gratitude may lose its character of a virtue, but does not thereby become a legal duty. It is not therefore the actual enforcement of a rule that determines its character as legal rather than moral, but its enforcibility. A rule of law must be one that in its nature is capable of human enforcement, one that the state may rightfully compel its citizens to obey, or that constitutes a private right and duty which one citizen may rightfully compel a fellow citizen to observe. This does not say that the state may not pass a positive law upon matters more properly left to the moral sense of individuals, or that such a law could be disregarded at will. Legislation has constantly erred in this direction- "the world has been governed too much." Against such mistakes the citizen has no remedy except so far as the constitution of that state gives one. But no science exempts from practical errors or is falsified by them. Upon all common-law questions, wherever the line between law and ethics is drawn by natural reason, the test of distinction is that given above. And in private law even the errors have little effect. No court is likely, now and here, to enforce a private right not enforcible in its nature. (15) This has permanency, uniformity, and universality, and therefore is properly a rule, page 44. In the statement that a command to do a single act is not a rule or law, Mr. Austin and most of his followers agree with Blackstone, though none of them, so far as I have seen, give a reason for so holding. This agreement among writers who differ so widely in other respects is significant; we may infer from it that there is a fundamental distinction, whether it is stated or not. From their definitions, indeed, it is not easy to infer it. If law is in its essence the command of a superior, it is hard to see why a single command addressed to one person differs from a general command addressed to many. The notion of command is certainly as clear in the one instance as in the other. Mr. Austin attempts to discriminate them thus: "According to this line of separation which I have now attempted to describe, a law and a particular command are distinguished thus: Acts or forbearances of a class are enjoined generally by the former. Acts determined specifically are enjoined by the latter. A different line of separation has been drawn by Blackstone and others. According to Blackstone and others a law and a particular command_ are distinguished in the following manner: A law obliges generally the members of the given community, or a law obliges generally persons of a given class A particular command obliges a single person or persons whom it determines individually. That laws and particular commands are not to be distinguished thus will appear on a moment's reflection. For first, commands which oblige generally the members of the given community, or commands which oblige generally persons of given classes, are not always laws or rules, and secondly, a command which obliges exclusively persons individually determined, may amount notwithstanding to a rule or law." (Austin, Lectures on Jurisprudence, p. 77.) So far as this passage criticises Blackstone it might be sufficient to reply that B. has nowhere limited his definition of a law as Austin supposes; his criterion is that the law must be "permanent, uniform, universal.” (1 Com. 44.) He distinguishes a particular act to attaint Titius of high treason from a true law, of which his illustration is "an act to declare that the crime of which Titius is accused shall be high treason." Hardly any illustration could be better chosen to show that he had in mind a class of acts as distinct from a class of persons. (See Austin, p. 95.) But is Austin's distinction, considered per se, a just one? If a law is necessarily and in its very nature the command of a sovereign, as he maintains, by what criterion can he distinguish such a command addressed to a class of persons from one governing a class of acts? No person can die and be buried more than once; is not a law requiring a certificate of death as a prerequisite to burial, or commanding all corpses to be buried in woolen, a true law? Austin's own illustration, of an order for all persons to wear mourning on a single occasion, if made by statute, would certainly be regarded as a law; as much so as an embargo law, or a law requiring the levy of a particular tax. Each of these would imply a sanction, would give rights, and impose duties. Each would necessarily be clothed in general terms; and this expression of the legislator's will, in general terms, and not in a specific command, seems to be the criterion of a law rather than an exclusive reference either to acts or to persons. As to Austin's second class, of a series of acts imposed upon persons individually determined, Clark (Practical Jurisprudence, a comment upon Austin, p. 113) has well said: "I question much if it would amount to a law as ordinarily conceived." Such a rule would unquestionably be a privilege in the strictest sense of the term, lex privatis hominibus irrogata, quoted by Blackstone from Cicero on the very next page. It may be questioned whether a law "obliging generally the members of the given community, or of a given class,” could be formed which should not at the same time enjoin acts or forbearances of a class, and therefore whether Austin's distinction has any real meaning. A particular command for all persons to wear mourning on a given occasion implies a class of facts to be done as well as a class of persons to do the acts, and questions of interpretation would arise for the courts both as to the particular individuals included or exempted, and the particular acts which should constitute compliance. Strictly speaking, a particular command cannot be given to a class. It must either determine the individuals to whom it is addressed, or it must suppose them determined by some preceding rule which is in itself something more than a command. "Shoulder arms," addressed to an army of one hundred thousand men, is not a law, because it is addressed to each individual separately. The command addressed to a class of men must describe the act to be done, in such a general way as to designate a class of acts rather than a single act. Each must make the application to himself. Every rule which is not so formulated is capable of being resolved into as many particular commands as there are persons addressed. In Bud v. State, 3 Humph. 483 (1842), this very question is considered. The law of the land is a rule alike embracing and equally affecting all persons in general, or all persons who exist or may come into the like state and circumstances: a partial law on the contrary embraces only a portion of those persons who exist in the same state and are surrounded by like circumstances. It matters not how few the persons are; if all who are or may come into the like circumstances or situations be embraced, the law is general and not a partial law The principle was here applied to a statute making certain acts of the officers of a particular bank felonies. It is evident that this statute was a law in Austin's sense as applicable to a class of acts, but not in the sense which he ascribes to Blackstone as applicable to a class of persons; and on this ground the court held it unconstitutional and inconsistent with the bill of rights, which denied to the legislature the power to pass any law for the benefit of individuals, inconsistent with the general laws of the land. So in Bank v. Cooper, 2 Yerg. 599 (1831), an act providing a special tribunal to try all cases brought by a certain bank against officers and defaulters was held not to be the law of the land, and it is said (p. 617) that the legislature cannot prescribe the jurisdiction of the courts (a class of acts) by a statute, the operation whereof would be spent upon the judges individually, quoting this definition of Blackstone for the doctrine. In Van Gandt v. Waddell, 2 Yerg. 260, the law of the land is said to require that the right to life, liberty, or property of every individual must stand or fall by the same rule that governs every other member of the body politic under similar circumstances. It seems, therefore, that a law is distinguished from a command by reason of its generality, whether that generality consists in persons to whom it is addressed or in acts which it requires. The law-giver does not command, because he does not imply a specific state of things under which his law is to be executed. The command is peremptory; it is to be obeyed without reference to the discretion of the person commanded. The law on the other hand is addressed not to the will but to the judgment of the persons upon whom it is imposed; they are to obey it, not at once, but when in their judgment the occasion arises upon which it was intended to operate. Usually this judgment will require a consideration both of circumstances and of persons; they must see not only that the time has come when the law is to be observed, but also that they are the persons upon whom it was intended to operate. Even in the most general laws, addressed to all citizens alike, such as tax laws, or laws forbidding crimes, there are exceptions, sometimes contained in the language itself, but more commonly resting upon general conditions, which make it not always an easy question, who are the persons called on to obey. But whether this be so or not, there is always judgment to be exercised in determining when the law takes effect. It differs from a command because it implies an antecedent and a consequence. When the fact A arises, the result B is enjoined; if the fact C arises, the result D is the one |