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from the nature of their situation, no common superior can be admitted to dictate the law and enforce its observance. Although it is not the less obligatory in a moral view as a branch, and a very important branch of the law of nature, yet its observance is, in a great measure, voluntary between the parties; but such is not the case with respect to the individuals of a nation. Modern nations have adopted the law of nations in their respective civil codes, so far as that law may be affected by the conduct of individuals. The government of every state have the power and find it no less their interest than their duty to punish every unauthorised infraction of that law by their own citizens and subjects. Every state is within certain limits holden accountable for all aggressions of its subjects, especially of its public agents, against another state or its citizens. But if the government disavow the act, and punish or deliver up the aggressor, if in its power, it ought to satisfy the offended state.
Of Municipal Laws and their Civil Obligation.
Municipal law is the civil law of a particular country. It has been defined by Judge Blackstone to be “a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong."* This definition, was, I believe, first introduced into the English law by him, and has since been adopted by most of the succeeding writers upon that law. It is not given as a definition peculiar to the English law, but as a definition of universal application to the municipal law of every country. But from a conviction of its unsoundness, I feel it necessary to question its propriety.
The first branch of the definition is undoubtedly correct, “that municipal law is a rule of civil conduct prescribed," that is, its injunction must be made known to the citizens, or subjects before it can operate as a rule. That a rule should, by retrospect be applied to transactions which were passed before it existed, or was made known, is an absurdity, a violation of all the principles of natural justice, too palpable to require a comment. But that it is a rule prescribed by the supreme power in the state, in the sense of the author as here expressed, is, according to my apprehension, far from being correct. That we may fully comprehend his sense in this part of the definition, it will be necessary to recollect his depository of this supreme power, and the qualities which he supposes it inherently to possess. To this purpose, let us repeat some passages of the author, which have been before cited in
*1 Comm. 44.
treating of govereignty. “Legislature* is the greatest act of superiority that can be exercised by one being over another ; wherefore it is necessary to the very essence of law, that it be made by the supreme power.” Sovereignty and legislation are convertible terms, and cannot subsist one without the other.”+ Speaking of the different forms of government, he says,-however they began, or by what right soever they subsist, there must be in all, a supreme, irresistible, absolute and uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside ;” I and according to him, the residence of this supreme power is in the legislative organ of the state.
All this is true in terms, in a government absolute, arbitrary, and despotic where all the powers of the state are, whether by consent or by usurpation, concentrated in one man or body of men; but we have before seen, that in a free government, an absolute, uncontrolled, and unlimited power is not committed to any one of its organs, and that it does not actually subsist in the British legislature, for whom it is so strenuously claimed. Certainly such power does not belong to the legislature of every state. It is not vested in the legislature of the United States, nor in that of any state in the union. Each is limited by the constitution from which it derives its power. The constitution is the supreme law established by the people, the ultimate supreme power in every free country; a law which the legislature is bound to obey in all its acts. Every act not warranted by the constitution is void, and with us is so decided by the courts of law. So far we may, with propriety, apply the definition to the law of the constitution, the fundamental law, that it is a rule of political conduct prescribed by the supreme power in the state ; but it wholly fails, when applied to the derivative, to the municipal law. The positive laws
† The word “ legislature,” is here used in an unaccustomed sense. That term is in the English language, appropriated to express the name of the organ vested with the power of making laws in a state, but the powers and the acts of that organ are appropriately expressed by the term " legislation;" thus we say the “power of legislation,”—the power of making laws,—“the act of legislation,"—the act of making laws. +1 Comm. 46. |1 Comm. 49. enacted by the legislature, are prescribed by a competent authority instituted and limited by the supreme political power.
Could the author for a moment have called off his attention from the transcendent power of his legislature, I think he would have clearly perceived the deficiency of his definition; that, upon his own principles, it could embrace the positive laws only expressly enacted by the legislature, and that it excludes the customary or common law and which, in fact, comprehends the greatest portion of the municipal laws of every country. So extensive is this branch of the law that it embraces all the common rights of the citizens, decides the manner of their enjoyment and punishes their infringement. By it is decided the validity and the effects of civil contracts in most instances. It furnishes principles for the decision of new cases as they arise, and rules for ordering and regulating the proceedings of courts. It furnishes also, rules and maxims for the construction of written instruments ; rules for the interpretation of statute laws, and even of the constitution itself. Nay, in England, the constitution of the government lays its foundation in the common law. This law was not enacted by the legislature, was not prescribed by the supreme power in the sense of the definition. It came in by custom, and derives its authority as law, from a general and tacit consent of the people, and may justly be defined by itself to be a rule of civil conduct introduced by the tacit consent and agreement of the people ratified, prescribed and consecrated by long usage.
We may then, I think, without hesitation pronounce this part of the author's definition to be, not only deficient and unsatisfactory, but injurious in its consequences, leading to a misconception of the nature of our civil and political institutions. The following definition taken from the Institutes of Justinian, is in this point more correct,--at least it is not liable to the same objection. “That law, which any people have established for themselves, is the appropriate law of their state, and is called the civil law, as being the peculiar law of the civil state.
* Quod quisque populus sibi jus constituit, id ipsius proprium civitatis est, yocaturque jus civile, quasi jus proprium ipsius civitatis. Inst. B. 1. T. 2. 9 1.
This definition comprehends as well the customary as the positive laws considering both as equally established by the people; the former, by a general and tacit consent, the latter by positive enactment either by the people themselves, or by some legislative organ, deriving its authority from them. Even the Roman Emperors, absolute and despotic as they held and exercised their powers, claimed the legislative authority as being derived from the same source,--the people. For in the Institutes, after mention of various kinds of law—the plebiscita, or acts of the people, and the decrees of the senate ; we find the following declaration of the constitution of the empire, “the ordinance of the Prince hath also the force of law; for the people by the lex regia, which was passed in relation to the empire, conceded to him their whole power; therefore whatever the Emperor ordains by rescript, decree, or edict is law.'
With Mr. Christian, in his note on the above definition, I consider the latter branch that “municipal law is a ràle-commanding what is right and prohibiting what is wrong,”—to be faulty. It leaves us in doubt whether the author meant to refer right and wrong to the rule itself or to the law of nature. If to the rule, it is, as observed, a useless tautology. If to the law of nature, it will be found to be incorrect; for there are many things, which the law of nature permits, generally, but which the municapal law may justly prohibit, because the general interest of the state requires such prohibition, and hence the distinction of those things which are mala in sent and those wbich are mala prohibita. There are things that may be at least innocently done while not prohibited, but which cannot be so when prohibited. It may, for instance, be for the public interest that fish should be suffered to increase for food. It may therefore be just and expedient by law to prohibit the taking of them in their places of resort during the season of
* Sed quod principi placuit, legis habet vigorem: cum lege regia, quæ de ejus imperio lata est, populus ei et in eum, omne imperium suum et potestatem concedat. Quodcunque ergo imperator per epistolam constituit, vel cognoscens decrevit, vel edicto præcepit, legem esse constat. Inst. B. 1. S. 1. T. 2. 6. Wrong in themselves.
Wrong as being prohibited.