HISTORY AND NATURE OF LAWS. 



A LAW, in its strict and original sense, is a 

 rule of action contained in a command of a 

 sovereign, addressed to and enforced upon his 

 subjects ; or, in other words, it is a rule of action 

 prescribed to and enforced upon inferiors by their 

 acknowledged superior. As the only universal 

 superior is the Creator and Governor of the uni- 

 verse, all laws, in their last analysis, are divine, or, 

 what amounts to the same thing, are natural laws. 

 The conditions of the commands of a superior 

 being laws, appear from this definition to be, that 

 he has a competent authority such as his subjects 

 must obey, from whatever cause and superior 

 power, so as to be able to enforce his commands. 

 Power and law are thus coincident, first in the 

 divine, and then in the human lawgiver. Human 

 or positive laws are attempts, necessarily more 

 or less imperfect, to discover divine or natural 

 laws by means of human intelligence, and to 

 bring them into operation in special circum- 

 stances by means of human power. Their dis- 

 covery belongs to, or rather is, the science of juris- 

 prudence; the discovery of the means by which 

 they may be enforced is the science of politics, or 

 legislation in the general, and of jurisdiction in 

 the special instance ; their ultimate enforcement 

 being the function of the executive, which is, as it 

 were, the weapon with which power vindicates 

 reason. In all states, the power of enforcing 

 laws springs from and depends on the consensus 

 of the subjects, which maintains the sovereign's 

 authority. A real despotism, in the sense of a 

 state in which the sovereign is absolutely inde- 

 pendent of his subjects, is thus an impossibility. 

 Even in the case of a foreign conquest, the 

 subject population, in ceasing to govern, cease 

 to constitute the state, and a new state arises. 



A system of laws or the law of a country con- 

 sists of the whole body of rules by which a people 

 are bound together in civil society. It must always 

 include CONSTITUTIONAL LAWS, to determine and 

 regulate the political system and the public ser- 

 vice ; CIVIL LAWS, determining the subjects' rights 

 of person and property ; and CRIMINAL LAWS, 

 defining and prohibiting offences. Human nature 

 is such that men cannot continue in society with- 

 out adopting, or being constrained to observe, a 

 system of laws ; and we know from history, that 

 not only is society itself a growth and develop- 

 ment, but that the laws which secure the coherence 

 of its members grow and are developed with it so 

 long as it progresses. 



The rudimentary form of law is custom, while 

 as yet there is no governmental agency to 

 enforce it. At this stage, the system of laws is 

 composed of modes of dealing and rules of con- 

 duct established by usage, and observed by the 

 people, to avoid trials of strength. When the 

 perception of the advantages of association, and 

 of subordination to leadership, to reap these advan- 

 tages to the full, conspiring with other causes, 

 brings about government, there arises a regular 

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agency for giving effect to the rules of custom. 

 The sovereign or his functionaries interfere to sup- 

 press disturbances arising from the non-observance 

 of these rules ; and to judge between disputants, 

 in order to prevent such disturbances, and to settle 

 amicably cases unprovided for by custom. The 

 advance of civilisation gives the strict character 

 of law to custom, by prescribing the penalties 

 under which it must be observed ; and enacts new 

 laws to meet new cases, or amends old rules to 

 suit them to new circumstances. In the progress 

 of time, in most countries the mass of the law 

 its rules constantly multiplying with the variety of 

 new experiences becomes cumbrous, and the rules 

 themselves become indistinct ; when to restore 

 them to distinctness and certainty, a legislator 

 a Solon or Lycurgus, a Justinian or Bonaparte 

 arises, and rears up a homogeneous and syste- 

 matic body of law, a code, out of the mass of popu- 

 lar usages and legislative enactments. This body 

 thereafter undergoes successive changes as popular 

 habits change with new occupations and circum- 

 stances, till, in the round of time, the necessity for 

 codification recurs. ' For law, as for language,' 

 says Savigny, 'there is no moment of absolute 

 cessation ; it is subject to the same movement 

 and development as every other popular tendency 

 .... it grows with the growth, and strengthens 

 with the strength of the people, and finally dies 

 away as the nation loses its nationality.' All 

 positive law, whether codified or not, is thus 

 necessarily variable, dependent on every varia- 

 tion in the character of the subjects with which 

 it deals, and of the circumstances in which they are 

 placed, whether these variations arise from race, 

 stage of development, local situation, or any 

 other cause. And yet all these variations are 

 called for only in order that in various circum- 

 stances the same fundamental principles, or natural 

 laws, may be vindicated. We thus perceive the 

 necessarily variable character of positive, and the 

 necessarily invariable character of divine or nat- 

 ural law, however much our conceptions of it may 

 vary. From these remarks it will be apparent 

 that the progress of jurisprudence depends on 

 two factors. The first is the progressive discovery 

 and more accurate definition of principles ; and 

 second, the more careful investigation of the cir- 

 cumstances in which those principles are to be 

 vindicated. 



The principal objects of law are personal safety, 

 marriage, property, government, corresponding to 

 universal necessities of human nature ; and with 

 these objects, laws are to be found in every society. 

 While every society has within itself the causes of 

 the growth, and materials for the nourishment, of 

 law, none has ever been so isolated as not to owe 

 some of the principles of its system to the laws of 

 other nations. The first mercantile nations first 

 develop mercantile laws, which, if they are not 

 entirely copied, are more or less imitated by 

 nations which subsequently turn their attention to 



