erned is essential, and the difference between law in this its correct sense, and the "laws of nature," as they are called, is that the former can be disobeyed and abrogated, while the latter cannot be disobeyed or abrogated, though they may be avoided or counteracted. Juridical laws are therefore commands requiring voluntary acceptance, while natural laws are phenomena exacting involuntary submission. Juridical laws. tell what man has to do; natural laws what nature has done. For the purposes, therefore, of this treatise, "law" is defined as a juridical rule of human action, excluding not merely moral law, when there is no distinctively secular sanction to enforce it, but psychological and natural law. "Law," then, being thus limited to a juridical rule of human law binding man in communities, "jurisprudence" may be defined as the science of law; i. e., law in its philosophical relations, viewing it as it relates to other sciences, and to the general principles of right.1 § 2. Accepting the definition of law just given as one which, as far as it goes, obtains general acceptation, we meet, when we proceed to the next step, two diverging paths. By what is called the analytical school of English jurisprudence, led by Bentham and Austin, the following are held to be among the essential incidents of laws: (1) They must be announced as bearing not on a special act retrospectively, but on general classes of acts prospectively. (2) They must issue from a sovereign. This sovereign may act either directly by his own immediate agents executing his will, or through local governments established by himself; but

Infra, § 10. An eminent contemporaneous writer makes jurisprudence to mean, not any particular concrete form of law, but the science of the general principles underlying all forms of law. See Holland's Jurisprudence, chap. i. But this limitation is far from being generally accepted, jurisprudence being used by many high authorities as meaning the law bearing on some particular line of cases; e. g., medical jurisprudence, criminal juris

based on

Law is
express
or estab-
order; but
imposition
reign not

command

blished

by a sove

necessary.

prudence, the jurisprudence of torts, etc. Viewing the term, however, derivatively, we may be justified in defining it, as in the text, as the science of law, i. e., law viewed philosophically and in its relations to other science. "Comparative jurisprudence" would unquestionably bear the meaning assigned by Professor Holland to jurisprudence generally.

2 See, for a fuller notice of this school, infra, §§ 6, 22, 90, 91.

without a sovereign, from whom it proceeds either directly or indirectly, so we are told by this particular school of jurists, there can be no law. (3) There must be a command or prohibition. Mere advice cannot constitute a law. (4) There must be some sort of a penalty, as otherwise the announcement would be merely advisory. But the penalty need not be a punishment. It may consist of forcible interference to prevent a forbidden act.

It is as to the second and third of these conditions-those which make a sovereign essential to the imposition and enforcement of a law-that there exists a radical difference of opinion which will be hereafter more fully discussed; the position that law descends from sovereign to people being disputed in various quarters. Law, so it is asserted by eminent authorities, so far from being imposed as a rule by sovereign on people, is imposed as a rule by people on sovereign. Two distinct lines of argument are appealed to as showing that law thus emanates from the people: (1) We must hold this to be the case, so it is said, from what we know of human nature. No laws, such is the maxim constantly invoked, can be better than the people they govern. All laws must be more or less declaratory. The sovereign may be a despot or a democracy, but the laws imposed on the people, so far as they constitute permanent and binding rules, must necessarily be in harmony with the conscience of the people, and respond to the people's needs. (2) History shows that in this way all permanent rules of law take their origin; and there is no settled system of law whose genesis we are able to trace which did not in this way originate. It is so with the common law of England; nor can the fact that this law is based in the main on popular conscience and need be met by the assumption of Austin and Bentham, that acquiescence by the sovereign in a law is tantamount to enactment of the law by the sovereign. It is so in a still more

1 See infra, §§ 93, et seq.

2 Infra, § 27.

3 Infra, §§ 14, 22, et seq., 63.

That this acquiescence does not make a law is shown by the fact that

the courts when affirming the binding character of a custom declare that the custom makes the law, and was law prior to their decision. Infra, § 15.

marked degree, as Sir Henry Maine' tells us, in the East, where law is everywhere more or less customary, and where there are some jurisdictions in which the sovereign, though a despot, makes no laws whatever except for taxation, the people being governed in all other matters solely by laws which have grown up among themselves. And it is conspicuously so, as we shall hereafter have occasion to see more fully in detail, in the formation of the distinctive jurisprudences of this country. By whom were existing English statutes winnowed in the colonies of Massachusetts and Pennsylvania, for instance, so as to retain such as suited the temper and met the wants of the people, and to set aside all others? This was not done by the colonial assemblies; had such a process of radical revision been attempted by these assemblies it would have been promptly vetoed by the king in council. It was not done by the British Parliament, though the British Parliament assumed to be the sole supreme legislature by whose laws these colonies were controlled. It was done by popular assent produced by national conscience and national need. It is true that when the colonies became independent sovereigns they passed laws by which the process of selection and rejection thus carried out was approved. But it was never pretended that the process of selection and rejection derived its authority from such legislation. On the contrary, when the colonies became sovereigns, what their courts said was, "this particular English statute was never in force in this state;" in other words, the courts said, "the law of the land, in this respect, was not imposed by the sovereign on the people, but was adopted by the people and afterwards accepted by the sove reign." The same may be said of the rulings of our courts as to international and inter-state law, and the law regulating Indian tribes. From the development of jurisprudence, therefore, in the New World as well as in the Old, we must infer that law is an emanation from the people to the sovereign, and not a command imposed by the sovereign on the people. And it is

1 See Maine's Ancient Law, 6 et seq. ; Maine's Village Com. 65; Early Hist. of Institutions, chap. xv.

2 Infra, §§ 23-4.

Infra, §§ 26, 265, 434, 585.

interesting to observe that in this conclusion unite not only doctrinaire idealists, as they have been called, such as Jefferson, and shrewd political tacticians, such as Franklin, but philosophical economists, such as Burke,' Adam Smith, and Sir George Cornwall Lewis, and conservative traditionalists, such as Savigny and Puchta. It is, in fact, the distinguishing feature of the historical school, of which Savigny is the most able and prominent representative, that by tracing the origin of law to local custom, it makes popular conscience, tradition, and necessity, the basis of law,3

Infra, § 53.

2 Infra, § 55.

3 See infra, §§ 55-6, 93, for an exposition of the distinctive features of the analytical and historical schools.

That the view in the text is that taken by Judge James Wilson, see infra, § 57 et seq. As to the analogy between the formation of law and language, see infra, § 93.

Mr. Frederick Pollock, after noticing Sir H. Maine's position that there are countries in which there are laws which are not imposed by a sovereign, says: "In the states of society specified by Sir Henry Maine, and to this day prevailing over a large part of the earth, the difficulty is not merely to ascertain what rules of conduct are true laws, but to find any person or body answering the description of a sovereign authority in the sense required by the analytical school." Pollock's Essays, 10. But see infra, §§ 24-6.

Bacon, in his argument on the case of the post nati of Scotland, has pointed out the vicious circle in which runs the assumption that sovereignty is the basis of law, citing Bracton's maxim, "Lex facit quod ipse sit rex." For full citation see infra, § 63. See as to Bacon's views, infra, § 86.

The basis of jurisprudence, according to modern Roman jurists, is the

existence of an objective law, in subordination to which all litigated questions are to be determined. To this law are to be subjected not merely the personal sympathies or animosities of the adjudicating tribunal, but whatever conception it may have of natural equity as distinguished from positive law. The Roman system agrees with our own in the position that it makes no difference whether this objective law which is to be thus supreme is statute law or common law. When a statute law exactly covers the point at issue, then this statute is supreme. When the statute does not exactly cover the point at issue, then we must resort for direction to the common law, to be drawn from the opinions of jurists, from the rulings of courts, and, when this is applicable, from proof of established

custom.

1. Contents.-According to the Roman jurists, as expounded by Dr. Bruns, in the treatise hereafter referred to, objective law in its full sweep includes whatever juridically affects either the public or the private life of the people who comprise the population of a state. Law, in this sense, therefore, is either public or private, but though the distinction is obvious and necessary the line on which it is to be drawn is the subject of much dispute. By the Roman law, private law "ad singulorum

§ 3. Juridical law (and in this sense "law" will be in future used) may be divided as follows: (1) International, As to or the law which affects civilized nations in their scope, law dealings with each other; (2) Federal, or the law ternationwhich governs within its prescribed limits two or more states bound together by constitution or treaty;