same government, is termed the Municipal Law: the law which rules and protects the different countries or states, dealing with their relations to each other as members of the great community of nations, which has, however, no ruler, is called the Law of Nations, and sometimes, of late years, International Law. Both of these branches of law are the subjects of Jurisprudence; but it is more usually conversant with the former, because the latter cannot well be altered or moulded in any way, there being no legislative body or supreme power which can deal with its provisions. A third species of law has often been spoken of, but incorrectly, the Law of Nature. It is undoubtedly true that certain feelings are implanted in us by nature, that is, by the constitution of our minds, and that these feelings incline us to love justice, and hate wrong; it is equally undeniable that all laws ought to accommodate themselves to such feelings, and be made adapted to this constitution of our nature. But there is no law of nature in the proper sense of the word. It may be very true that prior to all human institutions, independent of all positive enactment, our minds prescribe a certain conduct; our conscience, our feelings teach us to avoid certain things as wrong, and do certain things as right and fitting. But the same feelings dispose us to do things which never can be enjoined by any law whatever, as to relieve and help our neighbours, and to seek our own happiness in so far as we can procure it without doing an injury to others. A law, any thing that can be in propriety of speech called a law, implies a command given by some power which can enforce its orders by punishing disobedience to them. The Municipal Law is the command of the sovereign power in any state, a disobedience to which is punished by that power through its officers. The Law of Nations is the command which the general assent of them all has given to each to regulate its conduct towards the others, and the disobedience of which is punished by those others. There is here no supreme power whose officers execute its orders to avenge the breach; but the injured party is supported by the rest in retaliating the injury or seeking redress. In the most perfect system that support would be given by the whole community of nations appointing one to punish the refractory state, and exact reparation to the injured party instead of leaving the task to the injured party itself. In Greece there was a league of nations each represented in the Amphictyonic Council, which had this kind of international police for its object. But its operations were imperfect, as must ever happen from the tendency of might to encroach upon right when the parties are powerful bodies and not individuals. Nevertheless, although the control exercised by the Law of Nations be imperfect, and although the infraction of its provisions can only be punished by the revenge of those whom it has injured, there is such a law, and it is enforced. No such thing can be predicated of the Law of Nature. Thus we may affirm with confidence that law is always the creature of positive institution. It is either that rule which the particular state lays down for the government of its subjects, in their mutual relations to each other as individuals; or that rule which the common consent of civilised states lays down for the government of those states in their mutual relations to each other as communities. But these kinds of law are grounded upon the natural feelings of mankind in great part, though in great part also they are grounded upon views which take their rise altogether in the artificial frame of society. Even in as far as they are founded upon the natural feelings common to all mankind, what is loosely termed the Law of Nature, they are wholly different from those feelings, from that law, as a machine is different from the mechanical powers, the principles on which its construction depends. It would be about as correct to call these powers or principles a machine, as to call those feelings a law. Another error has been of frequent introduction into the general subject of Jurisprudence. The appellation of Law of Nations has been given very incorrectly to the law which is common to all nations, those rules which all systems adopt in framing municipal laws. In a word, the writers have by Law of Nations meant the law of all nations, not the law which regulates their mutual relations, and which stands in the same connection with the community composed of different states, in which municipal law stands to the community composed of different individuals. In that sense, the Law of Nations approaches nearly to that which is inaccurately called the Law of Nature. The divisions of municipal law are now to be considered. It consists of two great branches, Rights and Remedies. Every right has a correlative wrong; that is, every right may be violated, and this violation being an injury to the party having the right, he is entitled to be restored or indemnified for the breach; the law provides for his obtaining restoration, or, if that be impossible, compensation. But another right exists on the part of the community, or rather of each of the members whereof it consists,--the right to prevent a repetition of the wrongful act, either by incapacitating the offender, that is, disabling or disinclining him to repeat his offence -or by so dealing with him as to disincline others who witness the treatment which he has received, from following his example. This leads to another division of law into Civil and Criminal. Certain rights are by the law declared to be vested in individuals; to enforce them or to force a remedy for the breach of them, is the province of the Civil branch of law. Certain acts are by the law declared to be crimes; to punish them is the province of the Criminal law. Hence a third division, though of a subordinate nature; -law may either declare what are men's rights, and what are crimes; or it may lay down the course to be taken by the individual who seeks redress for a violation of his rights, and by the state for punishing those who have committed crimes. The one of these is Civil, the other Criminal Procedure. Hence a system of law must always consist of four branches; Civil Law-Criminal Civil Procedure Criminal Procedure: in other Law - words - Rights - Crimes-Actions-Prosecutions. It is usual, and it is convenient further to divide civil law into two branches, as it deals with Rights of Persons, or rather rights respecting persons; and Rights of Things, or rather rights respecting things. Nothing, indeed, can be more incorrect, more contrary to the analogy of the language, we may say, with all respect, more slovenly, than the phrases rights of persons and rights of things. All rights are, and necessarily must be, rights of persons, that is, rights possessed by persons. The right of the heir to succeed to his ancestor in the possession of a real estate, or the right of a devisec or legatee to take the land devised or the chattel bequeathed, are as completely the rights of those persons as the right of the husband over his wife, or of the parent over his child, or of the master over his servant. Again, if the rights of persons include all that have been termed rights of things, inasmuch as all rights must belong to persons, the rights of things exist not at all, inasmuch as no thing can have any rights. But those who use these phrases, most inaccurately, and were it not Blackstone of whom we are speaking, we should be compelled to say most ignorantly, phrases taken by a mistranslation of the Roman law phrases, jura personarum and jura rerum, really mean to say rights relative to persons, or rights regulating the relation of persons to one another, and rights relating to things, or the relation of persons to property. It must be further observed that this twofold division, like many others in all branches of science, indeed like the divisions of the sciences themselves, is more recommended by its convenience than by its logical precision. For though the rights arising out of the relation of master and servant be classed as rights of persons, or a right relating to persons, no classification ever brings under this head the rights arising out of the relation between landlord and tenant. And if it be said that this is because the latter right depends wholly upon property, not upon persons, how can the same argument be used to exclude from the personal branch of the subject the case of those tenants so well known in the Roman law and the feudal law, and the South of Europe at the present day, the Coloni Partiari, and metayers, tenants who receive both the land and the manure, and the seed corn, and often the implements of husbandry from the landlord, rendering a half or other portion of the crops as a rent? It would be difficult to place these tenants in a class different from gardeners, if wages should be paid by a part of the fruit and vegetables raised on the ground; or from clerks, if salary were paid by a small share of the profits, and whom the law now regards not as partners, or from mariners who have a venture in the ship's voyage for their pay. It thus happens that after treating of the relations between persons under one head, with a view to many personal considerations, we are obliged afterwards to deal with their relations with a view to rights of property. The divisions of the law which we have now stated must of necessity apply to every system of Jurisprudence. There can be none in which men's civil rights are not recognised; none in which the infraction of these rights is not made the subject of redress or restitution; none in which their enforcement is not provided for, either by previous order of the tribunals, or by subsequent proceedings for their violation; none in which crimes are not visited with punishment. But other subdivisions may be made of branches of the subject, and these may vary in different systems. Thus one country may have no such proceeding as enforcement of rights by command of the judge, but may leave the party to obtain restitution or compensation, or may make the wrong an offence against the public, and visit the wrong-doer with punishment. Another may have both the process of previous command and subsequent remedy, and may even add the penal sanction for example's sake, to secure such rights from violation by the same or by other wrong-doers. Again, one system may draw the line between executory and executed contracts, and give only in the former case the remedy of an order to execute, and in the latter case alone a remedy for the breach, or it may give both the order to execute and a compensation for the refusal. So generally, one system may have the distinction between law and equity, which to another may be unknown. So among prospective remedies or remedies against litigation, and the loss of evidence and uncertainty of title, one system may possess the admirable provision of the Scotch law, the action to have the right of a party declared conclusively, at his own cost, though no one noW disputes it; another system, like the English, may be without such a remedy; and one system, like the English, may have the proceeding to preserve (perpetuate as it is termed) testimony, which in others may be wanting. Actions in these different systems would thus be differently classified and arranged. So in one system no length of possession may be held sufficient to give a conclusive title; while in another the peaceable possession of a few years may be conclusive against all mankind without any colour of another title. Rights as well as remedies may thus be variously arranged in different systems of law. |