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Preliminary Book, part 1, tit. 1.

No. 5.

truths of the same kind, arranged in a methodical order, for the purpose of making them more easily understood.

3. In its most extensive sense, the word law signifies a rule of action. It is a rule which all beings, whether animate or inanimate, reasonable or not, must observe. Thus we say the laws of motion, of gravitation, of mechanics, as we say natural laws, civil laws, political or criminal laws. In this sense all beings have their laws; the material world, animals and man, each have their laws. (a)

The knowledge of all these laws belongs to philosophy, which, in its immensity, embraces all the knowledge which man can acquire by the use of his reason. More circumscribed in its object, jurisprudence regulates only human actions.

4. Law, in this view then, is the rule of human actions; that is, of those actions which are the result of the free exercise of intelligence and will.

Law is called a rule of action by a metaphor borrowed from mechanics. A rule, in its proper sense, is an instrument, by means of which we draw, from one point to another, the shortest line possible, which is called a straight line. The rule is used in comparison in the arts, in order to judge whether a line is straight, as it is used in law, to judge whether an action is just or unjust.

An action is just or right, when it conforms to the rule, which is the law; it is unjust when it differs from it; it is not right. And so it is of our will or intention.

TITLE I.-OF JUSTICE.

5. Justice has been variously defined: it is the constant and perpetual disposition to render to every man

(a) Montesq. Esp. des Louis, liv. 1, c. 1.

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Preliminary Book, part 1, tit. 2.

No. 8.

his due ;(a) or, perhaps more correctly, it is a conformity of our actions and wills to the law. (b)

6. Justice is interior or exterior. The first is the conformity of our will, and the last of our actions to the law. The union of both makes perfect justice. The last is alone the subject of human jurisprudence. Interior justice is the object of morality.

7. In the most extensive sense of the word, justice differs but little from virtue, for it includes within itself the whole circle of virtues. Yet the common distinction between them is this; that which positively and in itself is called virtue, when considered relatively with respect to others, has the name of justice. But justice, being in itself a part of virtue, is confined to things simply good or evil, and consists in a man's taking such a proportion of them as he ought.

TITLE II.-OF LAWS.

8. To make a law, there must be a superior, who has authority to make it, and an inferior, who is bound by it. To complete the definition of law, we must say that it is a rule prescribed by a lawful superior.

God is the first great superior. Peace and order in society would not be guaranteed by the principles of human legislation, if those principles were not protected by the salutary influence of true religion. And human laws would be insufficient to regulate the conduct of men, if their actions were not supported, directed and supplied by religion; and morality and religion would of themselves be powerless to insure the peace of society, without the aid of the civil law.

Many moral obligations exist which are not enforced by the civil law, and these are left to the operations of conscience. Such, for example, as gratitude and benevolence.

(a) Just. Inst. b. 2, t. 1.

(b) Toul. Dr. Civ. tit. Prél. n. 5.

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Preliminary Book, part 1, tit. 2, chap. 1, 2.

No. 10.

CHAP. I.-OF THE LAW OF NATURE.

9. The law of nature, or natural law, is that which God, the sovereign of the universe, has prescribed to all men, not by any formal promulgation, but by the dictate of right reason alone. It is ascertained by a just consideration of the agreeableness or disagreeableness of human actions to the nature of man; and it comprehends all the duties we owe either to the Supreme Being, to ourselves, or to our neighbors; as, reverence to God, self-defence, temperance, honor to our parents, benevolence to all, a strict adherence to our engagements, gratitude, and the like.

By natural law is also understood the system or collection of those laws arranged together in a methodical order.

The law of nature is superior in obligation to any other. It is binding in all countries and at all times. No human laws are valid if opposed to this, and all which are binding derive their authority either directly or indirectly from it.

CHAPTER II.-OF THE LAW OF NATIONS.

10. The law of nations is a system of rules, deducible by human reason from the immutable principles of natural justice, and established by universal consent among the civilized nations of the earth, in order to decide all disputes, and to insure the observance of good faith and justice in that intercourse which must frequently occur between them; or it depends upon mutual compacts, treaties, leagues and agreements between separate, free and independent communities.(a)

The law of nations, jus gentium, has of late years been called international law.

(a) Just. Inst. 1, 2, 1; Dig. 1, 1, 9.

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Preliminary Book, part 1, tit. 2, chap. 2.

No. 10.

Nations, with regard to each other, are considered as individuals, and the law of nations is to regulate the differences which may exist between them in their national capacity. Being in a state of nature, they must be considered as so many free and independent persons living in that state; and, therefore, the rules. of natural law are to be applied to them.

International law is generally divided into two branches: 1. The natural law of nations, consisting of rules of justice applicable to the conduct of states. 2. The positive law of nations, which consists of, 1st, the voluntary law of nations, derived from the presumed consent of nations, arising out of their general usage; 2dly, the conventional law of nations, derived from the express consent of nations, as individuals, as evidenced in treaties and other international contracts or compacts; 3dly, the customary law of nations, which is a tacit consent to certain rules which have been observed by them.(a)

The law of nations has been divided by writers into necessary or voluntary, or into absolute and arbitrary; by others into primary and secondary, which latter has been subdivided into customary and conventional. other division is made into natural and positive.

An

The various sources and evidence of the law of nations are the following:

1. The rules of conduct deducible by reason from the nature of society existing among independent states, which ought to be observed among nations. (b) 2. The adjudications of international tribunals, such as prize courts and boards of arbitration.

3. Text writers of authority.

4. Ordinances or laws of particular states, prescribing rules of conduct for their commissioned cruisers and prize tribunals.

5. The history of the wars, negotiations, treaties of

(a) Vat. Dr. des Gens, tit. Prél.

(b) The Le Louis, 2 Dods. 249. See Triquet v. Bath, W. Bl. 471.

G. 33. Bochneks

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Preliminary Book, part 1, tit. 2, chap. 3.

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peace, and other matters relating to the intercourse of nations.

6. Treaties of peace, alliance and commerce, declaring, modifying or defining the preexisting international law. (a)

CHAPTER III.-OF MUNICIPAL LAW.

11. Various definitions have been given of municipal or civil law. According to Mr. Justice Blackstone, it is "a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong." This definition has been justly criticised; the latter part has been considered superabundant, and the first too general and indefinite, and too limited in its signification, to convey a just idea of the subject. Mr. Chitty defines it to be "a rule of civil conduct, prescribed by the supreme power in a state, commanding what shall be done and what shall not be done."(b) But this does not appear to distinguish between a law which may have the form of a judgment and a general law; as, for example, that Primus shall pay Secundus a certain sum of money. Laws should apply to all the citizens. (c) Civil or municipal law is a rule of conduct prescribed to all the citizens by the supreme power in the state, in conformity to the constitution, on a matter of common interest. It is the solemn declaration of the legislative power, by which it commands, under certain penalties or certain rewards, what each citizen should do, not do, or suffer, for the common good of the state.

In order fully to comprehend the subject, let us consider the several parts of this definition.

1. It being the civil law, it of course prescribes rules of civil conduct only. This distinguishes it from the moral law, which is regulated by the law of nature or the revealed law.

(a) Wheat. Int. Law, pt. 1, c. 1, § 14. 1 Bl. Com. 44, note 6, Chit. ed.

(c) 1 Bl. Com. 44.