302 



consults do not speak clearly or confidently of the existence of such a state, which, in- 

 deed, is little noticed by the ancients, except where it finds a poetical expression iu the 

 fancy of a golden age. Natural law, for all practical purposes, was [■omething belonging 

 to the present— something entwined with existing institutions, something which could 

 be distinguished from them by a competent observer. The test which separated the 

 ordinances of nature from the gross ingredients with which they were mingled, was a 

 sense of simplicity and harmony ; yet it was not on account of their simplicity and har- 

 mony that these finer elements were primarily respected, but on the score of their descent 

 from the aboriginal reign of nature. This confusion has not been successfully explained 

 away by the modern disciples of the jurisconsults ; and, in truth, modern speculations 

 on the law of nature betray much more indistinctness of perception, and are vitiated by 

 much more hopeless ambiguity of language, than the Roman lawyers can be justly 

 charged with" {Ancient Law). 



(d) Eights, as we have explained, are of two kinds, viz., rights of ownership and 

 rights of obligation, and the enumeration given iu the text is therefore exhaustive. 



(e) It is said by Kant, that this right " is the one, sole, original inborn right belonging 

 to every man in virtue of his humanity " {Phil, of Law, p. 56) ; but, in fact, from this 

 right are derived all others. This is admirably shown, though with some error, by Her- 

 bert Spencer, in his Social Statics and Justice, and is also treated in detail in Mr. Smith's 

 Right and Law, Chaps, vii and viii. 



(/) Accordingly, the most approved definition of the Common Law, uniformly asserted 

 by English jurists from the time of Bracton, is that it consists of the general customs of 

 the realm or State (1 Blacks. Com., 63). " In England," says Bracton (Bk. i, Chap. 1, ? 2), 

 "the law {jus) has come without written enactment {ex non scripta), because use has 

 established it." In this sense, the term. Common Law, is opposed, by modern legal 

 writers, to statutory law. "Common Law is taken for the law of this kingdom simply 

 .... as it was generally holden before any statute was enacted in Parliament to alter 

 the same " (Jacobs' Ler/. Diet.). " The Common Law is that which derives its force and 

 authority from the universal consent and immemorial practice of the people. It has 

 never received the sanction of the legislature by an express act, which is the criterion 

 by whicli it is distinguished from the statute law " (Bouvier, Law Diet.). 



(g) Thus Mr. Whewell {Elements of Morality) in his otherwise admirable chapter on 

 "Justice " seems to assume this : "Though, in general," he says (Sect. -IS'J), " Justice is 

 determined by law, the law must be framed in accordance with justice. Justice is 

 djrectly and positively determined by law ; for a man's just rights are those which the 

 law gives him. The law must be framed in accordance with justice, and must therefore 

 reject all that is arbitrary and unequal, as soon as it is seen to be so." The defect of Mr. 

 \V he well's views is, he fails to grasp the true nature of the relation between natural 

 right and law ; which is that the former is part of the latter. 



(/() There will be noted a discrepancy between this proposition and the one immediately 

 preceding ; in the one the written law is described as commensurate with the nomos 

 idios, and the vnwritten, with the nomosl-omos, or common law ; in the other, the nomos 

 komos is said to be partly written and partly uniuritten. The latter is the true view and 

 conforms to the distinction made in the Roman law, and in our own between the lex 

 scripta and the lex non-scripta , and also to the distinction made in our law between the 

 common and the statute law. 



(i) See further on this point Elements of Civil Law, in the chapter on "The Law of 

 Nature," by Dr. Taylor ; who, alter quoting the langu ige of Aristotle, says : " These are 

 the very words of the emperor : Omnes pnpidi qui legibus et moribiis regiintur partim suo 

 propria partim communi omnium hominum jure utuntur." "This twofold division of the 

 law," he adds, "as it is the earliest, so it is perhaps the best and has been generally 

 received by lawyers and philosophers." 



Sir Frederick Pollock very strangely mistakes the position of Aristotle upon this 



