293 



So, also, with reference to contract, or convention, of which it is said 

 international law largely consists, these are binding only because it is a 

 principle of natural right that they should, in certain cases, be observed. 

 Hence, contracts, like customs, are mere elements in the problem of 

 international or constitutional right, and ultimately depend for their 

 validity upon the principles of natural right, or justice. 



Especially are these observations true with reference to the theory of 

 the Stale, the subject of our present investigations ; for here, obviously, 

 we have to deal exclusively with theoretical right, unembarrassed by the 

 consideration of contracts, customs, laws, or other historical facts, except 

 in the abstract, as elements of the problem. 



(3) But, with reference to private right, the question is more compli- 

 cated ; for here we have to take into consideration, not only customs, 

 but also judicial decisions and statutes, or legislative acts ; and these 

 present questions of great difficulty, which cannot here be considered at 

 length. 



It will be sufficient, however, for our purposes, to say, with reference 

 to judicial decisions, or precedents, that they are but a species of custom, 

 and rest for their binding force, upon the same principle ; and, with refer- 

 ence to statutes, or legislative acts, that they are but the acts of men, and, 

 like contracts, or other human acts, derive their authority solely from the 

 right of the men enacting them to dispose of the subject matter to which 

 they relate : if within the right of the legislator, they are valid, and 

 otherwise not. Hence, statutes and judicial precedents, like the acts of 

 private individuals and customs, are mere elements in the problem of 

 private right, and ultimately depend for their validity upon the principles 

 of natural right, and can have no other foundation, and hence, to assert 

 their validity is, in effect, to assert the existence of natural right, Hobbes 

 is therefore right in asserting not only that "tho law of nature is a part 

 of the civil law of all the commonwealths of the world," but that 

 "reciprocally, also, the civil law is a part of the dictates of nature ; for, as 

 he says, justice, that is, performance of covenant, and giving to every man 

 his own, is a dictate of nature, and every subject in a commonwealth 

 hath covenanted to obey the civil law." Hence he says, " The civil and 

 natural laws are therefore not different kinds, but different parts of law ; 

 whereof, one part being written, is called civil, the other, unwritten, 

 natural." * 



Of the truth of our proposition, that natural law is part of every system 

 of positive law, or, in the words of Hobbes, that it is a part of the civil 

 law of all commonwealths of the world, there cannot therefore be any 

 doubt, and the chief difficulty of men in conceiving it is in the failure to 

 observe that what we call the law consists of several essentially diflferent 

 parts. These consist of the criminal and the civil law, and the latter of 

 the law of civil procedure, and the law of private right ; and the last, 

 again, of the doctrine of rights, or, as we may call it, right, and of the 



*L€V., 124. 



PROC. AMER. PHIL08. 80C. XXXIV. 148. 2 L. PRINTED NOV. 1, 1895. 



