1. See on this subject Reid’s Philosophical Works, Essay on the Active Powers, V. 3. (Of systems of natural jurisprudence.) Also Dugald Stewart’s Works, VII. 256 (Hamilton’s ed.).
2. The term civil law, though once in common use to indicate the law of the land, has been partly superseded in recent times by the improper substitute, positive law. Jus positivum was a title invented by medieval jurists to denote law made or established (positum) by human authority, as opposed to that jus naturale which was uncreated and immutable. It is from this contrast that the term derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All is positive which is not natural. International and canon law, for example, are kinds of jus positivum no less than the civil law itself. See Aquinas, Summa, 2. 2. q. 57 (De Jure) art. 2. Utrum jus convenienter dividatur in jus naturale et jus positivum. See also Suarez, De Legibus, I. 3. 13: (Lex) positiva dicta est, quasi addita naturali legi.
The term civil law possesses several other meanings, which are not likely, however, to create any confusion. It often means the law of Rome (corpus juris civilis) as opposed more especially to the canon law (corpus juris canonici), these being the two great systems by which, in the Middle Ages, State and Church were respectively governed. At other times it is used to signify not the whole law of the land, but only the residue of it after deducting some particular portion having a special title of its own. Thus civil is opposed to criminal law, to ecclesiastical law, to military law, and so on.
The term civil law is derived from the jus civile of the Romans. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis. Just. Inst. I. 2. 1.
3. It will be understood that this list is not intended as an exhaustive statement of the proper contents of a work of abstract jurisprudence, but merely as illustrative of the kinds of matters with which this branch of legal learning justly concerns itself.
4. Austin, p. 1077.
5. Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895. See also Puchta’s Encyklopädie, being the introductory portion of his Cursus der Institutionen, translated by Hastie (Outlines of Jurisprudence, 1887). The term general jurisprudence (allgemeine Rechtslehre) is occasionally applied to this form of literature. See Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890. (Elemente der allgemeinen Rechtslehre, by Merkel.)
6. Jurisprudentia universalis or generalis was originally merely a synonym for jurisprudentia naturalis.
7. The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call case-law—the development of the law by judicial decisions. “Jurisprudence—la manière dont un tribunal juge habituellement telle ou telle question” (Littré). Jurisprudence in this sense is contrasted with doctrine, i.e., extrajudicial legal literature.
8. On the distinction between law in the concrete and law in the abstract senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s Principles, p. 324, n. (Works I. 148 n.)
9. Tractatus Politicus, I. 5.
10. The term sanction is derived from Roman law. The sanctio was originally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy transition it has come to mean the penalty itself.
11. It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination.
It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial by jury, is very fully considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading Principles of Anglo-American Law, pp. 53–62.
12. Ductor Dubitantium (Works XII. 209. Heber’s ed.).
13. Treatise of Government, II. 11. 136.
14. Pro Cluentio, 53. 146.
15. Ecclesiastical Polity, I. 10. 7.
16. Rhetoric, I. 15. See also Bacon, De Augmentis, Lib. 8, Aph. 58: Neminem oportere legibus esse sapientiorem.
17. Bacon, De Augmentis, Lib. 8, Aph. 46; Aristotle’s Rhetoric, I. 1.
18. Edie v. East India Co., 2 Burr 1226; Barnet v. Brandao, 6 M. & G. at p. 665; Moult v. Halliday, (1898) 1 Q. B. 125; Ex parte Turquand, 14 Q. B. D. 636; Edelstein v. Schuler, (1902) 2 K. B. 144.
19. By the Interpretation Act, 1889, s. 9, it is provided that “Every Act passed after the year 1850 ... shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the Act.”
20. As to equity, see the next section.
21. The term jus commune is found in the civil law also, but in senses unconnected with that which here concerns us. It sometimes signifies jus naturale as opposed to jus civile (D. 1. 1. 6. pr.), while at other times it is contrasted with jus singulare, that is to say, anomalous rules of law inconsistent with general legal principles, but established utilitatis causa to serve some special need or occasion. D. 28. 6. 15. D. 1. 3. 16.
22. Y. B. 20 & 21 Ed. I. 329. See Pollock and Maitland’s History of English Law, I. 155.
23. Y. B. 21 & 22 Ed. I. 213.
24. Y. B. 21 & 22 Ed. I. 458.
25. Y. B. 21 & 22 Ed. I. 55.
26. Bracton, 48 b.
27. Nic. Ethics V. 10. 3. The Greeks knew equity under the name epieikeia.
28. Rhet. I. 13. 19.
29. De Officiis I. 10. 33. See also Pro Caecina 23. 65: Ex aequo et bono, non ex callido versutoque jure rem judicari oportere. De Oratore I. 56. 240: Multa pro aequitate contra jus dicere. De Officiis III. 16. 67.
30. In omnibus quidem, maxime tamen in jure, aequitas spectanda est. D. 50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quam stricti juris rationem. C. 3. 1. 8. Haec aequitas suggerit, etsi jure deficiamur. D. 39. 3. 2. 5. A constitution of Constantine inserted in Justinian’s Code, however, prohibits all inferior courts from substituting equity for strict law, and claims for the emperor alone the right of thus departing from the rigour of the jus scriptum: Inter aequitatem jusque interpositam interpretationem nobis solis et oportet et licet inspicere. C. 1. 14. 1.
31. Summa Theologiae 2. 2. q. 120. art. 1. De epieikeia seu aequitate:—In his ergo et similibus casibus malum est sequi legem positam; bonum autem est praetermissis verbis legis, sequi id quod poscit justitiae ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud nos dicitur aequitas.
32. Pollock and Maitland, History of English Law, I. 168; Glanville VII. 1.: Aliquando tamen super hoc ultimo casu in curia domini Regis de consilio curiao ita ex aequitate consideratum est. Bracton in discussing the various meanings of jus says (f. 3. a.):—Quandoque pro rigore juris, ut cum dividitur inter jus et aequitatem. Following Azo, who follows Cicero (Topica IV. 23), he says:—Aequitas autem est rerum convenientia, quae in paribus causis paria desiderat jura (f. 3. a). See also f. 12. b. and f. 23. b. Aequitas tamen sibi locum vindicat in hac parte. See also Y. B. 30 and 31 Ed. I. 121:—Et hoc plus de rigore quam de aequitate.
33. Cited in Spence’s Equitable Jurisdiction of the Court of Chancery, I. 408, note (a).
34. D. 1. 1. 7. 1.
35. A special application by English lawyers of the term equity in its original sense, as opposed to strictum jus is to be seen in the phrase, the equity of a statute. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall within the equity of a statute, when it is covered by the reason of the statute, although through defective draftsmanship it is not within its actual terms. “Valeat aequitas,” says Cicero, “quae paribus in causis paria jura desiderat.” Topica IV. 23.
36. Ecc. Pol. I. 3. 1.
37. Comm. I. 38.
38. Proverbs, 8. 29.
39. Job, 28. 26.
40. Summa, 1. 2. q. 91. art. 1.
41. Summa, 1. 2. q. 93. art. 1.
42. Natural law, lex naturae, is either (1) the law of human nature, i.e., the moral law, or (2) the law of nature in the sense of the universe, i.e., physical law.
43. Ecc. Pol. I. 3. 2.
44. Ecc. Pol. I. 16. 8.
45. Rhet. I. 10.
46. Rhet. I. 13.
47. De Rep. III. 22. 23.
48. Works, III. 516 (Bohn’s Ecc. Library). On the Virtuous being also Free.
49. Institutes, I. 1.
50. Institutes, I. 2. 11.
51. Ecc. Pol. I. 1. 10. 1.
52. Inst. Jurisp. Div. I. 2. 97.
53. See Nettleship, Contributions to Latin Lexicography, sub. voc. jus gentium; Burle, Essai historique sur le développement de la notion du droit naturel dans l’antiquité grecque; Phillipson, The International Law and Custom of Ancient Greece and Rome, vol. I. ch. 3; Bryce, Studies in History and Jurisprudence, I. pp. 112–171; Pollock, Journ. Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical Jurisprudence, ch. 13.
54. De Officio Hominis et Civis, I. 2. 2.
55. I. 96.
56. “The moral law is the declaration of the will of God to mankind, directing and binding every one to ... obedience thereunto ... in performance of all those duties of holiness and righteousness which he oweth to God and man: promising life upon the fulfilling, and threatening death upon the breach of it.” Larger Catechism of the Westminster Assembly of Divines, Quest. 93.
57. “The laws that men generally refer their actions to, to judge of their rectitude or obliquity, seem to me to be these three: 1. The divine law; 2. The civil law; 3. The law of opinion or reputation, if I may so call it. By the relation they bear to the first of these, men judge whether their actions are sins or duties; by the second, whether they be criminal or innocent; and by the third, whether they be virtues or vices.” Locke on the Human Understanding, Bk. II. ch. 28, § 7.
58. Eng. Wks. II. 185.
59. Principles of Morals and Legislation, p. 330 (Cl. Press ed.), Works, I. 151.
60. I. 86.
61. Leviathan, ch. 46.
62. See, for example, Bryce’s Studies in History and Jurisprudence, vol. ii. pp. 44 and 249: “Broadly speaking, there are in every community two authorities which can make law: the State, i.e., the ruling and directing power, whatever it may be, in which the government of the community resides, and the People, that is, the whole body of the community, regarded not as incorporated in the state, but as being merely so many persons who have commercial and social relations with one another.... Law cannot be always and everywhere the creation of the state, because instances can be adduced where law existed in a community before there was any state.” See also Pollock’s First Book of Jurisprudence, p. 24: “That imperative character of law, which in our modern experience is its constant attribute, is found to be wanting in societies which it would be rash to call barbarous, and false to call lawless.... Not only law, but law with a good deal of formality, has existed before the State had any adequate means of compelling its observance, and indeed before there was any regular process of enforcement at all.” See also Maine’s Early History of Institutions, Lect. 12, p. 364, and Lect. 13, p. 380; Walker’s Science of International Law, pp. 11–21.
63. Commentaries, I. 44.
64. See, for example, Bentham’s Principles, p. 330 (Works I. 151); Ihering, Zweck im Recht, I. p. 334 (3rd ed.).
65. That part of the civil law which has its source in agreement is itself called conventional law. See ante, § 11, and post, § 46. This use of the term must be distinguished from that which is here adopted. Conventional law in the present sense is not a part of the civil law, but a different kind of law.
66. Notice that the term customary law is ambiguous in the same manner as the term conventional law. It means either (1) the kind of law described in the text, or (2) that part of the civil law which has its source in custom. See § 56.
67. They are the expression of what Kant and other moralists have termed hypothetical imperatives, as opposed to the categorical imperative of the moral law.
68. L. Q. R. XII. p. 313. Adopted by Lord Alverstone, C. J., in West Rand Gold Mining Co. v. Rex, (1905) 2 K. B. at p. 407.
69. Reg. v. Keyn, 2 Ex. D. p. 63.
70. Reg. v. Keyn, 2 Ex. D. p. 131.
71. Reg. v. Keyn, 2 Ex. D. p. 202.
72. De Corpore Politico, Eng. Wks. IV. 228.
73. Fundamenta Juris Nat. et Gent. I. 5. 67.
74. De Jure Nat. et Gent. II. 3. 23.
75. Principes du droit de la nature et des gens, vol. iv. p. 16, ed. 1820.
76. It is maintained by such writers as Hall, Rivier, Bluntschli, Nys, Sidgwick, Westlake, Walker, Lawrence, and Oppenheim.
77. “The sole source of (international) law,” says Dr. Walker in his History of International Law, vol. i. p. 21, “is actual observance.” This law, he adds, p. 31, is “the embodiment of state practice.” It is not easy to make a list of the genuine adherents of this opinion, because so many writers introduce vagueness and uncertainty into their exposition by speaking of international consent as well as of international practice as a source of law; and they fail to make it clear whether such practice is operative per se, or only as evidence of underlying consent. Moreover, the word consent is itself used ambiguously and vaguely, and it is often difficult to know whether it means international agreement, or international opinion, or the harmonious practice of states.
78. I. p. 187.
79. See Westlake, International Law, p. 7; Chapters on the Prls. of Int. Law, p. 2; Hall, Int. Law, p. 1; Sidgwick, Elements of Politics, Ch. 17. pp. 274 sqq. 1st ed.; Oppenheim, International Law, I. § 5.
80. Jeremy Taylor’s Works, XIII. 306, Heber’s ed.
81. Hobbes’ Leviathan, ch. 13: “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.... Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same is consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry ... no arts, no letters, no society, and, which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”
82. Treatise on Government, II. ch. 2.
83. In the year 1818 in a private prosecution for murder (an appeal of murder) the accused demanded to be tried by battle, and the claim was allowed by the Court of King’s Bench. The prosecutor was not prepared to face the risks of this mode of litigation, and the accused was discharged: Ashford v. Thornton, 1 Barn. & Ald. 405. This case led to the abolition of appeals of felony and of trial by battle by the statute 59 Geo. III. c. 46.
84. Laws of King Alfred, 42. (Thorpe’s Ancient Laws and Institutes of England, I. 91): “We also command that he who knows his foe to be at home fight not before he demand justice of him. If he have such power that he can beset his foe and besiege him, let him keep him within for seven days, and attack him not, if he will remain within.... But if he have not sufficient power to besiege him, let him ride to the ealdorman, and beg aid of him. If he will not aid him, let him ride to the king before he fights.”
85. As late as the closing years of Henry III. it was found necessary to resort to special statutory enactments against a lawless recurrence to the older system. The statute of Marlborough (52 Hen. III. c. 1) recites that “At the time of a commotion late stirred up within this realm, and also since, many great men and divers other have disdained to accept justice from the King and his Court, like as they ought and were wont in time of the King’s noble progenitors, and also in his time, but took great revenges and distresses of their neighbours and of others, until they had amends and fines at their own pleasure.” The statute thereupon provides that “All persons, as well of high as of low estate, shall receive justice in the King’s Court, and none from henceforth shall take any such revenge or distress of his own authority without award of our Court.” Long after the strength of the law of England had succeeded in suppressing the practice, the right of private war continued to be recognised and regulated by law in the more feebly governed states of the Continent. An interesting account of the matter is given by M. Nys in his Origines du Droit International (1894), ch. 5. A reminiscence of the older doctrine and practice may be seen to this day in England in that “peace of our Lord the King” which every criminal is formally charged in his indictment with having broken. The King of England made good at an early date his monopoly of war, and all private war or violence was and is a violation of his peace. As to the King’s peace, see Sir F. Pollock’s Oxford Lectures, pp. 65–90; Select Essays in Anglo-American Legal History, II. pp. 403–417. An interesting picture of the relations between law and private force in the primitive community of Iceland is to be found in the Saga of Burnt Njal (Dasent’s translation).
86. Commentaries, III. 2.
87. Austin’s theory of the distinction is somewhat different from Blackstone’s, for he makes the distinction between public and private wrongs, and therefore between criminal and civil wrongs, turn not on the public or private nature of the right violated, but solely on the public or private nature of the proceeding taken in respect of its violation. “Where the wrong,” he says (p. 502), “is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign.” This theory, however, is exposed to the same objections as those which may be made to Blackstone’s, and it need not be separately considered.
88. Numbers, xxxv. 31.
89. Diogenes Laertius tells us that when Solon was asked how men might most effectually be restrained from committing injustice, he answered: “If those who are not injured feel as much indignation as those who are.”
90. Kant’s Rechtslehre (Hastie’s trans. p. 195). The like opinion is expressed in Woolsey’s Political Science, I. p. 334: “The theory that in punishing an evildoer the state renders to him his deserts, is the only one that seems to have a solid foundation.... It is fit and right that evil, physical or mental, suffering or shame, should be incurred by the wrongdoer.” See also Fry, Studies by the Way (The Theory of Punishment), pp. 43–71.
91. Deuteronomy, xix. 21.
92. Lilley, Right and Wrong, p. 128.
93. It is worth notice that an action may be purely penal even though the penalty is payable to the person injured. It is enough in such a case that the receipt of the penalty should not be reckoned as or towards the compensation of the recipient. A good example of this is the Roman actio furti by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice nevertheless to a further action for the recovery of the goods themselves or their value.
94. I. Samuel, viii. 20.
95. English Works, II. 76: “Both swords, therefore, as well this of war as that of justice, ... essentially do belong to the chief command.”
96. “The primary function of the state,” says Herbert Spencer (Principles of Ethics II. 204. 208. 214) “or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is national defence. What we may consider as measures to maintain inter-tribal justice, are more imperative, and come earlier, than measures to maintain justice among individuals.... Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the function of protecting against external enemies.... With the progress of civilisation the administration of justice continues to extend and to become more efficient.... Between these essential functions and all other functions there is a division, which, though it cannot in all cases be drawn with precision, is yet broadly marked.”
97. It is to be noted that the term war is commonly applied only to the more extreme forms of extrajudicial force. Rioting would not be termed civil war, although the difference between them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Islands be dignified with the name of war, though it differs only in degree from the blockade or bombardment of the ports of a civilised state. To be perfectly accurate, therefore, we should oppose the administration of justice not to war, but to the extrajudicial use of force, counting war as the most important species of the latter. War, however, so greatly overshadows in importance all other forms of such force, that it is more convenient to take it as representing the genus, and to disregard the others.
98. The prohibition of the use of extrajudicial force by the King against his subjects is one of the main provisions of Magna Carta (sec. 39): “No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways destroyed, nor will we go against him, nor will we send against him, save by the lawful judgment of his peers, or by the law of the land.” It is submitted that, subject only to the jus necessitatis, this is still the law of England, notwithstanding the doctrine of military absolutism laid down by Lord Halsbury, in the name of the Privy Council, in the case of Ex parte Marais, (1902) A. C, 109.
99. On the original identity and gradual differentiation of the two functions of the state, see Spencer’s Sociology, II. pp. 493 sqq. “The sword of justice,” he says at p. 494, “is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.”
100. Speaking generally, we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalence, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturalisation a citizen of the United States of America or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than its correlative obligations, while the reverse is the case with the term subject. Finally it is to be noticed that the term subject is capable of a different and wider application, in which it includes all members of the body politic, whether they are citizens (i.e. subjects stricto sensu) or resident aliens. All such persons are subjects, as being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience. Thus it has been said that: “Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects.” Low v. Routledge, 1 Ch. App. at p. 47. See also Jeffreys v. Boosey, 4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said: “Though the statute speaks of the king’s subjects, it extends to aliens, ... for though they are not the king’s natural born subjects, they are the king’s subjects when in England by a local allegiance.”
101. The possession of political rights is so characteristic and important a feature of citizenship, that some may be tempted to regard it as the essence of the matter. This, however, is not so. Women have no political rights, yet a wife is as much a British subject as her husband is. The distinction between subject and alien may exist under a despotic government, neither class possessing any political rights at all.
102. British nationality is acquired in the following ways:—
(a) By birth in British dominions.
(b) By descent from a father or a father’s father born in British dominions.
(c) By the marriage of an alien woman to a British subject.
(d) By naturalisation.
(e) By continued residence in a territory after it has been conquered or otherwise acquired by the British Crown.
103. On this transition from the national to the territorial idea of the state, see Maine, Early History of Institutions, pp. 72–76. As to the history of the conception and law of citizenship, see Salmond on Citizenship and Allegiance, L. Q. R. xvii. 270, and xviii. 49.
104. Although states are established for the protection of their members, it is not necessary that this protection should be absolutely limited to members. In exceptional cases and to a limited extent the state will use its powers for the defence and benefit of outsiders. War way be waged on behalf of an oppressed nation, and the state may intervene, in the interests of justice, in a quarrel not its own. Nor will it necessarily refuse to administer justice in its courts even to non-resident aliens. But such external protection is exceptional and accidental, and does not pertain to the essence of government. A state is established, not for the defence of all mankind, and not for the maintenance of right throughout all the earth, but solely for the security of its own members, and the administration of its own territory. A state which absolutely refused its protection to all outsiders would none the less adequately fulfil the essential purposes of a political society.
105. The conception of sovereignty is made by many writers the central point in their theory of the state. They lay down certain fundamental propositions with respect to the nature of this power: namely, (1) that its existence is essential in every state; (2) that it is indivisible, and incapable of being shared between two or more different authorities; and (3) that it is necessarily absolute and unlimited in law, that is to say, its sphere of action is legally indeterminate. A discussion of this difficult and important branch of political theory will be found in an Appendix.
106. In international law, therefore, the word state commonly means an independent state. This is a convenient place in which to call attention to the variety of allied meanings possessed by the term state. They are the following:
Except where the context shows that it is not so, we shall use the term in the first of these senses.