, and is in truth a subordinate institution of Public Law, to
the formation of which various circumstances, such as diversities
of climate, soil, language, race, and geographical position, have con-
tributed. ,
It was necessary thus to determine the legal character of this insti-
tution for the purpose of understanding the spirit of the Law of Na-
tions, which is created from the division of the world into separate
bodies politic, and is therefore (as we have seen) placed last by Zal-
P Cujac. Op. torn. 3, col. 373 ; Observat. et Emend, lib. 14, cap. 16.
L. 2, 8, De Orig. Jur.
r L. 5, ff. De Just, et Jur.
RELATIVE USES OF SPIRITUAL AND TEMPORAL LAWS. 125
linger,* after the internal Public Law of States. This will appear from
the observation of Burlamaqui, that the civil state does not supersede,
but on the contrary, confirms the obligations of men towards each
other arising from natural society ; and civil society itself is natural
society, so modified as to contain a sovereign power. The establish-
ment of civil societies, lie continues, produces new relations among
men, those between nations and states, which give origin to interna-
tional law and politics. And those states acquire a legal personality,
and therefore, to them may be attributed the same rights and obligations
which belong to individuals as members of human society, so that if
justice imposes on private men certain duties towards each other, it
prescribes the same rules of conduct to nations (which are aggregates
of men) in the affairs and intercourse one with the other. 1 This suffices
to refute the notion of Spinosa and Hobbes, that every independent
community has a right to do whatever it pleases to other common-
wealths, they living in a perpetual state of war ; u unless we admit that
the natural state of man is a state of war, a doctrine refuted not only
by jurisprudence and philosophy, but by Religion.
Another effect of the subordinate and secondary legal character
which belongs to the division of states and nations, is to reduce within
just limits what is called nationality, which in different forms has pro-
duced much mischief, causing wars of mere conquest and aggrandise-
ment ; giving a colour of duty and patriotism to envy and implacable
hostility against a particular nation, and making it a leading principle
of policy and statesmanship that each country should strive by all
means to weaken and impoverish others, and especially its neighbours.
These pernicious errors are abandoned in proportion as the pro-
gress of civilization and commerce and the useful arts have taught
nations and states their true interests and their duties to each other,
prescribed by the second of the two fundamental laws coinciding with
those interests. Here we find a practical exemplification of the doc-
trine laid down by Domat that those laws cannot be violated with im-
punity, and that whatever peace and welfare exist in the affairs of this
world arise from their observance.
The famous controversy between Selden and Grotius about the
liberty of the seas, shows the bad consequences of neglecting the true
spirit of the division of mankind into nations, and so extending exclu-
sive national claims beyond what the principles of Public Law allow,
And see St. August. De Cir. Dei, lib. 19, cap. 7.
' Burlamaqui, Principes du Droit des Gens, torn. 4, pp. 14, 15, edit. Paris, 1820;
Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1, lib. 3, cap. 1, 267.
Wheaton, Hist, of the Law of Nations, p. 100; Spinosa, Tract. Theol. Polit. c. 3.
126 ON THE END OF HUMAN SOCIETY.
by making that the exclusive property of one state, which the law of
nature has left common to all mankind/
Another example is to be found in the spirit of that policy which
dictated the Navigation Laws, y a spirit governed by the notion that the
interest of every country is hostile to that of others, and that each
must therefore strive for some exclusive advantage, to the prejudice of
the rest of mankind. Whereas sound reasoning and experience have
shown the reverse of these propositions to be true. And here we must
remark the harmony between the principles of political economy and
those of Public Law. But this concordance is perfectly natural.
For all political science must agree with the laws on which human
society is constructed and governed ; and so we shall see that a broad
comprehensive view of Public Law, and a thorough knowledge of
its spirit and fundamental grounds, conduce to advance and eluci-
date every branch of the science of government and public adminis-
tration. Though jurisprudence and politics are distinct sciences, yet
both are branches of one scheme of terrestrial government, and it is
impossible that anything true in the latter should be otherwise than in
accordance with the two great fundamental laws, and in furtherance
of the end to which they are directed as rules of man's conduct. Thus,
by determining the legal character of that remarkable institution of
Public Law, the division of the world into nations and states, and by
showing that it is jus quod necessitous constitute, not superseding the
laws which constitute the unity of human society, we are led to the
conclusion that principles of political and economic science in accord-
ance with those legal doctrines, must be more calculated to promote
the welfare of mankind than opinions dictated by an opposite spirit.
If it were otherwise, human society, social and political or civil, must
be a machine whose uses are at variance with the rules on which it is
constructed, a supposition contrary to reason and inconsistent with our
knowledge of the Divine wisdom and benevolence.
x Grotius, Droit de la G. et de la P. liv. 2, ch. 2, 3, and notes by Barbeyrac ;
Pufend. Droit de la Nat. liv. 4, cb. 5, 3, and notes ; Vattel, Droit des Gens, liv. 1,
ch. 23 ; 1. 9, ff. ad Legem llbodiam; Co. Litt. 261 a, n. 1.
i Adam Smith, ed. M'Culloch, 1850, note 11, by M'Culloch.
DIVISION OF THE WORLD INTO STATES AND NATIONS. 127
CHAPTER XIV.
THE DIVISION OF THE WORLD INTO STATES AND NATIONS CONSIDERED
WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW.
The Anglican Church The Greek (separated) Church The Roman Catholic Church
Its Construction Superiority and Obedience, or Subordination The Hierarchies
of Order and Jurisdiction The Four Elements of Human Society Relation of
Society to Ecclesiastical Public Law Ecclesiastical Public Law independent of the
Divisions of the World into Civil States But that Division not neglected by Eccle-
siastical Public Law Contact of Ecclesiastical Public Law with the Political Divisions
of the Earth, and Temporal Laws How it operates with them.
WE have already observed that the universality of Ecclesiastical Public
Law brings it in contact with the law of nations, of which, viewed
under one aspect, it is a branch. This position evidently does not apply
to the law of the various churches or religious bodies politic which have
no point of unity of their constitution beyond the limits of the country
in which they are situated. Those bodies have their own peculiar
organic laws, and they stand in various relations to the temporal govern-
ment and civil society. They are in the nature of collegia, that is to
say, bodies politic or societies wholly within the civil community, and
therefore of a municipal nature. 2 This is so in a legal sense, though
they may have relations of a religious kind, and analogies or similarity
of form and belief with foreign bodies of the same sort. For those
foreign relations and analogies are matter, not of law but of theolo-
gical belief or opinion, or merely arise from historical reasons.
T4us Gladstone, in his very able work on the relations of Church
and State, shows that according to Hooker's general views, the same
persons compose the commonwealth of England and the Anglican
Established Church, and that the two are one society, which society is
termed a " commonwealth, as it liveth under whatsoever form of se-
cular law and regiment, a Church as it hath the spiritual law." The
Crown is the head and chief magistrate of both Church and State,
with high ecclesiastical prerogatives, including the right of calling and
dissolving the greater assemblies ; that of assent to all Church orders
which are to have force of law ; the advancement of prelate?; and the
highest judicial authority. And the theory of Warburton's " Alliance
of Church and State," though based on the distinct origin and office
of the Church, still supposes those two societies to be coextensive, and
to form a union within a certain territory containing the whole
1 Devoti, Inst. Canon, torn. i. Prolegom. 4, n. 2; ^ 6.
128 DIVISION OF THE WORLD INTO STATES AND NATIONS
external government of both Church and State. a The same principle
is manifest in the oath of supremacy prescribed by Statute 1 Geo. I.
st. 2, c. 13, which declares that no foreign prince, person, prelate,
state or potentate, hath or ought to have any jurisdiction, power,
superiority, pre-eminence or authority, ecclesiastical or spiritual, within
this realm. The statute thus clearly confines all ecclesiastical or spi-
ritual jurisdiction, power, superiority, pre-eminence and authority in
the national Church, within the territories of the Civil State. This
principle is part of the constitution of the Established Church in
Scotland, and of the Protestant bodies in France and Germany, esta-
blished or recognised by the temporal law, whatever may be their
theological connexion or communion with each other.
O
We must conclude that the constitutional laws of the communities so
characterized are essentially municipal, and do not appertain to nor
come in contact with the law of nations, nor bear upon the subject of
this chapter. They belong to the head of internal Public Law, that
is to say, the Public Law of each particular state.
The society commonly known by the name of the Greek Church is
less exclusively municipal and national, for its organization extends
over the Russian empire Greece, Turkey, and several other coun-
tries in the east, governed by separate sovereigns. But the Russian
part of this communion is so greatly subject to the ecclesiastical
authority and supreme headship of the emperor, who directs its
supreme synod, h that it has become almost entirely national and
municipal. The creation of the Patriarchate of Moscow in 1589, and
that of the permanent Russian synod by the Emperor Peter in 1721,
withdrew the Russo- Greek Church from the jurisdiction of the Pa-
triarch of Constantinople, and made it in substance an exclusively
national church, like the Anglican Church. The Public Law ofjthe
Greek Church has no relation to the general law of nations or the
division of mankind into states considered as an institution, though it
regards the connexion and intercourse with each other of those par-
ticular countries where that community is established or recognized by
the temporal law. Such are the constitutional characteristics of the
religious bodies separated from the Roman Catholic Church with
reference to the subject which we are now considering.
We come now to the Roman Catholic Church itself: and here we
find that Ecclesiastical Public Law, which is referred to in the title
and commencement of the chapter. This will appear clearly 'from
even a cursory view of two fundamental principles in the canon law,
and of the legal character of the Roman Catholic Church considered
Gladstone, " The State in its Relations with the Church," pp. 7, 8, 11, 12.
b Palmer, Treatise on the Church, vol. 1, p. 179.
c Morone, Dizionario di Erudizione Storico-Ecclesiastica, vol. 32, p. 142.
CONSIDERED WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW. 129
as a body politic. Those principles are known by the technical terms
mqjoritas et obedientia, superiority and obedience or subordination.
We shall find these pervading the whole system of temporal as well as
Ecclesiastical Public Law, but they are nowhere better explained and
exemplified than in the canon law, which indeed those who consider
it as of merely human origin must acknowledge to contain a constitu-
tion or organic system of polity not yet successfully rivalled in dura-
bility, solidity and elasticity.
Majoritas is defined to be that legal prerogative whereby one
person is superior to another ; from whence arise the obedience and
reverence, or the reverence only, which are due from the lesser person
to the greater;' 1 and the commentators insist on the necessity of that
subordination which constitutes what is called hierarchy, adducing as
examples the different celestial orders in the Church triumphant, and
the construction of organic bodies in material nature ; e and we shall
see that this is one of the immutable laws of civil society.
Barbosa enumerates four different causes of superiority (majoritas),
that is to say I. The prerogative of order, whereby a bishop is above
a priest and a priest above a deacon ; and the orders of subdeacon,
acolyte, exorcist, lector and doorkeeper, are each superior to that
which follows it. II. The prerogative of power or authority, which
is called jurisdiction, according to which an archbishop is above a
bishop, and a patriarch superior to an archbishop, though they are all
equal in order as being of the order of bishops. III. The prerogative
of seniority of age or of time, which confers a title to superior rever-
ence among persons in other respects equal. IV. The rank derived
from the dignity of the person by whom an order or office was con-
ferred, namely, the Pope. f To these Reiffenstuel adds the prero-
gative of consecration, whereby a bishop consecrated is superior to one
elected to the office of bishop in the hierarchy of jurisdiction, but not
yet consecrated; 8 and Schmalzgrueber also mentions privilege granted
to a particular see which gives its bishop rank above bishops in other
respects equal ; and he includes the prerogative of jurisdiction in the
more comprehensive term of excellentia dignitatis, specifically men-
tioning the cardinals.* 1
Notwithstanding the slight differences of those high authorities, we
find here a consistent and complete scheme of superiority and subor-
d Reiffenstuel, Jus Canon, lib. 1, tit. 33, num. 2, 17; Schmalzgrueber, Jus Eccles.
lib. 1, tit. 33, 1, De Majontate.
e Reiffenstuel, ubi sup. num. 1 ; Barbosa, Collectanea Doctorum, torn. 1, p. 283,
lib. 1, tit. 33, 2.
f Barbosa, ubi sup. 3 8.
s Reiffenstuel, ubi sup. num. 5.
h Schmalzgrueber, Jus Eccles. ubi sup. num. 1, 5.
K
130 DIVISION OF THE WORLD INTO STATES AND NATIONS
dination. We must next see the principle on which this machinery
works. That principle is the obedience arising from superiority
(majoritas), especially of jurisdiction, which obedience the lesser
person owes to the greater. It consists, according to Hostiensis, in
three points. I. Reverence to those to whom it is due. II. Perform-
ance and observance of the lawful commands or directions of superiors.
III. Submission to the judicial authority of superiors, unless the sub-
ject is freed by an exception or appeal, or the superior himself is a
party to the suit. 1 The remaining question is, how this principle ope-
rates, or to whom and from whom the duty of obedience is due. It
includes reverence ; but there may be superiority without jurisdiction ;
as, for instance, that which comes from seniority among equals. And
obedience, properly speaking, k is due not by every one to every supe-
rior, but by each inferior (in this sense described by the technical term
subjectus) to that superior who, by the laws of the Church, has autho-
rity over him. And, in the first place, obedience is due by the whole
Roman Catholic Church to the jurisdiction of the Supreme Pontiff, in
all those things which regard or affect Divine worship and the salva-
tion of souls. 1 For by Divine right he is the immediate pastor of the
whole flock, with ordinary jurisdiction," 1 and the visible source of all
ecclesiastical jurisdiction. 11 And this sovereign supreme plenitude of
jurisdiction and authority constitutes the unity of the whole scheme.
In the second place, obedience is due to the bishop from all subject
to him within his diocese, in everything regarding the cure of souls.
These are the two principal and necessary points of ecclesiastical
polity, and the key of the system called the Hierarchy of Jurisdiction,
which consists of a regular gradation of persons in a multitude of lines,
all descending from the Holy See, the centre of unity, and increasing
progressively in number as they pass through and radiate from, the
intermediate inferior centres of unity, that is to say, Patriarchs, Pri-
mates, and Metropolitans. The principle of obedience connects the
pei-sons forming each line together, according to the laws which regu-
1 Schmalzgrueber, lib. 1, tit. 33, 2, num. 13 ; Reiffenstuel, lib. l,tit. 33, 15, 16, 20.
k Obedientia duobus modis accipitur ; priori modo large et generaliter pro executione
cujuscunque rei quse potest cadere sub praecepto, quae fit non ratione ipsius praecepti
solum, sed ex quacunque alia intentione Posteriori vero modo accipitur
specialiter pro executione praecepti express! vel taciti, non ex quacunque intentione,
sed ex eo solum quod praecipitur, et ita ejus formale objectum est praeceptum superioris
et illius voluntas. cui formaliter aliquis intendit obedire, et haec est propria et specialis
obedientiae virtus. Barbosa, ubi sup. num. 9, 10.
1 Schmalzgrueber, ubi sup. num. 14, p. 272.
m Zallinger, Inst. Jur. Eccl. lib. 1 ; Decret. tit. 30, 508, 510.
" Bolgeni, L'Episcopato, torn. 2, p. 30.
Schmalzgrueber, ubi sup. num. 14, 2.
CONSIDERED WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW. 131
late that duty, and the place which every one holds. And all the
different lines are bound together by the common obedience of the
persons composing them to the one centre from whence they all
spring; and their conjunction with that centre is strengthened by
the intermediate points at which they are united. p Again, the whole
system is made the better to harmonize, by the principle of superiority
and reverence between superiors and inferiors, even where no obedience
is due, that is to say, between persons co-ordinate, though not equal in
the same line, and unequal persons in different lines. In this place I have
not included the Hierarchy of Order, which is defined to be the power
granted by our Lord to His Apostles and their legitimate successors,
to celebrate and distribute the Divine mysteries of religion in the
Church ; q for order belongs rather to the pastoral care than to the
power and frame of exterior governments/ in which the Hierarchy of
Jurisdiction consists. 8 Zallinger, after drawing the distinction between
the two Hierarchies, thus continues : " The Hierarchy of Order
ascends from the lowest degree (pstiarius or doorkeeper) to the culmi-
nating point of the Priesthood (the Episcopal order) ; while that of
Jurisdiction descends from the Supreme Pontificate to the last degree
of those who have jurisdiction only inforo internet, either by office or
delegation. As in order, a higher decree does not extinguish the lesser,
but elevates it ; so in jurisdiction, whoever is bishop is also eminently
parish priest ; the metropolitan is also bishop in his diocese ; the primate
is both metropolitan and diocesan bishop ; the patriarch is primate,
metropolitan and diocesan ; and the Supreme Pontiff, the Universal
Supreme and Ordinary Pastor, is also Patriarch of the West, Primate
of Italy, Metropolitan of the Roman province, and Diocesan Bishop
of Rome."'
The reader has now before him a general skeleton map of the polity
constituted and regulated by the Ecclesiastical Public Law of the
Roman Catholic Church. And as that Church is not confined within
any state, nation or territory, but universal, for the very reason that it
has no limits," and it is constructed according to an organic law of
unbroken jurisdiction and subordination, the same in every, even the
P See Devoti, Institutionura Juris. Canonici Tabulae Synopticae, tab. 8, et seq.
i Potestas a Christo suis apostolis eorumque successoribus legitimis tributa, ut Di-
vina religionis mysteria in ecclesia celebrent atque distribuant. Concil. Trident, sess. 23,
c. 1, De Ord.
r Zallinger, ubi sup. tit. 33, 533, p. 157.
Potestas a Christo suis apostolis eorumque legitimis successoribus tributa, ut Christi
fideles sibi subditos in rebus ecclesiasticis regant atque gubernent. Decretum Gratiani,
pars 1, dist. 21, c. 2 ; Devoti, Inst. Jur. Canon. Tabulae Synopt. tab. 8.
1 Zallinger, ubi sup. pp. 157, 158.
Devoti, Inst. Jur. Canon, torn. 1, Prolegom. 12.
K2
132 DIVISION OF THE WORLD INTO STATES AND NATIONS
most remote, quarter of the habitable world, yet adapted to the wants
of all mankind ; we must conclude that this Ecclesiastical Public
Law is not municipal, and that it is part of the general Jus Gentium
and of the common scheme or economy by which the human race are
governed under Divine Providence.
We will now proceed to consider the division of the world into
nations and states, with reference to this Ecclesiastical Public Law, a
subject on which depends the solution of divers questions of temporal
Public Law and politics.
The last chapter has shown that this separation of mankind into
sections or provinces is legally a secondary and subordinate institution,
not affecting primary natural law, and arising as a consequence from
the creation of the civil state. And so in the Pandects it is ranked,
in a law of Hermogenianus, with matters of secondary natural law. x
A general analysis of human society in its civil or politic state
resolves it into four different elements or stages of development. Each
of these stages or conditions of man not only does not destroy, but
confirms and strengthens that which precedes it. So we have seen
that civil or politic society is natural society modified by the introduc-
tion of sovereign power. y And one effect of natural society is to pro-
duce a more perfect fulfilment of the primary natural law, (which re-
gards man individually and apart from any institutions, 2 such as that
of property,) than could be obtained in the condition called by some
writers the state of nature, though that condition is in reality a state
contrary to nature.
St. Augustine makes three degrees or stages of human society, that
is to say, the family, the city, and the world ;* and this classification is
valuable, because it includes the chief societies of men as they now
exist. But for our present purpose we must add another element after
the family, which is the first and most simple of all, and arises from the
relations of husband and wife, parent and child, and master and ser-
vant; 6 at least where the latter is not simply matter of contract of hire,
but makes the servant part of the family of the master. The element
to which I refer is sometimes called anarchical society, that of many
families without any common head or government, but having in view
their general security and interests. It arises out of the obligations of
sociability among men without more, for those obligations are matter of
* L. 5, ff. De Just, et Jur.
* Burlamaqui, Principes du Droit des Gens, torn. 4, ch. 1, p. 15.
z Grot. Dr. de la G. liv. 1, ch. 1, 10, numb. 4.
a Div. August. De Civ. Dei, lib. 19, cap. 7.
b Black. Com. vol. 1, ch. 14, p.422,&c.; Zallinger, Inst. Jur. Nat. et Eccles. Publ.
lib. 2, cap. 2, Societ as c onjugalis ; cap. 3, Societas parentalis; cap. 4, Societas herilis.
c Zallinger, ubi sup. p. 401. This society must not be confounded with the false
principle called Socialism. See Mill. Polit. Econ. vol. 1, p. 250.
CONSIDERED WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW. 133
natural law and therefore require no contract or compact to give them
validity.
The next element of human society, as we now see it, is civil or
politic society, created by the establishment of sovereign power, which
terminates the independence of men without destroying natural society . d
Out of this establishment of politic or civil society arises (as we have
seen) the division of mankind into states and nations, an institution
which would be unnecessary for mere natural society, since every man
might perform the obligations of sociability towards his neighbours or
those with whom he had dealings, without any such divisions of men
and territories, though the introduction of property, and the purposes of
agriculture and occupation or habitation, would involve and require
that of boundaries separating the lands belonging to different owners/
Now let us see the bearing of these reflections on Ecclesiastical
Public Law with reference to the subject which we are considering.
The Public Law of the Church does not directly apply to the mere
insulated individual man, because it is a law of social existence, consti-
tuting a society or body politic. But when we go on from the indi-
vidual to natural human society, we find a temporal condition of man-
kind, to which Ecclesiastical Public Law is immediately and naturally
applicable. That law would add a further bond of social union, and a
spiritual though exterior government to a state of simple association
constituted lay the rules of natural law. And nothing more would be
required for the fulfilment of all the laws of man's existence on earth,
if it were not for those circumstances of his nature which render the
power of the civil magistate necessary for the maintenance of the peace
and order of society. Those circumstances we have considered as they
are described by Domat, where he shows the state of society after the
fall, and how God makes it to subsist by the four foundations of the
order of society in its present state, that is to say, the natural knowledge
of justice, the government of God over society, the authority which God
gives to supreme powers, and the power of Religion/ And to these
circumstances St. Augustine refers when he shows that the celestial
city, so far as it exists on earth, requires that peace which belongs to
the terrestrial city, civitas terrena, depending on temporal law and
power. 8 We may conclude that the state of nature, which consists of
society without any other government than that of families, and is next
in order of development to politic or civil society, 11 admits the applica-
d Burlamaqui, ubi sup. p. 14.
e Ex hoc jure gentium introducta bella : discrete gentes ; regna condita ; dominia
distincta ; agris termini positi. Hermogenianus, 1. 5, ff. De Just, et Jur.
f Domat, Loix Civiles, Traite des Loix, ch. 9.
e Div. August De Civ. Dei, lib. 19, cap. 17.
h Pufend. Droit de la Nat. et des Gens, 1. 2, ch. 2, 4.
134 DIVISION OF THE WORLD INTO STATES AND NATIONS
tion of Ecclesiastical Public Law. In other words, the institution of
civil or politic society is not a necessary constituent element of the con-
stitution of the Universal Church. No analysis of that constitution
would produce civil society, that is to say, civitas, or human society
under temporal sovereignty. This shows why temporal sovereignty is
collateral to the Catholic Church, and explains the declaration of our
Lord, that His kingdom is not of this world, meaning that it is of a
different origin, nature and order, in the economy of the world, from
temporal kingdoms. And so St. Augustine observes that it is declared
not that that kingdom is not in this world, but that it is not of this
world. 1
The result to be deduced from these principles is, that as the divi-
sion of the world into states and territories is a consequence of the
institution of civil societies, which form the ultimate step of develop-
ment of the social state ; therefore Ecclesiastical Public Law is legally
prior to that division of the earth. Therefore, Savigny speaks of
Ecclesiastical Law as in contact with temporal Public Law, and not
part of it, but a special independent law. k These views explained
above are confirmed by the fact that all existing temporal sovereign-
ties or states are more modern than that universal community, the
Catholic Church.
It is immaterial to enter into the discussion whether this state of
natural society, intermediate between the fictitious state of pure nature
(which is contrary to nature) and civil society, existed by itself in
point of fact. For it is comprised in civil society, and forms the
second element, or stage of development, the family being the first, of
that society. Thus we have seen in Burlamaqui that civil society
does not destroy natural society. 1 The meaning is, that the former
leaves subsisting all the obligations and laws of the latter, and, indeed,
gives them greater force and effect. We may therefore correctly look
on natural society as a constituent element of the civil state or politic
society, which was not created by any contract or act of individual
will, but by a natural law of spontaneous development. 111 And we
find the state of natural society actually existing among independent
nations in their relations with each other. It is indeed the basis of
international law. n
1 Devoti, Inst. Jur. Canon, lib. 3, 9 ; Sctus. Johannes, xviii. v. 36 ; Div. August,
tr. 115, in Johan. num. 2, Op. torn. 3, col. 792, edit. Ven 1720.
k Savigny, Traitddu Droit Rom. torn. 1, pp. 26, 27, edit. Paris, 1840.
1 Burlam. Principes du Droit de la Nat et des Gens, torn. 4, pp. 14, 15, ed. Dupin.
m Savigny, ubi sup. pp. 28 30.
Mbi, p. 31, 11.
CONSIDERED WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW. 135
We must conclude that Ecclesiastical Public Law, primarily, regards
mankind apart from their political distribution into states and nations
governed by temporal sovereignty. If it were not so the Catholic
Church would be an aggregate of civil states. And those politic com-
munities are changed and dismembered, and their boundaries moved
by conquest, and the variety of other causes of which we read in
history. Their principles are corporate individuality, independence,
and extensive sovereignty within the respective territories of each.
But the principle of the Church is unity combined with universality.
The division of states and territories is, however, by no means
neglected by Ecclesiastical Public Law. Administrative and jurisdic-
tional necessity, analogous to the cause which produced the civil
divisions of the earth, gave rise to the ecclesiastical boundaries of
patriarchates, provinces, dioceses, and, lastly, parishes ; and the
demarcation of these districts was determined in a great degree by
physical, temporal, and political circumstances. And the very insti-
tution of a national synod shows that the Church has regard to the
principle called nationality. 1 * Unity is, however, maintained by the
fundamental rule of Ecclesiastical Public Law, that those to whom
the cure of souls is assigned within those divisions, are admitted, not
to the plenitude of jurisdiction, but only to a participation of solicitude
and care with the Supreme Pontiff. q Thus, though in a certain sense
the episcopate is one, as St. Cyprian says, through the see of Peter/
yet each bishop has a local compass of his authority, called a diocese, 1
which is marked out, not to define a territory for purposes of domi-
nion, as is the case with temporal states and territories, but simply
that the pastoral care of one bishop may be distinguished, for practical
purposes, from that of another. So a bishop's see is the Church where
he is set; 1 and from that Church he takes his name as bishop. So
St. James was Bishop of Jerusalem, and Evodius, Bishop of Antioch,"
though they had no temporal or territorial right or title in those places.
And the fact that ecclesiastical boundaries frequently coincide with
Savigny, ubi sup. p. 30.
P Devoti, Inst. Jur. Canon, torn. l^Prolegom. cap. 3, 41.
1 Gregory IV. speaking of the Roman Church, says, " Quae sic vices suas aliis ira-
pertivit ecclesiis, ut in partem sint vocata sollicitudinis, non in plenitudinem potestatis."
Bolgeni, VEpiscopato, ton). 2, pp. 41,42. And St. Bernard, addressing Pope Eugenius,
says, " Alii in partem sollicitudinis, tu in plenitudinem potestatis vocatus es." De Con-
sid. lib. 2, cap. 8.
T Bolgeni, 1'Episcopato, torn. 2, cap. 10, art 3.
Hooker, Eccles. Polit. b. 7, 8.
* Ibi.
Ibi, 5.
136 DIVISION OF THE WORLD INTO STATES AND NATIONS
temporal territories, alters not the nature of the former, but is easily
accounted for on historical and geographical reasons.
Ecclesiastical Public Law is brought into contact with the political
divisions of the earth into nations and states, by the relations which
must exist between the spiritual and temporal powers. Those rela-
tions arise from several causes. Ecclesiastical law has for its object
the external acts of men ; * and it is a rule of civil conduct, directing
the actions of the citizens of the commonwealth whereof it is the law,
that is to say, the Catholic Church. y And the Church is a society
distinct from the State, having its own magistrates, with exterior as
well as interior jurisdiction and authority. 2 Though the direct or
immediate object of the temporal and that of the spiritual law are
different, yet, as both relate to external things, they sometimes regu-
late the same things. And the temporal power in many instances
supports and enforces the rules laid down by the Church. Hence
arise those mixed matters, of which I have given a sketch in a former
chapter, and which are subject to both laws. In some cases, indeed,
there is a real conflict between the two laws where the law of the
State so contradicts the spiritual law as to make it impossible to obey
both. Such was the law of Nebuchadnezzar commanding an idola-
trous act. Such were the laws of some of the Roman Emperors who
persecuted Christianity. And in other cases the conflict is only appa-
rent, because it arises from the circumstance that the spiritual law
commands in order to an ulterior object, while the temporal law
regards a temporal purpose, and does not forbid what the former
prescribes. And so the canons require many things beyond what the
temporal powers deem sufficient for the outward order and secular
welfare of society, because the direct object of the canons is beyond
the present life."
The relations of the Church with temporal laws, arising from these
causes, introduce what may be called the municipal element into
ecclesiastical jurisprudence, consisting in modifications of the mutable
part of that system, calculated to suit the laws and customs of parti-
cular countries. Thus, in some countries, the civil power, by conces-
sion of the Holy See, participates in Ihe election of persons to fill
bishoprics. And ecclesiastical property is more or less affected by the
temporal laws which thus modify the law of the Church. In Protes-
* Suarez, De Leg. lib. 4, cap. 12, 13 ; Decret. Gratiari. Tract, de Pcenit. c. 14, 31 ;
Can. Concil. Trident, sess. 24, De Reform. Matrim. c. 1.
y Lancelot, Inst. Jur. Canon, lib. 1, tit. 1, 1 ; Reiffenstuel, Jus Canon. Prrem. 3.
1 Devoti, Inst. Jur. Canon, lib. 3, tit. 1, 2.
8 Lancelot. Inst. Jur. Canon, lib. 1, 1.
CONSIDERED WITH REFERENCE TO ECCLESIASTICAL PUBLIC LAW. 137
tant countries, where the Catholic Ecclesiastical Law is only tolerated
by the secular power, and looked upon simply as the usages of a
particular body, and consequently the Catholic Church is primarily
subjected to the ordinary secular law of the land, many parts of the
canon law are not in force, because they are not applicable to that
state of things, and because the Courts of Law will allow the laws of
the Church only that effect, as such, which they concede to the rules
of an unincorporated society, which are not contrary to the temporal
law. There are, moreover, concordats or agreements between the
Holy See and divers governments, regulating the relations between
the Church and the State, and granting certain privileges to the latter;
and likewise privileges, not affecting doctrine, have been given to
Churches of particular states or provinces in derogation to the ordi-
nary rules of the Church.
All these things bring Ecclesiastical Public Law into contact with
the political divisions of the earth. It remains to be seen by what
legal constitutional principles those divisions and the laws and insti-
tutions of different states are prevented, on the one hand, from intro-
ducing an element of discord into the Church, and, on the other hand,
how Ecclesiastical Public Law is sufficiently elastic to adapt itself to
the exigencies of every place, and harmonize with every form of tem-
poral polity.
The first of those principles is that which makes the Public Law
of the Catholic Church not municipal but universal, as I have
shown ; and the second is, that, as we have seen, Ecclesiastical Public
Law is legally anterior to the division of the world into nations and
states, because it belongs to an element in the development of society,
anterior to civil or politic society, that is to say, to natural society. The
consequence is, that the Public Law of the Church is collateral to that
of civil communities or states, and the one does not arise out of nor
depend on the other, but each has its separate existence and province.
So Ecclesiastical Public Law is independent of the municipal part or
last step of the development of human society ; and it appertains to
the second, namely, natural society. Now natural society (which was
not destroyed by politic or civil society) is universal and not municipal
or belonging to different communities considered as such, but em-
braces all mankind ; and this universality is one of the essential cha-
racteristics and fundamental principles of the constitution of the
Church, or, in other words, of Ecclesiastical Public Law. These
reflections show how it is that Ecclesiastical Public Law harmonizes
not only with the primary natural law (which regards mankind as one
undivided society), but with the division of the world into nations and
138 DIVISION OF THE WORLD INTO STATES AND NATIONS.
states, and their municipal institutions. b The former is included in
the constitutional law of both the Church and civil politic societies,
while the latter spring out of civil society by development, and are
therefore in unison with though only collateral to the organic system
and laws of the Church. And Ecclesiastical Public Law preserves the
principle of the unity of the human race in the economy of the world,
for the very reason (among others) that it stands upon natural society,
which embraces the whole world, whatever may be the municipal polity
of distinct communities, such as kingdoms or republics. All those
communities in the civilized world are affected by that law in a greater
or less degree, both internally and externally, even when they decline
to clothe it with the sanction of the civil power, because it is an
essential component part of the frame and economy of European
society ; and, if looked upon in this lighl, it is part of the general law
of nations. Thus no one can read the history of European politics
and diplomatic business without seeing the important place occupied
by the affairs of the Church, and its relations both with society in
general and with particular states, which relations are regulated by
Ecclesiastical Public Law.
CHAPTER XV.
OF THE DIVERSITY OF LAWS AND POLITICAL INSTITUTIONS IN
DIFFERENT COUNTRIES, AND OF THE CONFLICT OF LAWS.
Examination of the Diversity of Municipal Laws Diversity of Forms of Govern-
ment Dispute as to the best Form of Government Difference of Opinions Abso-
lute Monarchy Opinion of Mariana and St. Thomas Aquinas Doctrine of the
Deposition of Tyrants Divine Right of Kings Indivisibility of the Jus Majestatis
Other Classes of arbitrary Matters Analogies between Roman and Eastern Laws
The Conflict of Laws First Principles The Comity of Nations, and the Spirit
of the Conflict of Laws.
THE two last chapters naturally lead us to a subject arising out of the
political divisions of the world, namely, the Conflict of Laws. That
important branch of jurisprudence contains many rules and decisions
b Hsec ergo civitas caelestis dum peregrinatur in terra, ex omnibus gentibus cives
evocat, atque in omnibus linguis peregrinam colligit societatem ; non curans quidquid
in moribus, legibus, institutisque diversum est, quibus pax terrena vel conquiritur vel
tenetur ; nihil eorum rescindens, nee destruens, imo etiam servans ac sequens : quod
licet diversum sit in diversis nationibus, ad unum tamen eundemque finem terrenae pacis
intenditur; si religionem quaunus summus et verus Deus colendus docetur, non impedit.
Utitur ergo etiam caelestis civitas in hac sua peregrinatione pace terrena . . . Div.
August. De Civ. Dei, lib. 19, cap. 17.
DIVERSITY OF LAWS IN DIFFERENT COUNTRIES. 139
belonging exclusively to private law, because they relate to the rights
of individuals considered in their private capacity. We will, there-
fore, examine its fundamental principles only under one aspect, in
accordance with the plan and object of these Commentaries. We will
explain how the conflict of laws arises, and show the origin and nature
of the rules whereby cases of that kind are decided, viewing the sub-
ject as a consequence of the division of mankind into nations, and a
necessary part of the universal jurisprudence which governs society.
For it is impossible to confine the effects of municipal laws absolutely
within the territories of each state ; and, therefore, the laws of dif-
ferent countries have points of contact which arise from the general
intercourse of mankind, and may be looked upon as a necessary part
of the scheme of laws which regulate the world, divided as it is into
independent nations and sovereignties.
A celebrated text of Gajus says, that all nations are governed partly
by their own proper laws, and partly by laws common to all mankind.
He then refers to the distinction which we have elaborately examined,
between arbitrary or positive, and immutable on natural laws. That
distinction is the principal cause of the diversity which exists between
the laws of different countries. But the subject requires closer exa-
mination.
We have seen, that if the rules of natural law be considered, with
reference to the way in which they present themselves to the under-
standing, they are of two sorts. Some are so evident, that their truth
is clear to every reasonable mind, while others are not self-evident, but
require to be demonstrated by showing their connection with the prin-
ciples on which they depend.* 1 But even those of the former sort are
not fully recognized, or have not the same extent or use in every muni-
cipal system of jurisprudence. 6 Thus the law of inheritance comprises
certain principles which cannot reasonably be denied or doubted,
though, according to Grotius and Barbeyrac, even the succession of
children to their parents' property is not matter of absolute and rigor-
ous right, except so far as is necessary for their subsistence/ So it is
obvious, that the children of the deceased intestate are to be preferred
to collaterals, and that his brothers and sisters should succeed before
his cousins. Yet the law of inheritance varies greatly in different coun-
tries, and even in the same country with regard to different kinds of
property. And though the succession of children is everywhere recog-
c L. 9, ff. De Just, et Jur. And see Paulus, ibi, 1. 11 ; Cujac. Oper. torn. 7, fol. 9,
edit. Venet. Mutin.
d Domat, Loix Civiles, Traite des Loix, ch. 11, 29.
e Ibi, 31.
f Grot. Droit de la G. et de la P. 1. 2, ch. 7, 4, not. ; Decretal, lib. 4, tit. 7, cap. 5 ;
1. 1, 3, ff. De Just, et Jur. (Ulpian.)
140 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
nized, in some the eldest exclude the others, while the custom of
borough English gives the preference to the youngest. Again, the
authority of the husband, as head of the family, in preference to
his wife, is of natural and Divine law. But this principle has been
more or less admitted and extended, and has produced a multitude of
various municipal laws in different countries, according to their opi-
nions, customs, and religious systems. It would be easy to multiply
instances of variations in the way in which natural laws are carried
into effect by municipal laws in different countries. And many exam-
ples can also be given of absurd and unjust laws used and approved
even in highly civilized communities. Hence has arisen the opinion
entertained by many, that there is no certainty in the principles of
natural law. Thus the philosopher Carneades says, as Lactantius in-
forms us, " Men have made laws for themselves as their particular
interests required, and therefore laws are different, not only according to
the diversity of manners, which vary in each nation, but even at differ-
ent times in the same country. As for what is called natural law, it is
a mere chimera." g And Grotius maintains that natural law is a science
capable of certainty, but, at the same time, he shows how differently
it is understood among mankind.
If we pass from immutable or natural to arbitrary law, we shall find
a still greater disagreement of legislators. We have seen that these
arbitrary laws are of two sorts, one determining certain things in im-
mutable law, which that law leaves uncertain, and the other regulatino-
7 7 O O
those which Domat calls arbitrary matters, consisting in artificial in-
stitutions and establishments intended for various purposes in civil
society, which however are partly regulated by immutable laws.
The former sort of mutable or arbitrary laws necessarily differ accord-
ing to opinions and circumstances, at different times and places, because
their justice depends upon a principle of fitness which does not indicate
any invariable point on which all mankind must agree, but leaves a cer-
tain margin within which the legislator may, without subverting any rule
of equity, exercise his discretion. And this is so, though, as we have
seen, these arbitrary laws are an essential part of jurisprudence, and
frequently necessary to prevent an apparent clashing of two immutable
laws, by determining the limits within which each should operate. And
as in some countries certain parts of the law of nature are not recog-
nised by the municipal law, so divers portions of this branch of arbi-
trary law are likewise omitted altogether. Thus, for instance, the civil
law and the French code recognise the principle of natural law, that
no man ought to injure another by buying anything of him at an
absolutely inadequate price. Therefore an arbitrary law became ne-
f Lactant. Instit. Divin. lib. 5, cap. 16, num. 3.
THE CONFLICT OF LAWS. 141
cessary in those two systems, which determined that a sale shall be
voidable if the price given be below half the value of the property,
and so reconciled that principle of immutable law with the freedom
of commerce among men. h But the law of England will not, in ge-
neral, set aside a sale for mere inadequacy of price, and therefore no
such arbitrary law is requisite therein.
The latter sort of arbitrary laws present a still greater variety of
inconsistent enactments or customs in different countries. They have
for their object to fulfil various uses for the benefit of the community,
and are founded on reasons of utility or policy. We have seen that
even these laws have a connexion with the two primary laws, because
they have their foundation in some principle of the order of society,
and ought to be framed for the welfare of man, which can only be
attained by those two laws and their consequences. But the reasons
of these arbitrary laws belong to the science of politics and economy
rather than to jurisprudence, for the arbitrary matters of which Domat
speaks are artificial and not natural, and must be very different in one
country from what they are in another, because the position, the cir-
cumstances, the history, the opinions, and the characters, dispositions
and wants of the people are different. Thus Montesquieu has shown
how the spirit of arbitrary laws and institutions varies according to the
form of the government. For instance, the law of inheritance, wills
and settlements, should be favourable to the accumulation of property
and the perpetuation of families in a country under an aristocracy or a
government of which aristocracy is an element. But those institutions
would be inconsistent with a democracy.
The very diversity of forms of government which we see all over the
world affords another instance of these arbitrary matters and their
varieties. The question what is the best form of civil government has
often been investigated, but with no satisfactory result. It depends on
varying principles, which (in the words of Hooker) reason but pro-
bably teaches, to be fit and convenient; 1 and on that probability the
opinions of the wisest men must differ. Burlamaqui declares, indeed,
that this question is one of the most important and beautiful in poli-
tical science. But Dupin says, that, on the contrary, it is one of the
most useless, because its solution is impossible. Each form of govern-
ment, he continues, whether simple or compound, may be the best in
certain cases and countries, and the worst in others. k Tacitus and
h Domat, Loix Civiles, Traite des Loix, ch. 11, 8; Cod. Civ. 1674. According
to the common maxim Hoc natura sequum est neminem cum alterius detrimento
fieri locupletiorem.
' Hooker, Eccles. Polit. b. 1, ^10.
k Burlamaqui, Principes du Droit de la Nat. et des G. edit. Dupin, torn. 4, p. 163.
142 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
Cicero hold the best government to be that which combines monarchy,
aristocracy and democracy (though the former fears that it would be
of brief duration); and this opinion 1 has in its favour many strong
reasons, with the experience of our own country in later times, since
the development of the democratic part of the British constitution.
But the advocates of this compound form of polity have been unable
to determine the relative power which its three elements should have,
and the best mode of combining them. We find some statesmen
arguing, with many reasons, that the preservation of the State requires
resistance against the encroachments of democracy, while others rely
for the welfare of this nation on the progress of democratic principles,
which would overwhelm one of the three component parts of the con-
stitution, and so render it in reality a democratic monarchy, thereby
verifying the prediction of Tacitus, that the combination of monarchy,
aristocracy and democracy could not be lasting. And this celebrated
doctrine of mixed governments is so vague, that Cardinal Contarini
defines the nature of the Venetian Republic in the terms in which Black-
stone describes the English constitution, as fulfilling the conditions de-
sired by Tacitus ; m and though this opinion of the learned Venetian is
combated by Bodinus, its accuracy in a certain sense is established by
the judicious annotator Crasso. n It is difficult to read the Federalist
without being strongly impressed with the merits of a purely demo-
cratic republic, and also seeing the impossibility of such a government
in every part of Europe : and though the American constitution has
avoided the great defect of other federations, ancient and modern,
which were sovereignties over sovereigns, and legislations, not for
private individuals, but for communities in their political capacity, its
federal is probably the most vulnerable part, from which dissolution is
chiefly to be apprehended. Yet, having regard to the history and cir-
cumstances of the United States, no other than a federal constitution
is possible there.
St. Thomas Aquinas, Mariana and many other great authorities,
have argued with abundant ingenuity that the government of one
man is the most excellent f but they both point out the dangers of
1 Cicero, De Repub. lib. 1, ch. 29, 35, 45; Tacit. Ann. 1.4, c. 33. Cunctas na-
tiones et urbes, populus out primoref, aut singuli regunt : delecta ex his et consociata
reipublica forma laudari facilius quam eoenire, vel si evenit, huud diuturna esse potest.
m Contarini, Delia Repub. e Magistrati di Venetia, lib. 2, p. 52, &c. ; Bla. Com. b. 1,
Introd. 2.
" Nicolo Crasso, Annotazioni, annot. 38.
Kent, Comment vol. 1, p. 217, part 2, 10.
P Div. Thorn. Aquin. Opusc. De Regim. Princip. lib. 1, cap. 2, 5, 6; Mariana, De
Rege, lib. 1, cap. 2.
THE CONFLICT OF LAWS. 143
absolute monarchy. St. Thomas holds that as the just government
of one man is the best ; so, if unjust, it is the worst sort of polity. q
He lays it down that the power of a king should be so modified by
the system of government of the kingdom as to prevent its de-
generating into tyranny. And he gives countenance to the doctrine
of Blackstone, that there are extreme cases in which a tyrant may
lawfully be deposed/ His whole theory of government is favourable
to the limitation of the regal authority by fundamental laws, and
by principles prescribing its real objects, and the duties of the sove-
reign towards his people. And so St. Augustine, in a celebrated
passage cited by Lord Chancellor Fortescue, defines a people to be
a body of men joined together in society by consent of right, by an
union of interests, and for promoting the common good j s from
whence the chancellor deduces the constitutional principles of the
English monarchy. Mariana still more strongly opposes the simple
form of absolute monarchy, 1 which he describes as nearly verging
upon tyranny." And he holds that taxes should be imposed with
the consent of the people.* He indeed pushes the opinion of St.
Thomas with regard to the deposing of tyrants beyond the bounds of
moral right/ Again, we find Suarez distinctly laying it down that
the regal authority is not, though the civil power of government in
the abstract is, of Divine right, and arguing from thence that it may
be subject to modifications and limitations arising from the will of
the people. 2 And he says, that, though monarchical government be
the best, yet there is no principle of natural law requiring men to
adopt it, and therefore the form of governments is a matter entirely
arbitrary.*
If the doctrine of a simple monarchical power, absolute and indi-
visible, and prescribed by Divine right, had generally prevailed among
Div. Thorn. Aquin. Opusc. De Regim. Princip. lib. 1, cap. 3.
T Ibi, cap. 6. Videtur autem magis contra tyrannorum s<evitiam non privata pra-
sumptione aliquorum, sed auctoritate publica procedendum. And see Fortescue, De Lau-
dibus Legum Angliae, cap. 9; Bla. Com. vol. 1, ch. 7, pp. 214, 245.
8 Div. Aug. De Civ. Dei, lib. 19, cap. 21 ; Fortesc. de Laud. cap. 8.
1 Ad hac constricto legibus principatu nihil est melius, soluto nulla peslis gravior, et
est argumentum oppress^ per tyrannidem reipublicte cum contemptis legibus ad rectorts
nutum vertitur. Mariana, De Rege, lib. 1, cap. 2.
Ibi, p. 72 ; lib. 1, cap. 9.
1 Ibi, p. 70.
y Ibi, cap. 6, 7.
Suarez, De Legib. lib. 3, cap. 4. And see Pufend. De Officio Hominis et Civis,
lib. 2, cap. 6, 14; Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1, lib. 3, cap. 2,
204 ; Covarruvias, Op. torn. 1, p. 199.
Suarez, lib. 3, cap. 4, p. 206 pendet ergo tota htec res ex humano
consilio et ariitrio.
144 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
Christian people, the result would have been some uniformity of poli-
tical institutions. That theory was ancient in England, 5 though not
fully developed till the age of the Tudors and Stuarts. There is no
trace of it in the Gloss on the celebrated text in the Pandects, quod
Principi placuit Legis hdbet vigorem ; c and it belongs neither to the
civil nor to the canon law. The doctrine of the indivisibility of the
jus Majestatis, taught by many of the civilians, d was the foundation
of that of Sir George Mackenzie, who maintained that monarchy is, in
its nature, absolute, and therefore incapable of limitations, all of which
are inconsistent with that nature. 6 But that doctrine of indivisibility
leads to no such conclusion, for, as Nicolo Crasso explains, the mean-
ing of the civilians is that Majestas, or the sovereign power, is indi-
visible in regard to its intrinsic quality of supremacy and considered
as a whole, so that there cannot be two entire sovereign powers in
one civil constitution. But it consists of divers distinct functions
such as those of making laws, of creating magistrates, and of peace
and war/ And so Grotius shows how its parts may be separated,
according to the nature of their functions in the State. 8 And the
various distribution or combination of those functions or powers has
produced a great number of different systems, theories, and schemes of
government in the world.
All these authorities suffice to show that no definite theory, as to
the form of monarchical government, has been generally taught or
received among theologians or jurists, though monarchy is by its
nature more susceptible of being reduced to simple general principles
than any other sort of civil polity. And having regard to the variety
of causes under which political institutions are formed, we may be
surprised that there is not a greater diversity of governments in the
world. Perhaps this may arise from the ease with which countries
fall into the simple way of absolute monarchy, especially when poli-
tical convulsions have produced a desire for the protection of a strong
civil power, and a disgust for frequent changes, accompanied by in-
security of life, property and industry. This introduction of the
regimen of simple monarchy is an instance of that which Modestinus
b Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England,
pp. 23, 24.
c L. 1. ff. De Constit. Princip.
d Crasso, Annot. sopra Donato Giannotti e Gasparo Contarini, annot. 38, p. 484.
e Mackenzie, Jus Regium, p. 39.
f Crasso, ubi sup. pp. 485, 486 ; Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1,
lib. 3, cap. 2, 205, p. 427.
f Grot. Droit de la G. et de la P. (edit. Barbeyrac,) 1. 1, ch. 3, 17 ; Pufend. Uroit
des Gens, 1. 7, ch. 4, 1.
THE CONFLICT OF LAWS. 145
calls jvs quod necessitas constituit, b for it is an organic law, engendered
by the operation of the necessity of human society, which cannot be
maintained without some sufficient government, and therefore falls
back on the authority of one supreme governor, when more complex
systems of civil polity have proved unsuccessful. These reflections
show how it is that republics and political constitutions analogous to
them, easily terminate in despotic governments, either by the elevation
of some successful chief or statesman to supreme power, or by the
restoration of a monarchical regimen previously existing. For men
naturally submit themselves to power in its simplest shape, either from
hope or fear, and the authority of one is readily accepted, when that
of many has been found uncertain, ineffectual, or vexatious. Thus
history shows that anarchy is either prevented or rendered of short
duration by that necessity referred to by Modestinus and Pomponius,
which creates a remedy and so preserves human society, even where
it seems on the point of succumbing to subversive forces and convul-
sions. And so circumstances and the wants of mankind produce
various institutions and forms of Public Law, more or less adapted to
particular times and places.
We come now to other classes of arbitrary matters. They are for
the most part dictated or influenced by the spirit of the laws called
fundamental or organic, which constitute the government of the com-
munity. They belong either to private or to Public Law. Of the
former sort are various purely artificial modifications of private rights,
chiefly regarding property, and institutions invented for private in-
terests and purposes, or not directly nor principally intended for or
relating to the public welfare. Of the latter there are two general
kinds, which must be distinguished one from the other. The first
comprehends the subordinate institutions, by means of which the peace
of society is secured and the laws enforced. We call them subordi-
nate to distinguish them from the form of the government or con-
stitution of the state in its sovereign power. They comprise the
appointment of punishments for offences, and all that the jurists in-
clude within the word police, that is to say, the actual enforcement
of municipal laws and regulations. These matters are arbitrary, for
though the moral guilt of an offence must not be neglected in deter-
mining the degree of severity with which it may be punished,' yet the
means of preventing the commission of crimes, and of carrying laws
into effect, must vary according to principles of policy and convenience,
h L. 40, ff. De Legib. ; 1. 2, $ 9, ff. De Orig. Jur. ; Cujac. Oper. torn. 3, col. 373.
Evenit ut necesse esset reipublica per unum consult, L. 2, 11, ff. De Orig. Jur.
1 Grotius, Droit de la G. et de la P. liv. 2, c. 20, $ 28.
L
146 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
having regard to the circumstances of the country, and the disposition
and manners and condition of the people. And thus an act penal in
one country, may be justly held innocent by the laws of another,
where the particular law guarded by the penalty does not exist. The
second kind of these arbitrary matters may be comprehended under
the term of public economy. They regard the public revenue or
general resources of the country, whether national or local, the public
health, public education, public amusements, commerce, manufactures
and trade, and the use of things, especially immovables, for a multitude
of purposes involving or affecting the convenience and the interests of
society. I do not include under either of these two general heads
of arbitrary matters (police aud public economy) any distinct mention
of things regarding- the public exercise of religion or religious worship,
because their own distinctive character makes them belong to the
Church, and not to the State, or, in other cases, places them within
the province of belief, opinion and conscience. When they come in
contact with temporal legislation, it is by reason of some temporal
exterior incident or circumstance which brings the particular matter
under one of the heads of temporal law above enumerated. With
regard to the Catholic Church, this subject has been considered, when
we examined mixed laws, partly temporal and partly ecclesiastical.
And with respect to other religious systems, it does not require to be
separately treated, because it is not distinguishable in principle from
other matters of police and public economy.
This general view of arbitrary matters suffices to show the reasons of
the diversity and variation of the laws whereby they are regulated. All
arbitrary laws have some reason connected with the order of that society
to which they belong. They are founded on a principle of utility, fit-
ness, or convenience, or even necessity, which constitutes their justice,
and is their spirit. And the arbitrary matters chiefly regulated by them
are in like manner governed by the same principle and spirit. A simi-
larity or resemblance between arbitrary laws of different countries is fre-
quently observed, and has given rise to many, often unsound, theories
and hypotheses. In some cases this is to be accounted for by historical
reasons ; but in others the resemblance arises from a uniformity in the
construction and operations of the human mind, which makes the
reason of different men come to the same conclusions. Thus there are
resemblances between decisions of the Hindu Law and texts and prin-
ciples of Justinian's Pandects. For by the Hindu Law, the attempt to
alienate a man's whole estate, to the prejudice of his family, is treated
as a symptom of insanity, and void on that ground, which was pre-
cisely the implication of the Roman Law in the case of an inofficious
THE CONFLICT OF LAWS. 147
testament. 1 Katyayana lays down the principle of the Civil Law as
to priority of hypothecs qui prior est tempore potior est jure and
one of the heads of the Law of Stellionate. 1 Vrihaspati decides a case
between two mortgagees of the same field, on the principle of uti
possidetis, possessor potior est. m Manu declares all acts void which
are done by force, according to the doctrine of Javolenus in the Pan-
dects. And the Hindu Commentators support the validity of a legal
forced sale made by authority of the king, by resorting to a fiction of
consent, analogous to Trebonian's error concerning obligations quasi ex
contractu. a And Kulluka Bhatta shows the correct reason of the deci-
sion, in accordance with the doctrine of the Civil Law, that lawful force
does not render an act void in law. By the Hindu Law, rights of pro-
perty cannot be destroyed without the assent of the owner. And so
Pomponius says quod nostrum est sine nostro facto adalium transferri
non potest. Several of these decisions are part of a curious disqui-
sition on property in land, which distinguishes the usufructury right
from the direct right of the king in regard to revenue ; and the im-
portant principle of the Civil Law is there laid down, that a full right
of property prevents a concurrent property in the same thing, so that
two persons cannot possess the whole of the same thing; from whence
comes the rule meum amplius meum fieri nequitf Examples of the
same kind may be found in the Mahometan Law. Thus the doctors
of all the Mahometan sects agree with the Roman Law as to the
shortest period of gestation.* 1 The Mahometan Law holds that do-
minion on property is transferred, not by contract, but by delivery/
The institution of monarchy affords an instance of resemblance be-
tween the positive laws of countries who have not derived it one from
the other. The new system introduced by statute 15 & 16 Viet. c. 76,
which abolishes forms of action, resembles the change in the Roman
Law by the Emperors Constantine, and Theodosius and Valentinian."
And the more simple modes of procedyije which the legislature of
this country has introduced are analogous to the Canon Law. So
the amalgamation of Common Law and Equity together can only be
carried into effect by the same sort of means by which the Civil and
k Strange, Elem. of Hindu Law, vol. 1, p. 18; Colebrooke, Dig. vol. 2, p. 118.
1 Colebrooke, Dig. of Hindu Law, vol. 1, pp. 209, 211, 212.
L. 15, Cod. De rei vindic. ; 1. 72, ff. De rei viudic. ; 1. 9, 4, ff. De Publiciana
Act. ; 1. 14, ff. Qui potiores in pignor.
n Colebrooke, ibi, pp. 458, 477; L. 116, ff. De Reg. Jur.
Colebrooke, ibi, pp. 462, 475; L. 11, ff. De Reg. Jur.
P Colebr. ibi, p. 463 ; L. 5, 15, ff. De Pignerat. Act. ; 1. 45, ff. De Reg. Jur.
i Baillie, Moohummudan Law of Inheritance, p. 156. Six months.
T Hamilton, Hedaya, vol. 2, p. 454.
L. 1, 2, Cod. De Formul. et Impetrat.
L2
148 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
Praetorian Laws were made into one system. Lord Mansfield, who
first conceived this plan (and, like other men whose genius is in ad-
vance of their times, was violently assailed), no doubt saw that the
English Law must follow the same course of improvement as the
Roman Law. But the movement among the learned in favour of con-
solidating the two systems affords an instance of the analogy of the
history of jurisprudence in different countries, if it be compared with
the relation between the Praetorian and Civil Law in the reign of the
Emperor Hadrian, when Salvius Julianus compiled the Perpetual
Edict, the model of the Pandects. This historical comparison seems
to suggest the compilation of a code containing the whole equitable
jurisprudence of the country, which, at a more advanced stage of the
progress of the English Law, would become the basis of a general
digest. Thus the evil which, as Savigny remarks, is incident to codes,
would be avoided, namely, their fixing the jurisprudence of a country
so as to prevent its progressive development. 1 And this observation
points out a question which the advocates of codification have not yet
maturely considered, that is to say, whether the Law of England has
reached such a degree of maturity as to be ready for conversion into a
code including its whole system. To codify the law while in a state
of transition and formation would be a most serious error. The
scientific elements of the law would be blighted, its faults perpetuated,
and its progress towards perfection stopped. But this objection does
not apply to the wise measure of compiling the statute law into a
separate code, which seems to have been adopted on the example of
Justinian, nor to that of digesting the Criminal Law into one statute.
Those works, when completed, will probably become the text of Com-
mentaries, bringing historical learning and scientific principles to bear
on the whole body of statute law, which has hitherto been very much
neglected, partly on account of its enormous bulk and confusion, which
seemed to defy all systematjg investigation and exposition." The culti-
vation of this branch of legal science cannot fail to exercise a most
beneficial influence on the progress of the Common Law, and thereby
prepare the way to the formation of a general Corpus Juris. And the
attention of Government and Parliament will at the same time be called
by the labours of the Commissioners to the defective state of the
machinery and form of legislation in this country. It will become
more and more evident that two numerous and independent assemblies
1 Savigny, Traite" du Droit Rom. torn. 1, p. 45.
The system of codification pursued by the canonists well deserves attention. All
the compilations subsequent to the Decretals are arranged according to the classifica-
tion in that Code. This method facilitates the reference of the more recent to the
older law, and preserves the history of its changes.
THE CONFLICT OF LAWS. 149
of legislators require the aid of some permanent board or council to
carry their intentions into effect, by preparing or revising bills; report-
ing as to the way in which particular clauses would operate, having
regard to former statutes and the decisions of the courts ; and showino-
by what language the object for which the bill is intended can best be
attained. And it seems difficult to conceive that the process of digest-
ing the statutes can fail to show the absurdity of recording a statute on
the Rolls of Parliament in one continuous sentence, without break or
stops; and the advantage of dividing the long and involved clauses of
Acts of Parliament into short and clear articles. But we must return
from this digression.
The necessary limits of these Commentaries prevent our entering
into a full inquiry concerning the causes of the diversity of laws in
various countries (a subject capable of being classified and reduced to
scientific principles, and pregnant with important results for politics
and legislation), but we have shown the chief features of that interesting
problem, never thoroughly investigated as it deserves, and more agree-
ably than profoundly treated by Montesquieu in his Spirit of Laws.
That distinguished jurist thus sketches the matter of which we have
taken a general view: " Generally speaking, the law is human reason
governing the nations of the earth ; and the political and civil laws of
each nation are the particular cases to which that reason applies." He
here looks on law in the same light as we have seen that Cardinal
Contarini does, as an abstract principle of reason/ converted into a
rule of civil action. He continues: " These laws should be so proper
to the people for whom they were made," that it is a great chance
where the laws of one country are suitable to another. They must
have regard and relation to the principle of the government established
or to be established, whether they form that government, as is the case
with politic laws, or they maintain it as civil laws do.
" They must also be relative to the physical circumstances of the
country, its climate, the quality of the soil, its situation, its extent, and
the mode of life and subsistence of the people. They must have
reference to the degree of liberty which the constitution of the coun-
try can allow, the religion of the inhabitants, their inclinations, their
wealth, their numbers, their commerce, their manners, customs and
morals. The laws also have relations with each other, with their ori-
gin, with the objects of the legislator, and the order of things on which
they are established. In all these points of view they should be consi-
dered. That I undertake to do in this work. I will examine all these
T Contarini, Delia Repub. e Magistral! de Venetia, p. 22.
x Montesquieu here speaks of positive laws. See Gajus, 1. 9, ff. De Just, et Jure.
150 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
relations. They constitute together what is called the SPIRIT OF
LAWS." y
So many and such important causes as these would produce a diver-
sity of laws highly injurious to the general intercourse of mankind, if
it were not for the fact that, as Gajus says, all countries which use
laws and morals are partly governed by laws common to all men. 2
And here we see the effect of the unity of jurisprudence, viewed as an
entire system, on the government of the world. The causes of that
unity have been fully investigated in the preceding chapters. If we
look upon it with reference to the diversity of municipal laws, in each
political division of the world, we cannot fail to see its necessity
to preserve harmony and consistency in the economy of human
society. And any community neglecting this principle loses ground
in civilization, and becomes comparatively more or less insulated.
The reason is, that (as we have shown) the division of the world
into nations and states is a secondary subordinate institution, and
therefore municipal laws cannot neglect or injure the immutable laws
common to all mankind, without breaking the harmony of that
general system of government which God has appointed for the whole
world, and thereby placing the community using such municipal
laws in a state of separation or political schism. Thus there is always
a difficulty in treating and holding intercourse with nations whose
municipal laws are barbarous and unjust, and who therefore do not
fall in with the systems of jurisprudence recognised and acted upon by
civilised countries as their practical standard of justice and injustice.
Not only such bad laws must be injurious to the internal welfare of the
country considered by itself, but they derange, so far as they extend,
the general economy of government in the world, which is framed on
certain principles universally applicable as a rule for the actions or
conduct of men, and springing from the two primary laws.
These reflections lead us to consider the Conflict of Laws; a subject
necessary fur comprehending the effect of municipal laws on human
society in general. We have to examine, first, how the municipal laws
of one country come in contact with those of other countries; and
secondly, what is the effect of such contact where those laws are con-
tradictory, and therefore conflicting.
The root of the first of these two important problems in Public Law
is the principle, already laid down, that the introduction of civil society
did not destroy or supersede natural society. Natural society is, as we
have seen, not municipal but universal. And civil society is natural
y Montesquieu, Esprit des Loix, liv. 1, cb. 3.
1 L. 9, ff. De Just, et Jur.
THE CONFLICT OP LAWS. 151
society modified by the introduction of the sovereign power.* From
this principle arises what is called the comity of nations. If it were
otherwise, the institution of civil societies would confine the legal
relations of men to the circle of each civil society, in all that does
not belong to mere primary natural law. And thus the effects of mu-
nicipal laws would be absolutely confined within the limits of the
states to which they belong. We shall see that this is not so.
But, on the other hand, it is an important rule that each temporal
sovereign power is exclusive, within its own territorial limits, of other
temporal powers. Several texts of the Pandects are cited on this
position, and two of them have become common maxims. Extra
territorium jus dicenti impune non paretur. Pari in parent nullum
competit imperium. b And the laws made by a sovereign have, strictly
speaking, no force or authority except within the limits of his domi-
nions. This position is a consequence of the definition, given by
Grotius, of the sovereign power, which he describes as a power, the
acts of which are independent of and cannot be annulled or reversed
by any other human power. d For it must follow from thence, that
the civil laws of any country, considered as a rule of civil conduct
prescribed by the sovereign power, are not binding within the territo-
ries of any other independent country. The same conclusion arises
from the equality of nations, 6 and from the principle, explained above,
of the indivisibility of the sovereign power. These doctrines, taken
by themselves, would lead to the conclusion that there could be no
conflict between the laws of independent states, for the courts of each
country would refuse to apply the laws of any other to any case within
their jurisdiction, and would decide exclusively according to their own
municipal law. The only question would be, whether the subject
matter was within the jurisdiction of the court, and if that question
were decided in the affirmative, the municipal law of the state to which
the court belonged would always exclusively operate. This is the ge-
neral rule. f We have now to examine the reasons why it is subject
to exceptions.
Boullenois, after saying that on strict legal principle no law has force
and authority beyond the territory of the sovereign who made it, adds,
" Burlamaqui, Droit de la Nat. et des Gens, torn. 4, pp. 14, 15.
b L. ult. ff. De Jurisdict. ; 1. 4, ff. De recept. qui arbitr. receper. ; 1. 13, 4, ff. ad
Senatusc. Trebell.
c Boullenois, Traite des Statuts Princ. Gener. 6, p. 4.
d Grot. Droit de la G. et de la P. 1. 1 , ch. 3, 7 ; Cacherani Decisiones, decis. 88,
^ 17 ; Bracton, 1.1, c. 8.
e Vattel, Droit des Gens, Prelim. $ 1520.
f Ibi, 1. 2, ch. 7, 84, 85.
152 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
that the necessity of the public and general advantage of nations has
caused certain exceptions in what regards civil intercourse and com-
merce. 5 These exceptions are jus quod necessitas constituit. h They
depend on several important principles of Public Law, from whence we
shall see their reasons.
Although the laws of a nation have no direct binding force or effect
except on persons within its own territories, yet every nation has a
right to bind its own subjects by its own laws in every place where
they may be. 1 Thus the law of England adopts the maxim, nemo
potest exuere patriam; and an Englishman, who removes to France or to
China, owes the same allegiance to the British crown there as at home,
however long his stay in foreign parts may be prolonged. k This doc-
trine does not agree with that of Tryphoninus, Pomponius, and Floren-
tinus, and of some modern jurists 1 to which it is an exception. Their
reason is, that a man may throw off his citizenship and betake himself
to another country on the same legal principles (and subject to the
same restrictions) on which he may dissolve a partnership. 1 " This, how-
ever, is a matter depending on the Public Law of each perticular
country.
Analogous to the maxim nemo potest exuere patriam, is the principle
that the municipal law of a country may follow its subject abroad and
render invalid an act done by him in a foreign country. Thus it was
decided by the House of Lords in the Sussex Peerage case, that the
Royal Marriage Act, 12 Geo. III. c. 11, extends to invalidate all
marriages contracted in violation thereof, wherever solemnized, whether
within the realm or without ; the act rendering the party incapable of
contracting marriage otherwise than according to its provisions." The
reason of this is that when the municipal law of a given state makes an
act of its own subjects absolutely illegal and void, that act is void with-
out reference to the place where it is performed. If it were not so,
the law would be easily evaded, and the permission of the law of one
country would defeat the prohibition of that of another. Thus it has
been held that a marriage once celebrated between British subjects in
an English domicil cannot be dissolved under the laws of a foreign
c O
country to which the parties may temporarily remove; because by the
t Boullenois, Traite des Stat. Princ. Gen. 6, p. 4.
h L. 40, ff. De Legib.
Story, Conflict of Laws, 21.
k Bla. Com. vol. 1, pp. 369, 370 ; Foster, Crown Law, 184.
1 L. 12, ^ 9, ff. De Captiv. et Postlimin. ; 1. 5, ibi ; 1. 26, ibi ; Vattel, Droit des Gens,
1. 1, c. 19, 220 228; Lampredi, Diritto Publ. vol. 3, p. 196.
m L.65, 5, ff. Pro Socio; Grot. Droit de la G. lib. 2, cap. 5, 29.
n 11 Clk. & Finel. p. 85; Voet ad Pand. lib. 1, tit. 4, pars 2, De Stat. 9.
Story, Conflict of Laws, 86, 88 ; Lolley's case, 1 Russ. & Ry. 236.
THE CONFLICT OF LAWS. 153
law of England marriage is indissoluble, although marriages are under
particular circumstances dissolved by the transcendant power of Par-
liament. This is a consequence of the general principle of the exclu-
sive sovereignty of laws within their own territory, which does not
allow a - subject to resort to a foreign jurisdiction in order to disobey
and make of no effect the law of his own country.
We see here an instance of the way in which the laws of different
countries come in contact with each other; and this occurs in a variety
of other cases, which may, however, be reduced to a few general heads.
The first and most obvious is that of foreigners, or, as they are some-
times called, aliens or strangers, and all questions of status and the
rights arising therefrom. The second is that of contracts and other
legal acts or wrongful acts entered into and performed or committed
in one country, and intended to take effect partly or wholly, or other-
wise producing rights and obligations or other effects in anothef. The
third regards foreign judgments or judicial remedies, that is to say,
judgments pronounced in one country, but which cannot have entire
effect without being enforced or acted upon in another. In all these
cases the laws of more countries than one include within their intention
scope and spirit some common subject matter. And where those laws
differ, there is what jurists call a conflict of laws ; and then the question
arises which law is to prevail, or which part of the matter is to be go-
verned by one law, and which by another ?
Nations reciprocally allow each other's laws to have effect within
their territories so far as maybe without injury or inconvenience to them-
selves. And for mutual and common advantage it has been received
in the law of nations, that one country should permit the laws of
another to have validity in its territories. 15 This permission is called
comitas gentium, the comity of nations. We have now to examine its
reasons or grounds.
We have seen that the constitution of civil society, by the formation
of different sovereign states and nations, did not extinguish natural
society embracing all mankind, but added to it a new element, that of
supreme civil or sovereign power, with all the consequences of that in-
stitution. The relation of independent nations towards each other is
therefore that of natural as contradistinguished from civil society. It
follows, that as a nation owes to every other nation what man owes to
man, we may lay down the principle that a state owes to another state
that which it owes to itself ; so far as its assistance is really needed
and can be given without injury to or neglect of its own interests.* 1
This doctrine arises from the duty of sociability springing from the
second of the two primary laws. Therefore the term comity must not
P Huber, Jus Publ. Univers. lib. 3, cap. 8, 7.
i Vattel, Droit des Gens, lib. 2, ch. 1, 3.
154 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
be understood as meaning mere courtesy. No doubt, however, every
nation must be the final judge for itself, not only of the nature and
extent of this duty, but of the occasions on which its exercise may be
justly asked. And there is no sufficient ground for saying that any
foreign nation has a right to require the recognition and execution of its
own laws in other territories, when those laws are deemed oppressive or
injurious to the rights or interests of the inhabitants of the latter, or
otherwise impolitic or unjust/ The equality of sovereign states affords
a proof of that doctrine. Pari in parent nullum competit imperium.* 1
But though every nation must judge for itself what is its true duty in
administering justice in its own tribunals/ yet no nation can altogether
shut its eyes to foreign municipal laws, without violating the system
of jurisprudence which regulates the mutual intercourse between civi-
lized nations. "The true foundation," as Mr. Justice Story observes,
" on which the administration of international law must rest, is, that the
rules which are 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. This is the
ground on which Rodenburg puts it. u " The American jurist states this
proposition too generally, (for mutual interest and utility are not the
true foundation of international law,) but it is correct if it be confined to
the matter now under consideration, as indeed it is by Rodenburg.
Thus President Bouhier says, " It must in the first place be remem-
bered, that, though the rule is for the restriction of local customs within
their territorial limits, their extension has nevertheless been admitted
in favour of public utility, and sometimes even through a sort of neces-
sity. Thus when neighbouring countries have allowed that extension,
it is not that they have become subject to a foreign statute. It is only
because they have found their own interest and advantage in procuring
for their own statutes, in similar cases, the same advantages within
neighbouring districts. We may therefore say that this extension of
laws is based upon a species of the law of nations, and of fitness, by
virtue of which different nations have tacitly concurred to allow this
extension, wherever common equity and utility require it, excepting
where the municipal law, to which the extension of a foreign law is
asked, contains a prohibitive disposition." 1
r Story, Conflict of Laws, 32, p. 38.
Voet ad Pand. lib. 1, tit. 4, pars 2, De Statutis, 5.
' Story, Conflict of Laws, 34, p. 39; Kent, Comment, vol. 2, lect. 39, p. 457.
Story, Conflict of Laws, 35 ; Rodenburg, De Stat. Diversit. tit. 1 , c. 3, 4.
x Story, ibi ; Bouhier, Coutume de Bourgogne, ch. 23, 62, 63, p. 457 ; 11 Clk. &
& Fin. 85.
THE CONFLICT OF LAWS. 155
These reflections show the grounds and nature of the comity of
nations by which questions arising from the conflict of laws are
decided. As every independent community will judge for itself how
far the comitas inter gentes is to be permitted to interfere with its do-
mestic interests and policy/ the decision of particular cases of conflict
is matter of municipal law. Yet there are certain principles of juris-
prudence on this subject, more or less universally received and acted
upon by civilized nations. The reason of this is, that, as we have
shown, the division of mankind into nations and states is an arbitrary
and subordinate institution, from which arises the conflict between laws
made by independent supreme powers, and the comitas gentium ; for if
there were no such division, one sovereign authority would exist in the
whole world, which would prescribe the limits, and reconcile the differ-
ences of local laws, and no comitas gentium would be needed. It
follows from this character of the division of nations, which belongs to
the arbitrary part of Public Law, that there are certain principles of
jurisprudence anterior to that institution, and appertaining to the general
social state of mankind. Their reasons are traced directly or indi-
rectly to the two primary laws, and they serve to obviate certain evils
which would otherwise arise from the division of the world into sepa-
rate states, and which are seen more or less perniciously developed,
according as those principles are neglected. They fill a necessary
space in the economy of the laws whereby mankind are governed,
because they are required to regulate the intercourse between citizens
of different countries, and so promote the welfare of the general human
community. A few reflections will show clearly what part the comitas
gentium has in universal jurisprudence, and its province and operation
in the general government of the world. Municipal laws must be
looked upon under two aspects. First, they are a rule of civil conduct,
prescribed by the sovereign power of the State to its subjects, for the
exclusive regulation and government of the particular community to
which they belong. This is the primary use of municipal laws, consi-
dered as such. Secondly, municipal laws are to be considered with
reference to this proposition, that mankind in general are governed by
the municipal laws of all the particular communities into which they
are divided. Some of those municipal laws are, or ought to be,
common to all civilized communities, while others are peculiar to a
country or place. 2 The former are direct, and the latter are indirect
consequences of the two primary laws, as we have already shown. It
follows from these positions, and from what we have said on the nature
and spirit of laws, that all the laws in civil society, taken together as
y Kent, Comment, vol. 2, lect. 39, p. 457.
1 L. 9, ff. De Just, et Jur.
156 DIVERSITY OF LAWS IN DIFFERENT COUNTRIES.
a whole, comprehending all nations, have a common general purpose,
which is that of civil society itself. Where the municipal laws of
different communities agree, this common purpose is evident, and
naturally results from their operation. But a difficulty arises when
laws of one country are opposed to those of another, in cases in which
such inconsistent laws come in contact with each other. In those
cases there is a want of harmony in the system and working of general
civil society, because two inconsistent laws cannot both take effect on
the same subject-matter, and on the other hand the foreign laws can-
not be rejected without breaking the continuity of human society
which extends to all mankind, and so interrupting the intercourse and
commerce of the world. To deal with such cases, and prevent those
inconveniences, is the use and object of the comitas gentium. And
here we also see the spirit of that branch of jurisprudence called the
Conflict of Laws. That subject will be further considered in the next
chapter.
CHAPTER XVI.
THE CONFLICT OF LAWS.
Personal Laws as contradistinguished from Territorial Laws Laws of British India
Concurrent Systems of Jurisprudence Municipal Conflict of Laws General Rules
regarding the Conflict of Laws Real and Personal Statutes The Comity of Na-
tions Lex Loci Rei Sitae Domicil Rule as to Movables Jurisprudence as to
Personal Statutes Status Conflict of Laws regarding Marriage, and its Conse-
quences Divorce Effects of Marriage as to Property Conflict of Laws regarding
the Jurisdiction of Courts and Legal Remedies Foreigners.
BEFORE we pursue the subject commenced in the preceding chapter,
some notice must be taken of the condition of civil rights denomi-
nated personal rights or personal laws, as contradistinguished from
territorial laws.
The general principle of modern times is, that the territory deter-
mines the law, and the law of the territory regulates the property and
contracts of all who inhabit the country. In this respect citizens differ
little from foreigners, and national origin has no influence.* We
denote this state of things by the common expression the law of the
land, meaning the territorial law. A different system existed in the
Savigny, Hist, du Droit Rom. torn. 1, p. 89 (trad, de Guenoux).
THE CONFLICT OF LAWS. 157
middle ages. " When," says Savigny, " the Goths, the Burgundians,
the Franks, and the Lombards, founded new states, in which the
Romans retained neither dominion nor influence; those barbarians
had the choice of treating the vanquished in different ways. They
might have destroyed the conquered nation by exterminating or en-
slaving all the free men. They might have incorporated it with them-
selves, imposing on it the manners, the constitution, and the laws of
Germany. Neither of these events occurred ; for though a multitude
of Romans were killed, driven away or reduced to slavery, these acts
of severity were directed against individuals, and not against the mass
of the nation on any uniform plan. On the contrary, mingled toge-
ther within the same territory, the two nations preserved distinct
manners and laws, which engendered that sort of civil law called
personal right (jus), or personal law, as opposed to territorial law. b "
Thus, in the middle ages, as the learned writer proceeds to show, the
Roman and the Lombard, though inhabiting the same country, lived
each according to his own law. And so it was with the Franks, the
Burgundians, and the Goths. And Savigny cites a passage from a
letter of Agobardus to Louis le Debonnaire, stating that, " We often
see five persons conversing together, not one of whom obeys the same
laws." Montesquieu is of opinion that the system of personal laws
existed among the Germanic tribes. Savigny, however, establishes
that it did not commence until nations were more mingled together.
Thus the system of personal laws in Germanic states, founded on
Roman soil, must have comprised at first only two sorts of law, the
Roman and that of the conquering tribe, to the exclusion of the law
of the other German tribes. But if that same state extended its
domination over another tribe, it admitted the national law of the
latter as the Roman Law had been admitted, and the conquered tribe
in its turn recognized all the sorts of law in force within the conquer-
ing state. The historical results would be as follows, and they are
confirmed by facts. For northern France, the Roman Law would
have been admitted alone, beside the Franc Law. Later, when the
Carlovingians had subjugated the Visigoths, the Burgundians, the
Germans, the Bavarians and the Saxons, the laws of these various
tribes would have been recognized in the Franc empire, of which they
formed parts. But as Italy never was a portion of the Franc empire,
the Lombard Law would have been always excluded from that empire.
As for Italy, the Roman Law would have stood alone in force, beside
the Lombard Law, under the Lombard kings, and the Francs would
have introduced by their conquests the different laws which they had
b Savigny, Hist, du Droit Rom. torn. 1. p. 89 (trad, de Guenoux).
c Montesq. Esprit des Loix, liv. 28, ch. 2.
158 THE CONFLICT OF LAWS.
previously themselves recognized. Savigny shows that historical facts
and documents are entirely in accordance with these results,* 1 which
he deduced and inferred from the nature of things. We may there-
fore safely conclude that conquest was the origin of personal laws in
the middle ages.
The general rule was, that each individual followed the law of his
own nation. To this there were several exceptions. Women followed
the law of their husbands, thoiigh on becoming widows they returned
to that of their origin. Churches, considered as juridical persons,
followed the Roman Law, and so it was with the clergy, and both
were considered as Romans. 6 This, no doubt, arose from the Supre-
macy of the Holy See, to which we may add the other causes in-
dicated by Savigny, namely, ancient customs, the adaptation of the
Roman Law to ecclesiastical matters for which the laws of the barba-
rians were unfit, and the privileges of the clergy arising from the
Roman Law.
Another remarkable instance of personal laws exists in India, in
accordance with a very ancient principle of Hindu Public Law. The
Manava-Dharma-Sastra, or Laws of Manou, a book supposed to have
been written 1300 years before the Christian era/ contains, after a
metaphysical cosmogony, the laws and duties of the four primitive
castes, and the mixed castes. In the part regarding the duty of the
royal and military caste, or Kchatriyas, it is laid down, that after a
king has conquered a country, he ought to maintain the laws of the
conquered nation as they have been promulgated. g This precept is in
accordance with the doctrine of the English Law, that conquest does
not annul the laws of the conquered country; and a conquered or
ceded country retains its own laws, though the king may alter them
by his prerogative. 11 In conformity with these principles, Warren
Hastings's plan for the administration of justice, adopted in 1772,
especially reserved their own laws to the natives of India. The first
regulation of the governor general in council, in 1780, contains the
same provisions. By sect. 27 of this regulation it is enacted, " that in
all suits regarding inheritances, marriage, and caste, and other religious
usages and institutions, the laws of the Koran with respect to Ma-
homedans, and those of the Shaster with respect to Gentoos, shall be
invariably adhered to." This section was re-enacted in the following
d Savigny, Hist, du Droit Rom. torn. 1, pp. 91, 92, &c.
e Ibi, p. 103105.
f LoiseleurDeslongshamps, Lois de Manou, Pref. p. v.
* Ibi, liv. 7, 203, p. 244 ; Sir W. Jones, Inst. of Hindu Law, art. 203.
. h Bla. Com. Introd. p. 108 ; Calvin's case, 7 Rep. 17; Clark, Colonial Law, p. 4;
Hall v. Campbell, Cowp. 210 ; Show. Parl. Cas. 31 ; Burge, Comment, vol. 1, pp. 31, 32.
THE CONFLICT OF LAWS. 159
year in the revised code, with the addition of the word succession. By
stat. 21 Geo. III. c. 70, it is enacted, that, in disputes between the
native inhabitants of Calcutta, their inheritance and succession to
lands, rents, and goods, and all matters of contract and dealing be-
tween party and party, shall be determined in the case of Mahomedans
by the laws and usages of Mahomedans, and in the case of Gentus by
the laws and usages of Gentus; and where only one of the parties
shall be a Mahomedan or Gentu, by the laws and usages of the de-
fendant.' This last provision seems founded on the reason of the
Civil Law maxim actor sequitur forum rei. k Sect. 18 of the same
statute preserved to the natives their laws and customs, enacting, that,
in order that regard should be had to the civil and religious usages of
the said natives, the rights and authorities of families and masters of
families, according as the same might have been exercised by the
Gentu or Mahomedan Law, shall be preserved to them respectively
within their said families ; nor shall any acts done in consequence of
the rule and law of caste, respecting the members of the said families
only, be held and adjudged a crime, although the same may not be
held justifiable by the law of England. 1 That declaratory provision
agrees with the doctrine of Lord Mansfield, who denies the position of
Lord Coke, that laws contrary to the Christian religion are ipso facto
abrogated by conquest. The reservation of the native laws of Hindus
and Mahomedans was extended to Madras and Bombay by sections
12 and 13 of stat. 37 Geo. III. c. 142, in 1797. The regulation law is in
accordance with these statutes. 11 This sketch suffices for our purpose to
show the existence in British India of three sorts of Jaws, two for the
natives, and one, the English Law, for Europeans. The preservation
of the Hindu Law after the Mahomedan conquest is a remarkable fact,
as the Mahomedan Law has no provision resembling the passage in
the Laws of Manou mentioned above, but, on the contrary, does not
tolerate the laws of a conquered nation.
There is not, properly speaking, any conflict of laws between the
personal laws existing in that state of civil right which we have just
described; that is to say, there is no conflict to be regulated by comity.
For the relations between the different laws are determined by the
sovereign power to which they are all equally subject. Thus we have
seen that, by statute and regulations in force in India, the law of the
1 Morley, Digest of Indian Cases, Introd. pp. 169, 170.
k Vattel, Droit des Gens, 1. 2, ch. 8, $ 103 ; 1. 2, Cod. De Jurisdic. omnium judicum.
1. 5, eod. tit. ; 1. 3, Cod. ubi in rem actio exercer. debeat.
1 Ibi, p. 171.
Hall v. Campbell, Cowp. 210; Calvin's case, 7 Rep. 34.
D Morley, Dig. Introd. p. 171.
160 THE CONFLICT OF LAWS.
defendant has the preference, where one party is a Mahomedan and
the other a Hindu. The same conclusion follows from the fact that
the system of personal laws arises from conquest.
We must take care not to confound the system of personal laws
with a privilege or exemption of one class of persons in any given
state. This is jus singulare, an exception made by the legislature in
favour of some particular class of citizens.
There is also a semblance of conflict of laws where several systems
of jurisprudence, blended together, prevail in the same territory. Of
this Savigny furnishes the following important instance : " A contra-
diction may exist between the different sources which together form
the common law, or between that common law consisting of them
taken together, and other sources of law added subsequently. The
parts of the common law of Germany are, the Laws of Justinian, the
Canon Law, the Imperial Laws, and the Customary Law scientifically
established, that is to say, the decisions of the courts. If there be in
the common law a contradiction which cannot be reconciled, the later
is preferred to the older source. For, as such a contradiction belongs
to the progressive development of the law, every new rule necessarily
implies the abrogation of an older one. Therefore, to apply the law
actually in force, we must follow the living and not the dead rules; and
this shows a restriction of the principle laid down above. Thus, when
the old rule was accompanied by an exception, that exception is not
abolished by the new rule, but continues to subsist beside it, unless
specially abrogated. p
" The general principle is applied thus. The decided cases, being
the latest modification of the ancient sources, stand in the first place ;
next come the Imperial Laws, then the Canon Law, and then the
Roman Law. The place assigned to the two latter sources requires
some explanation."
"The question whether, in matters of private law, the Canon is to
be preferred to the Roman Law, has been long disputed. Evidently
the first thing is to try to reconcile them together when they appa-
rently differ. But where such reconciliation is not possible, as, for
instance, where the Canon Law openly changes the Roman Civil Law,
several authors maintain this doctrine : the two laws, they say, have
no authority among us, except by virtue of their reception in Ger-
many ; and as their reception took place at the same period, they are
equal, and every case of conflict between them must be settled by the
intervention of a special jurisprudence."
" But as to matters of private law, the Canon Law bears the same
Savigny, Traite du Droit Rom. torn. 1, p. 60.
P L. 80, ff. De Reg. Jur. ; 1. 41, ff. De Pajnis.
THE CONFLICT OF LAWS. 161
relation to the Roman that the novels of Justinian do to the Pandects
and Code, especially the decretals, which more frequently cause the
conflict in question. On this footing the two laws were taken at
Bologna, and when the decretals appeared, first separately, and then
collected together as we now have them, the reception of both laws
was an accomplished fact, and the decretals were, in reality, subsequent
derogatory laws. In reality the Canon Law was complete when Ger-
many adopted it, conjointly with the Roman Law. But that adoption
took place in the same spirit as at Bologna as also we admit no
other sources of Roman Law than those which were recognized by
the school of Bologna. This complete assimilation might only raise
a doubt whether the Canon Law, received as law in Italy, was also so
received in Germany. But at the time of its reception the Holy See
and its laws were not less respected in Germany than in Italy, and
therefore to accept the Canon Law and its supremacy was not for
Germany to submit to the authority of Bologna, but to act on the
same principles."
" The result of all this is, with regard to private law, that the Canon
Law has the preference, or superiority, in cases of conflict, over the
Roman Law. This rule is, however, subject to an exception where
there exists a special jurisprudence on the particular point, or, in Pro-
testant countries, if a provision of the private Canon Law is in contra-
diction to the doctrines of the Protestant Church. The superiority of
the Imperial (German) Laws over the Canon Law may produce the
same effect, by an exception of the same sort, if those laws repeal
a particular rule of the Canon Law, and re-establish a rule of the
Roman Law." q
The remarkable feature of German jurisprudence described above,
serves to illustrate the apparent conflict which arises between the laws
and customs of different provinces in the same country. Cases of
that nature are decided on principles frequently similar or analogous
to those which govern cases of conflict between the laws of indepen-
dent states j r but they belong exclusively to Municipal Law, and
should be prevented or settled by legislation grounded on the common
interest of the whole country, rather than on principles of comity.
They appertain in some instances to internal Public Law, but gene-
rally to private law.
The federal constitution of the United States of America presents,
however, a peculiar jurisprudence on this subject. For that constitu-
i Savigny, Traite du Droit Rom. torn. 1, ch. 4, p. 258260;
1 Doe d. Birtwhistle v. Vardell, 5 Barn. & Cress. ; Lolly's case, 1 Russ. & Ry. Cr.
Cas.
162 THE CONFLICT OF LAWS.
tion is an instrument containing the grant of specific powers, and the
government of the Union cannot claim any powers but what are con-
tained in the grant, and given either expressly or by necessary impli-
cation. The powers vested in the state governments by their respec-
tive constitutions, or remaining with the people of the several states,
prior to the establishment of the constitution of the United States,
continue unaltered and unimpaired, except so far as they are granted
to the United States. 3 They are called the residuary sovereignty of
the States. 1 Therefore the States forming the federation partake of
the nature of sovereign states, so far as their residuary sovereignty
extends. This shows why the American courts and writers have
treated questions of conflict between the laws of the States according
to principles of the Law of Nations, constantly resorting to the comity
of nations. But even in this remarkable instance cases of conflict
belong altogether to Municipal Law. Thus, for instance, the federal
courts have jurisdiction in all suits between resident citizens of diffe-
rent States," and the decrees of those courts are binding on both
parties, and take effect not by comity, but by the municipal law of the
Union.
These instances suffice to show the nature of what may be called
municipal conflict of laws. It has been adverted to, as necessarily
connected with that subject to which we must now return, namely, the
way in which the laws of different countries operate in cases of con-
flict, as part of the general scheme of laws by which civil society is
governed in the whole world.
Huberus has laid down the three following general rules, adopted
by Story, which contain the rudiments of this important branch of
Public Law. I. The laws of every state have force only within the
limits of its own government or jurisdiction, and bind all who are
subjects thereof; but not beyond those limits. II, All persons who
are found within the territories of a government, whether their resi-
dence be permanent or temporary, are to be deemed subject to that
government. III. The rulers of states, by comity, give to the laws
of every people, in force within the territories of such people, effect
everywhere, so far as such laws do not prejudice the powers or
rights of other governments or their citizens/
Kent, Com. vol. 1, lect. 15, p. 312.
1 Ibi, lect. 1C,' pp. 209, 251, 332, 386.
Ibi, p. 343, 344.
* 1. Leges cujusque imperil vim habent intra terminos ejusdem reipublicse, omnesque
ei subjectos obligant, nee ultra. 2. Pro subjectis imperio habendi sunt omnes qui
intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur.
THE CONFLICT OF LAWS. 163
The two first of these rules are grounded on the exclusiveness of
every sovereign power within its own territory, a doctrine which has
been already fully explained. The third defines very well the spirit
and reason of comity. Huberus explains that rule by saying that the
matter is to be determined, not simply by the municipal laws, but by
the convenience and consent of different nations ; for, since the laws
of one people cannot have any direct force among another people, so
nothing could be more inconvenient, in the commerce and general
intercourse of nations, than that what is valid by the laws of one
place should become of no effect by the diversity of laws of another.*
The reason of the comity of nations is here well stated, but, on the
other hand, notwithstanding that comity, many things are valid in one
place and void in another; 2 and therefore the third rule of Huberus
does not suffice to solve the difficulties of the conflict of laws. We
must consequently proceed further, and consider the different sorts of
laws with reference to conflict and comity.
The civilians have divided municipal laws into two classes, which
they call respectively real statutes and personal statutes. On this dis-
tinction depends the question whether the law of the domicil or lex
fori, or lex rei sites is to have the preference in cases of conflict.* The
distinction is subject to some doubt and difficulty in particular cases,
but the following general rule, adopted by Chancellor Kent from
Merlin, is sufficiently clear for our purpose. The laws which regulate
the condition, capacity and incapacity of persons are personal statutes;
and those which regulate the quality, transmission and disposition of
property are real statutes. The test, he says, by which they may be
distinguished consists in the circumstance, that if the principal direct
and immediate object of the law be to regulate the condition of the
person, the statute is personal, whatever may be the remote conse-
quences of that condition or property. But if the principal direct and
immediate object of the law be to regulate the quality, nature and
disposition of property, the statute is real, whatever may be its ulterior
effects in respect to the person. 1 * Voet adds a third class, that of
mixed statutes, but this seems doubtful and unnecessary.
3. Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus
exercita teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis
ejusque civium prejudicetur. Hub 2, tit. 3, De Conflictu Leg. ; Story, Conflict of
Laws, p. 35, 29; Boullenois, Trait des Statuts, ch. 3, observ. 10, p. 155.
* Story, ibi.
* See, for instance, Lolly's case, 1 Russ. & Ry.
a Kent, Comment, vol. 2, sect. 39, pp. 455, 456.
b Kent, Comment, ibi, pp. 456, 457 ; Merlin, Repertoire, tit. Autorisation Maritale,
sect. 10.
c Voet ad Pand. lib. 1, tit. De Statutis, 4.
M2
164 THE CONFLICT OF LAWS.
It is a general rule, that real statutes do not extend by comity to
property beyond the territory of the state to which they belong. d The
meaning of this is, that property situated in one state is not governed
by the laws of another state. Thus, in the case of Nelson v. Bridport,
it was held that the property in dispute, being situated in Sicily, could
not be governed by the law of England, and the Court was therefore
compelled to decide according to the lex loci rei sitce," and not accord-
ing to the English real law of entails and settlements. This case is the
more remarkable because, at first sight, it seems as though a real law
of Sicily had been extended to England. But this is not so, because
the Court only gave effect to the Sicilian law in Sicily, where the pro-
perty was. The general rule under consideration applies to the fullest
extent to immovable or real property, which is exclusively governed
by the lex loci, or territorial law of the situs/ The principles on which
is founded the rule that where the law regards things, the law of the
situs is to govern, naturally leads to the conclusion that the validity of
the execution of a contract is to be decided by the law of the place
where it is executed, and not by any foreign law. And all acts done
in court or out of court, whether testamentary or inter vivos, regularly
executed in any place according to the law of that place, are in general
held validly executed or done everywhere, even in countries where a
different law prevails, and where, if transacted in the like manner, they
would have been invalids And the same principle applies, vice versa,
to the invalidity of contracts and other acts. If void or illegal by the
law of the place of the contract, they are generally void and illegal
everywhere.* 1 And so, if a contract be made in one country and to be
performed in another, and the parties had in view the laws of such
other country, in reference to the performance of the contract, the
general rule is that the contract, in respect to its construction and force,
is to be governed by the law of the country or state in which it is to be
performed or fulfilled. 1 This is stated by Kent as an exception to the
general rule, locus rcgit actum, or lex loci contractus regit acturp. But
it is an exception only to the letter and not to the spirit of that rule.
For in the case supposed, the law of the place where the contract was
made would be a foreign law with regard to the place where the con-
tract is to be fulfilled or enforced. And by the rule locus regit actum,
the performance of the contract must be regulated by the law of the
place of such performance.
d Boullenois, vol. l,p. 7, Principe vignt-septfeme.
Earl Nelson v. Lord Bridport, 10 Beav. 305.
f Kent, Comment, vol. 2, pp. 428, 429; Story, Conflict of Laws, 363, &c.
& Story, Comm. 239, 242; Sanchez, De Matriin. Disp. 18, n. 28.
h Ibi, 243.
1 Kent, Comment. 39, p. 459.
THE CONFLICT OF LAWS. 165
We must now notice a very important exception to the general rule
already laid down as to real statutes. It is this. The right and dis-
position of and succession to movables, or personal property, are
generally governed by the law of the domicil of the owner, or his
actual domicil at the time of his death, and not by the law of their
local situation. 11 By some writers, as Story shows, this principle is
derived from a legal fiction, that movables are situated in the place of
the owner's domicil ; while others hold, that laws regarding mova-
bles are personal and subject to the rule which governs personal
statutes. 1 The learned American jurist, however, very judiciously con-
cludes, that the doctrine in question had its true origin in an enlarged
policy growing out of the transitory nature of movables and the ge-
neral convenience of nations. If, he continues, the law rei sitce were
generally to prevail in regard to movables, it would be utterly impos-
sible for the owner, in many cases, to know in what manner to dispose
of them during his life or to distribute them at his death ; not only
from the uncertainty of their situation in the transit to and from dif-
ferent places, but from the impracticability of knowing, with sufficient
accuracy, the law of transfers inter vivos, or of testamentary disposi-
tions and successions in the different countries in which they might
happen to be. Any change of place at a subsequent time might
defeat the best considered will ; and any sale or donation might be
rendered inoperative from the ignorance of the parties of the law of
the actual situs at the time of their acts. There would be serious evils
pervading the whole community, and equally affecting the subjects
and interests of all civilised nations. But in maritime nations depend-
ing upon commerce the mischief would be greatest. A sense of general
utility must therefore have first suggested this doctrine, and it could
not fail to recommend itself to mankind by its convenience and en-
larged policy." 1
These fundamental doctrines will facilitate the comprehension of the
jurisprudence regarding personal statutes, a subject which has a more
direct bearing on Public Law than that which we have been consider-
ing. We have seen that personal statutes are those which regulate the
condition, capacity and incapacity of persons. The general rule re-
garding this class of laws is the reverse to that which applies to real
statutes, for the status of persons and its incidents are in general de-
k Story, Conflict of Laws, 376, p. 549 ; Kent, Comment, vol. 2, 37, p. 428 ;
Vattel, Droit des Gens, 1. 2, ch. 7, 85 ; cb. 8, 100, 103; Story, 481.
1 Ibi, 377, 378.
m Ibi, 379 ; In re Ewin, 1 Cromp. & Jerv. 156; Sill v. Worsicick, 1 H. Bla. 690;
Doe d. Birtwhistle v. Vardill, 5 Barn. & Cress. 438, 451, 452 ; 9 Bligh, 3288 ; 2 Clarke
& Fin. 571.
166 THE CONFLICT OF LAWS.
termined by the law of his domicil, that is to say, a man is deemed
everywhere in the same legal state, universal or particular, in which he
is placed by the law of his domicil. n Thus, if a person be married,
or a minor by the law of his domicil, he is held to be the same
everywhere else. And therefore the law of nations holds that the ap-
pointment of a guardian to a minor by the law of his domicil shall
be valid and effectual everywhere, though this arises also from the
rule locus regit actum. But the general principle regarding status
must not be extended to interfere with the exclusive jurisdiction of
real statutes regarding immovables. Thus, if by law of the place
where immovable property is situated, the age of majority be five and
twenty, the owner cannot enjoy the rights of majority with reference
to that property before he has reached that age, though by the law of
his domicil he be of full age at twenty-one. Boullenois indeed holds
a different opinion, but the sounder doctrine seems to be in favour of
this exception ;P for the rule applicable to immovable property is
grounded on paramount principles of Public Law regarding the nature
of territorial sovereignty.
In cases of conflict depending on the question of domicil, there is
frequently much difficulty in determining the domicil of the party.
This is generally a question not of law but of fact, for that is the
domicil of a person where he has his true fixed home and principal
establishment, and to which, when absent, he has the intention of
returning; q and two things must concur to constitute domicil: first,
residence ; and, secondly, the intention of making it the home of the
party. 1 " Ulpian, Labeo, Celsus and Julian, differ on the question of a
double domicil; 8 and the more received opinion is that of Ulpian and
Paulus, that a man may have two domicils at the same time. 4 Ulpian,
however, thinks this a rare case difficult to be proved, and the acqui-
sition of a new generally extinguishes the old domicil.
With regard to changes of domicil, the more received and better
opinion seems to be that the actual and not the original or former
domicil is to prevail." The best reason for this general rule is, that
n Story, Conflict of Laws, $51, p. 56.
Vattel, Droit des Gens, 1. 2, cb. 7, 85.
P Story, Conflict of Laws, 52.
H Story, Conflict of Laws, 41, ch. 3, p. 44; 1. 7, Cod. De Incolis ; 1. 27, 1, ad
Municip. ; 1. 203, ff. De Verb. Signif. ; ibi, 1. 239, 2 ; Voet ad Pand. 1. 5, tit. 1, De
Judiciis et ubi quisque, 42, 94; Potbier's Pandects of Justin. 1.50, tit. 1, 2 ; Vattel,
Droit des Gens, 1. 1, ch. 19, 218.
r Story, 44 ; 1. 20, ff. ad Municipalem et de Incolis.
L. 5, ff. ad Municipalem et de Incolis ; 1. 27, ibi, 1 3.
* Voet ad Pand. lib. 5, tit. 1, 92.
See tbe authorities in Story, 55, &c. 69.
THE CONFLICT OP LAWS. 167
there would be manifest inconvenience in holding that the status of a
person is regulated by the law of a place where he is no longer
domiciled, and not by that of the place where he has his actual
domicil ; and as domicil is essentially mutable, its legal effects on
persons ought not to be indelible, at least so far as they arise from
domicil alone. This limitation is necessary ; for (as Story says, with
the authority of Boullenois) there are states and conditions of persons
which are legal rights grounded on public reasons admitted by all
nations, and not arising from domicil, and which therefore are not
affected by change of domicil. " Boullenois gives as examples of these
states, interdiction for lunacy or prodigality, emancipation by letters of
the sovereign, legitimacy, nobility and legal infamy. But this propo-
sition must be understood as only asserting that in a country where a
particular state or condition of this sort, according to the law of a
foreign domicil, is, by comity, admitted, a change of domicil will not
alter that state or condition, but leave it to be determined by the law
of the former domicil where it has been impressed on the person.
We must remember the doctrine of the third rule of Huberus, which
makes the admission of foreign laws by comity dependent on the
interest or welfare of each country ; for, with reference to the status
of persons, this is especially important. There are, as Story remarks, no
universal rules by which nations are or ought to be morally or politically
bound on this subject. y The status of persons is a matter intimately
connected with political and social considerations, of which each
sovereign power must be the only proper judge within its own ter-
ritories ; and every State has a right to prescribe the conditions
subject to which it will allow the entry and residence of strangers
within its territories, provided those conditions be not inconsistent
with the rights of humanity : and strangers are bound by the laws of
the country where they are. 2 Thus, by the law of England, a foreign
noblemen, even of the highest rank, is, when in England, only an
esquire. a And so a person legitimate elsewhere may be held ille-
gitimate in England ; for the rule, that personal status accompanies a
man everywhere, has this qualification that it must not militate
against the law of the country where the consequences of that status
are sought to be enforced. b
31 Story, 71, 72; Boullenois, vol.2, observ. 32, pp. 10, 11, 13, 19.
y Story, Conflict of Laws, 73.
1 Vattel, Droit des Gens, liv. 2, ch. 8, 100; St. A. Liguori, Theolog. Mor. lib. 1,
cap. 1, dubium 2.
Co. Litt. 16 b ; Calvin's case, 7 Rep. 30, 31.
b Birlwfiistle v. Vardill, 5 Barn. & Cress. 455.
168 THE CONFLICT OF LAWS.
These considerations are particularly important with reference to the
conflict of laws regarding marriage, a subject the fundamental prin-
ciples of which must now be examined. That contract is essentially
of natural law and juris gentium the parent, not the child of society
principium urbis et quasi seminarium reipublic(E. d It belongs not
only to civil society as such, but to natural society, which is universal
and anterior to municipal laws. Marriage is a sacrament of the Roman
Catholic Church ; and in Catholic, and in some Protestant countries,
it is treated as such by the temporal laws. 6 And the sacrament of
marriage is not a sacrament added to a contract, but a natural con-
tract raised to the dignity of a sacrament/ though the Church distin-
guishes the natural and civil contract of marriage from the sacrament g
where the latter does not exist. 11 These universal features of the mar-
riage contract, as well as the circumstance that from it springs the im-
portant status of legitimacy and the relations of consanguinity and
affinity, point it out as peculiarly the subject of the comity of nations.
The general principle on this subject is, that with regard to the
constitution of marriage, as it is a personal contract, it must be valid
everywhere if celebrated according to the law of the place of celebra-
tion : but the rights and obligations arising therefrom are in general
governed by the law of the domicil. 1 The sacrament of marriage, if
valid in the place where it is celebrated, is valid everywhere by the
public law of the Church. Thus in places where the decrees of the
Council of Trent have not been published, the sacrament of marriage
may be validly celebrated without the presence of a priest, provided
the parties did not go there for the purpose of evading the decree of
the council. k
The fundamental rule that the validity of a marriage depends on the
law of the place where it is celebrated, so that if valid there it is valid
everywhere, and vice versa, 1 must be received with this limitation
that it applies to persons sui juris, and capable of contracting mar-
riage. For we have seen that the law of a particular country may
c L. 1, ff. 3, De Just, et Jur.; 1. 1, ff. De Ritu Nuptiarura ; 1. 4, Cod. De Crimin.
Expilatse Hereditatis.
d Story, Conflict of Laws, ch. 5, 108.
e Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 63 65 ; Lindo v. Belisario, 1
Hagg. Consist. Rep. 231.
* Devoti, Insl. Canon, lib. 2, tit. 2, sect. 7, 103, torn. 1, p. 502.
& Catechismus Romanus, pars 2, cap. 8, 9.
h Devoti, ubi sup. 106, p. 503.
1 Story, 110.
k Schmalzgrueber, torn. 4, pars 1, pp. 298, 299 ; Devoti, Inst. Canon, torn. 1, pp. 550,
551, lib. 2, tit. 2, sect. 9, 147.
1 Story, $113.
THE CONFLICT OF LAWS. 169
make invalid a marriage contracted by its subjects under specified
circumstances, wherever it be contracted ; m and a majriage contracted
by parties in a foreign country where they are not domiciled, but to
which they have resorted with a view to evade, not regulations, but
prohibitions of the law of their own country, would not be valid in the
latter country, though in accordance with the lex loci contractus. The
reason is, that such prohibitions are grounded on public and social
policy, which belong to the public law of each country, and are within
the principle of exclusive sovereignty. A person domiciled here can-
not be permitted to import into this country a law opposed to the
social system sanctioned by the public law of this country. Thus the
law of England holding marriage indissoluble except by the trans-
cendant power of Parliament, does not allow an English marriage to
be dissolved by a foreign divorce ; and therefore a second marriage
celebrated where that divorce is valid and effectual, would be void in
England, though legal by the lex loci contracts ; and the issue of such
second marriage would be illegitimate in England, though legitimate
in the place of the marriage. 15
Another exception to the general rule that a marriage ought to^be
celebrated according to the lex loci contractus must now be noticed.
It is grounded on a sort of moral necessity existing with regard to
persons residing in foreign factories, in conquered places, in desert or
barbarous places, or in countries of an opposite religion, who are
allowed therefore, from necessity, to contract marriage there not
according to the lex loci (if there be any), but according to the law
of their own country. q On this principle Lord Stowell held valid a
marriage celebrated between English subjects at the Cape of Good
Hope by the chaplain of the British forces, occupying that settlement
under a capitulation/ He said, in giving judgment : " What is the
law of marriage in all foreign establishments settled in countries pro-
fessing a religion essentially different ? In the English factories at
Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the east,
Smyrna, Aleppo and others, in all of which (some of these establish-
ments existing by authority under treaties, and others under indul-
gence and toleration), marriages are regulated by the law of the
original country to which they are still considered to belong. An
English resident at St. Petersburgh does not look to the ritual of the
m Sussex Peerage case, 11 Clarke & Fin. 85.
n Surge, Comment, vol. 1, pp. 190, 191 ; Huberus, Confl. Leg. lib. 1, tit. 3, n. 8.
Story, 112 ; Lord Fergusson on Marriage and Divorce, 397 399.
P Story, 5) 117.
P Ibi, $ 118.
r Ending v. Smith, 2 Phil. Eccl. R. 332.
170 THE CONFLICT OF LAWS.
Greek Church, but to the rubric of the Church of England, when he
contracts a marriage with an English woman. Nobody can suppose
that whilst the Mogul empire existed, an Englishman was bound to
consult the Koran for the celebration of his marriage. Even where
no foreign connexions can be ascribed, a respect is shown to the
opinions and practice of a distinct people. The validity of a Greek
marriage in the extensive dominions of Turkey is left to depend, I
presume, on their own canons, without any reference to Mahometan
ceremonies. There is a. jus gentium upon this matter a comity which
treats with tenderness, or at least with toleration, the opinions and
usages of a distinct people in this transaction of marriage. It may be
difficult to say a priori how far the general law should circumscribe its
own authority in this matter. But practice has established the prin-
ciple in several instances ; and when the practice is admitted, it is
entitled to acceptance and respect. It has sanctioned the marriages
of foreign subjects in the houses of the ambassadors of the foreign
countries to which they belong. I am not aware of any judicial
regulation on this point ; but the reputation which the validity of such
marriages has acquired makes such a recognition "by no means im-
probable if such a question were brought to judgment." In the same
case Lord Stowell said : " It is true, indeed, that English decisions
have established this rule, that a foreign marriage, valid according to
the law of the place where celebrated, is good everywhere else. But
they have not e converso established that marriages of British subjects
not good according to the law of the place where celebrated, are uni-
versally, and under all possible circumstances, to be regarded as invalid
in England. It is, therefore, certainly to be advised that the safest
course is always to be married according to the law of the country,
for then no question can be stirred. But if this cannot be done on
account of legal or religious difficulties, the law of this country does
not say that its subjects shall not marry abroad." s This decision is
founded on the principle that marriage is a highly-favoured contract,
both natural and civil, and juris gentium, and therefore the comity of
nations will in cases of conflict of laws sustain it wherever they can do
so without violation of their own internal policy. As no country can
oblige others to adopt its marriage law, each country gives effect
to the lex loci of marriage so far as regards the validity of the con-
tract, leaving its subjects at liberty, under circumstances of moral
necessity, to enter into that contract according to their own law in a
foreign country.
The principles already stated that no one is allowed to import into
Ruding v. Smith, 2 Phil. Eccl. R. 286.
THE CONFLICT OF LAWS. 171
any country a law contrary to its public and social policy, shows why
the incidents or legal consequences of marriage are not regulated by
lex loci contractus, but in general by that of the domicil. Those con-
sequences are infinitely various in different countries, with regard both
to the personal rights and obligations of the conjugal relation, and
those which apply to property. And as marriage is not a mere private
contract, but a civil and religious institution of a very important nature,
the operation of the comitas gentium must be modified or restricted by
the internal policy of each country. Thus, though a marriage cele-
brated according to lex loci contractus is valid everywhere, it is not so
with the dissolution of marriage by divorce. For by the canon law,
marriage is indissoluble,* and so it is by the law of Roman Catholic
countries," and by the common law of England ; but the protestant
states of Europe, such as Holland, Prussia and Scotland, do not admit
marriage to be either a sacrament or indissoluble. 51 Each country
holds its own laws on this subject to be essential for the good order
and morality of society. Therefore, though the law of Scotland will
grant a divorce from an English marriage, even where the parties are
not domiciled in Scotland, the law of England will not admit a foreign
divorce to dissolve an English marriage in England/ The rule is,
that a divorce, regularly obtained according to the law of the country
where the marriage is celebrated and where the parties are domiciled,
will be held a valid dissolution of the marriage contract in every other
country. 2 But no country where the Roman Catholic Religion is the
religion of the state, could admit the validity of a divorce of its Roman
Catholic subjects under any circumstances ; because the indissolubility
of the vinculum of marriage is an essential part of the Public Law of
those countries, and expressly laid down by the Council of Trent. a
The general principle of the comity of nations regarding divorce a vin-
culo is, that it is inconvenient and injurious to the interests of society
that persons should be held married in one country and unmarried in
another ; but, on the other hand, each country has a right to maintain
the observance of those rules which it deems material to religion,
morality and the welfare of the community. These two conflicting
propositions lead to different results in different countries. We have
1 Decret. Gratian. Caus. 32, quaest. 7, c. 7 ; Concil. Trident, sess. 24, De Sacram.
Matrim. can. 7.
n Burge, Comment, vol. 1, p. 643 ; Story, Confl. ^ 209.
*,Burge, Comment, vol. 1, p. 648.
i Story, 217, 218, 221, 222; Warrender v.Warrender, 9 Bligh; S. C. 2 Clarke &
Fin. 488 ; Kent, Comment, vol. 2, lect. 27, p. 110, &c.
z Kent, Comment, vol. 2, lect. 27, pp. 107, 108; Story, 201.
a Concil. Trident, sess. 34, can. 7.
172 THE CONFLICT OP LAWS.
seen the principles of the English and Scotch law and that of Roman
Catholic countries. The American courts seem more liberal in extending
the comity by which they have decided questions between the laws of
the states composing their union. For in America, the law of the
place of the actual bond fide domicil of the parties gives jurisdiction to
the competent courts to decree a divorce for any cause allowed by the
local law, without any reference to the law of the original marriage, or
the place where the offence for which the divorce is allowed was com-
mitted. 5
The incidents of a foreign divorce are to be deduced from the law of
the place where it is decreed. Its effects on personal property depend
on that law, and in respect to immovable property the effects would
be regulated by the law of the place where it is situated, the lex loci rei
sites'
With regard to the effects of marriage on property, the general prin-
ciple obtains that in the absence of express contract, the law of the
matrimonial domicil governs movables. This arises from the prin-
ciples already laid down respecting movables. And immovable pro-
perty is governed, as to the effects of marriage, by the law rei sit(E, A If
there be an express contract regarding movables, valid by the law of
the place where it is entered into, it will be valid everywhere, except in
countries in which it is forbidden. 6
We come now to the Conflict of Laws regarding the jurisdiction of
courts and judicial remedies.
The doctrines already laid down regarding the rights of a sovereign
power within its territory, point out the rules of Public Law respecting
the competency of courts to hold jurisdiction over persons and things.
The general rule is given by Paulus extra territorium jus dicenti
impune non paretur { and the converse is implied, that the judge must
be obeyed within his territory. And the sovereign power has the
administration of justice within its territory, in all temporal causes,
exclusive of every foreign jurisdiction. 5 Therefore no sovereign has a
right to interfere in causes of his subjects in foreign countries, and give
them his protection, excepting in case of denial of justice, or evident
and palpable injustice, or manifest violation of rules and forms, or an
b Story, 230 a.
c Story, 230 ; Warrenderv. Warrender, 9 Bligh, 127 ; Curtis v. Button, 14 Ves. jun.
537, 541.
d Story, 186.
e Story, 184.
i L. 20, ff. De Jurisdic.
e Vattel, Droit des Gens, 1. 11, ch. 7, $ 84; Huberus, tit. 3, De Conflictu Leg.
reg. 1,2; Story, Conflict of Laws, 29.
THE CONFLICT OF LAWS. 173
odious distinction made to the prejudice of his subjects or of all
strangers. 11 It follows, that jurisdiction, to be rightfully exercised, must
be founded on the fact of the person being within the territory, or the
thing being within the territory. And every exercise of jurisdiction by
any court beyond its own territory is a mere nullity, and incapable of
binding persons or property so as to be effectual in any other tribunal.'
Another general rule is, that (actor sequitur forum rei) the plaintiff
must sue in a court having jurisdiction over the defendant, or having
jurisdiction over the thing which is the subject of the suit. k And the
forms of remedies, and the order of judicial proceedings, are to be
according to the law of the place where the action is instituted, without
regard to the domicil of the parties, the origin of the right, or the
place of the act. 1
Grotius observes, that the authority of the judge over foreigners is
not of the same force as that which he exercises over the subjects of
the state. But the great jurist explains his meaning, that, however
unjust a sentence may be, a native must submit, whereas a foreigner
can, in case of gross and palpable injustice, appeal to the protection of
his own sovereign." A state may, without violation of international
law, exclude all foreigners from its territories, though there may be
particular cases in which to exclude them would be cruel, and contrary
to the common duties of humanity. p Every state may therefore pre-
scribe (giving due notice) the conditions on which it will admit them; q
and in all cases they are admitted under the implied condition that
they will submit to the laws and jurisdiction of the country a duty,
indeed, which springs immediately from the very nature of dominion
and territorial sovereignty/ They are, therefore, bound to obey the
laws, and amenable to the courts of the country from the moment that
they enter it; 5 and, on the other hand, they are entitled to the same
h Vattel, ibi; Grotius, Droitde la G. 1. 3, ch.2, 5; Covarruvias, Op. torn. I, p. 492,
in cap. Peccatum (De reg. jur. in Sexto), par. 2, 9, n. 4.
1 Story, Conflict of Laws, 539.
k Story, 532 ; L. 3, Cod. Ubi in rem actio exerceri debeat ; 1. 2, Cod. De Jurisdic.
omn. Judic. ; 1 5, eod. Tit.
' Story, 558.
m L. 11, ff. De Just, et Jur.; Vinnius ad Inst. lib. 4, tit. 13, 5; ]. 6, ff. De ex-
ceptione rei judicatse.
n Grot. Droit de la G. 1. 3, ch. 2, 5.
Vattel, Droit des Gens, 1. 2, ch. 7, 94 ; ch. 8, 100.
P Pufend. Droit des Gens, 1. 3, ch. 3, 8.
1 Vattel, Droit des Gens, 1. 2, ch. 8, 100.
T Ibi, 100, 101.
Tbi, 102, 103 ; Pufend. Droit des Gens, 1. 3, ch. 3, 10, n. 1 ; 1. 3, ch.6, 2;
1.4, ch. 6, 14.
174 THE CONFLICT OF LAWS.
protection as the subjects of the state.' Thus the law of England holds
that a local temporary allegiance to the crown is due from an alien so
long as he continues within the king's dominion and protection." And
by the law of England, a foreigner is entitled to the same justice as a
natural-born subject/ In France, however, with a few exceptions, the
courts do not entertain jurisdiction of controversies between foreigners
respecting personal rights and interests. y
The obedience of foreigners to the laws and jurisdiction of the place
where they are is matter of secondary natural law, as appears from the
reasons and authorities given by Suarez. He argues, in the first place,
that municipal laws are made generally for a given territory, and must,
therefore, be binding on all within their provisions in that territory, so
long as they remain there. It is morally necessary for the good
government of the territory that the laws made for it should have that
authority; and so it is necessary that foreigners within the territory
should, for the sake of the peace and good morals of the place, con-
form to its laws during the time that they remain there. And as every
sovereign power has the authority necessary to preserve and protect
the commonwealth, it must have a right to make laws binding on all
within the territories under its government. 2 Consequently, a foreigner
cannot plead the laws of his own country as a reason for disobeying or
exempting himself from those of the country where he is. But there
are municipal laws which apply to subjects of the state exclusively,
and from these foreigners are exempt. Thus a foreigner in France
would not be liable to the military conscription. Sovereign princes are
everywhere exterritorial, or exempt from jurisdiction. 3 And ambas-
sadors and other diplomatic ministers or officers, and their retinue, are
exempt from the jurisdiction of a country where they are accredited or
employed. b
4 Vattel, Droit des Gens, 104.
* Calvin's case, 7 Rep. 6. So St. Alph. Liguori says, " Advena vere jit suhditus
superiorly loci, quamvts brevi ibi sit." And see the authorities cited there. Theolog.
Mor. lib. 1, tractat. 2, cap. 2, dubium 2, | 156.
* Pisani v. Lawson, 6 Bing. N. C 30; 8 Scott, 180; Duckworth v. Tucker, 2 Taunt.
37, n.
y Story, Conflict of Laws, 542.
1 Suarez, De Leg. lib. 3, cap. 33, 3, 4.
* Martens, Droit des Gens, liv. 5, 172; Wheaton, Hist, of the Law of Nations,
p. 237 239; Bynkershoek, De Foro Legatorum, cap. 3 ; The Duke of Brunswick v.
King of Hanover, 6 Beav. 88. But a foreign sovereign may sue here both at law and
in equity ; and if he sue, he submits himself to the jurisdiction. See the cases cited
by Lord Langdale in The Duke of Brunswick v. The King of Hanover, and L. 22, ff.
De judic. et ubi quis ; The King of the Two Sicilies v. Willcox, 1 Sim. N. S. 333.
b Vattel, Droit des Gens, liv. 4, ch. 7, 8, 9 ; Martens, liv. 7, ch, 5 ; Bynkershoek,
THE CONFLICT OF LAWS. 175
Having laid down these general doctrines regarding the jurisdiction
of sovereign powers within their respective territories, we must next
consider how far a judgment of a competent tribunal in one country
has effect in another.
The general principle of Public Law is, that when a judgment is
pronounced by a court having lawful jurisdiction over the cause, over
the thing, and over the parties (or at least over the defendant), other
nations ought to respect it. c The reasons of this proposition are as
follows. Civil society could not exist if every man were allowed to
interpret and apply the law in his own case ; and however skilfully
laws may be framed, they cannot comprehend clearly every case.
Therefore, disputes must arise touching their application to particular
cases; and it is frequently necessary to examine into a multitude of
circumstances where particular actions or omissions of individuals are
complained of, and alleged to be at variance with the law. d Con-
sequently the judicial power or jurisdiction, in the stricter sense of the
word, that is to say, the public power of deciding causes, civil and
criminal, 6 is an essential part of the supreme power of civil govern-
ment/ The judicial power is erected as a substitute for private war,
the avoiding and preventing of which is one of the chief objects of civil
society. And thus the right of individuals to enforce and administer
justice to themselves is utterly taken away, excepting in those cases
wherein, as Grotius says, the path of public justice is not open to
them. s It follows that this power or sovereign function is juris gen-
tium, and of secondary Natural Law, and essentially a subject for the
comity of nations, which, as we have seen, is grounded on the common
welfare of mankind. It may indeed be said with reason, that human
society could better exist without any enacted laws or definite customs
than without judicial power under some form. And so it is difficult to
conceive even natural human society as contradistinguished from the
civil state, without judicial power to decide qnestions arising among
men. h
De Foro Legatorum, c. 17 19; Bla. Com. vol. 1, ch. 7, p. 253256; Kent, Com.
vol. 1, lect. 2, pp. 38, 39 ; Wheaton, Hist, of the Law of Nations, pp. 237, 240, 244.
And see Taylor v. Best, now before the C. P., January, 1854.
c Story, Conflict of Laws, 585, 586.
d L. 10, ff. De Legib. ; Pufend. Droit des Gens, 1. 7, c. 4, 4.
e Voet ad Pand. 1. 2, tit. 1, De Jurisd. 1.
f Hugon. Donelli Comment, torn. 4, lib. 17, cap. 2; Pufend. ubi sup.; L. unic.
Cod. Ne quis in sua causa; 1. 13, ff. Quod metus causa; 1. 176, ff. De Reg. Jur.;
Fabri Comment, ad tit. Pand. De Reg. Jur. ad 1. 137.
e Lampredi, Jur. Publ. Univers. par. 3, cap. 11; Carmignani, Elem. Jur. Crim.
vol. 1, p. 214; Grot. Droit dela G. 1. 1, c. 3, 3.
h See my Commentaries on the Modern Civil Law, p. 278.
176 THE CONFLICT OF LAWS.
These reflections show that the principle of the comity of nations
regarding foreign laws extends to foreign judgments or judicial decrees
also. As for the degree of authority which that comity should give to
a foreign judgment, valid by the law of nations, the question depends
in a great degree on the nature of the law and the right on which that
judgment rests. Thus, where the matter in controversy is the right
and title to land or other immovable property, the judgment pro-
nounced in the forum rei sita is held conclusive in other countries.
This arises from the principles of international law already laid down
regarding immovable property.' Those principles also lead to the con-
clusion, that if movable property be situated within the jurisdiction of
a court of a given country, whatever that court decides regarding the
right and title to that property, or whatever disposition it makes
thereof, by sale or otherwise, is valid in any other country where the
same question regarding the same property comes for adjudication
between the same parties. 15 Judgments of this nature, deciding the
title to property or dominium, independently of any obligation of a par-
ticular person or persons, are called judgments in rem. [ The reason of
this general rule of international law is, that the court has the actual
jurisdiction and power over the thing itself, the title to which was in
dispute ; and the conclusiveness of the judgment follows as a conse-
quence, from the principle that each country has sovereign jurisdiction
over the things that are situated within its territories. These principles
are frequently applied in cases of proceedings in rem in foreign courts
of admiralty, in causes over which such courts have a rightful jurisdic-
tion, founded on the actual or constructive possession of the thing
itself, which is the subject-matter of the cause.
With respect to judgments in causes of marriage and divorce, the
principles already explained regarding the conflict of laws in such cases
will suffice. The first question is, whether the judgment was pro-
nounced by a competent tribunal in regard to persons within the juris-
diction? If so, such judgment is, as a general rule, valid everywhere."
But this rule is subject to exceptions, arising from the policy of each
country on those very peculiar subjects, and from the place where the
marriage was celebrated. Thus we have seen that the English courts
1 Story, 591.
k Ibi, 592.
1 See my Commentaries on the Modern Civil Law, p. 283 285 ; Inst. lib. 4, tit. 6,
1 ; lib. 3, tit. 19, 2 ; Story, Conflict of Laws, 530.
m Story, 592.
n Story, | 595 ; Roast v. Garvin, 1 Vea. 157.
Sinclair v. Sinclair, 1 Hagg. Consist. Rep. 297; Scrimshire v. Scrims/tire, 2 Hagg.
Consist. Rep. 397, 410.
THE CONFLICT OF LAWS. 177
will not admit a foreign divorce a vinculo to dissolve an English
marriage. And though a sentence of nullity of marriage, pronounced
in the country where it was solemnized, would have great authority in
England, such a sentence in a third country would not be universally
binding.?
We come now to judgments in personam, that is to say, in causes to
enforce rights and obligations which do not arise from dominium, or
proprietorship^ In these causes the authority of the Court arises
from jurisdiction over the person, either because he is actually within
the territory of the Court, or because the Court has the power of com-
pelling him to obey, or at least of giving effect to legal process or
decrees for that purpose.
When a judgment of this nature, pronounced by a Court of compe-
tent jurisdiction, and having jurisdiction over the person and subject-
matter in the cause, is pleaded in another country by way of exceptio
reijudicatce, it ought, as a general rule, to be held conclusive/ This
rule is grounded on the reason of the exceptio rei judicata itself, that
some limit should be put to litigation, and conflicting decisions regard-
ing the same subject-matter avoided. 3 Therefore, it is for the common
benefit of society that a cause of this sort finally decided in one
country should be held a bar to the same suit being again commenced
in another.' The law of England, however, does not, it seems, act upon
this doctrine to its full extent."
Somewhat different principles apply to cases where a judgment in
personam is sought to be enforced in the Courts of another country
than that where such judgment was pronounced. The general doc-
trine is, that no sovereign is bound, jure gentium, to enforce any
foreign judgment within his dominions ; and therefore, if such a judg-
ment be sought to be enforced there, he is entitled to examine into the
merits." In England a foreign judgment has been held by Lord
Mansfield and other judges to be prima facie evidence to sustain a judg-
ment, and presumed to be right until the contrary is established ; y but
Mr. Story says, that the present inclination of the English Courts is
P Lord Stowell, ibi.
* See my Commentaries on the Modern Civil Law, p. 283 285.
r Kent, Comment, vol. 2, lect. 27, p. 120.
6 L. 6, ff. De except, rei judic.
1 Phillips v. Hunter, 2 H. Bla. 410; Erskine, Tnstif. b. 4, tit. 3, $4; Vattel, Droit
des Gens, 1. 2, ch. 7, 84, 85.
* Story, $599.
* Story, 598.
* Story, 603, and the cases there cited.
N
178 THE CONFLICT OF LAWS.
to sustain the conclusiveness of foreign judgments, although there is
considerable diversity of opinion among the judges. 2
The principles of Public Law sustain the opinion of those who hold
that a foreign judgment ought not, as a general rule, to be examined,
even when it is sought to be enforced by proceedings in Courts of a
different country. It is highly convenient that each country should
give credit and effect to the judicial acts of other countries, for the
purpose of facilitating the administration of justice, on which the
common peace, good order, and welfare of human society in general,
very much depend. And this rule is calculated to obviate differences
and misunderstandings between nations. In truth the administration
of justice is a matter not merely municipal, but of universal concern,
and even necessity, since without it even mere natural society could
scarcely exist; and an enlarged view of civil society shows, as we
have seen, that the division of mankind into nations and states is a
subordinate institution, arising from political, administrative, and
physical causes, and therefore it does not supersede any of the prin-
ciples of universal civil society. Consequently, the jurisdiction of all
countries ought, as far as possible, to operate harmoniously for one
end the administration of justice in that universal society, which
requires that the Courts of different countries should not defeat and
discountenance, but rather assist each other.
These important doctrines must, however, be understood with the
qualification already adverted to, that each country is the judge of
what its internal interests require, and therefore entitled to reject the
decisions of foreign Courts when contrary to its own policy, and the
welfare of its own citizens.
1 Story, 604606.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 179
CHAPTER XVII.
OF THE CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. EX-
TRADITION. REFUGEES. GENERAL REFLECTIONS ON THE CONFLICT
OF LAWS.
BY primary natural law alone, without regard to the institution of
civil society, there is, as Grotius says, a right of punishing violations
of the law, though that law does not determine in what person the
right is vested. a This, indeed, is a consequence of the right of self-
defence so broadly laid down by Florentinus in the Pandects. 5 For
the same natural law which gives the precepts honeste vivere, alterum
non Icedere, suum cuique tribueref authorizes every man to defend his
own rights against those who violate them j and on the same principle
he is justified in taking the necessary measures to prevent or discou-
rage future injuries to himself or others by punishing the wrong-doer.
And from this right of persons having no common superior to protect
themselves, not only by defence against attacks, but by punishing
wrong-doers, the right of war is in part derived. d In the civil state,
and under municipal laws, the right of punishment assumes a different
form. A penalty or punishment under Municipal Law is neatly defined
by Voet to be Delicti coercitio, adeoque rnalum passionis propter
malum actionis. It is more fully defined by Boehmerus to be an evil
suffered, which is inflicted by the authority of a superior, on account
of an offence, and for the common benefit of the citizens. 6 And
Grotius holds the same doctrine/ Punishment is inflicted by the
authority of a superior, because, under Municipal Law, the right of
punishing offences passes from individuals to the State. g Thus Paulus
says Non est singulis concedendum quod per magistratum publice fieri
potest. h
Grot. Droit de la G. liv. 2, c. 20, 31 ; Pufend. Droit des Gens, liv. 8, ch. 3,
4, note 3, Barbeyrac.
b L. 3, ff. De Just, et Jur. And see 1. 45, | 4, ff. Ad Leg. Aquil. ; 1. 8, | 2, ff.
Quod Metus Causa.
c L. 10, 1, De Just, et Jur.
d Grotius, Droit de la G. 1. 2, ch. 20, ], 2, 3, 37.
e Voet ad Pand. tit. De Paenis, 1 ; Boehmer. Elem. Jur. Crim. 2, c. 1. And
see Mathasus de Crimin. tit. 8, 1, p. 754.
f Grot, ubi sup. 1, 4, 9.
f Pufend. Droit des Gens, liv. 8, ch. 3, 4, note 3 (Barbeyrac) ; liv. 8, ch. 6, 8.
11 L. 156, ff. de Reg. Jur. ; 1. 13, ff. Quod Metus Causa; Gravina, Histor. de Ort. et
Progress. Jur. Civ. ch. 91.
N 2
180 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
We may conclude from these principles and authorities, that punish-
ments are of natural law and Juris gentium, though the form in which
the right of punishing offences exists in civil society, is given by
municipal law. This position will afford us a key to the jurisprudence
of the conflict of laws regarding crimes and offences. That conflict
arises in two ways, that is to say, 1st. When an offence is committed
in one country against the laws of another; and 2ndly. When a
person has committed an offence and been convicted and sentenced in
one country, and has withdrawn himself to or is situated in another.
I do not mention the case of a foreigner violating the laws of the
country where he is, because, as we have seen, a foreigner becomes
subject to the laws of the country as the citizens of that country are,
and therefore no conflict arises. 1
We have seen that the prohibitory laws of a country may follow its
subjects wherever they go, so that acts done by them in foreign parts
are affected by those laws. k And this principle extends as well to
criminal as to civil laws. 1 Thus, by the law of England, treasons
committed by subjects of the British crown, out of the realm, may
be tried in the Queen's Bench, in any county where the court sits, or
under a special commission of oyer and terminer, in any county within
the realm, as the crown shall direct." 1 This is not contrary to inter-
national law, because though a foreigner becomes subject to the laws
and jurisdiction of the country where he is, so long as he remains
there, yet this position must be understood as not affecting the maxim
nemo potest exuere patriam. Therefore, by the law of England, if the
crown send a writ to any subject when abroad, commanding his
return, and the subject disobey, it is a high contempt of the royal pre-
rogative, for which the offender's lands shall be seized till he return,
and then he is liable to fine and imprisonment. 11 There are, indeed,
laws of his own country which a man is not bound by while he
remains abroad ; and this is one reason why foreigners are generally
subject to the laws of the country where they are sojourning. p But
though the jurisdiction of every sovereign state is exclusive, within its
own territories, of every other temporal jurisdiction, yet that principle
does not require any state to allow its subjects to violate its laws by
' And see Merlin, Repertoire, art. Souvrainetc, 4, vol. 16, p. 397.
k Sussex Peerage case, 11 Clarke & Fin.
1 Suarez, De Legib. lib. 3, cap. 32.
Stat. 26 Hen. VIII. c. 13 ; 35 Hen. VIII. c. 2 ; 5 & 6 Edw. VI. c. 11.
D Bla. Com. b. 1, c. 7, p. 265, 266 ; Hawkins, Pleas of the Crown, 22.
Vattel, Droit des Gens, liv. 2, ch. 8, 107109.
P St. Alphons. Lig. Theolog. Moral, lib. 1, tract. 2, cap. 2, dub. 2, 156, and the
authorities cited there.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 181
going abroad, and there committing the offence, though it be no
offence by the laws of the country where the act was done. Every
state may, therefore, absolutely forbid its subjects to do any given
thing wherever they may be, provided it do not enforce that prohibition
by any act of jurisdiction exercised out of its own territories, and
within those of another state. And the subject so offending may be
compelled to return home, or punished on his contumaciously remain-
ing abroad, by process against his property situated in his own
country. q
These principles will assist us to understand the application of
penal laws to persons who are subjects of more than one country
at the same time. It is for the municipal law of each country to
determine whether and how far its subjects shall be permitted to
throw off their allegiance, and become citizens or subjects of other
states. Thus, by the English Law, a natural-born subject owes an
allegiance intrinsic and perpetual, which cannot be divested by any
act of his own/ And Chancellor Kent, after a full discussion of the
subject, holds that the same rule prevails in the United States of
America. 3 Thus a natural-born subject of England or America, being
incapable of throwing off his allegiance, is always amenable for cri-
minal acts against the law of his own country. It follows, that if any
foreign state naturalize him, he receives such naturalization subject to
his prior and therefore superior obligation to his own country. Hence
arises a conflict of duties, which may, as Lord Hale observes, entangle
him in difficulties.* " If," says Chancellor Kent, " there should be a
war between his parent state and the one to which he has attached
himself, he must not arm himself against his parent state; and if he
be recalled by his native government, he must return or incur the
pains and penalties of a contempt. Under these disabilities, all the
civilized nations of Europe adopt (each according to its own laws)
the natural-born subjects of other countries." 11 It follows that neither
country can complain, if the other duly enforces its rights over such
a person. To prevent these difficulties, it is most convenient not to
naturalize strangers, except so far as they can throw off their obliga-
tions to their parent state. And as there is nothing in Public Law
against the power of a subject to emigrate and throw oft' his native
i Voet ad Pand. lib. 1, tit. 4, par. 2, De Statutis, 9.
r Story's case, Dyer, 298 b, 300 b ; Bla. Com. b. 1, pp. 370, 371 ; 1 Hale, Pleas of
the Crown, 68 ; Foster, Crown Law, 59.
Kent, Commen. vol. 2, lect. 25, p. 48 or 49.
1 1 Hale, Pleas of the Crown, 68.
Kent, ubi sup. p. 50.
182 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
country altogether," this is a matter regulated by the municipal laws
of each state. y Thus, by the French law, a French subject loses his
quality of a Frenchman by being naturalized in another country, 2 for
the French law holds that no one can have two countries. 3
The possession of property may make a person liable to the criminal
law of a foreign country, even though he be not within its territories.
Every state is at liberty to grant or refuse to foreigners the privilege
of holding land or other immovable property in its dominions. If it
do grant that privilege, the property of such strangers is subject to the
laws and jurisdiction and taxes of the country. For the jurisdiction
of the sovereign power extends to the whole territory, and it would be
impossible to except any portions because they are held by foreigners.
And as the sovereign may refuse to foreigners the faculty of possess-
ing lands within the state, so that faculty may be granted subject to
express or implied conditions. 15 It follows that the immovable pro-
perty of foreigners may be liable to forfeiture, or other process of law,
for offences against the law of the country where it is situated, in the
same manner as it would be if possessed by subjects of that country.
There is in this no violation of the sovereign rights of the state to
which such foreigner belongs; for that state may forbid its subjects to
hold land elsewhere, and if it permit them to do so, that permission
must be subject to the lex loci rei sites.
We have now to consider whether a crime committed in one state,
against the law of that state, may be punished on demand in another
state where the offender is afterwards found.
The English authorities decide this question in the negative, holding
the general rule that the penal laws of one country cannot be taken
notice of in another, for penal laws of foreign countries are strictly
local. And the common law considers crimes as altogether local, and
cognizable and punishable exclusively in the country where they are
committed,* 1 though we have seen an important exception to this posi-
tion, introduced by statute regarding treasons committed in foreign
countries by subjects of the British Crown. The same rule prevails in
the United States of America. 8 And so far as crimes and offences are
* Grotius, Dr. de la G. 1. 2, ch. 5, 24; Pufend. Droit des Gens, 1. 8, ch. 2, 2, 3 ;
Vattel, Droit des Gens, liv. 1, ch. 19, 220, 223, 225.
J Vattel, ubi sup. 222.
* Cod. Napol. art. 17.
a Sirey, t. 27, i. 53.
b Vattel, Droit des Gens, liv. 1, ch. 8, 114.
<= Ogden v. Folliott, 3 T. R. 733, 734 ; Wolf v. Oxholm, 6 M. & S. 99.
d Story, Conflict of Laws, 620.
* Ibi, ^621.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 183
looked upon simply as violations of Municipal Law, it is in accordance
with the principles of Public Law. For we have seen that the direct
object of the administration of criminal justice by the civil superior is
the benefit of the citizens of the state;' and punishments are designed
for the public security of the community, as a means of municipal go-
vernment. g And so Pardessus says, that the general practice of na-
tions is to leave the prosecution and punishment of offences to the
tribunals of the country where they are committed. 11 Merlin enters
rather fully into arguments to establish this position. He supposes
the case of an Englishman tried before a French court for an offence
committed in England. He argues that the prisoner himself could
have no confidence that justice would be administered in such a case;
that the court would be unqualified to decide, and the evidence diffi-
cult to obtain, and lastly, that the example, which is the chief object
of punishments, would have little beneficial effect, because the offence
was committed in another land, and against other laws. He cites, in
support of his opinion, the authority of Covarruvias, Farinacius, Baldus,
Julius Clarus, and many others. 1
This seems to be the sounder doctrine, though Paul Voet and Her-
tius contend that crimes committed in one state may, if the criminal
be found in another state, be upon demand punished there. k No doubt
if this last opinion were acted upon, the conclusion of Story is correct,
that the rule of Bartolus points out that the law of the place where the
offence was committed should prevail in the trial of the offender.
Delicta pnniuntur juxta mores loci commissi delicti. 1
The principles above laid down will assist us to determine what
ought, by the comity of nations, to be the effect of foreign judgments
in criminal cases. In the first place, a country which allows prosecu-
tion before its tribunals for an offence committed abroad, against the
law of the foreign country, ought to admit, as conclusive, a judgment
of a competent tribunal in that country for or against the defendant.
This is evident, because the law of the foreign country must be the
rule in such case, and by that law, the person accused has already re-
ceived judgment, and that judgment must be conclusive, so far as it
would be so by the law of the place where the offence was committed,
and where it was in the first instance cognizable.
But in a country which does not enforce the criminal laws of other
f Boehmeri Elem. Jur. Crim. 2, c. 1.
s Cremani, De Jur. Crim. lib. 1, pars 2, cap. 4, $ 1, p. 124.
h Pardessus, Droit Commercial, 5, art. 1467.
' Merlin, Repertoire, article Souvrainete, vol. 16, pp. 399, 400.
k Story, Conflict of Laws, 625 ; P. Voet, De Statutis, 4, c. 2, 26.
1 Ibi.
184 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
states, it would be difficult to maintain that foreign criminal judgments
ought, by comity, to be executed or admitted as producing legal effects,
beyond the territories of the foreign state, or the civil status and capa-
city of the person. With this limitation the opinion of Hertius and
Boullenois, cited by Story, may be received, that the state or condition
of a person, resulting from a judgment pronouncing civil death or legal
infamy, or any other incapacity, extends everywhere." 1 This is so in a
country which gives effect to foreign criminal laws ; but the sounder
general rule is that laid down by Lord Loughborough, Lord Ellen-
borough and Lord Brougham, that a criminal judgment does not affect
the legal status or capacity of any one out of the territory of the country
to which the court belongs. 11 The reasons of Public Law on which
this conclusion is grounded require full consideration. They will also
show why as a general rule the criminal laws and judgments of one
country are not carried into effect in another.
The general intercourse and affairs of mankind do not require that
criminal laws and judgments should have an equally extensive effect
with civil laws and decisions of courts. For it frequently happens
that a contract made in one country cannot fulfil the intentions of the
parties, nor answer the purpose for which the transaction is intended,
unless it take effect and be performed in another country. Without
this extension of legal rights and obligations from one territory to
another, the intercourse of mankind would be greatly impeded. But
it is otherwise with regard to criminal matters. For if sufficient means
be taken to provide that offences be tried and punished in the country
where, or against the laws of which, they are committed, the objects
of criminal laws will be attained. Criminal or penal law has a relation
both to private and to Public Law, but it is collateral to the Civil,
Public and Private Law in every state, and intended for the protection
of rights, and the restraint of persons who violate the order of society
by breaking the laws which regulate it. The right of punishing is in-
herent in the sovereign civil power, because it is necessary for the end
of civil society ;P and under this aspect it is part of the Public Law of
each state. These reflections show that in criminal law, the municipal
spirit predominates. And thus we have seen that the power of pu-
nishing, as it is exercised in the world, belongs not to natural, but to
. civil society, which is municipal, and not universal, because it involves
the institution of civil societies and the division of mankind into na-
m Story, ^ 620.
Folliott v. Ogden, 1 H. Bla.; Wolff v. Oxholm, 6 M. & S. 99; Warrender v.
Warrender, 9 Bligh, 119, 120 ; Ogden v. Folliott, 3 T. R. 733, 734.
See my Readings, 1850, p. 139.
P Zallinger, Inst. Jur. Eccles. lib. 5, Decretal, p. 11, ^ 4.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 185
tions and states, having separate governments. Therefore Montesquieu
distinguishes the spirit of criminal law in different countries according
to the form of the government. 11 And it is clear that an act prejudicial
to society in one country, and therefore punishable there, may be far
less so, or indeed harmless, in another. These observations suffice to
show why it is not the duty of any state to enforce or carry into effect
the criminal law and decisions of a foreign state.
The question remains to be considered, whether a nation ought
to surrender up fugitives from justice who seek in its territories an
asylum from punishment, and thus remit them to the proper jurisdic-
tion.
One general reflection applies to this important subject. Though the
municipal spirit has so great a part in criminal laws, yet they must
(like civil laws) be considered under two aspects, first, as the laws of
a particular country, and secondly, as part of the general system of
laws which govern human society as a whole. And in one sense, the
celebrated law of Gajus Omnes populi r applies to criminal laws, for
some rules of criminal law are, or ought to be, common to all mankind,
because they are immutable. Such are the laws which forbid acts
contrary to natural law, either primary or secondary, though under
different penalties more or less adapted to the circumstances of the
particular place.* And indeed we have seen that the very power of
punishing is derived from the principle of natural law establishing the
right of defence against injuries, as laid down by Florentinus.* And
as all laws are consequences, direct or remote, of the two primary
laws, it follows, that the penalties or punishments by which obedience
to them is procured, and violations of their provisions prevented or
discouraged, must be looked upon as one means whereby the govern-
ment of the world is maintained, and the two primary laws are .put in
execution. Thus Papinian and Modestinus describe municipal law,
as not merely giving a rule of conduct, but also restraining and pu-
nishing offences." Such is the relation of criminal law to the law of
nature, or immutable law, and to the general order of society con-
structed both on immutable and on arbitrary laws. These doctrines
lead to the conclusion that, in general, a nation should not lend itself
"> Montesquieu, Esprit des Loix, lib. 3, ch. 5.
* L. 9, ff. De Just, et Jur.
* So killing and wounding, and other injuries to persons, are offences against primary
natural law. L. 10, ^ 1, ff. De Just, et Jur. And theft is against secondary natural
law. L. 1, 3, ff. De Furtis.
1 L. 3, ff. De Just, et Jur.
B L. 1, 3, ff. De Legibus.
186 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
to defeat the criminal laws of another state by screening criminals from
punishment.
Humanity prescribes that an asylum should be granted to foreigners
who, having committed no crime, driven out of their own country, seek
a retreat elsewhere, provided they obey the laws of the country which
receives them, and do nothing that can cause any disturbance." But
the greater number of moralists hold that each state has a right to
judge whether or no it be prudent or expedient to permit foreigners
to enter its territories, who are not driven there by necessity, or by
some cause which entitles them to compassion/ And though, as Pu-
fendorf observes, it would be inhuman to refuse hospitality to a small
number of strangers exiled from their own country for no crime/ 5 it is
clear that every state may, without incurring the charge of cruelty,
close its frontiers against all who have committed offences elsewhere,
and who fly from trial or from punishment. And this course is pru-
dent and politic with reference both to the foreign relations and the
internal order of the country.
Grotius argues, that though the establishment of civil societies gave
to the government of each state the right of punishing or not punishing,
as might be most convenient, the offences of its subjects against the
laws of the community of which they are members, yet that institution
did not vest in such governments so absolute and unlimited a discre-
tion regarding crimes which in some measure affect human society in
general. For other states have a right to prosecute such crimes, on
the same principle that the laws of a particular state give to all private
individuals the right of prosecuting in certain cases. 3 And a fortiori,
foreign states have this right when the crimes in question are offences
especially against themselves, and which they are entitled to punish for
the maintenance of their safety or their honour. Grotius concludes that
a state having within its territories a foreign offender ought not to
throw any obstacle in the way of a foreign government which has a right
to punish him. b He adds that a state does not ordinarily allow any
foreign power to use armed force within its territories, a practice which
would be subject to serious inconveniences. Therefore a state in whose
country there is an offender convicted by a foreign court ought either
to punish him itself, or to deliver him up on demand to the other state
* Grotius, Droit de la Guerre, 1. 2, ch. 2, 16 ; Pufend. Droit des Gens, liv. 3, ch. 3,
10.
y Pufend. Droit des Gens, 1. 3, ch. 3, 9 ; Vattel, Droit des Gens, liv. 2, ch. 7, 94.
* Pufend. ibi, ^ 10.
* Grot. Droit de la Guerre, 1.2, c. 21, 3 ; Pand. lib. 47, tit. 23.
b Grot. ibi.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 187
to whose jurisdiction he is amenable. Grotius deduces his opinion
from the doctrine, that a civil society, as any other body politic, may
become responsible for the act of an individual/ 1 on the principle that
any one cognizant of a crime and who could have prevented it, and
ought to have prevented it, and does not do so, is himself guilty." And
he argues that as this doctrine is of natural law, it is applicable to
the liability of a state for the acts of its subjects. And that in like
manner a state is also liable if it afford a retreat to an offender and so
prevent his being punished/ Every state is bound to protect its sub-
jects against injury; and whoever injures them, offends against their
country, which is bound to punish the offender, and oblige him, if pos-
sible, to compensate the injured man. g On the other hand, every stale
is obliged not to permit its subjects to injure those of foreign coun-
tries. 11 But a state is not responsible for the act of its subject unless
it in some way approve or ratify that act, in which case it becomes
liable. Therefore if the offender return home, justice should be de-
manded from his sovereign, who is bound, if possible, to repair the
damage committed or to punish him, or else to deliver him up to the
injured state. 1 And a sovereign who refuses to make compensation
for the injury done by his subject, or to punish the offender, or to
deliver him up, becomes in some manner an accomplice to the injury,
and is responsible for it. k Vattel judiciously adds, that a nation is also
responsible for the offences of its members when its customs, and the
principles of its government, accustom and allow its subjects to indulge
in common pillage and piracy, as was the case with the Usbecks and
the Barbary Powers. 1
These doctrines have a bearing on the law of extradition of foreign
criminals. The arguments of Grotius, and the reflections which I have
made above on the way in which the jurisdictions of separate states
concur for the general government of human society, and are thus part
of the scheme by which the world is governed, show that his position
regarding extradition is generally the correct rule of Public Law. But
it is liable to some modifications, which we will now consider.
The arguments of Grotius chiefly apply to an offence committed by
a subject of one state against another state, or its subjects, in which
c Grot, ibi, 4. And see note 1 of Barbeyrac.
d Ibi, 2.
e Ibi, num. 2. And see the authorities cited.
' Ibi, 3.
e Vattel, Droit des Gens, liv. 2, ch. 6, 71.
h Ibi, | 72 ; Blackst. Com. b. 4, ch. 5, p. 67.
1 Vattel, ibi, 7375.
k Ibi, 76.
1 Ibi, 77; Burlamaqui, Droit des Gens, edit. Dupin, torn. 4, p. 448, part 3, ch. 2,
3,8.
188 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
case he shows that by screening the offender, and refusing redress,
the whole body politic may become responsible for the act of one of
its members. But with regard to the extradition of foreign convicted
criminals by a state in whose dominions they have taken refuge,
Grotius does not carry his argument so far, though he says that the
offender ought to be delivered up or punished.
The duty of delivering up such criminals is not in general one which
can be enforced by a declaration of war. 1 " It is not a common and
indispensable obligation, except by virtue of some treaty, or where the
refugee is engaged within the territory in which he has found a refuge
in some hostile design against the country from which he escaped."
For actions punishable in one country may be innocent, or even
praiseworthy, by the laws of another, and we have seen that each
state may judge for itself what foreign laws it will act upon or reject
within its territories. And the laws of evidence and criminal proce-
dure in different countries vary greatly, so that a trial and conviction
perfectly conclusive and satisfactory in the country where the Court
sat, may be held entirely the contrary in another. Therefore, admit-
ting the right of demanding extradition, it would be impossible to
define, practically, the limits of that right, except by treaty. Kent
holds that it is the duty of the government to surrender fugitives upon
demand of a foreign state, after the civil magistrate shall have ascer-
tained the existence of reasonable grounds for the charge, and suffi-
cient to put the accused on his trial. But he adds that the difficulty,
in the absence of positive agreement, consists in drawing the line
between the class of offences to which the usage of nations does, and
to which it does not, apply ; inasmuch as it is understood, in practice,
to apply only to crimes of great atrocity, or deeply affecting the
public safety. We may conclude that in general the extradition of
offenders rests, not on strict right, but on the comity of nations,
excepting where it is secured by treaty. p
Cases may, however, occur in which the duty of delivering up or
punishing, or at least of not sheltering a foreign criminal, may be
absolutely and strictly binding. Thus a state giving hospitality and
protection to a foreigner who has attempted the life of a foreign sove-
reign, or of any other person sacred by Public Law, might be justly
called to account by the injured nation. To a case of this description
the opinion of Kent regarding atrocious crimes would apply. So we
m Pufend. Droit des Gens, liv. 8, ch. 6, 12 ; P. Voet, De Statutis, 2, c. 1, n. 6.
n Pufend. ibi.
Kent, Comment, vol. 1, lect. 2, p. 37.
P See the authorities cited by Story, Conflict of Laws, 628. On the subject of extra-
dition, see Hansard, Parl. Deb. 1852, vol. 122, 3rd series, col. 192, &c., 498, &c., 561,
1278.
CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES. 189
have seen that Pufendorf, while he holds that the right of requiring
extradition of foreign criminals is not based on indispensable obliga-
tion, excepts the case of refugees who abuse the hospitality accorded
to them, by hostile designs against the country which they have left.
No country can give an asylum for conspiracy, or the preparation of
hostilities, against another state, without violating the law of nations.i
The reason of this is easily perceived. The establishment of civil
societies has deprived individuals of the right of war, and vested it in
sovereign powers alone : r and individuals or societies not sovereign
can, where civil society exists, use force in those cases only in which
" the public authority cannot protect them. 3 Without this restriction,
peace, which is one of the chief ends of civil society, could not be
maintained ; and as Natural Law allows an appeal to violent means
only where force is necessary for the defence and the maintenance of
rights, 1 it follows that wherever civil society has rendered the use of
force unnecessary for those purposes, it is also unlawful. Therefore
any one not invested with sovereignty who commits or designs and
prepares any act of hostility against any state, is guilty of an offence
against the Law of Nations, unless he be authorized to do so by a
sovereign power." Now it follows from the axiom that the authority
of each sovereign power is exclusive, within its territories, of every
other temporal sovereignty, that no state can authorize any act of
hostility, or the preparation of any such act, against a third party, in
the territories of an independent state, without the permission of the
latter. And on the other hand, a government permitting, even by
neglect, a breach of the Law of Nations to be committed within its
territories, is itself liable for the offence, because a body politic is
responsible for any act of individuals which it ought to prevent, and
might have prevented. 1 And a state is, prima facie, responsible for
whatever is done within its jurisdiction, for that jurisdiction is pre-
sumed to be capable of preventing or punishing offences there. This
indeed is necessary for the maintenance of the peace of the world, in
which all states ought to concur. These arguments apply with pecu-
liar force to the case of refugees who escape from the violated laws of
their own country, and conspire against it in that which has given
<> See the opinions of Lord Aberdeen and Lord Lyndhurst, in the House of Lords,
Hansard, Parl. Deb. vol. 115, col. 628, 3rd series, 1851.
r Vattel, Droit des Gens, liv. 3, ch. 1, 4 ; Pufend. liv. 8, ch. 6, 8.
Ibi, 1. 156, ff. De Reg. Jur. ; 1. 13, ff. Quod Metus Causa; Gravina, Histor. de
Ortu et Progress. Jur. Civ. c. 91.
' Vattel, ubi sup.
u L. 24, ff. De Captiv. et Postlimin. ; 1. 168, ff. De Verbor. Signif.
x Grotius, Droit de la Guerre, liv. 2, ch. 2 1 , 2 ; Decree of Gratian, caus. 23, quaest. 3
can. 11 ; Pufend. Droit des Gens, liv. 1, ch. 5, ult. ; 1. 50, ff. De Reg. Jur.
190 CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.
them hospitality. For, by the comity of nations, an asylum would be
denied to them; and therefore they are peculiarly bound to commit no
abuse of the hospitality given as a matter of humanity, which indeed
demands that favour only for persons driven from their own country
without having broken its laws. y
With regard to political offenders, that part of the comity of nations
which we have been discussing presents peculiar difficulties. On the
one hand it is for the common peace of the world that offences against
the security of existing governments should be prevented or punished,
and revolutions repressed ; while on the other, the policy and opinions
of nations vary so greatly regarding civil government and administra-
tion, that a man may be pursued as a traitor in one country, and wel-
comed as a patriot or a loyal subject in another. Each state, there-
fore, deals with these cases according to its own policy, and with
reference to its own internal constitution and security. Thus the
United States of America could scarcely reject an exiled republican ;
and Austria would receive with honour a partizan of the elder branch
of the house of Bourbon. The principle of England is to close her
ports to no political refugee. The dethroned monarch, the usurper in
misfortune, and the unsuccessful demagogue, nay, even the fanatical
enemy of all authority, alike find peace and safety on our shores. The
present condition of Europe, as well as recent experience, seem to
preclude foreign governments from complaining of a common sanc-
tuary, which the uncertainty of political events renders by no means
matter of indifference to the public men of all countries, none of whom
can be sure that they may not, at some time or other, rejoice to claim
its protection. Whatever general reasons exist against sanctuaries or
asylums for offenders, may, to some extent, be urged against the rejec-
tion of the comity of nations respecting the extradition of foreign
offenders. The same principles are applicable to both cases. In
both the impunity of crime is procured, and the efficacy of laws
weakened. Treaties for the extradition or punishment of foreign
criminals are therefore highly favourable to good order and civili-
zation.
Kent informs us, that the European nations, in early periods of mo-
dern history, made provision, by treaty, for the mutual surrender of
criminals seeking refuge from justice. Treaties of this kind were
made between England and Scotland in 1 174, and England and France
in 1308, and France and Savoy in 1385, and the last treaty made
special provisions for the surrender of criminals, though they should
happen to be subjects of the state to which they had fled. One treaty
between Great Britain and the United States, concluded in 1795, con-
y Pufend. Droit des Gens, liv. 3, ch. 3, 10.
GENERAL REFLECTIONS ON THE CONFLICT OF LAWS. 191
tained an agreement for the mutual surrender of persons charged with
murder or forgery. That treaty expired, on this point, after twelve
years. The legislature of the kingdom of Belgium, by a law of the
1st of October, 1833, authorized the surrender of the fugitives from
foreign countries upon the charge of murder, rape, arson, counterfeit-
ing the current coin, or forging public bank paper, perjury, robbery,
theft, peculation by trustees, and fraudulent bankrupts, but with a
proviso that the law of foreign countries be reciprocal in the case, and
that the judgment or judicial accusation be duly authenticated, and
the demand be made within the time of limitation prescribed by the
Belgian Law. 2
We have now examined the whole range of the Conflict of Laws in
its public aspect, that is to say, not so much affording rules for the
decision of questions of private right, as showing the way in which the
municipal laws of different countries operate in the government of
society where they come in contact with each other. Some general
reflections are now required.
The investigation of the nature and spirit of laws led us to see the
plan of society on the foundation of the two primary laws, and the
relation which the state of man in this life has to the exercise of those
laws. We also examined the two sorts of engagements by which God
forms the order of society, and unites mankind together therein.*
And thus it was shown that the whole scheme and system of human
society and government is constructed of laws, and obligations arising
from laws. If we analyze human society, commencing with its first
element, the family, and then proceeding to the state or nation (civitas)
and then the world or mankind in general, we shall find at each step
difficulty and danger increase, and they are greatest at the last. b St.
Augustine speaks of the diversity of language among men, and the
separation of nations, as the great obstacles to the peace of mankind ;
and he observes, that when several nations are subjugated by a more
powerful one, that union frequently produces civil wars and seditions
instead of peace. Now the laws of which the system of human so-
ciety and government is constructed are, for practical purposes, muni-
cipal laws either in substance or in form. For however ready men
may be to acknowledge the intrinsic authority of natural or immutable
laws, yet, for the most part, the form in which those laws are obeyed
1 Kent, Comment, vol. 1, lect. 2, pp. 37, 38. And see stat. 6 & 7 Viet. c. 75,
regarding France ; and 6 & 7 Viet. c. 76, regarding America ; and stat. 8 & 9 Viet. c.
120, for facilitating the execution of treaties with France and America for the appre-
hension of certain offenders.
Domat, Loix Civiles, Traite des Loix, ch. 2.
b Div. August. De Civ. Dei, lib. 19, cap. 7.
c lbi.
192 GENERAL REFLECTIONS ON THE CONFLICT OF LAWS.
or enforced is that of municipal laws ; and obedience to them is
secured by means of the sovereign power in each state or nation,
through the medium of divers magistrates and officers. And the other
class mutable or arbitrary laws (those alluded to in the Pandects by
Gajus, as peculiar to each people)* 1 are, in substance as well as form,
municipal, deriving their authority from the civil power. Those mu-
cipal laws of both kinds constitute in each country the basis of the
social and civil polity on which the peace of the world depends,
although that polity in its essential parts is of natural law. But muni-
cipal laws, considered as such, do not extend beyond the territorial
jurisdiction of the state to which they belong. And here we perceive
a difficulty in the system of human polity considered as a whole em-
bracing all mankind. For not only states and those who represent
their sovereignty are not subject to any common legislative or judicial
authority on earth, but, as we have seen, the laws of different countries
frequently clash in such a way that either certain matters must be
regulated by no law at all, or the law of one country must give way to
that of another. Before civilization had developed a mode of dimi-
nishing, if not of solving these difficulties, they caused a great part of
the wars and dissensions of which we read in history. This is easy to
understand. The same reasons by which Suarez proves the necessity
of a legislative power and municipal laws in a civil community, 6 also
show by implication the evils which arise for want of the same insti-
tutions to regulate and govern the general community of mankind.
And the equality and independence of nations render their legal rela-
tions like those of individuals in a state anterior to civil society, that is
to say, in an imperfect association greatly inferior to that of civil so-
ciety, especially with reference to the great requisites of peace and the
security of rights. Yet the division of the world into states and
nations is an institution introduced jure gentium* And it is a great
feature of the constitution of the world. But this subject has already
been considered, and it is adverted to here only for the purpose of
showing the general object and spirit of the branch of jurisprudence
which gives effect to municipal laws in cases of conflict. The jurispru-
dence of the conflict of laws does not seek to be a common law over-
riding the conflicting municipal laws. Such a law would interfere with
the peculiarities of municipal laws which make them adapted to the
circumstances of the places where they prevail. And it would be at
variance with the distinctions of nations and states, each of which has
d L. 9, ff. De Just, et Jur.
e Suarez, De Legib. lib. 3, cap. 1.
1 Ex hoc jure (gentium) . . . discretes gentes, regna condita .... Het-
mogenianus, 1. 5, ff. De Just, et Jur.
GENERAL REFLECTIONS ON THE CONFLICT OF LAWS. 193
laws, usages and institutions more or less adapted to its own wants and
the character of its people. But this jurisprudence shows, wherever
there is a conflict, which of the inconsistent laws is to govern a given
state of facts. It thus allows due effect to municipal laws, and yet
prevents their peculiarities from forming an impediment to the free
intercourse of mankind for all the purposes of commerce and civilized
life. And it applies to the municipal laws of different states, where
they come in contact with each other, a system of rules in accordance
with the general scheme whereby the world is governed. These obser-
vations easily indicate the connection between those rules and the two
primary fundamental laws. For they all have a principle of justice
either belonging to immutable law or else arising from an adaptation
to the order of society, which is constructed upon those two primary
laws. And they have reference to the ultimate end of all laws, which
is that for which man was created. Thus the rule, that where a con-
tract is entered into in one country, and the performance or fulfilment
is intended to be in another, such performance must be according to
the law of the latter place, is matter of immutable law, because good
faith requires that the manifest intentions of the parties should be car-
ried into effect, and they contemplated the law of that place. And the
rule, that a marriage celebrated according to the lex loci contractus, is
valid everywhere, rests on a principle of the order of society, as we
have seen. And so it is with the rule which gives effect to the judg-
ments or decrees in rem of foreign courts having jurisdiction over the
subject matter. These rules all belong to the terrestrial order and peace
of which St. Augustine speaks, where he says, that the portion of the
Celestial City which is here on earth, though it has no concern with the
diversity of languages, laws, customs and nations, yet uses that peace,
referring it to the ultimate end or civitas Dei. ? And the same passage
applies particularly to International Law, as it does generally to the
whole science of jurisprudence. For the innumerable multitude of
rules which govern mankind all bear some relation to the two primary
laws, and are the laws of man's conduct, which consists of the steps
which he makes towards the end of his creation. 11
A few observations on the subject-matter of laws will further ex-
plain the spirit of this head of jurisprudence. Laws may be divided
under two heads, i. e. obligations and successions. The first comprises
the legal relations of persons, and the second the mode in which those
relations are perpetuated by transmission from one generation to
another. Any one who examines the practical operation of these two
heads of law, even within his own personal observation, will perceive
f Div. August. De Civ. Dei, lib. 19, cap. 17.
h Domat, Loix Civiles, Traite des Loix, ch. 1, 3.
O
194 GENERAL REFLECTIONS ON THE CONFLICT OF LAWS.
that they constitute a vast complication of details, forming a sort of
network, which extends throughout the whole of human society. And
he will also see that the unbroken continuity of that network, notwith-
standing the political and geographical divisions of the earth, is ne-
cessary for the entire fulfilment of all the purposes of civilized society.
And this object could not be obtained without the comity of nations,
which gives effect to laws beyond their own proper territory, in cases
where such comity is required by the interests of society.
These reflections show the province and the spirit of the comity of
nations regarding the conflict of laws, and the effects which it is
intended to produce in the scheme of terrestrial government. The
foregoing chapters do not pretend to contain a complete treatise on
this head of jurisprudence. They only give so much of the rules and
cases as seemed necessary to afford a full view of the subject, which
is an essential part of Public Law.
CHAPTER XVIII.
OF THE LEGAL ORIGIN AND NATURE OF CIVIL SOCIETIES OR STATES.
The Three Parts or Orders of Human Society Matters of Public and of Private Law
Detail of the Matters of Public Law, and Construction of Civil Society Neces-
sity of Civil Government, and its Divine Right The Doctrine of the Social Com-
pact Doctrine of Hooker, Blackstone, Pufendorf, Hobbes, Grotius, Zallinger, Locke,
and Barbeyrac The true Origin of Civil Societies Savigny's Doctrine on the Subject.
THE preceding chapters have shown the first principles and foundations
of the order of society, and the general nature and spirit of the laws
constituting and regulating that order. A plan of society has been
drawn on that foundation of the two primary laws. 1 We have seen
that God forms the order thereof by means of the ties which eng-ao-e
/ O ~
men in society to bind them together in the exercise of the second law.
We have shown how these ties or engagements imply and require the
use and advantage of civil government to restrain every one within
the order of those which belong to him. And we have also seen that
there are four foundations of the order of society in its present state,
that is to say, the authority of true Religion, the government of God
over society, the general knowledge of justice in men, and the autho-
1 See Chap. VI.
LEGAL ORIGIN AND NATURE OF CIVIL SOCIETIES OR STATES. 195
rity which God gives to supreme civil powers. In the course of these
disquisitions, some of the chief doctrines regarding the origin and
nature of civil communities or states have necessarily appeared, be-
cause the explanation of the way in which society is constructed and
maintained, and of its objects, that are the design of God in uniting
men together in society according to the spirit of the two primary
laws, naturally shows what civil or politic societies are, and what they
are intended to accomplish in the world. For, as Burlamaqui justly
says, civil society is natural society so modified as to have a sovereign
power which commands, and from the will of which all that regards
the happiness of society depends in the last resort, so that by such
means men may more surely obtain the happiness which they naturally
seek. k But this subject must now be more fully explained.
Domat lays it down in the Preface to his great work on Public
Law, that God has made the universal society of mankind to subsist
by three ties, which distinguish it into three parts, according to so
many ways in which the Divine system appointed for the world ope-
rates.
The first of these is Religion, the spirit of which embraces all people,
and tends to bring all nations into the bosom of the Catholic Church.
The second is that humanity, or common human nature, which
ought to unite all mankind, notwithstanding differences of religion.
The third is that constituted in each state, by the order which unites
all the families composing it under the same government, whatever
religion they may profess. And as these three different parts of uni-
versal society have their different relations to the common good, and
to the different engagements and duties of men, so the subject-matter
of their laws, and also those laws themselves, have their diversities
adapted to their uses. 1 The first of these parts or orders comprehends
all the matters relating to the good order of society with respect to
Divine worship. The subject-matter of the laws contained in the
second part of society, which is constituted and supported among na-
tions by humanity and natural justice, common to all mankind, is, the use
of commerce, and the several communications and intercourse between
nations and the subjects of one state with those of another, the liberty
of passing from one country to another, the freedom of navigation,
honesty in international commerce, hospitality, and other things of
that nature. They have rendered necessary negociations, treaties
between nations, embassies, and the privileges of ambassadors and
other diplomatic envoys. And even in war there are laws of huma-
nity and justice. Such are those which regard the manner of declaring
k Burlamaqui, Droit des Gens, vol. 4, p. 15, edit. Dupin.
1 Domat, Droit Publ. Preface.
o 2
196 OF THE LEGAL ORIGIN AND NATURE
and making war, the rights of hostages, humanity towards prisoners,
moderation in acts of hostility, the observance of treaties of peace,
truces and suspensions of arms, the use of reprisals, and the like.
Domat distinguishes, as to what relates to these international
matters, between Christian nations and others. For the latter have
for laws, common to them all, the rules of humanity and justice which
compose the Law of Nations, besides treaties and established usages.
But those who know the Christian religion have, besides natural
equity and treaties and international usages, the laws of Religion also,
which comprehends within its bounds all duties of every nature; and
which not only contains rules more perfect than those barely derived
from the law of nature, but also secures a more strict and religious
observance of the rules of the law of nature themselves.
As to the third part or order of society, which is confined to the
persons united in one state under one government, Dornat distin-
guishes the matters arising from it into two sorts. The first is of the
matters which concern the general order of the state, such as those
relating to the government; the authority of the sovereign and the
obedience due by subjects or citizens; the force necessary to preserve
public tranquillity ; the management of the revenue ; the order of the
administration of justice; the punishment of crimes; the functions of
different sorts of offices, employments and professions which the public
service requires ; the public policy for the use of the seas, of rivers, of
highways, of mines, of forests, of game and fishing, of the government
of towns and other places; the distinctions of the different orders of
persons, and other matters of like nature.
The second sort of matters of this third order of society is of those
which relate to what is transacted between persons in their private
capacity, their several engagements, whether by contracts, such as
sales, exchanges, hiring and letting, loans, deposits, partnership, dona-
tion, compromises, and the like; or without contract, such as guardi-
anships, prescription, successions, wills, entails and others. The first
sort of matters, having relation to the public order of the state, belong
to Public Law ; and those of the second sort, respecting only what
passes among particular persons, are the matters of the other part of
the law which is called private law. n
Having drawn a general plan of society, Domat proceeds thus to
notice the detail of the matters of Public Law. " In order to give a
view of the matters of Public Law, it is necessary to observe in ge-
neral, that as Public Law is a system of rules respecting the order of
the government and policy of a state, the first object presented by the
m Domat, Droit Publ. Preface.
n Ibi. And see above, Chap. XII. of these Commentaries.
OF CIVIL SOCIETIES OR STATES. 197
system consists of such order and policy. And it is necessary to see
in the first place what are their necessity and use, for the rules of
Public Law are built on that foundation.
" The design of God in uniting men together in society for the pur-
pose of uniting them by the spirit of the two primary laws, as has
been explained in the Treatise of Laws, implies the necessity of a
subordination among them which should place some of them above the
others. For this society constitutes a body of which every one is a
member; and as the body is composed of different members, so there
is a subordination, not only of all the members under the head, but
also of the members among themselves, according as the functions of
one depend on those of others. Thus as the body of the (civil) so-
ciety is compounded of an infinite number of different conditions and
professions necessary for the common good ; it is essential to that so-
ciety, that there should be a subordination of all conditions and pro-
fessions under one power intended to maintain the order of the whole
society ; and that those conditions and professions should be subordi-
nated one to the other according as the functions of one may depend
upon or have relation to another. And the necessity of this order
implies that of government, especially in the condition in which we
are, under so strong an influence of self-love impelling us to serve our
own interests and gratify our passions, which would destroy the order
of society if the authority of government did not moderate and curb
them by inflicting punishment on those who attempt to disturb that
order."
" But even if we could suppose a society of men without self-love,
yet the subordination of some of them to others would be necessary
for the things which they would have to transact together. And the
necessity of assembling, of proposing matters, of deliberating and of
executing what is resolved on, would require an order of subordination
among them, placing some in authority over the others, whether it
were by reason of the nature of their functions, or by the difference
of age or capacity, or the majority of votes, or other reasons."
Domat here defines that part of municipal law which is called In-
ternal Public Law, to be the system of rules regarding the order and
of government and the polity of a state. And he lays it down that all
the rules of Public Law are built on the necessity and use of that ge-
neral law. Thereby he indicates the true origin of civil societies or
states. The division of mankind into distinct communities called
nations, states, kingdoms or countries, is, as we have seen, one of that
class of laws called by the civilians jus necessarium, or, in the words
Domat, Droit Publ. Preface.
198 OF THE LEGAL ORIGIN AND NATURE
of Modestimus, jus quod necessitas constitute? It arose out of the
nature of things and the exigencies of mankind, though hastened in
its first commencement by a peculiar dispensation. The social state
could not exist without civil government, which requires and implies
the institution of civil societies, that is to say, the introduction of a
sovereign power into natural society, and the partition of mankind into
separate bodies politic for the purposes of government. Thus Her-
mogenianus refers the division of nations and the foundation of king-
doms to the jus gentium, or natural law. Ex hoc jure gentium ....
discretes gentes; regna condita.* He mentions first the division of man-
kind into nations, and then the institution of governments, showing
the former to have been required for the latter, both springing from
the same source, the Law of Nature, which he, after the manner of his
time, calls jus gentium.
We shall find this view of the origin of civil states confirmed by fur-
ther examination. Suarez, in that part of his work which relates to the
sovereign power of making laws, argues that this supreme legislative
authority, which is the great feature of sovereignty, does not spring
from the will of men, but is of Divine right. For it is a necessary
part of a state or civil community. It is an essential incident of civil
society/ He goes on to say, that the civil power of government is of
natural law, if viewed abstractedly, but the mode or form of exercising
it may be determined by the particular community in which it is in the
first instance vested. That power looked upon per se is just, and in
conformity with the Divine Will; and supposing it vested in a given
person or persons, the obligation of obeying him or them is of Divine
right. The same principles apply to every form of civil polity. 5 Thus
Covarruvias, citing St. Thomas Aquinas and others, argues that muni-
cipal laws, as such, are binding in conscience, because the power of
making laws is of natural law.* And Pufendorf, though he holds so-
vereignty to result immediately from contract or agreement, maintains
that the authority of sovereign power is both of Divine and of human
right. Since the increase of mankind, he says, reason has shown be-
yond contradiction, that the establishment of civil societies is absolutely
necessary for the order, the peace and the preservation of the human
species. Therefore God, as the author of the Law of Nature, must
also be looked upon as the founder of civil societies, and consequently
of sovereign power, without which they cannot exist. For, he conti-
P L. 4, ff. De Legib. ; 1. 2, ff. De Orig. Jur. ; and see my Readings, p. 125.
i L. 5, ff. De Legib.
T Suarez, De Legib. lib. 3, cap. 3.
Ibi, cap. 10.
' Covarruvias, Op. torn. 1, p. 199.
OF CIVIL SOCIETIES OR STATES. 199
nues, we must refer to a Divine origin, not only the establishments
made directly by God's order, and without the intervention of any
human act, but also those which men themselves have invented by the
light of reason, according as circumstances of time and place required
it, in order to acquit themselves of obligations imposed by some
Divine Law. Therefore, as the duties of natural law could not be con-
veniently performed, since the great multiplication of mankind, with-
out civil government, it is clear that God, who has prescribed that law
to men, has thereby commanded them to form civil societies. And
we see that in the sacred Scriptures He formally approves the autho-
rity of sovereigns, and shows that it proceeds from Himself. But it
is not certain that God has commanded the establishment of this or
that particular society." Civil societies are an institution differing
from other human establishments invented by the light of reason, but
not shown by reason to be necessary for the order of society and the
preservation of mankind. For God has here declared His will by
means of reason, proving to men that without the establishment of
civil societies, order and peace, which are immediate objects of natural
law, could not be maintained in the world. And when Grotius says
that men were not led to form civil societies by any command of God,
we must understand him to mean only that there is no express Divine
command to that effect, for he adds, that men found the insufficiency
of separate families, and therefore they established civil societies.
Reason produced this result. And he observes, that St. Paul treats
them as Divine establishments, because God approved them as salu-
tary to mankind/
These results agree with the principles of Domat regarding the dis-
tinction between arbitrary and immutable laws. For all the laws
regarding the conduct of men among themselves are the rules of the
social state in which God has placed them. Those laws differ accord-
ing to their relation to the order of society ; and whatever be their
object with regard to that order, they are consequences of the two
primary laws, as I have already shown. The laws which are a necessary
consequence of the two primary laws, prescribing our duty to God
and to our neighbour, are essential to the order of society, and immu-
table. Now the institution of civil states and civil governments
evidently fall under that class of laws. Those establishments have a
direct relation to the end of man, to which his conduct is directed by
the two primary laws. Thus we have seen that the power which God
has given to civil governments, is one of the three ties by which uni-
versal society is maintained, and constitutes one of three parts or
orders composing that society. So St. Augustine deduces the whole
u Pufendorf, Droit des Gens, liv. 7, ch. 3, 2.
* Grot. Droit de la G. liv. 1, ch. 4, 7, num. 3 ; Rom. xii. 1.
200 OF THE LEGAL, ORIGIN AND NATURE
order of society from the two primary laws ; x and St. Thomas Aquinas
argues that, as the end for which man is designed makes him a social
and politic animal, and it is natural for man to live with a number of
other men, it must therefore follow that there is necessarily something
in man to govern a multitude. For a body of men could no more be
kept together without some power to direct and govern individual wills,
than a physical body could remain without a cohesive and directing
power for the common welfare of all its members. 7 And he says, that
the object of a multitude of men being formed into a body politic is,
that they may be directed to their ultimate end, and that civil govern-
ment is so much the more excellent in proportion as it is adapted to
that end. 2
We may sum up all these doctrines and reflections by saying, that
the object of civil societies and governments is the same as that of
natural law; and the arguments which we have given to show the
origin and necessity of natural law and the social state, also prove
those of civil societies and governments. These things have here
been fully established and explained, because they constitute the foun-
dation on which the internal Public Law of states is built, and they
dispose of some theories which have produced a pernicious effect in
politics.
The most remarkable of these is the opinion that civil states and
governments are based upon, and derive their origin and force from,
contract or agreement. The principal English advocates of this theory
are Hooker and Locke. They derive the origin of government, both
in right and in fact, from a primary contract, without which they say
there was no reason that one man should be a superior to govern
or judge another. " The lawful power," says Hooker, whose theory
coincides with that of Locke, " of making laws to command whole
politic societies of men, belongeth so properly unto the same entire
societies, that for any prince or potentate of what kind soever upon
earth, to exercise the same of himself, and not either by express com-
mission, immediately and personally received from God, or else by
authority received at first from their consent, upon whose persons they
impose law, it is no better than mere tyranny. Laws they are not,
therefore, which public approbation hath not made so. But approba-
tion not only they give who personally declare their assent by voice,
sign or act; but also when others do it in their names, by right
originally, at least, derived from them."'
* Div. August. De Civ. Dei, lib. 19, cap. 14.
y Div. Thorn. Aquin. Opusc. De Regira. Princip. lib. 1, cap. 1.
1 Ibi, cap. 14.
Hallam, Constit. Hist. vol. 1, p. 296, 297; Story, Comment, on the Constit. of the
United States, vol. 1, ch. 3, 325, and notes.
OF CIVIL SOCIETIES OR STATES. 201
Pufendorf holds a theory founded on the same principles, though,
as we have seen, his work contains the true grounds of Public Law
on this important matter. He maintains that, for the regular formation
of a state, there must be two conventions or compacts, and a general
ordinance. For, he argues, when a multitude forsake the independ-
ence of the natural state, to form a civil society, each person, in the
first place, binds himself to the others, to unite together for ever in
one body, and to regulate by common consent whatever regards their
preservation and common security. All in general, and each in par-
ticular, must enter into this primitive engagement, and those who are
not parties to it are excluded from the new society. Then a general
ordinance must be made, whereby the form of the government is
established, without which no secure measures could be taken for
the public welfare. Then there must be another compact, whereby,
after one or more persons have been chosen, to whom the power of
governing the society is given, those who are invested with that
supreme authority engage to watch over the common safety and
welfare, and the others at the same time promise obedience to them.
This comprehends a submission of the power and will of each, so far
as the public interests require, to the will of the elected chief or chiefs.
The state thus formed (continues our author) is conceived under the
idea of a person distinct from all the individuals composing it, which
has its name, its rights, and its own property, nothing of which any
citizen, or many or even all of them, have any claim to, for they belong
to the sovereign. He then defines the state to be a compound moral
person, the will of which, formed of the united wills of persons united
by their compacts, is reputed the will of all in general, and authorized,
therefore, to use the power and faculties of each individual, in order
to procure the common peace and security. 11
The opinion of Hobbes resembles that of Pufendorf, but he admits
of only one compact, that of each individual, with the rest, removing
a portion of his free will or liberty, and so submitting to the supreme
power of the state. Grotius defines the state in a manner compatible
with these opinions, which, however, he does not sanction. The state,
he says, is a perfect body of free persons, who have united together for
the purpose of peaceably enjoying their rights, and for their common
advantage.* 3 He defines it as composed of free persons, to exclude
slaves, who are not persons in contemplation of law, and he uses the
adjective perfect, according to the meaning of Aristotle, adopted by
the civilians and canonists, to designate a society having within itself
b Pufend. Devoir de 1'Homme et du Citoyen, liv. 2, cap. 6, 710 ; Pufend. Droit
des Gens, lib. 7, ch. 2, 7, 8.
c Zallinger, Inst. Jur. Nat. et Eccles. Publ. lib. 3, cap. 1, 19(5.
d Grot. Droit de la Guerre, liv. 1, ch. 1, 14, and note by Barbeyrac.
202 OF THE LEGAL ORIGIN AND NATURE
every legal power necessary for its end. We will now examine the
grounds of these political theories.
Zallinger, who adopts the notion of an original compact, admits
that these contracts are nowhere to be found, and he therefore reduces
it to a tacit compact. Blackstone's view is substantially the same. d
Barbeyrac, in a note to Pufendorf, 6 quotes a passage from Buddeus,
where he says, that though philosophy teaches that the origin of states
was by compact, yet there is scarcely an instance of the sort in history,
and Barbeyrac concludes that, even where such a contract existed,
it was simply tacit. Pufendorf supposes a state of circumstances
which never existed in point of fact, as a basis of his theory. It is,
indeed, not difficult to show that the original compacts if they be
taken as the source of the obligations which keep civil society to-
gether and support civil government, and therefore as the origin of
states are a mere legal fiction or hypothesis/ War and usurpation,
and the power of a majority, have been the most frequent origin of
governments, and no instance has yet been shown of a multitude,
who, after living in a state of nature, entered into compacts to form a
civil state. The opinion concerning a tacit original compact arises
partly from the erroneous doctrine of Trebonian, which I have already
refuted, g that obligations not springing from a contract, nor from a
wrong, arise quasi ex contractu* that is, from a constructive, implied
or presumed contract. I have shown that the real source of this class
of obligations is the law without any consent, express, implied or pre-
sumed, of the party bound, and therefore without any sort of contract.
The error in question was exaggerated by Rousseau, who maintains
that all obligations must arise from consent. 1 And on this false pro-
position his pernicious system is based.
Suarez holds, on the authority of the common opinion of the civilians
and canonists and of St. Thomas Aquinas, that the civil power of go-
vernment is primarily and immediately vested in the community or
commonwealth, and derived thence by kings and other sovereign go-
vernors. 15 And so Ulpian holds in the celebrated law quod Principi
placuit. 1 But this does not confirm the opinion that states and govern-
ments derive their origin from an original compact For the fact of
a nation submitting to the authority of a given person does not neces-
e Zallinger, ubi sup.
d Blackst. Com. b. 1, p. 47.
e Pufend. Droit des Gens, liv. 7, ch. 2, ^ 8, note 2.
f Story, Comment, on the Constit. of the United States, vol. 1, ch. 3, 327, 328.
f Chap. VI.
h See my Commentaries on the Modern Civil Law, ch. 11.
1 Contrat Social, chap. 4.
k Suarez, De Legib. lib. 3, cap. 4, 2.
1 L. I, ff. De Constitut. Princip.
OF CIVIL SOCIETIES OR STATES.
sarily constitute a compact. And I have already shown, that whatever
peculiar arrangements may have occurred in some instances, the essen-
tial nature of civil communities and governments is derived from
natural law, and they are an intrinsic part of the order of universal
human society appointed by God. The true natural state of man is a
state of association or society, because it is in conformity with his na-
ture and the obligations arising therefrom. And as those obligations
bind him without his consent being necessary, so he is bound, without
his consent, to live in civil or politic association and submit to civil
government of some sort. He cannot do otherwise without acting
contrary to the law of nature, and therefore his consent is superfluous,
for the power to consent must imply that of dissenting. And the
obligation of each man to perform the duties of the civil state and
submit to civil government arises not from his consent, express or im-
plied, but from natural law. It is a necessary consequence of the two
primary laws and essential to the order of human society constructed
upon them. This general doctrine is entirely compatible with the fact
that in certain instances a man may bind himself by his free will to the
observance of some particular laws or obedience to a given magistrate,
or become voluntarily a member of a certain civil state. And* it is the
same when a number or a body of men enter into such political en-
gagements. These are facts which have no effect on the general rules
and principles of Public Law, though they belong to the municipal or
internal Public Law of the particular state to which they relate.
Savigny treats the subject of the origin of states in a very philoso-
phical manner. Speaking of the influence of the state on private
law, he says, that if it be possible to conceive private law as an ab-
straction extraneous to the state, and founded on a community of ideas
and manners, it is the establishment of the judicial power, which, within
the state, gives to private law reality and life. But he adds, that we
must not believe that there is in history a time anterior to the founda-
tion of the state, and in which private law had an incomplete existence,
that is to say, the state of nature. " For each people, as soon as it gives
signs of life, is already constituted into a state or politic community.
That natural condition of man, or state of nature, is a hypothesis
created by the imagination, looking on the people abstractedly from
the state."" After some further reflections, Savigny thus proceeds to
consider the opinions on the formation of the state.
" The preceding theory on the nature and origin of the state has not
been generally admitted. Assemblies of men have often been sup-
posed, undefined and independent of national unity. But this opinion
m L. 3, 4, ff. De Reg. Jur.
n Savigny, Trait de Droit Rom. torn. 1, p. 23, edit. Guenoux, Paris, 1840.
204 OF THE LEGAL ORIGIN AND NATURE
falls to the ground before the fact, that at all periods nations constitute
states, and everywhere we find a people constituting the basis of the
state. It has been attempted in the Slave States of America, for ex-
ample, to unite great masses of men without regard to their origin.
But these attempts have had bad consequences, and the constitution
of the state has met with insurmountable obstacles. I therefore say in
answer to those who support this opinion, that originally, and accord-
ing to the nature of things, all states were formed in the nation or
people, by the people and for the people."
" Others represent the creation of the state as an act of individual
wills, as the effect of a contract ; a system, the consequences of which
are as pernicious as they are false. Thus it is supposed, that if the
individuals have thought fit to form a state, they might equally not
have formed it at all, or have incorporated themselves in another state,
or adopted another constitution. Without repeating what I have said
of the natural unity of nations, and its necessary consequences, I will
only observe that in every case in which such a compact is possible,
the state infallibly exists already both in fact and in law ; and from
that time the matter in question would be, not as to its composition,
but as t& its decomposition. This erroneous system rests on a double
error. The numerous varieties presented by the constitution of states,
that is to say the individual and historical elements, have been looked
upon as so many arbitrary acts of the human will. Then the divers
significations of the generic term people have been confounded toge-
ther. Thus this term signifies 1st, that natural unity in which the
state receives its birth, and is perpetuated from generation to genera-
tion ; 2ndly, the union of persons existing contemporaneously, which
the state comprises at a determined time; 3rdly, the assemblage of
persons not invested with power, that is to say, the governed without
the governors ; 4thly, in republics (ancient Rome for example), the
assembly of citizens in whom, by the constitution, the sovereign power
resided. The confusion of all these ideas has led to the error of attri-
buting to the body of the governed, both the abstract right of the
people, considered as a natural unity, and the privilege of the Roman
populus, and thus placing the sovereignty in the hands of the subjects.
If, indeed, without the last step, the sovereignty is attributed to the
body of all the contemporaneous individuals, both governors and
governed, a more correct result is not obtained. In the first place the
state is not composed of all the individuals taken per capita, but of cer-
tain orders or classes created by its constitution. For the total number
of individuals do not exercise political will or acts. And as you must
necessarily subtract the greater number women and minors you are
reduced to the fiction of representation. And the assemblage of all
OF CIVIL SOCIETIES OR STATES. 205
the contemporaneous individuals would still not constitute the people,
for a people considered under this point of view continues in futurity,
and has an imperishable existence."
" But the opinion which I combat has an element of truth. Accident
and the arbitrary will of men exercise their influence over the forma-
tion of states : conquest has often changed natural frontiers, dismem-
bered nations, and broken their unity. Often, also, the state assimi-
lates to itself a foreign element. But that assimilation operates
gradually, and according to certain natural laws. Such events, though
frequent in history, are nevertheless anomalies. The people and its
organic development still remain as the basis and the natural and
regular origin of the state. If in the midst of that operation, external
events bring to it a foreign element, a healthy and vigorous people is
able to absorb that element by its moral energy. If not, the result of
the struggle is a diseased condition of the body politic. This explains
how that which was, in its origin, injustice and violence, may, sub-
mitted to that power of assimilation, become a legitimate element of
the state. But to present these anomalies these trials which moral
power undergoes as the true origin of states, to fall back on this
adventurous opinion as a sole refuge from the dangerous doctrine of a
social compact, this must be absolutely rejected, for it is difficult to
say whether the remedy be not worse than the evil."
The doctrines of Domat and Savigny show clearly that the supposed
original contract is an unnecessary legal fiction. For the real legal
origin of states, considered philosophically, is the origin of the obliga-
tions by which they are constituted or formed. And those obligations
are the different ties which unite men together in society; and their
origin is derived from the two primary laws which direct the conduct
of man towards his end. Thus Savigny says, that the state derives
its birth from an internal force, a superior necessity which impresses
upon it a character of individuality ; p this necessity engenders the
state, developing it out of the universal human society of which
politic or civil society is a natural consequence. And whatever may
be the political events which have caused the association of men in
any given case under a particular government, the legal nature of
the state is to be found in the ties and obligations which are conse-
quences of the two primary laws, and part of the secondary Natural
Law.
The doctrine of an original contract between the crown and people
was asserted by the Convention Parliament in that famous resolution
which declared the vacancy of the crown after the flight of King
Savigny, Traite de Droit Rom. torn. 1, p. 2731.
P Ibi, p. 20.
206 LEGAL ORIGIN AND NATURE OF CIVIL SOCIETIES OR STATES.
James the Second. q That position was, indeed, as Hallam observes,
rather too theoretical/ and no record of any such contract is to be
found in the history of England. It was no doubt resorted to for the
purpose of denying the divine right of monarchy, from which the arbi-
trary and indefeasible right of the crown was plausibly derived. But
such a fiction was obviously unnecessary. For the rights of the people
as well as those of the crown clearly rest not on contract but on laws.
And so we find it in Fortescue, whose learned annotator rejects the
theories of Hobbes, Locke and Rousseau regarding the institution of
government. 5
In the case of federal constitutions, such as that of the United
States of America, there is indeed a fundamental law, the origin of
which partakes of the nature of that of a treaty or contract ; l but this
is not an original contract in the sense in which the term is used by
Locke and Rousseau, nor a compact. It is a constitution of govern-
ment, a modification of civil or political society previously existing,
by the union of several bodies politic in a form of constitution." And
such federal fundamental laws are what the civilians call anomalous
laws, which have no effect upon the general doctrines or jurispru-
dence of Public Law.
CHAPTER XIX.
OF THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.
The Civil Power Principle of Subordination Authority of a Majority Perfect and
imperfect Societies Necessity of the governing Power in Civil Societies Analysis
of the Civil Power by Grotius The Sovereign Power Doctrine of the Sovereignty
of the People.
CIVIL society may be described as a modification of natural society,
whereby the sovereign power is created having authority to command,
i Black. Com. b. 1, ch. 3, p. 211 ; Story, Comment, on the Constit. of the United
States, vol. 2, book 3, ch. 3, 341344.
* Hallam, Constit. Hist. vol. 3, ch. 14, p. 349.
* Fortesc. De Laudibus Legum Angliae, by Amos, cb. 14, and note. And see
Story, ubi sup. 349.
* Story, ubi sup. 350, &c. We shall return to this subject in Chap. XXVII.
Story, ibi, 372.
THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES. 207
and from the will of which depends, in the last resort, all that regards the
temporal happiness and welfare of society/ And, as we have seen, the
institution of civil society and political sovereignty is a natural result
of the principles on which all human society is based. For the purpose
and design of God in linking men together in the social state, to unite
them by the spirit of the two primary laws, necessarily implies a
subordination among them, or a subjection to authority whereby some
are placed over others. That authority is called by Grotius the civil
power, or the moral power of governing a state," when it exists in civil
society. That this principle of subordination to authority is matter of
Natural Law is shown by the reflection of Domat, that it is necessary
in all conjunctions of several persons together which exist among
men. Thus, in marriage, the man is the head of the wife, and by
birth children are subjected to the authority of their parents ; and when
the increase of mankind required another regimen, God established
chiefs or princes over many families/ And in conjunctions of persons
having equal legal rights, as members of some body, the majority
expresses the will of the body, to which the individual members must
submit. Savigny, in considering the constitution of judicial persons
or corporate bodies, examines this subject. He says that the rule of
law making the will of the majority that of the body in its corporate
capacity, is founded on Natural Law. For to require unanimity
would be to impede the acts and the will of the body corporate ; and
the rule is preserved in the Roman Law, and adopted by the Canon
Law/ Unanimity is not impossible in a deliberating assembly, and it
is required for the verdict of an English jury, but it is so difficult to
obtain, and subject to so many contingencies, that it would be an
obstacle to the movements and the life of the assembly. And the
principle of the power of a majority once admitted, the right of being
acknowledged as the will of the whole body is naturally attributed to
a simple majority, that is to say, half the votes, plus one. And every
other proportion, such for instance as two-thirds, or six-sevenths, has
a character of arbitrary or positive law/ We see here, again, an
example of the way in which a rule of natural law arises from an
Burlamaqui, Droit des Gens, vol. 4, p. 15, edit. Dupin.
* Grot. Droit de la Gens, liv. 1, ch. 3, 6.
y Domat, Droit Publ. Preface.
L. 160, ^ 1, ff. De Reg. Jur. ; 1. 19, ff. ad Municipalem, 30; Decretal. Tit. De his
quae fiunt a majore parte Capituli. And see Faebeus, De Reg. Jur. Canon, p. 176,
who explains the distinction between things affecting the rights of the individuals as
such, and those which regard the corporate body. Commentary on rule 29 in Quinto
Decretal. (De Reg. Jur.)
Savigny, Trait^ du Droit Rom. torn. 2, pp. 329, 330.
208 THE SOVEREIGN POWER.IN CIVIL SOCIETY OR STATES.
institution of arbitrary law. But these doctrines of Savigny are cited
for the purpose of showing a natural principle of authority and
government, even in aggregations of persons who are all equal. For
in these bodies, the individuals composing them are subject to the
authority of the majority; and that majority usually delegates powers
more or less extensive to certain persons, who represent the aggregate
for divers purposes of internal government and administration. Sa-
vigny examines the legal question arising between two propositions,
one requiring unanimity, and the other holding a majority of a body
sufficient. He looks upon them chiefly with reference to Private
Law, which regards an aggregate body as persona, a person in con-
templation of law. But he gives us the principle of Public Law, that
the authority of the majority is the most simple and natural expression
of the life and will of a body politic or assembly of men. The evils
resulting from neglect of this principle are illustrated in the history of
Poland, by the absurd institution of the liberum veto. b An artificial
constitution may create different modifications of that expression.
And the learned writer argues that it is naturally limited as to power,
because the corporate body in its nature includes the future, as well as
the present, represented by all the members living at one time. But
this investigation presents to us a natural element of government inci-
dent to aggregates of men, and which is to be found in one form or
another throughout political systems, and even in associations belong-
ing exclusively to Private Law. And this confirms the position that
the subordination of persons, on which civil government is founded, is
part of the order established by God for the government of the world,
and that men may be united in the spirit of the two primary laws.
Suarez distinguishes two sorts of associations of men. One is im-
perfect, that is to say, the family : and the other is perfect, that is to
say, political society, or the state. The former commences with the
association of husband and wife, and this is completed by that of
parent and child, to which aggregates are added the accessory rela-
tions of master and servant, for divers purposes. From these three
conjunctions arises the first association of men, which is called imperfect
with reference to the state or political civil society, because the family
is not sufficient to itself for the wants of man and human society,
though it is perfect as far as regards domestic economy. In the nature
of things, politic or civil society is therefore necessary, as we have
already shown, and this is according to the will of God for Cicero
truly says : Nihil Principi Deo in rebus humanis esse gratius, quam
homines habere inter se societatem ordinatam et perfectam, quce civitas
b Wheaton, Hist, of the Law of Nations, p. 269.
THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES. 209
dicitur. And a perfect community or civitas necessarily requires a
power to govern it. c
St. Thomas Aquinas proves this last proposition in a manner which
points out very well the nature of the civil power of government. He
argues it a priori by saying that no body can subsist without some prin-
ciple, whose province it is to procure and compass the common good
of such body. As it is in natural bodies, experience shows the same to
be regarding politic bodies. d The reason is clear, says Suarez, for each
member looks to his own welfare or interest, which may sometimes be
contrary to the common good. And many things are for the common
good which do not affect individuals, or do not so affect them that they
will forward those things, except so far as touches themselves. There-
fore in a perfect community there must be necessarily a public power
to which belongs the duty of promoting and procuring the common
good. Hence, he concludes, the justice and necessity of a civil magis-
trate is to be inferred. For that institution is nothing more than a
man, or several or many men, invested with that power of govern-
ing a perfect community. And it is clear that this power must exist
in men ; for mankind are not naturally politically governed by angels,
nor immediately by God himself, who, according to his ordinary law,
acts by means of sufficient secondary causes. Therefore, it follows
that civil polities are governed by men. 6 This disquisition may perhaps
appear subtile and metaphysical, but it is useful to show the nature
of human government, considered as such, and its connexion with
Divine government, which ordinarily is carried on through the medium
of secondary causes. And so we may remember that Domat, in
drawing his general plan of human society, includes among the four
foundations of the order of society in its present state, the government
exercised by God over it. The great civilian says : " It is by God's
universal providence over mankind, that He divides the earth among
men, and distinguishes nations by the diversity of empires, kingdoms,
republics and other states ; that He regulates the bounds and duration*
of them by the events which give them their rise, their increase and
their fall ; and that in the midst of all these changes, He forms and
maintains civil society in every state by the distinctions of persons to
fill employments and other places, and by the other ways in which He
regulates and governs everything/ These reflections refute the error
of those who have looked on human government as so different from
Divine government, as to be opposed to it.
c Suarez, De Legib. lib. 3, cap. 1, 3.
d Div. Thorn. Aquin. Opusc. De Regim. Princip. lib. 1, cap. 1.
e Suarez, ubi sup. 5.
f Domat, Loix Civiles, Traite <les Loix, ch. 9, ^ G.
P
210 THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.
We have seen that Grotius defines the civil power, as it is ordina-
rily called, to be the moral power of governing a state. He thus ana-
lyzes that power : " Whoever governs a state, governs it either himself,
or by means of others. Where he governs in person, he regulates either
general affairs, or particular affairs. He regulates general affairs by
making laws or by abrogating them, both in what regards religious
affairs (so far as he is entitled to interfere in them), and in secular or
temporal matters. This is what Aristotle calls the master science of
government."
" Particular affairs are either directly public, or else private though
considered in relation to the public good. Those which are directly
public concern either certain actions, as when peace is concluded or
war made, treaties and alliances ; or certain things, as when imposts
or taxes are raised and the like. And to this relates the eminent do-
minion (dominium eminens) which the state has over the citizens and
their property, so far as the public welfare requires. The way of regu-
lating well all this is comprehended, according to Aristotle, under the
general name of politics, and under another, which signifies the art
of deliberation. Private affairs are here the differences among pri-
vate persons, so far as the peace of society requires that they should
be terminated by the public authority. This is what Aristotle calls
the science of judging. We come now to what the governing autho-
rity does by means of others. Those things are done by means of
magistrates and other ministers, such as ambassadors. In this consists
the civil power. The sovereign power is that the acts of which are in-
dependent of every other superior power, so that they cannot be annulled
or set aside by any other human will? I say, by any other human
will ; for the sovereign himself must be here excepted, who is free to
change his will as well as whoever succeeds to all his rights, and who
consequently has the same power.* 1
" Now there are two subjects in which sovereignty resides, of which
one is common and the other proper, in the same way that the com-
mon subject of sight is the human body, and the proper object is the
eye."
"The common subject in which resides the sovereign power is the
state, which we have defined to be a perfect body. And thus we ex-
clude those peoples who have passed under the dominion of another
people, such as those which the Romans reduced to the condition of
provinces. For such peoples are not by themselves states according
f Boehmerus, Jur. Crim. 2, c. 5. And see Atkyns, Inquiry into the Power of
dispensing with Penal Statutes, edit. 1689, p. 441.
h So Parliament cannot bind future Parliaments. Co. 4 Instit. cap. 1, 42.
THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES. 211
to the idea which we now attach to the term, but only members of a
state, in the same way that slaves are members of a family."
" Sometimes, however, it happens that there is but one head of
several peoples, who nevertheless each form a perfect body, for it is
not the same in a moral as with a natural body. There cannot natu-
rally be several bodies with one head ; but one and the same moral
person, considered in different respects, may be the head of several
distinct societies or communities. And a certain proof that in the
case supposed, each people is a perfect body of a state, is, that if the
reigning family be extinguished, the sovereign power returns to each
of the peoples before united under one head.
" It may also happen that several states may be united together by a
very intimate alliance, and form a compound body, as Strabo expresses
it in several places, without ceasing nevertheless to be each a perfect
body. Aristotle has observed this in several passages, and others
speak of it."
" The state therefore is, in the sense already mentioned, the com-
mon subject-matter of sovereignty. But the proper subject in which
it resides is either one or several persons, according to the laws and
usages of each nation; in a word, the sorereign"*
Pufendorf draws the same distinction between the common and the
proper subject of sovereignty; the former being the state itself, or the
community ; and the latter the person or persons in whom the sove-
reign power is vested by the organic laws of the state. And he shows
that the different forms of government arise from the diversity of the
proper subject in which the sovereign power resides. k Thus the
sovereign is called monarch, senate, or people, according as the sove-
reign power is in the hands of one person, or in those of several. 1
The preceding chapter has shown the primary origin of sovereignty.
The civil power is an essential element, and indeed the very essence
of the state, and therefore the origin of civil society is that of the
civil power. And Grotius shows, as we have seen, that the sovereign
power is the civil power with the quality of supremacy, so that its
acts can be annulled by no other human will. This supremacy is
necessary to constitute a state. For the state is a perfect body," 1
which implies that it contains within itself that plenitude of the civil
power of governing itself which renders it supreme. Therefore the
creation of a state necessarily includes that of a sovereign power.
We have yet to consider the proposition of Suarez and St. Thomas
1 Grot. Droit de la Guerre, liv. 1, ch. 3, 6, 7.
k Pufend. Droit dcs Gens, liv. 7, ch. 5, I.
1 Ibi, lib. 7, c. 2, 20.
m Grot. Droit de la Guerre, liv. 1, ch. 1, 14.
p2
212 THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.
Aquinas, and the common opinion of the civilians and canonists, that
the civil power of government, which includes the sovereign power,
is primarily vested in the community or commonwealth, and derived
from thence by sovereign rulers." This doctrine is no doubt the origin
of that known under the term of the sovereignty of the people.
To explain this subject, we must first examine in what sense it is
legally true, that the civil power of government is primarily vested in,
and is derived from, the body of the community or state. All that
Suarez, Savigny and Domat have said about the origin of states, and
the way in which civil society is formed, shows us that the civil power,
or power of government, is an institution of secondary natural law,
and one of the means whereby universal human society subsists; and
that it is the creature of civil or politic society, of which it is a neces-
sary concomitant. Thus it is impossible to conceive a politic or civil
society without the civil power, constituting that ordinata imperandi
obediendique concordia, of which St. Augustine speaks, p and essential
to the very idea of such a body ; that is to say, a legal organic society,
or, as Suarez expresses it, societatem ordinatam^ Without that it
would be a mere multitude. And St. Augustine considers that peace
arising from the legal authority and obedience of civil society, as a
cause of whatever harmony exists between the terrestrial and the
celestial city/ It follows that the civil power is an intrinsic quality of
a civil or politic community. And temporal sovereignty is the supreme
civil power. These reflections explain the distinction drawn by Grotius
above, where he says, that the common subject or seat of the sovereign
power is the state considered in its corporate capacity, though its
proper subject is the person or persons invested with the supreme civil
power. And so Savigny denies, as we have seen, the doctrine of the
omnipotence of the contemporaneous members of a body politic re-
presented by a majority, because the body in its abstract character
extends beyond them, and includes the future. 5 And he says, that the
confusion of the different ideas included under the term people has
led some to attribute to the aggregate of the governed or subjects,
both the ideal right of the people considered as a natural unity, and
the privileges of the Populus Homanus, and to place the sovereignty in
the hands of the subjects. 1
n Suarez, De Legib. lib. 3, cap. 4, 2; 1. 1, ff. De Constit. Princip.
Suarez, De Legib. lib. 3, cap. 4, 2.
P Div. August. De Civ. Dei, lib. 19, cap. 14.
' Suarez, De Legib. lib. 3, cap. 1, 3.
r Div. August. De Civ. Dei, lib. 19, cap. 17.
Savigny, Traite* du Droit Rom. torn. 2, pp. 329, 330.
' Ibi, torn. 1, ch. 2, p. 29.
THE SOVEREIGN POAVER IN CIVIL, SOCIETY OR STATES. 213
By neglecting these important legal doctrines many politicians have
fallen into errors as dangerous as that of the social compact, with
which the sovereignty of the people, understood in a wrong sense, has
a close and obvious connexion. They have held that the sovereign
power is subject to forfeiture for any act done which they deem an
infraction of the supposed contract between the sovereign and people,
and that of such forfeitures the people are the only judge. The re-
sult is, that two sovereign powers must exist in every state, and the
constitution of civil society be constantly liable to be dissolved by a
suspension of the sovereign functions and a revolution. Therefore, by
the law of England, the crown can do no wrong. And Blackstone
observes, that wherever the law expresses its distrust of abuse of
power, it always vests a superior coercive authority in some other
hand to correct it, the very notion of which destroys the idea of
sovereignty. "If, therefore," he adds, "the two houses of parliament,
or either of them, had avowedly a right to animadvert on the king, or
on each other, or if the king had a right to animadvert on either of
the two houses, that branch of the legislature so subject to animad-
version would instantly cease to be part of the supreme power : the
balance of the constitution would be overturned ; and that branch or
branches in which this jurisdiction resided would be completely sove-
reign. The supposition of law, therefore, is, that neither the king, nor
either house of parliament, collectively taken, is capable of doing any
wrong; since, in such cases, the law feels itself incapable of furnishing
any adequate remedy. For which reason all oppressions which may
happen to spring from any branch of the sovereign power, must neces-
sarily be out of the reach of any stated rule or express legal provision:
but if ever they unfortunately happen, the prudence of the times must
provide new remedies for new emergencies." 11 In truth, a sovereign
power above another sovereign power is a contradiction in terms.
And this is a real meaning of the doctrine of the indivisibility of the
sovereign power taught by the civilians, though in one sense that
doctrine is an error, as Barbeyrac observes," because different portions
of the sovereign power may be held by distinct persons or bodies,
altogether forming the sovereign.
Grotius lays it down that the opinion must be rejected that sovereign
power belongs always, and without exception, to the people, so that they
have a right to punish and repress kings whenever their authority is
Black. Com. b. 1, ch. 7, p. 244.
* Grotius, Droit de la Guerre, liv. 1, ch. 3, 17, not. 3; Pufend. Droit des Gens,
liv. 7, ch. 5, 15, not.; Crasso, Annotat. sopra Giannotti e Contarini, aiinot. 38, pp.
485, 486 ; Zallinger, Instit. Jur. Natur. et Eccles. lib. 3. cap. 2, 205.
214 THE SOVEREIGN POWER IN CIVIL SOCIETY OR STATES.
misused. " Every wise and enlightened person," he adds, " must see
what evils have been and may be caused by this opinion." He argues
that a free people may legally submit itself to one or more persons, or
to another state, so as to reserve no power to itself. And he gives
many examples to show that the right of governing is not always
submitted to the judgment and will of those who are governed. And
this is especially the case where sovereign power over a people is
acquired in lawful war. For civil dominion, as well as property, may
be acquired by that means, according to the law of nations. 3 ' Grotius
then answers some arguments of those who maintain that sovereign
power always resides in the people. They say, in the first place, that
the person who originally established another in authority is above
him. But that is so only with regard to power which continues to
depend on the will of its author, and not to one which, though freely
conferred, cannot be revoked. Thus, when a woman has ma*ried a
man, she must continue to obey him from the moment that she has
given him power over her. And so the Emperor Valentinian said to
the soldiers, who, after making him emperor, demanded something
which he disapproved " It depended on yourselves, soldiers, to elect
me or no ; but now that you have elected me, what you ask depends
on me and not on you." Besides, Grotius asserts that it is false that
all kings are established by the people. The contrary appears from a
multitude of examples. Another argument is drawn from the philo-
sophers, who say that all power is established for the benefit of those
who are governed, from whence it is argued that those who are
governed are above those who govern, because the end is more consi-
derable than the means. But this does not follow. For a guardian
is appointed for the advantage of the ward, and yet the ward must
obey the guardian as a superior. 2 And so by the constitutional law of
the United States no state can disobey or withdraw itself from the
federal sovereign authority of the union. 3 And there are, as Grotius
says, instances where there is a mutual interest between the governor
and the subject. So it is with colonies and other dependencies go-
verned by the authority of the mother country.
Such are the general principles of Public Law ; but questions arise
between the sovereign and the people in different countries which
must be decided by the particular laws and constitutions of those
countries. And in many states the person invested with the sovereign
dignity has only a part of its powers. And therefore Grotius observes
y Grotius, Droit de la Guerre, liv. 1, ch. 3, 8.
1 Grot, ibi ; Pufend. Droit des Gens, liv. 7, ch. 6, 5, 6.
1 Story, Comment, on the Constit. of the United States, vol. 1, 359.
THE SOVEREIGN POWER IN CrVlI. SOCIETY OR STATES. 215
that in questions of this kind it is necessary to see where is the sove-
reign power, without reference to the form or title of the office. 6 But
this will be adverted to when we consider the modifications and divi-
sions of the sovereign power.
CHAPTER XX.
OF THE PARTS OR BRANCHES OF THE SOVEREIGN POWER.
The Three Parts of the Civil Power Jura MajestatisMeruw el Mixtum Imperium
and Merum Imperium Jurisdiction The Legislative Power Place and Effect of
Legislation in the Formation of Municipal Law Customary Law Political and
Legal Character of the Legislative Power The Executive Power Power of inflict-
ing Punishments Its Nature and Objects Fundamental Principles of Criminal
Law Power of Pardoning The Appointment of Magistrates and Officers, and
their Uses and Functions Right of War and Peace Negociations with Foreign
States Power of assembling and arming Forces Revenue Jus Eminens and Do-
tninium Eminens True Foundation of the Right of Taxation The Interference of
the State with Private Property for the Public Use Equality of Taxation required.
WE have seen that Domat, in giving a plan of Public Law, points
out that the design of God in connecting men together in society, in
order to unite them by the spirit of the two primary laws, implied the
necessity of a subordination among them, placing some above the
others ; and, that as the body of society is composed of an infinite
number of different conditions and professions necessary for the com-
mon good, it is necessary to society that there be a general subordi-
nation of all the conditions and professions under one power, which
shall maintain its order. This reflection shows the meaning of the
doctrine held by Grotius and Pufendorf, that sovereignty is simple
and indivisible. 1 " And, indeed, the unity of the State necessarily
imports a unity in the sovereign power, whereby it is governed and
kept together.
But notwithstanding the simple and indivisible nature of sovereignty,
its functions are performed by distinct acts, according to the different
means of preserving the State, and fulfilling its different purposes.
b Grot, ubi sup. 10.
c Domat, Droit Publ. Preface.
d Grot. Droit de la Guerre, liv. 1, ch. 3, 17; Pufend. Droit des Gens, liv. 7, ch. 4,
1 ; Burlamaqui, Droit des Gens, torn. 4, p. 130, edit. Dupin, 1820.
216 OF THE PARTS OR BRANCHES
And in this sense Grotius describes it as an assemblage of different
parts closely conjoined together, with the character of independence
belonging thereto. 6 So the sovereign power, inasmuch as it prescribes
general rules for the conduct of civil life, is called the legislative
power; where it pronounces according to those rules upon the differ-
ences among the citizens, it is the judicial power; where it arms the
citizens against foreign enemies, or orders them to cease hostility, it is
the power of making war and peace; and when it chooses ministers
or public servants, to assist it in the care of public affairs, it is the
power of establishing magistrates, and the like/ In all these things
the civil government of the State consists. They are means whereby
universal human society is made to subsist. And as they have in all
their details a relation to the order of that society which is constructed
on the two primary laws, so they constitute the system of civil
government, regulated by a multitude of laws, which are consequences
direct or remote of those two primary laws.
Grotius, as we have already seen, also divides the parts of the
sovereign power with reference to its different modes of acting. He
begins by laying it down that the supreme or sovereign power which
rules the State, governs it either directly by itself, or by means of
magistrates and other ministers. And then he proceeds to the subject
matter of its acts. The supreme power regulates either general affairs
or particular matters. It regulates general affairs by enacting and
abrogating laws. The particular or individual matters are directly
public or else private, but considered as having a relation to and
affecting the public good. Under the head of those particular matters
which are directly public, are included the declaration of war, and the
conclusion of treaties of peace and alliance, and other matters of that
nature. Those particular matters which are private, comprehend the
affairs of individuals which are settled by the public power, so far as
the peace and welfare of society require such interference. This
analysis gives us the division of the civil power of government into
three parts the legislative power, which regulates general affairs, that
is to say, establishes general rules called laws, which are to be followed
in all cases to which such rules apply ; the executive power, which
administers particular matters directly public, such as the enforcement
of obedience to the laws, the means by which they are enforced, the
making of war and peace, the revenue, the creation and distribution
of offices and employments for the public service, and the like; and
the judicial power, which, by interpreting the laws, and applying
them to particular cases, determines on the rights of persons, and thus
e Pufend. ubi sup. ; Grot ubi sup.
f Pufend. ibi.
OF THE SOVEREIGN POWER. 217
settles their differences so far as the public good requires. And here
we must observe, that both the executive and the judicial powers must
be exercised according- to the ereneral rules established by the leefis-
o j
lative power. 8
These different powers are called by the civilians jura majestatis.
Majestas is a legal term signifying the supreme or sovereign power of
the State. h It includes merum et mixtum imperium, though that term
is used by Lord Chief Justice Hale as signifying a regal jurisdiction.'
For merum et mixtum imperium consists in jurisdiction, together with
the power of commanding the enforcement of decrees or other acts
of jurisdiction ; whereas merum imperium is a mere power of using
coercive means against wrongdoers, specifically given by the law ;
and jurisdiction implies both species of imperium, whereas there may
be a mere authority of cognition, that is to say, of deciding a question
on reference from a superior authority or dependant thereon. k But
this is sometimes called jurisdictio simplex. 1 An explanation of these
legal terms is required here, because they are frequently used by
civilians and writers on Public Law. We will now examine the jura
majestatis, or parts of the sovereign power.
The nature and object of civil society indicate the parts of the
sovereign power, and the peculiar office of those parts. The State is
a moral body, or body politic, which must have a common will bind-
ing on its individual members or citizens. Therefore, that will must
be expressed in the form of general rules or laws." 1 A politic body
cannot be without a politic government, for its unity principally arises
from subjection to one rule or regimen, and to a common superior
authority. And, without this, the body could not be directed to one
end and to the common welfare. Consequently it is repugnant to
natural reason that there should be a community of men united as a
politic body without some common power which the persons com-
posing the body must obey;" and this power of prescribing general
rules is of Divine or natural law. It is called the legislative power,
or the power of legislation.
B Grotius, Droit de la G. liv. 1, ch. 3, 7; see my Comment, on the Constitutional
Law of England, p. GO ; Heineccii Prelectiones in Fufendorf de Offic. Horn, et Civ.
lib. 2, cap. 7, 1.
h Matthaeus, De Crimiuibus, ad lib. 48 Digest, tit. 1, 1,2; Voet ad Pand. lib. 48,
tit. 4, 2.
1 Hale, Pleas of the Crown, part 1, ch. 10, p. 66. And see Coke, 4 Inst. p. 357.
k Cujacius, torn. 7, col. 76, 77, 78, edit Venet. Mutin. ; Donelli Comment, torn. 4,
col. 1088, 1089, 1090, lib. 17, cap. 6, 6, 7.
1 Reiffenstuel, Jus Canou. Univers. torn. 1, p. 319; lib. 1, tit. 29, 3, num. 18.
ni Pufend. Droit des Gens, liv. 7, ch. 4, 2.
n Suarez, De Legib lib. 3, cap. 2, ^ 4.
Ibi, cap. 3, 3 2, 3, 4.
218 OF THE PARTS OR BRANCHES
The place and effect of legislation in the formation of municipal law
are not easy to determine. Though Gajus says that all nations are
partly governed by law common to all men/ and Ulpian describes
civil or municipal law as that which is not identical with natural law,
though not altogether departing therefrom, q yet there is, as Suarez
remarks, no civil law universally binding on mankind as such, that is
to say, by the authority of a temporal legislature. So that, though
the whole world is governed by civil or municipal laws, at least so far
as regards nations not altogether barbarous, yet, according to the
course of nature, there never was, and there is not any legislative
temporal power for the whole world/ And if each separate body of
municipal laws be examined, it is difficult to see precisely the extent
to which it was originally created by legislation.
Savigny examines this curious question. He says that the law of a
people which develops itself in an invisible manner, the origin of which
cannot be referred to an exterior fact or a determined time, has always
been recognized. But the recognition of this sort of law has in some
way remained sterile, because a too restricted object has been assigned
to it, and its nature has not been correctly appreciated. The expression
applied to it, of customary law, may give rise to false inductions.
Thus it might be supposed that originally the solution of a point of
law was left to chance and settled by examples, that is to say, by
following the first arbitrary or casual precedent, and that so a rule
was made and custom alone engendered the law. But the learned
writer holds that very different principles and consequences will result
from an examination of the true basis of positive unwritten law. For
that basis has its reality and existence in the general conscience or
opinion of the people, manifested by exterior acts, by usages and
customs. And thus custom does not engender positive unwritten
law, but is the outward sign or appearance whereby it is shown to
exist. He however admits the creative power of custom regarding
secondary principles not determined by the opinion of the people, and
parts of positive law which require to be settled by any rule whatever
it may be. There, he says, our anterior determinations become autho-
rities, and thus custom is one of the elements of law. Here operates
the law of continuity of opinions, of acts and circumstances, which
exercises a great influence over divers matters of the law; and we
should desire the domain of customary law to be narrowed, on
account of the errors mingled with its origin and transmitted to us,
P L. 9, ff. De Just, et Jur.
i L. 6, ff. ibi.
r Suarez, De Legib. lib. 3, cap. 4, 7.
OF THE SOVEREIGN POWER. 219
except in those cases where it is the result of judgment and delibera-
tion. 3 We come now to legislation.
Savigny commences by stating that positive law (using the word in
the sense of the Latin term jus) may require to be clothed in distinct
language and with an absolute declared authority, for the purpose of
excluding doubts arising from individual opinions, and facilitating its
enforcement or execution ; and that this operation produces the law
(lex), the making of which is the highest attribute of the supreme
power of the State.' The fifty decisions of Justinian may illustrate
this position, so far as they embodied received legal opinions and
positions. Legislation (continues Savigny) may have for its object
both public and private law. The law made by the legislative power
is the expression of the popular law the wants, the opinions, and the
spirit of the nation ; and this is so whatever may be the form given to
the legislative power by the political constitution of the State. For
whether the law be made by a prince, by a senate, by an elected
assembly, or by a concurrence of those divers powers, the relations
between the legislator and the people are not essentially altered, and
it is an error to suppose that to represent the spirit of the nation, the
law must necessarily emanate from an elected assembly."
This doctrine (he continues) does not assign to the legislator a
secondary post below his dignity, nor condemn legislation as useless
or even dangerous. For legislation completes positive law, and aids
its progressive development. Whatever may be the certainty of the
fundamental principles of positive law (in its primitive form), a mul-
titude of details may remain undetermined, especially among a people
whose activity has not specially been directed to the formation of law.
Thus, for all the rules which leave a large space to discretion, the
popular law constituted by opinion requires a complement ; and
though that complement may be given by custom, legislation offers it
in a way more prompt and more secure.
Legislation, adds the illustrious German civilian, has a still greater
effect on the progressive development of law. When the change of
manners, of opinions, and of wants, requires a change in the law, or
the progress of time calls for new institutions, these new elements may
be furnished by the invisible force which created positive law. But
here, above all, the intervention of legislation shows itself beneficent
Savigny, Traite" du Droit Rom. torn. 1, chap. 2, 12, pp. 32, 33, 34, 35. And
see my Reading on the Reasons of Laws Readings at the Middle Temple, pp. 125,
126.
' Savigny, ibi, ^ 13.
" Ibi, p. 38.
220 OF THE PARTS OR BRANCHES
and even indispensable. As those divers causes act slowly and gra-
dually, there is necessarily a time of transition during which the law
(jus] is uncertain, and the law (lex, made by the legislative power) is
called upon to put an end to that uncertainty. On the other hand, the
different institutions of the law are connected together, and react on
each other. Each new principle may therefore, unperceived, contradict
other and undented principles. To solve these difficulties, reflections
and combinations are required, which cannot come from a personal
action, that is to say, that of general opinion. These principles
become still clearer when the law (jus) to be modified is determined
by an enacted law. There the principle which forms law (jus) is tied
down and fixed by the authority of a text, and its progress stopped.
We see in the history of all nations times when circumstances prevent
the law (jus) from issuing from the opinion and conscience of the
nation ; and there the legislator takes up a work of progress and
development, which cannot be interrupted. Never did this change
take place more suddenly or more visibly than under Constantine, and
from his time the Roman law was continued only by the numerous
laws of the emperors. x These reflections are confirmed by the history
of English law. In the reign of Edward the First we find a remarkable
progress made by a great number of statutes settling things and giving
definite form to legal institutions which the common law had left in
embryo ; so that Blackstone says that the very scheme and model of
the administration of common justice between party and party was
entirely settled by this king. y And in modern times the statute law
has progressively increased to an enormous extent, partly because the
courts are fettered by former decisions, and many difficulties can only
be solved by legislation. So the rise and progress of the equitable
jurisdiction of the Court of Chancery give an example of law pro-
duced by the force of the wants and the opinions of the country.
The courts of law, in the days of Lord Coke, opposed the jurisdiction
of equity as an innovation; but the narrow way in which the judges
had construed the Statute of Westminster z the Second, 13 Edw. I.
c. 24, and the insufficiency of the remedies given by the courts of
common law, rendered equity a necessary complement of the national
jurisprudence, and so it became fully established. Afterwards this
new branch of English law became the subject of a great number of
statutes, made for the very purposes to which Savigny refers, i. e.
x Savigny, p. 41.
y Blackst. Com. book 4, ch. 33, p. 427.
1 Blackst. Com. book 3, ch. 4, pp. 51, 54, 55. And see the opinion of Fairfax in
the Year Book, 21 Edw. IV. 23.
OF THE SOVEREIGN POWER. 221
to define, modify and settle the system and its administration, which
the legislature had not created to remove or solve difficulties, and to
construct machinery.
Savigny observes, that the explanations which he has given show
legislation to be by no means inferior to pure popular law, that is to
say, law not clothed in the formula of a written law. But, he adds,
that it would be also a great error to believe that the popular law is
intended only to fill the accidental lacuna, of legislation, and that it
must disappear as soon as laws are written ; for the result of this
would be, that a written law could not be abrogated by a contrary
custom. Therefore, if these two forms of the law (jus} be placed on
the same level, it does not appear why an accidental circumstance, the
adoption of a principle by legislation, should fetter popular law and
arrest its action. He then proceeds thus to speak of the form of the
written law. This is determined by the very nature of the power from
whence it emanates, and the absolute authority with which it is clothed.
They require the abstract form of rule and command. Expositions and
developments, in the nature of proofs or arguments, belong to another
sphere of ideas. But to make a good law, the legislator must seize
upon the entire organic nature of the institution, and, by an artificial
proceeding, draw from it the abstract prescription of the law. a
We must not suppose that customary law is altogether foreign to
the authority of the legislator, for its force depends on his tacit con-
sent, whatever may be the form of government. b This is more obvious
in a democracy, for, as Julian says, it is not materially different,
whether the people give their consent by their votes or by their acts. c
But however despotic a government may be, the people may introduce
law by use, by virtue of the acquiescence of the legislative power. d
And this is the way in which the jus populi of Savigny manifests itself
as positive unwritten law.
These reflections will suffice to give some idea of the philosophical
and legal characteristics of legislation.
We have now to consider, briefly, the political legal character of
the legislative power. The power of making laws is essentially the
supreme power in a state; and when it is vested in any separate
branch of government, that branch must have a preponderance in the
political system, and act with such great force on the community, that
the line of separation between it and the other branches of the govern-
* Savigny, Trait du Droit Rom. torn. 1, p. 42.
b Voet ad Pand. lib. 1, tit. 3, 27.
c L. 3, ff. De Legib.
d Grot. Droit de la Guerre, liv. 2, ch. 10, 5.
222 OF THE PARTS OR BRANCHES
ment ought to be distinctly marked. 6 It cannot be controlled or
limited, except where, as in the congress of the United States of
America, it is specially defined, and delegated with a reservation of
sovereignty in some other authority . f In that case, there is a residuary
legislative sovereignty reserved to the states ; so that the congress has
not an entire and plenary legislative power. But where that power is
entire, it cannot be restricted or limited in its exercise by any organic
law. Therefore, it is a maxim in the constitutional law of England,
that no act of parliament can derogate from the power of future par-
liaments. 8 Such is the meaning of the doctrine called the omnipo-
tence of parliament. This is the result of a fundamental principle of
Public Law, the supremacy of the legislative power. Therefore it is
that Montesquieu says, that when the legislative and the executive
powers are conjoined in the same person or senate there is no liberty,
because that person or senate may make tyrannical laws to enforce or
execute them tyrannically.' 1 And herein the legislative differs from
the other powers of the state, which must act according to such laws
as apply to them, and cannot alter the law. These principles show
why the Roman emperor was legibus solutus, or not bound by the
law ;' and yet Constantine declares that the emperor ought to consider
himself bound by the laws, k that is to say, except in his legislative
capacity. And Cujacius explains that the emperor was bound by his
laws in the same way that the Roman people were bound by theirs,
when they held the sovereign authority. 1
We will now proceed from the general to the particular matters,
regulated or administered by the supreme power of the state. And
first, of those which are are directly public. These belong to the
executive power..
In its strictest sense, the term executive power would include only
the execution and compelling obedience to the law. And this is the
first branch of the executive power. It has also a wider signification.
Montesquieu holds that there are in every state three sorts of powers,
namely, the legislative power, the power executory of things depend-
ing on the law of nations, and the power executory of those which
depend on the civil or municipal law. m The third of these he calls
e Kent, Comment, vol. 1, part 2, lect. 11, p. 220; Story, Comment, on the Consti-
tution of the United States, vol. 2, 532.
'Ibi.
Coke, 4th Inst. cap. 1, p. 42.
h Montesq. Esprit des Loix, liv. 11, ch. 6, p. 208; Blackst. Com. b. 1, p. H6.
1 L. 31, ff. De Legib.; Voet ad Pand. lib. 1, tit. 4, 1.
k L. 4, Cod. De Legib. et Constit.
1 Cujac. Op. torn. 3, fol. 417, edit. Venet. Mutin.
m Montesq. Esprit des Loix, liv. 11, ch. 6, p. 207.
OF THE SOVEREIGN POWER. 223
the power of judging, or judicial power, and the second the executive
power. But this classification is evidently not comprehensive enough
to include all the necessary functions of government. And the system
of Blackstone seems, on the whole, preferable, which comprises under
the general term executive, all that does not belong to the legislative
nor to the judicial functions, because the two latter consist in decree-
ing and deciding, whereas the remaining functions consist either in
executing what has been so decreed or determined, or in doing or
administering divers things for the public welfare of the state. It is
true that the executive has in all states the power by itself, or its
officers, to make regulations in the nature of bye-laws. But this sort
of power is of an exceptional or anomalous character, and is either
derived by delegation from the legislature, or exercised chiefly with a
view to the performance of executive functions, especially matters of
administration. So, for instance, the treasury in this country has the
entire control and management of the public revenue and expenditure ;
and that department exercises a quasi legislative power of making
regulations by treasury minutes. But that power does not alter the
nature of the proper functions to which it is simply subsidiary.
The executive power has divers parts, the nature of which we will
now examine separately, so far as the subject comes within the scope
of Public Law.
One means of enforcing laws is the infliction of punishments. And
this is in accordance with a chief object of civil society, namely, 1 ' pro-
tection from injuries and the maintenance of peace and security. And
though this object cannot be perfectly attained, yet the institutions of
civil society are calculated to produce the observance of natural laws
and those which have been provided by the civil power. But the sel-
fishness and passions of man would overthrow the order of society and
disobey the laws, if the authority of the government did not restrain
them by inflicting punishments on those who disturb that order, by
breaking the law. q I have already shown r that the right of punishing
offences is of natural law ; and that in the civil state and under muni-
cipal laws, it is exercised by the authority of the civil magistrate; and
though the form in which the right of punishing exists in civil society
is given by municipal law, yet the right itself is juris gentium and of
natural law.
n Blackst. Comment, b. 1, ch. 2, pp. 146, 147.
Thomas, Notes of Materials for the History of Public Departments, pp. 1, 9, 12.
P Pufend. Droit des Gens, liv. 7, ch. 4, 3.
"> Pufend. ibi ; Heineccii Praelectiones in Pufendorf; De Offic. Horn, et Civ. lib. 2,
cap. 7, 3.
r See beginning of Chap. XVII.
224 OF THE PARTS OR BRANCHES
In relation to private law the province of the legal power of punish-
ment is the protection of private rights where they are not sufficiently
protected by the civil remedies, whereby the rights of dominion or pro-
perty and the obligations arising either from consent or without con-
sent, are protected and enforced. Thus, for example, the right of
dominion or ownership would not be sufficiently protected by the civil
remedy of restitution in cases of theft. 8
But in relation to Public Law, the province of the legal power of
punishing is more extensive. We have seen that Domat defines
Public Law to be a system of rules which regard the general order of
a state. And he shows that the power of restraining by punishments
persons who violate those rules, and disturb that order, is necessary to
the existence of human society. The exigencies of human society in
highly civilized countries have engendered an infinite variety of those
rules, and caused the detail of that order to become very complicated
and extensive. Hence that great number of penalties or punishments
which we find in the laws of our own and other countries, having for
their object to enforce obedience to their enactments. And viewed in
this light, criminal law may be considered as a branch of Public Law.
Its fundamental principle is contained in the words of Cujacius with
regard to municipal law, strictly so called, that is to say, positive or
arbitrary municipal law : Utilitas peperit jus civile. Hac autem utilitas
CBquitas est, et quidquid reipub. utile et conducibile est, bonum et
cequum est. And so Grotius lays it down that the true object of human
punishment is not vengeance but some utility, some advantage to be
derived from its infliction. 1 It is not only because the offender morally
deserves punishment that he is punished, but he is punished with a
view to utility, to produce some useful result. And so, as Grotius and
Pufendorf agree, every punishment ought to have for its object the
correction of the offender, the security of those interested in the offence
not being again committed, or the welfare of the community or mankind
at large."
The chief and essential object of punishments is to deter others, by
example, from offending. 51 This is the only object of capital punish-
ments. Another great object of punishments is the amendment of the
offender. It is the infliction of some pain, with a view to deter the
See my Readings at the Middle Temple, p. 139.
1 Cujac. Recit. Solemn, ad lib. 1 Digest, tit. De Just, et Jur. ; Cujac. Op. torn. 7,
col. 9, edit. Venet. Mutin. ; Grot. Droit de la Guerre, liv.2, c. 15, 4; Cremani, De
Jur. Crim. lib. 1, pars 2, ch. 4, vol. 1, p 124.
u Pufend. Devoir de 1'Homme et du Cit. liv. 2, ch. 13, 6, 7; Grot, ubi sup. 8,
p. 128; Devoti, Inst. Canon, lib. 4, tit. 1, 1.
x Cremani, De Jur. Crim. ubi sup. 8.
OF THE SOVEREIGN POWER. 225
offender from breaking the law again ; and it should be accompanied
with what Lord Coke calls preventing justice, which consists partly in
religious and moral instruction.* Of the corrective character all punish-
ments ought to partake, except that of death, which operates only by
way of example. Such are the general objects of punishments. But
the degree of moral guilt of the offence must not be neglected in deter-
mining the severity with which it should be punished. 2 And utility
being the object of punishments, severity ought never to be carried
beyond what that object demands. Therefore it is necessary that
there should be vested in the sovereign power of the state an authority
to pardon offences or mitigate punishments, in cases in which peculiar
circumstances require an exception to the general rules of criminal law,
or where clemency is more for the public good than a strict adherence
to the law. a
The legislative power and that of enforcing the laws would suffice,
with the judicial power, to secure men from wrongful acts of others,
but other things are also necessary for the order and welfare of a state
and to attain the objects of civil society.
As public affairs, in times both of peace and of war, could not be
managed or administered by the sovereign or the sovereign power
itself, without the assistance of ministers, officers, and magistrates, it
is necessary that there should be in every state a power of establishing
persons to hear and determine the differences of the citizens, to levy
and manage the revenue and finances, to discipline and command
forces, and perform various other duties in the public administration
and economy. 15 This is one of the powers generally included in the exe-
cutive branch. And whatever be the mode in which public officers and
magistrates are appointed or elected, their authority is part of the civil
power of government, and emanates from the sovereign power of the
state. And thus Blackstone says, that the most universal public rela-
tion by which men are connected together is that of government;
namely, as governors and governed, or, in other words, as magistrates
and people. And of magistrates some are supreme, in whom the sove-
reign power of the state resides ; others are subordinate, deriving their
authority from the supreme magistrate, and acting in a subordinate
sphere. The functions and duties of those public officers are of various
descriptions : some judicial, others executive ; some ministerial and
* Coke, 3rd Inst. Epilogue.
z Grot, ubi sup. 28.
* Lampredi, Diritto Publ. Univers. lorn. 3, p. 74.
b Pufend. Droit des Gens, liv. 7, ch. 4, 6; Heineccii Praelectiones in Pufend. De
Offic. Horn, et Civ. lib. 2, cap. 7, $ 6.
c Blackst. Com. b. 1, ch. 2, p. 146.
Q
226 OF THE PARTS OR BRANCHES
others discretionary, and others again consisting in advising and deli-
berating : and their various offices and gradations, and the way in which
they perform different parts of the public service, their rights, their ob-
ligations, and responsibilities, constitute the greater part of the internal
Public Law of every state. These matters are governed by an infinite
variety of rules, some of natural or immutable, and others of positive
law ; but all bearing some relation to the order of society and to the two
primary laws on which that order is constructed. For the body of
society is composed of an infinite number of different conditions and
professions and employments necessary for the common good. And it
is essential to society that there should not only be a subordination of
them all under one power, but also a systematic subordination among
themselves according as their functions depend upon each other, for the
purpose of uniting the whole body politic together by the spirit of the
two primary laws. And thus we have seen that the power of civil
government is one of the bonds or ties by which universal human
society is made to subsist. We have also seen that another tie by
which God maintains human society is that of the common humanity
uniting men together, though belonging to different states. It has
for its subject the use of commerce and of the several sorts of
intercourse and communications which one nation holds with another,
and the subjects of one state with those of another. And hence
arises the necessity of negociations, embassies, and treaties among
nations. And as there is no common power having authority over
nations to maintain the observance of those laws which ought to
govern them in their intercourse with each other, and punish offences
against them, wars have become necessary, with a variety of things
arising from that mode of settling the differences of nations. Treaties,
negociations, wars, the conclusion of peace, and the various matters
arising therefrom, are therefore a necessary branch of the sovereign
power. d It naturally belongs to the executive. Though the right of
declaring war is vested by the constitution of the United States of
America in the legislature, 6 that of carrying it on belongs to the Pre-
sident/ And, for the most part, this prerogative is given by the Public
Law of different countries to the executive. And though treaties have
o
a force and effect analogous to laws, yet they are not laws, but con-
tracts. With regard to negociations, it is important to observe that in
a state where the legislative authority is vested in one or more assem-
blies, they must be confided to the executive branch of the government,
d Pufend. Droit des Gens, liv. 8, ch. 6, 10; Vattel, Droit des Gens, liv. 3, ch. 1,
4; liv. 4, ch. 2, 10.
e Kent, Comment, vol. 1, part 1, lect. 3, p. 52.
1 Ibi, part 2, lect. 13, p. 282.
OF THE SOVEREIGN POWER. 227
which usually possesses the necessary requisites of unity, secrecy and
despatch. And for this reason ministers in this country frequently
decline to communicate information to Parliament regarding negocia-
tions which are not concluded.
The internal peace of the community would not suffice without pro-
tection against external injuries and attacks. For this purpose the
citizens must unite their forces for their common security and the
maintenance of their common rights. And thus there must be in the
State a power of assembling and arming forces on land, and, in some
cases, on the sea also. g Such forces are also required in time of
peace, for the maintenance of the public tranquillity, and the protec-
tion of commerce ; and external security can hardly be enjoyed by
any nation that is not prepared for the event of war. This can only
be accomplished by keeping some permanent military establishment,
the care of which is an important department of executive govern-
ment.
Public administration and government, both in war and peace,
require considerable resources and expenditure. Therefore the sove-
reign authority must have power to make the subjects contribute to
the expenses necessary for the State. 1 ' The State has rights over the
citizens who compose it, and their property, so far as the public
welfare necessarily requires. This right is the chief part of what is
commonly called jus eminens, or superior right. It is that right
which the entire body has over the members and whatever belongs
to them, and which being for the common good is superior to the
private rights of individuals belonging to their private interest. 1 This
jus eminens is called by writers on Public Law dominium eminens,
when it regards property. k It is the right of the State or the sove-
reign power over property within it when necessity or the public good
requires. 1 This is the true, foundation of the right of taxation. That
right has indeed been placed by some writers on the ground of consent
of individuals to part with a portion of their property for the public
good. But this theory is an instance of the error which attributes to
consent or contract, obligations which arise from natural equity. The
doctrine that every man consents (in some forms of polity) to be taxed
by his representatives, rests on a fiction, for every system of represen-
tation leaves many, frequently the majority, unrepresented, who never-
* Pufend. Droit des Gens, liv. 7, ch. 4, 5.
h Pufend. Devoir de 1'Homme et du Citoyen, liv. 2, ch. 7, 7.
1 Grot. Droit de la Guerre, liv. 1, ch. 1, 6.
k Zallinger, Inst. Jur. Nat. et Publ. Eccl. torn. 1, lib. 3, cap. 4, 214; Lampredi,
Diritto Publ. Univers. torn. 3, parte 2, cap. 3, 21 ; Grot. Droit de la G. liv. 1,
ch. 3, 6.
1 Vattel, Droit des Gens, liv. 1, ch. 20, 244.
Q2
228 OF THE PARTS OR BRANCHES
theless pay taxes." 1 And here a celebrated rule of the canon law is
applicable quod omnes tangit ab omnibus debet approbari. n The
meaning of the rule is, that though the corporate acts of a body, such
as a chapter, are valid with the consent of the majority, the consent of
all is necessary for the purpose of affecting the private individual
rights of the members of the body. So the consent of a majority
would not per se suffice on sound principles of jurisprudence to affect
the private individual rights of property of the minority of the citizens,
without an obligation making it the duty of the minority to submit to
the decision of such majority. But if an obligation to contribute to
the burthens of the State be shown, then it will follow that the powers
of imposing taxes and other duties lawfully belongs to that person or
those persons in whom it is vested by the fundamental or organic
laws of the State. That obligation is similar to the other obligations
of secondary natural law, resulting, as consequences, from the insti-
tution of civil society ; and so it is held by the highest authorities on
Public Law. q For all the members of a body ought to perform their
duties in it, that the body may subsist in the good order in which it
ought to be for the common welfare ; therefore it is both necessary
and just that those who compose a state should consider it their duty
to do what is required of them for this common good, which is their
own good. This truth, which comprehends all duties to the public,
particularly regards the duty of those who compose a state, to contri-
bute towards the expenses which the public service requires, whether
for its internal order and administration, or for defending; it against
* o o
external enemies since, without this assistance, the state would
perish by injustice, violence, divisions, and sedition, and would be
left an easy prey to its enemies. q
The same principles prove that it is sometimes just that a person be
deprived of his property for the public advantage, as is the case when
railroads, canals and other public works are constructed on private
property. But in that case the person whose rights are affected has a
right to compensation ; for the charges of the public service ought to
be distributed equally and in a just proportion, and no one (as far as
may be) should be burthened beyond his just share. This principle is
analogous to the case of goods thrown out to lighten a vessel : for the
owner of the property is entitled to compensation from the others who
ni Savigny speaks of " the fiction of representation" in this sense. Traits' du Droit
Rom. vol. 1, p. 30.
n Reg. 29, tit. De Reg. Juris, in Quinto Decretalium.
Faebeus, De Regul. Jur. Canon, p. 175, &c.
P Zallinger, Instil. Jur. Nat. et Eccles. Publ. torn. 1, lib. 3, cap. 7.
4 Domat, Droit Publ. liv. 1, tit. 5.
OF THE SOVEREIGN POWER. 229
have derived advantage, by the safety of their goods, from his loss/
Compensation to persons whose property is taken or injured for public
advantage should be given either by the State or by the persons pro-
moting or more immediately benefited by the works.
Such are the chief principles of Public Law regarding a public re-
venue. They are in accordance with the doctrine of Adam Smith,
that " the subjects of every state ought to contribute to the support
of the government, as nearly as possible in proportion to their re-
spective abilities; that is, in proportion to the revenue which they
enjoy respectively under the protection of the State. In the obser-
vation or neglect of this maxim consists what is called the equality
or inequality of taxation." 5 And so another high authority says :
" For what reason ought equality to be the rule in matters of tax-
ation ? For the reason that it ought to be so in all the affairs of
government, as a government ought to make no distinction of
persons or classes in the strength of their claims on it: whatever
sacrifices it requires from them should be made to bear as nearly
as possible with the same pressure on all, which, it must be observed,
is the mode by which least sacrifice is occasioned on the whole.
If any one bears less than his fair share of the burthen, some other
person must suffer more than his share, and the alleviation to the
one is not, ctsteris paribus, so great a good to him, as the increased
pressure on the other is an evil. Equality of taxation, therefore, as a
maxim of politics, means equality of sacrifice. It means apportioning
the contribution of each person towards the expenses of the govern-
ment, so that he shall feel neither more nor less inconvenience from
his share of the payment than every other person experiences from
his. This standard, like other standards of perfection, cannot be
completely realized ; but the first object in every practical discussion
should be to know what perfection is." 1 It is curious to find some-
thing analogous to those principles in the laws of Manou."
The charges of the public service are partly defrayed in most
countries by public property vested in the sovereign power of the
state, for the benefit of the community. And the administration of
r Grot. Droit de la G. liv. 3, ch. 20, 7; Pufend. Droit des Gens, liv. 8, cb. 5,
7; Vattel, Droit des Gens, liv. 1, ch. 20, 244; Pandect, lib. 14, tit. 2, De Lege
Rhodia ; Elukemore v. Glamorganshire Canal Company, 1 Mylne & K. 162 ; 1 Blackst.
Com. 139; 1 Stephen, Com. 133, 134, 154; Simpson v. Lord Howden, 1 Keen, 598,
599; Lister v. Lobley, 7 Ad. & El. 124; Entick v. Carrington, 19 Howell, State
Trials, 1066.
9 Adam Smith, Wealth of Nations, b. 5, ch. 2, part 2. And see Pufend. Droit des
Gens, liv. 8, ch. 5, 6.
Mill, Polit. Econ. vol. 2, b. 5, ch. 2, 2, p. 350.
Loix de Manou, liv. 7, 128, 129 ; and see Pufend. Droit des Gens, 1. 8, ch.5, 5.
230 OF THE PARTS OR BRANCHES OF THE SOVEREIGN POWER.
such property is for the most part entrusted to the executive power,
though subject to legislative regulations. 35 Such, in this country, are
the crown lands or demesne lands which form part of the ordinary
revenue of the crown. y This species of property must be distinguished
from the private patrimony of the prince, which belongs to him other-
wise than by the title of his quality as sovereign. 2
There is some doubt whether the raising of revenue naturally belongs
to the legislative or to the executive branch of government.
Grotius, Pufendorf and Burlamaqui, agree in placing it under a
separate head. a But a distinction will easily solve the difficulty.
The establishment of a permanent tax must naturally be by the
enactment of a law by the legislative power, for this is a general
regulation prescribed by the sovereign power of the state. But it
does not follow that because in countries where there is a representa-
tive assembly, the consent of that assembly is required for the impo-
sition of taxation; therefore, that act of sovereignty is necessarily
legislative. Thus, where supplies are raised in the form of a contri-
bution, to be paid once, it is not necessarily an act of legislation, though
it may be so in point of form, according to the municipal law of the
country. And the actual levying and management of revenue is
essentially an executive function, especially where it consists of carry-
ing the law into execution, by receiving and administering a permanent
tax. The doctrine that raising a revenue belongs to the legislative
power is more political than legal, and it is grounded on unanswerable
reasons of policy, whenever the form of government is mixed. We
may conclude that the power of taxing the community for the public
wants is of an anomalous nature, though frequently exercised by the
enactment of laws ; but the actual levying of imposts and their ma-
nagement properly belongs, on legal principles, to the executive.
With regard to interference with the rights of property by the State
for the public advantage, as in the case of roads, canals and railways,
and other public works, it would seem that where this involves a per-
manent alienation of private property secured by the municipal law,
without the consent of the owner, it ought to emanate from the autho-
rity of the legislative power; but the actual administration of this
function is executive.
* Vattel, Droit des Gens, liv. 1, ch. 20, 244.
y Blackst. Com. b. 1, ch. 8, pp. 245, 246.
1 L. 2, Cod. De Offic. com. rer. priv. ; 1. ult. Cod. De Agricol. et Mancip. Domin. ;
1. 6, ff. De Jure Fisci ; Domat, Droit Publ. liv. 1, tit. 6, 8.
* See my Comment, on the Constit. Law of England, p. 61 ; Grot. Droit de la
Guerre, liv. I, ch. 3, 6, num. 4 ; Pufend. Droit des Gens, liv. 8, ch. 5, 4; Bur-
lamaqui, Droit des Gens, vol. 4, part 2, ch. 13, 6, p. 415, edit. Dupin ; Martens,
Droit des Gens, liv. 3, ch. 3, 88.
OF THE JUDICIAL POWER. 231
CHAPTER XXI.
OF THE JUDICIAL POWER.
Legal Nature and Necessity of the Judicial Power Private War Cases in which the
Use of Force by Private Individuals is still lawful in Civil Society Right of Self-
defence Jurisdiction Notio Proper or ordinary and delegated Jurisdiction Civil
and Criminal Jurisdiction Distinction between Public and Private Wrongs Effect
of Judicial Decisions Res judicata Degrees of Jurisdiction and Appeals.
WE have seen that Grotius, in dividing the sovereign power, refers to
the judicial branch as the function of the sovereignty which regulates
particular private matters, considered as having a relation to the public
good. It may, perhaps, here be objected, that the judicial power,
which decides doubtful questions regarding the application of laws,
frequently pronounces on public as well as on private matters. This is
true; but the judicial power never decides a naked proposition. It
decides differences which arise in the case of individuals acting in
their public or private capacity, or bodies acting as persons in law.
Thus, in the trial of a minister of state, or other public functionary,
for a state offence, the direct question which the court has to decide,
is the guilt or innocence of the accused, though that decision has a
relation to and may affect the constitution and welfare of the state.
In this respect, Grotius speaks of things under the judicial power, as
particular matters, directly or immediately private.
The judicial power is one of the three great branches of the civil
power of government, and necessary for the maintenance of civil
society. Its legal nature must now be examined as a fundamental
part of Public Law.
The legislator constructs the law by discovering the organic nature
of the institution or matter which he has to regulate, and drawing from
it an abstract rule. But the judge, by an inverse operation, recomposes
that which has been decomposed, and of which the law presents a
single aspect. 6
Laws cannot by the utmost skill of a human legislator be so con-
structed as to exclude all doubts as to their application ; therefore,
disputes must arise touching their application to particular cases, and
b Savigny, Traite du Droit Rom. torn. 1, ch. 2, 13, p. 42; 1. 3, ff. De Legib. 1. 8,
ibi.
232 OF THE JUDICIAL POWER.
it is frequently necessary to examine into a multitude of circumstances,
where actions are alleged to be at variance with the law. c And before
the effect of the law in a particular case can be determined, it is neces-
sary to ascertain the facts. But questions of fact are, as Neratius says,
liable to greater doubts and difficulties than questions of law. d Now
these questions of law and fact must be settled when they arise, other-
wise the law would be altogether disobeyed in all such cases, and
would take effect only where both its meaning and its application were
undisputed. And thus the laws on which the whole system and the
order of civil society depend, would be rendered of no effect, for laws
would cease to be general rules of conduct. Especially criminal laws
would be useless, since offenders would scarcely ever admit their own
guilt. Mere natural society presents no sufficient solution of these dif-
ficulties, for as it has no sovereign power, every man must be left to
vindicate his own rights and those of the persons in whom he is inte-
rested or whom he is bound to protect. This method has been called
private war, concerning which Grotius says, that the law of sociability,
which is in the nature of man, does not forbid all use of force, but only
violence contrary to society, that is to say, that which is contrary to the
rights of others. For a chief object of society is that each person may
enjoy peaceably all that belongs to him, with the assistance of the power
of the whole body. 6 Therefore the law of society cannot justly prevent
a man from defending and enforcing his own rights, unless society will
undertake that task for him. But on the other hand, the right of
private war, which makes every man judge in his own cause, and gives
an undue advantage to the strong over the weak, is liable to the most
serious evils/ Civil society furnishes the remedy, and indeed it is by
its very nature and objects incompatible with the existence of a system
leaving each man to determine and enforce his own rights. For as
Domat says, the different engagements or obligations by which man
is destined to society on the foundation of the two primary laws, re-
quire the use of a government to restrain every one within the order of
those which bind him. And for this God has established the authority
of the powers which are necessary to maintain society. 5 It is, more-
over, contrary to natural reason that any man should be judge in his
own cause. h
c Pufend. Droit des Gens, liv. 7, ch. 4, 4.
d L. 2, flT. De Jur. et Fact, ignor.
e Grotius, Droit de la Guerre, liv. 1, ch. 2, ^ 1, num. 6.
f Zallinger, Inst. Jur. Nat. et Eccles. Pub. torn. 1, lib. 3, cap. 9, 140.
6 Domat, Loix Civiles, Traite des Loix, cb. 4, 6.
h Cod. lib. 3, tit. 5, Ne quis in sua causa ; Hob. Rep. 87 ; Voet ad Pand. lib. 2, tit. 2,
$50.
OF THE JUDICIAL POWER. 233
From these reasons springs the fundamental doctrine of Public Law
laid down by Antoninus Pius, Callistratus, and Paulus, that no man
is permitted to take the law into his own hands, and to do himself that
which the civil magistrate is instituted to do, when the civil power is
able and ready to maintain his rights. 1 It follows that under the civil
state, the civil power of government must administer justice, by de-
ciding in each disputed case, whether the facts are within the meaning
of the law and what the law commands thereon, and for this purpose
deciding, where there is dispute or doubt, what are the true facts which
are to be subjected to the rules of the law. And for this purpose,
judges and magistrates of divers sorts and orders are instituted in every
civil comrmmity. For as the law of nature does not give any man
authority to judge over his fellows, the creation of judges belongs, as
we have seen, to the sovereign power, which cannot itself perform
those functions in person, though it sometimes reserves a supreme judi-
cature by way of appeal.*
Thus the institution of civil society has taken away the right of
private war from individuals. But this proposition must not be received
without limitations. For those cases must be excepted in which, as
Grotius says, the recourse to civil justice is not open to the citizen, 1 and
the right of self-defence therefore remains. Every man has a right to
defend himself or his property, or even to defend others, where there is
not time or opportunity to call the aid of the civil power. The reason
is obvious; for if it were not so, men would find themselves in a worse
condition in those cases, under civil government, than they would be
in if they were living in mere natural society without any civil govern-
ment. Therefore, Paulus specifies that it is not allowed for private
persons to do for themselves that which the magistrate is able to do
for them by his authority, otherwise great disorders would ensue.
These reflections show that the judicial power is of secondary natural
law, like the other parts of the civil power of government, necessary
for the maintenance of society and the fulfilment of the two primary
laws whereon society is constructed. And indeed it may be questioned
whether some sort of judicature be not more necessary to the mainte-
nance of civil society than municipal laws themselves.
The exercise of the judicial power is called jurisdiction. That term
in its wider acceptation means every species of authority over persons
or over things with reference to persons which is not a mere right of
1 L. 13, ff. Quod metus causa ; 1. 176, ff. De Reg. Jur.
k Devoti, Inst. Jur. Canon, lib. 3, tit. 1, ^1,3.
1 Grot. Droit de la Guerre, liv. 1, ch. 3, 3.
m L. 176, ff. De Regul. Jur.
234 OF THE JUDICIAL POWER.
property." But in the stricter sense, jurisdiction is the public power of
deciding causes, civil and criminal ; or the cognizance and decision of
disputes which arise among men ; the examination of accusations, and
the punishment of the guilty according to law. p Jurisdiction is exer-
cised by the interpretation of the law, that is to say, by the declaration
of the judge that the particular fact in dispute before his tribunal is or
is not comprised in the law; q or by the decision of the judge as to the
truth of alleged facts, and his declaration that the state of facts so
found to be true is or is not within the meaning of some particular law
or principle of law. Thus Marcian speaks of the decisions of the
Praetor as the living voice of the civil law ; and Cicero says, that the
magistrate is a speaking law, and the law a silent magistrate/
We have already seen the distinction between merum imperium and
jurisdiction, 5 which includes the power of executing or ordering the
execution of that which is decided. 1 There is also the simple power of
deciding, which is called by the civilians notio y as contradistinguished
from jurisdiction. It consists of the mere power of cognition and de-
ciding, so that the execution of what is decided remains for another
authority having jurisdiction. 11 Such was the authority of masters in
chancery. Jurisdiction may be either proper or delegated. The former
is that which the judge exercises by virtue of his own office, and not
by the authority of any other person ; and the latter is a jurisdiction
held and exercised in the name and instead of some other person who
granted it.* This distinction is especially in use among the canonists,
who designate proper jurisdiction by the name of ordinary jurisdiction,
and divide all judges into ordinary judges and delegates, or judges
delegated There are other legal distinctions regarding jurisdiction, but
these are for the most part either peculiar to the civil and canon law,
or have their use and application chiefly with reference to private law.
We will, therefore, confine ourselves to those which belong to Public
Law. The most remarkable is that which divides jurisdiction into two
branches, civil and criminal. They are thus defined.
a Pufend. Droit des Gens, liv. 4, ch. 4, 14.
Voet ad Pand. 1. 2, tit. 1, De Jurisdic. 1.
P Pufend. Droit des Gens, liv. 7, ch. 4, 4. And see Coke, 4th Inst. proem.
1 Lampredi, Jur. Pub. Univ. par. 2, c. 3, 17.
1 L. 8, ff. De Just, et Jur. ; Cicero, De Legib. lib. 3, 1.
Chap. XX.
Voet ad Pand. lib. 2, tit. 1, 1.
Ibi, 2 ; 1. 15, ff. De re judic.
* Voet, ibi, ^ 7.
y Devoti, Inst. Canon, torn. 2, p. 33, lib. 2, tit. 2, 1 ; Decretal, lib. 1, tit. 29 ;
ibi, tit. 31.
OF THE JUDICIAL POWER. 235
Criminal jurisdiction is the public power of taking cognizance of
crimes, and imposing punishments for the public welfare f or, as it is
defined by Pufendorf, the power of examining accusations, and com-
manding the punishment of the guilty, according to law.
Civil jurisdiction is that which has for its object the application of
laws not intended for the punishment of offenders, but declaring, de-
fining or creating natural or civil, immutable or positive rights.
Some writers have sought the principle which distinguishes these
two branches of jurisdiction from each other in the difference between
private and public wrongs, and have held that the former are redressed
by the civil, and the latter are vindicated by the criminal jurisdiction.
But this does not solve the difficulty. Some unlawful acts, that is to
say, acts or omissions at variance with the law, tend directly to
injure the commonwealth, while others are immediately injurious to
the rights of individuals or bodies considered as such. a But no
general invariable rule determines, on an abstract principle, the boun-
dary between public and private wrongs. Eveiy violation of a private
right of an individual is a disturbance of the order of society, and an
offence against the community, which is established for the protection
of men's rights and the welfare of all its members. Viewed under this
aspect, it is a public wrong. We have seen that man is destined to
society, founded on the two primary laws, by two classes of engage-
ments, which include all the legal relations that exist among men,
whether springing from the natural ties of marriage, or from the infi-
nite variety of engagements formed by the several communications
which pass among men of their labour and industry, and all kinds of
services and assistances, and those that relate to the use of things.
And this comprehends all that may link persons together according to
the different wants of life, by gratuitous communications or by com-
merce. And by all these engagements of both kinds God forms the
order of society of mankind, to link them together in the exercise of
the second law. b The breach of any of the obligations, and the viola-
tion of any of the rights constituting that complicated network of
innumerable and various engagements which pervade human society,
is a disturbance of its order, and a wrong against the commonwealth.
There are, indeed, offences directly affecting the community alone ;
and others, which, by reason of their pernicious nature, are injuries
inflicted on society, as well as directly hurtful to some of its members.
But these are particular sorts of cases which do not afford a general
x Boehmerus, Jur. Crim. 1, cap. 3, | 60 ; Carmignani, Elem. Jur. Crira. vol. 1 ,
pp. 212, 113 ; Renazzi, Jurispr. Crim. lib. 3, c. 2, 2, n. 2.
* Vinnius ad Instit. Paratit. ad tit. 1, lib. 4.
b Dotnat, Loix Civiles, Traite des Loix, chap. 2.
236 OF THE JUDICIAL POWER.
rule. And it may often occur that what is treated by the law as a
private wrong, is not less injurious to the community than another
offence, which is, nevertheless, placed under the head of public wrongs.
Thus, for instance, it cannot be said that a petty theft is more perni-
cious to society than the wrongful and fraudulent detaining of an
estate, or the refusal to pay a just debt ; or that a trifling assault is
more prejudicial to the community than the seduction of the daughter
or wife of a citizen. Yet, by the law of England, the former is an
indictable offence, and the latter only the subject of a civil action.
Blackstone c defines private wrongs or civil injuries as an infringement
or privation of the civil rights of individuals, considered merely as indi-
viduals. But theft comes within that description, and yet it is treated
as a public wrong. Blackstone seems to have felt this objection, for
in exemplifying the distinction between public and private wrongs, he
enumerates as public wrongs a number of instances all consisting of
an offence either against the State as a body, or directly against the
public peace, or including a violation of the rights of the community.
The learned commentator perceived the true reason of the distinction
which we are examining, for he says, " the law has a double view,
namely, not only to redress the party injured, but also to secure to the
public the benefit of society by preventing or punishing every breach
of those laws which the sovereign power has established for the tran-
quillity and government of the whole." He gives here a description
of the general objects of government. We may deduce therefrom that
when the wrong is sufficiently redressed, and the wrong-doer suffi-
ciently discouraged by the reparation which he is forced to make to
the injured person, the wrong may be treated as a private wrong, and
left to the civil remedy. But where the nature of the wrong is such
that any reparation must be impossible or inadequate, and where the
enforcement of the obligation to make reparation is ineffectual for
deterring the wrong-doer and others, society is bound, for the protec-
tion of its members, to threaten and execute punishment in such cases,
as well as in those wherein the grave nature, or the object of the crime,
render it public as being an evident injury to the community in its cor-
porate or politic capacity. We must conclude that, except in cases of
the latter description, the distinction between civil and criminal law and
jurisdiction is matter of public policy, and may vary according to the
circumstances of times and places. For instance, an illegal refusal to
pay a debt legally due is a private wrong, and sufficiently repaired
by civil remedies. But if there were an illegal and unjust general
refusal to pay any important class of debts all over a country, the
'Blackst. Com. b. 4, c. 1, 1.
OF THE JUDICIAL POWER. 237
number of private wrongs might become so serious in its effect that
the civil remedy might be insufficient, and then the legislature might
properly add a public prosecution and penalty to the insufficient power
of the civil laws, though each of the refractory debtors might be actu-
ated by no design against the commonwealth. And on the same
principle it is held in the law of England, that the generality of an
illegal act may alter the nature of the offence, so that, for instance, to
levy a force or multitude of men to pull down a particular enclosure
is a riot, but the same thing done to pull down all enclosures is levying
war against the king and high treason.* 1 The question for the legis-
lator to consider is, how a sufficient remedy can be provided to enforce
the law, and secure the order of society. Thus, theft would evidently
be very inadequately discouraged by the mere civil remedy of restitu-
tion. Therefore, thieves must be punished by the criminal laws,
though theft is a private wrong, considered in itself. These doctrines
are confirmed by the reflection that, though offences against Muni-
cipal Law are also for the most part violations of Natural Law also,
yet the definitions of offences, where the Natural Law does not clearly
define them, and the appointment of punishments, belong to arbitrary
mutable law, which has its justice in its relation to the order of
society, and the particular advantage found in enacting it, according
as the times and places and other circumstances may require. 6 And
every body of Criminal Law contains both sorts of arbitrary laws,
those which are consequences of natural laws, and those which regu-
late invented artificial matters.
We have now to consider the effect of decisions of the judicial
power, on legal rights and obligations, with reference to Public Law.
The nature of judicial functions implies necessarily that every suit or
prosecution should have a solution, and that solution should be exe-
cuted even against the will of the unsuccessful party/ It follows,
that whether the judgment be right or wrong, it declares and defines
the rights of the parties conclusively, if it be final. Hence the maxim
of the civil law Resjudicataproveritate accipitur. It is founded on
the principle of Paulus Singulis controversiis singulas actiones,
unumque judicati finem sufficere probabili ratione placuit ; ne aliter
modus litium multiplicatus summam atque inexplicabilem facial diffi-
cultatem ; maxime si diver sa pronunciarentur. K This principle of
public policy leads to a further consequence, namely, that not only a
final judgment is conclusive in that suit between the parties, but it is
d Hale, Pleas of the Crown, vol. 1, pp. 133, 134 ; Foster, Crown L. 215 ; Keiling, 70.
e Domat, Lois Civiles, Traite des Loix, ch. 11, 20.
f Savigny, Traite" de Droit Rom. torn. 6, p. 264, ch. 4, 280.
e L. 6, ff. De except, rei judic.
238 OF THE JUDICIAL POWER.
conclusive between them in every other suit. It may, as Savigny
observes, seem natural, that when the justice of a decision comes in
question in a new judicial proceeding, it ought to be examined over
again, because if there be error, equity demands that it be rectified.
But, on the other hand, the evils pointed out by Paulus would arise
from this conclusion, which would produce a perpetual uncertainty of
legal rights. We have to choose between two dangers. The question
is, which of the two involves less injury to society. This is a question
of Public Law. h Long experience, and the law of different nations,
show that the uncertainty of law has been looked upon as the greater
evil and as an intolerable one, and to prevent it recourse has been
had to an institution of positive law. The danger of unjust or erro-
neous judgments arising therefrom has been diminished by the esta-
blishment of degrees of jurisdiction and appeals.
The important positive institution intended to accomplish the end
above mentioned may be generally defined as the authority of res
judicata, that is to say, a fiction of truth which protects final judg-
ments from being impeached or modified. 1 This fiction or absolute
presumption of truth gives to a matter of judicial procedure a powerful
effect on legal rights themselves ; for it may engender a right which
did not previously exist, or destroy or restrict an existing right, or
modify that which it contains. But the real practical value of this
institution, as well as its object and spirit, are to maintain just and
correct judgments. For legal rights are often uncertain and doubtful,
and the means of proof vary at different times with regard to the same
facts. Therefore, the second judge may decide erroneously a case
rightly decided by the first; and a final decision is better for the
parties than perpetual uncertainty. k
We find here a remarkable instance of the way in which institutions
of positive law contribute to the machinery and government of civil
society, and also the peculiar equity belonging to them, which consists
in their relation to and use in the order of society. In this peculiar
equity their spirit is to be found and their relation to the two primary
laws on which society is constructed.
We come now to degrees of jurisdiction and appeals. This institu-
tion seems at first sight inconsistent with what has been said re-
garding the importance of settling every litigation by a final decision.
But it is not so ; for this institution only makes the suit pass through
different degrees or stages, to arrive at a final solution. Its advantages
to prevent erroneous judgments are thus shown by Savigny. In the
h Savigny, ubi sup. p. 265.
Ibi, p. 266.
k Ibi, pp. 268, 269.
OF THE JUDICIAL POWER. 239
first place, the revision of a decision is a powerful means both for the
parties and the judge to study and thoroughly master the questions in
dispute. It is a still greater advantage to submit the final decision to
a greater number of judges selected with much care. The new exa-
mination may however take place before the same court. 1 These
considerations are doubly important in criminal cases, especially where
the punishment is very severe. For, as Carpezovius says, the salutary
remedy of appeal is more especially to be allowed where the question
in dispute involves, not a mere civil and perhaps trifling right, but the
life of a man and an irreparable evil. Therefore, the civil law gives
the prisoner (except in certain cases wherein the public safety will not
admit any delay in the punishment of a notorious offender) a general
right of appeal, and allows any byestander to appeal for him even
against his will." Such is the spirit of the institution of appeals, of
which, however, Ulpian says nonnunquam bene latas sententias in
pejus reformat. And thus we see the importance and difficulty of so
framing and regulating institutions according to their spirit, as to
attain, as far as the imperfection of human means will allow, the end
which that spirit points out.
CHAPTER XXII.
THE CONNEXION OF THE JURA MAJE8TATIS WITH EACH OTHER.
Difficulties arising from the Union of equal Powers by a Convention only Union by
means of Civil Government Historical Illustrations Chief Defect of several Fe-
deral Constitutions The United States of America Pufendorf 's Argument regarding
the Division of the Jura Majestatis or Parts of the Sovereign Power Necessity of
Unity in the Sovereign Power Historical Illustrations The same Proposition de-
monstratedPrinciples on whidi the Sovereign Power may be divided Consti-
tutional Balance of Power Insufficiency of Laws alone to preserve it.
PUFENDORF examines somewhat fully the connexion between the
branches or parts of the civil power of government ; and though the
conclusion to which he arrives is not unanswerable, his arguments
1 Savigny, ibS, ^ 284, pp. 291, 295.
m Carpezov. Pract. Rer. Crim. pars 3, quaest. 139, num. 7.
Mathseus, De Criminibus, p. 744; 1. 6, ff. De Appell. ; 1. 29, Cod. eod. tit.; 1. 2,
ult. ff. Quando appellandum est.
L. 1, ff. De appell.
240 OF THE CONNEXION OF THE
deserve consideration, because they illustrate many important things
in Public Law, showing certain difficulties which arise whenever those
parts are separated and vested in different persons or bodies.
There is, says the learned jurist, such an indissoluble connexion
between the parts of sovereignty, that if it be supposed that they are
in the hands of different persons, so that each may exercise his func-
tions independently of the others, the result is an irregular state. For
there are two principal ties which may unite the will of several persons
or assemblies, namely, conventions or agreements, and government.
Those who are united by agreements only, without subjection to a
common government, are bound to the performance of their engage-
ments by natural law ; but in other respects they remain equal, as all
men are by nature. If either of the parties break natural law by
violating his agreement, there remains no remedy in case of his obsti-
nate refusal to do what justice requires, except the use of force, that
is, the right of war. Thus concord can exist among those who are
united simply by convention between equals only so long as each
party executes what he has engaged ; and a breach of the contract
leads to terminate the alliance and causes war. Hence it appears that
conventions alone are not by themselves a sufficiently strong bond to
keep several persons long united in a body politic, especially as it is
sometimes the more powerful of the parties who violates the compact ;
and even if the compact provide that whenever any one of the parties
violates his engagements, the others shall unite against him, that clause
would be useless when several of them simultaneously break the treaty.
It would be necessary that the parties should at least constitute a sort
of common government ; otherwise another convention would be re-
quisite, regulating in what way those should be dealt with who refuse
to lend their assistance against the violators of the alliance, and an-
other convention to support the former, and so on ad injinitum. But
civil government forms a far more powerful union : for those who are
subjects of the same sovereign authority do not remain the equals of
the person or body in whom that authority is vested. For the sove-
reign has the power of commanding, and punishing those who disobey.
Thus the citizens are placed under a greater necessity of conforming
to his orders than if they were united by a simple convention, leaving
to each a perfect equality, and full power to act according to his
will.P
These reflections of Pufendorf are illustrated by the constitution
of the United States of America, under the articles of Confederation
of 1777. For though by that constitution all the federal authority of
P Pufend. Droit des Gens, liv. 7, ch. 4, 9.
JURA MAJESTATIS WITH EACH OTHER. 241
the nation was vested in the federal council or congress, the arti-
cles of confederation carried the decrees of that assembly to the
states in their sovereign or collective capacity. Thus disobedience
to the laws of the union must have been submitted to by the govern-
ment, or those laws enforced by war. 1 " Kent furnishes another ex-
ample from the history of Switzerland. By one of the laws of the
Helvetic alliance, the cantons were bound to submit any difference
that might arise between them to arbitrators. In the year 1440, a
dispute arose between Zurich on the one side, and the cantons of
Schweitz and Glaris on the other, respecting some territorial claims.
Zurich refused to submit to a decision against her, and the contending
parties resorted to arms. All Switzerland was of course armed against
Zurich, the refractory member. She sought protection from her ancient
enemy, the House of Austria, and the controversy was not terminated
in favour of the federal decree until after six years of furious and de-
structive war. 1 " The great defect of all former federal governments, such
as the Amphyctionic, the Achaean and Lycian confederacies, in ancient
Greece; and the Germanic, the Helvetic, the Hanseatic, and the
Dutch republics, in modern history, is, that they were sovereignties
over sovereigns, and legislations, not for private individuals, but for
communities in their political capacity. The only coercion for disobe-
dience was physical force, instead of the decree and the pacific power
of the civil magistrate. The inevitable consequence, in every case in
which a member of such a confederacy chooses to be disobedient, is either
a civil war or the annihilation of national authority.* This defect in
the political system of the United States of America was, in a great
degree, remedied by the General Convention of 1787, which agreed
to the plan of government now forming the constitution of that country.
That constitution leaves, indeed, the residuary sovereignty of the
States, but it grants specifically, and by necessary implication, powers
to the union sufficient for a government, whose authority extends over
every person within the entire federation. And thus the power of a
civil government was made effectual to unite all the members of the
body politic together.
Pufendorf goes on to argue, that it is easy to see that there is so
great a connexion between the parts of sovereignty that no one of
them can be separated from the others without producing an irre-
gular government, wherein the union of the parts of the government
<> Kent, Comment, vol. 1, part 2, sect. 10, pp. 213, 214; Story, Comment, on the
Constitution of the United States, vol. 1, ^ 248, 251 ; The Federalist, No. 15.
' Ibi.
Ibi, p. 217.
R
242 OF THE CONNEXION OF THE
is formed by a convention, the effect of which is unsafe. Let us sup-
pose, for example, that one person or assembly has originally and
independently the legislative power, while another holds, in the same
manner, the coactive or executive power. In that case, either the
former must be useless and ineffectual, or the other must be its minis-
terial servant. For of what use would it be to make laws without
the power of enforcing or executing them ? And if the executive be
invested with the power of taking cognizance of, and deciding whether
the decrees of the legislature are to be executed, the legislative power
vanishes. Pufendorf concludes that they must both depend on the
same will. So he argues that the power of making peace and war
cannot be separated from that of establishing taxes and other imposts.
For how could the citizens be bound to take up arms for the defence
of the country, or to contribute from their property towards the neces-
sary expenses of the state, in peace and war, unless those who refuse
to contribute can be lawfully compelled ? It would also, he says, be
absurd to give the power of making treaties and alliances regarding
peace and war, to any person who has not also the direction of the
affairs of peace and war.
To explain more fully the necessary connexion of the parts of
sovereignty or jura mojestatis, Pufendorf thus examines the different
ways in which they may be conceived to be separate. Let us suppose
the power of making peace and war to be vested in a prince, the legis-
lative and judicial power in the hands of a senate, and the power of
establishing taxes in those of an assembly of the people. If the king
order the citizens to place themselves under arms, and they refuse to
obey, either he has the power of compelling them to obedience him-
self, or he must have them judged by the senate. In the former case,
it seems that not having the judicial power, he could not have that of
ordering the punishment of the refractory citizens who refuse to be
enrolled. But if the king must bring them before the senate, that
body will decide whether the king had sufficient cause to levy troops,
and whether the war ought to be undertaken, and so his power would
be reduced to nothing. For we have supposed the senate to have an
independent sovereign authority, not emanating from the prince, and
therefore it would not be restricted to merely enforcing his commands.
The same sort of result arises from comparing the right of the king
with that of the people. For the power of making war is nugatory
without that of raising supplies. And the assembly of the people will
grant none, unless they are satisfied that the war is right and politic.
Our author concludes that, if the parts of sovereignty be separated,
an irregular body will be produced, the members of which will not be
JURA MAJESTATIS WITH EACH OTHER. 243
united by a common government, but by conventions or contracts with
each other. 1
These reflections show the difficulty of separating the jura majes-
tatis, and the reason why so many mixt or constitutional governments
have produced unsatisfactory results, or been of brief duration. This
has arisen from a want of unity in the spirit and action of the separate
parts of the sovereign power of the state, in consequence of which
they do not tend to one common object, but encroach upon each
until they fall into mutual hostility. And then, as there is no power
to settle the contest, and so restore the equilibrium of the state, either
one branch of the government usurps the power of the others, or else
an external force, that of the people, or a successful usurper, effects a
revolution. The revolution may either overthrow the whole form of
government, as was the case with that which destroyed the English
monarchy under Charles I.; or it may decide and terminate the con-
test between the powers of the state, as occurred on the dethronement
of James II., when the Parliament obtained a decided advantage over
the Crown. The last French Revolution is another example. There
the contest was between the executive and the legislature. The as-
sembly of the people was the sovereign. The president was not the
officer of the assembly, but the chief magistrate of the people, by
whom he was elected directly. The legislative and executive branches
of the government were thus separate and co-ordinate. An irrecon-
cilable difference arose between them ; and the result was a state of
war, in which the president, having the army and a great part of the
people, who longed for a strong government, on his side, obtained the
victory, and the Republic was soon overthrown." These events were
in accordance with the doctrines of Public Law explained by Pufen-
dorf; and they show that wherever the parts of the sovereignty of the
state are separated, there ought to be some principle of unity direct-
ing them to the common object pointed out by the spirit of the par-
ticular form of polity, and by the requirements of man and the end of
civil society. For, as Grotius says, sovereignty is something simple
and indivisible in itself, or an assemblage of divers parts closely bound
together. * And this explains the following passage of St. Thomas Aqui-
nas: Bonum et salus consociata multitudinis est ut ejus unitas conser-
vetur qua, dicitur pax, qua remota, socialis mice perit utilitas, quinimmo
multitude dissentiens sibi ipsi sit onerosa Quanta igitur re-
Pufend. Droit des Gens, liv. 7, ch. 4, 9, 11, 12.
As Pomponius says, Evenit ut necesse esset Reipublica per unum Consult. L. 2,
11, ff. De Orig. Jur.
x Grot. Droit de la Guerre, liv. 1, ch. 3, 17.
R2
244 OF THE CONNEXION OF THE
gimen efficacius fuerit ad vnitatcm pads servandam, tanto erit utiliusJ
Now this unity of peace cannot be preserved without a unity in the sove-
reign power. For we have seen, in examining the plan of society founded
on the two primary laws, that the end of all government is that of society
itself, and civil government is more perfect in proportion as it is adapted
to the attainment of that end. 2 The sovereign power is the great and
essential feature of civil society. That power is, as Grotius says, com-
posed of divers potential parts. 3 But they differ only in the mode of
their operation, having one and the same ultimate end or object, 5
which is that of civil or politic society itself. The end of civil society
is attained, or sought to be attained, in different ways, by means of
different forms of civil polity, each of which has its peculiar spirit and
laws. And all the parts of the sovereign power in each state, that is
to say, the different operations of that power, must be directed accord-
ing to that spirit, to the end of the civil society which it governs.
This principle constitutes the unity of the sovereign power and the
necessary and indissoluble connexion of its parts. The effect of that
unity is to preserve one sovereign will in the state, which is essential
to the maintenance and duration of a civil polity.
Some writers have used this principle of unity to argue that the
entire sovereign power should be vested in one person or body of
persons. But the reflections made above show that this is not a ne-
cessary conclusion. No doubt the unity of power is most perfect
when its parts are thus concentrated;* 1 and cases may occur in which
that condensation of authority may be necessary to preserve the state.
The Roman Dictatorship, created ne quid respublica detrimenti capiat,
is an example of this. And so when in the year 1776, the progress
of the British arms excited the most alarming apprehensions for the
safety of the American Republic, the Congress transferred to Wash-
ington, for the term of six months, complete dictatorial power over the
liberty and property of the citizens of the United States. 6 This instance
strikingly illustrates the principle of Public Law under consideration,
which affords the key to the strongest arguments of those who maintain
despotic governments to be best. But there is nothing in Public Law to
forbid that the parts of the sovereign power be separated and distributed
y Div. Thorn. Aquin. De Regim. Princip. lib. 1, cap. 2.
1 Ibi, cap. 14. Non est ergo ultimus finis multitudinis congregatae vivere secundum
virtutem, sed per virtuosam vitam pervenire ad fruitionem divinam .... Tanlo
uutem est regimen sublimius, quanta ad Jinem ulteriorem ordinatur.
Grot. Droit de la Guerre, liv. 1, ch. 3, 17.
b Barbeyrac, note 1, Pufend. Droit des Gens, liv. 7, ch. 4, 1.
c Heineccius, Prselect. ad Pufend. de Offic. Horn, et Civ. lib. 2, cap. 7, fj 8.
d Div. Thorn. Aquin. De Regim. Princip. lib. 1, cap. 2.
Kent, Comment, vol. 1, part 2, lect. 10, p. 212.
JURA MAJESTATIS WITH EACH OTHER. 245
among different persons and assemblies, provided there be such a dis-
tribution and combination of authority as to preserve the unity of
sovereignty, so that the different powers may act, each according to
its nature, with one general will and intent, so as to produce the
same result as regards unity as if they were all vested in the same
person or body/ Thus if in the British Constitution the crown had
no part of the legislative power, it would be entirely at the mercy of
the two houses of parliament. 5 The crown having the whole execu-
tive, and the two houses of parliament the whole legislative power, the
sovereign power would be severed and its unity destroyed. So if
supplies could be raised by the crown alone, the public revenues
might be used against the authority of parliament. And if, on the
other hand, the resources of the state were at the disposal of the two
houses of parliament without the concurrence of the crown, those
assemblies could raise forces and pay officers and magistrates de-
pending entirely on their resolutions, and so the executive branch of
the sovereign power would be reduced to insignificance, and the
balance of the Constitution destroyed. Therefore, not only all sup-
plies are granted by parliament to the crown, but the House of Com-
mons votes no money except on the application or with the assent of
the crown. h And the House will not even receive any petition praying
for a grant of money, unless it be recommended by the crown.'
These examples show how the common will of the branches of
government is preserved, and the unity of the sovereign power thereby
secured. In a well-constructed constitution they mutually check each
other, leaving to each its proper attributions, and the freedom neces-
sary for the due performance of its particular functions. And so a
balance of political power is obtained, and the liberties of the citizens
preserved from the arbitrary and unrestrained exercise of civil authority.
It must, however, be admitted, notwithstanding the theories of consti-
tutional lawyers and statesmen, that the unity of the sovereign power
can be absolutely secured only when it is not distributed, but vested in
one person or body of persons. For no laws can prevent contests be-
tween separated branches of the sovereign power, which, if pushed to
extremities, destroy that unity, and so cause convulsions, and some-
times the overthrow of the constitution. The reason of this we have
already seen. And in every state, such as our own country, in which
a powerful popular assembly is invested with the chief control over the
national resources, the permanency of its political institutions must
f Burlamaqui, Droit des Gens, vol. 4, par. 2, chap. 1, 6.
5 Blackst. Com. b. 1, pp. 154, 155.
11 Hats. Preced. vol. 3, pp. 194, 195, 196.
1 Ibi, p. 242.
246 OF THE CONNEXION OF THE JURA MAJESTATIS.
depend in a very great measure on the good sense and moderation of
the body of citizens entrusted, with the political franchise. No laws
can provide for the want of these qualities in the people, because no
laws can restrain the will of a branch of the legislature, and give a
remedy against its want of wisdom, without destroying its independ-
ence ; and a legislative assembly, supported by the body of the nation,
and having the principal part in raising and managing the public
revenue, must ultimately prevail in a struggle with the other branches
of the sovereign power. This is one reason why new constitutions,
apparently calculated to be durable, have nevertheless been overturned,
either by a popular revolution, or an appeal to military force on the
part of the executive. But, on the other hand, where the legislative
assembly or assemblies have not the confidence and support of the
nation, or where the military force is sufficient to overawe the people,
and the executive can rely on the army, even against the law, a
struggle will have a different termination, and probably end in des-
potism. Therefore, though the British constitution gives to the crown
the command of the army, that force is ipso facto disbanded at the
expiration of every year, unless continued by parliament, which also
has the sole power of raising the necessary supplies for their mainte-
nance. So great is the danger of a state of war arising between the
branches of the sovereign power. And even these legal precautions
would not suffice in times of internal discord, under a popular, able,
and ambitious prince, with a victorious army, if the great body of the
nation were not determined to support the law and constitution of the
kingdom.
THE FORMS OF CIVIL GOVERNMENTS. 247
CHAPTER XXIII.
THE FORMS OF CIVIL GOVERNMENTS. REGULAR STATES OR GOVERN-
MENTS. REGULAR REPUBLICS.
The Constitution of a State Equality of Sovereign States The Place of Political
Constitutions in the Scheme of Universal Human Society Character of Organic
Laws of States General Classification of Forms of Government Regular or Simple
States or Governments Democracy Aristocracy Monarchy Oligarchy Causes
of peculiar Municipal Institutions The Republican Form of Polity Nature of a
Republic Mixed Governments True Definition of a Republic The Representa-
tion of the People examined By what Constituency the Representatives should be
chosen Universal Suffrage considered Constituent Assemblies and Conventions
Authority of a Majority Secret Voting or Vote by Ballot Indirect Election.
WE have seen that Grotius, though he denies that sovereignty always
belongs to the people, holds that the common subject of sovereignty
is the State, and the proper subject is one or more persons according
to the laws and customs of the country. Such person or persons is or
are the sovereign* Thus the sovereign power may be vested in one
person, or in a small number of persons, or in the general body of the
citizens. From these diversities arise the different forms of govern-
ment which we are now to consider. 1 The constitution of a state is
the law determining the way in which the public authority is to be
exercised. That constitution shows the form under which the nation
acts as a body politic, how and by whom the people are governed,
and the rights and duties of those who govern. The constitution is
the establishment of the order according to which the nation proceeds
in common to obtain the advantages for which civil or politic society
is established ; m and those laws which determine the form of the
government, and the manner in which the public power is exercised,
are sometimes called organic or fundamental laws."
There is this common to all states or civil societies, that the general
order is maintained by a superior or sovereign power, whether it
reside in one or in many persons. And this is an immutable rule of
Public Law, because it is essential to the maintenance of society
founded on the two primary laws, and to the order which God has
k Grot. Droit de la Guerre, liv. 1, ch. 3, 7.
1 Pufend. Droit des Gens, liv. 7, ch. 5, 1.
m Vattel, Droit des Gens, liv. 1, ch. 3, 27.
- Ibi, 29.
248 THE FORMS OF CIVIL GOVERNMENTS.
established in the world. But there is no immutable law pointing out
in whom that sovereign power should be vested, and by what machinery
it is to be exercised, or, in other words, the form of civil governments.
That problem is solved in different ways; and history presents an
infinite variety of examples of constitutions or forms of government
engendered by the force of events and the circumstances of times,
places and persons. All these forms have certain characteristics which
distinguish them from each other ; and an analysis of such charac-
teristics has enabled writers on Public Law to reduce them to a few
principal classes, each of which, however, comprises constitutions
differing according to the laws and usages of the countries to which
they belong, and more or less adapted to the wants and interests of
those countries. These diversities of form do not affect the essential
characteristics of sovereign states as such. Thus every nation, every
sovereign state, is a member of the great society of mankind, and
independent of all civil authority on earth. The sovereign represents
the nation and its majesty, and is bound to maintain its interests and
dignity. All sovereign states are therefore legally equal, whatever
may be their form of government, their power or their weakness.
These important principles of Public Law belong to the very institu-
tion of separate civil societies, and are therefore of p secondary natural
law. Another preliminary observation is here necessary. We have
seen that God makes the society of mankind throughout the universe
to subsist by three several kinds of ties, which distinguish it into three
parts or three orders, according to so many different modes of the
Divine conduct towards man. The first is that of Religion ; the second
of common humanity ; and the third is formed in every state by the
order which unites all the families composing it under one govern-
ment. The first extends over the whole universe, if not in fact, at
least in spirit ; for though the Catholic Religion is not known in all
places, yet it is essential to the spirit of the Christian Church to
embrace all nations. The second sort of ties made by the natural
rules of humanity and equity, ought naturally to have its extent all
over the world, and prevails everywhere in some degree ; but in
many places it is violated in divers ways according to the force of
interest or passion. These ties are the foundation of the law of
nations : for this second order or part of society has for its subject
the use of commerce, and the several communications and intercourse
of nations with each other and the subjects of one state with those of
another ; and divers matters, such as the use of the seas, regarding; the
' ' O O
general interests and wants of mankind. The third tie, which is made
Vattel, Droitdes Gens, Prelimiii. 18 j ibi, liv. 2, ch. 3. 3538.
P L. 5, ff. De Just, et Jur.
THE FORMS OF CIVIL GOVERNMENTS. 249
in every state by the union of the persons who compose it under the
same government, is confined within each state. Thus there are as
many ties of this sort as there are states, which are distinguished by
different governments. The diversity of forms of government, of
which we are going to treat, is a matter regarding only the third sort
of ties, and the third order or part of human society which those ties
constitute. Thus we see the place which political constitutions or
forms of civil government hold in the scheme of universal human
society. They are consequences of the division of mankind into states
or nations, which we have shown to be an institution of Public Law
arising from necessity -jus quod necessitas constituit. q They belong,
moreover, to one part of municipal law, that is to say, public, as con-
tradistinguished from private municipal law. For though the in- .
fluence of political institutions shows itself in the private law of
countries, especially the arbitrary part, or else the same causes which
produce certain political institutions also engender private laws go-
verned by the same spirit ; yet it is necessary to distinguish matters of
laws having relation to the form of the government and the general
order of the state, from the private law, both immutable and arbitrary.
These reflections show the character of the organic laws forming the
political constitution of states. They for the most part belong to the
second class of arbitrary laws, that which regulates artificial arbitrary
matters. For natural law does not determine the specific form of
civil societies and civil crovernment. But though these matters have
O D
been invented by men, and it may seem that they ought to be regu-
lated wholly by arbitrary laws, yet they have many immutable laws
relating to them. The reason of this is to be found in the causes
O
which render civil government necessary, and in its uses. These are, to
maintain the public order in the whole extent of the parts whereof it
consists, to keep the subjects in peace, and to punish the attempts of
those who disturb the peace and tranquillity of society ; to procure
the administration of justice ; and to take care of all that is requisite
for the common good of the state. And those rules which are neces-
sary for the purposes of civil society are direct consequences of the
two primary laws, and immutable, so that they cannot anywhere be
violated without a disturbance of the order and uses of that society.
Thus, as government is necessary for the public good, and established
by God himself, it is consequently necessary that those who live under
its jurisdiction be subject- and obedient to it/ And in every form of
civil government this principle must be immutably observed. So the
<J L. 40, ff. De Legib. ; 1. 2, $ 9, De Orig. Jur.
r St. Paul, Rom. xiii. 15.
250 THE FORMS OF CIVIL GOVERNMENTS.
responsibility of persons entrusted with public authority is an immu-
table rule which cannot be violated without injury to the common-
wealth ; and, on the other hand, the arbitrary part of civil constitu-
tions has its own peculiar justice in the relation of its rules or laws to
the order and welfare of the civil society to which they belong, or in
their fitness to define or determine matters regarding the application
of immutable laws which the latter do not settle or clothe with a
definite form. These observations apply to all kinds of civil polities.
The most general classification of forms of government has refer-
ence to the distribution or nondistribution of the parts of the sovereign
power. In considering the connexion of the jura majestatis with
each other, we have seen that the obvious and effectual mode of se-
, curing the unity of the sovereign power, is to vest it undivided in
some one person or body of persons. 8 This, indeed, suggests the most
simple and probably the most ancient idea of civil government. It is
that of a sovereign governing the whole state with the plenitude of
civil power, whether the sovereign be a natural person, or an aggre-
gate politic person. This sort of politic constitution is called a
regular state or government. It is defined by Pufendorf to be a state
in which all the citizens in general and each in particular are go-
verned, as it were, by one soul, that is to say, in which the sovereign
power, without being in any way divided, is exercised by a single will
in all the parts and all the affairs of the state. 1 Other writers also give
the name of simple to this form of government, as contradistinguished
from composed or irregular polities," in which the branches of the
sovereign power are divided and distributed. Regular or simple polities
form a class distinguished by the characteristic of undivided unity of the
sovereign power, but including three distinct species. For there are
three sorts of forms of regular government, according to three different
constitutions of the sovereignty. Where the sovereignty resides in the
general assembly of all the citizens, it is called democracy; where it
is in the hands of an assembly, composed of some select citizens, the
state is an aristocracy; and when the sovereignty is vested in one
person, the constitution is a monarchy. In the first sort of govern-
ment, the sovereign is called the people ; in the second, the optimates
or principal persons of the state; and in the third, the monarch or
king. x The two first forms of government just mentioned, where the
sovereignty resides in many persons, are called republics, and the last,
where it is vested in one person, are named monarchies or monarchical
Chap. XXII.
1 Pufend. Droit des Gens, liv. 7, cli. 5, 3.
" Zallinger, Inst. Jur. Nat. et Eccles. Publ. lib. 3, cap. 2, 199:
* Pufend. ubi sup.
THE FORMS OF CIVIL GOVERNMENTS. 251
states. 7 Some writers mention a third sort of republic, which they
call an oligarchy, in which the government is in the hands of a few
persons, to distinguish it from others, where the government is in the
hands of a greater number. 2 But it is difficult to lay down any gene-
ral rule distinguishing an oligarchy from an aristocracy, or government
of a few ; and the term oligarchy has frequently been used rather by
way of condemnation than as expressing any definite principle of
Public Law. These forms of civil government we will now examine.
But in doing so we can only consider the characteristics of each sort,
for every particular state has peculiarities of constitution belonging to
its own municipal law, but which do not affect the essential character
of the government. So in the old French monarchy, the colleges of
magistrates, called Parliaments and Companies of Justice, and their
right of registration and remonstrance, formed an important part of
the political and social system there, without altering the despotic
nature of the government. These, which we may call municipal pecu-
liarities, relate to the machinery and mode of operation of the govern-
ment in its different departments, and they arise from a variety of
causes. Often we find reasons assigned for them, which were not
thought of at the time of their origin, nor long after. And the real
causes of institutions are for the most part arbitrary or accidental.
But, on the other hand, many things in public administration and
government are caused by the operation of reason, and the wants and
circumstances, religious, moral and material, of the people and their
country. These causes produce the infinite variety of institutions and
laws to be seen in the government and administration of different
countries.
We will begin with the examination of the republican form of
polity, because that constitution leaves the sovereignty in the com-
munity or general body politic, to which it primarily belongs.
The nature of a republic has been a subject of controversy among
political writers. It is thus considered by Madison, in the Federalist.*
" What then are the distinctive characters of the republican form ?
Were an answer to this question to be sought, not by recurring to
principles, but in the application of the term by political writers to
the constitutions of different states, no satisfactory one would ever be
found. Holland, in which no particle of the supreme authority is
derived from the people, has passed almost universally under the deno-
mination of a republic. The same title has been bestowed on Venice,
where absolute power over the great body of the people is exercised
* Domat, Droit Publ. liv. 1, tit. 1 ; Montesq. Esprit des Loix, liv. 2, ch. 1.
'Ibi.
Federalist, num. 39, p. 204.
252 THE FORMS OF CIVIL GOVERNMENTS.
in the most absolute manner, by a small number of hereditary nobles.
Poland, which is a mixture of aristocracy and of monarchy, in their
worst forms, has been dignified with the same appellation. The go-
vernment of England, which has one republican branch only, com-
bined with a hereditary aristocracy and monarchy, has, with equal
impropriety, been frequently placed on the list of republics. These
examples, which are as nearly dissimilar to each other as to a genuine
republic, show the extreme inaccuracy with which the term has been
used in political disquisitions."
" If we resort for a criterion to the different principles on which the
different forms of government are established, we may define a re-
public to be, or at least may bestow that name on, a government which
derives all its powers, directly or indirectly, from the great body of the
people ; and is administered by persons holding their offices during
pleasure, for a limited period, or during good behaviour. It is essential
to such a government, that it be derived from the great body of the
society, not from an inconsiderable portion or a favoured class of it;
otherwise a handful of tyrannical nobles, exercising their oppressions
by a delegation of their powers, might aspire to the rank of republi-
cans, and claim for their government the honourable title of republic.
It is sufficient for such a government, that the persons administering it
be appointed, either directly or indirectly, by the people; and that
they hold their appointments by either of the tenures just specified ;
otherwise every government in the United States, as well as every
other popular government that has been or can be well organized or
well executed, would be degraded from the republican character.
According to the constitution of every state in the Union, some or other
of the officers of the government are appointed indirectly by the
people. According to most of them, the chief magistrate himself is
so appointed. And according to one, this mode of appointment is
extended to one of the co-ordinate branches of the legislature. Ac-
cording to all the constitutions, also, the tenure of the highest offices
is extended to a definite period, and, in many instances, both within
the legislative and executive departments, to a period of years.
According to the provisions of most of the constitutions again, as well
as according to the most respectable and received opinions on the
subject, the members of the judiciary department are to retain their
offices by the firm tenure of good behaviour."
The description given by this high authority is that of a regular or
simple democratic republic, or democracy, in which the body of the
people exercise the whole sovereignty by themselves, or their repre-
sentatives and officers. And the examples which he gives of improper
applications of the term republic such as Venice are mixed govern-
THE FORMS OF CIVIL GOVERNMENTS. 253
ments in which the sovereign power is distributed, and only part of it
is vested in the people, or some portion of them. Thus, at Venice,
the doge holding office for life was in the nature of a monarch, so far
as his powers extended. And the only citizens, properly so called,
were the nobility, h in whom the sovereignty resided, and who elected
the doge. The rest of the people were merely subjects of the republic.
So in Poland there was a combination of the monarchical and repub-
lican principles, the real sovereignty residing in the nobles, while the
rest of the nation were not citizens, but subjects only. These mixed
governments are called by different names, according as the greater
part of the sovereign power is, or seems to be, vested in one person,
in a few, or in the many. But the only way of forming an accurate
idea of them, according to the principles of Public Law, is to analyze
the sovereign power, and assign to each part its proper place in the
classification of forms of government with the name belonging to it.
Madison, as we have seen, holds it essential to a republic that the
government be derived from the great body of society. His definition
includes only a democracy. But it gives us the principle of a more
general definition. That principle is the sovereignty of the citizens,
who, as Contarini shows, may be either the whole community, or only
one class or part. We may, therefore, define a republic to be that
form of government which derives its powers, directly or indirectly,
from the body of the citizens, and is administered by persons holding
office during pleasure, for a limited period, or during good behaviour.
This limitation of the tenure of office is essential to a regular or simple
republic, because the institution of an irremovable magistrate for term
of life, or with hereditary succession, would be an absolute alienation
of part of the sovereignty of the citizens, and so partakes of the
monarchical principle. And so an irresponsible magistrate is contrary
to the nature of a republic. When the body of the citizens compre-
hends the great body of society, the republic is a democracy ; and
when they are only one privileged class or part, it is an aristocracy.
The primary idea of a republic is that of a society of citizens, who
assemble and make laws, and administer the government in person.
But it is impossible for them to do in person all that the public service
requires. They must, therefore, appoint officers and magistrates, to
whom they delegate various powers and functions. When the citizens
are very numerous the transaction of business in the general assembly
becomes difficult or impracticable. d This applies specially to demo-
cracies. Then, in some cases, their power falls into the hand of a
b Cardinal Contarini, Delia Repub. e Magistr. di Venetia, lib. 1, pp. 28, 29.
c Federalist, numb. 70, p. 384.
d Pufend. Droit des Gens, liv. 7, ch. 5, 7.
254 THE FORMS OF CIVIL GOVERNMENTS.
smaller body. Thus Pomponius says - Delude quia difficile plebs
convenire ccepit, populus certe multo dijficilius in tanta turba hominum :
necessitas ipsa curam republics ad senatum deduxit. Ita ccepit senatus
se interponere : et quidquid constituisset observabatur : idque jus appel-
labatur senatus-consultum.* But another solution of the difficulty is
furnished by the great modern invention of the political representation
of the people, which we must now examine. And our investigations
will apply, not merely to commonwealths or republics, but also to the
republican or popular element of mixed government, such as that of
our own country.
Montesquieu has some judicious general reflections on popular elec-
tions. " The people," he says, " should themselves do what they can
in person perform, and execute the rest by ministers, and these must
be appointed by the people in a democracy. The people require a
council or senate even more than a monarch. And the people are
admirably qualified to choose those to whom they are to confide
authority. They have only to determine on things notorious for this
purpose. Thus they know that a particular man has served in war,
and has been successful, and therefore he is fit to be chosen as a
general. They know that a judge is assiduous, that he gives satisfac-
tion to suitors, and that he has the repute of probity, and therefore he
is elegible to be praetor. -They have been struck with the wealth and
magnificence of a citizen, and that suffices to designate him for the
office of edile. All these things are better known in the market place
than in a king's palace. But would the people be capable of con-
ducting a negociation, or other public affair, and judging and taking
advantage of circumstances? This they could not do. f "
Madison observes that a pure democracy, by which he means a
society consisting of a small number of citizens, who assemble and
administer the government in person, can admit of no cure for the
mischiefs of faction. "A common passion," he continues, "or interest,
will in almost every instance be felt by a majority of the whole; a
communication and concert results from the form of the government
itself; and there is nothing to check the inducements to sacrifice the
weaker party, or an obnoxious individual. Hence it is, that such
democracies have ever been spectacles of turbulence and contention,
have ever been found incompatible with personal security or the rights
of property, and have in general been as short in their lives as they
have been violent in their deaths. Theoretic politicians, who have
patronized this species of government, have erroneously supposed that
by reducing mankind to a perfect equality in their political rights, they
e L. 2, 9, ff. De Orig. Jur.
f Montesq. Esprit des Loix, liv. 2, ch. 2.
THE FORMS OF CIVIL GOVERNMENTS. 255
would at the same time be perfectly equalised and assimilated in their
possessions, their opinions, and their passions."
"A republic, by which I mean a government in which the scheme
of representation takes place, opens a different prospect, and offers the
cure for which we are seeking. Let us examine the points in which
it varies from pure democracy, and we shall comprehend both the
nature of the cure, and the efficacy which it must derive from the
union.
" The two great points of difference between a (pure) democracy
and a republic are, first, the delegation of the government, in the latter
to a small number of citizens elected by the rest; secondly, the greater
number of citizens, and greater sphere of country over which the latter
may be extended."
" The effect of the first difference is, on the one hand, to refine and
enlarge the public views, by passing them through the medium of a
chosen body of citizens, whose wisdom may best discern the true
interest of their country, and whose patriotism and love of justice will
be least likely to sacrifice it to temporary or partial considerations.
Under such regulation it may well happen that the public voice pro-
nounced by the representatives of the people will be more consonant
to the public good than if pronounced by the people themselves, con-
vened for the purpose. On the other hand, the effect may be inverted.
Men of factious tempers, of local prejudices, or of sinister designs,
may by intrigue, by corruption, or by other means, first obtain the
suffrages, and then betray the interest of the people. The question
resulting is, whether small or extensive republics are most favourable
to the election of proper guardians of the public weal; and it is clearly
decided in favour of the latter, by two obvious considerations."
" In the first place it is to be remarked, that however small the
republic may be, the representatives must be raised to a certain num-
ber in order to guard against the cabals of a few ; and that, however
large it may be, they must be limited to a certain number, in order to
guard against the confusion of a multitude. Hence the number of
representatives in the two cases, not being in proportion to that of the
constituents, and being proportionally greatest in the small republic, it
follows that if the proportion of fit characters be not less in the large
than in the small republic, the former will present a greater option,
and consequently a greater probability of a fit choice."
" In the next place, as each representative will be chosen by a
greater number of citizens in the large than in the small republic, it
will be more difficult for unworthy candidates to practise with success
the vicious arts by which elections are too often carried ; and the
suffrages of the people being more free, will be more likely to center
256 THE FORMS OF CIVIL GOVERNMENTS.
in men who possess the most attractive merit, and the most diffusive
and established characters." ;
" It must be confessed, that in this, as in most other cases, there .is
a mean, on both sides of which inconveniences will be found to He: by
enlarging too much the number of electors you render the represen-
tative too little acquainted with all their local circumstances and lesser
interests ; as, by reducing it too much, you render him unduly attached
to these, and too little fit to comprehend and pursue great and national
objects. The federal constitution forms, in this respect, a happy com-
bination, the great and aggregate interest being referred to the national,
the local and particular, to the state legislatures."
" The other point of difference is, the greater number of citizens
and extent of territory which may be brought within the compass
of a republican than of a democratic government; and it is this cir-
cumstance, principally, which renders factious combinations less to be
dreaded in the former than in the latter. The smaller the society,
the fewer probably will be the distinct parties and interests composing
it; the fewer the distinct parties and interests, the more frequently
will a majority be found of the same party, and the smaller the num-
ber of individuals composing a majority, and the smaller the compass
within which they are placed, the more easily will they concert and
execute their plans of oppression. Extend the sphere, and you take
in a greater variety of parties and interests; you make it less probable
that a majority of the whole will have a common motive to invade the
rights of other citizens, or, if such a common motive exists, it will be
O ' * '
more difficult for all who feel it to discover their own strength, and to
act in union with each other. Besides other impediments, it may be
remarked, that where there is a consciousness of unjust and dishonour-
able purpose, communication is always checked by distrust, in propor-
tion to the number whose concurrence is necessary." g
These reflections show the reasons on which the delegation of
popular government to representatives is grounded, and the principle
on which it should be regulated. That delegation is a necessary con-
sequence of a constitution in which power is vested in a body so nu-
merous, or spread over so large a territory, that it cannot act except
by its representatives. Therefore in such a constitution representation
is an immutable law -juris gentium. For without it the government
could not be carried on. Another immutable law is, that this institu-
tion should be so regulated as really and fairly to represent the whole
body in whom the power is vested, to be exercised by delegation.
Subject to this principle, the laws regulating political representation
K Federalist, num. 10, p. 5255.
THE FORMS OF CIVIL GOVERNMENTS. 257
are for the most part arbitrary or mutable laws. As for the compo-
sition of the constituency, that depends, not on any principle of
natural law, but on the form of the government or constitution. We
have seen that in a democratic state the government is derived from
the great body of society. The constituency must therefore be that
body. In an aristocracy the representative system is less required,
because the number of the citizens is smaller, since they consist only
of the nobles, optimates, or patricians. So at Venice the great council
was composed of the body of the patricians. But a body of patricians
many elect representatives, as the peers of Ireland and Scotland do.
And in an aristocracy, the constituency is necessarily composed of a
small number out of the entire body politic. These distinctions
between democracy and aristocracy show the spirit of the laws which
determine by whom the representatives are to be chosen, according to
the form of the government in each state. But there is no im-
mutable principle of Public Law denning and prescribing forms of civil
government. And the laws determining what portion of the body
politic exercise in each state political power by their representatives, are
mutable arbitrary laws. The equity of those laws, like that of other laws
of the same sort, depends on their relation to the order of society and
their adaptation to its purposes or uses. And in this sense they are in-
direct consequences of the two primary laws on which society is con-
structed. However extended may be the body of citizens in whom
the government of a democracy is vested, and who exercise their poli-
tical powers through their chosen representatives, many members of
the general body politic or state must be excluded from the electoral
franchise by reason of actual or presumed incapacity. And of such ex-
clusions the legislature must judge with reference to the public service
and welfare. So Montesquieu says that the laws establishing the right
of suffrage are fundamental laws of the government. 11 Whether the
government be a democracy, an aristocracy, or a mixed form of go-
vernment, the laws defining the electoral franchise are arbitrary or
mutable laws, to be framed in accordance with the spirit of the par-
ticular constitution and the greater advantage of the community. The
following observations of Professor Story on this important subject
well deserve our attention. 1
" It is obvious that even when the principle is established that the
popular branch of the legislature shall emanate directly from the
people, there still remains a very serious question, by whom and in
what manner the choice shall be made. It is a question vital to the
system, and in a practical sense decisive as to the durability and effi-
h Montesq. Esprit des Loix, liv. 2, ch. 2.
1 Story, Comment, on the Constit. of the United States, vol. 2, ch. 9, ^ 576 579.
8
258 THE FORMS OF CIVIL GOVERNMENTS.
ciency of the powers of government. Here there is much room for
doubt, and ingenious speculation, and theoretical inquiry, on which dif-
ferent minds may arrive at very different results. To whom ought
the right of suffrage in a free government to be confided ? Or, in
other words, who ought to be permitted to vote in the choice of the
representatives of the people? Ought the right of suffrage to be abso-
lutely universal? Ought it to be qualified and restrained? Ought it
to belong to many or few? If there ought to be restraints and quali-
fications, what are the true boundaries and limits of such restraints and
qualifications?"
" These questions are sufficiently perplexing and disquieting in
theory; and in the practice of different states, and even of free states,
ancient as well as modern, they have assumed almost infinite varieties
of form and illustration. Perhaps they do not admit of any general,
much less of any universal answer, so as to furnish an unexceptionable
and certain rule for all ages and all nations. The manners, habits, in-
stitutions, characters, and pursuits of different nations; the local posi-
tion of the territory in regard to other nations; the actual organiza-
tions and classes of society; the influence of peculiar religious, civil or
political institutions ; the dangers as well as the difficulties of the
times; the degrees of knowledge or ignorance pervading the mass of
society; the national temperament, and even the climate and products
of the soil; the cold and thoughtful gravity of the north; and the
warm and mercurial excitability of tropical or southern regions; all
these may, and probably will, introduce modifications of principle as
well as of opinion, in regard to the right of suffrage, which it is not
easy either to justify or to overthrow. k "
" The most strenuous advocate for universal suffrage has never con-
tended that the right should be absolutely universal. No one has ever
been sufficiently visionary to hold that all persons of every age, degree,
and character, should be entitled to vote in all elections of public officers.
Idiots, infants, minors, and persons insane or utterly imbecile, have
been, without scruple, denied the right, as not having the sound judg-
ment and discretion fit for its exercise. In many countries, persons
guilty of crimes have also been denied the right, as a personal punish-
ment, or as a security to society. In most countries, females, whether
married or single, have been purposely excluded from voting, as inter-
fering with sound policy and the harmony of social life. In the few
cases in which they have been permitted to vote, experience has not
justified the conclusion that it has been attended with any correspond-
ent advantages, either to the public or to themselves. And yet it
would be extremely difficult, upon any mere theoretical reasoning, to
establish any satisfactory principle upon which the one-half of every
k Blackst. Comm. vol. 1, pp. 171, 172.
THE FORMS OF CIVIL GOVERNMENTS. 259
society has thus been systematically excluded by the other half, from
all right of participating in government, which would not at the same
time apply to and justify many other exclusions. If it be said that
all men have a natural, equal and inalienable right to vote, because
they are all born free and equa.1 ; that they all have common rights
and interests entitled to protection, and therefore have an equal right
to decide, either personally or by their chosen representatives, upon
the laws and regulations which shall control, measure, and sustain
those rights and interests ; that they cannot be compelled to surrender,
except by their free consent, what by the bounty and order of Provi-
dence belongs to them in common with all their race ; what is there in
these considerations which is not equally applicable to females, as free,
intelligent, moral, responsible beings, entitled to equal rights and in-
terests, and protection, and having a vital stake in all the regulations
and laws of society ? And if an exception, from the nature of the
case, could be felt in regard to persons who are idiots, infants, and
insane, how can this apply to persons who are of more mature growth,
and are yet deemed minors by the municipal law? Who has an
original right to fix the time and period of pupilage or minority?
Whence was derived the right of the ancient Greeks and Romans to
declare that women should be deemed never to be of age, but should
be subject to perpetual guardianship ? Upon what principle of natural
law did the Romans, in after times, fix the minority of females as well
as males, at twenty-five years ? Who has a right to say that, in Eng-
land, it shall for some purposes be fourteen, for others at seventeen,
and for all at twenty-one years, while in France a person arrives for
all purposes at majority only at thirty years, in Naples at eighteen,
and in Holland at twenty-five ? Who shall say that one man is not
as well qualified as a voter, at eighteen years of age, as another is at
twenty-five, or a third at forty, and far better than most men at eighty ?
And if any society is invested with authority to settle the matter of
the age and sex of voters, according to its own view of its policy, or
convenience or justice, who shall say that it has not equal authority,
for like reasons, to settle any other matter regarding the rights, quali-
fications and duties of voters? 1 "
" The truth seems to be, that the right of voting, like many other
things, is one which, whether it has a fixed foundation in natural law
or not, has already been treated, in the practice of nations, as a strictly
civil right, derived from and regulated by each society, according to
its own circumstances and interests. It is difficult, even in the abstract,
to conceive how it could have been otherwise treated. The terms and
1 1 Blackst. Comm. 171 ; 2 Wilson, Law Lect. 130; Montesq. Esprit des Loix, liv.
2, ch. 6; 1 Tucker, Blackst. Comm. App. 52, 53.
82
260 THE FORMS OF CIVIL GOVERNMENTS.
conditions upon which any society is formed and organized must
essentially depend on the will of those who are associated ; or at least
of those who constitute a majority, actually controlling the rest.
Originally, no man could have any right but to act for himself, and
the power to choose a chief magistrate or other officer, to exercise
dominion over others, as well as himself, could arise only upon a joint
consent of the others to such appointment ; and their consent might
be qualified exactly according to their own interests, or power, or
policy. The choice of representatives to act in a legislative capacity
is not only a refinement of much later stages of actual association
and civilization, but could scarcely occur until the society had assumed
to itself the right to introduce such institutions, and to confer such
privileges as it deemed conducive to the public good, and to prohibit
the existence of any other. In point of fact, it is well known that
representative legislative bodies, at least in the form now used, are the
particular invention of modern times, and were unknown to antiquity.
If then every well organized society has the right to consult for the
common good of the whole, and if upon the principles of natural law
this right is conceded by the very union of society, it seems difficult to
assign any limit to this right, which is compatible with the end pro-
posed. If, therefore, any society shall deem the common good and
interests of the whole society best promoted under the particular cir-
cumstances in which it is placed, by a restriction of the right of
suffrage, it is not easy to state any solid ground of objection to its
exercise of such an authority. At least, if any society has a clear right
to deprive females, constituting one-half of the whole population, from
the right of suffrage (which with scarcely an exception has been uni-
formly maintained), it will require some astuteness to find upon what
ground this exclusion can be vindicated, which does not justify, or at
least excuse, many other exclusions." 1 Government (to use the pithy
language of Mr. Burke) has been deemed a practical thing, made for
the happiness of mankind, and not to furnish out a spectacle of uni-
formity to gratify the schemes of visionary politicians.""
The experience of our own times has confirmed these observations,
by showing the evil effects resulting from the doctrine, that the uni-
versal enjoyment of political suffrage is an absolute right by natural
law. That error is based on the notion already refuted, that the obli-
gation of municipal laws arises from consent, express or implied, and
that the civil State is constructed on contract. Hence arose also the
opinion that no constitution of political government would be valid,
that was not sanctioned by a constituent assembly of the people.
"Paley, Moral Philosophy, b. 6, ch. 7, p. 392; 1 Blackst. Comm. 171; Montesq.
Esprit des Loix, liv. 2, ch. 6.
" Burke's Letter to the Sheriffs of Bristol, 1777.
THE FORMS OF CIVIL GOVERNMENTS. 261
This mode of constructing governments has not been successful, for
it is grounded on a fundamental error of Public Law. Perhaps the
convention of Philadelphia, in 1787, may at first sight seem an autho-
rity for a contrary position. But it is not so. For that body differed
essentially from constituent assemblies. It was a convention of dele-
gates, representing confederated sovereign states, for the purpose of
remodelling their union, which could only be effected by some method
of that nature. And after the convention had agreed on the plan,
which now forms the constitution of the United States, it was submitted
to representative bodies in each state, for their assent and ratification.
Thus the results of the deliberations of the delegates were sent back
for ratification ; a proceeding both wise and strictly in accordance with
the principles of democracy, based on the sovereignty of the people.
Both democracies and aristocracies have this in common, that in all
assemblies the decision of the majority is equivalent to that of the
whole. p And Savigny shows that this power of the majority is a rule
of natural law in the constitution of moral bodies. In some cases a
number greater than a majority is required, such as two-thirds; but
this is matter of arbitrary or positive law. And thus the Roman civil
law establishes in all cases the preponderance of the simple majority of
those required to be present.* 1 This subject we have already con-
sidered/ The canon law presents some instances where a simple ma-
jority does not suffice. Thus, for the election of the Supreme Pontiff,
two-thirds of the votes are requisite. 8 And in some cases the unanimity
of a chapter is necessary. 1 But this exception is founded on a special
principle of law, protecting the rights of individual members of the body.
Montesquieu briefly discusses the question whether, in a common-
wealth, voting should be public or secret. He cites an opinion of
Cicero, that secret voting was one of the causes of the fall of the
Roman republic." The conclusion of Montesquieu is, that the votes
of the people should be given publicly, and that this is a fundamental
law in a democracy. The lower people, he says, ought to be en-
lightened by the principal men, and restrained in their choice by
certain personages. But, he adds, when in an aristocracy the nobles,
Kent, Comment, vol. 1, lect. 10, pp. 218, 219; Federalist, numb. 34, p. 200.
P Pufend. Droit des Gens, lib. 7, ch. 5.
1 Savigny, Traite du Droit Rom. vol. 2, ch. 2, ^ 97, p. 328330 ; Grot. Droit de
la Guerre, liv. ii. ch. 5, 17 ; 1. 160, ^ 1, ff. De Reg. Jur. Ulpian Refertur ad uni-
versos quod pubU.cefit per rnajorem partem. L. 5, Cod. De Legation. ; 1. 3, Cod. de Vend,
reb. Civit. ; Nov. 120, c. 6, ^ 1, 2; Voet ad Pand. lib. 50, tit. 9.
r Chap. XIX.
Decretal, lib. 1, tit. 6, ch. 6; Devoti, Inst. Canon, lib. 1, tit. 5, sect. 1, 3, 4.
1 Ibi, cap. 30; Foebeus, De Reg. Jur. Canon, p. 175. See the Federalist, num.39,
p. 207, where the same principle is to be found.
a De Legib. 1. 1, 3.
262 THE FORMS OF CIVIL GOVERNMENTS.
or in a democracy the senate, vote, there, as solicitations and cabals
are to be prevented, the suffrages cannot be too secret. For such arts
are dangerous in a body of nobles and in a senate, but not among the
people, whose nature it is to act by passion."
The laws of different countries have varied on this subject. The
Doges of Genoa and Venice were elected by a very complicated method
of indirect election by ballot.* The President of the United States is
elected indirectly and by ballot. 2 But the choice of the members of
Congress is made viva voce in some states, and by ballot in others."
In our own country, all political and public elections, except in the
East India Company and the Bank of England, are viva voce. The
Council of Trent requires all elections of superiors and officers of
Regulars, of both sexes, to be by secret voting. b The ordinary form
of ecclesiastical elections, called per scrutinium, prescribes the secret
collection of the votes by scrutators appointed for that purpose.
It will be observed that secret voting is sanctioned by very con-
siderable authority. In many cases this institution may be useful, or
even necessary, to prevent injustice and oppression, and to secure the
free exercise of the right of voting. On the other hand it may be
argued that secret voting prevents that moral responsibility to public
opinion under which all political liberties and privileges should be
exercised and enjoyed, because they are not private rights, but in the
nature of trusts held for the benefit of the community. The ques-
tion whether voting should be secret depends on various circumstances
in each country. The principle of law is, that every voter has a right
to the free exercise of his privilege. And voting should be secret
wherever open voting would not be compatible with freedom of choice,
which the spirit of the law requires.
We must now briefly consider the subject of indirect election, that is
to say, election by electors chosen themselves by the real constituency.
This method probably was derived from the electioneer compromissum
in the canon law, which is where a chapter or other electing body
chooses one or more persons, and commits or delegates to them the
power of elect.ing. d Indirect election is used in electing the President
* Montesq. Esprit des Loix, liv. 2, ch. 2.
* See my Dissertation on the Statutes of the Italian Cities, p. 54 ; Contarini, Delia
Reptib. e Magistr. di Venet. lib. 2, pp. 68, 69; Harrington, Oceana, vol. 1, p. 113,
fol. edit.
1 Story, Comment, on the Constit. of the United States, vol. 3, p. 312, 1448;
Kent, Comment, vol. 1, part 2, lect. 14, p. 276.
Story, Comment, vol. 2, p. 290, 824.
b Concil. Trident, sess. 2, cap. 25, De Reg.
c Lancelot, Inst. Jur. Canon, lib. 1, tit. 6, $ 9; Devoti, Tnst. Canon. 1. 1, tit. 5,
sect. 1, 18; Decretal, lib. 1, tit. 6, cap. 42, Quia propler.
d Decret. lib. 1, tit. 6, cap. 30,33,42 ; Devoti, Inst. Can. lib. 1, tit. 5, sect. 1, 20.
THE FORMS OF CIVIL GOVERNMENTS. 263
and the senate of the United States, and was the mode of choosing the
' O
Doges of Genoa and Venice. In the United States, the house of
representatives, like one branch at least of all the state legislatures, is
elected immediately by the people. 6 And this mode is calculated to
obtain the fullest representation of their opinions, feelings, and in-
terests. But the election of the senate by the state legislatures is a
recognition of the separate existence and sovereignty of the states/
And it also tends to the choice of the most eminent persons as senators,
since they are selected by bodies, themselves selected for the perform-
ance of legislative functions. This is one effect of elections by selected
electors. With regard to the president, the same reasons obtain. The
choice is indeed committed to men chosen by the people for that par-
ticular purpose. " It was equally desirable," says Mr. Hamilton,
" that the immediate election should be made by men most capable of
analyzing the qualities adapted to the station, and acting under circum-
stances favourable to deliberation, and to a judicious combination of
all the reasons and inducements that were proper to govern their
choice. A small number of persons, selected by their fellow-citizens
from the general mass, will be most likely to possess the information
and discernment requisite to so complicated an investigation. It was
also peculiarly desirable to afford as little opportunity as possible to
tumult and disorder." 8 This last reason is perhaps the least forcible.
The most important one with respect to the election of senators is, that
the senate, chosen by persons elected in their turn by representatives
of the people entrusted with high functions, are more likely to possess
the qualities of stability, deliberation, and mature prudence, than the
house of representatives, which comes immediately from the people,
and is presumed to partake with a quicker sensibility of the prevailing
temper and irritable disposition of the times, and to be in more danger
of adopting measures with precipitation, and changing them with
levity. 11 Such are the arguments of Public Law on which this peculiar
institution is sustained. The method followed at Genoa and Venice
was more complicated, and partly intended to prevent cabals, factions,
combinations, and the exercise of illegal influences. For this purpose
secret voting was combined with chance. The Doge of Venice was
elected by nine different acts, namely, five elections alternating with
four acts of drawing lots, with the addition of collateral votings. And
the Master of the Knights of Malta was elected by seventeen con-
secutive elections of electors, each connected with oaths. 1
e Federalist, num. 39, p. 205.
f Kent, Comment, vol. 1, lect. 11, p. 225.
e Federalist, numb. 68, pp 367, 368 ; Kent, Com. vol. 1, part 2, lect. 11, p. 225.
h Kent, Comment, vol. 1, part 2, lect. 11, pp. 226, 227.
1 Lieber on Civil Liberty, p. 142.
264 OF REGULAR STATES.
CHAPTER XXIV.
OF REGULAR STATES. SIMPLE OR REGULAR MONARCHY. HEREDITARY
AND ELECTIVE MONARCHY.
Monarchy Tyranny Limited Monarchy of two sorts Montesquieu's Distinction
between Monarchy and Despotism General Principles of Monarchical Government
Effect of intermediate Powers Influence of the Church Absolute Power and
limited Power The different sorts of Laws that modify the Royal Authority Pro-
mises and Oaths of Sovereigns Distinction between Sovereign and Absolute Power
The Commissary Clause or Clause of Forfeiture The two Classes of Fundamental
Laws limiting the Royal Authority Power to change Fundamental Laws and the
Constitution of a State In what Sense an Absolute Monarch is above the Law
Hereditary and Elective Monarchy considered Agnatic and Cognatic Succession
The Salic Law Different Modes of Election Interregnum Death of an heredi-
tary King, leaving his Widow with Child Precedents in History.
WE have now to examine the remaining one of the three regular or
simple forms of government, that is to say, simple monarchy. This
sort of polity consists of a state in which the sovereign power is
wholly vested in one person, who, whatever may be his style or title,
is the monarch or prince. k Thus Grotius shows that the title of king
does not always carry with it the sovereign authority. And on the
other hand, even where there are assemblies, such as the states-general
of a kingdom, composed of the prelates, the magnates, and the repre-
sentatives of towns; the entire sovereign power may be vested in the
monarch, because those assemblies may be only a council to the sove-
reign. 1
St. Thomas Aquinas argues in favour of monarchy, that it is the
form most conducive to the unity of government and the preservation
of concord, and this is a fundamental principle of the monarchical
polity." 1 But, he adds, as the government of one is the best if it be
just, so it is the worst if of a contrary description. For the very
unity which renders it effectual to produce good, makes it powerful for
evil if it be directed to evil. Moreover, a government is rendered un-
just by rejecting the welfare of the greater number, and seeking the
private advantage of the ruling power; therefore it is so much the
more unjust in proportion as it departs from the common good.
k Zallinger, Inst. Jur. Nat. et Publ. lib. 3, cap. 2, 203 ; Pufend. Droit des Gens,
liv. 7, ch. 5, 9.
1 Grot. Droit de la Guerre, liv. 1, ch. 3, 10.
m Div. Thorn. De Regim. Princip. lib. 1, cap. 2.
SIMPLE OR REGULAR MONARCHY, ETC. 265
Now an oligarchy, in which the interests of a few are consulted, is fur-
ther from the common good than a democracy, in which the advan-
tages of a multitude are sought; and a tyranny, which is for the good
of one man, is still further from the common welfare. Therefore, he
concludes, the government of a tyrant is the most unjust of all. And
it is best that a just government be that of one, in order that it may
be stronger. But if it decline to injustice it had better be that of
many, because it will be weaker, and they will check or impede each
other. Thus, among unjust governments, the most tolerable is demo-
cracy, and the worst is tyranny. 11 These observations are valuable,
as showing the principle of both the advantages and the dangers of
simple monarchy; and also pointing out the spirit of mixed govern-
ments, in which different powers check and counterpoise each other
for the purpose of preventing the unjust use of power. The term
tyrant has not always been used in an unfavourable sense; and like
that of oligarchy, it is sometimes applied as a mere general term of
condemnation. But in its strict and correct sense, it is well explained
by the passage of St. Thomas above referred to. p Justice is the end
of government, and necessary to every sort of commonwealth or
state. q And injustice is an essential characteristic of tyranny. Gro-
tius, it is true, holds that a civil government may be established for
the advantage of its sovereign/ But this position is partly connected
with his unsound opinion regarding what he calls patrimonial king-
doms; and Grotius himself means that a civil government, intended
for the advantage of the sovereign, may be also for the advantage of
his subjects; in which case it would not necessarily be a tyranny.
The sound doctrine is that of St. Thomas Aquinas, that a government
is unjust which has for its object the advantage, or interest or pleasure
of him or those who govern, and not the welfare of the community.
And this principle, simple monarchy has, in common with other forms
of civil polity, though it may seem at first sight to be chiefly for the
glory and enjoyment of the monarch, and has sometimes been so un-
derstood. 8 The most important classification of monarchies divides
them into two sorts, absolute and limited monarchies. The former
are those in which the whole sovereign power, without restraint or re-
striction, is vested in the prince. The latter are those in which his
n Div. Thorn. De Regim. Princip. lib. 1, cap. 3. And see Mariana de Rege, lib. 1,
cap. 2.
Grot. Droit de la Guerre, 1. 1, ch. 3, 8, n. 56.
P And see St. Thorn. Aquin. De Regim. Princ. lib. 1, ch. 10.
1 Federalist, num. 47, p. 283; Div. August. De Civ. Dei, lib. 19, cap. 21. .
r Grot. Droit de la Guerre, liv. 1, ch. 3, 8, num. 15.
Vattel, Droit des Gens, liv. 1, ch. 4, ^ 39.
266 OF REGULAR STATES.
power is modified and restricted. This is effected in two different
ways, which distinguish limited monarchies into two distinct classes.
In one of these classes the authority of the prince is limited by funda-
mental laws which restrict its extent or define the mode whereby it is
to be exercised, or affect it in both these ways. The other class is
that of monarchies, in which the sovereign power is distributed, so
that the whole is not confided to the prince. These are mixed or irre-
gular monarchies, of which we shall treat in a subsequent chapter;
and we must in this confine our attention to the former class.
Montesquieu distinguishes between monarchy and despotism, de-
scribing the former as a polity in which one man governs by fixed
and established laws, and the latter as that in which all is subject to
the arbitrary will of the prince without rule or law. 1 A subsequent
chapter shows that by despotism he meant a mere tyranny of which
scarcely an example can now be found, and which hardly deserves the
name of a government." For all those which are usually called de-
spotic governments in the civilized world have laws of some sort, which,
if they do not limit the extent of the royal authority, regulate its exer-
cise, so as to prevent hasty and crude measures, and protect the crown
and the people from caprice and passion. This is for the most part
effected by means of councils and other assemblies and conferences of
that nature, by the use of responsible ministers and officers, and by
the establishment of fixed methods of administration, with a gradation
of offices through which the acts of the government must pass. And
the exercise of the royal authority in pure monarchies is also affected
by divers influences, social and political. Thus Montesquieu says,
" Intermediate, subordinate, and dependent powers constitute the nature
of monarchical government. I say intermediate, subordinate, and de-
pendent powers, because in a monarchy the prince is the source of all
political and civil power. These fundamental laws necessarily sup-
pose minor channels through which power flows; for if there be in
the state only the momentary and capricious will of one man, nothing
can be fixed, and consequently there can be no fixed fundamental
law."
"The most natural intermediate subordinate power is that of the
nobility. It is in some measure essential to monarchy, the funda-
mental maxim of which is no monarch, no nobility ; no nobility, no
monarch. But there may be a despot." "The power
of the clergy, which is dangerous in a republic, is convenient in a
monarchy, especially in those which tend to despotism. What would
have happened in Spain and Portugal, after the loss of their laws,
1 Montesq. Esprit des Loix, liv. 1, ch. 1. Ibi, ch. 5.
SIMPLE OR REGULAR MONARCHY, ETC. 267
without that power which alone stops arbitrary power ? . . . The
English, to favour liberty, have taken away all the intermediate powers
that formed their monarchy. They are right to preserve that liberty.
If they lost it they would be one of the most enslaved nations in the
world. Mr. Law, with equal .ignorance of the republican and the
monarchical constitution, was one of the greatest promoters of despo-
tism ever seen in Europe. Besides the unprecedented and sudden
changes that he made, he wished to destroy the intermediate ranks
and the political bodies; he was dissolving the monarchy by his
visionary financial operations, and seemed to aim at buying the con-
stitution itself." x
These intermediate powers practically modify absolute power in a
monarchy. And so we find that the Church and the nobility, and the
rise of the local governments of the cities and communes, were the
first causes of political liberty in Europe. And this is especially true
with regard to the Church, which, when all the civil elements of
modern society were in decadence or infancy, was youthful, yet fully
constituted, and possessed of moral life, energy, laws, discipline and
interior movement. The Church appears, in the fifth century, as an
independent constituted society, interposed between the masters of the
world the sovereigns, the possessors of temporal power on one
part, and the people on the other ; a link between them, and acting
upon all. y These reflections apply to all monarchies, and show the
spirit of the civil institutions, or machinery by which they act. We
have yet to see the distinction between limited monarchies of the first
class, already defined, and absolute monarchies.
This distinction depends on the nature of the fundamental laws
regarding the regal authority. Pufendorf observes that the term
absolute power does not necessarily import a power morally without
bounds, which would amount to licence and the impunity of wrong.
For as in a condition free from the social state, the absolute and sove-
reign liberty of every one consists in his regulating his conduct as he
thinks proper, and without consulting any one, but without prejudice
to the laws of nature, to which he is bound to conform, so, in like
manner, when many persons are united to form a perfect state or
politic society, that body, as a common subject, must preserve the same
liberty with reference to the things concerning the public good, a
liberty accompanied by a sovereign power, or a right of prescribing
things of that nature to the citizens, and compelling the disobedient
to obey. Thus, in every state, properly so called, there is always an
x Montesq. Esprit des Loix, liv. 1, ch. 4.
* Guizot, Cours d'Hist. Mod. lefon 5.
268 OF REGULAR STATES.
absolute power, though it is not always actually exercised ; for there
is a contradiction in saying that any one is independent, and yet that
he has not the power of managing his own affairs as he thinks fit.
This absolute power does not in itself include anything unjust or
insupportable. For the object of civil -societies is not to trample under
foot with impunity the natural laws, and to consult only passion or
caprice ; but, on the contrary, they are established for the purpose of
procuring more conveniently mutual security by the united power of
many, and consequently to practise in peace and safety the rules of
Natural Law. z
But if sovereignty be considered in the proper subject, in which it
resides precisely, it is not always accompanied by an absolute power,
and there are countries where it is restricted or modified by certain
laws. This diversity of administration does not appear in purely
popular states. For, though every democracy must necessarily have
certain regulations, established either by usage or by written laws,
which define the time and place of assemblies, and who is to convoke
them, or propose public affairs, or execute the ordinances of the
people, without which no civil society can be conceived ; nevertheless,
as the sovereign assembly is composed of all the citizens, or their
representatives, and so no one out of it has acquired any irrevocable
right by its decisions, nothing prevents the people from revoking and
altering the laws, unless they have sworn to observe any law perpetu-
ally ; and even then, that oath binds those only who have taken it. In
some popular states, for the purpose of rendering some law perpetual,
a penalty has been established against any one proposing an altera-
tion ; but that penalty may be repealed, as well as the law itself. a
But in aristocracies and monarchies, where those who govern are
distinct from those who obey, so that the latter may acquire some
vested right, by virtue of the promises and conventions of the others,
the difference is manifest between absolute power and limited power.
Kings and sovereign magistrates are, therefore, absolute, when they
govern the state as they think fit, and as circumstances require,
without consulting and asking the consent of any one, or following
certain fixed and perpetual rules. Thus, as Pufendorf observes, so far
from the term absolute implying something odious and insupportable
to free persons, that princes who wish conscienciously to acquit them-
selves of their duty, are thereby bound to a greater vigilance and
circumspection than those whose task is marked out, and who cannot
deviate from certain laws. b But, he continues, as a single person may
* Pufend. Droit des Gens, liv. 7, ch. 6, 7.
Ibi, $ 8.
b Ibi. '
SIMPLE OR REGULAR MONARCHY, ETC. 269
easily err in determining what concerns the public good, and as all
princes have not virtue and resolution sufficient to moderate their
passions when everything is in their power, many nations have
thought it best to set boundaries to the power of their sovereigns,
prescribing the way in which they are to govern, especially since it
has been observed that the disposition of each nation, and the consti-
tution of each state, require peculiar laws and modes of government.
By this limitation of sovereignty no injury is done to princes raised to
the throne by the free consent of the people. For if they could not
submit to hold a limited authority they could have refused the crown. c
And, as we have already shown, there is no immutable law prescribing
any given form of government. Therefore, the constitution of states,
and the different modifications of the sovereign power, are arbitrary
matters, to be regulated according to circumstances, as the objects of
society and the welfare of nations require. And God has nowhere
defined what degree of power should generally be given to those who
are invested with royal authority. d We have now to examine the
different sorts of laws which modify the sovereign authority.
Pufendorf justly observes that the promises of kings (and it is the
same with senators in a sovereign council) do not always limit their
authority. And he distinguishes between general and particular or
specific promises. The former sort he divides into two classes tacit
and express. Tacit promises are those implied by mere accession to
the royal dignity. But these supposed tacit promises are in truth a
mere fiction, like that of Trebonian regarding obligations, which he
names obligationes quee quasi ex contractu nascuntur;" and the
obligations of a sovereign who enters into no express promise or
engagement arise, not from an implied or presumed promise, but from
the law, whether natural or municipal, and the obligations of Religion.
The express general promises are frequently accompanied by certain
solemnities, and confirmed by an oath. Sometimes the promise
describes the sovereign's duties, either by general terms, or with an
enumeration of their principal parts; the prince promising, for
instance, to watch carefully over the public welfare, to protect the
good and repress evil doers, to administer justice with integrity, to
oppress none, and the like. But all this does not diminish his abso-
lute power, for in the means proper to procure the advantage of the
state he is left to his own judgment, as well as with regard to the
mode of using those means.
c Pufend. Droit des Gens, liv. 7, ch. 6, 9.
d Ibi; Domat, Droit Publ. liv. 1, tit. 1.
e Inst. lib. 3, tit. 8.
270 OF REGULAR STATES.
The express, particular, or specific promise comprehends a special
engagement to govern according to certain prescribed rules called fun-
damental laws. It is made in two ways. For either it is simply binding
on the conscience of the prince, or it is a necessary condition, the
breach of which absolves the subjects from obeying. In the former
case, though the power of the prince is limited by his promise, and if
without necessity he pass the limits which it prescribes, he violates his
royal word, his subjects are not thereby free to disobey his authority,
nor to annul whatever he has done contrary to his promise. For there
may be reasons requiring that established rules be set aside. A promise
of this nature must not be held binding in extraordinary cases, where ne-
cessity or a great public good dictates an exception to its terms/ And it
is for the Prince to judge whether the urgency or importance of the case
justify a deviation from the Jaw. Therefore Pufendorf concludes that
a nation who wish to give a limited authority to their Prince, should
take the precaution of establishing some assembly, without the con-
sent of which he can do nothing in those matters whereof he is not to
be absolute master, or require the Prince to convoke a general as-
sembly of the people or of all the magnates, whenever those matters
are to be decided. And the latter is the better method, because such
large assemblies are less likely to be swayed by interests contrary to
the public good than a few. When a nation have stipulated with the
king that they shall not be bound to obey him in all things, without
the consent of an assembly of the people or their representatives, this
is another sort of particular promise which imposes on the king a far
more strictly binding obligation, in virtue of which all that he does
contrary to the fundamental laws is void. g This species of constitu-
tion may also be without any specific promise on the part of the king,
or the promise may be merely subsidiary to the fundamental laws of
the state which so restrain the royal authority. And a promise to
govern according to the laws of the country must be understood as a
specific engagement in the terms of those laws. Such is the first part
of the Coronation Oath prescribed by stat 1 Will. & Mary, st. 1, c. 6.
And so Blackstone says that the principal duty of the king is to
govern his people according to law. h Pufendorf argues that an en-
gagement limiting the sovereign authority by requiring the assent of a
popular assembly to give validity to his acts, does not render the sove-
reign power defective. He distinguishes very correctly between sove-
reign power and absolute power. The former, he says, is a power
f Lampredi, Diritto Publico, torn. 3, p. 19. In cases of this nature, a bill of in-
demnity is resorted to in this country.
f Pufend. Droit des Gens, liv. 7, ch. 6, 9, 10.
h Blackst. Com. vol. 1, ch. 6, p. 233.
SIMPLE OR REGULAR MONARCHY, ETC. 271
which has no superior or equal in the order of beings; while the latter
imports full liberty to exercise rights, without consulting any but one's
own judgment. 1 He cites Grotius on this subject. But that writer
only lays it down that sovereignty is not the less sovereignty where
the prince, at his accession, solemnly engages to his subjects, or to
God, that he will observe certain things, even regarding the govern-
ment of the state, which the natural or divine law, or the law of
nations, do not require of him. For he says that a head of a family
does not lose his chiefship by entering into a promise towards the
members of the family, though he is bound to keep his promise. k
The doctrine of Pufendorf is correct so far as regards his distinc-
tion between sovereign and absolute power. But when the Prince
cannot do certain acts, such as make laws or impose taxes, without
the concurrence of an assembly, it is evident that the sovereign power
is divided, and the government becomes no longer regular or simple,
but mixt and irregular. And this sort of constitution is indeed the
only method of effectually limiting the power of the prince. Grotius,
it is true, holds that the sovereign power is not truly divided where
the kiner declares that if he do certain things without the consent of a
o o
senate, or some other body, they shall be null. But the reason which
he gives for this position is, that in such a case the acts done without
the required assent are annulled by the authority of the king himself,
whose intention was to prevent anything obtained by surprise from
being taken as his will. And he compares this to the case of a clause
in a testament declaring that any subsequent testament shall be void.
For such a disposition raises a presumption that a later testament was
not executed seriously. But the clause may become of no effect by
express revocation of the testator. And so the declaration of the
prince, regarding the nullity of certain things which he has done or
ordered, may lose its force by a new order, and a particular notifica-
tion of his later will and pleasure. 1 The parliaments under the old
French monarchy afford an example of this kind. Thus it appears
that Grotius refers to a species of case in which the sovereign power
is not divided, though a specific method is laid down for its exercise,
and it is thereby limited.
There may be fundamental laws or engagements between sovereign
and people, containing an express commissary clause whereby he is
declared to forfeit his crown if he violate those laws. This clause
must, as Pufendorf observes, be express, because if it provide merely
' Pufend. ubi sup. 10.
k Grot. Droit de la Guerre, liv. 1, ch. 3, 16.
1 Grot. Droit de la Guerre, ubi sup. 18 ; and see note 4, by Barbeyrac, regarding
an opinion of Cujacius, Observ. lib. 14, cap. 7.
272 OF REGULAR STATES.
that in the cases contemplated, the subjects shall not be bound to
obey, that has not the effect of a commissary clause which deprives the
Prince of all his rights if he violate certain restrictions. The ancient
laws of Arragon are said to have presented a remarkable instance of
this forfeiture. For it is alleged that the oath of the people of that
country to their king was expressed to be binding only if the king
observed their liberties and laws, and not otherwise. And there is a
provision of the same nature in stat. 1 Will. & M. st. 2, c. 2, and 12 & 13
Will. III. c. 2, for the purpose of preventing the crown from being
possessed by a Roman Catholic, or any one married to a Roman Ca-
tholic. No absolute monarch holds his crown subject to forfeiture.
But in a limited monarchy the prince may be bound by a commissary
clause, and yet be invested with a royal authority. For that authority
is held on a condition which it is in the power of the prince himself to
fulfil. And this is the opinion of Grotius, who holds that the effect
of the clause is to limit the mode of possessing the sovereignty, with-
out altering its nature. A commissory clause may, he observes, be
added, not only to conventions between a king and a nation who
confer on him the sovereign authority, but to other sorts of contracts,
and their nature is not thereby changed. And treaties with foreign
states are made subject to this condition. Grotius indeed establishes
that this clause is tacitly included in all treaties of alliance. 1 "
We deduce from these reflections on fundamental laws, limiting or
modifying the sovereign power, that they may be divided into two
classes, namely, those binding on the prince, so that he cannot repeal
or alter them ; and those which he has the power of abrogating and
changing. Those of the former class are the laws referred to by
Vattel, where he says, that " when the sovereign power is limited and
regulated by the fundamental laws of the state, they teach the prince
the extent and limits of his power, and the manner in which he is to
exercise it. He is strictly bound not only to respect them, but to
maintain them. The constitution and the fundamental laws are the
plan by which the nation has resolved to work out its happiness.
The execution is confided to the prince." q And so Fortescue says,
" Neither can a king" (where the government is limited), " who is the
head of the body politic, change the laws thereof, nor take from the
m Hallam, Middle Ages, vol. 2, p. 64, note.
n Pufend. Droit des Gens, liv. 7, ch. 6, | 9.
Grot. Droit de la Guerre, liv. 1, ch. 3, 16.
P Ibi, liv. 2, cap. 15, 15. See as to the commissory clause or commissoria lex,
Voet ad Pand. lib. 18, tit. 3, 16.
1 Vattel, Droit des Gens, liv. 1, chap. 4, 46.
SIMPLE OR REGULAR MONARCHY, ETC. 273
people what is theirs, without their consent." 1 " And Bracton says,
" The king ought not to be subject to man, but to God, and to the
law ; for the law maketh the king. Let the king, therefore, render to
the law what the law has invested in him with regard to others,
dominion and power, for he is not truly king where will and pleasure
rule, and not the law." And again, " The king also hath a superior,
namely, God, and also the law, by which he was made king." 3
The fundamental laws of the latter class are also binding on the
prince, but in a different sense, which we must now consider. Vattel
examines the question, whether the person or assembly, in whom the
legislative authority of a state is vested, have power to change the
fundamental laws which form the constitution of the state. He holds
that the nation itself has undoubtedly this right. And he admits the
same power to belong to the majority, provided the change be not
contrary to the very act of civil association, and the intention of those
who entered into it. Thus, he says, if it were proposed to abandon
the form of government to which alone the citizens were pleased to
submit; as, for instance, if in a republic, the majority decided on
adopting the monarchical form of polity, the dissentients would not be
bound to submit to the new government. They would have a right
to withdraw from the nation, and sell their lands, and emigrate with
their movable property. 1
This doctrine is based mainly upon the hypothesis of a state formed
by contract of association or original contract. But contract is not,
as we have seen, the origin of civil societies or states ; and we do not
find that when the form of a state is totally changed, as repeatedly
occurred in France, the right of the minority to throw off their alle-
giance to the sovereign power has been recognized. And this is in
accordance with the principles of Public Law, for the obligation of
submitting to the civil government, lawfully established, does not
arise from the consent of the citizens, but from the two primary laws
on which civil society is constructed. The power of emigrating, and
throwing off citizenship or allegiance, depends in each country on its
municipal laws ; and this is a matter of arbitrary or positive law."
Vattel next examines the important question, whether the legislative
power of a state is competent to change the fundamental laws, thereby
altering the constitution. He resolves it in the negative, unless the
r Fortesc. De Laud. Leg. Angl. c. 13. And see Mariana, De Rege, lib. 1, cap. 2,
p. 23.
Bracton, 1.1, c. 8 ; 1. 2, c. 16, 3.
1 Vattel, Droit des Gens, liv. 1, cbap. 3, 33. The same theory was used to argue
that Parliament could not reform the House of Commons.
" Lampredi, Diritto Publ. vol. 3, p. 196.
T
274 OF REGULAR STATES.
legislature be specifically empowered by the nation to change those
laws. He alleges that the constitution of the state ought to be stable ;
and argues that, as the nation first established that constitution, and
then confided the legislative authority to certain persons, the funda-
mental laws are excepted from their commission. The civil society,
he says, designed only to provide that the state might always have
laws adapted to conjunctures and circumstances, and for this purpose
gave to the legislators power to abrogate civil laws and political laws
not fundamental, and make new ones ; but there is nothing to show
that it was intended to submit to their will the constitution itself.
They hold their authority from the constitution. How then can they
change it without destroying the very foundation of their own power?
If the parliament of England chose to abolish themselves and vest all
power in the crown, how could the nation be bound to submit? But
if the parliament deliberated on a considerable change of the consti-
tution, and the nation remained silent, it would be held to approve the
act of its representatives/
Here again Vattel argues on a particular hypothesis, and not on
general rules of Public Law. There are cases in which limited powers
are conferred on a legislature. So the Congress of the United States
and the state legislature are restricted in their power by the constitu-
tion, which is the supreme law of the land, and can be altered only by
a method prescribed in the constitution itself. y And where a nation
first establishes a constitution, and then confides the legislative power
to certain persons, it may be argued that they cannot change the form
of polity which is anterior to their own creation and commission. So
far the doctrine of Vattel is sound. Whether it be applicable in a given
case, depends on the municipal law of the particular country. But if
this important question be solved on general grounds of Public Law,
the result will be different from that at which he arrives. For, as we
have seen, 2 the nature of the sovereign power in the abstract is, to be
both supreme and unlimited, that is, to comprehend the whole extent
of temporal power and government. And as the constitution of the
state is the form in which the nation acts as a body politic, 8 it follows
1 Vattel, Droit des Gens, liv. 1, ch. 3, 34. The same theory, limiting the power
of Parliament, caused Junius to question the power of the legislature to disfranchise a
number of boroughs upon the ground of improving the Constitution. Junius, Letters,
Observations following the last letter.
T Federalist, pp. 143, 169; Kent, Comment, vol. 1, lect. 12, p. 251 ; lect. 15, p. 31 2 ;
lect. 10, pp 209, 210 ; Story, Comment, on the Constitution of the United States,
vol. 3, pp. 685, 690; Constitution, art. 5.
1 Chap. XIX.
Vattel, Droit des Gens, liv. 1, chap. 3, 27.
SIMPLE OR REGULAR MONARCHY, ETC. 275
that on general principles, that form contains the sovereign power, of
which the most supreme part is the power of legislation. And wher-
ever the legislative power is placed by the constitution of the state, it
is, abstractedly, and unless restricted by peculiar political institutions,
supreme and unlimited. This is the meaning of the doctrine some-
times called by English writers the omnipotence of parliament. Thus
Blackstone says, in speaking of that assembly, " It hath sovereign and
uncontrolable authority in the making, confirming, enlarging, restrain-
ing, abrogating, repealing, reviving and expounding laws concerning
all matters of all possible denominations ; this being the
place where that absolute despotic power, which must in all govern-
ments reside somewhere, is intrusted by the constitution of these
kingdoms/' "It can in short do everything that is
not naturally impossible, and therefore some have not scrupled to call
its power, by a figure somewhat too bold, the omnipotence of parlia-
ment. True it is, that what parliament doth, no authority upon earth
can undo." 5 So parliament may give the king a legislative authority.
Blackstone, commenting on the articles and act of union with Scot-
land, observes, " 1. That the two kingdoms are now so inseparably
united, that nothing can ever disunite them again ; except the mutual
consent of both, or the successful resistance of either, upon appre-
hending an infringement of those points which, when they were
separate and independent nations, it was mutually stipulated should
be fundamental and essential conditions of union" But though the
learned commentator afterwards says, that an infringement (by par-
liament) of those conditions, such as altering the constitution of either
of the established Churches of England or Scotland, without their
consent, would greatly endanger the union, he does not intimate that
an act of parliament, having that effect, would not be valid. And
Mr. Justice Coleridge observes, in a note, that, " It may justly be
doubted, whether even such an infringement (though a manifest breach
of good faith, unless done upon the most pressing necessity) would,
of itself, dissolve the union ; for the bare idea of a state without a
power somewhere vested, to alter every part of its laws, is the height
of political absurdity." d
These doctrines of Public Law are applicable to absolute monar-
chies, in which the entire legislative power of the state is vested in
the prince. And thus history presents many instances of absolute
sovereigns who have altered the constitution of their kingdoms by
b Blackst. Com. vol. 1, ch. 2, pp. 160, 161 ; 4th Inst. 36.
c Com. Dig. tit. Parliament, H.3.
d Blackst. Com. vol. 1, Introd. 4, pp. 97, 98, and note.
T 2
276 OF REGULAR STATES.
converting them into limited monarchies. Such alteration of the form
of government is valid, though it involve the division and distribution
of the sovereign power by new fundamental laws, or even the conver-
sion of the monarchy into a republic.
Having thus explained the nature of the second of the two classes
of fundamental laws described above, we shall easily see in what
modified sense it is that even the most absolute sovereign is said to be
above the laws. Domat lays it down that the first and most essential
duty of those whom God raises to sovereign authority is to recognize
this truth, that it is from God that they hold all their power, and it is
His place which they fill ; that it is by Him that they ought to reign,
and from Him they are to have that wisdom and understanding which
should give them the art of governing. And they ought to make
these truths the principles of all the rules of their conduct, and the
foundations of all their duties. 6 These are rules of immutable law,
immediate consequences of the two primary laws on which society is
constructed. For it is by the spirit of those two laws that God has
united men together in society, and formed the ties engaging them
therein, which form the order of society. And as those engagements
demand the use of government to keep every one within the order of
those which are peculiar to him, God has established for that govern-
ment the powers necessary to maintain society, and to accomplish its
end, which is that of man, as St. Thomas Aquinas shows/ And as
the laws of man are the rules of his conduct, directing him towards
his end, so those laws must be the rules appointed by God for all
sovereign powers in the performance of their duties which He has
committed to them. Domat deduces the other obligations of sove-
reigns from the duty first laid down, and he concludes by saying :
"We may add for a last duty of the sovereign, which is a consequence
of the first, and which also comprehends the others, that although his
power seems to place him above the law, no one having a right to
call him to account for his conduct, yet he ought to observe those
laws which regard him, and he is bound to do so, not only that he
may give a good example to his subjects, and render their duty easier
to them, but because his power as a sovereign does not dispense with
his own duty, and, on the contrary, his rank obliges him to prefer to
his own particular interest the common good of the state, which it is
his glory to look upon as his own good." g And these principles agree
with the imperial law, notwithstanding the famous law Quod principi
e Domat, Droit Publ. liv. 1, tit. 2, sect. 3, 1 ; 2 Chron. i. 9, 10; 1 Kings, iii. 9 ;
1 Sam. ix. 16; Div. Thorn. Aquin. De Regim. Princip. lib. 1, cap. 8.
f Div. Thorn. Aquin. De Regim. Princip. lib. 1, cap. 14.
Domat, ubi sup. 14.
SIMPLE OR REGULAR MONARCHY, ETC. 277
placuit, legis habet vigoremf and the law by which the emperor is
declared to be solutus legibus* Cujacius explains the latter text of
Ulpian to mean, not that the prince is free from all laws, but that he
is, by his prerogative, exempt from the particular laws to which that
text relates, and which created a forfeiture. And he says that the
prince is bound by his own laws, k though he has the power to abro-
gate and alter them. 1
The examination of the fundamental laws of monarchies naturally
leads us to consider the distinction between elective and hereditary
monarchies, and the diversities and nature of those two classes of
states. This part of our subject equally belongs to every sort of
monarchy, whether absolute, limited, or mixed, that is to say, irregular.
And first we must examine the reasons of Public Law on which here-
ditary monarchy is based.
We have seen that the order of successions in human society is
grounded on the necessity of continuing and transmitting the state of
society from one generation to another, and this is done insensibly by
making certain persons succeed to and in the place of those who die,
that they may enter upon their rights, their offices, and such relations
and engagements as are capable of passing to posterity." 1 And the
institution of hereditary succession is calculated to promote the peace
and order of society, by preventing contests which would otherwise
arise for things left vacant by death. In this way the law of heredi-
tary succession is a natural consequence of the principles on which
individual property is founded ; for that species of dominium would be
incomplete and insufficient for the purposes for which it is intended, if
it terminated on the death of the owner." So this institution is of
secondary natural law, even considered apart from that presumed
intention of the owner on which Grotius founds the principle of heir-
ship ab intestato. And thus Grotius holds the right of disposition by
will or testament to be of natural law, as a consequence of the insti-
tution of absolute property . p
The grounds or reasons of hereditary monarchy are analogous to
those of the institution of hereditary succession in the other parts of
h L. 4, Cod. De Legib. et Const. Princip. ; 1. 3, Cod. De Testam.
1 L. 1, if. De Constit Priucip.; 1. 31, ff. De Legib.
k Cujac. Recit. in Libros 4 Priores Cod. ad Tit. 14, D. ; Cujac. Op. torn. 10, col. 790.
1 L. 1. ff. De Constit. Princip.
m Domat, Loix Civiles, Traite des Loix, ch. 7, 1.
" Pufend. Droit des Gens, liv. 4, ch. 10, ^4.
Grot. Droit de la Guerre, lib. 2, cb. 7, 3 ; Pufend. Droit des Gens, liv. 4, ch. 11,
(I.
v Grot. Droit de la Guerre, liv. 2, ch. 6, 14.
278 OF REGULAR STATES.
human society. The perpetuity of the commonwealth seems to point
out the value of a law which invests the sovereign with a sort of per-
petual duration and immortality, and leaves no interval during which
obedience to the prince is suspended, and the minds and opinions of
men unsettled/ 1 upon which human authority so mainly depends. In
hereditary monarchy, as Dornat observes, God himself seems visibly
to dispose of the government by calling to it princes by their birth ;
whereas elections are liable to great inconveniences, whether by the
choice of persons, which is easily misled, or by cabals and factions,
and the disappointment of a defeated minority/ It must be owned
that an elective monarchy seems to be the most obvious, and best
suited of any to the rational principles of government, and the freedom
of human nature. As inferior magistrates and officers are chosen for
their personal merits and fitness, so it would seem that the throne
should be filled by deliberate choice, and not by the accident of birth.
But, on the other hand, the supreme importance of the sovereign office
must necessarily exaggerate in the election of a prince the evils to
which all elections are liable. And no other office can with more
inconvenience, and even danger, be left vacant even for a short inter-
val. Experience shows that though the election of kings and chief
magistrates of states is recommended by the argument that the choice
of the nation will probably fall on some one of the most eminent and
able candidates, the result is in general different. For men of great
and commanding abilities are objects of jealousy, especially to the
heads of parties, who are likely therefore to combine in the choice of
some one whose parts are not such as to give them umbrage, or check
their ambition or their policy. A prince, moreover, whose crown will
devolve upon his heirs, has a motive for diligence and zeal in the
public service and the welfare of the state, beyond one whose interest
is confined to the brief space of human life. 5 And the latter will be
strongly tempted to enrich and aggrandize his family at the expense of
the state. Inheritance has indeed often placed on the throne inca-
pable or bad princes. But, on the other hand, it is urged that all
human devices are liable to inconveniences, and that this evil is, on
the whole, less than those which must arise from frequently recurring
elections. The experience of ancient and modern Europe has been
i Et est natura datum ut res communes et imperia, magis opinione hominum quam
rebus ipsis gubernentur. Pereunte obsequio imperium etiam intercidit; feruntque
aequiori homines animo, quern princeps infeliciter genuit, quam qui electus est non
male. Ad heec principatu facto hefreditario, perpetui quudummodo principes perpetua
reipublicee danlur, yuod saluberrimiim est. Mariana, De Rege, lib. 1, cap. 3, p. 31.
r Domat, Droit Publ. liv. 1, tit. I.
Mariana, ubi sup. p. 32.
SIMPLE OR REGULAR MONARCHY, ETC. 279
unfavourable to the practicability of a fair and peaceable popular elec-
tion of the executive head of a great nation ; and mankind have gene-
rally taken refuge from the evils of popular elections in hereditary
executives, as being the least evil of the two. 1 The principle of here-
ditary succession seems pointed out, by reason and analogy, as a
natural mode of transmitting from one generation to another, in a
monarchy, this fundamental institution of civil society, because it is
that by which society itself is preserved and perpetuated.
The succession to the throne is differently moulded and modified by
the municipal laws of different monarchies. In some it is confined to
the male line, while in others females are admitted, in default of males
in the same degree. The former is called the Agnatic or Castilian,
and the latter the Cognatic or French succession." That which ex-
cludes females is also known as the Salic Law.*
Montesquieu observes that an elective monarchy necessarily sup-
poses a powerful aristocratic body to support it, without which it
changes into a tyranny or a popular state.' An elective monarchy is
that in which the people, or those in whom the right is vested, as, for
instance, the College of Cardinals in Rome, or nobles in Poland, choose
a certain person to govern the state. And as soon as the decision of
the electors has been signified to that person, and he has accepted,
the sovereign power becomes vested in him, or is conferred on him.*
There are two sorts of election, one entirely free, and the other limited
or restricted in certain respects. The former is when any one whom-
soever may be chosen, and the latter when a person must be chosen
who belongs to a certain family or nation, or who has a certain quali-
fication. And the right of succession may be combined with election;
for the crown may ordinarily pass to the heirs of the deceased prince,
subject to the approbation or choice of the grandees or people." When
in an elective monarchy the king dies, without a successor being
designated, there is a vacancy of the throne called Interregnum.
Pufendorf does not in all respects correctly describe this state of a
civil community, because he argues on the hypothesis of original con-
tract. But he truly observes, that as the proper subject of sovereignty
ceases to exist, the state becomes an impei'fect body politic, and
partakes for the most part of the nature of democracy, because, unless
the nature of the government be changed, the community itself must
' Kent, Comment, vol. 1, lect. 13, pp. 273, 274.
u Pufend. Devoir de 1'Homme et du Cit. liv. 11, ch. 10, 11.
x Montesq. Esprit des Loix, liv. 18, ch. 22.
xlbi, lib. 11, ch. 13.
* Pufend. Droit des Gens, liv. 7, ch. 6, 6.
Ibi.
280 OF REGULAR STATES.
proceed to provide a new monarch. And this shows in what sense
Grotius says, that when a royal family becomes extinct the sovereignty
returns to the nation. That is to say, though during the interregnum
the people have not properly the sovereignty, since they have not
decided to place the sovereign power in the hands of the general
assembly of citizens, yet the people may in the meantime exercise by
themselves, or their representatives, all the acts of sovereignty which
they deem requisite for their preservation. But they may either
choose a new monarch, or change the government into a monarchy or
an aristocracy. 6 It is a wise precaution to prevent the troubles and
inconveniences incident to an interregnum, by designating those who,
during the interval, shall hold the reins of government. Whatever
may be the title of these regents (called in Latin Interreges) they are
temporary magistrates, exercising provisionally the authority of the
state, so far at least as is necessary to preserve peace, and responsible
for their administration. And their authority ceases on the election of
the new monarch, or the erection of another form of polity. Hobbes
asserts, that if a sovereign for life be created, and the citizens make
no provision for electing a successor, in that case, on his death, the
state is not a moral person or body politic, but a multitude without
bond of union. But Pufendorf justly denies this position, for when
once a number of men have submitted to the government of a king, it
is not to be presumed that they intended the state to be destroyed,
and the citizens reduced to a condition of anarchy on his decease.
They have at least tacitly agreed that on the death of the king they
will meet in the usual place of assembly, or at the domicil of the
deceased sovereign : and there will probably be among them citizens
possessed of sufficient influence to keep the others within their duty
during the interregnum, and induce them to provide at once for the
wants of the state. d The same conclusion may indeed be arrived at
without resorting to any presumed intention, for the duty of preserving
society from anarchy is a natural immutable law.
A sort of interregnum arises in some hereditary monarchies when
the king dies leaving the queen with child, or believed to be so, and
no heir apparent actually born. Pufendorf observes that most nations
b Pufend. ibi, 7; Grot. Droit de laG. liv. 1, ch. 3, 7. Our reflections on elective
sovereignties are of course inapplicable to the Sovereign Pontiff, whose election belongs
to the law spiritual, and whose temporal power rests on peculiar mixed grounds of
ecclesiastical and temporal polity. The mode of this election is to be found in the
3rd and 6th chapters De Elect., in the Sexte, the 2nd chap. De Elect, in the Clemen-
tines, the Decretals, lib. 1, tit. 6, cap. 6, &c. See Devoti, Inst. Canon, torn. 1, p. 260.
As to the temporal power, see Devoti, p. 163.
c Pufend. ibi, 8.
d Ibi, 9; Hobbes, De Cive, cap. 9, 15.
SIMPLE OR REGULAR MONARCHY, ETC. 281
have agreed to acknowledge that a right may vest in a child in the
womb, though incapable of exercising such right. While there is a
proper subject of sovereignty, there is no interregnum, and therefore,
when the prince is a minor or a prisoner, there is no interregnum,
properly so called. But before the birth of the posthumous child, it is
impossible to know whether it will be born living, or whether it will
be of the male or female sex, which is necessary to be ascertained in
those kingdoms that do not pass to females. Therefore, during the
interval, the kingdom should be governed as during the minority of
the sovereign. 6 And supposing that if the king had died, leaving no
child either born or to be born, a real interregnum would have taken
place, the mode of governing until the result has been ascertained
would be the same, and the nation would not acquire the right
of providing for the vacancy of the throne until the accouchement of
the widow/
These doctrines are in accordance with the civil law, which gives
the same rights to a child in the womb as to a child actually born. 8
And so it was in the law of the French monarchy. On the death of
Louis X., the presumptive heir to the throne was appointed regent,
and continued so until the birth of the posthumous child. The child
was a male, and therefore entitled to succeed, but it lived only eight
days. At the death of Charles the Fair his widow was seven months
gone with child. The presumptive heir was again made regent. The
child proved a female, and consequently could not succeed to the
throne by the law of France. The regent therefore succeeded. 11
The law of England is different on this point. It was held by Lord
Chancellor Lyndhurst, with the assent of the late Earl of Eldon, in
the proceedings in the House of Lords on the Regency Act, 1 Will. IV.
c. 2, that in the event of the king's death, leaving his widow with
child, the crown would nevertheless descend upon the heiress pre-
sumptive, but subject to be divested by the birth of a child of the
deceased king, who would immediately become king or queen. 1 But
these regulations of Municipal Law are here stated merely by way of
illustrating the general principles explained above. The law of Eng-
land, in this particular, is founded on the feudal law, which requires
e Pufend. ubi sup.
f Ibi.
e Qui in ute.ro eat, perinde ac si in rebus humanis esset custoditur, quotient de commodo
ipsius purtus qua-ritur. L. 7, ff. De Statu Horn. ; and see 1. 2, ff. De Excusat. ; 1 9,
1, ff. ad Leg. Falcid. ; and see Fearne, Contingent Rem. ch. 4, 1, p. 308 ; stat.
10 & 11 Will. III. c. 16 ; stat. 12 Car. II. c. 24.
h See my Comment, on the Constit. Law of England, pp. 152, 153 (2nd edit.)
1 Ibi, p. 151 154, where the subject is fully discussed.
282 OF REGULAR STATES.
that there should be a tenant to land, not only in rerum natura, but
actually born, and therefore prefers the heir presumptive to the unborn
heir apparent. And the law regulating the descent of the crown is
governed in England by the same rules which govern the descent of
real property at common law, with only two exceptions ; and there is
a third exception introduced by stat. 3 & 4 Will. IV. c. 106.
CHAPTER XXV.
ON MIXED GOVERNMENTS, AND THE DIVISION OF THE SOVEREIGN POWER
AND THE THREE GREAT DEPARTMENTS OF GOVERNMENT.
Nature of irregular or mixed Governments Division of the Sovereign Power Ba-
lance of Powers in a State How the Government of the United States of America
is a limited and mixed Government Distinction between the Distribution of Powers
and the mere Division of Departments Reasons of the Division of Departments,
and of the Distribution of Powers Principles of mixed Governments The Utility
of those Governments in particular Cases Examination of the Nature of Liberty,
Natural and Civil Definition of Liberty by Florentinus Liberty considered with
reference to its Degree or Extent Use of the Balance of Powers with reference to
Liberty Political Liberty Principles on which mixed Governments are constructed
Theory of Montesquieu Principles of Blackstone and Story How the Division
of the Three Powers of Government is rendered consistent with the Unity of Go-
vernment Doctrine of Madison on this Subject Difficulty of preventing the En-
croachments of the Three Powers on each other Government constructed on the
Principle of combining Monarchy, Aristocracy and Democracy The Three Ingre-
dients of this sort of Government examined Maxim that the King can do no
wrong The hereditary Peerage Privileges of the Peers Impeachments The De-
mocratic Part of a mixed Constitution.
WE must now pass from the three regular or simple, to irregular or
mixt forms of government, that is to say, those in which the branches
of the sovereign power are not all vested in one person or body of
persons, but divided and distributed. 15 That division and distribution
produce a number of different combinations, constituting various forms
of civil polity, which in each country are regulated by a vast system
of municipal laws, for the most part positive. Those laws are engen-
dered and governed by the spirit of the particular state, and the
circumstances of the people and the country, which produce a great
variety of modifications in the way in which any given form of con-
"Chap. XXIII.
ON MIXED GOVERNMENTS, ETC.
stitution is constructed and worked. Nevertheless, mixt governments
present certain characteristics, which enable us to range them in
classes on scientific principles. It is, indeed, difficult in some instances
to assign to a particular mixt government a name and place beyond
the reach of dispute. The very name of mixed government explains
this difficulty. Thus, some have contended that the kingdom of Great
Britain and Ireland is a republic, while the received opinion is, that it
is a mixt monarchy. These disputes are inevitable ; but mixt forms
of civil polity may nevertheless be reduced to classes, by giving them
the three different names of monarchy, aristocracy, and democracy,
according as the greater part of the sovereign power is vested in one
person, in a few, or in the many. 1 Their mixt nature must, neverthe-
less, not be neglected; and regard must be had to those parts of their
constitution which belong properly to another class of states, and
therefore have a spirit differing from that which the denomination of
the particular state indicates. But even a simple or regular govern-
ment may, in the mode of its operation, have something analogous to
another of the three sorts of simple government. Burlamaqui thus shows
the distinction between this analogy and the true characteristics of a
mixt government. " With regard to simple governments, the sove-
reignty may in them be either absolute or limited. Those in whom it
is vested, exercise it sometimes in an absolute way, and sometimes in a
manner limited by fundamental laws, which set boundaries to the power
of the sovereign, with reference to the way in which he ought to
govern." On this subject it is requisite to observe, that all the acci-
dental circumstances which may modify simple monarchies or aris-
tocracies, in some manner limiting the sovereignty in them, do not
therefore change the nature of the government. A government may
resemble another in some degree, when the mode in which the sove-
reign governs seems borrowed from it, but without alteration in the
nature of the constitution. For instance, in a democratic government
the people may entrust certain affairs to a senate, or a chief magistrate.
In an aristocratic state, there may be a principal magistrate invested
with a special authority ; or even an assembly of the people, who are
sometimes consulted. Or in a monarchical state, important affairs may
ba proposed and discussed in a senate, &c. But all these accidental
circumstances do not alter the form of the government, and do not con-
stitute a division of the sovereign power; and the state still remains
purely democratic, aristocratic, or monarchical. For there is a great
difference between exercising a power proper to him who exercises it,
and acting by an extraneous and temporary precarious power, which
1 Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1, lib. 3, cap. 2, 199, num. 3,
p. 414.
284 ON MIXED GOVERNMENTS.
may be taken away by him who gave it whenever he pleases. Thus
the essential characteristic of mixt or compound commonwealths,
which distinguishes them from simple governments, is this, that the
different orders of the state which partake of the sovereignty possess
the rights which they exercise by an equal title, that is to say, by
virtue of the fundamental law, and not under a mere commission, as
a minister executing the will of another. The distinction must there-
fore be drawn between these two things, the form of the government,
and the mode of governing."
Mixt governments are established by the combination of the three
simple forms of government, or of two only ; as, for instance, when
the king, the optimates and the people, or the two last only, divide
among them the different parts of sovereignty, so that part is adminis-
tered by one and the rest by the others. And this combination may
be effected in different ways. n
We have explained, in considering the connexion of the jura
mqjestatis with each other, that there must be a unity in the sovereign
power, so that one supreme will may govern the state. But this princi-
ple of unity does not prevent a fundamental law or constitution forming
a government, so as to commit the exercise of the parts of the sove-
reign power to different persons or bodies, acting independently of
each other, within the extent of the rights belonging to each, but
still in subordination to the laws by which they hold their authority.
And provided the fundamental laws establishing this partition of the
sovereignty, regulate the respective limits of the different powers, so
that their jurisdiction may be easily seen, the division produces no
conflict between them. For there is but one sovereign and one su-
preme will, which consist of all the orders or estates of the common-
wealth, and the law itself, which is the will of the body politic or
state. It results from the nature of mixt governments, that in them
the sovereignty is always limited. For as all the different branches
are not confided to a single person or body, but are placed in different
hands, the power of those who take part in the government is thereby
restricted, and the power of each is a restraint on the others. This
produces a balance of power and authority, for the purpose of securing
the public welfare and the liberty of individuals.? And this is an
important diversity between mixt governments and simple states, in
which the sovereign power may be either limited or absolute. Thus
m Burlamaqui, Droit des Gens, torn. 4, par. 2, cap. 1, 9.
n Ibi, $ 6.
Chap. XXII.
P Burlamaqui, ubi sup. 8.
DIVISION OF THE SOVEREIGN POWER, ETC. 285
we have seen q that there are two methods by which the authority of a
monarch may be limited, that is to say, by fundamental laws restrict-
ing and defining his powers, and by the division and distribution of the
sovereign power so that the whole is not confided to any one person
or body of persons.
In a democracy, the former method is not applicable. For though
this sort of state, like all others, must have certain regulations esta-
blished by usage or written law, and which are fundamental or con-
stitutional laws ; yet the sovereign assembly of the people may at any
time alter them, because the people cannot bind themselves to them-
selves, not to change the laws/ Democracy can therefore be limited
only by partition and distribution of the sovereign power. This par-
tition is exemplified in the United States of America. For the whole
sovereignty is neither in the States nor in the Union. The constitution
of the United States is an instrument containing the grant of specific
powers, and the government of the Union cannot claim any powers
but what are contained in the grant, and given either expressly or by
necessary implication. The powers vested in the state governments by
their respective constitutions or remaining with the people of the
several states, prior to the establishment of the constitution of the
United States, continue unaltered and unimpaired, except so far as
they are granted to the United States. 8 This residuary sovereignty of
the States is a restraint to the power of the Union or federal govern-
ment, and renders it a limited government. Madison says, that the
constitution is in strictness neither a national nor a federal govern-
ment, but a composition of both, and in this sense it may be called a
mixt government. 1
Here we must notice an inaccuracy of Story, in his chapter on the
distribution of powers, which arises from his neglecting the distinc-
tion drawn by Pufendorf, between the form of the government and
the mode of governing. Story commences that chapter thus : " In
surveying the general structure of the constitution of the United
States, we are naturally led to an examination of the fundamental
principles on which it is organized, for the purpose of carrying into
effect the objects disclosed in the preamble. Every government must
include within its scope, at least if it is to possess suitable stability
and energy, the exercise of the three great powers, upon which all
governments are supposed to rest, namely, the executive, the legisla-
tive, and the judicial powers. The manner and extent in which these
q Chap. XXIV.
r Pufend. Droit des Gens, liv. 7, ch. 6, 7.
Kent, Comm. vol. 1, lect. 15, p. 313.
1 Federalist, num. 39, p. 207209.
286 ON MIXED GOVERNMENTS.
powers are exercised, and the functionaries in whom they are vested,
constitute the great distinctions which are known in the forms of
government. In absolute governments, the whole executive, legisla-
tive and judicial powers are, at least in their final result, exclusively
confined to a single individual; and such a form of government is
denominated a despotism, as the whole sovereignty of the state is
vested in him. If the same powers are exclusively confined to a few
persons, constituting a permanent sovereign council, the government
may be appropriately denominated an absolute or despotic aristocracy.
If they are exercised by the people at large, in their original sovereign
assemblies, the government is a pure and absolute democracy. But
it is more common to find these powers divided and separately exer-
cised by independent functionaries, the executive power by one depart-
ment, the legislative by another, and the judicial by a third ; and in
these cases, the government is properly a mixed one; a mixed mo-
narchy, if the executive is hereditary in a single person ; a mixed
aristocracy, if it is hereditary in several chieftains or families ; and a
mixed democracy or republic, if it is delegated by election and is not
hereditary. In mixed monarchies and aristocracies, some of the
functionaries of the legislative and judicial powers are, or at least may
be, hereditary. But in a representative republic, all power emanates
from the people, and is exercised by their choice, and never extends
beyond the lives of the individuals to whom it is entrusted. It may
be entrusted for any shorter period, and then it returns to them again,
to be delegated again by a new choice." u
According to this doctrine, the constitution of the United States
would be rendered a mixed government by the mere circumstance that
the three departments of government are confided to separate func-
tionaries. But these functionaries all exercise their duties as the dele-
gated servants of one single power, the people, who are represented in
their sovereign capacity by the legislative assembly or congress, to
whom all are subordinate. And therefore but for the residuary sove-
reignty of the States, the government of the Union would be a simple
or absolute democracy. Subject to this correction however, the doc-
trine of Story is important, as showing the division of the departments
of government. For that division is grounded not only on the prin-
ciple of division of labour, but also on reasons analogous to those on
which real mixed constitutions are constructed. Thus Story says :
" In the establishment of a free government, the division of the three
great powers of government, the executive, the legislative, and the
judicial, among different functionaries, has been a favourite theory
with patriots and statesmen. It has by many been deemed a maxim
Story, Comment, on the Constit. of the United States, vol. 2, pp. 1, 2.
DIVISION OF THE SOVEREIGN POWER, ETC. 287
of vital importance that these powers should be for ever kept separate
and distinct. And accordingly we find it laid down with emphatic
care in the bill of rights of several of the state constitutions. In the
Constitution of Massachusetts, for example, it is declared, that ' in
the government of this commonwealth the legislative department shall
never exercise the executive and judicial powers, or either of them;
the executive shall never exercise the legislative an'd judicial powers,
or either of them; the judicial shall never exercise the legislative and
executive powers, or either of them; to the end that it may be a govern-
ment of laws and not of men.' Other declarations of a similar character
are to be found in the other state constitutions.""
The delegation of two or more branches of government to one de-
partment would no doubt cause danger of encroachment and abuse of
power, and might be hurtful to the stability of a republic, in which
no functionary should have a preponderating influence ; but the prin-
ciples regarding the arrangement of departments are still distinguish-
able from those which regulate the balance of powers in a mixed go-
vernment. Thus the law of the State of Massachusetts, just cited,
differs from the English Constitution, in which the executive branch
is also part of the legislative, and the legislative sometimes exercises
judicial powers. The reason of this diversity is, that in the British
Constitution there is not merely a separation of departments, but also
a combination of monarchy, aristocracy, and democracy, so contrived
that they may check and influence each other. These reflections
show both the analogy and the diversities between the mere distribu-
tion of departments which may exist in simple monarchy, aristocracy
or democracy, and the separation of the branches of the sovereign
power in a mixed government, formed by combining two or all those
forms of civil polity. We will now explain the reasons which recom-
mend mixed governments, and the principles of Public Law on which
they are constructed.
Regular or simple forms of government are no doubt the most ob-
vious and easily understood; and they are characterized by unity and
consistency. But, on the other hand, each of them has its own parti-
cular inconveniences, dangers and defects. Uncontrolled power is
always liable to be misused, whether it be entrusted to one man, to a
few, or to the people. And the peculiar nature and spirit of monarchy,
aristocracy and democracy are remarkably apt to counteract the dan-
gers and evil tendencies of each other. We have already observed,
that the celebrated dispute on the question, what is the best form of
civil polity, is useless, and impossible to be determined as a general
proposition, for its solution depends, in each particular case, on a
* Story, ibi, p 3 ; Federalist, num. 47, p. 264.
288 ON MIXED GOVERNMENTS.
variety of local circumstances. And this observation is particularly
applicable to mixed governments. For there are countries where a
simple form could not be adopted without excluding from the political
system some essential part of the interests and powers which constitute
society. The result must be uneasiness and insecurity, and, perhaps,
revolutionary changes ; because, as we have seen, civil society is
natural society itself, modified by the creation of sovereignty and go-
vernment^ and therefore the system of government or polity of every
state ought to be grounded on the elements of order and power which
the particular natural society presents. So those who have attempted
to adapt a society to a given form of polity, instead of framing the
government in harmony with the condition of the society, have gene-
rally failed and injured the commonwealth. Thus, in the plan of
human society traced by Domat, civil government is placed last, as
being required to restrain every one within the order of those engage-
ments which are peculiar to him. And for this government, he adds,
God has established the powers necessary to maintain society. 2 These
reflections exemplify the connexion between Public Law and the
science of Politics. The welfare of states depends, indeed, mainly on
the laws by which society is constituted. We may conclude, that in
some states a mixed is better than a simple form of government.
The observations on fundamental laws in the preceding chapter
show that the power of a sovereign cannot be effectually limited, except
by dividing and distributing the sovereign power. And this is so,
whether the sovereign be a monarch, a senate, or a popular assembly.
The purpose of such limitation is to obtain what is called a free go-
vernment, and to secure liberty. This subject we must now briefly
consider.
Absolute liberty, that is to say, the faculty of acting without any
control whatever, according to the impulse of desire or inclination, is
irreconcilable with the nature of man as a reasonable creature, to
whom natural law has been given as a rule by God. This proposition
is still more evidently true with respect to that portion of mankind
who have received the true Religion, and are members of the true
Church. Thus Suarez teaches us, that though a law taken absolutely
is not necessary, yet, assuming the creation of reasonable creatures, a
law is useful and necessary for their direction and government." And
so the laws of man are the rules directing his conduct towards his
end. b It follows, that natural liberty, that is, the utmost liberty corn-
s' Burlamaqui, Droit des Gens, torn. 4, par. 1, ch. 1, 3, p. 15.
1 Domat, Loix Civiles, Trait6 des Loix, ch. 5, 6.
Suarez, De Legib. lib. 1, cap. 3, 3.
b Domat, Loix Civiles, Trait des Loix, ch. 1, 3.
DIVISION OF THE SOVEREIGN POWER, ETC. 289
patible with the nature of man, is that which is restrained only by
natural law and the laws of religion. Therefore natural liberty is not
a state of entire independence. But natural law cannot be enforced
and maintained in full vigour except in the social state. And the
social state requires the institution of sovereign power adequate to
govern the commonwealth, prescribing to its members certain laws
or rules of conduct, and compelling them to conform thereto. And
the liberty enjoyed in civil society must be the most perfect and secure,
and best calculated for happiness, because the institution of govern-
ment gives fresh vigour to natural law, and the establishment of a sove-
reign power provides effectually for its observance.
The establishment of sovereignty and government, it is true, modi-
fies natural liberty considerably. Man, under those institutions, must
renounce his supreme arbitrium over his person and actions, that is to
say, his independence. But it is evident that nothing can be more de-
sirable than to sacrifice a degree of liberty dangerous to possess, retaining
only the freedom requisite for real and sound happiness. d We have
shown that the institution of civil society, constituted by the creation of
sovereign power and government, does not spring from contract, but from
the law of nature. From that law arises the duty of submitting to civil
government, and obeying its laws, and not from any consent given by
individuals to such submission and obedience, subject to certain con-
ditions. How indeed can it be held that the law of nature is binding
on mankind unless they are also under the obligation of adopting the
only sufficient means whereby that law can be maintained? Men are
evidently bound by natural law to live in the social state, which alone
is adapted to their nature and their interests, physical, moral, and reli-
gious; and that state cannot exist without sovereignty and govern-
ment, which are necessary to keep every one within his obligations
and the order of the engagements which constitute society. The con-
sent of men can add nothing essential to the force of obligations to
obey civil authority, which spring from the nature given to mankind
by the Creator. And the principle that the obligation of obedience to
the civil government on the part of the subject, and the duty of pro-
tection on the part of the state, are reciprocal necessarily arises, not
from contract and consent, but from the very nature of the obligatory
force of the institution of civil government. For if the government
entirely refuses to fulfil the purpose for which it is intended, its au-
c See my Comment, on the Constit. Laws of England, p. 418, &c.
d Cujacius, Op. torn. 7, col. 28, edit. Venet. Mutin. And see Pufend. Droit des
Gens, liv. 2, ch. 1, 2, &c.
U
290 ON MIXED GOVERNMENTS.
thority necessarily ceases with the reasons of natural law on which
that authority is founded, and it in truth ceases to be a government.
And on the other hand, when the subject no longer pays due obedi-
ence to the civil power of government, he becomes an offender against
the law, both natural and municipal, and an object, not of protection,
but of punishment. These reasons, which necessarily contain some
repetition of doctrines already explained, show in what sense the propo-
sition is true, that man, 6 in civil society, gives up a part of his natural
liberty for the purpose of enjoying and securing the remainder, with
the other advantages of that institution. It is correct, provided we
exclude the notion of contract, or of what Trebonian has named an
obligation arising quasi ex contractu, that is to say, by implied con-
sent. Civil liberty, then, is the natural liberty of man, deprived of
that part which would constitute the independence of individuals, if
they were not in civil society, by the authority given to the sovereign
power, or power of civil government. We see here, as Burlamaqui
observes, the absurdity of those who imagine that civil society is a
wrongful encroachment on their natural liberty and independence, and
government an invention to satisfy the ambition of some, at the ex-
pense of the rest of society/
There is a passage in Grotius where he says, that civil liberty ex-
cludes royalty, and every other domination properly called, as personal
liberty excludes the power of a master. But, as Barbeyrac shows, the
meaning of the passage is, that a body politic has not liberty where it
is under the domination of a despotic power excluding it from self-
government. 8 In this sense civil liberty signifies the liberty of a
commonwealth (civitas), and not that of a person living in a civil
society, and in substance it is the same as self-government.
As natural liberty is liberty limited by the laws of nature and reli-
gion, so civil liberty (of persons) is that which is limited by municipal
law, that is to say, by the law of the civil community. This agrees
with the following celebrated definition given by Florentinus in the
Pandects, which has frequently been misunderstood, Libertas est
naturalis facultas, ejus quod cidque facer e libet, nisi si quid vi out jure
prohibetur. h Florentinus defines liberty without reference to its extent
or degree, and he therefore describes it as the natural faculty of exer-
cising free will, which remains, after excluding those things in which
free will is restrained, either by material obstacles, or by legal obliga-
e Blackst. Comm. b. 1, ch. 1, p. 125.
f Burlamaqui, Droit des Gens, torn. 4, par. 1, ch. 3, 12.
* Grot. Droit de la Guerre, liv. 1, ch. 3, ^ 12, et not
h L. 4, ff. De Statu Horn.
DIVISION OF THE SOVEREIGN POWER, ETC. 291
tion. 1 This text shows the legal nature of liberty or freedom. It is
not a creature of law, but a natural faculty which law restricts and
qualifies. De Lolme furnishes a good illustration of this doctrine. He
says that when he began to study the English Constitution he sup-
posed that every article of liberty which the subject enjoys was
grounded upon some positive law by which that liberty was insured to
him. In regard to the liberty of the press i. e. of writing and pub-
lishing he had no doubt that it was so. But after some researches
it occurred to him that the liberty of the press was grounded on its
not being prohibited, and that this want of prohibition was the sole,
and, at the same time, the solid foundation of it. k Such is the true
meaning of this valuable text of the Pandects, which some writers
have erroneously connected with the celebrated law quod principi pla-
cuit, 1 and thus misunderstood it.
We must now proceed to consider the liberty of persons with refer-
ence to its degree or extent. Our investigations regarding the reasons
of law show that municipal laws should all be founded on some reason
which constitutes their justice ; that is to say, either a rule of immu-
table law, or a relation to the order of society and the advantage of
the community. And so it is that all laws are consequences, direct,
or more or less indirect, of the two primary laws. It follows from
these principles, and from the objects and grounds of civil govern-
ments, that the natural freedom of mankind should not be restrained
by municipal laws beyond what is required, or at least useful, for the
welfare of the community. This position is confirmed by considera-
tions of policy and public economy. For men will obey the law more
readily and contentedly when no unnecessary or useless restraints are
cast upon them by the sovereign; and the tendency of useless laws is
to cramp the development of men's faculties, or interfere with the free
action and energy beneficial to industry, commerce, and the advance-
ment of art and science." 1 A consciousness of these principles causes
governments to leave some laws unenforced, or allow them to become
obsolete; and this course is next in wisdom to that of repealing useless
or otherwise bad laws. Blackstone justly remarks that that system
of laws is best calculated to maintain civil liberty, which leaves the
subject entire master of his own conduct, except in those points
wherein the public good requires some direction or restraint. 11 What
1 See Cujacius, Op. torn. 7, col. 28; Comment, in Tit. Dig. De Just, et Jur. ad
Leg. 4.
k De Lolme, Constitution of England, book 2, ch. 10, pp. 289, 290, note.
1 L. 1, ff. De Constit. Princip.
m Mill, Polit. Econom. p. 510, &c.
n Blackst. Com. b. 1, pp. 125, 126.
u2
292 ON MIXED GOVERNMENTS.
precise amount of liberty is compatible with the public welfare, and
the attainment of all the objects of civil society, is a very extensive
and important subject of inquiry, embracing almost every detail of
government and legislation. It depends, in each state, on a great
variety of circumstances, such as the nature of the government, the
character of the people, and all those considerations which produce
the diversity of municipal laws and institutions. These are, for the
most part, matters of opinion, on which the judgments of men differ
greatly, and difficult to bring within fixed principles of law or policy.
Government not limited, whether it be that of a monarchy, a senate,
or a popular assembly, is liable to the danger that the sovereign may
diminish the liberty of persons beyond those limits which we have just
pointed out. And the balance of powers in a mixed government is
intended chiefly to meet this danger, securing the people from
encroachments on their liberty on the part of those to whom the
sovereign power, or the administration of any portions thereof, is
entrusted. This is accomplished by not clothing any one person or
body in the community with the whole sovereign power, but distri-
buting that power among the different orders and parts of the body
politic, and modifying its exercise by restraints and limitations. And
here we find political liberty exemplified. For the faculty of exer-
cising freely the portion of this power, vested by law in each man, is
properly called political, as contradistinguished from civil liberty,
though the derivation of those two words is the same. Thus the
freedom enjoyed by a man, of using and disposing of his property as
he pleases, so far as the law allows, is part of his civil liberty; and the
free enjoyment of the parliamentary or municipal franchise annexed to
that property by the law, belongs to political liberty. And thus poli-
tical liberty is the faculty of exercising political power according to
law. Here we see a distinction between both natural and civil liberty,
and political liberty; for the latter is the creature of the municipal
law, which grants it to the citizen for the benefit of the commonwealth,
and not by reason of any inherent right of his own.
We must now proceed to consider the principles on which mixed
governments are constructed.
In our examination of the connexion of the jura majestatis,^ or parts
of the sovereign power with each other, we have seen the difficulty of
separating them, without violating the fundamental principle of unity
which is necessary to the existence of every body politic. No con-
tract or convention can overcome this difficulty. It is only to be met
by a combination of the separate powers of the state, so contrived as
See my Commentaries on the Constitutional Law of England, p. 420.
PChap. XXII.
DIVISION OF THE SOVEREIGN POWER, ETC. 293
to make them balance and restrain each other, and thereby produce
and preserve that common supreme will which is essential to the go-
vernment of a commonwealth. This is necessary whenever the parts
of the sovereign power are separated and distributed ; and even when
there is only a separation of departments, so that the legislative, exe-
cutive and judicial powers are administered by different functionaries,
the principle of unity should not be lost sight of. Thus this principle
is insisted upon by writers on the constitution of the United States,
where the sovereignty of the Union is vested in the people repre-
sented by the Congress, and the president is a responsible executive
magistrate.
Montesquieu has taken the English Constitution as the great
example of the doctrine that the three great powers of government
ought to be separated, which is also a fundamental basis of the con-
stitution of the United States, and of all the modern constitutions of
limited monarchies in Europe, commonly described as constitutional
monarchies. We will now consider his theory. " When in the same
person or body the legislative is conjoined with the executive power,
there is no liberty; for it may be feared that the same monarch or
senate will make tyrannical laws, to execute them tyrannically."
" There is also no liberty if the power of judging (or judicial
power) be not separated from the legislative and executive powers. If
it be joined with the former, the power over the lives and liberty of the
citizens will be arbitrary, for the judge will be legislator. If it were
united with the latter, he might have the power of an oppressor."
" All would be lost, if the same man or the same body, whether
of optirnates or of the people, exercised those three powers, that of
making laws, of executing public resolutions, and judging offences or
the differences among citizens."
" In the greater number of the kingdoms of Europe, the govern-
ment is moderate, because the prince, who has the two first powers,
leaves to his subjects the exercise of the third. In Turkey, where the
three are united in the Sultan, there is a dreadful despotism." . . .
" The judicial power ^ught not to be given to a
permanent senate, but should be exercised by persons taken from the
body of the people, at certain times of the year, in a mode prescribed
by law, in order to form a tribunal which shall only last so long as
necessity requires."
" In this way the power of judging, so terrible among men, being
attached neither to a certain class, nor to a certain profession, becomes,
as it were, invisible and null. Men have not the judges continually
before their eyes; and they fear the judicial office, but not the judge."
" In great accusations, the accused should choose his own judges
294 ON MIXED GOVERNMENTS.
concurrently with the law, or at least he should be able to challenge
such a number, that those who remain may be held as chosen by
him."
" The other two powers might be given to magistrates or permanent
bodies, because they are not exercised over any individual singly,
being, one of them, the general will of the state ; and the other, the
execution of that general will."
" But though tribunals ought not to be fixed and permanent, their
judgments ought to be so, to the extent of being no more than a pre-
cise text of law. If they were the individual opinion of the judge,
men would be living in society without knowing precisely the engage-
ments which they contract there."
" Judges should, indeed, be of the condition of the accused, or his
peers, that he may not believe that he has fallen into the hands of men
disposed to wrong him."
"If the legislative power allows the executive to imprison citizens
able to give security for their conduct, there is no liberty, except where
they are arrested to answer, without delay, to an accusation which the
law has made capital ; in which case they are in reality free, being
subject only to the power of the law."
" But if the legislature thought itself endangered by some secret
conspiracy against the state, or understanding with external enemies,
it might for a short and limited period permit the executive to arrest
suspected citizens, who would lose their liberty for a time, to secure it
for ever. And this is the only reasonable way of supplying the place
of the Ephori, and the Venetian inquisitors of state, who are also
despotic." q
This celebrated essay gives the principles on which the separation
of the three powers is grounded. The same reasoning is adopted by
Blackstone, and used by Story. " In all tyrannical government,"
says the former, " the supreme magistracy, or the right both of making
and of enforcing laws, is vested in the same man, or one and the same
body of men ; and wherever these two powers are united together,
there can be no public liberty. The magistrate may enact tyrannical
laws, and execute them in a tyrannical manner, since he is possessed,
in quality of dispenser of justice, with all the powers which he, as
legislator, thinks proper to give himself. But where the legislative
and executive authority are in distinct hands, the former will take
care not to entrust the latter with so large a power, as may tend to the
subversion of its own independence, and therewith of the liberty of
the subject." Again, " In this distinct and separate existence of the
i Montesquieu, Esprit des Loix, liv. 1 1 , ch. 6.
DIVISION OF THE SOVEREIGN POWER, ETC. 295
judicial power in a peculiar body of men, nominated indeed by, but
not removable at, the pleasure of the crown, consists one main pre-
servative of the public liberty ; which cannot long subsist in any state,
unless the administration of common justice be in some degree sepa-
rate from the legislative, and also the executive power. Were it joined
with the legislative, the life, liberty and property of the subject would
be in the hands of arbitrary judges, whose decisions would then be
regulated only by their opinions, and not by any fundamental princi-
ples of law ; which, though legislators may depart from, yet judges
are bound to observe. Were it joined with the executive, this union
might soon be an overbalance for the legislative." r "And," continues
Story, " the Federalist has with equal point and brevity remarked,
that the accumulation of all powers, legislative, executive, and judicial,
in the same hands, whether one, a few, or many, and whether heredi-
tary, self-appointed or elective, may justly be pronounced the very
definition of tyranny." 5
We have now to consider how the three divided departments of
government, or the division and distribution of the sovereign power,
may be made consistent with the great requisite of unity. Madison
explains this in a masterly way, investigating the sense in which the
preservation of liberty requires that the three great departments of
power should be separate and distinct. " The oracle," he says, " who
is always consulted and cited on this subject, is the celebrated
Montesquieu. If he be not the author of this invaluable precept in
the science of politics, he has the merit at least of displaying and
recommending it most effectually to the attention of mankind. Let
us endeavour, in the first place, to . ascertain his meaning on this
point."
" The British constitution was to Montesquieu what Homer has
been to the didactic writers on epic poetry That we
may be sure then not to mistake his meaning in this case, let us recur
to the source from which the maxim is drawn."
" On the slightest view of the British constitution we must perceive
that the legislative, executive, and judiciary departments are by no
means totally separate and distinct from each other. The executive
magistrate forms an integral part of the legislative authority. He
alone has the prerogative of making treaties with foreign sovereigns;
which, when made, have, under certain limitations, the force of legis-
lative acts. All the members of the judiciary department are ap-
r Story, Comm. on the Constit. of the United States, vol 2, ch. 7, 521, pp. 4, 5;
Blackst. Com. vol. 1, pp. 146, 269; Woodeson, Elem. of Jurisp. 53, 56; Wilson,
Law Lect. pp. 394, 399, 400, 407409 ; Paley, Moral Philos. b. 6, ch. 8.
8 Story, ubi sup. 522, and note 2 ; Federalist, num. 22, 47.
296 ON MIXED GOVERNMENTS.
pointed by him, can be removed by him on the address of the two
houses of parliament, and form, when he pleases to consult them, one
of his constitutional councils. One branch of the legislative depart-
ment forms also a great constitutional council to the executive chief;
as, on the other hand, it is the sole depositary of judicial power in
cases of impeachment, and is invested with the supreme appellate
jurisdiction in all other cases. The judges, again, are so far con-
nected with the legislative department, as often to attend and partici-
pate in its deliberations, though not admitted to a legislative vote. 1 "
" From these facts, by which Montesquieu was guided, it may be
clearly inferred, that in saying ' there can be no liberty where the legis-
lative and executive powers are united in the same person or body of
magistrates,' or ' if the power of judging be not separated from the
legislative and executive powers,' he did not mean that these depart-
ments ought to have no partial agency in, or no control over, the acts
of each other. His meaning, as his own words import, and still more
conclusively illustrated by the example in his eye, can amount to no
more than this, that where the whole power of one department is
exercised by the same hands which possess the whole power of an-
other department, the fundamental principles of a free constitution are
subverted. This would have been the case in the constitution ex-
amined by him, if the king, who is the sole executive magistrate, had
possessed also the complete legislative power, or the supreme admi-
nistration of justice; or if the entire legislative body had possessed the
supreme judiciary, or the supreme executive authority. This, how-
ever, is not among the vices of that constitution. The magistrate in
whom the whole executive power resides, cannot of himself make a
law, though he can put a negative on every law; nor administer justice
in person, though he has the appointment of those who do administer
it. The judges can exercise no executive prerogative, though they
are shoots from the executive stock, nor any legislative function,
though they may be advised with by the legislative councils. The
entire legislature can perform no judiciary act; though by the joint
act of two of its branches, the judges may be removed from their
offices; and though one of its branches is possessed of the judicial
power in the last resort. The entire legislature again can exercise no
executive prerogative, though one of its branches constitutes the su-
preme executive magistracy; and another, on the impeachment of a
third, can try and condemn all the subordinate officers in the executive
department."
1 This last sentence is scarcely correctly expressed, for the judges only give their
opinions to the House of Lords, and that only when their opinion is asked. See my
Comment, on the Constit. Law of England, pp. 84, 85, and the authorities cited there.
DIVISION OF THE SOVEREIGN POWER, ETC. 297
" The reasons on which Montesquieu grounds his maxim are a fur-
ther demonstration of his meaning. ' When the legislative and exe-
cutive powers are united in the same person or body,' says he, ' there
can be no liberty, because apprehension may arise lest the same
monarch or senate should enact tyrannical laws, to execute them in a
tyrannical manner.' Again, were the power of judging joined with
the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Were it
joined to the executive power, the judge might behave with all the
violence of an oppressor.' Some of these reasons are more fully ex-
plained in other passages; but briefly stated as they are here, they
sufficiently establish the meaning which we have put on this celebrated
maxim of this celebrated author.""
Madison then proceeds to show, that though the separation of the
three powers is laid down as an axiom in the constitutions of the
several States of the Union, yet the several departments are not in any
instance kept absolutely separate and distinct. In the constitution of
New Hampshire, which was last formed, the doctrine is thus qualified.
It is declared, " that the legislative, executive, and judiciary powers
ought to be kept as separate from, and independent of each other, as
the nature of a free government will admit; or as is consistent with
that chain of connexion that binds the whole fabric of the constitution
in one indissoluble bond of unity and amity. We have seen that the
principle of division is stated in an unqualified manner in the Consti-
tution of Massachusetts. But even there a partial mixture of powers
has been admitted. The executive magistrate has a qualified negative
on the legislative body; and the senate, which is a part of the legisla-
ture, is a court of impeachment for members, both of the executive
and judicial departments. The members of the judiciary again are
appointable by the executive department, and removable by the same
authority, on the address of the two branches of the legislature.
Lastly, a number of officers of the government are annually appointed
by the legislative department. As the appointment to offices, parti-
cularly executive offices, is in its nature an executive function, the
compilers of the Constitution, have at least in this point violated the
rule established by themselves. And so the constitutions of the other
states, while adhering to the rule that the three powers of govern-
ment ought to be separate, yet provide for the unity and harmony of
the system by, in a greater or less degree, connecting those powers
together by some participation in each other's functions." But Madi-
Federalist, num. 47, p. 261263 ; Story, Comm. on the Constitution of the United
States, vol. 2, book 3, ch. 7, $ 524.
* Federalist, ibi, p. 263266.
298 ON MIXED GOVERNMENTS.
son observes, that Jn some of those constitutions, the fundamental
principle under consideration has been violated by too great a mix-
ture, and even an actual consolidation of the different powers; and in
no instance has a competent provision been made for maintaining in
practice the separation delineated on paper. y
The great difficulty is to provide sufficient means for preventing the
encroachments of the three powers on each other, thereby securing to
each its constitutional independence of action. No mere declaration
on paper can effect this purpose/ And indeed, as we have already
observed," no ingenuity or wisdom in framing a constitution can secure
it, without the practical good sense and moderation of the people
themselves. Yet we shall see, in the next chapter, that the three de-
partments of government may be so combined as to produce a balance
of political power in the state. This object may be partly attained by
mixed government, that is to say, by not merely dividing the depart-
ments of government among different functionaries, but separating the
branches of the sovereign power itself, and giving them to different parts
or orders of the state, and so combining together two, or all three of the
simple forms of government monarchy, aristocracy, and democracy.
This is the sort of polity referred to in the celebrated passage of
Tacitus : Cunctas nationes et urbes populus, aut priores, aut sinyuli
regunt. Delecta ex his et constituta reipublicce forma laudari facilius
quam invenire, vel si evenit hand diuturna esse potest. b And Cicero
says, Statuo esse optima constitutam rempublicam, quee ex tribus gene-
ribus illis, regali, optima et populari, modice confusa? Tacitus wrote
before the invention of representative assemblies, and this may be one
reason why he thought that a mixed government could scarcely be
durable. Yet we must admit that our own country is the only exist-
ing instance of the long continued success of a constitution in which
monarchy and democracy are combined with a hereditary, and there-
fore independent, senate of nobles; that is to say, a real, political
aristocracy. And here even the democratic element has been gradually
gaining ground on the two others, so as to bring the state more and
more towards monarchical democracy, thereby exemplifying the
opinion of Tacitus, that the three forms cannot long remain combined
together. And so in France, the hereditary peerage established at the
Restoration was soon abolished and converted into an upper chamber,
composed chiefly of functionaries, and pensioners of the crown, and
i Federalist, ibi, p. 267.
1 Story, ubi sup. 529 ; Federalist, num. 48.
a End of Chap. XXII. of these Commmentaries.
b Tacit. Ann. lib. 14.
c Cicero, Fragm. de Repub.
DI\ ISION OF THE SOVEREIGN POWER, ETC. 299
friends of the minister, who could not accurately be called a political
aristocracy, except in the sense of their holding office for life, and not
representing the people.
Notwithstanding these difficulties, monarchy, aristocracy and demo-
cracy are admirably calculated to fulfil different parts in the constitu-
tion of a state, and to check what may be dangerous in each of them.
The reasons which we have explained in favour of hereditary mo-
narchy, show the adaptation of this institution to the headship and
representation of a state, and the performance of executive functions
which require unity, perpetuity, secrecy and vigour. And a perpetual
hereditary chief magistrate, invested with the majesty of the regal
office, is peculiarly qualified to check the pride and ambition of a
nobility, and to give stability to the democratic part of the common-
wealth, by raising the chief magistracy beyond the reach of powerful
magnates and popular leaders. The last of these advantages, and that
of perpetuity, are not obtained, and the others are secured in a lesser
degree, when the monarchy is not hereditary. But here we must
observe, that the person of the king must be sacred and inviolable, and
he can be amenable to no court or authority, because if it were not
so, he would cease to be one branch of the sovereign power, and
become a mere functionary, like the president of the United States/
and only a titular prince ; and the state would be no longer a
monarchy but a republic. And if he were accused or judged, his
independence would be at an end and the balance of the constitution
destroyed. Therefore, it is a maxim of the English constitution that
the king can do no wrong. And whatever may be exceptionable in the
conduct of public affairs is not to be imputed to the sovereign, who
cannot be made personally responsible. 6 " If," says Blackstone (for
example, " the two Houses of Parliament, or either of them, had
avowedly a right to animadvert on the king or each other, or if the
king had a right to animadvert on either of the Houses, that branch of
the legislature so subject to animadversion would instantly cease to be
a part of the supreme power; the balance of the constitution would be
overturned ; and that branch or branches in which this jurisdiction
resided would be completely sovereign." 5 This doctrine is entirely in
accordance with the principles of Public Law which we have seen
while examining the sovereign power. For each branch of that power
must partake of that character of sovereignty which consists of inde-
pendence and supremacy in the exercise of its own proper functions.
Here we must remark, that under the restraints and safeguards
d Kent, Com. vol. 1, lect. 13, p. 288.
' 1 Blackst. Com. c. 7, p. 245 ; Plowd. 487.
' I Blackst. Com. c. 7, p. 244.
300 ON MIXED GOVERNMENTS.
of a limited or mixed constitution, one great objection to hereditary
monarchy is removed or much diminished. For the devolution of the
crown to a bad king is less dangerous or prejudicial in proportion as
the power of the prince is restricted, and the system and business of
government rendered independent of the court ; and thus the advan-
tages of hereditary monarchy are obtained, while its chief inconvenience
is greatly diminished.
We come now to aristocracy in mixed governments. It is, in
the first place, a most important support to monarchy against the
encroachments of the democracy. And where this order exists in the
social system of a state, they cannot, as Montesquieu remarks, be
confounded among the people, and have their voice like all other
citizens, otherwise the common liberty would be their slavery, and
they would have no interest in defending it, as a great part of the
measures would be directed against themselves. Their share in legis-
lation should therefore be in proportion to the other advantages which
they possess in the state; and this will be, if they constitute a body
having a right to stop the encroachments of the people, as the people
have a right to do to those of the nobles. Thus the legislative power
will be confided both to the body of nobility and the representatives of
the people, who will each have their separate assemblies and delibera-
tions, and distinct views and interests. 5 This body of nobles, con-
tinues the president, ought to be hereditary. It is, in the first place,
so by its very nature, and besides, it ought to have a very great
interest in preserving its privileges, in themselves invidious, and
which in a free state must always be in danger. h
If not hereditary, but appointed for life by the crown, it is a mere
legislative council representing the opinions of successive administra-
tions, and not one of the orders or estates of the commonwealth.
Placed between the influence of the crown and the power of the people,
such a senate, though it may be respectable, must soon become impo-
tent. It can give no useful support to the crown, because it is a mere
body of functionaries, every one of whom owes his seat to the favour
of the court or a minister, and therefore identified with the executive.
And the want of real power in such an assembly must have a tendency
to render it a place of retirement for superannuated public servants and
political mediocrities, or a means of satisfying vanity or rewarding
subserviency. On the other hand, a hereditary peerage may devolve
on an unworthy person ; and this institution can scarcely exist unless
the nobility, as a class, be at least on a par in worth, independence and
e Montesq. Esprit des Loix, liv. 11, ch. 6; GEuvres, torn. 1, p. 213 ; 1 Blackst. Com.
ch. 2, pp. 157, 158.
h Montesquieu, ibi.
DIVISION OF THE SOVEREIGN POWER, ETC. 301
intelligence with the superior classes of the rest of the community. It
must also be recruited by the frequent addition to its ranks of men
eminent for their great services, their ability, or their influence in the
country, however humble may be their own extraction. Thus the
body of the people will look without envy, or at least without ani-
mosity, on a dignity open to the ambition of every citizen ; while the
nobility will receive fresh vigour and lustre at every generation by the
addition of new members raised by their merit, their services, their
high offices, or their importance in the commonwealth. And unless
the crown had the unrestricted privilege of making new peers, there
would be no remedy against ambition, perverseness, or obstinacy on
the part of the Upper House, who would become an exclusive class,
too separate from the rest of the community to act in harmony with
the popular branch of the legislature. 1
The senate or assembly of the aristocracy may be composed of
representatives of the body ; and so at Genoa and Venice the senate
were elected by the nobles out of their own body. The representative
principle may thus be applied to this part of a mixed government
(as we see in the instance of the peers of Ireland and Scotland), with-
out destroying the distinctive character of a political aristocracy, which
consists in its being not a mere body of functionaries or titulars, but
a high class or order in the social system of the state.
But if the whole of the nobility voted at the election of each member
of the senate, this would frequently amount (especially if the electors
were not so numerous as to prevent cabals and combinations, and
comprise many shades and varieties of opinion) to the total exclusion
of the party constituting the minority. Thus we see that no Scotch
peer of decidedly liberal opinions would have any chance of being
elected one of the sixteen representative peers.
The aristocratic order are naturally liable to be influenced by the
crown and by their particular interests, and therefore, as Montesquieu
observes, they should only have a negative voice in raising money, and
not be allowed to originate measures of that sort.J
" The great," says Montesquieu, " are always exposed to envy :
and if they were tried or judged like others by the people, they might
be in danger, and would not enjoy the privilege of the least of the
citizens that of being amenable to their peers. The nobles must
therefore be summoned, not before the ordinary tribunals of the
1 Hallam, Constit. Hist. vol. 4, p. 54. Lord Sutherland persuaded George I. to
consent to renounce his prerogative of making peers. But the bill, limiting the House
of Lords, after the creation of a very few more, to its actual number, was rejected by
the House of Commons.
J Montesquieu, ubi sup. p. 214.
302 ON MIXED GOVERNMENTS.
nation, but before that part of the legislative body which consists of
nobles." k The privileges of the British peerage in this respect are by
no means so extensive, being confined to cases of treason, misprision
of treason and felony ; ' and even in these cases it may be doubted
whether a peer would suffer any disadvantage by being tried by a
jury. Yet this privilege contributes to the dignity and independence
of the Upper House of Parliament.
" It may happen," continues the same writer, " that some citizen
may in public affairs violate the rights of the people, and commit
crimes which the established magistrates would not or could not
punish. But in general the legislative power cannot exercise judicial
functions. Still less can it do so in this particular case, where it
represents the party interested the people. It can, therefore, be
only the accuser. But before what court shall the representatives of
the people accuse ? Will they condescend to appear before the tri-
bunals of the law, their inferiors, and composed of members who,
belonging to the people like themselves, would be overawed and
influenced by the authority of so great an accuser ? No. To preserve
the dignity of the people and the safety of individuals, the legislative
assembly of the people must accuse before the legislative assembly
of the nobles, which has neither the same interests nor the same
passions."" 1
This theory has been followed in the constitutions of modern
Europe, and, by analogy to it, impeachments by the House of Repre-
sentatives in the United States are tried by the senate.
Another distinctive quality of aristocracy renders it useful in con-
junction with a democracy. A body of nobles are naturally deliberate
and cautious in their determinations, especially when their large pos-
sessions give them weighty interests in all that concerns the public
welfare ; and their dignity and high station render them less liable
than others to be swayed by sudden impulses of public opinion and
passion, and the gusts of changing popularity or odium. They are
thereby admirably qualified to give stability to the public measures,
and infuse patience (which is essential both to justice and wisdom)
into the deliberations of the legislature. But, on the other hand, these
very qualities may be pregnant with inconvenience or even danger,
unless qualified by due regard to the emergencies and circumstances of
the times and the deliberate judgment of the body of the nation.
k Montesquieu, ubi sup. p. 217.
1 3 Inst. 30; 2 Inst. 49; Com. Dig. Parliament, 1. 16.
m Montesquieu, ibi, pp 217, 218.
n Story, Comment, on the Constit. of the United States, vol. 2, pp. 214, 279. It is
the same in most of the Constitutions of the several States. Federalist, num. 47.
DIVISION OF THE SOVEREIGN POWER, ETC. 303
With respect to the democratic part of a mixed state, little need be
added to what we have said in considering republics, for there is no
defect in monarchy and aristocracy that democracy is not able to
moderate or cure. If the people be wise and virtuous, and obedient
to the laws of God and the Church, this is indeed the most valuable
part of a mixed government, because it includes the broadest interests
and the great bulk of society. It is so powerful that there must be a
constant tendency to make the state more subject to its sway than is
compatible with the nature of a mixed government. The observations
in the next chapter, concerning the way in which the balance of power
between the legislative, executive and judicial departments may be
obtained, will further explain this important matter. Unless, however,
the body of the nation use moderation, temper and practical wisdom,
no government of this kind, however well adapted to the particular
country, can subsist long without becoming a republic or a democratic
monarchy, or falling into civil war, confusion and anarchy.
CHAPTER XXVI.
THE DISTRIBUTION AND BALANCE OF THE POWERS OF GOVERNMENT,
AND THE MEANS OF MAINTAINING THAT BALANCE.
General Principles exemplified by English and American Constitutional Law Com-
parison of the Three Branches of Government with reference to their relative Strength
and means of Self-protection Preponderate Power of the Legislative Branch, and
difficulty of restraining it Weakness of the Judicial Power Appeals to the People
in Convention suggested as a Remedy against the Encroachments of the Legis-
lative Power Inconveniences and insufficiency of this Remedy The Constitutional
Balance of Power explained Doctrines of Madison, Story and Blackstone Con-
sideration of the Subject with reference to each of the Three Branches of Govern-
ment The Legislature Use and Importance of dividing this Department The
Negative of the President of the United States Comparison of this Provision with
the Legislative Prerogative of the Crown in England Double Legislative Assemblies
considered and compared with a single Assembly Duration of Representative As-
semblies Executive Department Its Unity The Civil List Responsibility of
Ministers The Judicial Department Permanency of the Judges Mode of appoint-
ing them Connexion of the Judicial with the Executive and Legislative Depart-
ments Trial by Jury.
WE have seen that the doctrine of the division of the legislative,
executive and judicial departments, and even the division of the sove-
reign power itself, among different orders or estates of the body
politic, do not imply the total separation of those departments or
304 DISTRIBUTION AND BALANCE OF
branches of the sovereign authority. Such total separation would
injure the principle of unity essential to every civil government. We
have now to examine this problem of Public Law : to determine how
the legislative, executive, and judicial functions, though divided, may
be so combined and adjusted, that each may retain the independence of
action necessary for its office, and be protected from the encroach-
ments of the others ; and at the same time, they may exercise a check
upon each other, and so produce the balance of political power,
necessary to a mixed constitution, and beneficial even where there is
only a division of departments among different functionaries. This
object is effected partly by combining different departments, and partly
by other means, calculated to prevent any one of them from over-
whelming the others.
This proposition is laid down by Madison, that unless the three
departments of government be so far connected and blended, as to
give to each a constitutional control over the others, the degree of
separation essential to a free government can never in practice be
maintained. And this proposition he very elaborately examines and
proves. " It is," he observes, " agreed on all sides, that the powers
belonging to one of the departments ought not to be directly and com-
pletely administered by either of the other departments. It is equally
evident that, in reference to each other, neither of them ought to pos-
sess, directly or indirectly, an overruling influence in the administration
of their respective powers." p The difficulty is to provide some prac-
tical security for each against the invasions of the others. What that
security ought to be, is the great problem to be solved.
The compilers of most of the American constitutions appear, as we
are told by Madison, to have relied principally on denning, by written
law, the boundaries of the departments in the constitution of the
government. But experience has shown the insufficiency of this
method. " And," continues the same writer, " the legislative department
is everywhere extending the sphere of its activity, and drawing all
power into its impetuous vortex." q They seem not to have sufficiently
considered, that though in a government where numerous and exten-
sive prerogatives are placed in the hands of a hereditary monarch, the
executive may be regarded as a source of danger, and ought to be
jealously watched ; in a representative democracy, where the executive
magistracy is carefully limited, both in the extent and duration of its
power, this sort of danger is far less to be apprehended. And where
the legislative power in such a democracy is exercised by an assembly
Federalist, num. 48, p. 268.
Plbi.
> Ibi; Story, Com. on the Constit. of the United States, vol. 2, eh. 7, 529.
TUB POWERS OF GOVERNMENT, ETC. 305
having an influence over the people whom it represents, and suffi-
ciently numerous to feel all the passions that actuate a multitude, yet
not so numerous as to be unable to pursue its objects, and therefore
exposed to the intrigues of the executive, the danger to be guarded
against proceeds from the preponderating power of this department/
We have indeed seen, in examining the different parts of the sove-
reign power, that the legislative branch is in its very nature peculiarly
difficult to keep within any practical limits. In the United States of
America, the legislative power is partly vested in the States, and partly
in the Union. Yet Story makes the following valuable reflexions on
the danger of its encroaching on the other parts of the government, or
on the liberties of the people. 3 He remarks that, in point of theory, it
is almost impracticable, if not impossible, that each of the three de-
partments should possess equally, and in the same degree, the means
of self-protection ; and that in point of fact, those means in the differ-
ent departments are immeasurably disproportionate. " The judi-
ciary," he continues, " is incomparably the weakest of either, and must
for ever, in a considerable measure, be subject to the legislative
power. 1 And the latter has, and must have, a controlling influence
over the executive power, since it holds, at its own command, all the
resources by which a chief magistrate could make himself formidable.
It possesses the power over the purse of the nation and the property
of the people. It can grant or withhold supplies; it can levy or
withdraw taxes ; it can unnerve the power of the sword, by striking
down the arm that wields it."
" De Lolme has said, with great emphasis ' It is, without doubt,
absolutely necessary for securing the constitution of a state, to restrain
the executive power; but it is still more necessary to restrain the legis-
lative. What the former can duly do by successive steps (I mean,
subvert the laws), and through a longer or a shorter train of enter-
prizes, the latter does in a moment. As its bare will can give being to
the laws, so its bare will can also annihilate them; and if I may be
permitted the expression, the legislative power can change the consti-
tution, as God created the light. In order, therefore, to insure stability
to the constitution of a state, it is indispensably necessary to restrain
the legislative authority. But here we must observe a difference be-
tween the legislative and executive powers. The latter may be con-
fined, and even is more easily so, when undivided. The legislative, on
the contrary, in order to its being restrained, should absolutely be
r Federalist, ibi, p. 269.
8 Story, Comment, on the Constit. of the United States, vol. 2, 530, p. 14, &c.
r See Federalist, num. 78.
306 DISTRIBUTION AND BALANCE OF
divided.'" The truth is, that the legislative power is the great and
overruling power in every free government. It has been remarked,
with equal force and sagacity, that the legislative power is everywhere
extending the sphere of its activity, and drawing all power into its im-
petuous vortex. The founders of our republics, wise as they were,
under the influence and the dread of the royal prerogative, which was
pressing upon them, never for a moment seem to have turned their
eyes from the immediate danger to liberty from that source, combined
as it was with an hereditary authority, and an hereditary peerage to
support it. They seem never to have recollected the danger from legis-
lative usurpation, which, by ultimately assembling all power in the
same hands, must lead to the same tyranny as is threatened by ex-
ecutive usurpations. The representatives of the people will watch with
jealousy every encroachment of the executive magistrate, for it trenches
upon their own authority. But who shall watch the encroachment of
these representatives themselves? Will they be as jealous of the exer-
cise of power by themselves, as by others ? In a representative re-
public, where the executive magistracy is carefully limited, both in the
extent and duration of its power, and where the legislative power is
exercised by an assembly, which is inspired by a supposed influence
over the people, with an intrepid confidence in its own strength; which
is sufficiently numerous to feel all the passions which actuate the mul-
titude; yet not so numerous as to be incapable of pursuing the objects
of its passions by means which reason prescribes; it is easy to see that
the tendency to the usurpation of power is, if not constant, at least
probable; and that it is against the enterprising ambition of this
department, that the people may well indulge all their jealousy, and
exhaust all their precautions. 1 There are many reasons which may be
assigned for the engrossing influence of the legislative department. In
the first place, its constitutional powers are more extensive, and less
capable of being brought within precise limits, than those of either of
the other departments. The bounds of the executive authority are
easily marked out and defined. It reaches few objects, and those are
known. It cannot transcend them without being brought in contact
with the other departments. Laws may check and restrain, and bound
its exercise. The same remarks apply with still greater force to the
judiciary. The jurisdiction is, or may be, bounded to a few objects or
persons; for, however general and unlimited, its operations are neces-
sarily confined to the mere administration of private and public justice.
It cannot punish without law. It cannot create controversies to act
De Lolme, b. 2, ch. 3.
* Federalist, num. 48, 49.
THE POWERS OF GOVERNMENT, ETC. 307
upon. It can decide only upon rights and cases, as they are brought
by others before it. It can do nothing for itself. y It must do every-
thing for others. It must obey the laws, and if it corruptly administers
them, it is subjected to the power of impeachment. On the other
hand, the legislative power, except in the few cases of constitutional
prohibition, is unlimited. It is for ever varying its means and its ends.
It governs the institutions and laws and public policy of the country.
It regulates all its vast interests. It disposes of all its property. Look
but at the exercise of two or three branches of its ordinary powers. It
levies all taxes ; it directs and appropriates all supplies ; it gives the
rules for the descent, distribution, and devises of all property held by
individuals. It controls the sources and the resources of wealth. It
changes at its will the whole fabric of the laws. It moulds at its
pleasure almost all the institutions which give strength and comfort
and dignity to society. In the next place, it is the direct, visible
representative of the will of the people in all the changes of times and
circumstances. It has the pride as well as the power of numbers. 2 It
is easily moved, and steadily moved by the strong impulses of popular
feeling and popular odium. It obeys, without reluctance, the wishes
and the will of the majority for the time being. The path to public
favour lies open by such obedience ; and it finds not only support, but
impunity, in whatever measures the majority advises, even though they
transcend the constitutional limits. It has no motive, therefore, to be
jealous, or scrupulous in its own use of power ; and it finds its ambition
stimulated, and its arm strengthened, by the countenance and the
courage of numbers. These views are not alone those of men who
O
look with apprehension upon the fate of republics, but they are also
freely admitted by some of the strongest advocates for popular rights,
and the permanency of republican institutions. 8 Our domestic history
furnishes abundant examples to verify these suggestions. 1 " If, then,
the legislative power possesses a decided preponderance of influence
over either or both of the others, and if, in its own separate structure,
it furnishes no effectual security for the others, or for its own abstinence
from usurpations, it will not be sufficient to rely upon a mere constitu-
tional division of the powers to insure our liberties. What remedy,
* And see the Federalist, num. 78.
1 " Numerous assemblies," says Mr. Turgot, " are swayed in their debates by the
smallest motives."
See Mr. Jefferson's very striking remarks in his notes on Virginia, pp. 195 197,
248. In December 1776, and again June 1781, the legislature of Virginia, under a
great pressure, were near passing an act appointing a dictator. B. 1, p. 207.
b Federalist, num. 48, 49.
c See Jefferson's Notes on Virginia, p. 195 197.
x2
308 DISTRIBUTION AND BALANCE OP
then, can be proposed adequate for the exigency ? It has been sug-
gested that an appeal to the people, at stated times, might redress any
inconveniences of this sort. But if these be frequent, it will have a
tendency to lessen that respect for, and confidence in, the stability of
our constitutions, which is so essential to their salutary influence. If
it be true that all governments rest on opinion, it is no less true that
the strength of opinion in each individual, and its practical influence
on his conduct, depend much upon the number which he supposes to
have entertained the same opinion. 6 There is, too, no small danger in
disturbing the public tranquillity by a frequent recurrence to questions
respecting the fundamental principles of government. 6 Whoever has
been present in any assembly, convened for such a purpose, must have
perceived the great diversities of opinion upon the most vital questions ;
and the extreme difficulty in bringing a majority to concur in the long-
sighted wisdom of the soundest provisions. Temporary feelings and
excitements, popular prejudices, an ardent love of theory, an enthusi-
astic temperament, inexperience, and ignorance, as well as preconceived
opinions, operate wonderfully to blind the judgment and seduce the
understanding. It will probably be found, in the history of most con-
ventions of this sort, that the best and soundest parts of the constitu-
tion those which give it permanent value, as well as safe and steady
operation are precisely those which have enjoyed the least of the
public favour at the moment, or were least estimated by the framers.
A lucky hit or a strong figure has not unfrequently overturned the
best reasoned plan. Thus Dr. Franklin's remark, that a legislature
with two branches was a wagon, drawn by a horse before, and a horse
behind, in opposite directions, is understood to have been decisive in
inducing Pennsylvania, in her original constitution, to invest all the
legislative power in a single body/ In her present constitution that
error has been fortunately corrected. It is not believed that the clause
in the constitution of Vermont, providing for a septennial council of
censors to inquire into the infractions of her constitution during the
last septenary, and to recommend suitable measures to the legislature,
and to call, if they see fit, a convention to amend the constitution, has
been of any practical advantage in that state, in securing it against
legislative or other usurpations, beyond the security possessed by other
states having no such provision. 8 On the other hand, if an appeal to
d Federalist, num. 48.
e Ibi, num. 48, 50.
f Adams, American Constitution, 105, 106.
* The history of the former constitution of Pennsylvania, and the report of its council
of censors, shows the little value of provisions of this sort in a strong light. Federalist,
num. 48, 50.
THE POWERS OF GOVERNMENT, ETC. 309
the people, or a convention, is to be called only at great distances of
time, it will afford no redress for the most pressing mischiefs. And if
the measures, which are supposed to be infractions of the constitution,
enjoy popular favour, or combine extensive private interests, or have
taken root in the habit of the government, it is obvious that the
chances of any effectual redress will be essentially diminished. 11 But a
more conclusive objection is, that the decisions upon all such appeals
would not answer the purpose of maintaining or restoring the consti-
tutional equilibrium of the government. The remarks of the Federalist
on this subject are so striking that they scarcely admit of abridgement
without impairing their force : ' We have seen that the tendency of
republican governments is to aggrandizement of the legislature at the
expense of the other departments. The appeals to the people, there-
fore, would usually be made by the executive and judiciary depart-
ments. But, whether made by one or the other, would each side enjoy
equal advantages on the trial ? Let us view their different situations.
The members of the executive and judiciary departments are few in
number, and can be personally known to a small part only of the
people. The latter, by the mode of their appointment, as well as by
the nature and permanency of it, are too far removed from the people
to share much in their professions. The former are generally objects
of jealousy; and their administration is always liable to be discoloured
and rendered unpopular. The members of the legislative department,
on the other hand, are numerous. Tfeey are distributed and dwell
among the people at large. Their connexions of blood, of friendship,
and of acquaintance, embrace a great proportion of the most influential
part of the society. The nature of their public trust implies a personal
weight with the people, and that they are more immediately the con-
fidential guardians of their rights and liberties. With these advantages
it can hardly be supposed that the adverse party would have an equal
chance of a favourable issue. But the legislative party would not only
be able to plead their case most successfully with the people; they
would probably be constituted themselves the judges. The same
influence which had gained them an election into the legislature would
gain them a seat in the convention. If this should not be the case
O
with all, it would probably be the case with many, and pretty certainly
with those leading characters on whom everything depends in such
bodies. The conventions, in short, would be composed chiefly of men
who had been, or who actually were, or who expected to be, members
of the department, whose conduct was arraigned. They would conse-
quently be parties to the very question to be decided by them.' "
h Federalist, num. 50.
1 Federalist, num. 49. The truth of this reasoning, as well as the utter inefficiency
310 DISTRIBUTION AND BALANCE OF
If, then, occasional or periodical appeals to the people would not
afford a sufficient protection against encroachments of the legislature
on the other departments of the government, it is manifest that resort
must be had to such a construction of the government as shall, by
mutual checks of one department upon another, preserve their consti-
tutional power and functions in relation to each other. And we must
further observe, that the appeals to the people in convention, men-
tioned by the Federalist and Story, though practicable in a republic,
would be dangerous, and perhaps fatal, in a constitutional monarchy.
It is evident, in the first place, that the very doctrine of the separa-
tion of departments requires that each department should have a will
of its own. And therefore, they should be so constituted that the
members of each should have as little agency as possible in the
appointment of the others. But it might be inexpedient to insist
rigorously on this last rule with regard to the judicial department,
because there the primary consideration ought to be to select that
mode of choice which best secures the requisite qualifications in the
persons to be appointed ; and the permanent tenure by which the
offices are held in that department must soon destroy the sense of
dependence on the authority conferring them. k It is equally evident
that the members of each department should be as little dependent as
possible on those of the others for the emoluments of office. Were
the executive magistrate, or the judges, not independent of the legis-
lature in this particular, their*independence in every other would be
merely nominal. 1
But the great security for the constitutional division of the depart-
ments consists in giving to those who administer each department the
necessary constitutional means and personal motives to resist encroach-
ments of the others. Thus, ambition would be made to counteract
ambition ; the desire of power to check power ; and the pressure of
interest to balance an opposing interest. The policy of supplying by
opposite and rival interests the defect of better motives in men, might
be traced through the whole system of human affairs, private as well
as public. We see it especially in all the subordinate distributions of
power, where the constant aim is to divide and arrange the several
officers in such a manner as that each may be a check on the
other." 1
of any such periodical conventions, is abundantly established by the history of Penn-
sylvania under her former constitution. Federalist, num. 50. See 2 Pitkin's Hist. pp.
305, 306.
k Federalist, num. 51, p. 280.
Ibi.
Ibi, p. 281.
THE POWERS OF GOVERNMENT, ETC. 311
"There seems," says Story, "no adequate method of producing this
result, but by a partial participation of each in the power of the other;
and by introducing into every operation of the government, in all its
branches, a system of checks and balances, on which the safety of free
institutions has ever been found essentially to depend. Thus, for
instance, a guard against rashness and violence in legislation has often
been formed by distributing the power among different branches, each
having a negative check upon the other. A guard against the inroads
of the legislative power upon the executive has been, in like manner,
applied, by giving the latter a qualified negative upon the former; and
a guard against executive influence and patronage, or unlawful exer-
cise of authority, by requiring the concurrence of a select council, or a
branch of the legislature, in appointments to office, and in the dis-
charge of other high functions, as well as by placing the command of
the revenue in other hands." n
"The usual guard applied for the security of the judicial depart-
ment has been in the tenure of office of the judges, who are to hold
office during good behaviour. But this is obviously an inadequate
provision, while the legislature is entrusted with a complete power
over the salaries of the judges, and over the jurisdiction of the courts,
so that they can alter or diminish them at pleasure. Indeed, the
judiciary is naturally, and almost necessarily, as has been already said,
the weakest department. It would seem, therefore,
that some additional guards would, under such circumstances, be
necessary to protect this department from the absolute dominion of the
others. Yet rarely have any such guards been applied, and every
attempt to introduce them has been resisted with a pertinacity which
demonstrates how slow popular leaders are to introduce checks upon
their own power, and how slow the people are to believe that the
judiciary is the real bulwark of their liberties. In some of the states
the judicial department is partially combined with some branches of
the executive and legislative departments; and it is believed, that in
those cases, it has been found no unimportant auxiliary in preserving
a wholesome vigour in the laws, as well as a wholesome administration
of public justice." p
The danger of this combination of the judicial with some branches
of the executive and legislative departments is, that it has a tendency
to bring the judges within the sphere of political and party influences;
but we must admit the force of the observations of Story on the insuf-
n Story, Comment, vol. 2, ch. 7, 540.
Montesq. Esprit des Loix, liv. 11, ch. 6 ; Federalist, num. 78, pp. 419, 420;
num. 79.
P Story, ibi, 541.
312 DISTRIBUTION AND BALANCE OF
ficiency of the protection which mere permanency of office gives to the
judicial department.
Having seen the opinions of Madison and Story on the way of
keeping the three departments of government in their due places, it
will be interesting to turn to the doctrine of Blackstone on the same
subject, thus juxtaposing the words of the great republican jurists to
those of our own most eminent constitutional writer. After laying it
down that the king's majesty and the three estates of the kingdom,
the lords spiritual, the lords temporal, and the commons, are the con-
stituent parts of the parliament, and that the crown and these three
estates together form the great corporation or body politic of the king-
dom, 11 (of which the king is said to be caput, principium et finis, be-
cause, unless he meets them, either in person or by representation,
on their coming together, there can be no beginning of a parlia-
ment/ and he alone has the power of dissolving them,) Blackstone
continues thus : " It is highly necessary for preserving the balance of
the constitution, that the executive power should be a branch, though
not the whole, of the legislative. The total union of them, we have
seen, would be productive of tyranny; the total disjunction of them,
for the present, would in the end produce the same effects, by causing
that union against which it seems to provide. The legislature would
soon become tyrannical, by making continual encroachments, and
gradually assuming to itself the rights of the executive power. Thus
the long parliament of Charles the First, while it acted in a constitu-
tional manner with the royal concurrence, redressed many heavy
grievances, and established many salutary laws : but when the two
houses assumed the power of legislation, in exclusion of the royal
authority, they soon after assumed likewise the reins of administration,
and, in consequence of these united powers, overturned both Church
and State, and established a worse oppression than any they pretended
to remedy. To hinder, therefore, any such encroachments, the king is
himself a part of the parliament ; and this is the reason of his being so.
Very properly, therefore, the share of legislation which the constitution
has placed in the crown, consists in the power of rejecting rather than
resolving, this being sufficient to answer the end proposed. For we
may apply to the royal negative in this instance, what Cicero observes
of the negative of the Roman tribunes, that the crown has not any
power of doing wrong, but merely of preventing wrong from being
done. 8 The crown cannot begin of itself any alterations in the present
i 4 Inst. 2 ; stat. Eliz. c. 3 ; Hale, Of Parl. 1.
T 4 Inst. 6.
Sulla tribunis plebis sua lege injurite Jaciendte potestatem ademlt, auxilii forendi
reliqtiit. De Leg. 3, 9.
THE POWERS OF GOVERNMENT, ETC. 313
established law, but it may approve or disapprove of the alterations
suggested and consented to by the two houses. The legislative,
therefore, cannot abridge the executive power of any rights which it
now has by law, without its own consent, since the law must perpe-
tually stand as it now does, unless all the powers will agree to alter it.
And herein, indeed, consists the true excellence of the English govern-
ment, that all the parts of it form a mutual check upon each other.
In the legislature the people are a check upon the nobility, and the
nobility a check upon the people, by the mutual privilege of rejecting
what the other has resolved ; while the king is a check upon both,
which preserves the executive power from encroachments. And this
very executive power is again checked and kept within due bounds by
the two houses, through the privilege they have of inquiring into,
impeaching, and punishing the conduct, not indeed of the king/ which
would destroy his constitutional independence, but, which is more
beneficial to the public, of his evil and pernicious counsellors. Thus,
every branch of our civil polity supports and is supported, regulates
and is regulated, by the rest ; for the two houses, naturally drawing in
two directions of opposite interest, and the prerogative in another still
different from them both, they mutually keep each other from exceed-
ing their proper limits ; while the whole is prevented from separation,
and artificially connected together, by the mixed nature of the crown,
which is a part of the legislative, and the sole executive magistrate.
Like three distinct powers in mechanics, they jointly impel the
machine of government in a direction different from what either,
O '
acting by itself, would have done ; but, at the same time, in a direc-
tion partaking of each, and formed out of all; a direction which con-
stitutes the true line of the liberty and happiness of the community." 11
In this masterly sketch we see that the English constitution pre-
sents not only the mutual checks of departments on each other, but
also that balance which arises from the combination of monarchy,
aristocracy, and democracy, in one government. No law can be
made without the concurrence of those three powers. And on the
other hand, the commons have the chief control of the public revenue
and supplies, while the crown, the supreme executive magistrate, is
also the fountain of justice, the source of all judicial power in the
state ; and that branch of the legislature which constitutes the aristo-
cratic part of this mixed government, is also the court for the trial of
impeachments, and the supreme court of appeal. But the house of
commons, though it is the grand inquest of the nation, is so far
excluded from the exercise of judicial power in the ordinary adminis-
1 Stat. 12 Car. II. c. 30.
" 1 Blackst. Com. ch. 2, pp. 154, 155.
314 DISTRIBUTION AND BALANCE OF
tration of justice, that that assembly have never claimed, much less
exercised, the right of administering an oath to witnesses, not even in
cases of privilege, or of controverted elections, where their right of
judicature was acknowledged, and on questions upon which they
were admitted to be the sole court competent to determine." And
this power of administering an oath is exercised in election proceed-
ings only by virtue of a particular act of parliament, for the trial of
controverted elections, under which the House of Commons act as a
court administering the statute law. y Thus the commons, the most
powerful branch of the legislature, are restrained from the exercise of
the judicial power, except where it is necessary for their own indepen-
dence; while the constitution entrusts the judicial department to the
crown and the lords. But though the crown is the fountain of justice,
the royal prerogative cannot, except by authority of parliament, erect
or empower any court to proceed otherwise than according to the
forms and principles of the common law. z And the sovereign cannot
administer justice, except by the mouth of the judges, or by the advice
of one of the constitutional councils of the crown. a
Having now shown the general principles of that adjustment and
combination by which the due separation and balance of the three
powers or departments of government are preserved, we must proceed
to the further consideration of the same subject, with more immediate
reference to each of those departments. And we will commence with
the legislative, as the most important of the three.
Madison observes that the remedy for the preponderance of the
legislative authority in republics is to divide the legislature into diffe-
rent branches, and to render them, by different modes of election, and
different principles of action, as little connected with each other as the
nature of their common functions, and their common dependence on
society, will admit. b And De Lolme has truly said, that the executive
power may be confined, and even is, more easily so, when undivided,
but the legislative, on the contrary, in order to its being restrained,
should absolutely be divided. The reason of this diversity may be
that the executive power can .be restrained by laws, but the checks
x Hatsell, Preced. vol. 2, p. 158.
y May, Priv. of Parl. pp. 345, 363.
z See my Comment, on the Constit. Law of England, p. 170172; Hob. 63;
12 Co. Rep. 114; 1 Woodes. 188190; stat. 53 Geo. III. c. 24 ; Com. Dig. tit.
Prerogative, D. 28 ; tit. Chancery, A. 3.
a Com. Dig. tit. Courts, A ; Fortesc. De Landibus, by Amos, ch. 8, n. B.
b Federalist, num. 51, p. 281,
c De Lolme, b. 2, ch. 3.
THE POWERS OF GOVERNMENT, ETC. 315
and restraints on the legislative must come chiefly from itself and its
own construction, because it can make and repeal laws. So we have
seen that in the English constitution the executive magistrate is pro-
tected from encroachments of the legislature by being made an essen-
tial part of parliament. And in that assembly monarchy, aristocracy,
and democracy, mutually check each other, though, it must be ad-
mitted, with very unequal power.
In the constitution of the United States all legislative powers thereby
granted are vested in the Congress, which consists of a senate and
house of representatives. 11 The president, therefore, is not part of the
legislature, though he has a qualified negative upon its acts. But the
principle .of this provision is the same as that which, in our own
country, makes the crown one of the three estates constituting the
parliament. And it seems better calculated to be useful and practi-
cally effectual in a republic than an absolute veto would be. " An
absolute negative on the legislature appears," says Madison, " at first
view, to be the natural defence with which the executive magistrate
should be armed. But perhaps it would be neither altogether safe,
nor alone sufficient. On ordinary occasions it might not be exercised
with the requisite firmness, and on extraordinary occasions it might
be perfidiously abused." e Therefore the constitution provides that if
the president disapproves of a bill that has passed the Congress, he
may return it, with his objections, to the house in which it originated,
and that house enters the objections at large on their Journals, and
proceeds to reconsider the bill. If, after such re-consideration, two-
thirds of the house should agree to pass the bill, it is sent, together
with the objections, to the other house, by which it is likewise recon-
sidered, and, if approved by two-thirds of that house, it becomes
law. But in all such cases the votes of both houses are determined
by yeas and nays, and the names of the persons voting for and against
the bill are entered on the Journals/ Kent observes that this qua-
lified negative answers all the salutary purposes of an absolute one,
and it is not to be presumed that two-thirds of both houses of Con-
gress, on reconsideration, with the reasoning of the president in oppo-
sition to the bill spread at large upon their Journals, will ever concur
in any unconstitutional measure. " In the English constitution," he
continues, "the king has an absolute negative; but it has not been
necessary to exercise it since the reign of William III. The influence
of the crown has been exerted in a more gentle manner, to destroy
any obnoxious measure in its progress through the two houses of
a Constitution of the United States, art. 1, sect. 1.
e Federalist, num. 51, p. 282.
f Kent, Comment, vol. 1, lect. 11, p. 239.
316 DISTRIBUTION AND BALANCE OF
Parliament." g Story, however, conjectures that the fact that this
negative of the crown has not been exercised since 1692 may be attri-
buted either to the reason given by Kent, or to the danger of exer-
cising it, except in the most pressing emergencies ; and he even
suggests the question whether a qualified negative may not hereafter,
in England, become a more efficient protection to the crown, than an
absolute negative, which makes no appeal to the other legislative
bodies, and consequently compels the crown to bear the exclusive
odium of a rejection. 11
The operation of parliamentary government, by means of respon-
sible ministers, has also mainly contributed to render the exercise of
this power unnecessary, except in some rare emergency. . And the
House of Lords will generally support the prerogative of the crown,
by rejecting a measure repugnant to the sovereign : and a knowledge
of this may enable the minister to defeat it in the House of Commons,
a result which the constitutional influence of the crown and the House
of Lords in the lower house may assist in producing, so as to avoid a
collision between the branches of the legislature. 1
In the United States, the legislature is, as we have seen, divided
into two assemblies, the Senate and the House of Representatives,
and in our own country it is divided into three branches, the crown
and two separate assemblies. We have now to consider the reasons
of Public Law, on which the institution of double legislative assem-
blies is grounded. This subject is exhausted by the American consti-
tutional writers, the Federalist, Kent, Adams and Story, and they are
unanimously in favour of two houses or chambers.
" One great object," says Chancellor Kent, " of the separation of
the legislature into two houses, acting separately, and with co-ordinate
powers, is to destroy the evil effects of sudden and strong excitement,
and of precipitate measures, springing from passion, caprice, prejudice,
personal influence and party intrigue, which have been found by sad
experience to exercise a potent and dangerous sway in single assem-
blies. A hasty decision is not so likely to arrive to the solemnities of
a law, when it is to be arrested in its course, and made to undergo the
deliberation and probably the jealous and critical revision of another
and a rival body of men, sitting in a different place, and under better
advantages to avoid the prepossessions and correct the errors of the
other branch. The legislatures of the Pennsylvania and Georgia con-
sisted originally of a single house. The instability and passion which
marked their proceedings were very visible at the time, and the subject
*Kent, Comment, vol. 1, lect. 11, pp. 140, 141.
h Story, Comment, vol. 2, ch. 13, 879; Federalist, num. 51, 73.
1 See my Comment, on the Constit. Law of England, p. 165.
THE POWERS OF GOVERNMENT, ETC. 317
of much public animadversion; and in the subsequent reform of their
constitutions, the people were so sensible of this defect, and of the
inconvenience they had suffered from it, that in both states a senate
was introduced. No portion of the political history of mankind is
more full of instructive lessons on this subject, or contains more
striking proof of faction, instability, and misery of states, under the
dominion of a single unchecked assembly, than that of the Italian
republics of the middle ages ; and which arose in great numbers, and
with dazzling but transient splendour, in the interval between the fall
of the western and the eastern empire of the Romans. They were all
alike ill constituted, with a single unbalanced assembly. They were
alike miserable, and all ended in similar disgrace." k
About the commencement of the French revolution, many specula-
tive writers were struck with the simplicity of a legislature with a
single assembly, and concluded that more than one house was useless
and expensive. Milton, Turgot, Franklin and Mackintosh, are but
few of those who have professedly entertained and discussed the ques-
tion. 1 The elder President Adams, in his great work entitled " A
Defence of the Constitutions of Government of the United States,"
vindicates the necessity of the division of the legislature into two
assemblies. And Mr. Hamilton argues in the Federalist, that the
organization of Congress under the confederation which vested the
whole legislative power of the Union in a single assembly, was im-
proper for the exercise of those powers which were to be necessarily
deposited in the Union by the constitution. " A single assembly," he
says, " may be a proper receptacle of those slender, or rather fettered,
authorities which have been heretofore delegated to the federal head ;
but it would be inconsistent with all the principles of good govern-
ment to entrust it with those additional powers, which the more
moderate and rational adversaries of the proposed constitution admit
ought to reside in the United States."" 1
The doctrine of a single house of legislature was adopted in the
French constitution of 1791. The very nature of things, said the
politicians of the national assembly, was adverse to every division of
the legislative body; and as the nation which was represented was
one, so the representative body ought to be one also. The will of the
nation was indivisible, and so ought to be the voice that pronounced
it. If there were two chambers, with a veto upon the acts of each
other, in some cases they would be reduced to perfect inaction. By
k Kent, Comment, vol. 1, lect. 11, pp. 121, 122; and see pp. 226, 227; Adams,
Defence of the American Constit. vol. 3, p. 502.
1 Story, Comment, vol. 2, ch. 8, 548.
m Federalist, num. 22, p. 19.
318 DISTRIBUTION AND BALANCE OF
this reasoning, the national assembly was induced to reject the pro-
posal of constituting an upper house. A single assembly was likewise
established in the plan of government published by the French Con-
vention in 1793. And Kent observes, that the instability and violent
measures of that Convention tended to display the miseries of a single
single unchecked legislative assembly. He gives his opinion that, if
the proposition of Lally Tolendal, to constitute a senate or upper
house, composed of members chosen for life, had prevailed, the consti-
tution would have had much more stability, and would probably have
been much better able to preserve the nation in order and tranquillity ;
and, he adds, that their own sufferings taught the French people to
listen to wisdom and experience. No people, said Boissy D'Anglas,
in 1795, can testify to the world, with more truth and sincerity than
the French can do, the dangers inherent in a single legislative assem-
bly, and the point to which factions may mislead an assembly, with-
out reins or counterpoise. We accordingly find that, in the constitution
of 1795, there was a division of the legislature, and a council of
ancients was introduced to give stability and moderation to the govern-
ment. 11 Chancellor Kent concludes by saying, that this idea was never
afterwards abandoned. And yet, as if to show that nations profit
little by experience, the same crude and shallow arguments, used in
the national assembly in 1791, were repeated in 1848; and the French
republic was constituted with a single legislative assembly. The
absurdity and disgrace of that body, and the utter failure of the re-
public, add confirmation to the opinion of Kent, President Adams
and Story.
We must now proceed to another mode of moderating the power of
legislative assemblies. We have seen that the branches of the legis-
lature should be rendered by different modes of election or appoint-
ment, and different principles of action, sufficiently unconnected with
and independent of each other to act as a mutual check. Thus in
our own country we have a hereditary prince and Upper House, and
an elected House of Commons. So, in the United States, the House
of Representatives is chosen biennially by the people, and the senate is
elected by the legislatures of the different States, and one-third of the
senators are elected in every second year.? The principles of a
republic require that both branches of the legislature should be elected
directly or indirectly by the people ; and the tenure of a seat in the
legislature for life seems inconsistent with a democracy. But even in
a mixed monarchy it is necessary that the members of one at least of
n Kent, Comment, vol. 2, lect. 1 1, pp. 222, 223.
Federalist, num. 51, p. 281.
P Kent, Com. vol. 1, lect. 11, p. 224228.
THE POWERS OF GOVERNMENT, ETC. 319
the legislative assemblies should not hold their seats permanently for
life, but be subject to re-election, and so brought under the control
of the public judgment of the nation.* 1 On this point Chancellor Kent
gives us the following sound doctrines of Public Law : " The term
for which a representative is to serve ought not to be so short as to
prevent him from obtaining a comprehensive acquaintance with the
business to which he is deputed ; nor so long as to make him forget
the transitory nature of his seat, and his state of dependence on the
approbation of his constituents. It ought also to be considered as a
fact deeply interesting to the character and utility of representative
republics, that very frequent elections have a tendency to render the
office less important than it ought to be deemed, and the people inat-
tentive in the exercise of their right, or else to nourish restlessness,
instability and factions; whilst, on the other hand, long intervals
between the elections are apt to make them produce too much excite-
ment, and consequently to render the periods of their return a time of
too much competition and conflict for the public tranquillity." 1 " The
prerogative of the crown in mixed monarchies, to dissolve the legis-
lative body at any time, and send the representatives of the people to
their constituents, is necessary to protect the royal authority from the
power of parliamentary parties and factions, and give it a due influence
in the legislature. And the fact that every representative must at
certain periods either surrender his trust altogether, or give an account
of his public conduct in parliament and solicit re-election, is an essen-
tial restraint upon those who would otherwise pursue their own private
views and interest at the expense of the liberty and welfare of the
people, and exercise their power in an arbitrary manner. It is impos-
sible to lay down any universal rule determining how frequent elections
should be. This in every country is matter of arbitrary law depending
on a great variety of circumstances. 8 We have, therefore, given only
the general principles by which this important matter of constitutional
law is governed.
We will now proceed from the legislative to the executive depart-
ment. The essential character of this department is unity ; for, as
Chancellor Kent says, " the characteristic qualities required in the
executive department are promptitude, decision and force ; and these
qualities are most likely to exist when the executive authority is
limited to a single person, moving by the unity of a single will." '
This principle is carried into effect where, in a republic, the executive
i Blackst. Com. vol. 1, pp. 188, 189; Montesq. Esprit des Loix, liv. 11, ch. 6.
r Kent, Com. vol. 1, lect. 11, p. 229; Story, Comment, vol. 2, $ 586, 587.
1 See Story, ibi, 589. And see Hallam, Constit. Hist. vol. 4, pp. 52, 53.
' Kent, Com. vol. 1, lect. 13, pp. 271, 272. And see the Federalist, num. 70.
320 DISTRIBUTION AND BALANCE OF
department is entrusted to a single responsible magistrate not subject
to the control of councillors." Under a mixed monarchy, where the
king acts by the adviee of responsible ministers, it is maintained on a
somewhat qualified form by the unity of the regal office." In both
cases the executive department cannot be divided into branches with-
out injuring its useful efficiency. Its powers and functions should be
united and defined by laws, the interpretation of which is committed
to the judicial department. But those laws should not deprive the
executive of that extent of discretionary power which the public
service may require. Thus the prerogative of the crown is defined by
Lord Mansfield to be " a discretionary power lodged in the crown for
the common benefit of the kingdom and the king's subjects;" and
Locke and Blackstone hold that it consists in the discretionary power
of acting for the public good, where positive laws are silent. y But
this discretionary power of the executive department is subject to an
indirect restraint wherever it cannot be effectually exerted without
pecuniary supplies, which can neither be raised nor applied, except by
the authority of the legislature. 2 If this were not so, the executive
would be enabled to encroach on the legislative branch of government.
On the other hand, the executive department could not preserve its
due independence and energy if a permanent provision were not made
for its support and sustenance. Blackstone, after some reflections on
the diminution of the royal power and the impoverishment of the
crown, stripped of the greater part of its hereditary revenues, suggests
that it may be thought that the executive magistrate has neither inde-
pendence nor power enough left to form a check on the lords and
commons. But he considers that the permanent endowment called
the Civil List, which is settled on every king by the first parliament
after his accession, restores to him that constitutional independence
which on his ascending the throne must be owned to be wanting.*
C* O
The same principle is followed in the United States of America, where
a provision in the constitution declares that the president shall at
stated times receive for his services a compensation, which shall
neither be increased nor diminished during the period for which he
shall have been elected ; and he shall not receive within that time any
other emolument from the United States, or any of them. b
u Federalist, ibi, p. 379.
* Blackst. Com. vol. 1, ch. 7, pp. 249, 250.
y See my Comment, on the Constit. Law of England, p. 493; Locke on Gov. vol. 2,
166 ; Blackst. Com. vol. 1, ch. 7, p. 252.
z De Lolme, b. 1, ch. 6.
" Blackst. Com. vol. 1, ch. 8, pp. 334, 335.
b Kent, Com. vol. 1, lect. 13, pp. 280, 281.
THE POWERS OF GOVERNMENT, ETC. 321
In a republic the chief executive magistrate may also be restrained
from encroaching on the other departments, by the limited duration of
his office, and by responsibility. Thus the President of the United
States holds office for four years. He is re-eligible for successive
terms, but in practice no president has ever consented to be a candi-
date for a third election. And as in a republic every magistrate
ought to be personally responsible for his behaviour in office/ 1 the
president is directly amenable by law for maladministration. 6 And
this responsibility would perhaps suffice to prevent his disturbing the
balance of power by enterprizes or encroachments on the other
departments of government.
In a monarchy, however, this responsibility of the chief magistrate
cannot be admitted without subverting the fundamental principle of
mixed monarchical government, which, as we have seen, makes the
Prince a part of the supreme power, and consequently amenable to no
human jurisdiction/ Therefore it is wise, under that form of govern-
ment, to annex to the king a constitutional council responsible to the
nation for the advice that they give. Without this, there would be no
responsibility in the executive department an idea inadmissible in a
free government. But even there the king is not bound by the advice
of his ministers, though they are answerable for such advice. 5 He is
the master of his own conduct in office, and may change his advisers
whenever he thinks fit : though, on the other hand, as the ministers of
the crown are obliged to give an account in parliament of the measures
of the government, they cannot remain in office unless they have the
confidence of that assembly. If a ministry retain office after they
have ceased to be supported by a majority of the House of Commons
(which, as representing the body of the nation, and having the chief
control over the public resources, must naturally possess the greatest
power over the state administration), some vote will follow, either
directly or impliedly, censuring them, and perhaps an address to the
crown praying their removal ; and the next step will be a refusal of
the supplies. The defeated ministers may however advise the crown
to dissolve parliament, and thereby appeal to the country ; but the
decision on that appeal should be final.
Thus, both in a republic and in a mixed monarchy, though the
executive and the legislative departments are divided from each other,
the legislative assembly or assemblies may exercise a control over even
c Kent, Com. vol. 1, lect. 13, p. 280.
d Federalist, num. 70, p. 384.
e Kent, Com. vol. 1, lect. 13, pp. 288, 289.
f Blackst. Com. vol. 1, ch. 7, pp. 244, 245.
* Federalist, ubi sup. p. 384.
322 DISTRIBUTION AND BALANCE OF
that part of the executive administration which is discretionary and
not defined by law, without depriving that department of its constitu-
tional freedom of action. And so the legislative and executive branches
of the sovereign power are prevented from clashing, by a mutual control
which keeps each in its proper place, and maintains a unity in their
action.
And here the reader must be reminded, that though this country
cannot be taxed except by authority of parliament, which also appro-
priates the supplies to each service, the management and application
of the public revenue is entrusted to the crown. And indeed the
House of Commons will receive no petition for any sum of money
relating to the public service but what is recommended by the crown. h
This is necessary to prevent the Houses of Parliament from drawing
to themselves what essentially belongs to the executive branch of the
sovereign power, and thus destroying the distribution of powers which
constitutes the balance of the constitution.
We have now to examine how the judicial department is subjected
to wholesome restraint, and protected against the encroachments of
the other two. We have already seen that this is the weakest of the
three departments ; yet its due administration is necessary for the
maintenance of the laws upon which the whole system of the state and
of civil society depend. And so it has been declared by high autho-
rity, that without justice there can be no commonwealth, and that
justice is the end of government. 1 This doctrine, indeed, is matter of
immutable law, a direct consequence of the two fundamental laws
on which human society is constructed, though it must be confessed
that in all countries there are many things in the municipal laws very
different from the spirit of those two Divine laws.
In monarchical governments the independence of the judicial office
is essential to guard the rights of the subject from arbitrary or undue
exercise of the power of the crown : but in republics it is equally
salutary to protect the constitution and laws from the encroachments
and the tyranny of faction, 1 and from arbitrary acts of the executive.
It is necessary (as we have already observed) for that independence,
that the tenure of judicial office should be permanent and its emolu-
ments secure. The judges should, therefore, hold office for life,
subject to removal only in case of misconduct; and their salaries
h Hatsell, Preced. vol. 3, p. 194196 ; May, Law of Parl. p. 335. See the sub-
ject of Supply further explained in my Comment, on the Constit. Law of England,
pp. 204, 205.
' Div. August. De Civ. Dei, lib. 19, cap. 21 ; Federalist, num. 51, p. 283.
k Kent, Com. vol. 1, lect. 14, pp. 293, 294.
THE POWERS OF GOVERNMENT, ETC. 323
should depend upon no annual vote, but be settled and secured by a
permanent law. 1 The power to remove a judge from office should be
placed in hands worthy of so great a trust. Thus in our own country
the concurrence of the crown and both Houses of Parliament is required
for this purpose : and by the constitution of the United States the
judges can only be removed by impeachment of the House of Repre-
sentatives and judgment of the senate." 1
The mode of appointing the judges is very important with reference
to the independence of the judicial department and its due weight in
the constitution. Kent shows, that even in a democracy, the judges
ought not to be elected by the people. The fittest men, he observes,
would probably have too much reservedness of manners and severity of
morals to secure an election resting on universal suffrage. Nor can
the mode of appointment by a large deliberative assembly be entitled
to unqualified approbation. There are, he adds, too many occasions
and too much temptation for intrigue, party prejudice, and local in-
terests, to permit such a body of men to act, in respect of such appoint-
ments, with sufficiently single and steady regard to the general
welfare." And a judge so appointed would constantly be suspected
of remembering in the discharge of his duties the votes given for or
against him, and the influences used at his election. The constitution
of the United States has wisely entrusted the appointment of the
judges to the president, with the advice and consent of the senate.
That connexion with the executive and the most dignified branch of
the legislature secures to the judicial department the support of those
great powers of the state ; augmenting, at the same time, its weight
with the nation by the high guarantees which this mode of appoint-
ment affords.
The British constitution also connects the legislative and executive
with the judicial department. For the crown is both a branch of the
legislature, and the fountain of justice, which is administered in the
Queen's name by her judges. In this distinct and separate existence
of the judicial power in a peculiar body of men, appointed indeed, but
not removable at pleasure by the crown, consists one main preserva-
tive of public liberty, which cannot subsist long in any state, unless
the administration of common justice be in some degree separated
both from the legislative and also from the executive power.? Thus,
1 Kent, Com. vol. 1, lect. 14, pp. 291, 292, 294; Story, Com. vol. 2, ch. 7, 541 ;
Blackst. Com. vol. 1, ch. 7, pp. 267, 268; Federalist, num. 78, pp. 419, 420.
m Blackst. Com. ubi sup. ; Kent, Com. vol. 1, lect. 14, p. 295.
n Kent, ubi sup. p. 291.
Ibi.
P Blackst. Com. vol. 1, ch. 7, p. 269.
Y2
324 DISTRIBUTION AND BALANCE OF
while the judges are independent of the crown, the judicial office
emanates from the regal dignity, and is supported by the influence and
majesty of the sovereign. To this influence we must add that of the
House of Lords, which is not only the highest legislative assembly,
but the supreme court of appeal, and therefore part of the judicial
branch of government. And in the performance of their judicial
duties the lords are frequently assisted by the judges of the superior
courts of law, some of whom are moreover from time to time raised to
the peerage ; and the Lord Chancellor, the highest judicial magistrate
of the kingdom, is ex qfficio the speaker of that assembly, both in its
legislative and its judicial functions. All these things tend to secure
the dignity and independence of the judicial department of the state.
We must now briefly consider the most important restraint on the
judicial power, namely, its division between judges and juries. Trial
by jury has exercised a valuable influence on jurisprudence by bringing
the doctrine of juridical proofs to its true and natural principles, as
contradistinguished from the artificial theory of evidence : but it may
be doubted whether this institution affords the best method of deter-
mining disputed questions of fact. We are, however, to view it here
only as a means of maintaining the balance of power in a constitutional
state by restraining the judicial department, and so securing the liberties
of the people. Under this aspect its chief value is in criminal cases,
though matters involving the most important rights of the citizens may
be decided in civil actions. And it is necessary to observe, that a
very large proportion of the civil administration of justice in this
country, and part even of the administration of the criminal law, is
carried on without the intervention of juries.
If the judicial power were entrusted exclusively either to the per-
manent judges or to the people, there would be danger of giving too
much power in the former instance to the executive, towards which
those magistrates are likely to lean, and in the latter, to the democracy,
whose decisions would be capricious and unsafe. And it has been
remarked, that the existence in any community of a standing body of
functionaries, invested with the sole power of deciding upon accusa-
tions involving the liberty and life of their fellow citizens, must en-
danger liberty." 1 And the same principle applies in a modified sense to
civil cases. Therefore, the judicial power is divided between the
judges and the people : and juries have been called the commons of
the judicial order. In a country where a strong aristocratic element
forms part of the constitution, this division is also useful as a protec-
tion to the people against the power and influence of the aristocracy,
* Montesq. Esprit des Loix, liv. 11, ch. 6.
THE POWERS OF GOVERNMENT, ETC. 325
with whom the judges may naturally have some community of feelings
and interests. Trial by jury, therefore, preserves in the hands of the
people that share which they ought to have in the administration of
public justice, and prevents the encroachments of the more powerful
and wealthy citizens. And thus a distribution of the judicial power
obviates the danger of a union between the judicial department and
the executive, or with the nobles and the executive, which would
destroy the balance of a mixed constitution.
CHAPTER XXVII.
OF COMPOUND STATES OR SYSTEMS OF STATES.
Provinces Colonies and Colonial Policy States united by having one King in com-
mon States joined by Confederation Mode of deciding Questions among Con-
federates Dissolution of Confederations Mixed Federal States exemplified by the
Constitution of the United States of America.
ONE important class of mixed governments remains to be considered.
The term mixed is here applied to states of this sort in a sense some-
what different from that in which we have hitherto used it. And the
more correct denomination is that of compound or irregular states. I
refer to federal governments or constitutions.
The plan of human society given by Domat, founded on the two
great primary laws, and constructed by means of the various ties which
unite men together, shows the first principle on which polities of this
kind are created. We have seen that, according to Domat, God
makes the society of mankind to subsist by three several kinds of ties,
which distinguish it into three parts or orders, according to so many
manners of His conduct towards mankind. The first of these ties,
and the second, that is to say Religion, and common humanity or
human nature, are universal ; and the third, which is formed in every
state, by the order which unites all the families whereof it is composed
under one government, is restricted within the territories of each -state/
The second order or part of universal society, which is formed and
maintained among nations by humanity and natural equity common
to all mankind, gives rise to the use of a variety of treaties or conven-
r Domat, Droit Publ. Preface.
326 OF COMPOUND STATES OR SYSTEMS OP STATES.
tions which connect or unite nations with each other in a multitude of
different ways, and for different purposes. Domat shows that man is
destined to society by two kinds of engagements the general ties
which God makes among all men by their nature and their destination
to the same end under the same laws, and the particular ties binding
men towards specified persons, which include all sorts of contracts
and agreements formed differently, either by the several communica-
tions which pass among men of their labour and industry, and all
sorts of offices, services, and other assistances, or by those which
relate to the use of things. 3 The treaties or conventions among nations
are analogous to this second kind of engagements among individuals,
for nations stand towards each other in the relation in which men are
placed to one another by universal human society, which occasions
the use of various dealings and communication among them. And as
individuals may form different associations and bodies politic or cor-
porate among themselves, so may nations unite themselves one with
another, dividing and moulding the institrtion of sovereignty so as
to maintain their union, and yet not extinguish their particular corpo-
rate individuality and rights.* This takes place by conventions
grounded on the interests and wants of nations, or in consequence
of a war, by which a country loses part only of its sovereignty and
separate independent existence, and that part is incorporated with the
government of another country. We shall, however, see that though
the principle of agreement and convention belongs to this class of
governments, yet there is a sort of federal constitution which unites
all the members of the community in the last of the three ties, and
brings them together in the third of the orders into which Domat
divides human society. In this case the federal constitution has all
the qualities of a fundamental law, and is to be considered as such,
and not as a compact or treaty."
Pufendorf describes compound states (systemata civitatuurri) to be
an assemblage of several states, closely bound together by some parti-
cular tie, so that they appear to form one body, though each preserves
sovereignty in itself independent of the others. 1 " It follows," says the
same writer, " from this definition, that we must not, as Hobbes does, y
rank among compound states those which simply include several
subordinate bodies, nor those that have aggrandized themselves by
swallowing up other states which they have incorporated with their
Domat, Loix Civiles, Trait des Loix, ch. 2, 3.
1 Story, Com. on Constit. of the United States, vol. 1, ch. 3, 311.
" Story, ubi sup. 352.
* Pufend. Droit des Gens, liv. 7, ch. 5, 16.
T Leviath. c. 22.
OF COMPOUND STATES OR SYSTEMS OF STATES. 327
former dominions. This takes place in two principal ways. One is
when a conqueror removes the conquered people into his own domi-
nions, or gives to them the same laws and privileges enjoyed by his
former subjects; and the other way is when, leaving the conquered
nation in their country, he abolishes their government, so that they
remain purely and simply subjects of their conqueror. In both these
cases, the conquered people ceases to be a state; but in the former
the new subjects are on an equality with the old, while in the latter
the conquered are reduced to a more disadvantageous position, and
rendered a mere province. Nevertheless, the conquered people are
frequently allowed to retain part of their laws and privileges, however
different they may be from those of the conquerors. 2 For the unity
of a state does not necessarily require that all the country belonging
to it should be governed by the same positive laws, nor that all the
subjects should be in an equally advantageous condition. It suffices
that all be under a common sovereign power. And it is often a
measure of policy to change nothing of the ancient customs of the
conquered, or at least to leave them to a certain extent untouched.
As for conquered provinces, Hobbes maintains that Judaea, under its
Roman governors, was neither a democracy nor an aristocracy,
because public affairs were not in the hands of an assembly of Jews.
He then asks whether it was not a monarchy ; for he says that the
Roman government was an aristocracy or a democracy with regard to
the Roman citizens, but that does not preclude it from being a
monarchy with regard to the Jews ; for the sovereignty of a state
over other states is as much a monarchy as that of a single person
over a multitude of men. Thus Hobbes seems to regard as monar-
chies, provinces subject to an aristocratic or democratic state. But
though provinces, as he shows elsewhere at length, 8 are usually
governed by a single person rather than by an assembly ; it is, in my
opinion, useless to debate the question what is the form of the govern-
ment of provinces. For every province, which no longer has in itself
a sovereignty of its own, ceases to be a state, and becomes a depen-
dency of another state. And whether such province obey a governor
or an assembly, that is not material to the form of the government,
for they both have but a subordinate power. Thus the sovereignty
exercised over provinces, or dependencies of a state, is always of the
same nature, and cannot, except improperly, be called aristocracy or
monarchy ; for this distinction of forms of government is applicable
* Hobbes, Leviath. c. 26.
a Ibi, c. 22.
328 OF COMPOUND STATES OR SYSTEMS OF STATES.
only to states properly so called, which have a sovereignty of their
own." b
We must here observe, that Pufendorf uses the term province, not
in its ordinary sense, as contradistinguished from the capital, city, or
principal seat of government, but as signifying a dependency, such,
for instance, as a colony. These cannot constitute, with the mother
country or the state on which they depend, a compound state, because
they are not in themselves states. Thus all the colonies and plantations
of the British empire are equally subject to the supreme authority of
the Imperial Parliament, whatever may be the form of the provincial
government ; and they have no reserved or proper sovereignty of their
own. The famous Declaratory Act, 18 Geo. III. c. 12, has been
held not to limit the right of parliament to legislate for the colonies.
It declares, " that from and after the passing of this act, the king and
parliament of Great Britain will not impose any duty, tax or assess-
ment whatever payable in any of his majesty's colonies, provinces or
plantations, in North America or the West Indies, except only such
duties as it may be expedient to impose for the regulation of com-
merce ; the net produce of such duties to be always paid and applied
to and for the use of the colony, province or plantation in which the
same shall be respectively levied, in such manner as other duties col-
lected by the authority of the respective general courts or general
assemblies of such colonies, provinces or plantations, are ordinarily
paid and applied." This act contains no abandonment of right. Its
recitals set forth only the inexpediency of the taxation of the colonies
by parliament, and then the statute declares that parliament will no
longer exercise this right. Thus, we may conclude, that no part of the
jura majestatis is reserved to the colonies in a sovereign capacity, for
whatever is done by their provincial governments, even with the con-
currence of the crown, may be annulled by parliament. 11
It is however necessary to observe, that these principles of our Public
Law are modified in practice. For the spirit of recent colonial policy
has been to leave to the colonies the management of their internal
affairs ; extending to them the privileges of self-government, as far as
their circumstances will admit, having regard to their own interests
and those of the empire at large. The most important practical point
of this policy is the introduction of responsible parliamentary govern-
b Pufend. ubi sup. 16.
c See the Speech of Lord Chancellor Brougham, Aug. 12th, 1833, Hansard, vol. 20,
3rd ser. cols. 521, 522. The Declaratory Act is held to apply only to those colonies
which have legislative assemblies. Ibi.
d See the definition of sovereign power by Grotius, Droit de la Guerre, liv. 1, ch. 3,
7.
OF COMPOUND STATES OR SYSTEMS OF STATES. 329
ment into the colonies themselves. It was urged by the late Earl of
Durham, in his report on the affairs of Canada, 6 that the government
there could not be conducted with ease or harmony, excepting by
the advice of persons having the confidence of the house of assembly.
" If," he said, " colonial legislatures have frequently stopped the sup-
plies, if they have harassed public servants by unjust or harsh im-
peachments, it was because the removal of an unpopular administration
could not be effected in the colonies by those milder indications of a
want of confidence, which have always sufficed to attain the end in
the mother country." He urged that the governor should be instructed
to secure the co-operation of the assembly in his policy, by entrusting
it to such men as could command a majority in the assembly or colo-
nial parliament, and that it should be made necessary for the official
acts of the governor to be countersigned by some public functionary ;
and that changes of administration ought to take place in the colonies
on the same principles on which they occur at home.
The difficulty of the system consists in this, that it places the
government of the colonies under two sets of ministers, one responsible
to the colonial, and the other to the imperial parliament. And the
governor of the colony is himself responsible to the crown, to parlia-
ment, and to the colonial legislature, who may at any time address the
Queen to remove him. Thus, the government at home may compel
the colonial governor to take a course rendering it impossible for him
to form an administration possessing the confidence of the provincial
parliament. And so the whole government of the colony may be
brought to a stand. The remedy against this danger is to be found in
the wisdom and moderation of parliament, and the responsible ser-
vants of the crown at home ; and in a prudent discrimination between
matters of imperial and of provincial government or policy. This
method of managing dependencies gives, in practice, a federal cha-
racter to our colonial system, without violating the principles of Public
Law, on which the unity of the empire depends ; and it is calculated
to prolong: the connexion of the colonies with the mother country.
The federal element of the system will probably develop itself, and
become a constitutional law, securing a wholesome independence to
the colonies, in all that does not involve the integrity and general
interests of the empire. And at the same time, its natural effect is to
prepare for the useful enjoyment of complete independence, or to
become integral portions of other states, such colonies as their own
domestic interests and the course of events may hereafter separate
e Earl of Durham's Report, 1839, pp. 100, 101.
330 OF COMPOUND STATES OR SYSTEMS OF STATES.
from the mother country. This last consideration is not pleasing to
our feelings of national pride and patriotism ; but it is grounded on
principles of true statesmanship. For, as we have shown/ the division
of mankind into nations and states is a subordinate or subsidiary
institution of Public Law ; and the boundaries of states are matter
of arbitrary law, subject to be varied and modified by political events,
in accordance with the welfare and prosperity of particular communi-
ties, and the general good government of mankind. This position
may seem a truism, and yet its neglect has caused much bloodshed,
and retarded the progress of civilized society. For princes and nations
have often imagined, that to secure or retain a certain territory was
a sacred duty which could not be neglected without guilt and disgrace,
and must therefore be performed, whatever might be the consequences,
though in direct violation of the principles on which mankind are
divided into political communities, for the purposes of civil society,
founded on the two great primary laws. And so history presents many
instances of conquests injurious alike to the conqueror and the con-
quered, obstinately retained with the sacrifice of much human life and
happiness ; and provinces or dependencies converted into bitter ene-
mies, which by a wise and timely emancipation would have become
valuable allies of the mother country.
Pufendorf divides compound states (or systemata civitatuuni) into
two sorts : one is where two or more distinct states have but one
king ; and the other is where two or more confederated states form
together but one body politic.
With regard to the first sort, he observes, that there is no reason
why several politic bodies should not have one common head. This
sort of compound state may be produced in several ways. The most
usual are the marriage of princes and the right of succession. Thus,
if a princess, sovereign in her own right, marry a foreign sovereign, the
two states will be connected, or united, at least in the children of that
marriage ; for it is not in that case necessary that the princess and her
dominions should be subject to her husband. The heir to a kingdom
may be the sovereign of another state, and thus the two states may be
united. The same thing occurs when a nation choose for their kins; a
o O
prince already sovereign of or heir to another state. Two or more
nations may agree together to elect the same king, without ceasing to
be distinct kingdoms, and without establishing a general assembly for
deliberation on all their public affairs in common. And a compound
state is formed when a king, established by the free consent of his
' Chap. XIII.
OF COMPOUND STATES OR SYSTEMS OF STATES. 331
subjects, subjugates another nation in his own particular and proper
name, at his own risk and peril, and at his own expense, without the
act or assistance of his subjects. 8
But one person may be king of two or more states without their
forming a compound state. For their fundamental laws may keep
the several crowns entirely distinct and unconnected. And so it was
with the kingdom of Hanover and the united kingdom of Great
Britain and Ireland. " As for any foreign dominions," says Black-
stone, " which may belong to the person of the king by hereditary
descent, by purchase or other acquisition, as the territory of Hanover
and his majesty's other property in Germany; as these do not in any-
wise appertain to the crown of these kingdoms, they are entirely
unconnected with the laws of England, and do not communicate with
this nation in any respect whatsoever." 11
As the union of this sort of compound states is solely founded on the
person of a common prince, or at the utmost on the royal family, it is
clear that when that family is entirely extinct, the body formed by the
connexion of the states is dissolved, and each nation may create a king
for itself, or introduce any other form of government, without the con-
currence of any external person. This would be so, assuming that
those kingdoms were united solely by their dependence on a common
king. Thus, if a prince already in possession of a hereditary state, has
become the sovereign of another by election, the union of those states
ends on his death, and the elective state is not bound to choose his son
to succeed him. But when two or more kingdoms are joined into one
body by a confederation between them, if one of those states violate
the principal articles, at least, of the treaty, the others who are injured
thereby are entitled to break the alliance. Pufendorf, however, draws
a distinction between the obligation of each confederated nation to-
wards their common king, and their obligations towards each other.
For, he says, a king once elected, to whom an oath of fidelity has been
taken, cannot be deposed for every sort of wrongful act, even though
committed contrary to his engagements, so long as he does not act as
a declared enemy of the nation, unless the convention giving him the
sovereign authority contains a commissary clause or clause of for-
feiture, 1 making the obedience of his subjects depend on the observance
of all and each of the articles of the contract. In that case the breach
of any of them will deprive him of his crown, and so dissolve the body
united in his person. But as regards the reciprocal obligation of the
s Pufend. Droit des Gens, liv. 7, ch. 5, 17.
h Blackst. Com. vol. 1, p. 110; stat. 12 & 13 Will. 3, c. 2 ; Heineccii Prselect. in
Pufend. De Offic. Horn, et Civ. lib. 2, cap. 8, 13.
1 Grotius, Droit de la Guerre, liv. 1, ch. 3, 16.
332 OF COMPOUND STATES OR SYSTEMS OF STATES.
nations joined under the same prince, that nation to whose prejudice
the laws of the confederation have been violated, may separate itself,
though the injury be not very considerable, provided the other nations
concurred in the wrongful act, or if it be produced and turned to their
profit. Thus, on the death of their common prince, the injured nations
may separate themselves from the others, and afterwards act against
the authors of or accomplices in the wrong, to obtain reparation, or to
recover what has been taken from it. If several states are conjoined
by virtue of a marriage making a Prince the heir to them all, and the
order of succession of the crown be differently regulated in them,
there the union is dissolved when the same person cannot succeed to
all those kingdoms according to their fundamental laws. This would
be when in one of two kingdoms so joined, the agnatic or male, and in
the other, the cognatic or female succession prevails, and the reigning
sovereign dies without male issue: for then the former kingdom will
devolve on the next male heir, while the latter will descend to the
daughter of the deceased sovereign. But if an union of states,
originally formed by marriage or descent, be confirmed and rendered
perpetual by confederation or by a law binding on them all, the diver-
sity of their several laws of succession must be held to be thereby
abolished ; and in such case that law of succession must be followed
which is expressly provided in the treaty or law of union, or that
which is known to be most conformable to the will of the author of
the union, or the most natural or most advantageous to the united
kingdoms. But when a kingdom becomes a province of another,
there is no confederation, for the two states then become one. k
We come now to the second sort of compound states, or, as
Martens calls them, systems of confederated states. 1 These are, as
Pufendorf tells us, formed by the perpetual confederation of several
states, which usually originates from the fact that they desire to
preserve the liberty of governing themselves, each according to its own
laws, and yet do not feel strong enough singly to defend themselves
against common enemies. " States so united," he continues, " engage
with each other to exercise in common some part of the sovereign
power. For the principal difference between this sort of perpetual
confederation which joins nations in one body, and the alliances
usually made by nations with each other, is, that in the latter each
ally determines by his own judgment to do certain things agreed upon
among the allies, but without making the exercise of that part of the
sovereign power, to which those engagements relate, depend on the
k Pufend. Droit des Gens, liv. 7, ch. 5, 1 7.
1 Martens, Droit des Gens, liv. 1, ch. 3, 29.
OF COMPOUND STATES OR SYSTEMS OF STATES. 333
consent of the others ; and without giving up anything of the full and
absolute rights of the government of the particular state. Besides,
mere alliances usually have for their object some particular advantage
of each ally, and are only for a certain time. But this sort of confe-
deration of which we are treating consists in this that several nations,
without ceasing to be distinct states, unite together with a view to
their preservation and mutual defence, making, for this purpose, the
exercise of certain parts of sovereignty to depend on their common
consent. Thus there is a great difference between saying ' / bind
myself to aid you in this or that war, and to deliberate with you as to
the way of acting against the enemy ; and agreeing thus : ' that neither
of us shall make war or peace except by mutual consent.' I have said
that in these confederations constituting compound states, the parties
subject only some parts of the sovereign power to be exercised by
common consent. For the interests of the confederates can scarcely
be so united together as to make it advantageous to all in general, and
each in particular, to exercise no portion of sovereignty except in
common. And if this were so, they would far better be united in a
single state than bound together by a mere confederation. Each con-
federated state must reserve to itself full power to do as it thinks
proper all that belongs to those parts of sovereignty which are of such
a nature that the other united states have little or no interest, at least
directly, in the way of their exercise. Such, for instance, are treaties
of commerce; the establishment of the imposts necessary for the indi-
vidual wants of the particular state ; the creation of magistrates ; the
laws ; the right of life and death over its own citizens ; its power in
ecclesiastical affairs, and the like ; with regard to which, however,
each state should be careful to do nothing calculated to disturb the
union. The same must be the case regarding ordinary affairs, or
those which do not leave time to consult the other confederates. But
as for those regarding the welfare of the whole body, they must be
decided in a common assembly. Such are especially war, both offen-
sive and defensive, and peace whereby it is terminated. And if any
difference arise among any of the members of a compound state, the
others who are disinterested ought in the first instance to intervene as
mediators, and prevent the disputants from proceeding to hostilities.
If follows from what we have said, that each of the confederated
states has full liberty to exercise as it thinks proper all those parts of
the sovereign power which are not mentioned in the treaty of confede-
ration as powers to be exercised in common."" 1
Pufendorf proposes the question, whether the decision of the
"Pufend. ubi sup. 18. See Bynkershoek, De modis conc'diandi dissentientes pro-
vincias. Quaest. Jur. Publ. lib. 2, cap. 24.
334 OF COMPOUND STATES OR SYSTEMS OF STATES.
common affairs of the confederation depends on the unanimous con-
sent of all the confederates, or whether the opinion of the majority
must be binding on all. He holds that the latter practice may be
followed in an irregular compound state, which is in the nature of a
simple state, that is to say, when several states form a single state :
but that it could not be admitted in a regular body of confederated
states. For, he says, as the liberty of a state is the power of deciding
in the last resort on all matters touching its own preservation, a
state cannot be conceived to be free when another can with authority
compel it to do certain things. The confederates have, it is true,
agreed to exercise in common certain parts of the sovereign power.
But there is a distinction between this and the power of a majority to
compel the others to do that which is not stipulated in the treaty of
confederation. He further explains this point by observing, that the
engagement of several persons to have but one will, proceeds either
from a mere convention or agreement, or from the subjection of the
will of one to that of the other. " The indispensable concurrence of
several wills, which is grounded on a mere convention or agreement,
does not infringe the liberty of which we speak. For either the mode
in which certain affairs are to be administered conjointly has been
beforehand regulated by common consent : or else, if something after-
wards arise to be decided, each party claims to be only bound to give
way to good and sufficient reasons. But when we submit our will to
that of another, and he has thereby obtained an authority over us, he
may oblige us even to things which are displeasing to us." n Pufen-
dorf argues that the rule which gives authority to the plurality of
votes is not here applicable. For it refers to assemblies already con-
stituted, that is to say, simple bodies and not confederations. But he
adds, that if one of the confederates refused with bad faith to agree to
the opinion of the others, and showed unreasonable obstinacy, to the
betrayal of the common cause, it would be lawful to use against him
the means allowed by natural law against violators of treaties and
alliances : or that inconvenient member who troubled the peace of the
society, and who acts so as to ruin it, may be banished from it.
Except in such cases, he adds, there may be great injustice in follow-
ing the rule of the plurality of votes ; as, for example, where some of
the confederated states are more powerful than the others, and thus
they contribute unequally to the public defence. For though they
each contribute in proportion to their means, and thus there is a sort
of equality of contribution, yet it may happen often that the weaker
state is more willing to expose its contingent than the stronger. Thus,
11 Pufend. ubi sup. 20.
OF COMPOUND STATES OR SYSTEMS OF STATES. 335
supposing that one of the states brings to the support of the common
interests as much as all the others together, would it be just that they,
without the consent of that state and against its will, should undertake
any enterprise or other matter, the great expense and burthen of which
would fall on the dissentient ? But, on the other hand, if the number
of votes of each state in the confederation be in proportion to its con-
tribution to the common welfare, this will give to a state so superior in
power an authority over the other confederates. Pufendorf concludes
that if in an assembly of confederated states, affairs are absolutely
decided by plurality of votes, it is not a regular compound state, but
an irregular body, or even one single simple state, and not a confede-
ration. The doctrine of Pufendorf is, that when in a compound state
of this sort anything is to be decided that has not been settled by the
instrument of confederation, the decision must be, not that of a ma-
jority, but unanimous.
" Compound states are dissolved," continues the same writer, " when
some of the confederates detach themselves to govern their affairs
separately. And this usually happens/ because they think the union
more burthensome than useful to themselves. Intestine wars, also,
among the confederates break up the union, unless the confederation
be renewed on the conclusion of peace. As for wars with foreign
powers, when the confederated states have been unsuccessful, the
victor sometimes, as a measure of policy, separates them, and compels
them to remain disunited, each q governed according to its own laws,
as the Romans did with regard to the people of Achaia. Hereupon
it is necessary to remark, that when the common enemy has taken
possession of one of the confederated states, he does not thereby
acquire a right over the others ; and he cannot claim to make them
his conquest, nor even to be received into the confederation, by virtue
of the place occupied therein by the conquered state. He can only
be admitted by a new treaty or convention, as we see in the case of
King Philip of Macedon, who was admitted into the assembly of the
Amphyctions in the place of the Phocians/ in consequence of a deci-
sion of the whole body. For though the union of several states seems
to be by a real, as contradistinguished from a personal confederation,
that is to say, a treaty with the body of the state itself, and not merely
with the sovereign, 5 and a nation, the form of whose government is
changed, does not lose its identity on that account : yet, as the confe-
Pufend. ubi sup. 20.
P Livy, lib. 38, cc. 31, 32.
1 Zenophon, lib. 4, Hellenic, ch. 8, 14, et seq. ; lib. 5, cap. 1, 16, edit Ox.
r Diod. Sicul. lib. 16, cap. 61.
See Pufend. Droit des Gens, liv. 8, ch. 9, 6.
336 OF COMPOUND STATES OR SYSTEMS OF STATES.
deration was made between the nations, considered precisely as so
many distinct states, it follows that when one of them is subjugated,
or becomes a dependency of another state, the confederation no longer
subsists with regard to it. Even if it be stipulated in the treaty that
a change in the form of the government of one of the confederated
states shall not exclude it from the body, such stipulation must be
understood to refer to changes made in a lawful manner, as by the
free consent of the people.* Thus neither an usurper in the nation
itself, nor a foreign conqueror, can claim a place in the general
assembly of the confederated states. A compound state, or system of
states, also becomes a simple state, if all the confederates submit
themselves to the sovereign authority of one man or one assembly ; or
if one of the states, by superiority of power, reduce the others to the
condition of provinces, which usually occurs when the weaker states
confer on the stronger one some permanent pre-eminence, and they
enter into an unequal u confederation, or the same result is produced
if one of the confederates becomes master of the others, by the favour
of the army or the people, or by cabals." x
These reflections on simple confederations or systems of states,
forming together compound states, show that their corporate character
and action are necessarily restricted to certain specified parts of the
sovereign power, which, by their federal constitution, they are to
exercise in common in their sovereign capacity. And these compound
states differ from simple ones, in being societies depending for their
union on contract or convention, and not constituted by means of a
sovereign power, supreme over every member of the body politic. We
have already considered this matter in explaining the connexion of the
jura majestatis with each other; y but it will not be superfluous to add
here the following arguments of Mr. Hamilton, showing the defects
of the confederation of the United States of America, 2 which was
superseded by the constitution.
"The great and radical vice in the construction of the existing
confederation is in the principle of legislation for states or govern-
ments, in their corporate or collective capacities, and as contradistin-
guished from the individuals of whom they consist. Though this
1 The expression used by Pufendorf may seem to imply that no change in the form
of government can lawfully be made except by the free consent of the people. But
this is not so, for the organic laws of states differ greatly in this respect. Thus, an
absolute monarchy may be converted into an aristocracy, and vice versa, without the
concurrence of the people.
u Grotius, 1.1, c. 3, 21, num. 10.
* Pufend. Droit dea Gens, liv. 7, chap. 5, | 21.
y Chap. XXII.
1 Federalist, num. 15, p. 7880.
OF COMPOUND STATES OR SYSTEMS OF STATES. 337
principle does not run through all the powers delegated to the union;
yet it pervades and governs those on which the efficacy of the rest
depends. Except as to the rule of appointment the United States
have an infinite discretion to make requisitions for men and money,
but they have no authority to raise either by regulations extending; to
the individual citizens of America. The consequence of this is, that
though in theory their resolutions concerning those objects are laws,
constitutionally binding on the members of the Union, yet, in practice,
they are mere recommendations, which the states observe or disregard
at their option. It is a singular instance of the capriciousness of the
human mind, that, after all the admonitions we have had from expe-
rience on this head, there should still be found men who object to the
new constitution, for deviating from a principle which has been found
the bane of the old, and which is in itself evidently incompatible with
the idea of a government; a principle, in short, which, if it is to be
executed at all, must substitute the violent and sanguinary agency of
the sword, to the mild influence of the magistracy. There is nothing-
absurd or impracticable in the idea of a league or alliance between
independent nations, for certain defined purposes precisely stated in a
treaty, regulating all the details of time, place, circumstance, and
quantity, leaving nothing to future discretion, and depending for its
execution on the good faith of the parties. Compacts of this kind
exist among all civilized nations, subject to the usual vicissitudes of
peace and war, of observance and non-observance, as the interests or
passions of the contracting powers dictate. In the early part of the
present century there was an epidemical rage in Europe for this species
of compact, from which the politicians of the times fondly hoped for
benefits which were never realized. With a view to establishing the
equilibrium of power, and the peace of that part of the world, all the
resources of negotiation were exhausted, and triple and quadruple
alliances were formed, but they were scarcely formed before they were
broken, giving an instructive but afflicting lesson to mankind, how
little dependence is to be placed on treaties which have no other
sanction than the obligations of good faith, and which oppose general
considerations of peace and justice to the impulse of any immediate
interest of passions. If the particular states in this country are dis-
posed to stand in a similar relation to each other, and to drop the
project of a general discretionary superintendence, the scheme would
indeed be pernicious, and would entail upon us all the mischiefs which
have been enumerated under the first head ; but it would have the
merit of being at least consistent and practicable. Abandoning all
views towards a confederate government, this would bring us to a
simple alliance, offensive and defensive, and would place us in a situa-
z
338 OF COMPOUND STATES OR SYSTEMS OF STATES.
tion to be alternately friends and enemies of each other, as our mutual
jealousies and rivalships, nourished by the intrigues of foreign nations,
should prescribe to us. But if we are unwilling to be placed in this
perilous situation, if we still adhere to the design of a national govern-
ment, or, which is the same thing, of a superintending power, under
the direction of a common council, we must resolve to incorporate
into our plan those ingredients which may be considered as forming the
characteristic difference between a league and a government ; we must
extend the authority of the union to the persons of the citizens, the
only proper objects of government. Government implies the power
of making laws. It is essential to the idea of a law that it be attended
with a sanction, or, in other words, a. penalty or punishment for dis-
obedience. If there be no penalty annexed to disobedience, the reso-
lution or commands which pretend to be laws, will in fact amount to
nothing more than advice or recommendation. This penalty, what-
ever it may be, can only be inflicted in two ways, by the agency of
the courts and ministers of justice, or by military force, by the coercion
of the magistracy, or by the coercion of arms. The first kind can
evidently apply only to men ; the last kind must of necessity be
employed against bodies politic, or communities or states. It is
evident that there is no process of a court by which their observance
of the laws can, in the last resort, be enforced. Sentences may be
denounced against them for violations of their duty, but these sen-
tences can only be carried into execution by the sword. In an asso-
ciation where the general authority is confined to the collective bodies
of the communities that compose it, every breach of the laws must
involve a state of war, and military execution must become the only
instrument of civil obedience. Such a state of things can certainly
not deserve the name of government, nor would any prudent man
choose to commit his happiness to it."
These arguments of the American statesman are in accordance with
the principles of Pufendorf, explained above, and they show the dif-
ference between a system of confederated states, and a federal govern-
ment. The latter species of constitution we must now examine.
Mr. Hamilton 5 comments on the opinion of Montesquieu, recom-
mending a small extent of territory for republics; and he observes,
that that opinion is not opposed to the enlargement of the orbit within
which popular systems of civil government are to revolve, by the con-
solidation of several smaller states into a great confederacy. And he
cites the following passage of Montesquieu, explicitly treating of a
confederate republic, as an expedient for extending the sphere of popu-
* Federalist, num. 9, pp. 45, &c.
OF COMPOUND STATES OR SYSTEMS OF STATES. 339
lar government, and reconciling the advantages of monarchy with
those of republicanism. " It is very probable that mankind would have
been obliged at length to live constantly under the government of a
single person, had they not contrived a kind of constitution which has
all the internal advantages of a republican, together with the external
force of a monarchical government. I mean a confederate republic.
This form of government is a convention, by which several smaller
states agree to become members of a larger one, which they intend to
form. It is a kind of assemblage of societies that constitutes a new
one, capable of increasing by means of new associations, till they
arrive to such a degree of power as to be able to provide for the
security of the united body. A republic of this kind, able to with-
stand an external force, may support itself without any internal corrup-
tion. The form of this society prevents all manner of inconveniences.
If a single member should attempt to usurp the supreme authority, he
could not be supposed to have equal authority and credit in all the
confederate states. Were he to have too great influence over one,
this would alarm the rest. Were he to subdue a part, that which
would remain free might oppose him with forces, independent of those
which he had usurped, and overpower him before he could be settled
in his usurpation. Should a popular insurrection happen in one of the
confederated states, the others would be able to quell it. Should
abuses creep into one part, they are reformed by those that remain
sound. The state may be destroyed on one side, and not on the other ;
the confederacy may be dissolved, and the confederates preserve their
sovereignty. As this government is composed of small republics, it
enjoys the internal happiness of each, and with respect to its external
situation, it is possessed, by means of the association, of all the ad-
vantages of large monarchies." b
These objects of federal government can only be attained by com-
bining the federal principle with that of simple national government
and unity. We must now see how this may be contrived, by refer-
ring to the solution of the problem in the United States of America.
The constitution of that country would, as we have already observed,
be an unlimited democracy, if the sovereign power were not divided
between the States and the Union, which distribution causes a balance
of power. Madison, commenting on this mixed character of the then
proposed American constitution, makes the following observations.
He shows that the act establishing the constitution was a federal, not
a national act. For though the constitution was founded on the assent
b Montesq. Esprit des Loix, liv. 9, ch. 1 ; Story, Comment, on the Constit. of the
United States, vol. 1, ^ 473.
Federalist, numb. 39, pp. 206, &c.
z 2
340 OF COMPOUND STATES OR SYSTEMS OF STATES.
and ratification of the people of America, given by their deputies, yet
such assent and ratification was given by the people, not as individuals,
composing one entire nation, but as composing the distinct and inde-
pendent states to which they respectively belonged. And it was the
result, not of the decision of a majority of the States, but of their
unanimous assent. Here we find the principle laid down by Pufen-
dorf, that a federal act should be unanimous, and should not be merely
that of a majority of the confederates or their representatives. And
Madison accordingly holds, that were the people regarded in that
transaction as forming one nation, the will of the majority of the
people, or of the States, as evidence of the will of the people, would
bind the minority. But, on the contrary, each State, in ratifying the
constitution, was considered as a sovereign body, independent of all
others, and only bound by its own act. d But though this was the
nature of the original act of establishing the constitution, Story shows,
at great length, that the constitution, considered in itself, is not a com-
pact or confederation, but a fundamental law. 6 And in this sense, as
Mr. Webster has said, the constitution declares that it is ordained by
the people of the United States, that is to say, established by the
people of the United States in the aggregate and taken collectively. f
If it were otherwise, the constitution would be, not a law, or as it is
emphatically called, the supreme law of the land, but a compact or
treaty, like the confederation which it superseded.
Madison next regards the constitution, in relation to the sources
from which the ordinary powers of government are derived. And
herein we principally see its mixed character. The House of Repre-
sentatives derives its powers from the people of America, and the
people are represented in the same proportion as to numbers, and on
the same principle, as they are in the legislature of each particular
state. 8 So far the government is national, not federal. The senate,
on the other hand, the members of which are elected by the legis-
latures of the states, derives its powers from the states as political
and co-equal societies; and each state is represented without re-
ference to population, by the same number of senators, i. e. two,
on the principle of equality. So far the government is federal, not
national. 11 And this equal representation of the states in the senate
is a protection to the residuary sovereignty of the smaller states, who
have fewer representatives in the other branch of the legislature.
We come now to the executive power. The immediate part of the
d Federalist, num. 39, p. 207.
e Story, Comment, on the Constit. of the United States, book 3, ch. 3.
f Ibi, 363; Webster, Speeches, 1830, p. 431 ; Elliot, Debates, vol. 4, p. 326.
K Kent, Comment, vol. 1, part 2, lect. 11, pp. 229, 230.
11 Federalist, p. 207 ; Kent, Comment, vol. 1, part 2, lect. 11, pp. 224, 225.
OF COMPOUND STATES OR SYSTEMS OV STATES. 341
election of the President, that is to say, the choice of those who are
to elect him, is made by the states in their political characters. For
the electors are chosen in each state under the direction of the lesris-
O
lature, and their number must be equal to the whole number of senators
and representatives which the state is entitled to send to Congress ;
and so, under the apportionment of Congress, in 1832, the number of
electors was 28 1. 1 The eventual election of the President is made by
that branch of the legislature which consists of the national represen-
tatives ; but in this particular act they are thrown into the form of
individual delegations, from so many distinct and co-equal bodies
politic. k For the person having the greatest number of votes of the
electors for President, is President, if such number be a majority of the
whole number of electors appointed. But in the event of no person
having such majority, then from the persons having the highest
number, not exceeding three, on the list of those voted for as Presi-
dent, the House of Representatives choose immediately (or before
the 4th of March following), by ballot, the President. But in the
choosing the President, the votes of the members of the House of
Representatives are taken by states, the representation from each state
having but one vote. 1 In this case, therefore, the election is partly
federal.
If the United States constitution be viewed with reference to the
operation of the government, it is not federal, but national. For the
powers of the government, in its ordinary and most essential proceed-
ings, operate, not as was the case under the confederation, on the
political bodies composing the confederacy, but on the individual
citizens composing the nation in their individual capacity." 1 In some
cases, however, arid particularly in the trial of controversies, to which
the states may be parties, they must be viewed and proceeded against
in their collective and political capacities."
" But," continues Madison, " if the government be national, with
regard to the operation of its powers, it changes its aspect again, when
we contemplate it in relation to the extent of its powers. The idea
of a national government involves in it, not only an authority over the
individual citizens, but an indefinite supremacy over all persons and
things, so far as they are objects of lawful government. Among a
people consolidated into one nation, this supremacy is completely
vested in the national legislature. Among communities united for
1 Federalist, ibi ; Kent, Comment, ibi, pp. 274, 275.
k Federalist, p. 207.
1 Kent, Comment, ibi, lect. 14, pp. 276, 277.
m Federalist, p. 208; Kent, Comment, vol. 1, lect. 10, p. 213217.
D Federalist, pp. 208, 209.
342 OF COMPOUND STATES OR SYSTEMS OF STATES.
particular purposes, it is vested partly in the general, and partly in the
municipal legislatures. In the former case, all local authorities are
subordinate to the supreme, and may be controlled, directed, or abo-
lished by it at pleasure. In the latter, the local or municipal authori-
ties form distinct and independent portions of the supremacy, no
more subject, within their respective spheres, to the general authority,
than the general authority is subject to them within its own sphere.
In this relation, then, the proposed government cannot be deemed a
national one; since its jurisdiction extends to certain enumerated ob-
jects only, and leaves to the several states a residuary and inviolable
sovereignty over all other objects. It is true, that, in controversies
relating to boundary between the two jurisdictions, the tribunal which
is ultimately to decide, is to be established under the general govern-
ment. But this does not change the principle of the case. The
decision is to be impartially made, according to the rules of the con-
stitution, and all the usual and most effectual precautions are taken to
secure this impartiality. Some such tribunal is clearly essential to
prevent an appeal to the sword, and a dissolution of the compact ; and
that it ought to be established under the general, rather than under the
local governments; or, to speak more properly, that it could be safely
established under the first alone, is a position not likely to be com-
bated."
" If we try the constitution by its last relation to the authority by
which amendments are to be made, we find it neither wholly national
nor wholly federal. Were it wholly national, the supreme and ultimate
authority would reside in the people of the Union ; and this authority
would be competent at all times, like the majority of any national
society, to alter or abolish its established government. Were it wholly
federal, on the other hand, the concurrence of each state in the Union
would be essential to every alteration that would be binding on all.
The mode provided by the plan of the convention is not founded on
either of these principles. In requiring more than a majority, and
The fifth article of the Constitution respects the mode of making amendments to it.
It is in these words: " The Congress, whenever two-thirds of both houses shall deem
it necessary, shall propose amendments to this Constitution, or, on the applicatidh of
the legislatures of two-thirds of the several states, shall call a convention for proposing
amendments, which, in either case, shall he valid to all intents and purposes as part of
this Constitution, when ratified by the legislatures of three-fourths of the several states,
or by conventions in three-fourths thereof, as the one or the other mode of ratification
may be proposed by the Congress ; provided that no amendment which may be made
prior to the year one thousand eight hundred and eight, shall in any manner affect the
first and fourth clauses in the ninth section of the first article ; and that no state, with-
out its consent, shall be deprived of its equal suffrage in the senate." Story, Comment,
vol. 3, 1820.
OF COMPOUND STATES OR SYSTEMS OF STATES. 343
particularly in computing the proportion by states, not by citizens, it
departs from the national and advances towards the federal character;
in rendering the concurrence of less than the whole number of states
sufficient, it loses again the federal and partakes of the national cha-
racter." "The proposed constitution, therefore, even when tested by
the rules laid down by its antagonists, is, in strictness, neither a na-
tional nor a federal constitution, but a composition of both. In its
foundation it is federal, not national ; in the sources from which the
ordinary powers of the government are drawn, it is partly federal and
partly national ; in the operation of these powers, it is national, not
federal ; in the extent of them again, it is federal, not national ; and
finally, in the authoritative mode of introducing amendments, it is
neither wholly federal nor wholly national."
The federal character of the United States constitution depends on
the residuary sovereignty of the states, which is not vested in the
Union. For the constitution of the United States is an instrument
containing the grant of specific powers, and the government of the
Union cannot claim any powers but what are contained in the
grant, and given either expressly or by necessary implication. The
powers vested in the state governments by their respective constitu-
tions, or remaining with the people of the several states, prior to the
establishment of the constitution of the United States, continue un-
altered and unimpaired, except so far as they are granted to the United
States. The people of the United States have declared the constitu-
tion to be the supreme law of the land, and it is entitled to universal
and implicit obedience. Every act of Congress, and every act of the
legislatures of the states, and every part of the constitution of any
state, which is repugnant to the constitution of the United States, is
void. The judicial power of the Union is declared to extend to all
cases in law and equity, arising under the constitution ; and to the
judicial power it belongs, whenever a case is judicially before it, to
determine what is the law of the land. The determination of the
supreme court of the United States, in every such case, must be final
and conclusive, because the constitution gives to that tribunal the
power to decide, and gives no appeal from that decision.?
This right of the courts to pronounce legislative acts void, because
contrary to the constitution, may seem at first to imply a superiority
of the judicial to the legislative power, because in general the authority
which can declare the acts of another void must be superior to the
one whose acts are declared void. q But limitations of the power of a
legislative body or magistrate can in practice be preserved in no other
P Kent, Comment, vol. 1, lect. 15, pp. 312, 313.
i Federalist, num. 78, p. 420.
344 OF COMPOUND STATES OR SYSTEMS OF STATES.
way than by means of the courts of justice. And this doctrine is strictly
in accordance with the principles of Public Law.
The act of a delegated authority, contrary to the commission or
beyond the commission under which it is exercised, is void. There-
fore no legislative act, contrary to the constitution, can be valid.
Dilig enter fines mandati custodiendi sunt ; nam qui excedit, aliud quid
facere videturJ Now the judicial power can declare void the acts of the
legislative power, where those acts are beyond the powers delegated
to the legislature, and therefore in reality not legislative acts, except
in form only. Thus the judicial is not placed above the legislative
power, because the former must obey the valid acts of the latter. The
power of the people is superior to both ; and where the will of the
legislature, declared in its statutes, stands in opposition to that of the
people, declared in the constitution, the judges ought to be governed
by the latter rather than the former. They ought to regulate their
decisions by the fundamental laws, rather than by those which are not
fundamental. 3 As the constitution is the supreme law of the land, in
a conflict between that and the laws, either of Congress or of the
States, it becomes the duty of the judiciary to follow that only which
is of paramount obligation. 1
It was urged, when the constitution was under discussion, that the
legislative body were themselves the constitutional judges of their own
powers. But this doctrine is at variance with the spirit of a constitu-
tion granting specific powers, and thereby limiting the authority of
the legislature. For that body would not be fitting tribunal to judge
of restrictions on itself; and it would have a natural tendency to
enlarge its own power and narrow that of the state legislatures. It is
far more reasonable that the courts should be an intermediate body
between the people and the legislature, in order, among other things,
to keep the latter within the limits assigned to their authority. Be-
sides, the interpretation of the laws is the proper and peculiar province
of the courts ; and a constitution is in fact, and must be regarded
by the judges as, a fundamental law.
The principle of Public Law, regarding' the power of the United
States government, is thus laid down by Mr. Hamilton : " A govern-
ment ought to contain in itself every power requisite to the full
accomplishment of the objects committed to its care, and the complete
execution of the trusts for which it is responsible ; free from every
other control, but a regard to the public good and to the sense of the
1 L. 5, ff. Mandati; Voet ad Pand. lib. 17, tit. 1, 11.
Federalist, p. 422.
1 Story, Comment, vol. 3, 1570; Federalist, num. 78, 80-82; Marbury v.
Madison, 1 Cranch, 137.
OF COMPOUND STATES OR SYSTEMS OF STATES. 345
people."" Therefore, the powers of Congress extend generally to all
subjects of a national nature. Congress are authorized " to provide
for the common defence and general welfare, and for that purpose,
among other express grants, they are authorized to lay and collect
taxes, duties, imposts and excises ; to borrow money on the credit of the
United States ; to regulate commerce with foreign nations, and among
the several states, and with the Indian tribes; to declare war and
define offences against the law of nations ; to raise, maintain and govern
armies, and a navy ; to organize, discipline and arm the militia; and
to give efficacy to all the powers contained in the constitution. Some
of these powers, as the levying of taxes, duties and excises, are con-
current with similar powers of the several states, but in most cases
these powers are exclusive, because the concurrent exercise of them
by the states separately would disturb the general harmony and peace,
and because they would be apt to be repugnant to each other in prac-
tice, and tend to dangerous collisions."-" A concurrent jurisdiction in
the article of taxation is the only admissible substitute for an entire
subordination, in respect to this branch of power, of state authority to
that of the Union/ But the constitution provides that no state "shall
enter into any treaty, alliance or confederation; grant letters of marque
or reprisal ; coin money; emit bills of credit; make anything but gold
and silver coin a tender in payment of debts ; pass any bill of attain-
der, ex post facto law, or law impairing the obligation of contracts; or
grant any title of nobility. No state shall, without the consent of
Congress, lay any imposts or duties on imports or exports, except
what may be absolutely necessary for executing its inspection laws,
nor lay any duty on tonnage, keep troops or ships of war in time of
peace, enter into any agreement or compact with another state, or with
a foreign power, or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay.*" With regard to the
President, his chief powers are these; he is commander in chief of the
army and navy of the United States, and of the militia of the several
states when called into the service of the Union. a He has the power,
by and with the advice and consent of the senate, to make treaties,
provided two-thirds of the senators present concur. b He is the effi-
cient power in the appointment of the officers of the government.
He is to nominate, and, with the advice and consent of the senate, to
Federalist, num. 31, pp. 159, 160.
x Kent, Comment, vol. 1, lect. 11, p. 237.
>" Federalist, numb. 34, p. 175 ; and see numb. 30, 31.
L Constitution, art. 1, sect. 10; Kent, Comment, vol. 1, lect. 19, p. 407.
Constitution, art. 2, sect. 2.
b Art. 2, sect. 2.
346 OF COMPOUND STATES OR SYSTEMS OP STATES.
appoint ambassadors, or public ministers and consuls, the judges of
the supreme court, and all other officers whose appointments are not
otherwise provided for in the constitution ; but Congress may vest the
appointment of inferior officers in the President alone, in the courts of
law, or in the heads of departments. And, as I have already ex-
plained, the President has a qualified negative on the acts of the Con-
gress. 11 As for the judicial power of the Union, its extent is in ac-
cordance with the political axiom laid down by Kent that " the judi-
cial power of every well constituted government must be co-extensive
with the legislative power, and must be capable of deciding every ju-
dicial question which grows out of the constitution and laws. 6 "
It would be beyond the scope of these Commentaries to examine the
reasons of the provisions of the American constitution thus briefly
stated. We have dwelt chiefly on those portions which show how a
form of polity partly federal and partly national or simple is con-
structed. That sort of constitution is peculiarly adapted to a country
the vast extent of which renders something more than a provincial
government requisite for the parts distant from the capital, or seat of
central power, and composed of communities originally separate, and
having a strong feeling of corporate individuality and local patriotism.
And it affords remarkable facilities for the acquisition of territory by
the annexation of new states. For these are more willing to join in a
confederation leaving to them a residuary sovereignty, with all the
privileges of citizenship in a great nation, than they would be to
become provinces, in any sense of the word, of a kingdom or republic.
Yet this form of civil polity is liable to the defects arising from the
complex nature of its machinery, and it has not that vigour and
energy in the executive department which can only be secured by
unity and simplicity, and which an American statesman has pronounced
to be a leading character in the definition of good government/ These
inconveniences arise from principles of public law already explained.
The executive power divided between the President and the chief
magistrates of the States, especially presents a difficulty in the struc-
ture of this government. And this shows the still greater and perhaps
insurmountable difficulty of a mixed confederate government com-
posed of monarchical states. For the very nature of the regal office
would cause a spirit of independence of, or opposition to, the autho-
rity of the Union, and destroy the harmony of the system, so as .to
paralyze its action. And indeed it is questionable whether this form
c Art. 2, sect. 2.
d Art. 1, sect. 7. And see above, pp. 315, 316.
e Kent, Comment, vol. 1, lect. 15, p. 328.
' Federalist, pp. 378, 379.
OF COMPOUND STATES OR SYSTEMS OF STATES. 347
of government can be constructed on any other than republican prin-
ciples.
The steam engine and the electric telegraph tend to diminish the
use and value of federalism, by facilitating intercourse, and connecting
different places and communities together; and these means, as well
as the progress of civilization, naturally diminish or extinguish local
pride, and exclusive national or municipal feelings, which are the great
obstacles to a central authority. And, indeed, the tendency of our
times is often too strongly towards what is called centralization, which
if carried beyond what the unity and vigour of government, and the
benefits of uniformity, regularity, and economy require, is liable to
many grave inconveniences.
CHAPTER XXVIII.
THE PUBLIC LAW OF THINGS.
Double Aspect of the Law of Things Distinction between the Public and Private
Law of Things The Four Classes of Things not Private, according to Justinian
Domat's general View of the Public Law of Things Things common to all Men
Common Right over Rivers The Common Rights of Mankind over the High Seas,
and the Freedom of the Seas Appropriation of Parts of the Sea Jurisdiction over
Ships, and Right of Search Public Things Rivers, Ports, Shores of the Sea, and
Banks of Rivers Territories of a State Uninhabited and partly inhabited Countries
and Land Hunting Ground of Savage Tribes Effect of the Change of the Course
of Rivers which are Boundaries Law regarding Alluvion or Alluvial Accretions
Lakes Acquisition of Territories by Occupancy Analysis of the Property of a
Nation Public Property Imposts and Taxes Dominium eminens Res unitersi-
tatis The Property of Bodies Corporate Res nullius Ecclesiastical Things
Conclusion.
THE use of all things in the world has some relation to the order and
economy, or interests of society and the commonwealth ; and if the
second of the three great divisions of law, that is to say, the law of
things, be regarded under this aspect, the whole of it may seem to be
within the scope of Public Law, both universal and municipal. Thus,
as we have seen, there are many laws in different countries regulating
private property, settlements, wills, and successions, which have a
direct relation to the political laws of the state and the form of the
civil polity. And judicial decisions on questions of private right are
348 THE PUBLIC LAW OF THINGS.
sometimes grounded on reasons of public policy. 5 A bad law regard-
ing private property may diminish the wealth and power of the whole
community, or affect its peace, morality, and good order. And though
every citizen has a right to manage and dispose of his property as he
thinks fit, yet this right is subject to such regulations and laws as the
public welfare requires. But, on the other hand, care should be taken
not to restrain the people unnecessarily in the management of their
affairs, as this would be contrary to the public good and the just
liberty of the citizen. h These reflections on the double aspect of laws
and their relation to society in general and the commonwealth, even
when their direct object is of a private nature, are not without impor-
tance in the science of legislation. The reason of this connexion
between public and private law is, that all laws are, as we have shown,
or ought to be, consequences, either direct or indirect, of the two fun-
damental laws on which society is built; those of the former sort being
immutable rules of equity necessary for the order of society, while the
laws of the latter kind are positive laws, the justice of which depends
on their fitness and adaptation to that order and the particular circum-
stances of the commonwealth to which they belong.
Thus the spirit of the whole law of things has this public element,
because of the relation which their use bears to society, and the way
in which the laws regulating them spring from the two fundamental
laws of society. And we have seen that the second of the two classes
of engagements by which man is destined to society, includes all those
engagements which connect persons together, and are formed in divers
ways by the several communications which pass among men of their
labour, of their industry, and of all sorts of offices, services, and other
assistances, or by those which relate to the use of things. And this
includes all the different uses of arts, of employments, and of profes-
sions of all kinds, and everything else that may link persons together,
according to the several wants of life, whether by free and gratuitous
J / O
communications, or by commerce. 1 So the use of things is one of
the foundations of society. And the law regarding that use chiefly
belongs to secondary natural law. k We must now show the distinc-
tion between public and private law in the law of things.
8 2 Barn. & Aid. 287; 5 Barn. & Aid. 287; 3 Barn. & Cress. 156; 3 Bing. 538;
5 Bing. 169; Cas. temp. Talb. 142; 3 P. W. 393, 394 ; 1 Atk. 352; 2 Atk. 136 ;
Ambl. 235 ; 2 Anstr. 539;- 4 Bro. C. C. 124; 3 Madd. 114; 1 Sch. & Lef. 312;
2 Ball & B. 478 ; Lawton v. Lawlon, 3 Atk. 16 ; Egerton v. Brownlow, 4 House of
Lords Cas. 1.
h Vattel, Droit des Gens, liv. 1, cli. 20, 254, 255 ; Inst. lib. 1, tit. 8, 2.
1 Domat, Loix Civiles, Traite des Loix, ch. 2, 3.
k L. 5, ff. De Just, et Jur.
THE PUBLIC LAW OF THINGS. 349
Justinian thus classifies things with reference to the nature of their
appropriation. " They are either in the patrimony of some one (in
nostro patrimonio), or not in the patrimony of any one (extra patri-
monium nostrum}. For some things are common to all men by natural
law, some are public, some belong to corporate or politic bodies (res
universitatis), some belong to no one (res nullius}, many to individuals,
and those are acquired in divers ways." ' We must apply to this
classification of things the principle of the law of Ulpian describing
public law. Publicum jus est, quod ad statum rei Romanae special:
privatum quod ad singulorum utilitatem : sunt enim qucedam publice
utilia, quadam privatim. Publicum jus in sacris, in sacerdotibus, in
magistratibus consistit. m
Four classes of things are, as appears from the extract given above,
mentioned by Justinian as not private property, or extra nostrum
patrimonium, that is to say I. Res jure naturali communia omnium:
II. Res publica : III. Res universitatis : and IV. Res nullius. Hav-
ing given this outline of the subject, and before entering into the
explanation of these heads, we will see how Domat takes a general
and comprehensive view of the law of things in Public Law.
" Having explained in the preceding titles that which relates to the
general order of the government, we shall explain in this the general
policy of certain things which are of common use to this society, and
which it is necessary to distinguish from those which every person
may consume for his own private use. In order to distinguish these
sorts of things from all others, and to understand rightly the policy of
their use, it is necessary first to observe that there is nothing in the
world which God has not created for the use of man, and that every
thing in it is proportioned to his nature, and to his wants; so that we
see in the structure of the world, and in the order and beauty of every
thing contained in the earth and in the heavens, the dignity of man,
for whom all these things have been made, and the relation which all
this great fabric of the universe hath to his use, and to his wants.
And in this infinite multitude of things of all kinds, with which we are
environed in this world, it is necessary to distinguish two different
sorts of them, and two different manners of the use which God gives
us of them. The first of these two sorts of things is of those which
are so necessary that no body can live without having a free and
continual use of them, such as the air and light; and it is because of
1 Instit. lib. 2, tit. 1, princip. ; Voet ad Pand. lib. 1, tit. 8, 1.
m L. 1, 2, ff. De Just, et Jur.
" Deut. iv. 19; Psalm viii. ; Gen. i. 26; Heb. ii. 7. See Domat, Treatise of Laws,
ch. 1, num. 3.
350 THE PUBLIC LAW OF THINGS.
this necessity that the air encompasses the whole earth, which is the
habitation of mankind, and that it is penetrated by the light which
comes from the heavens, so that nobody can be deprived of the use of
the air, and of the light, unless condemned to lose his life. And as to
the manner of this use, as it is of a continual necessity it is likewise so
easily to be had, that it does not require any industry or labour ; and
every one has his proper use of these things, independently of the will
of all others. Thus the government has nothing to regulate in this
matter. It can only take precautions to keep the air pure, and forbid
the throwing out or exposing anything in the public places which may
infect it and render it unwholesome. The second sort of things is of
those which are necessary to men for food, raiment, for habitation, and
all other sorts of wants, which takes in the earth, the waters, and every
thing they bear and bring forth, grain, fruits, plants, animals, metals,
minerals, and all other things. And as for the manner of using all
these things, it is distinguished from the manner of using the air and
light, in that all those other things come to our use only by the means
of some labour and industry, either in procuring them or in fitting
them for the use that is to be made of them. It is for this use of this
second kind of things, that seeing they are all necessary in the society
of mankind, and cannot be had and put to any use, except by ways
which demand different ties and intercourses among mankind, not only
from one part of a kingdom to another, but from one country to
another, and between nations that lie the most remote from one
another, God has taken care by the order of nature, and men by the
civil policy, to facilitate the said intercourses. Thus it is by nature,
that one of the uses which God has given to the seas, and to rivers, is
that of opening ways of communication with all the countries in the
world by navigation. And it is by means of the civil policy that towns
and other places have been built, where men assemble together, and
have intercourse with one another by means of streets, market places,
and other public places proper for that purpose ; and that the inhabit-
ants of every town, every province, every kingdom, may have inter-
course with all other persons, of what country soever, by the means of
highways. Thus, for all these intercourses by land and water, it has
been necessary to establish rules by this policy; and these rules shall
make a part of the subject-matter of this title. As for the other rules
of this title, it is to be remarked, that, besides this use of the seas and
rivers, for the intercourse of men, they have another use, which is like-
wise naturally common to all men, that of fishing. The surface of the
earth gives likewise naturally to men the use of hunting, especially
in the woods and forests, which have, moreover, another use of much
THE PUBLIC LAW OF THINGS. 351
greater importance for the common good, by the great advantage the
public draws from the use of timber for building houses and ships, for
warlike engines, for the artillery, for bridges, for the construction of
public edifices, churches, palaces, and others. It is because of these
uses that the ordinances in France have established a policy, not only
in relation to the king's forests, and those belonging to churches, and
to all sorts of communities, but also to those which belong to private
persons, that they may be preserved for the said uses as occasion shall
offer. And as to what concerns the use of hunting and fishing, in
which the liberty granted by the Roman Law was much greater than
is allowed by ours; seeing this liberty, given to all persons without
distinction, would be attended with many inconveniences, whether it
were by diverting people from their occupation, and encouraging idle-
ness, or by occasioning quarrels between those who should hunt or fish
in the same place, or because of the damage that would accrue to the
public by fishing and hunting in certain seasons of the year, or with
certain tackle and in certain manners which would destroy the wild
animals and the fish, it has been thought reasonable to provide against
them ; and the civil policy in France has set bounds to this liberty by
several ordinances, which regulate to whom the liberty of hunting and
fishing is permitted ; which prohibit the use of it in certain manners
and certain seasons, and give other particular directions therein."?
Some portions of this extract refer to the internal Public Law of
France before the first revolution ; but it gives a good general view of
the connexion of the various matters which are the subject of the Pub-
lic Law of things, and their different uses, which show the spirit of the
laws regarding them. Those laws are of two sorts, that is to say,
arbitrary laws, of which the municipal law of all countries presents a
vast extent and detail; and others, coming within a narrower compass,
and which are part of the law of nature, and contain the principles of
all the rest. q We may gather from these reflections of Domat, that
those things are the subject matter of Public Law, the uses of which
have a direct reference to the service or advantage of society in general,
or of some particular civil community. And this is in accordance with
the law of Ulpian already cited, where he says, sunt enim qucedam
publice ntilia, qucedam privatim. Yet we shall see that many of those
L. 13, 7, ff. De injur. ; Instil. 2, Ue rerum divis. ; 1. 1, 1, ff. De acquir.
rer. domin.; Instit. 12, De rer. divis.; 1. 1, 1, ff. De acquir. vel amitt. possess.;
1. 3, 55, ff. De acquir. rer. dom. ; 1. 2, 9, ff. Ne quid in loco publ. ; 1. 13, 7, ff.
De injur.
P Domat, Droit Publ. liv. 1, tit. 8. I have given Dr. Strahan's translation, 1722.
1 Domat, ibi.
352 THE PUBLIC LAW OF THINGS.
things are devoted to the public service and advantage, so that their
use is for the benefit of private persons also/ We will now consider
the four heads under which Justinian places things extra patrimonium.
And, first, of things common to all men.
Both Grotius and Pufendorf deduce the appropriation of things
which must have been originally common to all men, from the very
constitution and organic laws and necessities of the social state ; and
such appropriation is, as we have already observed, necessary, not only
for the use and enjoyment of things, but for the peace of society, and
the very existence of arts, agriculture, and every branch of industry. 8
But it follows from these very principles, that those things, the exclu-
sive appropriation of which, either to a portion of mankind or to cer-
tain individuals or exclusive purposes, is unnecessary for the objects of
the social state, and the purposes above referred to, must remain by
natural law common to all men, as they are evidently intended to be.
Thus light and air cannot be brought under the exclusive power of any
one person, for their use is common to all, and no kind of exclusive
appropriation is requisite for their full enjoyment. They are, therefore,
not divided among a number of owners as other things are.
On the same principles, the Roman Law holds running waters to be
common to all men. 1 But this decision does not apply to waters, the
exclusive appropriation of which is necessary for certain purposes, such
as water inclosed in a pipe or vessel for some particular use. The
common right to running water, therefore, exists only in those cases
where the quantity of water is so great that its entire exclusive appro-
priation is not necessary, having regard to the general objects of the
institution of property." In such cases as these, to prevent any man
from using and appropriating to himself portions of the water without
injuring the common right and enjoyment of others r would be contrary
to natural law. x
Grotius, however, holds that rivers are capable of being subject to
a qualified right of property. He argues that liquids have no boun-
daries of their own nature, for a liquid must be limited in its extent by
something differing from it in nature, that is to say, some solid. y Now
r Donelli Comment. De Jur. Civ. lib. 5, cap. 5, 13.
* Grot. Droit de la Guerre, liv. 2, ch. 2, 2 ; Pufend. Droit des Gens, liv. 4, ch. 4 ;
M'Culloch, Princip.of Polit. Econ. ch. 2, 2, pp. 82, 90.
4 Instil, lib. 2, tit. 1, 1.
u Grot. Droit de la Guerre, liv. 2, ch. 2, 3. And see the whole of Chap. V. of
the 6th book of Pufend. Droit des Gens, with Barbeyrac's notes.
* Grot, ibi, 12.
y See Co. Litt. 4 a; Blackst. Com. b. 2, ch. 2, p. 18, edit. Coleridge.
THE PUBLIC LAW OF THINGS. 353
a river is bounded in its breadth, though not in its length, for the
water flows between its banks. Therefore, though it may be con-
sidered as one body of moving water, yet the particles of which that
body is composed remain the property of whoever is owner of the
banks and bed only while they are within those bounds. 2 This is
what in the English law and the writings of jurists is called transient
or qualified property. It is also qualified regarding the matter in
question by the rule of natural law, that no man can without injus-
tice prevent another from using that which is of such a nature that all
men may use it without injury to each other and with equal advantage
to each. 3 Thus the owner of a river or part of it could not justly
forbid persons navigating it or being lawfully on its banks, from
drinking and otherwise using portions of the water without any injury
to his rights and enjoyment of the stream. The same principles
explain the rule cujus est solum, ejus est usque ad cesium, adopted by
the English from the civil law. b It was observed by Lord Ellen-
borough, that if it were trespass to interfere with a column of air
superincumbent on a close, an action of trespass might be brought
against an aeronaut by the owner of every field over which he passed
in his balloon. Barbeyrac, in his notes on Grotius, shows that air
is susceptible of being subjected to a qualified right of property
analogous to that over running water, so far as exclusive appropriation
is essential to the enjoyment of rights over other things.' 1 The same
doctrines hold good as to light, portions of which may be subjected to
a transient right of property as accessory to the enjoyment of other
property.
These principles will assist us to comprehend the great and celebrated
question of the nature of the common rights of mankind over the high
seas. The following passage from Vattel gives so good a view of the
subject that its length will not be regretted.
" The open sea is not of such a nature as to admit the holding pos-
session of it, since no settlement can be formed on it so as to hinder
others from passing. But a nation powerful at sea may forbid others
to fish in it and to navigate it, declaring that she appropriates to
herself the dominion over it, and that she will destroy the vessels that
1 Grot, ubi sup. ; and see 1. 2, ch. 3, 7, &c. ; Vinnii Comment, ad Instit. lib. 2,
tit. 1, 2, num. 2.
Grot, ibi, liv. 2, ch. 2. 11.
b L. 21, 2, ff. Quod vi aut clam.
c Pickering v. Rudd, 4 Campb. 219.
d Grot. Droit de la Guerre, liv. 2, ch. 2, 3, note 3,4; Pufend. Devoir de I'Homme
et du Cit. liv. 1, ch. 12, 6, Barbeyrac; and 4, note 2.
A A
354 THE PUBLIC LAW OF THINGS.
shall dare to appear in it without her permission. Let us see whether
she has right to do this."
" It is manifest that the use of the open sea, which consists in navi-
gation and fishing, is innocent and inexhaustible ; that is to say, he
who navigates or fishes in the open sea, does no injury to any one,
and the sea, in these two respects, is sufficient for all mankind. Now
nature does not give to man a right of appropriating to himself things
that may be innocently used, and that are inexhaustible and sufficient
for all. For since those things, while common to all, are sufficient to
supply the wants of each, whoever should, to the exclusion of all par-
ticipants, attempt to render himself sole proprietor of them, would
unreasonably wrest the bounteous gifts of nature from the parties
excluded. The earth no longer furnishing without culture the things
necessary or useful to the human race, who were extremely multiplied,
it became necessary to introduce the right of property, in order that
each might apply himself with more success to the cultivation of what
had fallen to his share, and multiply by his labour the necessaries and
conveniences of life. It is for this reason the law of nature approves
the rights of dominion and property, which put an end to the primitive
manners of living in common. But this reason cannot apply to things
which are in themselves inexhaustible ; and consequently it cannot
furnish any just grounds for seizing the exclusive possession of them.
If the free and common use of a thing of this nature were prejudicial
or dangerous to a nation, the care of their own safety would authorize
them to reduce that thing under their own dominion, if possible, in
order to restrict the use of it by such precautions as prudence might
dictate to them. But this is not the case with the open sea, on which
people may sail and fish without the least prejudice to any person
whatsoever, and without putting any one in danger. No nation, there-
fore has a right to take possession of the open sea, or claim the sole
use of it, to the exclusion of other nations. The kings of Portugal
formerly arrogated to themselves the empire of the seas of Guinea and
the East Indies,* but the other maritime powers gave themselves little
trouble about such a pretension."
" The right of navigating and fishing in the open sea being then a
right common to all men, the nation that attempts to exclude another
from that advantage does her.an injury, and furnishes her with suffi-
cient grounds for commencing hostilities, since nature authorizes a
nation to repel an injury, that is, to make use of force against whoever
would deprive her of her rights."
e See Grotius, Mare Liberum, and Selden, Mare Clausum, lib. 1, cap. 17.
THE PUBLIC LAW OF THINGS. 355
" Nay, more, a nation which, without a legitimate claim, would
arrogate to itself an exclusive right to the sea, and support its preten-
sions by force, does an injury to all nations ; it infringes their common
right ; and they are justifiable in forming a general combination against
it, in order to repress such an attempt. Nations have the greatest
interest in causing the law of nations, which is the basis of their tran-
quillity, to be universally respected. If any one openly tramples it
under foot, they all may and ought to rise up against him ; and, by
uniting their forces to chastise the common enemy, they will discharge
their duty towards themselves and towards human society, of which
they are members (Prelim, s. 22). However, as every one is at liberty
to renounce his right, a nation may acquire exclusive rights of naviga-
tion and fishing, by treaties, in which other nations renounce, in its
favour, the rights they derive from nature. The latter are obliged to
observe their treaties; and the nation they have favoured has a right
to maintain by force the possession of its advantages. Thus the
House of Austria has renounced, in favour of England and Holland,
the right of sending vessels from the Netherlands to the East Indies.
In Grotius, De Jure Belli et Pacis, lib. 2, cap. 3, s. 15, may be
found many instances of similar treaties." f
" As the rights of navigation and of fishing, and other rights which
may be exercised on the sea, belong to the class of those rights of
mere ability (jura merce facultatis) which are imprescriptible (s. 95),
they cannot be lost for want of use. Consequently, although a nation
should happen to have been from time immemorial in sole possession
of the navigation or fishery in certain seas, it cannot, on this founda-
tion, claim an exclusive right to those advantages. For though others
have not made use of their common right to navigation and fishery in
those seas, it does not thence follow that they have had any intention
to renounce it ; and they are entitled to exert it whenever they think
proper."
" But it may happen that the non-usage of the right may assume
the nature of a consent or tacit agreement, and thus become a title in
favour of one nation against another. When a nation that is in pos-
session of the navigation and fishery in certain tracts of sea, claims an
exclusive right to them, and forbids all participation on the part of
other nations, if the others obey that prohibition with sufficient marks
of acquiescence, they tacitly renounce their own right in favour of that
nation, and establish a new right, which she may afterwards law-
fully maintain against them, especially when it is confirmed by long
use."
f See Grot. Droit de la Guerre, liv. 2, ch. 3, 15 ; and see the notes by Barbeyrac.
A A2
356 THE PUBLIC LAW OP THINGS.
" The various uses of the sea near the coasts render it very suscep-
tible of property. It furnishes fish, shells, pearls, amber, &c. Now,
in all these respects its use is not inexhaustible ; wherefore the nation
to whom the coast belongs may appropriate to themselves, and convert
to their own profit, an advantage which nature has so placed within
their reach as to enable them conveniently to take possession of it, in
the same manner as they possessed themselves of the dominion of the
land they inhabit. Who can doubt that the pearl fisheries of Bahrem
and Ceylon may lawfully become property; and though, where the
catching of fish is the only object, the fishery appears less liable to be
exhausted ; yet if a nation have on their coast a particular fishery of a
profitable nature, and of which they may become masters, shall they
not be permitted to appropriate to themselves that bounteous gift of
nature, as an appendage to the country they possess, and to reserve to
themselves the great advantages which their commerce may thence
derive in case there be sufficient abundance of fish to furnish the
neighbouring nations. But if, so far from taking possession of it, the
nation has once acknowledged the common right of other nations to
come and fish there, it can no longer exclude them from it; it has left
that fishery in its primitive freedom, at least with respect to those who
have been accustomed to take advantage of it. The English not
having originally taken exclusive possession of the herring fishery on
their coasts, it is become common to them with other nations.
"A nation may appropriate to herself those things of which the free
and common use would be prejudicial or dangerous to her. This is a
second reason for which governments extend their dominion over the
sea along their coasts, as far as they are able to protect their right.
It is of considerable importance to the safety and welfare of the state,
that a general liberty be not allowed to all comers to approach so near
their possessions, especially with ships of war, as to hinder the ap-
proach of trading nations, and molest their navigation. During the
war between Spain and the united provinces, James I., king of
England, marked out, along his coasts, certain boundaries within
which he declared that he would not suffer any of the powers at war to
pursue their enemies, nor even allow their armed vessels to stop and
observe the ships that should enter or sail out of the ports. 8 These
parts of the sea, thus subject to a nation, are comprehended in her
territory, nor must any one navigate them without her consent. But
to vessels that are not liable to suspicion, she cannot, without a breach
of duty, refuse permission to approach for harmless purposes, since it is
a duty incumbent on every proprietor to allow to strangers a free pas-
* Selden's Mare Clausum, lib. 2.
THE PUBLIC LAW OF THINGS. 357
sage, even by land, when it may be done without damage or danger.
It is true, that the state itself is sole judge of what is proper to be
done in every particular case that occurs; and if it judge amiss it is
to blame; but the others are bound to submit. It is otherwise, how-
ever, in case of necessity ; as, for instance, where a vessel is obliged
to enter a road which belongs to you, in order to shelter herself from
a tempest. In this case, the right of entering wherever we can, pro-
vided we cause no damage, or that we repair any damage done, is, as
we shall show more at large, a remnant of the primitive freedom, of
which no man can be supposed to have divested himself, and the
vessel may lawfully enter in spite of you, if you unjustly refuse her
permission."
" It is not easy to determine to what distance a nation may extend
its rights over the sea by which it is surrounded. Bodinus h pretends
that, according to the common right of all maritime nations, the
prince's dominion extends to the distance of thirty leagues from the
coast. But this exact determination can only be founded on a general
consent of nations, which it would be difficult to prove. Each state
may, on this head, make what regulations it pleases, so far as respects
the transactions of the citizens with each other, or their concerns
with the sovereign; but between nation and nation, all that can rea-
sonably be said is, that in general the dominion of the state over the
neighbouring- sea extends as far as her safety renders it necessary, and her
power is able to assert it; since, on the one hand she cannot appro-
priate to herself a thing that is common to all mankind, such as the
sea, except so far as she has need of it for some lawful end ( 281),
and, on the other, it would be a vain and ridiculous pretension to
claim a right which she were wholly unable to assert. The fleets of
England have given room to her kings to claim the empire of the
seas which surround that island, even as far as the opposite coasts. 1
Selden relates a solemn act, j by which it appears that, in the time of
Edward I. that empire was acknowledged by the greatest part of the
maritime nations of Europe; and the Republic of the United Provinces
acknowledged it, in some measure, by the treaty of Breda, in 1667, at
least so far as related to the honour of the flag. But solidly to establish
a right of such extent, it were necessary to prove very clearly the ex-
press or tacit consent of all the powers concerned. The French have
h In his Republic, book 1, cli. 10; Grot. Droit de la Guerre, liv. 2, ch. 3, 10,
num. 2 ; Wolf, Jus Gent. $ 129132. Lord Stowell held, that for the sea out of
reach of cannon shot, common use is presumed. The Twee Gebroeders, 3 Rob. Rep.
336; Kent, Com. vol. 1, lect. 2, p. 29.
1 See Selden 's Mare Clausum.
i Ibi, lib. 2, cap. 28.
358 THE PUBLIC LAW OF THINGS.
never agreed to this pretension of England, and in that very treaty of
Breda just mentioned, Louis XIV. would not even suffer the channel
to be called the English Channel or the British Sea. The Republic of
Venice claims the empire of the Adriatic; and every body knows the
ceremony annually performed upon that account. In confirmation of
this right, we are referred to the examples of Uladislaus, king of
Naples, of the emperor Frederic III., and of some of the kings of
Hungary, who asked permission of the Venetians for their vessels to
pass through that sea. k That the empire of the Adriatic belongs to
the Republic to a certain distance from her own coasts, in the places
of which she can keep possession, and of which the possession is im-
portant to her own safety, appears to me incontestable; but I
doubt very much whether any power is at present disposed to acknow-
ledge her sovereignty over the whole Adriatic sea. Such pretensions
to empire are respected as long as the nation that makes them is able
to assert them by force ; but they vanish of course on the decline of
her power. At present the whole space of the sea within cannon shot
of the coast is considered as making a part of the territory; and for
that reason, a vessel taken under the cannon of a neutral fortress is
not a lawful prize."
" The shores of the sea incontestably belong to the nation that pos-
sesses the country of which they are a part, and they belong to the
class of public things. If civilians have set them down as things
common to all mankind (res communes), it is only in regard to their
use ; and we are not thence to conclude that they considered them as
independent of the empire. The very contrary appears from a great
number of laws. Ports and harbours are manifestly an appendage to
and even a part of the country, and consequently are the property of the
nation. Whatever is said of the land itself will equally apply to them,
so far as respects the consequences of the domain and of the empire."
"All we have said of the parts of the sea near the coast may be said
more particularly, and with much greater reason, of roads, bays, and
straits, as still more capable of being possessed, and of greater import-
ance to the safety of the country. 1 But I speak of bays and straits of
small extent, and not of those great tracts of sea to which these names
' ~
are sometimes given, as Hudson's Bay and the Straits of Magellan,
over which empire cannot extend, and still less can a right of property.
"A bay whose entrance can be defended maybe possessed, and ren-
dered subject to the laws of the sovereign; and it is of importance that
it should be so, since the country might be much more easily insulted
k See ibi, lib. 1, cap. 16.
1 See the Treaty of the Dardanelles, 1841 ; Wheaton, Hist, of the Law of Nations,
p. 585. And see Martens, Droit des Gens, liv. 2, ch. 1, 42.
THE PUBLIC LAW OF THINGS. 359
in such a place than on a coast that lies exposed to the winds and the
impetuosity of the waves."
" It must be remarked with regard to straits, that when they serve
for a communication between two seas, the navigation of which is
common to all or several nations, the nation which possesses the
strait cannot refuse the other a passage through it, provided that
passage be innocent, and attended with no danger to herself. By
refusing it without just reasons, she would deprive those nations of an
advantage granted them by nature ; and, indeed, the right to such a
passage is a remnant of the primitive liberty enjoyed by all mankind.
Nothing but the care of his own safety can authorize the owner of
the strait to make use of certain precautions, and to require certain
formalities, commonly established by the customs of nations. He has
a right to levy a moderate tax on the vessels that pass, partly on
account of the inconvenience they give him by obliging him to be on
his guard ; partly as a return for the safety he procures them, by pro-
tecting them from their enemies, by keeping pirates at a distance, and
by defraying the expense attendant on the support of lighthouses, sea-
marks, and other things necessary to the safety of mariners." 1 Thus
the king of Denmark requires a custom at the straits of the Sound.
Such right ought to be founded on the same reasons, and subject to
the same rules, as the tolls established on land or on a river. ( 103
and 104.)"
" It is necessary to mention the right to wrecks a right which was
the wretched offspring of barbarism, and which has almost everywhere,
fortunately, disappeared with its parent. Justice and humanity cannot
allow of it, except in those cases only where the proprietor of the
effects saved from a wreck cannot possibly be discovered. In such
cases those effects belong to the person who is the first to take pos-
session of them, or to the sovereign, if the law reserves them for him."
" If a sea is entirely inclosed by the territories of a nation, and has
no other communication with the ocean than by a channel, of which
that nation may take possession, it appears that such a sea is no less
capable of being occupied, and becoming property, than the land-; and
it ought to follow the fate of the country that surrounds it. The
Mediterranean in former times was absolutely inclosed within the terri-
tories of the Romans; and that people, by rendering- themselves masters
of the straits which joins it to the ocean, might subject the Mediter-
ranean to their empire, and assume the dominion over it. They did
not by such procedure injure the rights of other nations; a particular
sea being manifestly designed by nature for the use of the countries
n> And see Wolf, Jus Gent. 214; Grot. Droit de la Guerre, 1. 2, tit. 3, 14;
Vinnii Comm. ad Inst. lib. 2, tit. 1, 1.
360 THE PUBLIC LAW OF THINGS.
and nations that surround it. Besides, by barring the entrance of the
Mediterranean against all suspected vessels, the Romans, by one single
stroke, secured the immense extent of their coasts; and this reason
was sufficient to authorize them to take possession of it. And as it
had no communication but with the states which belonged to them,
they were at liberty to permit or prohibit the entrance into it, in the
same manner as into any of their towns or provinces."
" When a nation takes possession of certain parts of the sea, it takes
possession of the empire over them, as well as of the domain, on the
same principle which we advanced in treating of the land. ( 205.)
These parts of the sea are within the jurisdiction of the nation, and a
part of its territory. The sovereign commands there; he makes laws,
and may punish those who violate them : in a word, he has the same
right there as on land, and in general every right which the law of the
state allow him."
" It is, however, true that the empire and the domain, or property,
are not inseparable in their own nature, even in a sovereign state." As
a nation may possess the domain or property of a tract of land or sea,
without having the sovereignty of it, so it may likewise happen that
she shall possess the sovereignty of a place of which the property or
the domain, with respect to use, belongs to some other nation. But it
is always presumed that when a nation possesses the useful domain
(dominium vtile) of any place whatsoever, she has also the higher
domain and empire, or the sovereignty. (205.) We cannot, however,
from the possession of the empire, infer with equal probability a co-
existent possession of the useful domain ; for a nation may have good
reasons for claiming the empire over a country, and particularly over
a tract of sea, without pretending to have any property in it, or any
useful domain. The English have never claimed the property of all
the seas over which they have claimed the empire."
Ulpian and Celsus distinctly hold the seas to be common to all man-
kind ; and the celebrated declaration of the Emperor Antoninus, that
" though he was the lord of the world, the law only was the ruler of the
sea," has been held to convey the same doctrine. p The contrary was
powerfully maintained by Selden; while the freedom and community
of the seas were vindicated by Grotius in his treatise De Mare
n See book 2, 83. And see Grotius, liv. 2, ch. 3, and n. 13, by Barbeyrac.
Vattel, Droit des Gens, liv. 1, ch. 23.
PL. 13, ff. Communia praediorum ; 1. 3, 1, ff. Ne quid in loc. publ. ; 1. 9, ff. ad Leg.
Rhodiam ; Gothofredus, in his Opusc. De Imperio Maris, explains this law somewhat
differently.
> The treatises of these two great men are entitled Mare Clausum and De Mare
Libero. Wheaton, Hist, of the Law of Nations, pp. 152, 153 ; Kent, Com. vol. 1,
p. 27. And see Bynkershoek, De Domin. Maris Dissertatio. See also Hargrave, Law
Tracts, 10 ; Co. Litt. 440, note 1 ; Martens, Droit des Gens, 1. 2, ch. 1, 43.
THE PUBLIC LAW OF THINGS. 361
Pufendorf concurs in the views of Grotius/ which are also adopted
by Kent. 3 " It is difficult," says the latter, " to draw any precise
or determinate conclusion, amidst the variety of opinions, as to
the distance to which a state may lawfully extend its exclusive do-
minion over the sea adjoining its territories, and beyond those portions
of the sea which are embraced by harbours, gulfs, bays and estuaries,
and over which its jurisdiction unquestionably extends.' All that can
reasonably be asserted is, that the dominion of the sovereign of the
shore over the contiguous sea extends as far as is requisite for his
safety and for some lawful end. A more extended dominion must rest
entirely on force and maritime supremacy. According to the current
of modern authority, the general territorial jurisdiction extends into
the sea as far as a cannon shot will reach, and no further ; and this is
generally calculated to be a marine league : and the Congress of the
United States have recognized this limitation, by authorizing the dis-
trict courts to take cognizance of all captures made within a marine
league of the American shores."" The same authority holds that no
nation has any right of jurisdiction at sea, except it be over the per-
sons of its own subjects, in its own public and private vessels ; and so
far territorial jurisdiction may be considered as preserved, for the
vessels of a nation are in many respects considered as part of its terri-
tory, and persons on board are protected and governed by the law of
the country to which the vessel belongs. They may be punished for
offences against the municipal laws of the state committed on board
its public and private vessels at sea, and on board its public vessels in
foreign ports." This jurisdiction is confined to the ship; and no one
ship has a right to prohibit the approach of another at sea, or to draw
round her a line of territorial jurisdiction within which no other is at
liberty to intrude. Every vessel in time of peace has a right to con-
sult its own safety and convenience, and to pursue its own course and
business, without being disturbed when it does not violate the rights of
others."
" It was declared," as we are informed by Kent, in the case of Le
Louis* that " maritime states claim, upon a principle just in itself and
T Pufend. Droit des Geus, liv. 4, ch. 5.
Kent, Comment, vol. 1, lect. 2, p. 2631.
1 Azuni, On Mark. Law, vol. 1, p. 206.
Kent, ibi, p. 29; Bynkerskoek, Quaest. Jur. Publ. c. 8; Vattel, 1. 1, c. 23, 289;
Act of Congress, June 5th, 1794, c. 50; 3 Rob. Rep. 336.
* Grotius, b. 2, c. 3, 10, 13; Rutterford, b. 2, c. 9; Vattel, b. 1, c. 19, 216;
Forbes v. Cochrane, 1 Barn. & Cress. 418 ; Wheaton, Elem. of International Law, 110.
Kent, ibi, pp. 26, 27 ; The Mariana Flora, Wheaton, 38.
1 Dodson, Adm. Rep. 245.
362 THE PUBLIC LAW OF THINGS.
temperately applied, a right of visitation and inquiry within those parts
of the ocean adjoining to their shores. They were to be considered as
parts of the territory for various domestic purposes, and the right was
admitted by the courtesy of nations. The English hovering laws were
founded on that right. The stat. 9 Geo. II. c. 35, prohibited foreign
goods to be transhipped within four leagues of the coast without pay-
ment of duties; and the act of Congress of March 2, 1779, c. 128,
sees. 2628, contained the same prohibition; and the exercise of
jurisdiction to that distance, for the safety and protection of the reve-
nue laws, was declared by the Supreme Court, in Church v. Hubbard*
to be conformable to the laws and usages of nations." b
We will now proceed to the second head of things, that is to say,
things public.
The civil law gives the denomination of res publiccs to things which
belong to a commonwealth, so that the citizens and all men have a
public common right to the use of them. Such are rivers, ports, and
shores of the sea and banks of rivers. Therefore, by the Roman law,
all men have a common right of fishing in rivers and ports. d The
same principle applies to the shore of the sea, which is defined by
Justinian to extend quatenus hybernus fluctus maximus excurrit* Thus
Justinian lays it down that the use of the shores of the sea is public
and common to all men as the sea itself is ; therefore it is lawful for
men to build there, and to dry nets, as well as to draw up anything
from the sea upon the shore. But the property of the shore may be
understood to be in no one, and so partaking of the same legal nature
as the sea, and the soil or sand under it. f So he holds that the use of
the banks of a river is public, jure gentium, as the river is. Thus
vessels may touch there, and any one may tie ropes to the trees that
grow there, and put down burthens, but the property of the banks is
vested in those who are proprietors of the land whereof they form
part; for which reason the trees growing upon the banks belong to
those proprietors. 5
These general rules of Justinian regarding the sea shore are subject
to some qualifications. Thus ScaBVola says, that it is lawful to build
on the sea shore so far as the public utility will permit, and Celsus
declares that the shores of the Roman territory belong to the Roman
a 2 Cranch, 187.
b Kent, Comment, vol. 1, p. 31.
c Voet ad Pand. lib. 1, tit. 8, 8; Vinnii Com. ad Instit. lib. 1, tit. 2, 2.
d Instit. lib. 1, tit. 2, 2.
e Ibi, 3.
f Ibi, 5. And see stat. 1 Jac. c. 23 ; 10 Car. I. Sess. 2, c. 24. The principle of
the former statute was probably derived from the civil law.
f Ibi, 4.
THE PUBLIC LAW OF THINGS. 363
people. 11 But by the Roman law the sea shore is not vested in the
state, as in the Feudal and English law, which place the shores inter
jura regalia. 1 The English law, however, gives a common public
right of fishing to the people of England in the sea and its creeks or
arms. J Such are the doctrines of the Roman law regarding things of
this class, which are useful to be known because they are frequently
used in questions of public law.
The territories or country of a state have some legal analogy to the
public things of the civil law. For though the land is, for the most
part, divided among different owners, and subject to various rights of
property, yet the people, as such, have a general right of habitation,
use, and enjoyment of the country. On this principle a whole country
is said to belong to a nation, and individuals are restrained by a variety
of municipal laws from so using their private rights of ownership over
land, and water, and buildings, as to injure the public rights of society
in general ; and they are even compelled to part with their private
property, on adequate compensation, when the benefit of the public
requires this sacrifice. k
Practically, however, this general right of the community is chiefly
confined to public places, which are public in such wise that indivi-
duals have the use of them, subject to their doing nothing to injure
the rights of the community. 1 Such are public squares, streets, roads,
and the like, which are within the province of public law. m
These reflections are well confirmed by Vattel. He observes that
the earth was given by God to mankind in general. But their multi-
plication made it impossible for the land to be possessed by all in
common. It therefore became necessary for nations to settle in parti-
cular places, and appropriate to themselves certain portions of the
earth and cultivate them." Hence came rights of property, and domi-
nion over land. " The country," he continues, " which a nation
inhabits that country is the settlement of the nation,
and it has an exclusive and peculiar right over it. This right compre-
hends two things I. the Domain (dominium), by virtue of which the
nation alone may use this country for the supply of its necessities, may
dispose of it as it thinks proper, and derive from it every advantage it
h L. 4, ff. Ne quid in loco publico ; ibi, 1. 3.
1 Liber Feudorum, lib. 2, tit. 56; Co. Litt. 440, note 1.
J Co. Litt. p. 261 a; Lord Hale, De Jure Maris, p. 11 ; and see stat. 59 Geo. III.
c. 109, s. 38.
k On the latter subject, see Bynkershoek, Quaest. Jur. Publ. lib. 2, cap. 15.
1 Donelli Comment. De Jur. Civ. lib. 2, c. 5, 12; 1. 2, ff. Ne quid in loc. publ.
" Donelli, ibi, 13.
n And see Hermogenianus, 1. 5, ff. De Just, et Jur. Ex hoc jure gentium . .
discrete gentes ; regna condita ; dominia distincta ; agris termini positi ....
364 THE PUBLIC LAW OF THINGS.
is capable of yielding; II. The Empire (imperium), or right of sove-
reign command, by which the nation directs and regulates at its plea-
sure everything that passes in the country." This last position must
however be understood subject to the divers modifications of the sove-
reign power arising from the constitution, or fundamental laws of each
particular state. "When a nation," continues our author, "takes
possession of a country to which no prior owner can lay claim, it is
considered as acquiring the empire, or sovereignty of it, at the same
time with the domain. For since the nation is free and independent,
it can have no intention, in settling in a country, to leave to others the
right of command, or any of those rights that constitute sovereignty.
The whole space over which a nation extends its government is called
its territory."
"If a number of free families, scattered over an independent country,
come to unite for the purpose of forming a nation or state, they all
together acquire the sovereignty over the whole country they inhabit ;
for they were previously in possession of the domain, a proportional
share of it belonging to each individual family ; and since they are
willing to form together a political society, and establish a public
authority, which every member of the society shall be bound to obey,
it is evidently their intention to attribute to that public authority the
right of command over the whole country. All mankind have an
equal right to things that have not yet fallen into the possession of any
one, and those things belong to the person who first takes possession
of them. When, therefore, a nation finds a country uninhabited and
without an owner, it may lawfully take possession of it, and after it
has sufficiently made known its will in this respect, it cannot be
deprived of it by another nation. Thus navigators going on voyages
of discovery, furnished with a commission from their sovereign, and
meeting with islands or other lands in a desert state, have taken pos-
session of them in the name of their nation, and this title has been
usually respected, provided it was soon after followed by a real
possession."
" But it is questioned whether a nation can, by the bare act of taking
possession, appropriate to itself countries which it does not really
occupy, and thus engross a much greater extent of territory than it is
able to people or cultivate. It is not difficult to determine that such
a pretension would be an absolute infringement of the natural rights
of men, and repugnant to the views of nature, which, having destined
the whole earth to supply the wants of mankind in general, gives no
nation a right to appropriate to itself a country, except for the purpose
of making use of it, and not of hindering others from deriving advan-
Vattel, Droit des Gens, liv. 1, ch. 18.
THE PUBLIC LAW OF THINGS. 365
tage from it. The law of nations will therefore not acknowledge the
o o
property and sovereignty of a nation over any uninhabited countries,
except those of which it has really taken actual possession, in which it
has formed settlements, or of which it makes actual use. In effect,
when navigators have met with desert countries in which those of
other nations had, in their transient visits, erected some monument to
show their having taken possession of them, they have paid little
regard to that empty ceremony There is another cele-
brated question, to which the discovery of the new world has princi-
pally given rise. It is asked whether a nation may lawfully take
possession of some part of a vast country, in which there are none but
erratic nations, whose scanty population is incapable of occupying the
whole. We have already observed (. 81), in establishing the obliga-
tion to cultivate the earth, that those nations cannot exclusively appro-
priate to themselves more land than they have occasion for, or more
than they are able to settle and cultivate. Their unsettled habitation
in those immense regions cannot be accounted a true and legal pos-
session; and the people of Europe, too closely pent up at home, finding
land of which the savages stood in no particular need, and of which
they made no actual and constant use, were lawfully entitled to take
possession of it, and settle it with colonies. The earth, as we have
already observed, belongs to mankind in general, and was designed
to furnish them with subsistence ; if each nation had from the begin-
ning resolved to appropriate to itself a vast country, that the people
might live only by hunting, fishing, and wild fruits, our globe would
not be sufficient to maintain a tenth part of its present inhabitants."
" We do not therefore deviate from the views of nature, in confining
the Indians within narrower limits. p However, we cannot help praising
the moderation of the English Puritans, who first settled in New
England ; who, notwithstanding their being furnished with a charter
from their sovereign, purchased of the Indians the lands of which they
intended to take possession.* 1 This laudable example was followed by
William Penn, and the colony of Quakers that he conducted to Penn-
sylvania.
" When a nation takes possession of a distant country, and settle a
colony there, that country, though separated from the principal esta-
blishment, or mother country, naturally becomes a part of the state,
equally with its ancient possessions. Whenever, therefore, the political
laws or treaties make no distinction between them, every thing said of
the territory of a nation must also extend to its colonies." 1 "
P See as to Indian lands, Kent, Comment, vol. 1, p. 257, &c.
i History of the English Colonies in North America.
r Vattel, Droit des Gens, liv. 1, ch. 18.
366 THE PUBLIC LAW OF THINGS.
The occupation of territories by nations, considered as bodies politic
and juridical persons, rests on the principles of natural law, regarding
the acquisition of vacant things belonging to no one, by the original
title of occupation ; s which, in countries already occupied, may be
qualified and restricted by municipal laws ;* but, among independent
nations, rests on the law of nature, because they have no common
municipal laws. And many questions in the law of nations, regarding
or arising out of the occupation of territories, may be decided or eluci-
dated by means of the civil law."
Grotius examines the question whether, when rivers change their
course, they at the same time change the boundaries of states, and
whether that which a river adds to its banks, augments the territory of
the state on the side on which the addition takes place. He divides
lands, with reference to the nature of their boundaries, into three
classes. I. Lands specifically assigned by measurement and artificial
boundaries, and metes and bounds, which Florentinus denominates
limited (agri limitati).* II. Those which are assigned in gross, that
is to say, limited in extent, as to so many acres, but without specific
boundaries and landmarks. 7 III. Lands bounded by natural limits,
and called agri arcifinii. 2 Barbeyrac, in his notes on Grotius and
Pufendorf, expresses an opinion that they did not correctly give the
meaning of the ancient writers who furnish this classification ; but he
admits that the principle derived from the distinction, between lands
defined by artificial limits or measurements, and the agri arcifinii, is
correct. With regard to the lands of the two first classes, the change
of the course of a river does not alter the boundaries, and whatever
is added by alluvion is vacant, and belongs, by the law of nations, to
whoever occupies or takes possession of it, because the extent and
limits of the land are fixed and determined.*
With regard to the third class of lands, i. e. agri arcifinii, a river
8 Zallinger, Inst. Jur. Nat. et Eccles. Publ. torn. 1, lib. 4, ch. 3, 279, 284; Grot.
Droit de la Guerre, liv. 2, ch. 3, and notes by Barbeyrac. Quod ante nullius est, id
naturali ratione occupanti conceditur. Instit. lib. 2, tit. 1, 12 ; 1. 3, ff. De acqui-
rendo rerum dominio.
1 Grot. Droit de la Guerre, liv. 2, ch. 3, 5 ; Pufend. Droit des Gens, liv. 4, ch. 6,
| 3, and note by Barbeyrac.
Instit. lib. 2, tit. 1, 1 1 17 ; and see the Comment of Vinnius ; Pandect, lib. 41,
tit. 1, De acquirendo rerum dominio; and see the Comment of Voet, 1. 41, t. 1.
* L, 16, ff. De aquir. rerum domin. And see Litt. sect. 36.
1 See Litt. sect 44.
1 Grot. Droit de la Guerre, liv. 2, ch. 3, 16 ; Pufend. Droit des Gens, liv. 4, ch. 7,
1, and Barbeyrac 's notes; Zallinger, Inst. Jur. Nat. et Eccles. Publ. vol. 1, lib. 4,
cap. 3, 274.
Ibi.
THE PUBLIC LAW OF THINGS. 367
which bounds them, changes the boundaries of the territory and juris-
diction, by gradually altering its course; and, whatever it adds on one
side, belongs to the territory on that side, because the two states
between which the river flows are presumed to have origirially taken
the center of the river as their natural boundary. b This is so where
the change of the course of the river is gradual. For there the change
of its parts does not destroy its identity, but leaves it the same. But
it is otherwise when the change is sudden and entire, for in that case,
if the people into whose country the river has gone do not consent to
lose part of their land, for the purpose of retaining the natural limits
of the waters, the boundary is presumed to be the middle of the bed
which the river has left. d If the river flow between two states, and
belong entirely to one of them, the islands formed therein belong
entirely to that state; but the better opinion is, that the alluvion on the
other side appertains to the state on that side. 8 If, on the other hand,
the river belongs to neither state, the islands and alluvions formed
there are vacant, and will belong to whoever occupies them. But the
state nearest to a new island, and that to whose land an alluvial addi-
tion grows, must be presumed to take possession rather than the other
state/ And if the boundary be in the middle of the river, and an
island be formed in the middle, it will belong to both states in equal
shares ; but if it be nearest to one bank, the greater part or the whole
will belong to the state on that side. 8 If a river divide into branches
in one place, and those branches join in another, the land thus enclosed,
which becomes a sort of island, remains the property of its former
owner. h
It is not lawful to make on a river any works calculated to alter the
course of the water, and throw it on the opposite bank. But each party
may protect his own property, and prevent the current from carrying
away his ground. In general, no works can be constructed on a river,
or elsewhere, prejudicial to the rights of others. If a river belong-
to a nation, and another have an undoubted right of navigating it, the
former must not construct dykes or mills which would cause the river
b Pufend. liv. 4, ch. 7, 11.
c Quapropter cujns rei species eadem consistent, rem quoque eandem esse existimari.
L. 76, ff. De Judiciis.
d Pufend. ibi.
e Ibi.
f Ibi.
e Instit. lib. 2, tit. 1, 22, and the Comment of Vinnius ; 1. 7, 3, ff. De acquir.
rerum domin.; 1. 1, 6,4, ff. De Fluminibus; ibi, 10; Voet ad Pand. lib. 41,
tit. 1, 14.
h Instit. ibi,
368 THE PUBLIC LAW OF THINGS..
to be no longer navigable. Its right is in this case a limited owner-
ship, so that such right can only be exercised without prejudice to the
rights of others. 1
Alluvion is thus defined in the civil law. Est alluvio incrementum
latens, quo quid ita paulatim agro adjicitur ut intelligi nequeat quantum
quoquo temporis momenta accedat. k It is a mode of acquisition by
natural law, called accession, which is a species of occupancy. For
occupancy is either simple or consequent. The former is, where a man
takes possession, a's proprietor, of any thing which is the property of
no one. It becomes his by right of occupancy, for, as Justinian says,
Quod ante nullius est, id naturali ratione occupanti conceditur} The
latter occurs, 1st, where any one's property produces fruit; and 2ndly,
when anything adheres to or acceeds to and becomes part of the pro-
perty of any one, for there the addition or increase is acquired by him
as an accession to his property. And we have seen that alluvion is
a means of acquiring territory to states," as well as simple occupancy.
With regard to lakes, Vattel gives us the following principles of
Public Law, " What we have said of rivers and streams may be easily
applied to lakes. Every lake, entirely included in a country, belongs
to the nation that is the proprietor of that country; for, in taking pos-
session of a territory, a nation is considered as having appropriated to
itself everything included in it; and as it seldom happens that the pro-
perty of a lake of any considerable extent falls to the share of jndivi-
duals, it remains common to the nation. If this lake is situated
between two states, it is presumed to be divided between them at the
middle, while there is no title, no constant and manifest custom, to de-
termine otherwise."
" What has been said of the right of alluvion, in speaking of rivers,
is also to be understood as applying to lakes. When a lake, which
bounds a state, belongs entirely to it, every increase in the extent of
that lake falls under the same predicament as the lake itself; but it is
necessary that the increase should be insensible, as that of land in
alluvion, and moreover, that it be real, constant, and complete. To
explain myself more fully, I speak of insensible increase; this is the
reverse of alluvion ; the question here relates to the increase of a lake,
1 Vattel, Droit des Gens, liv. 1, ch. 22, 171, 172.
k Voet ad Pand. lib. 41, tit. 1, 15; Instit. lib. 2, tit. 1, $ 20; 1. 7, 1, ff. De
acquir. rerum domin.
1 Instit. lib. 2, tit. 1, ^12.
m Vinnii Com. ad Instit. et not. Heineccii, lib. 2, tit. 1, ^ 2, num. 4.
n Pufend. Droit des Gens, liv. 4, ch. 7, 11 ; Vattel, Droit des Gens, liv. 1, ch. 22.
Vattel, Droit des Gens, liv. 1, ch. 18, 207; Martens, Droit des Gens, liv. 2,
ch. 1.
THE PUBLIC LAW OF THINGS. 369
as in the other case to an increase of soil. If this increase be not insen-
sible, if the lake, overflowing its banks, inundates a large tract of
land, this new portion of the lake, this tract thus covered with water,
still belongs to its former owner. Upon what principles can we found
the acquisition of it in behalf of the owner of the lake. The space is
very easily identified, though it has changed its nature ; and it is
too considerable to admit a presumption that the owner had no inten-
tion to preserve it to himself, notwithstanding the changes that might
happen to it."
" 2. But if the lake insensibly undermines a part of the opposite
territory, destroys it, and renders it impossible to be known, by fixing
itself there, and adding it to its bed, that part of the territory is lost
to its former owner, it no longer exists, and the whole of the lake thus
increased still belongs to the same state as before."
" 3. If some of the lands bordering on the lake are only overflowed
at high water, this transient accident cannot produce any change in
their dependence. The reason why the soil, which the lake invades
by little and little, belongs to the owner of the lake, and is lost to its
former proprietor, is because the proprietor has no other boundary
than the lake, nor any other marks than its banks, to ascertain how
far his possession extend. If the water advances insensibly, he loses;
if it retires in like manner, he gains; such must have been the inten-
tion of the nations who have respectively appropriated to themselves
the lake and the adjacent lands; it can scarcely be supposed that they
had any other intention. But, a territory overflowed for a time is
not confounded with the rest of the lake ; it can still be recognized ;
and the owner may still retain his right of property in it. Were it
otherwise, a town overflowed by a lake would become subject to a
different government during the inundation, and return to its former
sovereign as soon as the waters were dried up."
u 4. For the same reasons, if the waters of the lake, penetrating by
an opening into the neighbouring country, there form a bay, or new
lake, joined to the first by a canal, this new body of water and the
canal, belong to the owner of the country in which they are formed.
For the boundaries are easily ascertained ; and we are not to presume
an intention of relinquishing so considerable a tract of land in case of
its happening to be invaded by the waters of an adjoining lake."
" It must be observed, that we here treat the question as arising
between two states ; it is to be decided by other principles when it
relates to proprietors who are members of the same state. In the
latter case, it is not merely the bounds of the soil, but also its nature
and use, that determine the possession of it. An individual, who pos-
sesses a field on the borders of a lake, cannot enjoy it as a field when
B B
370 THE PUBLIC LAW OF THINGS.
it is overflowed; and a person who has, for instance, the right offish-
ing in the lake, may exert his right in this new extent ; if the waters
retire, the field is restored to the use of its former owner. If the lake
penetrates by an opening into the low lands in its neighbourhood, and
there forms a permanent inundation, this new lake belongs to the
public, because all lakes belong to the public."
" The same principles show, that if the lake insensibly form an ac-
cession of lands on its banks, either by retiring or in any other
manner, this increase of land belongs to the country which it joins,
when that country has no other boundary than the lake. It is the
same thing as alluvion on the banks of a river."
" But if the lake happened to be suddenly dried up, either totally or
in a great part of it, the bed would remain in the possession of the so-
vereign of the lake; the nature of the soil, so easily known, sufficiently
marking out the limits."
"The empire or jurisdiction over lakes and rivers is subject to the
same rules as the property of them, in all the cases which we have
examined. Each state naturally possesses it over the whole or the part
of which it possesses the domain. We have seen ( 245) that the
nation, or its sovereign, commands in all places in its possession."?
With regard to acquisition by simple occupancy, we must observe that
the law of nations agrees with the Roman law in the following respect :
The occupation of vacant territories and jurisdiction by states, is
grounded on the same principles as the acquisition of private property
by occupancy. And territory is not acquired in this way by a state
unless the possession has, in fact, taken place, and the act of taking
possession has concurred with the manifest intention of appropriating
the thing : r and so, by the Civil Law, the acquisition of things by
occupancy must be made corpore et animo, that is to say, by an out-
ward act, signifying an intention to possess, 3 though the outward
act of possession need not be by act of physical contact, such as taking
into the hand with respect to movables, or treading with the feet with
respect to land ; for any species of possession, or, as the ancients
express it, custodia, or some physical act importing ownership, is a
sufficient appropriation. 1 These principles show that a state may
take, by occupancy, an entire vacant country, without actual custody
i> Vattel, Droit des Gens, liv. 1, ch. 22, 274278.
r Martens, Droit des Gens, liv. 2, ch. 1, 37.
s L. 3, 1, ff. De acquirenda et omit. Possess.; Grot. Droit de la Guerre, liv. 2,
ch.4, 3.
1 Grot. Droit de la Guerre, liv. 2, ch. 8, 2; Instil, lib. 2, tit. 2, 12; Grot,
liv. 2, ch. 3, 1 ; Savigny, Treatise on Possession (translated by Sir Erskine Perry),
book 2, sect. 14, 15, &c.
THE PUBLIC LAW OF THINGS. 37 1
of each part of it. This is not contrary to the opinion of Vattel given
above, that a nation cannot appropriate to herself, by mere taking pos-
session, a country which she does not really occupy where she has
formed no establishment and far too extensive for her to be
able to people and cultivate." This would be taking from other
nations that which is no benefit to herself, contrary to natural
law.
" All things," says Vattel, " susceptible of being property, are con-
sidered as belonging to the nation which occupies the country, and
constitute the total or mass of its possessions. But the nation does
not possess all in the same manner. Those things which are not
divided among communities or municipal bodies politic, or individuals
of the nation, are called public property r . Some of these are reserved for
the use of the state, and are the property of the crown, or the common-
wealth ; while others remain common to all the citizens who use them,
each according to his wants, or according to the laws which regulate
their use; and these things are called common things. There are
others which belong to some body or community ; they are called pro-
perty of a community, res universitatis, and they are for the particular
body, what public property is for the whole nation. As the nation
may be looked upon as a great community, the property belonging to
it so that all the citizens may use it, and that possessed by bodies or
communities, may be called common property. The same rules apply
to both. And the things belonging to individuals are called private
property, res singulorum" x The public property may be acquired
by the state, either by original reservation, or by other means, such as
by gift or other transfer/ And it naturally belongs to the sove-
reign power to dispose of the public property, but this rule must
be understood subject to the diversities of municipal laws and regu-
lations existing in different countries. 2
" Where the revenues of the public property do not suffice, the
state supplies the deficiency by taxes and other imposts, which ought
to be regulated so that all the citizens may pay their share according
to their means, and the advantages which they derive from the state.
And all the members of the civil society are bound to contribute
according to their power to its welfare and safety; and they cannot
refuse to furnish the necessary subsidies required by legitimate autho-
rity." a These imposts are a salary which private persons pay to
11 Vattel, Droit des Gens, liv. 1, ch. 18, 208.
* Ibi, ch. 20, 235.
Ibi, 238.
1 Ibi, 237239.
* Ibi, $ 240 ; Blackst. Com. b. 1, c. 8, p. 307; Domat, Droit Publ. liv. 1, tit. 5.
B B2
372 THE PUBLIC LAW OF THINGS.
the state for the defence of their life and property, and a contribution
absolutely necessary for the expenses required by the government. 11
And we have already seen, that by the right called dominium eminens,
(which is a part of the sovereign authority, and one of the jura majes-
tatis,} the state has a power over all property within it, in cases of ne-
cessity, and where such power is required for the public welfare; but
where, in the exercise of this power, private property is taken or
injured, compensation must be made by the state or otherwise.
We come now to the property of bodies politic or corporate, called,
in the civil law, res universitatis. This class of things were, as Jus-
tinian informs us, sometimes called public, as contradistinguished from
the property of individuals; for Ulpian says, nothing is public but
what belongs to the Roman people. d They belong to the body
as an aggregate person, but are used by the individuals composing it.
Such were the theatres, basilica?, porticos, public baths, and the like,
which belonged to a city or other municipal body, for the use of the
citizens. 8
Nothing is said in the civil law, under this head, of the patrimony
of cities and other aggregate bodies ; for, as Gajus informs us, cities
(and other communities or bodies corporate) are, in contemplation of
law, private persons/ 'though they are by the municipal laws of
all countries, subject to various regulations according to their purposes
in the commonwealth. The use of the several sorts of communities
and corporations was, as Domat remarks, natural in the society of
mankind, and had the same origin and foundation as the union of many
families and of many nations under one and the same government
of a monarchy, or of a republic. For as it is the multitude of the wants
of men, and the necessity that every one has of the assistance of many
others, that has been the occasion of forming monarchies and common-
wealths, so the same necessities and wants have required and produced
still more close and particular conjunctions of persons together, form-
ing companies and corporations destined to different uses for the pub-
lic good. g
By the Civil Law, no communities could be established, except by
legal permission. 11 The power of erecting a corporation is incident
b Pufend. Droit des Gens, liv. 8, ch. 5, 3.
c Vattel, Droit des Gens, liv. 1, ch 20, 244 ; Bynkershoek, Qtisest. Jur. Publ.
lib. 2, ch. 15.
d Instit. lib. 2, tit. 1, 6.
e Virinii Comment, ad Instit. lib. 2, tit. 1, 6.
1 L. 16, ff. De Verbor. Signif. ; 1. 22, ff. De Fidejussoribus ; 1. 20, ff. De rebus dubiis.
g Domat, Droit Publ. liv. 1, tit. 15.
h L. 1, 2, ff. De Colleg. et Corpor. ; 1. 3, 1, ibi; 1. 1, ff. Quod cujus. Universit.
nomine; 1. 5, 12, De Jur. immunit.
TUB PUBLIC LAW OF THINGS. 373
to a sovereign power;' and no association can become a legal per-
son except by the authority of the state; and this important rule
is quite independent of the innocent or prejudicial nature of the
society. k The essential character of a corporate body or corpora-
tion is, that its rights rest, not on the members considered individu-
ally, nor even on all the individuals together, but on an ideal whole.
An important consequence of this is, that the partial, or even entire
change of members, does not affect the essence, nor the unity, of
the corporation. 1 This is what in our Jaw is called perpetual suc-
cession. 1 " Corporations are sometimes called juridical persons,
because they exist for juridical purposes. " The artificial legal
capacity of these persons," says Savigny, " applies to relations of
private law. Often the Public Law of the state requires that certain
powers be exercised by an assembly or collective unity. But to con-
sider such an unity, such as a college or court of judges, as a juridical
person, would be a confusion of ideas ; for the essential character of the
institution, the legal capacity to possess property, does not belong
to most of these assemblies, though some of them, apart from their
judicial functions, may have acquired the character of juridical per-
sons. It is also erroneous to regard the uninterrupted succession of
sovereigns in a hereditary monarchy as a juridical person." These
collective powers of the Public Law must have been familiar to the
Romans, who for so many centuries had a republican government;
and in this sense they speak of a college of consuls or of tribunes of
the people. Thus they said that the decemviri of a town constituted a
unity, and their office was deemed to be exercised by one person.
Even when all \\iQJudices appointed to decide a case were successively
replaced by others, the judicium was not thereby changed. 15 But
these expressions and principles were applied only to Public Law, or
procedure, and entirely distinguished from the private law regarding
juridical persons a distinction in conformity with the nature of
things, and which modern writers have not sufficiently observed. The
1 Kent, Comment, vol. 1, lect. 12, p. 250.
k Savigny, Traite du Droit Rom. torn. 2, p. 158.
1 Ibi, p. 241 ; 1. 7, 2, ff. Quod cujus. Univers.; 1. 76, ff. De Judiciis ; Grot. Droit
de la Guerre, liv. 3, ch. 9, ^ 1. And see the Classification of Bodies, by Pomponius ;
1. 30, ff. De Usurp, et Usucap.
m Kyd on Corporations, vol. 1, Introduction, p. 3; Madox, Firma Burgi, c. 2, 17,
p. 50.
n Hasse, Archiv, vol. 5, p. 67. It is so in our law ; Co. Litt. 43 ; 10 Rep. 29 b ;
Plowd. Com. 213.
L. 25, ff. Ad Municip. Magistratus mumcipales cum union magistratum adininis-
trent, etiam unius hominis vicem sustinent.
P L. 76, ff. De Judic. ; Novell. 134, cap. 6.
374 THE PUBLIC LAW OF THINGS.
classes, centuriae, and tribes, were also important political unities ; but
they do not appear ever to have been considered as juridical persons ;
that is to say, as capable of possessing property in common.* 1 ....
But while we restrict within the domain of private law, and especially
the law of things, the legal capacity of juridical persons, I do not
mean to say that in reality their capacity is their exclusive or even
dominant characteristic. They, on the contrary, have special purposes
often very superior to their capacity in private law, and of which the
latter is merely an instrument. But all the characters of juridical
persons, other than the power of holding property, are foreign to
private law/" To this subject we shall return.
There are also private associations for various purposes, not incor-
porated ; but the law looks upon them as mere assemblies of indivi-
duals having no juridical character of unity. 8
These doctrines of Savigny show the legal nature of the things
constituting the patrimony of bodies corporate, and the reason why
with reference to that property they are considered by the civil law
in the light of private persons. The goods and rights of a corporate
body belong to it in such a manner that none of the particular persons
who are members of it have any right or property in them, or can
dispose of them. 1 The management of the property of temporal cor-
porate bodies ought to be regulated and restricted by the public law of
the state, because experience shows that the members of those bodies
are apt to prefer their own interests to those of the body and to the
objects for which it was created. As for ecclesiastical bodies, they are
regulated by the laws and principles of the Church.
The fourth and last class of things, not private, remains to be con-
sidered ; that is to say, res nullius. They are thus described by Jus-
tinian. " Those things are the property of no one (res nullius) which
are consecrated, or religious, or sacred : for things that are of divine
right belong to no one." u This classification of things is important,
from its analogy to the classification of things by the canon law.
Things ecclesiastical are generally divided by the canonists into : I.
Things spiritual, which belong immediately to divine worship or eccle-
siastical functions. II. Things temporal, which are requisite for the
sustenance of the churches and clergy. Things spiritual are subdi-
vided into incorporeal things, such as virtues and gifts of grace, faith,
hope, and charity, which belong to theology, and the sacraments ;
i Savigny, Trait du Droit Rom. torn. 2, p. 234 236.
r Ibi, p. 238.
Pufend. Droit des Gens, liv. 7, ch. 2, 21.
' Doraat, Droit Publ. liv. 1, tit. 15, sect. 2, ^ 8.
Instil, lib. 2, tit. 1, 7 ; 1. 23, 1, ff. De Rei Vindicatione ; 1. 43, ibi.
THE PUBLIC LAW OF THINGS. 375
and also rights, exemptions, advantages and privileges, and other
things of like nature ; and things corporeal, such as altars and sacred
utensils/ The remaining number of the first and general division,
that is to say, things temporal, is subject to the same classifications as
temporal property.
Corporeal things are subdivided into two classes, things consecrated,
sacred or sacrosanctec, and things religious religiosce. The former
are dedicated to the exercise of external divine worship, such as
churches, altars, and the like ; and as they are made inviolable, they are
called sacred and holy sacra et sanctce. The latter, i.e., things reli-
gious (religiosce) are those which have a connexion with Divine rites, or
the duties and functions of the clergy, such as cemeteries, tombs, and
houses of refuge for the aged, the sick, and the poor, and other objects
of charity, which may be under the government of the Church. y
All these things belong or bear a relation to Ecclesiastical Public
Law, by which the government and public administration of the
Church are regulated. Ecclesiastical things temporal are also affected,
in divers ways, by the temporal laws of the state. And it is the same
with things sacred and religious, so far as they partake of a temporal
nature. This matter depends on the circumstances under which the Ca-
tholic Church is placed in different countries, and on the particular muni-
cipal laws existing in each state. Thus in countries where the Catholic
Church is not established, but looked upon by the temporal govern-
ment as a voluntary society ; its canons can only take effect in law, as
the internal regulations of such society, not contrary to the law of
the land. For the temporal courts will only regard them in this light,
and thus ecclesiastical things, so far as they have a temporal nature,
are brought de facto, although not by the will of the Church, under
the regulation of the temporal laws. In some states restraints are
placed on the acquisition of property for ecclesiastical and charitable
purposes, by laws commonly known under the name of laws of Mort-
main. 2 And the temporal laws have sometimes assisted the canons
to prevent the impoverishment of the Church, by restricting the aliena-
tion of ecclesiastical property. 3 So in explaining the nature of mixed
laws we have seen that many ecclesiastical matters are partly regu-
lated by temporal laws confirming those of the Church, or grounded
on the double relation which those matters have to the Church and
the civil community. And on the other hand many temporal matters
31 Devoti, Instit. Jur. Canon. Tabulae Synopt. tab. 34 ; Lancelotti, Inst. Jur. Canon,
lib. 2, tit. 1, 50.
>' Devoti, Tabulae Synopt. ubi sup. ; Devoti, Inst. Canon, lib. 2, tit. 1, 1.
* Nardi, Diritto Eccles. torn. 1, 261.
a Ibi, 263.
376 THE PUBLIC LAW OF THINGS.
are partly regulated by laws of the Church, because of their relation
to Religion, or to the duties and functions of the Church and ecclesias-
tical persons. 6 Divers privileges have been granted by the Holy See
to particular princes and states by concordats and otherwise, whereby
they enjoy rights of patronage and protection regarding ecclesiastical
things ; such, for instance, as that of proposing persons for bishoprics,
and appointing to ecclesiastical benefices, dignities and offices.
The doctrine of the Roman Law regarding res nullim contains a
principle important both in Private and in Public Law. It is this,
that a thing may be actually appropriated, and yet be the property of
no person.
Savigny observes that in the early times of Roman history, the need
to constitute a juridical person was little felt, because the important
thing in the divers associations of priests and artisans and the like,
was community of action, and the political position and the capacity
of the body to hold property, was matter of secondary interest. For
the expenses of the public worship of the Romans were defrayed by
the state; and to make a foundation for this purpose, it was sufficient
to have the property intended to be given, consecrated. By consecra-
tion the thing given was withdrawn from commerce, without becoming
the property either of the temple or of ,the priests. Subsequently, when
the state increased in extent, the idea of the corporate character or
juridical person applied in an important and clear manner to the
municipal communities or towns, to the municipia and the colonies.
For they required to possess and acquire property, and their dependant
situation rendered them amenable to and suitors before the courts.
And the idea of the juridical person once introduced, it extended itself
to other cases. Thus it was applied to the ancient confraternities of
priests and artisans, and then to the state itself, under the name of the
Fisc, which was treated as a person, and subject to a jurisdiction ;
and afterwards it was extended to subjects of an ideal character, such
as the gods and the temples.
The latter application received great and numerous extensions under
the rule of Christianity. Among the Germanic nations the institution
was preserved and still more developed, for it found the bonds of
government relaxed, and the minds of men inclined to form free asso-
ciations of all sorts. In modern times, the centralization of authority
has reacted on corporate bodies, and diminished their importance,
without changing anything of the essential characteristics of juridical
persons/ 1 These observations of Savigny are the more interesting from
b Domat, Loix Civiles, Traile des Loix, ch. 10.
c Savigny, Trait du Droit Rom. torn. 2, 87, p. 213245.
d Ibi, p. 245.
THE PUBLIC LAW OF THINGS. 377
their application to the history of corporations in our own country. For
charters of incorporation granted to cities and towns in England did
not commence until the reign of Henry VI. ; and the technical cor-
porate character was introduced chiefly with reference to the acqui-
sition and tenure of property. 6
We may conclude that the juridical person is in reality a fiction.
Thus a corporation has been called a " mere metaphysical being a
mere ens rationis," and has been said to " rest only in intendment and
consideration of law." f It follows, that the true principle is that
involved in the doctrine of the Roman law regarding res nullius, that
is to say, that things may be devoted and appropriated to a public
purpose, without being vested in any person or persons. It is the
purpose of a foundation or other appropriation that must be looked
upon as the real owner. So we find Fleta distinguishing between the
persons constituting a body, and the object for which property was
given to it : " In colleges and chapters there always remains the same
body, although they all successively die ; as it may be said of a flock
of sheep, where there is always the same flock, although the sheep
successively die off. 8 Nor does either of them succeed to the other
by right of succession, so that the right should descend hereditarily
from one to the other ; because the right always remains to the Church,
and the Church always remains" h So, notwithstanding the jealous
eye with which our common law looks upon the suspension or abey-
ance of the freehold, Littleton says, " If a parson of a church dieth,
now the freehold of the glebe of the parsonage is in none during the
time that the parsonage is void, but is in abeyance." 1 Thus, during
the interval, it is res nullius, or not vested in any person, and yet it is
property. And by the English law, the property which the parson
has in the church is of a different nature from his right over his private
property, and even that which he has over the parsonage-house. The
property of the parson in the church and churchyard is only for the
technical purpose of enabling him to bring actions for injuries to
them. k Here, again, is to be seen the principle of the Roman law
regarding res nullius.
e Merewether & Stephens, Hist, of Boroughs and Municipal Corporations, Introduc.
per tot. and pp. 29, 31, 33. And see Manning, Serviens ad Legem, p. 230.
f 10 Co. Rep. 32 ; Treby, Arg. in Quo Warranto case. It has also been called
persona politica. Com. Dig. Franchise, F. 1.
s This illustration is evidently from the Roman Law (Pomponius); 1. 30, fF. De
Usurp, et Usucap. ; and Paulus, 1. 23, ^ 5, ff. De Rei Vindicatione.
h Fleta, lib. 6, ch. 18.
i Litt. 647; Co. Litt. 12, 18b.
* Blackst. Com. b. 1, ch. 11, ^5, 7.
378 CONCLUSION.
We have now reached the conclusion of these Commentaries. They
commenced with a disquisition on the origin and foundation of laws :
for the leading idea throughout the whole work is, that, under Divine
Providence, the world is governed, and human society constituted, by
laws and obligations. That idea applies to society, both in its uni-
versality, and also viewed as a great aggregate composed of a number
of political communities, in various forms, but all having certain fun-
damental principles in common. We have shown the way in which
laws are consequences, direct or remote, flowing from the two great
fundamental laws laid down in the Gospel, on which society is con-
structed ; and this has enabled us to see the unity of Universal Juris-
prudence, and the different sorts or classes of laws or rules which it
contains. The uses of those various kinds of laws enabled us to
perceive the constitution of society and governments : and these inves-
tigations have shown the necessity of the Spiritual Law, and that with-
out it jurisprudence would be incomplete, because it would belong to
one part only of the nature of man, and would not contain all the
laws which are consequences of the two primary laws on which society
is constructed by Divine Providence ; and it would be therefore in-
adequate to regulate the conduct of mankind, that is, the steps which
they take towards the end of their creation. And thus we have
seen the effect of the Catholic Church in the economy of general
terrestrial government, and the operation of its laws considered as a
portion of that government. We have explained both the unity and
the diversity of temporal and Spiritual Jurisprudence, and the way in
which the latter preserves the great principle of the universality of
human society.
So, from the first principles showing the origin and nature and
spirit of laws, we have proceeded to the constitution and forms of
civil governments, with the organic laws that regulate them. And
we have considered municipal laws and governments, both as govern-
ing the particular states to which they belong, and also in their
relation to the general government of mankind.
The exposition of the principles on which human society is formed,
and of the nature and uses of civil communities, has shown us the
fundamental doctrines of international law.
This comprehensive system of Universal Public Law has direct
connexion with every part of political and legal science. For all poli-
tical science must be in harmony and accordance with the laws on
which human society is constructed and governed ; and though juris-
prudence and politics are distinct sciences, yet they form part of one
scheme of terrestrial government. And, as we have seen, all laws
are derived from the two primary laws, on the foundation of which
CONCLUSION. 379
society is constituted, and bear relation to the order and the various
uses of that society, according to the principles and reasons on
which they are grounded. Thus the reader has seen what use may
be derived from Universal Public Law in every branch of legislation
and public affairs, and the arguments which it affords to combat the
theories which, especially in our times, threaten the foundations of
society and property, and all the institutions of secondary natural law.
Those theories, wild and absurd as they are in the eyes of practical
and judicious men, have enough pf speciousness to be dangerous; and
they must be met by reasons which are to be found in the science of
Public Law.
Such are the general views with which these Commentaries have
been written. The vast extent and difficulty of their subject ren-
dered the task most arduous : and I must add, that there does not
exist a treatise similar to this, either in the English or in any other
language. Whether I have justly deserved even forgiveness of the
apparent presumption involved in so great and novel an undertaking,
time will show. I can now only plead, that it has been accomplished
after years of preparation, and with much labour, research, and medi-
tation; and I offer to the world these Commentaries on Universal
Public Law, trusting to that indulgence which is seldom refused to a
zealous effort for the advancement of learning.
INDEX.
Absolute monarchy, 265, 266.
Absolute monarchy, its principles, 266,
&c.
Absolute power, 267, 268.
Accession, 368.
Affinity, 54.
Agnatic succession, 279, 332.
Allegiance, nemo potest e.ruere patriam,
152.
Allegiance, divided, 181, 182.
Alluvion, 366, &c.
Ambassadors, 67, 174.
America. See United States.
Angels, their obedience to law, 21.
Animals, supposed law common to them
and men, 17, 18.
Annexation, 346.
Antoninus, his declaration regarding the
sea, 360.
Appeals, 238, 239.
Arcifinite lands, 366.
Aristocracy in mixed governments, 300
302.
Army, 226, 227, 246.
Artificial, or arbitrary matters, 97, 98.
Artificial, or arbitrary matters, diversity
of laws regarding, 141, &c.
Assemblies. See Legislative.
Balance of powers in a slate, 245, 246,
303, &c., 310, &c.
Ballot, 261, 262, 341.
Banks of a river, 362.
Bar, prospects of the, 9, 10.
Bays and straits, 358, 359, 361.
Bills, proposed board for preparing and
revising, 149.
Bishop's see, 135.
Bishoprics, nomination to, 136.
Blackstone, his theory of the constitutional
balance of powers, 312, 313.
Bodies, classification of, 373, n. '.
Boundaries changed by rivers, 366, &c.
Boundaries of lands, the three sorts' of,
366.
Canon Law, defined, 34, 69, 70.
Catholic Church. See Roman.
Centralization, 347.
Chambers. See Houses.
Church, Anglican and Greek, 127, 128.
Churches, established, 80, 127, &c.
Cicero on mixed government. See Ta-
citus.
Civil and Criminal Law, 235, &c.
Civil liberty, 290.
Civil list, 320.
Civil power, analysed, 210, 211.
Coasts, to what distance from them do-
minion extends, 356, 357.
Codes, observation of Savigny on, 148.
Codification, 148.
Cognatic succession, 279, 332.
Colonies and Colonial policy, 328 330.
Comity of nations, 151, 155.
Comniissory clause, 271, 272, 331.
Commons, great power of the House of,
321.
Commons, their power of voting supplies,
322.
Compact, doctrine of the social, 200, &c.,
261.
Comproniissum, elections per, 262.
Confederacies, defects of, 240, 241, 337.
Confederation, defects of the American,
336, &c.
Confederations, 325, &c.
Confederations, their dissolution, 335,336.
Conflict of laws, 138, &c.
Conflict of laws, first principles of the,
150, &c.
Congress, in America, its power, 345.
Conquered people, two ways of dealing
with them, 327.
382
INDEX.
Consanguinity, 53.
Constituent assemblies, 2, 3, 261 .
Constitution of a state defined, 247, 344.
Constitution of the United States, 343.
Conterini, Cardinal, his reflections on
laws, 84, 85.
Conventions of the people, 309,318.
Corporate bodies, 60, 272, &c., 376, 377.
Courts, conflict of laws regarding jurisdic-
tion of, 172, &c.
Courts, power of the Crown to erect, 314.
Crime, committed in one country and
punished in another, 182, 183.
Crimes and offences, conflict of laws re-
garding, 179, &c.
Criminal Law, 184, &c.
Cujus est solum, the rule, 353.
Customs among nations, 67, 68.
Dardanelles, 358, and note.
D'Aguesseau, his advice to his son, 23.
Declaratory Act, the, 328.
Decretals, 113.
Defence, right of self, 232, 233.
Delegated jurisdiction, 234.
Delegated power, 344.
Delivery of criminals. See Extradition.
Democracy, 252254, 285, 303, 318.
Departments, separation of, 285,286,310.
Desert territories, 364.
Despotism, 266.
Dissolution of confederations, or compound
states, 335, 336.
Divine law, 64.
Divine right of civil government, 198, 199.
Divine right of kings. See Kings.
Divorce, foreign, 171, 172, 176.
Domain and sovereignty, distinction be-
tween, 360, 363, 364.
Domicil, 166.
Dominium eminens, 227, 228,363,372.
Duties or obligations, conditional or hy-
pothetical, 50, &c.
Duties or obligations, absolute and innate,
49.
Duties of imperfect obligation, 49, 50.
Duty of sovereigns, 276.
* Note. See on the subject of double do-
micil, Somerville v. Somermlle, 5 Ves. jun. ;
Forbes v. Forbes, Wood, V. C., 9th Feb. 1854.
Ecclesiastical Public Law, 133, &c.
Ecclesiastical Public Law, its contact with
the political divisions of the world, 137.
Ecclesiastical Public Law, its Universality,
137.
Ecclesiastical things, 375, 376.
Elected senators or peers, 301.
Elections, frequency of, 319.
Elections. See Representation.
Elections, indirect, 262, 263, 362, 363,
341.
Elective monarchy, 278, 279.
Emigration, 273, and see Refugees.
Emperor, the Roman, was legibus solutim,
222.
Engagements in society, 39, 40.
Engagements, voluntary and otherwise,
55, &c.
England, Constitution of, 293, 295, 312,
313.
Epicureans, their doctrine, 29, 31.
Equality of men, doctrine of the, 44 48.
Equality of states or nations, 45, 248.
Equity, amalgamation of law and, 148.
Eiceptio reijudicata, 177.
Executive power, 222, &c., 319, &c.
Executive power, compared with legis-
lative, 306.
Exterritoriality of sovereigns, 174.
Extradition, 185, &c.
Factories, marriages in, 169.
Federal government, 338, &c.
Federations, defects of, 241.
Fisheries, 351, 355, &c.
Fishing, common right of, 363.
Foreigners, 173, 174, and see Refugees.
Foreign judgments in criminal cases, 1 83,
184.
Foreign sovereigns, 174.
Forfeiture of the Crown, 272.
Forms of government, classified, 250.
France. See Revolution.
Franchise, elective, 258260.
Franklin, his remark on legislatures in
two branches or chambers, 308.
Fundamental Laws, limiting the sovereign's
power, 267, &c.
Fundamental Laws, power of changing
them, 273275.
INDEX.
383
Fundamental Laws, their legal character,
248, 249.
Fundamental Laws, supreme, 344.
Game, Roman laws regarding, 351, n. .
Game. See Hunting and Fishing.
Genoa, mode of election there, 263.
Germany, attempted federal constitution
there, 3, 4.
German)-, contradictions of the sources of
law there, 160, 161.
Glossators, the, 23, 24.
Good, the sovereign, 25, 26, 35.
Gospel, the two great laws in the, 25, 26.
Government, difference between, and a
league, 338.
Government, dispute as to the best form
of, 141, 142. See Divine Right.
Government, mixed, 142, 253.
Government, use of, 58.
Greece, confederations in, 241.
Grotius, on the origin of Civil States, 201,
202.
Guardians to minors, 95.
Hanover, its former position regarding the
United Kingdom, 331.
Heirship in the Civil Law, 55.
Hereditary monarchy, 277, &c., 299, 300,
and see Peerage.
Hierarchy, 114, 130, 131.
Hindu Laws, their analogy to the Roman,
147.
Hobbes, his definition of the law of na-
tions, 68.
Hobbes on the origin of Civil States, 201.
Hooker on the origin of Civil States, 200.
Houses, doctrine of two, for legislation,
317.
Humanity, the tie of, 195.
Hunting and fishing, laws regarding, 351.
Hunting ground, 365.
Impeachments, 302, 313.
Imperium merum et mixtum, 217.
India, personal laws there, 158, 159.
Indian lands, 365.
International Law, late events considered
with reference to, 5.
International Law, 68, 195, 196, on what
it is founded, 1 2.
Interregnum, 279, 280.
Involuntary engagements, 56.
Islands, 367.
Italy, political changes in, 23.
James II., his flight, 205, 206.
Judges, mode of appointing, 323.
Judges, their tenure of office and salaries,
311, 323.
Judgments, conflict of laws regarding,
175178.
Judgments, effect of, 237, 238.
Judicial department, 322, &c.
Judicial power, 231, &c.
Judicial power, its weakness, 305.
Judicial power, its extent, 346.
Judicial power, declaring legislative acts
void, 343, 344.
Junius, his error regarding the power of
parliament, 274, n. *.
Juridical persons, 376, 377.
Jurisdiction, 217,233235.
Jurisdiction, civil and criminal, 235, &c.
Jurisdiction over ships at sea, 361.
Jurisdiction over the sea adjoining a coun-
try, 357,361.
Jurisprudence, 33.
Jurisprudence, harmony of its parts, 34.
Jury, trial by, 324.
Jus eminens, 227.
Jus gentium, 18.
Jus gentium, primary and secondary, 40
42.
Jus in re, and jus ad ran, 51.
Jus sacrum, of the Romans, 74.
Justice, the Crown the fountain of, 314.
Justinian, his fifty decisions, 219.
King, 273.
King, the, can do no wrong, 299, 312,
and see Ministers.
King, the title of, 264.
King. See Monarchy.
Kingdoms, connected by the person of
their sovereign, 330, 331.
Kings, doctrine of the Divine right of,
143, 144.
Lakes, 368370.
Lapse of benefices, 96.
Law, its origin and foundations, 14, &c.
Law, its division into two branches, public
and private, 14, 15.
384
INDEX.
Law, its first principles, 15, 16.
Law, its connexion with religion, 16, 37,
43.
Law, its necessity, 16, 17.
Law of nations described, 68.
Law of nations, supposed, created by con-
sent, 67.
Law of Nations. See Natural Law.
Laws, analogies of those of different
countries, 146, 147.
Laws, arbitrary and natural, their use and
diversities, 101, &c.
Laws, arbitrary or positive, 86, &c.
Laws of the Church, their necessity, 70,
119.
Laws, immutable, 63, &c.
Laws, mixed, 8082.
Laws, the two great fundamental, 25, 26,
40.
Laws, their obligatory force, 27, &c.
Lawyers, use of public law to them, 8
10.
Legatees, 59.
Legislation, 2 1 8, &c.
Legislative assemblies, whether they
should be single or double, 317, &c.
Legislative department, remedies against
its too great .preponderance, 314, &c.
Legislative power, 217, &c., 305, &c.
Liberty, 288, &c.
Lighthouses and seamarks, 359.
Limited monarchy, 265, 266.
Locke, on the origin of Civil States, 200.
Love of God and our neighbour, 25, 26.
Mackenzie, his doctrine regarding mo-
narchy, 144.
Magistrates and public officers, 225, 226.
Magistrate, necessity of the civil, 209.
Mahometan Laws, analogy with the Ro-
man, 147.
Majestatis jura, 217.
Majestatis jura, connexion of, 239, &c.
Majoritas et obedientia, 129.
Majority, authority of a, 207, 208, 228,
261, 334, 340.
Malta, election of the Grand Master of,
263.
Marriage, 53.
Marriage, conflict of laws regarding, 168,
&c., 176, &c.
Marriage, Sacrament of, 163.
Mathematics, compared by Burke with
moral sciences, 22.
Middle ages, personal laws during the,
157, 158.
Ministers. See Responsibility.
Mixed governments, 282, &c.
Monarchy, 142, 143, 264, &c.
Montesquieu, his constitutional theory,
293,295.
Montesquieu, his opinion as to federal
republics, 339.
Movables, regulated by law of domicil,
165.
Municipal laws, diversity of, 138, &c.
Nationality, abuse of, 125.
Nationality, held indelible, 152.
Nation, possessions of a, 371.
Nations, division of mankind into, 124, &c.
Nations, division of the world into, con-
sidered with reference to ecclesiastical
public law, 127, &c., 132, &c.
Nations, should maintain the law of na-
tions, 355.
Nations, supposed voluntary law of, 67.68.
Natural law, 17, 18, 6567, 126.
Natural law, how the civilians have di-
vided it, 40, 41.
Natural law, how the jurists divide it,
44, &c.
Natural law, its efficient cause, 65, 66.
Natural reason, 32.
Navigation Laws, mistaken spirit of the,
126.
Necessity and source of laws, 123, 124.
Negative of the President of the United
States, 315, 316.
Negative of the Crown in England, 312,
315,316.
Negotiorum gestorum, the contract, 55,56.
Neutral fortress, 358.
Nobility, how they affect a monarchy,
267.
Nobility in a mixed government, 300
302.
Notio, 234.
Oath, coronation, 270.
Oaths and promises of sovereigns, 269,
270.
INDEX.
385
Oaths, the House of Commons cannot
administer, 314.
Obedience and superiority, 129.
Obligation of laws, 2730, 98.
Obligations, ex contmctu, and quasi e.r
contractu, and er delicto, and quasi ex j
deliclo, 57.
Obligations. See Duties.
Occupancy, 370, 371.
Occupancy, acquisition of territories and
lands by, 364, &c.
Occupancy, simple and consequent, 368.
Omnes populi, the law, 30, 31.
Omnipotence of Parliament, 275.
Order, hierarchy of, 131.
Ordinary jurisdiction, 234.
Original contract, 205, 206.
Orleans, overthrow of the house of, 1 , 2.
Parliament, 275, 312.
Parliament, the Convention, 205.
Peace and war, 226, 227.
Peerage bill, its rejection, 391, note.
Peerage, elective, 301.
Peerage, hereditary, 298, 800, 301.
People, sovereignty of the, 212, &c.
People, the term, 204, 205.
People. See Representation.
Perfect and imperfect associations, 208,
209,211.
Personal laws, 156, &c.
Persons, juridical, 60.
Police, 145, 146.
Pope, election of the, 261.
Pope, his temporal power, 81, 82,280,
note .
Pope. See Unity.
Political liberty, 292.
Politics, distinction between, and jurispru-
dence, 31, 89.
Ports and harbours, 358.
Posthumous heir to the crown, 280.
Power, balance of, 292, 303, &c.
Prerogative defined, 320.
Prescription, 93, 94, 95, 355.
Prescription considered with reference to
International Law, 93, 94.
Prescription, its nature, 93, 95.
President of the United States, 341, 345.
Press, liberty of the, 291.
Property of the state, 229, 230.
Property, institution of, 89, 3o2.
Property, private, taken for public pur-
poses, 228.
Providence, 62.
Provinces, 328.
Public and private ecclesiastical law, 111,
112.
Public and private law, connexion be-
tween, 348.
Public law, 14, 15, 74.
Public law, its use at the present time, 5,
6.
Public law, meanings of the term, 110.
Public law, temporal and spiritual, its use,
107, fcc.
Public law, universal, 11, 12.
Public policy regarded by judges, 348.
Pufendorf on the origin of civil societies,
201.
Punishments, power of, 223, 224, 225.
Quasi contracts, 57, 269.
Real and personal estate, distinction be-
tween, as to successions, 59.
Reason, 31, 62.
Reason and grace, 69.
Refugees, foreign, 185, 186, &c.
Regent, 280,281.
Religion, 61, 195, 248.
Representation of the people, 228. n. m ,
254, &c.
Representation, the fiction of, 228.
Representatives, house of, in America,
340.
Republic, 251, &c.
Republic, French, 2, 318.
Res judicata, 237, 238.
Responsibility of ministers, 299, 316, 320,
321.
Revenue, public, 227.
Revenues of a state, 371, 372.
Revolution in France, 1, 243.
Rivers, 352, &c., 362.
Rivers, change of the course of, 366, &c.
Rivers, works constructed upon, 367.
Roman Catholic Church, its influence on
law and government, 121, 122.
Roman Catholic Church, its legislative
authority, 77.
386
INDEX.
Roman Catholic Church, its public law,
111, &c., 128, &c.
Roman Catholic Church, its relation to
the division of the world into states,
128, &c.
Roman Catholic Church, its stability and
social effects, 7, 8.
Roman Catholic Church, not within any
State, 78.
Rolls of Parliament, 149.
Rousseau, bis false doctrines, 57.
Sardinia, late events in the kingdom of,
3,4.
Savage tribes, their territories, 365.
Savigny, on the origin of civil states, 203,
&c.
Scrutinium, election per, 262.
Sea,dominion over neighbouring, 357, 361.
Sea, liberty of the, 125, 126, 353, &c.
Search, right of, 362.
Senate in America, 340.
Senates, 301. And see Upper House.
Shores, 358, 362.
Slavery, 47.
Socialist party, 4, 5.
Social state, 21, 26.
Society, civil legal origin of, 1 94, &c.
Society, end of, 104, 200.
Society, plan of, 35, &c., 52, &c.
Society, the three parts of, 195, 196.
Sovereign power, 206, &c., 211,270,271.
Sovereignty, residuary, 343.
Spiritual public law, 107, &c.
Spirit of laws defined, 149, 150.
State, connexion of, with the Church, 115.
States, legal origin of, 194, &c.
Status, 106, 107.
Statutes, real and personal, 163, 164.
Subjects of more than one country, 181,
182.
Substitutions, 101, 102.
Successions, 59, 60, 277.
Suffrage, laws regulating the, 257.
Suffrage, the, 257, &c.
Suffrage, universal, 258, 259, 260.
Supreme law, 343.
Sussex peerage case, 158.
Tacitus, his and Cicero's idea of mixed
government, 298.
Taxation, justice in, 229.
Taxation, the right of, 227,371, 372.
Taxes, laws establishing, 96.
Temporal and spiritual laws, 80, &c.
Temporal and spiritual laws, conflict be-
tween them, 13G.
Temporal and spiritual powers, 79, 80.
Temporal law, how it affects ecclesiasti-
cal things, 82, 136, 375, 376.
Territorial laws, 156.
Territories of a state, 363, &c.
Things common to all men, 352, &c.
Things consecrated, 374, 375.
Things public, 362, &c.
Things spiritual, 374.
Tilings, the law of, 347, &c.
Treasury, its power of regulation, 223.
Treaties, in what sense part of the law of
nations, 68.
Treaties, tacit clause in, 142, 272.
Trebonian, his error concerning obliga-
gations quasi ex contractu, 57, 147,
202, 269.
Trent, council of, decrees regarding mar-
riage, 168, 171.
Tyranny, 265.
Ulpian, his three precepts, 26, 27.
Unam sanctum, the decretal, 79.
Unanimity of assemblies, 207.
Unanimity required among confederates,
334, 340, 343.
Uninhabited countries, 364, 365.
United States, conflict of laws there, 161,
162.
United States, constitution of the, 338,
&c.
Unity of government, 243, 244, &c., 295,
&c.
Unity of the Church, 130, 135.
Universality of the law of the Church,
132, &c.
Universal suffrage, 258, &c.
Upper house or senate, use of a, 318.
Usage. See Custom.
Usucapion. See Prescription.
Utilitarian theory, 30, 31.
Utility, producing laws, 224.
Venice, her claim over the Adriatic, 358.
Venice, mode of electing the Doge of, 263.
INDEX.
387
Vessels at sea, 361.
Veto. See Negative.
Voting, secret, 261, 262.
Voting, the right of, 258, &c.
War, private, abolished, 233.
Washington, his dictatorship, 244.
Waters, running, 352.
Women, their exclusion from political
suffrage, 259.
Wrecks, 359.
Wrongs, distinction between public and
private, 235, 236.
Zallinger on the origin of civil states, 202.
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1870.
ADM IRALTY.-Boy d. Vide Shipping."
Lowndes. Vide "Collisions."
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Second Edition. By ROBERT A. PRITCHARD, D.C.L.,
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Head. Vide "Statutes."
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ber 26, 1S76.
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With the Rules, a Copious Index, and a Supplement of Decisions.
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BILLS OF EXCHANGE. Chitty on Bills of Exchange
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BALFOUR BROWNE, of the Middle Temple, Esq., Barrister-at-
Law, Registrar to the Railway Commission. 8vo. 1873. 18s.
CHANCERY and Vide " EQUITY."
Daniell's Chancery Practice. The Practice of the High
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Court. By the late EDMUND ROBERT DANIELL, Barrister-at-
Law. Fifth Edition, by LEONARD FIELD and EDWARD
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Act, and the Rules and Orders thereunder, and a Collection of
Forms. By LEONARD FIELD and EDWARD CLENNELL
DUNN, Barristers-at-Law. 8vo. 1873. 8*. 6d.
"It is the merit of Mr. Daniell's 'Practice' that it takes nothing as known. The
reader is minutely instructed what he is to do and hotf he is to do it, and if he closely
follows his guide he cannot go wrong. " Law Timet.
Daniell's Chancery Forms. Forms and Precedents of
Pleadings and Proceedings in the High Court of Chancery, with
Practical Notes and Observations, and References to the Fourth
Edition of Daniell's Chancery Practice ; and incorporating the Forms
in Braithwaite's Record and Writ Practice. By LEONARD
FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law,
and JOHN BIDDLE, of the Master of the Rolls' Chambers.
Third Edition. By W. H. UPJOHN. (In the press.)
Morgan's Acts and Orders, Fifth Edition. 1876.
The Statutes, General Orders, and Rules of Court relating to the
Practice, Pleading, and Jurisdiction of the Supreme Court of Judi-
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the Actions assigned thereto. With copious Notes. Fifth Edition.
Carefully revised and adapted to the new Practice by GEORGE
OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, and
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1876. II. 10*.
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the profession." Law Tinus, Decembers, 1876.
" Jn the shape in which it now appears we have no donbt this edition will meet with a
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decessors. "--Law Journal, December 30, 1876.
"The practitioner will find iu the present edition, a lucid and compendi ius statement
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.... This new edition will maintain and enhance the high reputation deservedly
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Morgan arid Davey's Chancery Costs. Vide "Costs."
Orders and Rules of the High Court of Justice,
Chancery Division. Published by authority, as issued.
CHURCH AND CLERGY. Phillimore. ^"EcclesiasticalLaw."
Stephen's Laws relating to the Clergy. 2 vols.
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CIVIL LAW. Bowyer's Commentaries on the Modern
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Bowyer's Introduction to the Study and Use
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Cumin's Manual of Civil Law. A Manual of
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Text of the Institutes of Gains and Justinian arranged in parallel
columns ; and the Text of the Fragments of Ulpian, and of Selec-
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Greene. Vide "Roman Law."
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6 STEVENS AND SONS' LAW PUBLICATIONS.
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Mears. Vide "Roman Law."
Vpet Commentarius ad Pandectas, Translated
into English. Parti. The Contract of Sale. (Book xviii.)
By SIR ROLAND KNYVET WILSON, Bart., of Lincoln's Inn,
Barrister-at-Law. Royal 8vo. 1876. Net II. Is.
COLLISIONS. Lowndes' Admiralty Law of Collisions
at Sea. 8vo. 1867. 7s. 6rf.
COLONIAL LAW. Clark's Colonial Law. A Summary of
Colonial Law and Practice of Appeals from the Plantations. 8vo.
1834. 11. 4.
Vanderlinden. Vide "Dutch Law."
COMMENTARIES ON THE LAWS OF ENGLAND. Bowyer.
Vide " Constitutional Law."
Broom and Hadley's Commentaries on the
Laws of England. By HERBERT BROOM, LL.D., of
the Inner Temple, Barrister-at-Law ; Reader in Common Law to
the Inns of Court : Author of " A Selection of Legal Maxims,"
&c. ; and EDWARD A. HADLEY, M.A., of Lincoln's Inn,
Barrister-at-Law ; late Eellow of Trinity Coll., Cambridge. 4 vols.
8vo. 1869. 3Z. 3.
" Messrs. Broom and Hadley have been unsparing in their editorial labours. There
are abundant reference notes, so that the diligent student can consult the authorities
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and handy has been left undone." Law Journal, November 19, 1K69.
COMMERCIAL LAW. Levi's International Commercial
Law. Being the Principles of Mercantile Law of the following
and other Countries viz. : England, Scotland, Ireland, British
India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Den-
mark, France, Germany, Greece, Hans Towns, Italy, Netherlands,
Norway, Portugal, Prussia, Russia, Spain, Sweden. Switzerland,
United States, and Wiirtemburg. By LEONE LEY I, Esq., P.S.A.,
F.S.S., of Lincoln's Inn, Barrister-at-Law, Professor of the Principles
and Practice of Commerce at King's College, London, &c. Second
Edition. 2 vols. Royal 8vo. 1863. II 15a.
Smith. Vide "Mercantile Law."
COMMON LAW. Braithwaite. Vide "Oaths."
Fisher. Vide " Digests."
Orders and Rules of the High Court of Justice,
Common Law Divisions. Published by Authority, as
issued.
Prentice. Vide "Action."
Smith's Manual of Common Law. A Manual of
Common Law, comprising the fundamental principles and the points
most usually occurring in daily life and practice ; for the Prac-
titioner, Student, and General Reader. By JOSIAH W. SMITH,
B.C.L., Q.C., Judge of County Courts. Eighth Edition. (In
the press.)
" Admirably conceived and executed Eminently lucid and concise . . .
. . A pocket-book of pith and essence of common law." Leguleian.
" Mr. .] osial i Smith possesses, in an eminent degree, that kind of logical skill which exhibits
itself in the simple arrangement, but exhaustive division, of wide and complicated subjects,
and is, moreover, gifted with the rare power of accurate condensation." Solicitors' Journal.
" To more advanced students, and to the practitioner, whether barrister or attorney, we
think the ' Manual of Common Law ' a most useful and convenient companion
It is compiled with the scrupulous care and the ability which distinguish Mr. Smith's
previous works." Juritt.
' Smith's .Manuals of Common Law nnd Equity must be resorted to as the open sesames
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Dr. HOLLIT'S ^Lecture, p. 1 1.
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COMMONS AND INCLOSURES. Chambers' Digest of the
Law relating to Commons and Open Spaces.
Including Public Parks and Recreation Grounds ; with Official
Documents, Bye-Laws, Statutes and Cases. By GEORGE F.
CHAMBERS, of the Inner Temple, Esq., Barrister-at-Law. Im-
perial 8vo. 1877. 6s. 6d.
Cooke on Inelosures. The Acts for facilitating the In-
closure of Commons in England and Wales ; with a Treatise on
the Law of Rights of Commons, in reference to these Acts, &c., &c.
With Forms as settled by the Inclosure Commissioners. By G.
WINGROVE COOKE, Esq., Barrister-at-Law. Fourth Edition.
12mo. 1864. 16*.
COMPANY LAW. Fide "Joint Stocks."
COMPANIES, LIABILITIES OF PROMOTERS OF. Finlason's
Report of the Case of Twycross v. Grant, in the
Court of Common Pleas and the Court of Appeal, with the Judg-
ments, as revised by the Judges, And an Introduction and Notes,
containing notices of the previous cases on the subject. By W. F.
FIXLASON, of the Middle Temple, Esq., Barrister-at-Law. 8vo.
1877. Net, 2s. 6d.
COMPANY PRECEDENTS. Paloier. F;<fe "Conveyancing."
CONSTITUTIONAL LAW.-Bowyer's Commentaries on
the Constitutional Law of England. By Sir
GEO. BOWYER, D.C.L. Second Edition. Royal 8vo. 1846 II. 2*.
CONTRACTS. Addison on Contracts. Being a Treatise on
the Law of Contracts. By C. G. ADDISON, Esq., Author of
the " Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one
of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo.
1875. II. 18s.
"At present this is by far the best book upon the law of Contract possessed by the
Profession, and it is a thoronghJy practical book." Law Tunes.
Leake on Contracts. The Elements of the Law of Con-
tracts. Second Edition. By STEPHEN MARTIN LEAKE,
of the Middle Temple, Barrister-at-Law. (In the press.)
Pollock's Principles of Contract at Law and in
Equity ; being a Treatise on the General Principles relating to the
Validity of Agreements, with a special view to the comparison of
Law and Equity, and with references to the Indian Contract Act,
and occasionally to American and Foreign Law. By FREDERICK
POLLOCK, of Lincoln's Inn, Esq.,Barrister-at-Law.8vo. 1876. 11. it.
The Lord Chief Justice in his judgment in Mttropolitan Railway Company r.
Brogden and others, said, "The Law is well put by Mr. Frederick .Pollock
in his very able and learned work on Con tracts. "The Times, February 19,
1877.
" He has succeeded in writing a book on Contract* which the working lawyer will fyid
as useful for reference as any of its predecessors, and which at the same time will give
the student what he will seek for in vain elsewhere, a complete rationale of the law."
Law Magazine and Review, August, 1x76.
"Mr. Pollock's work ought, in our opinion, to take a high place among treatises of its
class. The ' fusion of law aud equity ' so far as that fusion is possible, is in his pages an
accomplished fact." Pal! Mall Gazette, March 3, 1876.
" A work which, in our opinion, shows great ability, a discerning intellect, a compre-
hensive mind, and painstaking industry. The book ought to be a success. '' Law Journal,
March 18, 1876.
" There is no part of the work that does not please us by the freshness of the style and
the ingenuity of the treatment. The author may be congratulated on having achieved a
marked success iu a field where others before him have written well." Solicitor's Journal.
April 8, 1876.
Smith's Law of Contracts. By the late J. W. SMITH,
K-I., Author of "Leading Cases," &c. Sixth Edition. B.
VINCENT T. THOMPSON, Esq., Barrister-at-Law. 8vo. 1874. 16s.
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8 STEVENS AND SONS' LAW PUBLICATIONS.
CONVEYANCING. Greenwood's Manual of Convey-
ancing. A Manual of the Practice of Conveyancing, showing
the present Practice relating to the daily routine of Conveyancing
in Solicitors' Offices. To which are added Concise Common Forms
and Precedents in Conveyancing ; Conditions of Sale, Conveyances,
and all other Assurances in constant use. Fifth Edition. By
H. N. CAPEL, B. A., LL.B., Solicitor. Demy 8vo. 1877. 15s.
"The information under these heads is just of that ordinary practical kind which i^
learned from experience and is not to be gathered from treatise*. . . . A careful study
of these pages would probably arm a diligeut elerk with a' much useful knowlndge as he
might otherwise take years of desultory questioning and observing to acquire." Solicitor*
Journal.
"The young solicitor will find this work almost invaluable, while tha members of the
higher branch of the profession may refer to it with advantage. We have not met with
any book that furnishes so simple a guide to the management of business entrusted to
articled clerks." Sheffield Pott
Martin's Student's Conveyancer. A Manual on the
Principles of Modern Conveyancing, illustrated and enforced by a
Collection of Precedents, accompanied by detailed Remarks. Part I.
Purchase Deeds. By THOMAS FREDERIC MARTIN, Solicitor.
Demy 8vo. 1877. 5s. 6d.
" We have no doubt that the student will find in Mr. Martin's treatise a good guide to
the practical part of conveyancing." Law Times, June i3, 1877.
" It should be placed in the hands of every student."
Palmer's Company Precedents. Conveyancing and
other Forms and Precedents relating to Companies' incorporated
under the Companies' Acts, 1862 and 1867. Arranged as follows :
Agreements, Memoranda of Association, Articles of Association,
Resolutions, Notices, Certificates, Provisional Orders of Board of
Trade, Debentures, Reconstruction, Amalgamation, Petitions, Orders.
With Copious Notes. By FRANCIS BEAUFORT PALMER, of
the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1877. II. 5s
" To those concerned in getting np companies, the assistance given by .Mr. Palmer
must be very valuable, because he does not confine himself to bare precedents, but by
intelligent aud learned commentary lights up, as it were, each step that he takes. The
volume before us is not, therefore a book of precedents merely, but, in a greater or less de-
gree, a treatise on certain portions of the Companies' Acts of 186:2 aud 1867. There is an
elaborate index, and the work is one which must commend itself to the profession."
Late Times, June 9, 1S77.
"The precedents are as a rule exceedingly well drafted, and adapted to companies for
almost every conceivable object 80 especially are the forms of memoranda and articles
of association ; and these will be found extremely serviceable t the conveyancer. . .
All the notes have been elaborated with a thoroughly scientific knowledge of the
principles of company law, as well as witli copious references to the cases substantiating
the principles. . . Weventuretopredictthathisnott-swillbefoundofgreatutility
in guiding opinions on many complicated questions of law and practice." Law Journal,
June 23, 1877.
Prideaux's Precedents in Conveyancing. With
Dissertations on its Law and Practice. Eighth Edition. By
FREDERICK PRIDEAUX, late Professor of Real and Personal
Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs.,
Barristers-at-Law. 2 vols. Royal 8vo. 1876. 31. 10s,
"Prideaux has become an indispensable part of the Conveyancer's library The
new edition has been edited with a care and accuracy of which we can hardly speak too
highly." Solicitors' Journal, October 14, 1876.
" We really e*n hardly imagine a conveyancer being required to prepare any instru-
ment which he will not find sketched out in the work under notice. .... We may
also be allowed to add our tribute of praise to these Precedents for their conciseness,
perspicuity, precision, and perfection of drafting." Law Journal. September 23, 1876.
CONVICTIONS. Paley on Summary Convictions.
Fifth Edition. By H. T. J. MACNAMAKA, Esq., Barrister-at-
Law. 8vo. 1866. II. It.
Stone. Vide " Petty Sessions."
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COPYRIGHT.-Phillips' Law of Copyright. The Law of
Copyright in Works of Literature and Art, and in the Appli-
cation of Designs. With the Statutes relating thereto. By
CHARLES PALMER PHILLIPS, of Lincoln's Inn, Esq.,
Barrister-at-Law. 8vo. 1863. 12s.
" Mr. Phillips' work is at once an able law-book and a lucid treatise, in a popular forms
on the rights of authors and artists." Jurist.
CORONERS. Jervis on the Office and Duties of
Coroners. With Forms and Precedents. Third Edition. By
C. W. LOVES Y, Esq., Puisne Judge, British Guiana. 12mo.
1866. 12*.
COSTS. Carew's Precedents of Bills of Costs, for
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one of Her Majesty's Counsel, late Stowell Fellow of University
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M.A., one of Her Majesty's Counsel, late Fellow of University
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CRIMINAL LAW, Archbold's Pleading and Evidence
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DECREES. Seton. Fide " Equity."
DIARY Lawyer's Companion (The), Diary, and Law
Directory. For the use of the Legal Profession, Public Com.
panies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c.
PUBLISHED ANNUALLY. Thirty-second Issue for 1878. (Now ready.)
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" A publication which has long ago secured to itself the farour of the profession, and
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"The present issue contains all the information which could be looked for in such a
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" The ' Lawyer's Companion and Diary ' is a book that ought to be in the possession of
every lawyer, and of every man of business."
"The ' Lawyer's Companion' is, indeed, what it is called, for it combines everything
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DICTIONARY. Wharton's Law Lexicon. A Dictionary of
Jurisprudence, explaining the Technical Words and Phrases employed
in the several Departments of English Law ; including the various
Legal Terms used in Commercial Transactions. Together with an
Explanatory as well as Literal Translation of the Latin Maxims
contained in the Writings of the Ancient and Modern Commentators.
Sixth Edition. Enlarged and revised in accordance with the
Judicature Acts, by J. SHIRESS WILL, of the Middle Temple,
Esq., Barrister-at-Law. Super royal 8vo. 1876. 2/. 2*.
" As a work of reference for the library, the handsome and elaborate edition of
Wharton's Law Lexicon ' which Mr. Shiress Will has produced, must supersede all former
issues of that well-known work." Law Magazine and Retnnc, August, 1876.
" No law library is complete without a law dictionary or law lexicon. To the practi-
tioner it is always useful to have at hand a book where, in a small compass, he can find
an explanation of terms of inlrequent occurrence, or obtain a reference to statutes on
most subjects, or to books wherein particular subjects are treated of at full length. To the
student it is almost indispensable." [Continued.
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12 STEVENS AND SONS' LAW PUBLICATIONS.
DICTIONARY. Wharton's Law Lexicon.- Continued.
"We have simply to notice that the same ability and accuracy mark the present
edition which were conspicuous in its predecessor. Mr. Will has done all that was ren-
dered necessary by the Judicature Acts, in the shape of incorporation and elimination,
and has brought the Statute Law down to the date of publication." Law Times, March 4,
1876.
" Wharton's perennial Law Lexicon has just been adapted to the new condition of the
Law, brought about by the Judicature Act. The task of revision has been ably per-
formed by Mr. Shiress Will." Saturday Review, April 15, 1876.
DIGESTS. Bedford. Fide " Examination Guides."
Chamber's Vide " Public Health."
Chitty's Equity Index. Chitty's Index to all the Reported
Cases, and Statutes, in or relating to the Principles, Pleading, and
Practice of Equity and Bankruptcy, in the several Courts of Equity
in England and Ireland, the Privy Council, and the House of Lords,
from the earliest period. Third Edition. By J. MACAULAY,
Esq., Barrister-at-Law. 4 vols. Royal 8vo. 1853. 71. 7s.
Fisher's Digest of the Reported Cases deter-
mined in the House of Lords and Privy Council, and in the
Courts of Common Law, Divorce, Probate, Admiralty and Bank-
ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ;
with References to the Statutes and Rules of Court. Founded on
the Analytical Digest by Harrison, aid adapted to the present
practice of the Law. By R. A. FISHER, Esq., Judge of the
County Courts of Bristol and of Wells. Five large volumes, royal
8vo. 1870. 121. 12s
(Continued Annually.)
" Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry." Mr.
Justice Willes.
" The fact is, that we have already the best of all possible digests. I do not refer merely
to the works which pass under that title though, I confess, I think it would be very
difficult to improve upon Mr. Fisher's 'Common Law Dig-est' I refer te the innumerable
text books of every branch of the law. What better digest of criminal law could we
possibly hope for than 'Russell on Crimes,' and the current Roscoe and Archbold, to say
nothing of the title, 'Criminal Law,' in 'Fisher's Digent.' " Sir James Fitzjames Stephen,
Q,C.,inhuA ddress to the Law Amendment Society on Codification in India and England, Session
1872-3.
Leake. Vide "Real Property."
Notanda Digest in Law, Equity, Bankruptcy
Admiralty, Divorce, and Probate Cases. By
H. TUDOR BODDAM, of the Inner Temple, and HARRY
GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. The
NOTANDA DIGEST, from the commencement, October, 1862, to
December, 1876. In 1 volume, half -bound. Net, 31. 3s.
Ditto, in 2 volumes, half-bound. Net, 31. 10s.
Ditto, Third Series, 1873 to 1876 inclusive, half-bound. Net, 11. 11s. Gd.
Ditto, for 1876, with Indexes, sewed. Net, 12s. 6d.
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%* The Cases under the Judicature Acts and Rules of Court
commence in No. 4 of 1876. The numbers are now issued regularly
every alternate month. Each number will contain a concise analysis
of every case reported in the Law Reports, Law Journal, Weekly
Reporter, Law Times, and the Irish Law Reports, up to and including
the cases contained in the parts for the current month, with references
to Text-books, Statutes, and the Law Reports Consolidated Digest.
An ALPHABETICAL INDEX of the subjects contained IN EACH NUMBER
will form a new feature in this series.
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DIGESTS. Continutd.
Pollock. Vide " Partnership."
Roscoe's. Vide " Criminal Law " and "NisiPrius."
DISCOVERY. Seton. Vide "Equity."
DIVORCE. Browne's Treatise on the Principles
and Practice of the Court for Divorce and
Matrimonial Causes: With the Statutes, Rules. Fees,
and Forms relating thereto. Third Edition. By GEORGE
BROWNE, Esq., B.A., of the Inner Temple, Barrister-at-Law,
Recorder of Ludlow. 8vo. 1876. 1L 4s.
" We think this Edition of Mr. Browne's Treatise has been edited with commendable
care. The book, as it now stands, is a clear, practical, and, so far as we have been able to
test it, accurate exposition of divorce law and procedure." Solicitors' Journal, April 22, 1 876
Macqueenon Divorce and Matrimonial Causes.
Including Scotch Marriages and Scotch Law of Divorce, &c. With
numerous Precedents. Second Edition, greatly enlarged. By JOHN
FRASER MACQUEEN, Esq., one of Her Majesty's Counsel. 8vo.
1860. 18*.
DOMICIL. Phillimore's (Sir R.) Law of Domieil. 8vo.
1847.
DUTCH LAW. Vanderlinden's Institutes of the Laws
of Holland. 8vo. 1828. 17.18*.
EASEMENTS. Goddard's Treatise on the Law of
Easements. By JOHN LEYBOURN GODDARD, of the
Middle Temple, Esq., Barrister-at-Law. Second Edition. Demy
8vo. 1877. 16s.
" The book is invaluable : where the cases are silent the author has taken pains to
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cally, as by Mr. Goddard. We recommend it to the most careful study of the law student
as well as to the library of the practitioner." Lav> Tiinet
"Woolryeh. Vide "Lights."
ECCLESIASTICAL. Finlason's Folkestone Ritual
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Ritual Case, with an Historical Introduction and brief Notes. By
W. F. FINLASON, of the Middle Temple, Esq., Barrister-at-Law.
8vo. 1877. Net, 2s. 6d.
Phillimore's (Sir R.) Ecclesiastical Law. The
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containing the Statutes and Decisions to end of 1875. By SIB
ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches
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ELECTIONS. FitzGerald. Fide "Ballot."
Rogers on Elections, Registration, and Election
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Edition. By F. S. P. WOLFERSTAN, of the Inner Temple, Esq.,
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"Mr. Wolferstan has added a new chapter on election agency, which contains a care-
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14 STEVENS AND SONS' LAW PUBLICATIONS.
ENGLAND, LAWS OF, Bowyer. Vide "Constitutional Law."
Broom and Hadley. Vide " Commentaries."
Syms' Code of English Law (Principles and Practice)
for handy reference in a Solicitor's office. ByF. R. SYMS, Solicitor.
12mo. 1870. 16s.
EQUITY, ad Vide CHANCERY.
Seton's Forms of Decrees, Judgments, and
Orders in the High Court of Justice and Courts
of Appeal, having especial reference to the Chancery Division,
vith Practical Notes. Fourth Edition. By R. H. LEACH, Esq.,
Senior Registrar of the Court of Chancery ; P. G-. A. WILLIAMS,
of the Inner Temple, Esq. ; and H. W. MAY, of Lincoln's Inn,
Esq., Barristers-at-Law. In 2 vols. Vol. I. Royal 8 vo. 1877. II. 10s.
"This Volume contains Judgment by Default and at Trial; Motion for Judgment ;
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" Cannot fail to commend itself to practitioners. Nothing need be said as to the
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the profession upon the fact that this edition comes out uuder circumstances peculiarly
calculated to enhance its value." Law Times, February 24, 1877.
' The impre.wion derived from our perusal of the book is that it represents the result
of conscientious and intelligent labour on the part of the editors, and we think it deserves,
and will obtain, the confidence of the profession." Solicitor? Journal, April 7, 1877.
(Vol. H. in the pi-ess.)
Smith's Manual of Equity Jurisprudence.
A Manual of Equity Jurisprudence for Practitioner and Students,
founded on the Works of Story, Spence, and other writers, and on
more than a thousand subsequent cases, comprising the Fundamental
Principles and the points of Equity usually occurring in General
Practice. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County
Courts. Twelfth Edition. 12mo. 1878. (Nearly ready.) 12s. 6d.
"To sum up all in a word, for the student and the jurisconsult, the Manual is the nearest
approach to an equity code that the present literature of the law is able to furnish "Law
Timet.
"It will be found as useful to the practitioner as to the student." Solicitors Journal.
" Mr. Smith's Manual has fairly won for itself the position of a standard work." Jurist.
" It retains and that deservedly, the reverence of both examiners and students."
Dr. EOLLIT'S Lecture on a Course of Reading.
" There is no disguising the truth ; the proper mode to use this book is to learn its pages
by heart." Law Magazine and Review.
Smith's (Sidney) Principles of Equity. 8vo. 1856,
II. 5s.
EVIDENCE. Archbold. Frde Criminal."
Roseoe. Vide "Criminal"
Roscoe. Vide " Nisi Prius."
EXAMINATION GUIDES Bedford's Guide to the Preli-
minary Examination for Solicitors. Fourth
Edition. 12mo. 1874. Net, Bs.
Bedford's Digest of the Preliminary Examina-
tion Questions-on English and Latin, Grammar, Geography,
History, French Grammar, and Arithmetic, with the Answers.
8vo. 1875. 18s.
Bedford's Preliminary Guide to Latin Gram-
mar. 12mo. 1872. Net, 3s.
Bedford's Intermediate Examination Guide to
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EXAMINATION GUIDES -Continued.
The following are published the day after each Examination :
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Butlin. Vide "Articled Clerks."
Head. Vide "Statutes."
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EXECUTORS. Williams' Law of Executors and Ad-
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ministrators. Seventh Edition. By the Rt. Hon. Sir EDWARD
VAUGHAN WILLIAMS, late one of the Judges of Her Majesty's
Court of Common Pleas, and WALTER VAUGHAN WILLIAMS,
Esq., Barrister-at-Law. 2 vols. Royal 8vo. 1873. 31. 16s.
FACTORY ACTS. Notcutt's Factory and Workshop
Acts. Comprising all the Laws now in force (including the
Act of 1874) for the regulation of Labour in Factories and
Workshops, with Introduction, Explanatory Notes, and Notes of
decided cases, by GEORGE JARVIS NOTCUTT, of the Middle
Temple, Esq., Barrister-at-Law. 12mo. 1874. 9s.
FARM, LAW OF. Addison ; Cooke. Vide "Agricultural Law."
Dixon's Law of the Farm A Treatise on the Law of
the Farm. Fourth Edition. By HENRY PERKINS, of the
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FIXTURES. -Amos and Ferard on Fixtures. Second
Edition. Royal 8vo. 1847. 16*.
Woodfall. See "Landlord and Tenant."
FORMS Chitty's Forms. Eleventh Edition. By THOS. CHITTY
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Corner's Forms of Writs and other Pro-
ceedings on the Crown side of the Court
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Forms in Braithwaite's Record and Writ Practice. By LEONARD
FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law,
and JOHN BIDDLE, of the Master of the Rolls' Chambers
Third Edition. By W. H. UPJOHN. (In the press.)
Moore's Solicitor's Book of Practical Forms.
12mo. 1852. 7s. 6d.
HIGHWAYS. Bateman's General Highway Acts.
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16 STEVENS AND SONS' LAW PUBLICATIONS.
H I GHW AY S .-Confined.
Shelford's Law of Highways. The Law of
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Wales, and other Statutes, with copious Notes of the Decisions
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Bench. 12mo. 1865. 15*.
%* The Supplement may be had separately, price 3s. sewed.
INCLOSURES. Vide "Commons."
INDIAN LAW. Montriou; the Hindu Will of Bengal
With an Introductory Essay, &c. Royal 8vo. 18*70. Net, II. 10s*
Norton's Leading Cases on the Hindu Law^ of
Inheritance. 2 vols. Royal 8vo. 1870-71. Net, 21. 10s.
INFANTS. Ebsworth's Law of Infants. A Handy Book
of the Law of Infants. By JOHN EBSWORTH, Esq., Solicitor.
12mo. 1861. 3.
Forsyth's Law relating to the Custody of
Infants in Cases of difference between
Parents or Guardians. 8vo. 1850. 8s.
INJUNCTIONS. Seton. Vide " Equity."
INSURANCE. Arnould on the Law of Marine Insu-
rance. Fifth Edition. By DAVID MACLACHLAN, Esq.,
Barrister-at-Law. 2 vols. Royal 8vo. 1877. 3Z.
" As a text book, Arnould is now all the practitioner can want, and we congratulate,
the editor upon the skill with which he has incorporated the new decisions. Law Time*,
Oct. 6th, 1877.
Hopkins' Manual of Marine Insurance. 8vo.
1867. 18s.
Lowndes. Vide "Average."
INTERNATIONAL LAW Amos' Lectures on Inter-
national Law\ Delivered in the Middle Temple Hall to the
Students of the Inns of Court, by SHELDON AMOS, M.A., of
the Inner Temple, Barrister-at-Law ; Professor of Jurisprudence
(including International Law) to the Inns of Court ; Professor of
Jurisprudence in University College, London. Royal 8vo. 1874.
10s. 6d
Kent's International Law. Kent's Commentary on
International Law. Edited by J. T. ABDY, LL.D., Judge of
County Courts. Second Edition. Revised and brought down to
the present time. Crown 8vo. 1878. (Just ready.) 10s. 6d.
"Dr. Abdy has done all Law Students a great service in presenting that portion ol
Kent's Commentaries which relates to public international Law in a single volume, neithet
large, diffuse, nor expensive."
" Altogether Dr. Abdy has performed his task in a manner worthy of his reputation
His book will be useful not only to Lawyers and Law Students, for whom it was primaril)
intended, but also for laymen. It is well worth the study of every member of an enlighteneo
and civilized community." Solicitors' Journal.
Levi's International Commercial Law. Being the
Principles of Mercantile Law of the following and other Countries
viz. : England, Ireland, Scotland, British India, British Colonies,
Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany,
Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia.
Russia, Spam, Sweden, Switzerland, United States, and Wiirtemberg.
By LEONE LEVI, Esq., F.S.A., F.S.S., of Lincoln's Inn, Barrister-
at-Law, Professor of the Principles and Practice of Commerce at
King's College, London, &c. Second Edition. 2 vols. Royal 8vo.
1863. U. 15s.
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119, CHANCERY LANE, LONDON, W.C. 17
INTERNATIONAL LAW -Continued.
Prize Essays on International Law By A. P.
SPKAGUE, Esq., Counsellor of Law in the United States, and
11. PAUL LACOMBE, Advocate in France. With an Introduc-
tion by His Excellency DON ARTURO DE MARCOARTU,
Ex-Deputy to the Cortes. Royal 8vo. 1876. 7s. 6d.
Vattel's Law of Nations. By JOSEPH CHITTY, Esq.
Royal 8vo. 1834. II. Is.
Wildman's International Law. Institutes of Inter-
national Law, in Time of Peace and Time of War. By RICHARD
WILDMAN, Barrister-at-Law. 2 vols. 8vo. 1849-50. II. 2s. 6d.
INTESTATE SUCCESSIONS Colin's Essay on Intestate
Successions. According to the French Code. By BAR-
THELEMY HARDY COLIN, of the Middle Temple. 12mo
1876. 6s.
"A very intelligent essay." Late Time*, February 24, 1877.
JOINT STOCKS. Jordan's Joint Stock Companies. A
Handy Book of Practical Instructions for the Formation and
Management of Joint Stock Companies. Fifth Edition. 12mo.
1875. Net, 2s. 6d.
Palmer Vide "Conveyancing."
Thring's (Sir H.) Joint Stock Companies' Law.
The Law and Practice of Joint Stock and other Public Companies, in-
cluding the Statutes, with Notes, and the Forms required in Making,
Administering, and Winding-up a Company, with a Supplement
containing the Companies' Act, 1867, and Notes of Recent Decisions.
By SIB HENRY THRING, K.C.B., The Parliamentary Counsel
Third Edition. By GERALD A. R. FITZGERALD, of Lincoln's
Inn, Esq., Barrister-at-Law, and Fellow of St. John's College,
Oxford. 12mo. 1875. II.
'This, as the work of the original draughtsman of the Companies Act of 1862, and
well-known Parliamentary counsel, Sir Henry Thring, is naturally the highest authority
on the subject." The Times, April 21, 1876.
JUDGMENTS. Pask's Judgments, Executions, and
Crown Debts. The Judgments Law Amendment Acts
relating to Real Property, 22 & 23 Viet., c. 35, and 23 & 24 Viet.,
c. 38, 23 & 24 Viet. c. 115, and 27 & 28 Viet. c. 112. With Notes,
References to Cases, and Index : forming an Appendix to " The
Practice of Registering," &c. By JAMES PASK, Chief Clerk to
the Registrar to the Court of Common Pleas, Westminster. Third
Edition. 12mo. 1866. Sewed. Net, 2*.
Seton. Vide " Equity."
JUDICATURE ACTS. Braithwaite. Vide "Oaths."
Clowes' Compendious Index to the Supreme
Court Of Judicature Acts, and to the Orders and Rules
issued thereunder. By W. CLOWES, Esq., one of the Registrars
of the Court of Chancery. Second Edition, revised and enlarged
(Uniform in size with the Queen's Printer's Edition of the Acts and
Rides.) 1875. Half bound. 10s Qd.
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JUDICATURE ACTS -Continued.
Leys' Complete Time-Table to the Rules under
the SupremeCourtof Judicature Act, 187S. Show-
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ings may be taken. By JOHN KIRKWOOD LEYS, M. A., of the
Middle Temple, Esq., Barrister-at-Law. RoyalSvo. 1875. Net, Is. 6d.
Lynch and Smith's Introduction to the Final
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Incorporated Law Society, with the answers adapted to meet the
recent extensive alterations made by the JUDICATURE ACT,
1873. By H. FOULKS LYNCH, Solicitor, and ERNEST
AUGUSTUS SMITH, Solicitor, Clifford's Inn, Prizeman ; Senior
Prizeman of the Incorporated Law Society, and Brodrip Gold Medalist,
1872. Vol. I. The Principles of the Law. Post 8 vo. 1874. 12s.
Lynch's Epitome of Practice in the Supreme
Court of Judicature in England. With References
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Third Edition. Incorporating the Appellate Jurisdiction Act, 1876,
and the Rules of the Supreme Court, December, 1875, and June,
1876. 1876. Net, 1*.
Morgan. Vide "Chancery."
Scott. Vide " Costs."
Stephen's Judicature Acts 1873, 1874, and 1875,
consolidated. With Notes and an Index. By Sir JAMES
STEPHEN, one of Her Majesty's Counsel. 12mo. 1875. 4s. 6d.
Wilson's JudieatureActs,Rules and Forms. With
Notes and a copious Index, and additional Rules, forming a COM-
PLETE GUIDE TO THE NEW PRACTICE. By ARTHUR WILSON, of
the Inner Temple, Esq., Barrister-at-Law. Royal 12mo. 1875. 18s.
%* A LARGE PAPER EDITION OF THE ABOVE (for marginal notes), with
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and adapting the new practice and procedure." Solicitors' Journal, October 23, 3875.
" We have nothing but praise to bestow upon the annotating ot the rules. We have
no doubt it will maintain a position in the front rank of the works upon the all-engrossing
subject with which it deals." Late Times, October 16, 1875.
" Mr. Wilson has appended to the Acts and Kules, especially the latter, a valuable body
of notes, which we are sure will be found useful." Law Journal, Oct. 30, 1875.
" Mr. Arthur Wilson, as might have been expected, is particularly successful in deal-
ing with the Rules of Court, to which, indeed, his notes are an almost indispensable
accompaniment." Late Magazine, November 1875.
JURISPRUDENCE. Amos, Law as a Science and as
an Art. An Introductory Lecture delivered at University
College at the commencement of the session 1874-5. By SHELDON
AMOS, Esq., M.A., Barrister-at-Law. 8vo. 1874. Net, 1. 6d.
Phillimore's (J. G.) Jurisprudence. An Inaugural
Lecture on Jurisprudence, and a Lecture on Canon Law, delivered
at the Hall of the Inner Temple, Hilary Term, 1851. By J. G.
PHILLIMORE, Esq., Q.C. 8vo. 1851. Sewed. 3s. 6d.
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JUSTICE OF THE PEACE. Arnold's Summary of the
Duties of a Justice of the Peace out of
Sessions. Summary Convictions. By Sir T. J. ARNOLD,
Chief Metropolitan Police Magistrate. 8vo. 1860. II. Gs.
Burn's Justice of the Peace and Parish Officer.
Edited by the following Barristers, under the General Superinten-
dence of JOHN BLOSSETT MAULE, Esq., Q.C., Recorder of
Leeds. The Thirtieth Edition. VoL I. containing titles
"Abatement" to " Dwellings for Artizans;" byTHOS. SIRRELL
PRITCHARD, of the Inner Temple, Esq., Recorder of Wenlock.
Vol. II. containing titles " Easter Offering " to " Hundred ;" by
SAML. BOTELER BRISTOWE, Q.C., M.P., of the Inner Temple,
Esq. Vol. III. containing titles " Indictment " to " Promissory
Notes ;" by LEWIS W. CAVE, Q.C., of the Inner Temple, Esq.,
Recorder of Lincoln. VoL IV. containing the whole title " Poor ;"
by JAMES EDWD. DAVIS, Esq., Stipendiary Magistrate for
Stoke-upon-Trent. (Sold separately, price 11. 11s. 6d.) VoL V. con-
taining titles "QuoWarranto" to "Wreck;" by JOHN BLOSSETT
MAULE, Esq., Q.C., Recorder of Leeds. Five vols. 8vo. 1869.
n. 7s
Since the publication in 1845 of the former Edition of Bum'i Justice of the Peace and
Parish Officer the whole range of the Law which Magistrates had to administer has
undergone more or less alteration, and, indeed, the time which has elapsed since that
publication appeared has doubtless worked as great a change in the Magistrates them-
selves : so that to very many of the Gentlemen now composing the body of Justices the
Encyclopedic Work of Burn must be, if not entirely unknown, at least unfamiliar as a
book of reference.
Paley. Vide "Convictions."
Stone. Vide " Petty Sessions."
JUSTINIAN, INSTITUTES OF .-Cumin. Fide "Civil Law."
Greene. Vide "Roman Law."
Mears. Vide "Roman Law."
Voet. Vide "Civil Law."
LAND DRAINAGE. Thring's Land Drainage Act. With
an Introduction, Practical Notes, an Appendix of Statutes relating
to Drainage, and Forms. By THEODORE THRING, Esq.,
Barrister-at-Law. 12mo. 1861. 7.
LAND TAX Bourdin's Land Tax. An Exposition of the
Land Tax ; its Assessment and Collection, with a statement of the
rights conferred by the Redemption Acts. By MARK A. BOUR-
DIN, of the Inland Revenue Office, Somerset House (late Registrar
of Land Tax). Second Edition. Crown 8vo. 1870. 4s.
LANDLORD AND TENANT. Woodfall's Law of Landlord
and Tenant. A Practical Treatise on the Law of Landlord
and Tenant, with a full Collection of Precedents and Forms of
Procedure. Eleventh Edition. Containing an Abstract of Leading
Propositions, and Tables of certain Customs of the Country. By J.
M. LELY, of the Inner Temple, Esq., Barrister-at-Law. Royal
8vo. 1877. (Just ready.) 11. 16s.
LAW, GUIDE TO. A Guide to the Law for General
Use. By a Barrister. Twenty-first Edition. 1877. Net, 2s. 6d.
"There may be many students of both branches of the profession who will find the
following pages au assistance to them in the couise of their reading, not in substitution
of but together with, or preliminary to, the voluminous and highly technical works which
they have necessarily to examine."
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20 STEVENS AND SONS' LAW PUBLICATIONS/
LAW LIST. Law List (The). Comprising the Judges and Officers
of the different Courts of Justice, Counsel, Special Pleaders,
Draftsmen, Conveyancers, Attorneys, Notaries, &c., in England
and Wales ; to which are added the Circuits, Judges, Treasurers,
Registrars, and High Bailiffs of the County Courts, District
Registries and Registrars under the Probate Act, Lords Lieu-
tenant of Counties, Recorders, Clerks of the Peace, Town Clerks,
Coroners, Colonial Judges, and Colonial Lawyers having English
Agents, Metropolitan Police Magistrates, Law Agents, Law and
Public Officers, Circuits of the Judges and Counsel attending
Circuit and Sessions, List of Sheriffs and Agents, London Commis-
sioners to Administer Oaths in the Supreme Court of Judicature in
England, Conveyancers Practising in England under Certificates
obtained in Scotland, &c., &c., and a variety of other useful matters
so far as relates to Special Pleaders, Draftsmen, Conveyancers,
Attorneys, Solicitors, Proctors and Notaries. Compiled by
WILLIAM HENRY COUSINS, of the Inland Revenue Office,
Somerset House, Registrar of Stamped Certificates, and of Joint
Stock Companies. Published annually. By authority. 1877.
Net, 10s. 6d.
LAW REPORTS. Fide pages 29-30.
LAWYER'S COMPANION. Fide "Diary."
LEGACIES. Roper's Treatise on the Law of Lega-
cies. Fourth Edition. By H. H. WHITE. 2 vols. Royal 8vo.
1847. 37. 3s.
LEXICON Vide "Dictionary."
LICENSING. Lely and Foulkes' Licensing Acts,
1828, 1869, 1872, and 1874; Containing the Law of the
Sale of Liquors by Retail and the Management of Licensed Houses ;
with Notes to the Acts, a Summary of the Law, and an Appendix
of Forms. Second Edition. By J. M. LELY and W. D. I.
FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s.
" Messrs. Lely and Fpulkes's plan is to print in full the principal Acts, and to inter-
polate between the sections of each of these statutes all subsidiary enactments, distin-
guishing them by brackets and marginal notes .... These notes are usually
sensible and to the point and give evidence both of care and knowledge of the subject."
Solicitors' Journal.
LIEN. Cross' Treatise on the Law of Lien and
Stoppage in Transitu. 8vo. 1840. 15s.
LIGHTS Woolryeh's Practical Treatise on the Law
of Window Lights. Second Edition. 12mo. 1864. 6s.
LOCAL GOVERNMENT. Vide "Public Health."
LUNACY. Elmer's Practice in Lunacy. The Practice in
Lunacy under Commissions and Inqusitions, with Notes of Cases
and Recent Decisions, the Statutes and General Orders, Forms and
Costs of Proceedings in Lunacy, an Index and Schedule of Cases.
Sixth Edition. By JOSEPH' ELMER, of the Office of the
Masters in Lunacy. 8vo. 1877. 21s.
MAGISTERIAL LAW. Burn. Fide "Justice of Peace."
Leeming and Cross. Vide " Quarter Sessions."
Paley. Vide "Convictions."
Pritchard. Vide " Quarter Sessions."
Stone. Vide "Petty Sessions."
*+*AU standard Law Workt are kept in Stock, in law calf and other bindinyt.
119, CHANCERY LANE, LONDON, W.C. 21
MAINTENANCE AND CHAMPERTY. Tapp on Main-
tenance and Champerty. An Inquiry into the present
state of the Law of Maintenance and Champerty, principally as
affecting Contracts. By WM. JOHN TAPP, of Lincoln's Inn, Esq.,
Barrister-at-Law. 12mo. 1861. is. 6d.
MANDAMUS. Tapping on Mandamus. The Law and
Practice of the High Prerogative Writ of Mandamus as it obtains
both in England and Ireland Royal Svo. 1848. II. Is.
MARINE INSURANCE Vide " Insurance."
MARTIAL LAW. Finlason's Treatise on Martial Law,
as allowed by the Law of England in time of Rebellion ; with
Practical Illustrations drawn from the Official Documents in the
Jamaica Case, and the Evidence taken by the Royal Commission of
Enquiry, with Comments Constitutional and Legal. By W. F.
FINLASON, Esq.. Barrister-at-Law. Svo. 1866. 12*.
MERCANTILE LAW Boyd. Vide "Shipping."
Brooke. Vide "Notary."
Russell. Vide "Agency."
Smith's Mercantile Law. A Compendium of Mercantile
Law. By the late JOHN WILLIAM SMITH, Esq. Ninth
Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq.,
one of Her Majesty's Counsel. Royal Svo. 1877. 1?. 18s.
"We can safely say that, to the practising Solicitor, few books will be found more
useful than the ninth edition of ' Smith's Mercantile Law.'" Late Magazine, Nov. 1877.
Tudor's Selection of Leading Cases on Mercan-
tile and Maritime Law. With Notes. By 0. D. TUDOR,
Esq., Barrister-at-Law. Second Edition. Royal Svo. 1868. II 18s.
METROPOLIS BUILDING ACTS -Woolrych's Metropolis
Building Acts, together with such Clauses of the Metropolis
Management Acts, 1855 and 1862, and other Acts, as more par-
ticularly relate to the Buildings Acts, with Notes, Explanatory of
the Sections and of the Architectural Terms contained therein.
Second Edition. By NOEL H. PATERSON, M. A, of the Middle
Temple, Esq., Barrister-at-Law. 12mo. 1877. 8s. 6d.
MINES. Rogers' Law relating to Mines, Minerals,
and Quarries in Great Britain and Ireland;
with a Summary of the Laws of Foreign States and Practical
Directions for obtaining Government Grants to work Foreign Mines.
Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Bar-
rister-at-Law. Svo. 1876. II. Us. 6d.
"Most comprehensive and complete." Law Times, June 17, 1876.
"Although issued as a Second Edition, the work appears to have been almost entirely
re-written and very muca improved. ... I he volume will prove invaluable as a
work of legal reference." The MiniiiQ Journal, May 13, 1876.
MORTGAGE. Coote's Treatise on the Law of Mort-
gage. Third Edition. Royal Svo. 1850. Net, II.
MORTMAIN. Rawlinson's Notes on the Mortmain
Acts ; shewing their operation on Gifts, Devises and Bequests for
Charitable Uses. Designed for the Use of Solicitors in Adminstra-
tion Suits in the Chancery Division of the High Court of Justice.
By JAMES RAWLINSON, Solicitor. Demy Svo. 1877. Inter-
leaved. Net, 2s. 6d.
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22 STEVENS AND SONS' LAW PUBLICATIONS.
MUNICIPAL ELECTIONS.- Vide "Ballot."
NAVY. Thring's Criminal Law of the Navy, with an
Introductory Chapter on the Early State and Discipline of the Navy,
the Rules of Evidence, and an Appendix comprising the Naval
Discipline Act and Practical Forms. Second Edition. By Theodore
Thring, of the Middle Temple, Barrister at-Law, late Commissioner
of Bankruptcy at Liverpool, and C. E. Gifford, Assistant- Pay master,
Royal Navy. 12mo. 1877. (Just ready.) ' 12s. Qd.
"In the new edition, the procedure, naval regulations, forms, and all matters con-
nected with the practical administration of the law have been classified and arranged by
Mr. Oifford, so that the work is in every way useful, complete, and up to date." Naval
and Military Gazette, December 12, 1877.
NISI PRIUS. Roseoe's Digest of the Law of Evidence
on the Trial of Actions at Nisi Prius. Thirteenth
Edition. By JOHN DAY, one of Her Majesty's Counsel, and
MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1875.
(Bound in one thick volume calf or circuit, 5s. Qd., or in two convenient vols.
coif or circuit, 10s. net, extra.)
" The work Itself has long ago won a position altogether unique, and in the hands of
its present editors there is no fear that the position will be lost." Law Journal, July 10, 1875
Selwyn's Abridgment of the Law of Nisi
Prius. Thirteenth Edition. By DAVID KEANE, Q.C.,
Recorder of Bedford, and CHARLES T. SMITH, M.A., one of the
Judges of the Supreme Court of the Cape of Good Hope. 2 vols.
Royal 8vo. 1869. (Published at 21. 16s.) Net, II.
NOT ANOA. Vide "Digests."
NOTARY. Brooke's Treatise on the Office and Prac-
tice of a Notary of England. With a full collection of
Precedents. Fourth Edition. By LEONE LEVI, Esq., P.S.A.
of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. II. 4s.
NUISANCES. FitzGerald. Vide "Public Health."
OATHS. Braithwaite's Oaths in the Supreme Court
of Judicature. A Manual for the use of Commissioners to
Administer Oaths in the Supreme Court of Judicature in England.
Part I. containing practical information respecting their Appoint-
ment, Designation, Jurisdiction, and Powers ; Part II. comprising a
collection of officially recognised Forms of Jurats and Oaths, with
Explanatory Observations. By T. W. BRAITHWAITE, of the
Record and Writ Clerks' Office. Fcap. 8vo. 1876. 4s. 6d.
"Specially useful to Commissioners." Law Magazine, February, 1877.
" The work will, we doubt not, become the recognized guide of commissioners to ad-
minister oaths." Solicitors' Journal, May 6, 1876.
PARTNERSHIP. Pollock's Digest of the Law of Part-
nership. By FREDERICK POLLOCK, of Lincoln's Inn,
Esq., Barrister-at-Law. Author of " Principles of Contract-at-Law
and in Equity." Demy 8vo. 1877. 8s. Qd.
%* The object of this work is to give the substance of the Law
of Partnership (excluding Companies) in a concise and definite form.
" Mr. Pollock's work appears eminently satisfactory . . . the b >ok is praiseworthy
in design, scholarly and complete in execution." Saturday Review, May 6, 1877.
" Mr. Pollock is most accurate in his law, which is a matter of much importance, in a
book whose contents may almost be got by heart by a hard-working student." The
Spectator, May 12, 1H77.
" A few more books written as carefully as the ' Digest of the Law of Partnership,' will,
perhaps, remove some drawbacks, and render English law a pleasanier and easier subject
to study than it is at present." The Examiner, March 31, 1877.
PATENTS. Hiudmarch's Treatise on the Law rela-
ting to Patents. 8vo. 1846. ll. is.
Seton. Vide "Equity."
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119, CHANCERY LANE, LONDON, W.C. 28
PERSONAL PROPERTY. Smith's Real and Personal
Property. A Compendium of the Law of Real and Personal
Property Primarily Connected with Conveyancing ; Designed as a
Second Book for Students, and as a Digest of the most useful
Learning for Practitioners. By JOSIAH W. SMITH, B.C.L.,
Q.C., Judge of County Courts. Fifth Edition. 2 vols. Demy 8vo.
1877. (Just ready.) 21. 2s.
PETITIONS. Palmer. Vide " Conveyancing."
PETTY SESSIONS. Stone's Practice for Justices of
the Peace, Justices' Clerks and Solicitors at Petty and Special
Sessions, in Summary Matters and Indictable Offences, with a List
of Summary Convictions and of Matters not Criminal. With Forms.
Eighth Edition. By THOMAS SIRRELL PRITCHARD, of
the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock.
In 1 vol. DemySvo. 1877. (Just ready.) 11. 10s.
" The design of the present Edition has been developed with a view to offer to Magis-
trates :uid Practitioner*, in one volume of moderate size, a complete general account of
the Procedure at t'etty Sessions in Summary Matters and Indictable Offences, in such a
consecutive fjrm, according to the usual order of events, as to render easily attainable
information on any poiut of procedure as it may arise at any given period of the pro.
ceedings." Extract from Preface.
"In clearness of exposition, in choice of matter, and, above all, in orderliness of
arrangement, the book leaves little to be desired The book, as a whole, is
thoroughly satisfactory, and, having gone carefully through it, we can recommend it
with confidence to the numerous bi>dy of our readers who are daily interested in the
subjects to which it relates." Solicitors' Journal, Dec. 8th, 1877.
PLEADING. Archbold. Firfe "Criminal"
POOR LAW. Davis' Treatise on the Poor Laws. Being
VoL IV. of Burn's Justice of the Peace. 8vo. 1869. II. Us. 6d.
POWERS. Farwell on Powers. A Concise Treatise on
Powers. By GEORGE FARWELL, B.A, of Lincoln's Inn, Esq.,
Barrister-at-Law. 8vo. 1874. II. Is.
" We recommend Mr. Farwedl's book as containing within a small compass what would
otherwise have to be sought out in the pages of hundreds of confusing reports. * The Law
November, 1874.
PRECEDENTS. Vide " Conveyancing."
PRINCIPAL AND AGENT. Petgrave's Principal and
Agent. A Manual of the Law of Principal and Agent. By
E. C. PETGRAVE, Solicitor. 12mo. 1857. 7s. 6d.
Petgrave's Code of the Law of Principal and
Agent, with a Preface. By E. C. PETGRAVE, Solicitor.
Demy 12mo. 1876. Net, sewed, 2s.
PRIVY COUNCIL. Lattey's Handy Book on the Prac-
tice and Procedure before the Privy Council.
By ROBERT THOMAS LATTEY, Attorney of the Court of
Queen's Bench, and of the High Court of Bengal ; and Advocate of
the Courts of British Burmah. 12mo. 1869. 6*.
PROBATE. Browne's Probate Practice: a Treatise on the
Principles and Practice of the Court of Probate, in Contentious and
Non-Contentious Business, with the Statutes, Rules, Fees, and
Forms relating thereto. By GEORGE BROWNE, Esq., Barrister-
at-Law, Recorder of Ludlow. 8vo. 1873. II. 1*.
" A cursory glance through Mr. Browne's work shows that it has been compiled with
more than ordinary care and intelligence. We should consult it with every confidence,
Md consequently recommend it to those who require an instructor in Probate Court prac-
tice." lava times, June 21, 1873.
PUBLIC HEALTH. Chambers' Exhaustive Index to
the Public Health Act, 1875 ; with the full Text of
the Act, and of most of the Incorporated Acts. By GEO. F.
CHAMBERS, Esq., Barrister-at-Law. Imp. 8vo. 1877. 4s. 6d.
** All standard Law Works are kept in Stock, in law calf and other bindings.
24 STEVENS AND SONS' LAW PUBLICATIONS.
PUBLIC HEALTH.-Omned.
Chambers' Digest of the Law relating to Public
Health and Local Government. With notes of
1073 leading Cases. Various official documents ; precedents of
By-laws and Regulations. The Statutes in full. A Table of
Offences and Punishments, and a Copious Index. Seventh Edition,
enlarged and revised, with SUPPLEMENT containing newLocal Govern-
ment Board By-Laws in full. Imperial 8vo. 1875-7. 28s.
%* The SUPPLEMENT may be had separately, price 9s.
Chambers' Popular Summary of Public Health
and Local Government Law. Imperial 8vo. 1875.
Net, Is. 6d.
FitzGerald's Public Health and Rivers Pol-
lution Prevention Acts. The Law relating to Public
Health and Local Government, as contained in the Public Health
Act, 1875, with Introduction and Notes, showing all the alterations in
the Existing Law, with reference to the Cases, &c.; together with a Sup-
plement containing "The Rivers Pollution Prevention Act, 1876."
With Explanatory Introduction, Notes, Cases, and Index. By G.
A. R. FITZGERALD, Esq., Barrister-at-Law. Royal Svo. 1876.
II. Is.
" A copious and well-executed analytical index completes the work which we can
confidently recommend to the officers and members of sanitary authorities, and all
interested in the subject matter of the new Act.'' Law Magazine and Review, February,
1877.
"Mr. FitzGerald's treatise is well adapted for the professional advisers of sanitary
boards." Public Health. December 1, 1876.
" Mr. FitzGerald comes forward with a special qualification for the task, for he was
employed by the Government in the preparation of the Act of 1875; and, as he himself
says, has necessarily, for some time past, devoted attention to the Law relating to public
health and local government. 1 ' Law Journal, April 22, 1876.
PUBLIC LAW t Bowyer's Commentaries on Uni-
versal Public Law. By Sir GEORGE BOWYER,
D.C.L. Royal 8vo. 1854. 12. 1*.
QUARTER SESSIONS. Leeming & Cross's General and
Quarter Sessions of the Peace. Their Jurisdiction
and Practice in other than Criminal matters. Second Edition. By
HORATIO LLOYD, Esq., Recorder of Chester, Judge of County
Courts, and Deputy-Chairman of Quarter Sessions, and H. F.
THURLOW, of the Inner Temple, Esq., Barrister-at-Law. 8vo.
1876. II. Is.
" The present editors appear to have taken the utmost pains to make the volume com-
plete, and, from our examination of it, we can thoroughly recommend it to all interested
in the practice of quarter sessions." Luw Time*, March 18, 1876.
Pritchard's Quarter Sessions. The Jurisdiction, Prac-
tice and Procedure of the Quarter Sessions in Criminal, Civil, and
Appellate Matters. By THOS. SIRRELL PRITCHARD, of the
Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. Svo.
1875. 11. 2s.
"We can confidently say that it is written throughout with clearness and intelligence,
and that both in legislation and in case law it is carefully brought down to the most
recent date." Solicitors' Journal, May 1, 1875.
RAILWAYS. Browne. Vide " Carriers."
Lely's Railway and Canal Traffic Act, 1873.
And other Railway and Canal Statutes ; with the General Orders,
Forms, and Table of Fees. By J. M. LELY, Esq., Barrister-at-Law.
Post Svo. 1873. 8s.
%,* All standard Law Worki are Icept in Stock, in law talfand other bindings.
119, CHANCERY LANE, LONDON, W.C. 2>
Simon's Law relating to Railway Accidents, in-
cluding an Outline of the Liabilities of Railway Companies as Carriers
generally, concisely Discussed and Explained. 12mo. 1862. ' 3s.
REAL PROPERTY. Dart. Fide "Vendors and Purchasers."
Leake's Elementary Digest of the Law of Pro-
' perty in Land. Containing : Introduction. Part I. The
Sources of the Law. Part II. Estates in Land. By STEPHEN
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tion of officially recognised Forms of Jurats and Oaths, with Explanatory Observa-
tions. By T. W. BRA1THWAITE, of the Record and Writ Clerks' Office. Fcap.
8ro. 1876. Price 4s. &d. cloth.
"The work will, we doubt not, become the recognized guide of Commissioners to administer
oaths." Sol icitorf Journal, May 6, 1876.
Dart's Vendors and Purchasers. A Treatise on the Law
and Practice relating to Vendors and Purchasers of Real Estate. By J. HENRY
DART, of Lincoln's Inn, Esq., Barrister-at-Law, one of the Six Conveyancing
Counsel of the High Court of Chancery. Fifth Edition. By the AUTHOR and
WILLIAM BARBER, of Lincoln's Inn, Esq., Barrister-at-Law. 2 vols. Royal Svo.
1876. Price 31. 13s. 6d. cloth.
"A standard work like Mr. Dart's is beyond all praise." Law Journal, February 12, 1876.
Thring's (Sir H.) Joint Stock Companies Law. The Law
and Practice of Joint Stock and other Public Companies, including all the Statutes,
with Notes, a Collection of Precedents of Memoranda and Articles of Association,
and all the other Forms required in Making, Administering, and Winding-up
Companies. By SIR HENRY THRING, K.C.B., the Parliamentary Counsel.
Third Edition, considerably enlarged, with all the Cases brought down to the present
time. By GERALD A. R. FITZGERALD, of Lincoln's Inn, Esq., Barrister-at-Law,
and Fellow of St. John's College, Oxford. 12mo. 1875. Price It. cloth.
" This, as the work of the original draughtsman of the Companies Act of 1862. aud well-known
Parliamentary counsel, Sir Henry Thring, is naturally the highest authority on the subject." The
Timei, April 21, 1876.
%* All Standard Law Works are kept in Stock, in law calf and other bindings.