the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme, as the old rule may be justly verified of it, neminem opportet esse sapientiorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of Co. Lit, 97b (1628).

reason.

Whereupon the deputies so appointed being now assembled in a full and free representation of these colonies, taking into their most serious consideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and liberties, declare.

5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

Declaration of Rights of the Continental Congress (1774). You shall understand how great a heritage is the law of England, whereof we and our bretheren across the ocean are partakers, and you shall deem treaties and covenants a feeble bond in comparison of it; and you shall know with certain assurance that, however arduous has been your pilgrimage, the achievement is a full

So venerable, so majestic, is this living temple of justice, this immemorial and yet freshly growing fabric of the Common Law, that the least of us is happy who hereafter may point to so much as one stone thereof and say, The work of my hands is there. Pollock, Oxford Lectures, III.

I.

FUNDAMENTAL CONCEPTIONS.

JUSTICE.

The object of Law is the administration of justice. Law is a body of rules for the systematic and regular public administration of justice. Hence we may ask, at the outset, what is justice?

INSTITUTES OF JUSTINIAN, I, I, secs. 1, 3.

Justice is the set and constant purpose which gives to every man his due. The precepts of law are these: to live honorably, to injure no one, and to give every man his due.

KANT, RECHTSLEHRE (2 ed.), xxxiii.

Right is therefore the sum of the conditions under which the will of one can be brought into harmony with the will of another according to a universal law of freedom. Every act is right which, in itself, or in accordance with its maxim, can co-exist with the freedom of the will of each and all according to a universal law.

SPENCER, JUSTICE, sec. 27.

Hence, that which we have to express in a precise way, is the liberty of each limited only by the like liberties of all. This we do by saying:-Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.

PAULSEN, ETHICS (Thilly's translation), chap. 9.

(Justice, as a moral habit, is that tendency of the will and mode of conduct which refrains from disturbing the lives and interests of others, and, as far as possible, hinders such interference on the part of others.) This virtue springs from the individual's respect for his fellows as ends in themselves and as his coequals. The different spheres of interests may be roughly classified as follows: body and life; the family, or the extended individual life; property, or the totality of the instruments of action; honor, or the ideal existence; and finally freedom, or the possibility of fashioning one's life as an end in itself. The law defends these different spheres, thus giving rise to a corresponding number of spheres of rights, each being

protected by a prohibition. To violate the rights, to interfere with the interests of others, is injustice. All injustice is ultimately directed against the life of the neighbor; it is an open avowal that the latter is frot an end in itself, having the same value as the individual's. own life. The general formula of the duty of justice may therefore be stated as follows: Do no wrong yourself, and permit wrong to be done, so far as lies in your power; or, expressed positively: Respect and protect the right.

POLLOCK, FIRST BOOK OF JURISPRUDENCE, 30-31.

Law presupposes ideas, however, rudimentary, of justice. But, law being once established, just, in matters of the law, denotes whatever is done in express fulfilment of the rules of law, or is approved and allowed by law. Not everything which is not forbidden is just. Many things are left alone by the state, as it were under protest, and only because it is thought that interference would do more harm than good. In such things the notion of justice has no place. The words "just" and "justice," and corresponding words in other tongues, have never quite lost ethical significance even in the most technical legal context. The reason of this (unduly neglected by some moderns for the sake of a merely verbal and illusive exactness) is that in the development of the law both by legislative and by judicial processes appeal is constantly made to ethical reason and the moral judgment of the community. Doubtless the servants of the law must obey the law, whether the specific rules of law be morally just in their eyes or not: this, however, is only saying that the moral judgment we regard is the judgment of the community, and not the particular opinion of this or that citiFurther, some conflict between legal and moral justice can hardly be avoided, for morality and law can not move at exactly the same ratio. Still, in a well-ordered State such conflict is exceptional and seldom acute. (Legal justice aims at realising morai justice within its range, and its strength largely consists in the general feeling that this is so.)

zen.

LAW.

Justice may be administered according to the discretion of the person who administers it for the time being, or according to law. Law means uniformity of judicial action, generality, equality, and certainty in the administration of justice.)(The advantages of law are: (1) It enables us to predict the course the administration of justice will take. (2) It prevents errors of individual judgment.

(3) It protects against improper motives on the part of judicial officers. (4) It gives the magistrate the benefit of all the experience of his predecessors.)

BLACKSTONE, COMMENTARIES, I, 44-46.

Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian, "jus civile est quod quisque sibi populus constituit." I call it municipal law, in compliance with common speech; for though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws or customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Let us endeavor to explain its several properties as they arise out of this definition. And, first, it is a rule: not a transient sudden order from ! a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counsel is only a matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

It is also called a rule to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, "I will, or will { not, do this;" that of a law is, "thou shalt, or shalt not, do it." It 1

is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be "a rule."

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of mere nature and religion: duties which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and the peace of the society. It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, as is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. . . But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance of what he might know were admitted as a legitimate. excuse, the laws would be of no effect, but might always be eluded with impunity.

But farther: municipal law is "a rule of civil conduct prescribed. by the supreme power in a state." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty