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collective body of such rules. In any other language than our own, this could hardly have passed without observation. In all other languages with which a reader of Blackstone is most commonly acquainted, the word that denotes a law (lex, loi, legge, ley, gesetz) is not only distinct from, but philologically unconnected with the word used to denote the law-jus, droit, diritto, derecho, recht, etc. In English alone is it possible to pass from one to the other without attracting attention to the change of the terms. It is very singular that it should be so, for in none of the systems of national law with which ours is commonly compared does the notion of a law, of lex, as contrasted with jus, play so subordinate a part as in the common law of England and America. Our earliest writers (Glanvil and Bracton) felt it necessary to show that the law of England may properly be called law in spite of the fact that it had then no constituent parts to which the continental usage would have applied the term. That they succeeded in this, at least so far as their own countrymen's usage was concerned, we may see from the phrase communis lex, commonly applied in England throughout the middle ages to our "common law," though it would have been almost incomprehensible on the continent, where the same conception was designated, as it is to this day, commune jus. Blackstone then had good authority for treating a law and the law as cognate terms. But he had still better authority for assuming that the law (whether called lex as in England, or jus as on the continent) was in reality only a collection of laws (leges) or rules imposed by a superior. This was the recognized doctrine when he wrote, and had been so for at least five hundred years. The inroads in the century or so immediately before his time had hardly shaken its authority. Even the believers in a social compact could hardly conceive of any form in which law could come to exist except that of a rule prescribed

by some one; and the Roman authors as then read were supposed to teach the same doctrine. The canonists did so beyond all question. They had imposed upon all Europe the settled conviction that the only right which one man could claim against another must rest upon a rule imposed upon both by a common superior-whether that superior might be the Creator himself, or an earthly magistrate by him empowered. That any binding rule could be enforced on a man except by some one having authority over him was unheard of, and contrary to all the conceptions of divine or human government then in vogue.

Blackstone's theory of law was in the main that which had prevailed in Europe from the middle ages. It held that all human actions were, or at least should be, governed by a system of rules imposed upon the race for the guidance of every man who obeyed them, to felicity here and hereafter, by the practice of virtue, which was obedience to these rules. Of this system there were two parts, distinguished by certain specific differences, but alike in general nature. Those laws which governed man simply as man, without reference to the social and political relations in which he found himself, addressed themselves to his conscience, and exerted only an imperfect obligation, because they were not accompanied by any sanction in this world at least. Those which governed him in his relation to society, and to the other members of society, were of perfect obligation, because earthly rulers were authorized by the sovereign of all to add and enforce penal sanctions for disobedience. The former were moral, the latter jural; but both alike were laws, and together constituted the law - complexus sive systema legum homogenearum, as Puffendorf describes jus. When the state was formed and government instituted, the sovereign was bound to enforce the former as well as the latter; so far at least as they were not merely moral or religious. It was this

enforcement of religious and moral duties as legal ones that constituted the most important feature of the 'heory.

To what extent this theory may have been influenced by the Roman jurists, Cicero, Ulpian, and others, who under the guidance of philosophy had defined jus as justi, injustique scientia, and other phrases of like import, it is needless here to discuss. (Maine, Ancient Law, ch, 5, p. 110, has stated this in strong terms.) My own impression is that these phrases were mere rhetorical adornments, or at most private opinions, not describing anything in the system of practical jurisprudence which forms the glory of ancient Rome; and that neither in that system of law, nor in the early Germanic law, do we find either of the leading elements which mark the character of medieval law-the conception of a law as essentially the rule of a superior, and that of individual virtue and happiness as its end and object. That these appear in the revived Roman law of the twelfth century, and still more clearly in the canon law from the very beginning, there can be no doubt, and from these sources they were infiltrated into the law of every modern European state, and into the writings of jurists, moralists, and theologians. In English law they appear most clearly in the Mirror (ch. 1, § 1), and in St. Germain's Doctor and Student, where the law of reason and the law of God are the first two of the principal grounds of the law of England. (Dial. I. ch. 4.)

With respect to the original sources from which the divine laws were to be drawn, there had been a difference of opinion between those who looked to revelation alone as their source, and those who gave prominence to the notion of natural law. The former deduced all law from the direct will of the Deity, expressed in the form of law, and for the very purpose of guiding and governing the actions of men. The best illustration of this doctrine accessible to American

students will be found in the Treatise of Law, prefixed to Domat's great work on The Civil Law in its Natural Order, In this all law is derived from the two commands given in Matt. xxii. 38. (Domat, 1, 8.) It was a bold advance when jurists ventured to place the teachings of reason upon the same footing with those of revelation, and they were careful to show that this natural law was as truly the legislation of God as that which was found in his written word. The connection between the two theories is thus expressed by Puffendorf (Law of Nature and Nations, ch. 7, p. 3, 2): "God as the author of the Law of Naturo must also be looked upon as the founder of civil societic, and consequently also of sovereign power, without which they cannot exist. For we must refer to a divine origin, not only the establishments made directly by God's order, and without the intervention of any human act, but also those which men have invented themselves by the light of reason, according as circumstances of time and place required it, in order to acquit themselves of obligations imposed by some divine law. Therefore, as the duties of natural law could not conveniently be performed, since the great multiplication of mankind, without civil government, it is clear that God, who has prescribed that law to men, has thereby commanded them to form civil societies."

Thus under both these theories alike, it was the will of God as a sovereign giving rules to his subjects, which formed the larger and by far the more important portion of the law. Every rule of man's conduct which could be traced to either a revealed or a rational sourc^, was ipso facto, a portion of the law, binding over all the globe, in all countries and at all times, and no human laws were of any validity if contrary to them. (Text, p. 41.) This theory naturally gave to all law the character of fixed and certain rules, from which rights and duties might be inferred, but against which no

1 BLACKST.-10.

right of human institution could for a moment avail. Legislation thus appeared to be the proper or natural form of all law, and the elements of law which could not be traced directly to some rule imposed by a legislator were treated as mere exceptions from the normal form. The importance of this, in its effect upon the teaching of the eighteenth century, and especially upon the views of Bentham, has been noticed already.

So long as the rules of law could be traced directly to religion or reason this theory presented few difficulties. But there were large parts of every system of law in civilized countries which were evidently of human origin. How were these to be accounted for? It is upon the varying answers to this question, that most of the difficulty and confusion of the subject may be traced. In the original doctrine, as we find it in Domat and others, there can be no question on this point. They clearly recognize two distinct kinds of laws existing in every state. The one, variously called divine, natural, immutable, were so just at all times and in all places that no human authority could ever change or abolish them. The other, human, positive, or arbitrary, were those which might be enacted, changed, or abolished by the human governors to whom the Sovereign of All had committed the oversight of the human race, including the power of legislation. The authority of these laws consisted purely in the force which they derived indirectly from the Sovereign of All. "For it is always the almighty providence of God that disposes of that series and chain of events, which precede the elevation of those whom he calls to govern. Thus it is always he who places them in the seat of authority. It is from him alone they derive all the power of authority they have, and it is the ministry of his justice that is committed to them." (Domat, Treatise of Laws, ch. 9, 27.) In other words, it was the doctrine of the divine right of kings, from which sovereignty and the power

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