allowed by the state is. The science of what ought to be the rule is the science of political ethics.'

§ 18. If jurisprudence is taken to be the science of law in the strict and proper sense only (which involves the relation of a superior and inferior, §1), it is the science of the law of a single nation only, i. e., the science of some one municipal, or, more correctly, of some one national law; and the international law is known in jurisprudence only as a subordinate part of some one such national law; or, in other words, the international law is known in jurisprudence only as it may be applied by one national source of law to relations of private persons which grow out of the existence of other nations; since international law is not law in the strict sense, except as it may be enforced by some one nation (ante, § 12). The term general, or universal jurisprudence, would signify only the aggregated science of different systems of national or municipal law.

§ 19. But since the jurisprudence of each state (as a consequence of its jural character) recognizes natural reason as a rule of intrinsic force, and in its municipal and international law

:

1 Savigny Heut. Rom. Recht, § 5. Austin: Prov. Jurisp., p. 131, and notes; also, p. 197, and ante, p. 11, n. 3. Mackeldey, by Kaufmann: Introd., §§ 3, 9, and the notes, distinguishing the philosophy of positive law from philosophical law. Compare Doctor and Student, ch. iv.

Jurisprudence is sometimes used in the sense of the science of abstract right. Long's Discourses, (Law Lib., N. S., vol. 44,) p. 5. “Jurisprudence is the science of right."Brande's Dict. Mr. Cushing (Introd. to the Study of the Roman Law, Boston, 1854, p. 6) takes it in the sense of the application of law to particular cases; and, in p. 168, gives it the sense of unwritten law, common law, and judicial law: he also uses the term "jurisprudential" as synonymous with jural. With the French lawyers, jurisprudence is contrasted with the lois, Projet (of the Code Civil), Discours preliminaire, p. xix. "On ne peut pas plus se passer de jurisprudence que de lois" Fœlix, Dr. Int. Pr., p. 382. "Lois positives et jurisprudence." Mr. Reddie uses it in the sense of the whole national law of some state, or the whole of that rule of action which is applied within a certain national domain. Reddie: Inq. El. &c., ch. v. Law Review, London, Nov., 1855, p. 128: "Some term is necessary to denote the science of law, and we shall so employ the word jurisprudence." "By law is here understood positive law, that is, the law existing by position, or the law of human enactment. Jurisprudence is the science of positive law," &c., citing Suarez: de Leg. etc., L. i., ch. 103, sec. 13.

2 "For the wisdom of the law-maker is one, and of a lawyer is another." Bacon: Adv. Learn., Works, Am. Ed., 1 v., 238.

Falck Jurist. Ency., § 11, (French tr.) "Comme le droit prend naissance dans la volonté collective d'une societé civile, il doit y avoir autant de droits qu'il existe de sociétés civiles ou d'etats."

Bowyer: Univ. Pub Law, pp. 34, 35. Whewell's Elements Mor. &c., B. ii., ch. vi., § 213. "Since in all nations the definitions of rights and obligations are intended to be right and just, it is natural that there should be much that is common

applies that reason to the unalterable conditions of human existence, thus recognizing the law of nature, in the primary and secondary senses of the word law, it may be anticipated that some principles or rules will be found to be the same in the law of many different states: and these rules, so found to obtain generally, may be distinguished from the rest of the law of any one state by their extent; that is, by their being generally recognized and enforced by the several possessors of the power of society. And though the whole law of each nation is judicially taken to be conformable to natural reason,' those principles, when thus known by their general extent, may be judicially considered founded on the necessary conditions of human existence, and therefore be judicially taken as having universal application in all countries, and under the sovereign authority of every nation. They may be considered, in the jurispru dence of any one country, as natural principles; not only because recognized by the national law, but because founded on the general reasoning of men living in the social state. They may, therefore, be considered the subject of a jurisprudence distinct from that of any one nation—a general, or universal jurisprudence; general, or universal, because historically known to prevail among all nations, or among the more powerful and enlightened.

in the views and determination of all nations on the subject. That which is common in the determination of all nations respecting rights and obligations is called Jus Naturæ, or Jus Gentium. That which is peculiar to the law of a particular state, or city, is called Jus Civile, or Jus Municipale. We may distinguish these two kinds of Jus as Natural Jus and National Jus." Also, the same, B. vi., c. i., § 1139. 1 Ayliffe's Pandects, p. 6.

'De Tocqueville: Dem. in Am., vol. ii., p. 84. "A general law-which bears the name of Justice-has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. * * A nation may be considered

in the light of a jury which is empowered to represent society at large, and to apply the great and general law of Justice."

In Bowyer's Univ. Pub. Law, ch. iv., where jurisprudence is exhibited by the a priori method, following Domat, universal jurisprudence is equivalent to political ethics. Duponceau on Jurisdiction, pp. 126, 128, recommending the study of " "general jurisprudence," which, he says, is part of the common law, and which he laments "has fallen too much into neglect," does not distinguish it from "universal justice ”— "the eternal principles of right and wrong."

Aristot.: Rhet., L. i., c. 13. 15. Reddie's Inq. Elem., &c., 85-87.

Here universal jurisprudence is derived by reasoning a posteriori, according to Grotius' method; and, so derived, it has no necessary identity with that derived a priori, in the manner pursued by Domat, (see Loix civiles; Tr. des Loix, and the summary given by Bowyer, Univ. Pub. Law, p. 68,) and also by Pufendorf, and others,

§ 20. The term law of nations, jus gentium, had been originally employed by the Roman jurists to designate legal principles having this general extent, before it became applied to that

as Manning: v. Comm. Writers on international law, or the law of nations, in the same sense, may be divided into two classes: those who derive it a priori are, however, properly speaking, writers on ethics; those only who derive it a posteriori are writers on law. Law determined in the manner pursued by the last is derived by the inductive method, or empirically, in the language of the German writers. (For a similar distinction among writers on political and religious systems, compare La Mennais: Essai sur l'Indifference &c., Tom. ii., p. 158. De Maistre: Soirees de St. Petersburg, Tom. i., p. 280.)

Bowyer's Comm. on Mod. Civil Law, Lond., 1848, p. 26. "The Romans give the reason of the universality of what they call the law of nations in these words,-quod naturalis ratio inter omnes homines constituit. But the civilians of modern times have drawn their classification from the reason of the alleged universality of the law, and not from that universality itself, which, owing to the ignorance of some nations, does not in point of fact exist. That reason is, because the obligatory force of the law is pointed out by the mental faculties of man. This universally obligatory law (though not universally observed) is called natural law, and is thus defined by Grotius," &c., citing B. et P., Lib. i., c. i., § 10. i. Now Grotius clearly distinguishes in § 12, of the same chapter, between these two methods of ascertaining the law; and though he is the leading author following the inductive method, he still attributes its authority, when ascertained, to nature, or to the Creator, not to the will of political states. The question, what rules do the mental faculties of man declare to be obligatory? is solved by the history of man's exercise of his mental faculties, and not by the mental faculties of the individual jurist. Mr. Reddie adheres to what may be called the early Roman school, and insists that the modern civilians have erred so far as they have derived their jus gentium a priori. Showing, too, that, in fact, the principles of the law of nature, as unfolded by Pufendorf, Cocceius, Wolf, and others, are little else than propositions taken from the Roman law; stripped of all that identified them with the national system of the Romans. (Reddie's Inq. Elem. &c., 74-76, 81.) Gravina declares, De Ortu &c., L. i., Princip.: "Quoniam nihil aliud est jus civile, nisi naturalis ad Romanæ Reipublicæ institutionem relata, Romanisque moribus et literis explicata ratio," etc.

Bentham: Moral and Leg., ch. xvii. "Of what stamp are the works of Grotius, Pufendorf, and Burlamaqui? Are they political or ethical, historical or judicial, expository or censorial? Sometimes one thing, sometimes another; they seem hardly to have settled the matter with themselves. A defect this, to which all books must almost unavoidably be liable which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be." And the author here refers to ch. ii., 14, of the same work, and his note to the passage, which is herein before cited, p. 6; and compare Morhof's Polyhistor, vol. iii., Lib. vi., c. 1. De Jurisprudentiæ universalis Scriptoribus.

Grotius is not, indeed, altogether constant to the method indicated in the passage referred to. Grotius: B. et P., ch. i., 12. "Now that any thing is, or is not the law of nature, is generally proved either a priori,—that is, by argument drawn from the very nature of the thing; or a posteriori,—that is, by reasons taken from something external. The former way of reasoning is more subtile and abstracted; the latter, more popular. The proof by the former is by showing the necessary fitness or unfitness of any thing with a reasonable and sociable nature. But the proof by the latter is, when we cannot with absolute certainty, yet with very great probability, conclude that to be the law of nature which is generally believed to be so by all, or, at least, the most civilized nations. For a universal effect requires a universal cause; and there cannot well be any other cause assigned for this general opinion than what is called common sense."

law which is herein before called the international law, and which had not with the Romans any recognized existence, as distinct from their own public law, jus publicum Romanum. These principles will always constitute a part of the international law, the rules of which are in a great degree founded on their existence, as will be shown in the next chapter. But they exist independently of it, and are equally a constituent part of municipal (national) law. There will always be a necessity for their distinct recognition, and for some appropriate term by which to distinguish them. The term universal law has been employed by late English writers to designate these principles, corresponding to the law of nations, jus gentium, of the Roman jurists."

§ 21. Law, in being a rule of action, necessarily regards both agents and objects of action; and thus in its inception constitutes the first distinction known to the law, in determining who or what are agents, and who or what are the objects of

1

D'Aguesseau: Œuvres, Tom. i., p. 444. Duponceau on Jurisdiction, pp. 18, 110, 126, 128. Compare, also, Bacon: De Augmentis, Lib. viii., De justitia universali, seu de fontibus juris. Selden: De J. nat. et Gen. &c., Lib. i., c. iii., vi.

2 Bentham uses the term universal to describe those principles which are commonly received among all nations. See Morals and Legislat., ch. xviii., 24. "In the first place, in point of extent, what is delivered concerning the laws in question may have reference either to the laws of such or such a nation, or nations, in particular, or to the laws of all nations whatsoever; in the first case, the book may be said to relate to local, in the other to universal jurisprudence."

"Ealra theoda riht, (the right of all nations,) jus gentium." Bosworth's Lexicon Anglo-Sax., verb, Riht.

There is no classic Greek term answering to the Latin jus. vóuos corresponds to ler. The distinction between a jus totov, proprium, id est populis vel civitatibus singulis civile, and a jus кowdy, commune, is remarked by Aristotle, Rhet., Lib. i., c. 13, 15, where he also designates the latter as being that which is κará púσw, secundum naturam; but recognizing it to be so from the fact that it is universally received. Comp. Thuc., B. iii., 59, тà кowà tŵv 'EXλhvwv vóμua. The Byzantine jurists, who, about A. D. 876, prepared the Greek version of the Corpus Juris, known as the Basilica, (v. Smith: Dict. Antiq. Butler's Hora Juridica, app. iv.,) used the term vóμuov ¿Ovikdy, and also coined from juris-gentium the word 'Ioupisyevтíos. See Selden: De J. Nat. et Gent. &c., Lib. i., c. vi.

Brougham: Polit. Philos., Prelim. Disc. "It is a very common error to confound with this branch of the law" [referring to international law, here denominated by Lord Brougham "the law of nations,"] many of those general principles of jurisprudence common to all nations, and to term these a portion of the law of nations." With equal justice it may be said the error lies in calling international law by the name "law of nations;" or rather, it lies in calling by one name two distinct sets of legal principles, viz., principles known, or denominated from their general recognition, or application by nations, and those rules which are applied as a law between nations; which last are derived both from the first-the principles universally recognized-and from the agreements and customs of particular states.

action. Agents, under a rule of action for moral beings, being necessarily such as are considered by the author of the rule capable of choice and action; or persons, to be distinguished from things: the latter being only the objects of action, and incapable of personality—that is, of capacity for choice and action.

The action of persons may be in direct relation to other persons as the objects of action; and even in relation to things, as such objects, is of legal significance only in respect to other persons. In other words, all legal relations are relations of persons to persons-directly, or through things.'

§ 22. A legal relation between persons consists in a privilege and obligation as mutually essential. This privilege and obligation exist in each of these classes of relations, constituting rights and duties as correlative, or as necessary co-efficients of each other.'

When rights and duties are classified, they must always be taken as rights and duties of persons, since it is only by the prior recognition of persons that relations, privileges, and obligation can be said to exist. Rights and duties cannot be separately classified in any system of jurisprudence, because, being correlative, they cannot be separately described; the definition of one is involved in the definition of the other.

§ 23. The prominent distinction between rights (with their correlative duties) is that of being rights in relations wherein persons are the objects of action, and rights in relations wherein things are the objects of action. But since persons and things are associated in every action of natural persons, it is impossible to make an accurate classification on this distinction.' Rights

'Ahrens: Naturrecht, p. 83. Tr. "A being endowed with self-consciousness, reason, and freedom [power of choice] is called a person, or has personality."

"The law relates to persons as its groundwork and aim, (Zweck.) That is, it has an essentially personal character. The distinction which is ordinarily made between the law of persons and the law of things, as of two co-ordinate parts of the law, is therefore inaccurate. All law is throughout a law of persons."

"The law necessarily relates to things also, inasmuch as these compose the physical conditions of human development. But the law relative to things constitutes only a subordinate division of the law relating to persons."

Jus et obligatio sunt correlata. Thibaut: Syst. Pand. Rechts, Elementary Part,

§ 1. (Lindley's Transl. in vol. 86 of Law Library.)

Compare Austin: Prov. of Jurisp., Appendix, xviii.-xxv. Wesenbecii Comm. ad Pandect, Lib. i., tit. v., num. 1, n.

"Omne jus quo utimur, vel ad per