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have before remarked, must fall very short of the aims of government, and of distributive and commutative justice. Hence have sprung the prerogatives of commutation, dispensation, and pardon; hence arose the salutary jurisdiction of the Roman prætor, the ample powers of British and American courts of equity, and far the larger portion of the common law, in which, from time to time, and as occasion demanded, the principles of natural justice were embodied. The history of that system shows the justice of Professor Millar's remark, that, after other questions of natural justice had also become numerous, they were likewise necessarily classified according to their principles, and formed the equity system; so that law and equity went on in perpetual progression, the former continually gaining ground on the latter. Thus every new and extraordinary interposition is, by length of time, converted into an old rule. A great part of what is now strict law, was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.*
Such, of necessity, was the original meagerness of positive legislation, that, had the judges regarded only the letter of the existing laws, the legislature could not have kept pace with the daily wants of the people, and the courts would have been almost without employment. By a happy, and indeed unavoidable compromise between the legislative and judicial departments of the English government, it soon came to be established in theory, and was daily reduced to practice, that there is a vast fountain of preëstablished principles or rules of adjudication, which, by a process of sound dialectic, are ascertained and applied by the judges to the new and evervarying combinations of facts as they arise; and from this power of judicial interpretation, and application of principles to facts, the judge is said to declare the law, not to make or promulgate it. Under this view is it that the laws of God,' the laws of nature,' and the laws of nations,' are considered as integral portions of our common law; and in the gradual progress of adjudication through the lapse of ages, the judges, by a strict adherence to what has been called the principle of precedent,' and the principle of analogy,' have been enabled to build up the existing fabric of English and American law, which, with all its admitted defects, must still be regarded as
* Millar's Historical View of the English Government, p. 478.
surprisingly systematic. The rule of stare decisis, so strictly adhered to wherever title to property, and not the mere mode of procedure, is concerned, has given to that system its certainty and general equity, though at the expense of occasional individual hardship. It is manifest, therefore, that the laws of England and of this country are not to be found in the statute books only, nor in the superadded volumes of judicial reports, nor in Plowden nor Coke; nor would they be found in the most elaborate codes that could be formed. We must still draw from that exhaustless fountain of reason and abstract justice, the code of natural law, much of which is reflected in the pages of Grotius, Wolfius, Puffendorf, Vattel, Bynkershoek, and others. This code, and these authorities, have been often appealed to, and will continue to be, we hope, by British and American judges; and we have pride in perceiving that some of our American jurists have been warmly praised by their trans-Atlantic brethren,* for their exertions to make jurisprudence in this country a science more equitable and philosophical than it has been regarded in England. This they conceive is to be promoted, as Mr Du Ponceau has declared, by establishing it as a maxim, 'that pure ethics and sound logic are also parts of the common law.' The parallelism of the Roman code with the natural law has been the boast of its admirers; and it has been the aim of some American jurists, among whom our author is to be numbered, to draw the attention of students to the consideration of that great body of wisdom, less jealousy of which in the common lawyers would have been fortunate for the improvement of the common law.
Our limits do not allow us even to glance at the numerous instances in which this view of the law of nature, as comprehended in the common law, has been sanctioned by the judges and lawyers of England. If any case happen for which there. is no statute or precedent, common law shall judge according to the law of nature and the public good.' Blackstone, in his Commentaries, regards the law of nature as an integral part of the laws of England, and as paramount whenever they come in conflict. The same doctrine is inculcated by St Germain,||
* London Jurist, for March, 1827, and Park's Contre-Projet to the Humphreysian Code, passim. Du Ponceau on Jurisdiction. Jenkins, Centu. 97, 117. Commentaries, 42. || Doctor and Student, Dialogue i, Chapter 5. VOL. XXX.-No. 66.
by Wynne, by Bentham,† by Lord Coke,‡ Lord Hobart,§ Bracton,|| Fortescue, T and many others.
The law of nature has been appealed to in numerous legal and other discussions besides those already mentioned, and the authority of writers upon it has been admitted with as much respect, as is accorded to the approved treatises on various branches of the municipal law by a Fearne, a Hargrave, a Butler, or a Preston. It was thus in the question, whether by the Common, as by the Roman law, gifts are subject to repetition for gross ingratitude in the donee.** By the civil law, an emancipated slave returned to his state of servitude for flagrant ingratitude to his master; in England, the maxim was, Šemel manumissum semper liberum. This law was likewise appealed to on the question of Commendam.†† As to the means of distinguishing between things mala in se and mala prohibita, Chief Justice Vaughan, in the case of Thomas versus Sorrell,‡‡ delivered a most able and learned opinion, showing his intimate acquaintance with the law of nature, and the writings of Selden, Grotius, and others. (See also Foster's Discourses, Disc. ii, ch. 1; 12 Coke's Reports, 76; Lord Macclesfield's speech on Impeachments, and Stillingfleet on Resignation Bonds.) So, likewise, as to allegiance, in Calvin's celebrated case, and as to the rights of the antenati and postnati, Lord Coke greatly relies on the jus naturæ, and speaks of it as the lex æterna; and he seeks for its lights in all the treatises then known.$$ We might also here refer to the celebrated controversy between Milton and Salmasius as to the legality of the proceedings of Charles the First; to the discussions relating to the exaction of ship-money, and those relative to the dispensing power; in all which the laws of nature and nations were discussed and relied on. Nor can we omit to mention the elaborate opinions of Chief Justice Vaughan in the cases of Harrison versus Dr Burwell, |||| and Hill versus Good, ¶¶ in which the law of nature
*Eunomus, Dialogue i, Section 17. Fragments on Government, 109.
§ Reports 87, 149, 225; 12 Modern, 687. Liber i, Chapter 1.
¶ Chapter 8.
7 Coke 126; 3 Institutes.
**3 Institutes, 151; Doctor and Student, Dialogue i, Chapter 6; Dia
logue ii, Chapter 45.
Hobart's Reports, 149.
Vaughan's Reports, 331.
Vaughan's Reports, 207-250.
§§ 7 Coke, Calvin's Case, 12 b.
was fully investigated on the subjects of incestuous marriages, and of the nullity of laws for want of promulgation. These opinions could have been pronounced only by a judge who had extended his researches much beyond the confines of the strict common law of England. In connexion with these opinions we may refer to Aughtie versus Aughtie,* Burgess versus Burgess, Butler versus Gastrill, Wightman versus Wightman, and finally to the question of the validity, under the jus naturæ, of a man's marriage with his deceased wife's sister, the affirmative of which was maintained by Mr Noah Webster, and the negative by Dr Livingston.¶
The natural law has also been relied on in cases where the question was involved as to the mode of acquiring and parting with property in things fera natura; and in Fennings versus Lord Grenville,** Gillet versus Mason,†† and Buster versus Newkirk, it was decided on its principles, that property in such things can be gained only by possession and not by pursuit. The second of these cases, and that of Wallis versus Mease, related to the property of a swarm of bees; that of Pierson versus Post, to the right of killing a fox pursued by another; yet they were not settled without reference to Grotius, Puffendorf, Barbeyrac, and Bracton. A melancholy instance of a resort to one of the rights of nature, that arising from extreme necessity, is related in a note to page 124 of the 'Legal Outlines.' It is the story of the carpenter, who, with his son, was engaged in repairing a steeple in a country town. The boy was seized with a vertigo when at a lofty point of the spire; and the father, who was a few feet below him, finding that his son's fall would inevitably involve his own destruction, gave the ladder a tilt in a direction from himself, and precipitated the child to the earth. We do not know that he was ever tried for this act of dreadful necessity.
The right of gleaning, as being what is called harmless profit by writers on natural law, was at one time held in England to be a common-law right. It has twice been the sub
ject of legal adjudication there, and is now denied to be law.* The right to literary property, independently of positive laws, has also been discussed in England with perpetual reference to the principles of natural jurisprudence, especially in the great case of Miller versus Taylor.† Dependent on the principles of this universal law, and the subject of frequent judicial investigation, is also the right of eminent domain, or the sovereign power inherent in all governments, of appropriating private property to public uses, after just compensation made. The reader may see in what manner this subject has been treated, in Leader versus Moxon,‡ Rex versus Cook, case of the Isle of Man, Lindsey versus the Commissioners, the People versus Platt,** and Bradshaw versus Rodgers.++
Whether civil laws create a moral obligation to their observance, or leave it optional either to obey them or submit to their penalties, is a question which has often been made, and which can be solved only by an examination of the principles of ethics and natural jurisprudence. Moralists have generally decided in favor of the moral obligation. Blackstone, who has inculcated a contrary doctrine,‡‡ has been ably refuted by Mr Sedgwick in his Critical Remarks on the Commentaries,' §§ and also by Judge Tucker in an annotation. In the case of Aubert versus Maze, TT the question, was as to the right to recover back moneys paid on a transaction malum prohibitum. The court had no hesitation to repudiate the distinction attempted to be set up, between the right of repetition in this case and where the transaction was malum in se; and the judges stated emphatically, that civil laws create a moral obligation to their observance. Mr Hoffman adverts several times to this topic; and his consideration of the nature of obligation, of sanction, and of the general properties of law, will set it in a point of light sufficiently clear.*
We might embrace in this view, the many discussions which have occupied English and American courts, as to slavery and the slave trade; whether the laws of any country which
* Steel versus Houghton, 1 Henry Blackstone's Reports, 53; 3 Blackstone's Commentaries, 212. 4 Burrow's Reports, 2303. versus Clark, 3 Campbell, 403. || Cited, 2 Dallas, 214.
3 Wilson, 461; also Sutton Cowper's Reports, 26. ¶ 2 Bay's Reports, 38. tt 20 Johnson, 103.
**17 Johnson, 215.
#1 Commentaries, 57. §§ Pages 52-64. ¶¶ 2 Bosanquet & Puller, 375.
Tucker's Blackstone, 58.
* Legal Outlines, 70, 272, 282, &c.