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were studied with alacrity in the seats of learning, to wit, the universities, and the common law despised and esteemed little better than heretical.
Its Study Neglected. Many causes have prevented the common law becoming a part of academical education. At first, long usage and custom; secondly, the intrinsic merit of the civil law, which was known to the instructors of youth, coupled with their total ignorance of the merits of the common law; and thirdly, because the study of the common law, having been previously banished, had fallen into a different channel, and was cultivated in another place. For being entirely abandoned by the clergy, the study and practice of the common law devolved upon laymen, who cherished aversion to the civil law, and displayed their ignorance, as well as contempt of it, publicly. The balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, it would probably in time have been overrun by the civil law, but for a fortunate occurrence.
Location of the Common Pleas Court. This was the fixing of the court of common pleas, the grand tribunal for settling disputes of property, to be held in one certain spot, that the seat of justice might be permanent and known to the entire nation. Formerly this court was held with all the other superior courts in the aula regis, or in such of his palaces, where the king resided; and was removed with his household from one end of the kingdom to the other. To remedy this great inconvenience to suitors, the magna carta enacted, that the common pleas should no longer follow the king's court, but be located in some certain place. Since then it has always been held at Westminster. This brought together the professors of municipal law from the entire kingdom, and formed them in an aggregate body, whence a society was established, devoting itself solely to the study of the laws of the land, whereby those laws were raised to the perfection they suddenly attained, under the auspices of our English Justinian, King Edward I.
Sources of Our Law. If the student of the common law should desire to trace the law to its fountains, let him read of the customs of the Britons and Germans, as recorded by Caesar and Tacitus; to the codes of the northern continental nations, and more especially to those of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian or
imported by Vacarius and his followers; but above all to that inexhaustible reservoir of legal antiquities and learning, the feudal law. These fundamental principles should be compared with the precepts of the law of nature and the practice of other countries, explained by reason and illustrated by examples.
SECTION II.—THE NATURE OF LAWS IN GENERAL.
Defined. In its broadest sense, law signifies a rule of action. It embraces all kinds of actions, animate or inanimate, rational or irrational. Thus we say: the laws of motion, of gravitation, of optics, of mechanics, as well as the laws of nature and of nations. It is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.
Fixed Principles. At the creation of matter, God impressed certain principles upon it, from which it can never depart, and without which it would cease to be. He then established certain laws of motion, to which all movable bodies must conform. So a clockmaker establishes certain arbitrary laws for the movements of the time-piece, following which it answers the end of its formation.
Natural Law. The same rule holds as to vegetable and animal life, which are governed by fixed laws. The progress of plants from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion and other branches of vital economy are not left to chance or to the will of the creature itself, but are guided by unerring rules laid down by the Creator.
Human Law. Laws, in the confined sense we shall treat of them, denote the rules not of action in general, but of human action, that is, the precepts by which man must regulate his behavior.
Divine Law. The will of his Maker is called the law of nature. Man is entirely a dependent being, subject to the laws of his Creator, to whose will he must conform. Although endowed with free will, yet it is regulated and restrained in some degree by certain immutable laws of good and evil, to which Deity Himself conforms. These principles are included among others, that we should live honestly, should hurt no one, and should render to every one his due. To these three precepts, Justinian has reduced the whole doctrine of law. As a Being of infinite power He could prescribe any laws, however unjust and severe, but as a Being also of infinite wisdom, He has laid down only such laws, as are based upon justice.
Divine Goodness. As a Being of infinite goodness, God has so inseparably connected the laws of eternal justice with the happiness of each individual, that the latter cannot be attained, without observing the former. He has graciously reduced the rule of obedience to this one precept, that man should pursue his own true and substantial happiness. This is the foundation of ethics or natural law.
Law of Nature. This law, being coeval with mankind and dictated by God Himself, is obligatory upon all. No human laws are of any validity if contrary to this, as they derive their force and authority from this original. We must discover what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness.
Revealed Divine Law. In compassion for the imperfections of human reason, God has mercifully at times discovered and enforced His laws by direct revelations. These are found in the holy scriptures. These precepts, when revealed, are really a part of the original law of nature. The revealed law is of greater authenticity, than the moral system framed by ethical writers, termed the natural law, because one is the law of nature, as declared to be by God Himself; the other is only what, by the light of human reason, we imagine to be that law.
Foundation of Human Law. Upon these two foundations, the law of nature and the law of revelation, depend all human laws; i.e. no human laws should contradict them. Upon indifferent points, the divine and natural law leave a man at his own liberty, subject for the benefit of society to restraint within certain limits. With regard to points that are not indifferent, human laws are only declaratory of and in subordination to the divine law.
Example. Instance of Murder. This crime is expressly forbidden by the divine law, and demonstrably by the natural law, and from these prohibitions arise the true unlawfulness of the crime. Those human laws that annex a punishment to it do not increase its moral guilt. If, therefore, any human law should allow or enjoin the commission of such crime, we should disobey such law, or we would offend both the natural and divine.
Unimportant Matters. In unimportant matters, not commanded or forbidden by those superior laws, the inferior legislature has opportunity to interpose, and to make that action lawful which before was not so.
Law of Nations. The human race is necessarily divided into many separate states and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this intercourse, called the law of nations, in which, as no superiority is acknowledged, the states will allow no dictation, but depend entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues and agreements between these several communities. MUNICIPAL LAW.
Defined. This is defined to be “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong."
A Rule. It is a rule, permanent, uniform and universal. Where the operation is confined to one individual, it is a sentence, not a law. It is not advice, which we are at liberty to follow or ignore. Our obedience to the law depends not on our approbation, but upon the maker's will. Counsel is a matter of persuasion, law is a matter of injunction. It is a rule, and not a mere compact or agreement. A compact is a promise proceeding from us, law is a command directed to us.
Rule of Civil Conduct. This distinguishes municipal law from natural or revealed. The former is the rule of moral conduct, and the latter not only of moral conduct, but of faith. Municipal law regards man as a citizen as well as a creature, and bound to other duties to his neighbor than those of mere nature and religion; duties to contribute to the subsistence and peace of society.
Rule Prescribed and Announced. A bare resolve of a legislator without external sign is no law. Notice must be given to the people who are to obey it. The manner of notice is unimportant. In the case of the English common law, the notice is by tradition and long practice. It may be by proclamation, or under certain acts of parliament by public reading. The general course, however, is by writing or printing. In every case, the notice should be public and easily understood.
Ex Post Facto Laws. These are wholly unreasonable. They are enacted after a crime has been committed, stamping the past act as a crime, which had not before been declared such, and inflicting punishment. A subsequent law in such case pronounces as a crime an act, which was innocent at the time it was committed. All laws should, therefore, be made to commence in futuro, with proper notice of their passage, which is implied in the term “prescribed.” After such public notification, it is the business of every subject to become conversant with the law, and ignorance of what he might know is no excuse.
Rule Prescribed by the Supreme Power in a State. Legislation is the greatest act of superiority one can exercise over another. Hence it should be the act of the sovereign power.
Origin of Society. The foundations of society are the wants and the fears of individuals. Single families formed the first natural society among themselves. Its limits were daily extended, and laid the first imperfect rudiments of civil or political society. When this grew too large to subsist conveniently in that pastoral state in which the patriarchs lived, by migrations it became subdivided. Afterwards as agriculture increased, migrations became less frequent, and various tribes reunited, sometimes by compulsion and conquest, sometimes by accident, and occasionally by compact. Undoubtedly mankind is kept together by the sense of weakness, which shows the necessity of union. This, therefore, is the solid foundation and cement of civil society. This we term the original contract of society. It may never have been expressed at the first institution of a state, yet is understood in the very act of associating together, namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or in other words, that the community should guard the rights of each individual, and that, in return for this protection, each individual should submit to the laws of the community.
Who shall Govern. Civil society once formed, government is necessary to keep it in order. A superior must be constituted, whose commands all the members must obey. The control should be reposed in such persons, who possess in some degree the divine attributes of wisdom, goodness and power; wisdom to discern the interests of the community, goodness to