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the state: and though these principles must originally have acquired that character of universality from the independent legislative wills of single states, yet, when they have acquired that historical character, they may be judicially received by the tribunals of any one state as an independent indication of natural law, presumed, from the fact of being received in universal jurisprudence or for universal jurisprudence, to be adopted as a priori principles by that national power whose juridical will the tribunal is intended to execute.

35. When the natural law, or law of natural reason has thus been judicially interpreted, and thus made a part of the positive law of any one state or nation,' (i. e. positive in respect to

The tribunal refers to the historical indicia of this universal jurisprudence as being one of the criteria of the legislative will of the state, which is to be juridically applied. In the Roman jurisprudence, no principle was ascribed to the jus gentium, which was not included in the civil law (i. e., national law) of Rome. Comp. Fœlix: Droit International Privé, § 5. Reddie's Inq. El. &c., p. 26, and see post ch. ii., and iv.

But for an opposite theory of natural law in Jurisprudence, see Hoffman's Legal Outlines, sect. viii.

Smith's Merc. Law, p. 2. Speaking of the comparative utility of historical researches in the law of real estate and mercantile law:-"Our mercantile law, on the contrary, is wholly founded on considerations of utility; and though many of its rules are derived from the institutions of ancient times and distant countries, still is their introduction into our system owing, not to a blind respect for their origin, but to an enlightened sense of their propriety. No one, unless acquainted with their feudal source, could assign any reason for those rules which respect fines, escheats, or recoveries; but it is not necessary, for the purpose of enabling the reader to see the justice and good sense of the law of general average, to show him that it formed part of the maritime code of the ancient Rhodians. At the same time, it cannot be denied that the history of our commercial law is a subject of great interest and rational curiosity, &c." Here is an example of a very common misapprehension of the origin of law in general, and particularly of the derivation of that branch called mercantile law. The author misapprehends the reason why the rule of general average has the force of law in cases of maritime losses. It is not law because agreeable to justice and good sense. If it were not that the maritime nations of Europe (the Rhodians being the first, perhaps, as matter of history) had actually given it the binding force of a law within their several jurisdictions, the judges of English courts would have had no right to apply it in enforcing a contribution. If the judges of our courts should to-morrow be of opinion that the rule hitherto pursued is not " agreeable to justice and good sense," they might according to the author's argument-decline to apply it any longer.

And see another instance in Abbott on Shipping, Preface to the First Edition; where the author gives the reasons for referring to the maritime code of Louis XIV., as authority for English tribunals; and see Benedict's Admiralty Pr., § 5. Duer, on Insur., p. 2. Emerigon, c. i., § 6, note, by English editor. That the Roman tribunal made judicial reference to the laws of the Rhodians on the ground of its being an existing foreign law, see Peckius: De Re Nautica, Ad leg. Rh. De Jactu. Rubrica.

1 Vinnius Comm., Lib. i., Tit. 2, § 1. "Vocaturque jus civile.'--In specie nimirum, nam jus civile sumptum pro eo jure quo in universum civitas utitur, etiam jus naturale et gentium, quatenus receptum est, comprehendit; eoque sensu, obligationes, quæ ex contractibus juris gentium descendunt, dicuntur civiles: licet a legislatore

1

its authority, v. ante, § 17,) it may still be distinguished as the unwritten law, the customary law, the common law of the land.'

civili nihil habeant præter approbationem, (§ 1, inf. de oblig.) Hoc igitur dicitur civile a causa efficiente, quæ est voluntas alicujus civitatis aut ejus qui jus legis ferendæ in ea habet, non communis gentium aut naturalis ratio. Ab Aristotele legitimum dicitur: vulgo positivum."

1 Even under a written code, this part of the law must continue. See, as to the recognition of this, under the French Code, Savigny: Vocation of our Age, &c. Hayward's Tr., p. 90. Also, Duponceau on Jurisd., p. 106. Reddie's Inq. Elem. &c., pp. 199-202.

In this description of the mode in which positive law becomes judicially ascertained, there is no distinction of any part of the law which can be distinguished from the rest as equity, or as an equitable rule of action. The distinction which exists in English and American jurisprudence between law and equity is not in the nature of the rule, but in the means by which it is enforced. "In England and America Equity, in the technical legal sense of that term, as opposed to or distinct from the common law, is in reality as much as the common law, customary or judiciary law; a part of the general law of the realm." Reddie: Inq. Elem., p. 124. Blac. Comm., 3, c. 27, p. 432. Every rule of action which the supreme power in England or America enforces as law is equally jural-equally a lex juris. The distinction here is one of jurisdiction, or of remedy-the application of the rule of action, arising from the authority allowed to judicial precedent, and a consequence of that supremacy of law as opposed to arbitrary discretion, which is a characteristic of "Anglican liberty." (For the use of this term, see Lieber: Civil Liberty and Self Government, vol. i., ch. v.) The occasion given to a common misconception of the nature of positive law by the existence of an "Equity Jurisprudence," may excuse an attempt to set this forth in the limits of a note.

The rule of action to which the state gives the authority of law must be enforced or vindicated by the state, if it is to be efficacious in accomplishing the object of the state, i. e., justice. This can only be done by judicial remedies. In a state where precedents have great force as an indication of the will of the supreme power, the remedy which has been applied to enforce the rule of action becomes itself a precedent, that is, it becomes a rule or law of remedy, and thus the efficacy of a rule of action becomes limited to circumstances in which only a remedy has been before applied. The same effect would take place if the remedial mode of enforcing the rule of action were prescribed by statute.

The rule of action will thus, in course of time, fail in many instances of its original intention, i. e., justice: because new circumstances of disobedience to the rule will occur, differing from those to which the known law of remedy applies. The state must, therefore, in order to effect its intention, i. e., justice, either directly prescribe a remedy in those new circumstances, or direct that its tribunals should go beyond precedent in the law of remedy, and enforce the rule of action according to its original intention. The state may establish a separate tribunal with power to carry out the rule of action beyond the remedy given by the precedents of existing tribunals.

In course of time, the remedy given by the new court becomes also a precedent; and has a law of its own. There are thus two systems of remedy intended to carry out one and the same law of right. In English and American jurisprudence, this double system of remedy exists. Equity is not a different rule of action from law; it is a law of remedy.

Papers read before the Juridical Society, Vol. i., Part I., 1855. London: Stevens & Norton. Inaugural Address by Sir R. Bethell, S. G., M.P., p. 3-" And the rules and maxims of the common law were so broad and comprehensive, that they admitted of being made the basis of an enlarged systent of jurisprudence. A portion of the statute of Westminster the second (13 Edw. I.) was passed with a view of effecting this object, and of expanding the maxims of the common law, so as to render it applicable to the exigencies of an advancing state of society. For this purpose, new write were directed to be framed, as new occasions for remedial justice presented themselves; and if this had been fully acted on, the law of England might have been ma

the state: and though these principles must originally have acquired that character of universality from the independent legislative wills of single states, yet, when they have acquired that historical character, they may be judicially received by the tribunals of any one state as an independent indication of natural law, presumed, from the fact of being received in universal jurisprudence or for universal jurisprudence, to be adopted as a priori principles by that national power whose juridical will the tribunal is intended to execute.

§ 35. When the natural law, or law of natural reason has thus been judicially interpreted, and thus made a part of the positive law of any one state or nation,' (i. e. positive in respect to

The tribunal refers to the historical indicia of this universal jurisprudence as being one of the criteria of the legislative will of the state, which is to be juridically applied. In the Roman jurisprudence, no principle was ascribed to the jus gentium, which was not included in the civil law (i. e., national law) of Rome. Comp. Fælix: Droit International Privé, § 5. Reddie's Inq. El. &c., p. 26, and see post ch. ii., and iv.

But for an opposite theory of natural law in Jurisprudence, see Hoffman's Legal Outlines, sect. viii.

Smith's Merc. Law, p. 2. Speaking of the comparative utility of historical researches in the law of real estate and mercantile law:-"Our mercantile law, on the contrary, is wholly founded on considerations of utility; and though many of its rules are derived from the institutions of ancient times and distant countries, still is their introduction into our system owing, not to a blind respect for their origin, but to an enlightened sense of their propriety. No one, unless acquainted with their feudal source, could assign any reason for those rules which respect fines, escheats, or recoveries; but it is not necessary, for the purpose of enabling the reader to see the justice and good sense of the law of general average, to show him that it formed part of the maritime code of the ancient Rhodians. At the same time, it cannot be denied that the history of our commercial law is a subject of great interest and rational curiosity, &c." Here is an example of a very common misapprehension of the origin of law in general, and particularly of the derivation of that branch called mercantile law. The author misapprehends the reason why the rule of general average has the force of law in cases of maritime losses. It is not law because agreeable to justice and good If it were not that the maritime nations of Europe (the Rhodians being the first, perhaps, as matter of history) had actually given it the binding force of a law within their several jurisdictions, the judges of English courts would have had no right to apply it in enforcing a contribution. If the judges of our courts should to-morrow be of opinion that the rule hitherto pursued is not "agreeable to justice and good sense," they might-according to the author's argument-decline to apply it any longer.

sense.

And see another instance in Abbott on Shipping, Preface to the First Edition; where the author gives the reasons for referring to the maritime code of Louis XIV., as authority for English tribunals; and see Benedict's Admiralty Pr., § 5. Duer, on Insur., p. 2. Emerigon, c. i., § 6, note, by English editor. That the Roman tribunal made judicial reference to the laws of the Rhodians on the ground of its being an existing foreign law, see Peckius: De Re Nautica, Ad leg. Rh. De Jactu. Rubrica.

66 6

1 Vinnius Comm., Lib. i., Tit. 2, § 1. Vocaturque jus civile.'--In specie nimirum, nam jus civile sumptum pro eo jure quo in universum civitas utitur, etiam jus naturale et gentium, quatenus receptum est, comprehendit; eoque sensu, obligationes, quæ ex contractibus juris gentium descendunt, dicuntur civiles: licet a legislatore

its authority, v. ante, § 17,) it may still be distinguished as the unwritten law, the customary law, the common law of the land.'

civili nihil habeant præter approbationem, (§ 1, inf. de oblig.) Hoc igitur dicitur civile a causa efficiente, quæ est voluntas alicujus civitatis aut ejus qui jus legis ferendæ in ea habet, non communis gentium aut naturalis ratio. Ab Aristotele legitimum dicitur: vulgo positivum."

1 Even under a written code, this part of the law must continue. See, as to the recognition of this, under the French Code, Savigny: Vocation of our Age, &c. Hayward's Tr., p. 90. Also, Duponceau on Jurisd., p. 106. Reddie's Inq. Elem. &c., pp. 199-202.

In this description of the mode in which positive law becomes judicially ascertained, there is no distinction of any part of the law which can be distinguished from the rest as equity, or as an equitable rule of action. The distinction which exists in English and American jurisprudence between law and equity is not in the nature of the rule, but in the means by which it is enforced. "In England and America Equity, in the technical legal sense of that term, as opposed to or distinct from the common law, is in reality as much as the common law, customary or judiciary law; a part of the general law of the realm." Reddie: Inq. Elem., p. 124. Blac. Comm., 3, c. 27, p. 432. Every rule of action which the supreme power in England or America enforces as law is equally jural-equally a lex juris. The distinction here is one of jurisdiction, or of remedy-the application of the rule of action, arising from the authority allowed to judicial precedent, and a consequence of that supremacy of law as opposed to arbitrary discretion, which is a characteristic of "Anglican liberty." (For the use of this term, see Lieber: Civil Liberty and Self Government, vol. i., ch. v.) The occasion given to a common misconception of the nature of positive law by the existence of an "Equity Jurisprudence," may excuse an attempt to set this forth in the limits of a note.

The rule of action to which the state gives the authority of law must be enforced or vindicated by the state, if it is to be efficacious in accomplishing the object of the state, i. e., justice. This can only be done by judicial remedies. In a state where precedents have great force as an indication of the will of the supreme power, the remedy which has been applied to enforce the rule of action becomes itself a precedent, that is, it becomes a rule or law of remedy, and thus the efficacy of a rule of action becomes limited to circumstances in which only a remedy has been before applied. The same effect would take place if the remedial mode of enforcing the rule of action were prescribed by statute.

The rule of action will thus, in course of time, fail in many instances of its original intention, i. e., justice: because new circumstances of disobedience to the rule will occur, differing from those to which the known law of remedy applies. The state must, therefore, in order to effect its intention, i. e., justice, either directly prescribe a remedy in those new circumstances, or direct that its tribunals should go beyond precedent in the law of remedy, and enforce the rule of action according to its original intention. The state may establish a separate tribunal with power to carry out the rule of action beyond the remedy given by the precedents of existing tribunals.

In course of time, the remedy given by the new court becomes also a precedent; and has a law of its own. There are thus two systems of remedy intended to carry out one and the same law of right. In English and American jurisprudence, this double system of remedy exists. Equity is not a different rule of action from law; it is a law of remedy.

Papers read before the Juridical Society, Vol. i., Part I., 1855. London: Stevens & Norton. Inaugural Address by Sir R. Bethell, S. G., M.P., p. 3-" And the rules and maxims of the common law were so broad and comprehensive, that they admitted of being made the basis of an enlarged systent of jurisprudence. A portion of the statute of Westminster the second (13 Edw. I.) was passed with a view of effecting this object, and of expanding the maxims of the common law, so as to render it applicable to the exigencies of an advancing state of society. For this purpose, new write were directed to be framed, as new occasions for remedial justice presented themselves; and if this had been fully acted on, the law of England might have been ma

It is this which constitutes the common law in the jurisprudence of England and America, when distinguished from statute law.'

§ 36. This recognition and adoption of the natural law occurs in international as well as in municipal (national) law.

As was before said, each nation being independent of other nations, whatever is enforced by its own tribunals as law rests upon its own authority, or is identified, in respect to its authority, with the municipal law of that state. International law, though differing from municipal law in the objects or relations which it affects, does not, as administered by its tribunals, rest on any other authority than the state itself: it is then a part of the municipal (national) law; being then distinguished from other portions of the municipal law only by its application to persons, or as one personal law is distinguished from another.' Whatever rules the tribunal may administer as international law, are

tured into a uniform and comprehensive system. For it was justly observed by one of the judges in the reign of Henry the Sixth, that if actions on the case had been allowed by courts of law as often as occasion required, the writ of subpoena would have been unnecessary; or, in other words, there would have been no distinctions between courts of law and courts of equity, and the whole of the present jurisdiction of the court of chancery, would have been part of the ordinary jurisdiction of courts of law." See on this point, Story; Equity Jurisprudence, vol. I. Bacon: Advanc. Learn., B. viii., c. 3, of Univ. Just. Aphorisms, 22 to 46. Ram on Legal Judgment, ch. ii., and authorities; also, Am. Jurist, vol. xvii., p. 253, on reform in remedial law. D'Aguesseau: Œuvres, Tom. i., p. 209. Lessee of Livingston v. Moore and others, 7 Peter's R., p. 547 Butler's Hora Juridicæ, p. 44-46.

In the states of Continental Europe, where the administration of justice is on the model of the Roman law, judicial tribunals are less fettered by judicial precedent, and have always had a greater latitude in applying the rule of action. The judicial officer has in practice a large share of administrative power. His power to make law for future cases is less than that of judges under the English system; but his autonomous or discretionary power over the case in hand is far greater. Hence the rights of individuals depend less on pre-existent law, and more on arbitrary discretion.

Sir H. Finch: Treatise, p. 74. Sims' Case, 7 Cushing R., p. 313. Shaw, C. J., using the term positive law :—“ and this may be mere customary law, as well as the enactment of a statute. The term 'positive law,' in this sense, may be understood to designate those rules established by long and tacit acquiescence, or by the legislative act of any state, and which derive their force and effect, as law from such acquiescence and legislative enactment, and are acted upon as such, whether conformable to the dictates of natural justice or otherwise." And comp. Neal v. Farmer, 9 Georgia R., 581.

Ram, on Judgment, ch. ii. Savigny: Heut. R. R., § 18. Reddie's Inq. Elem. &c., p. 238-252,-a description of the establishment of municipal (national) law, abridged from Savigny.

Bentham: Princ. Morals and Legisl., pref., xiii. "Common law, as it styles itself in England; judiciary law, as it might more aptly be styled everywhere," &c. Compare Eucy. Am., vol. vii., Appendix, Law, &c., by Story.

Co. Lit., fo. 11., a. An enumeration of the “proofs and arguments of the common law," drawn from twenty several fountains or places; common law being taken in the limited sense; because in the same place communis lex Anglia is included en la ley.

2 See post, § 53.

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