299 



ing that which has life ; for this is a maxim not right here nor wrong 

 there, but a principle of law to all." {i) 



(2) The distinction made by Aristotle between the common and the 

 peculiar law {nomos koinos and nomos idios), was adopted without change 

 by the Roman jurists ; who regarded the law as consisting of two parts, 

 namely, the jus gentium or naturale and the jws civile. " Every people," 

 they say, "uses partly its own peculiar law {jus) and partly the law 

 common to all men. For that law which each people has established for 

 itself is peculiar to it, and is called the jus civile as being peculiar to the 

 State in question ; but that which natural reason has established among 

 men, is observed generally among all people and is called the jas 

 gentium as being the law which all nations use." * 



The same notion is also embodied in their definitions as given in the 

 works cited in note. ( j) 



(3) It was to this conception of jus that the Roman law owed the 

 rational character of its development ; which, in fact, commenced with, 

 and was, in a large measure, due to the adoption of the Greek philosophy 

 by the Roman lawyers. Hence, the Roman law is, to a great extent, to 

 be regarded, as Celsus says of it, as "a true philosophy," or, in other 

 words, a "body of reasoned truth," which is the view taken of it by 

 Leibnitz ; who was at once philosopher and jurist ; and whose opinion is 

 therefore entitled to the highest consideration. (A) 



(4) The doctrine of natural right, and of its existence as part of the 

 law, was received by the different countries of Western Europe along 

 with the whole body of the Roman law, and, so far as my knowledge ex- 

 tends, has never been disputed by the continental jurists. It was also 

 adopted by the jurists of the common law, and until the advent of 

 Bentham and Austin, was universally received. 



(5) On this point the only difficulty arises from the exuberance of the 

 aiTthorities. Bracton quotes literally the passages I have cited from the 

 Roman jurists, adding much to the same effect of his own. 



"Jurisprudence," he says, "differs much, therefore, from justice ; for 

 jurisprudence recognizes, and justice gives what is due to every one. 

 Justice, therefore, is the virtue, jurisprudence the science; justice the 

 end, jurisprudence the means." + 



The doctrine of natural right as part of the law is also explained at great 

 length by Fortescue, De Laudibus Legum Anglim,X also by St. Germain, § 

 and Fleta, and finally by the great master of the common law, Coke ; who 

 asserts explicitly that " the law of nature is part of the law of England ;" 

 and, defines it, in the words of " Aristotle, Nature's Secretary, as that quod 

 apud omnes homines eanden habit potentiam" ; and "herewith agreeth," 

 he says, Bracton, Lib. i. Chap, v, and Dr. and Student, Chaps, v, vi, 

 " And this appeareth plainly and plentifully in our books. "|| And to the 

 same efi"ect are numerous other passages hereafter cited. 



* Pandects and Inst, of Justinian. J Chap. 1, 15, 16. 



t Bk. i, Chap, iv, g 1-4. g Doctor and Student, passim- 



1 Calvin s Case, 7 Rep., 12, 13. 



