16 



JUDGE GEORGE H. SMITH^ ON 



Private Acts. 



Acts of Original Acquisition. 

 Transactions. 



Contracts. 



Tortsr 



Of Juridical Events, however, there are two kinds that will 

 particularly require our attention, namely, Customs, and Political 

 Acts. 



Of Custom. 



This subject is of fundamental importance. . . . But 

 the efficacy of custom rests mainly upon a more profound 

 principle. For it is part of the nature and constitution of man, 

 that his actions shall in the main, be immediately determined 

 by custom ; and hence, using the term in its widest sense, as 

 including not only ordinary customs, but also those which are 

 accompanied by a conviction of their moral rectitude (7nores 

 consuetudinew.que) — Morality itself, and Jurisprudence as a 

 branch of Morality, depend mainly upon custom for their 

 practical operation. Yet the received Morality is accepted by 

 men, not on account of its mere prevailnient, but from a 

 conviction of its rectitude ; and hence the conception of 

 Morality, though as commonly entertained, but an embodiment 

 of that which is commonly received, involves in it, the con- 

 ception of a true Morality, of which the received Morality is 

 but an attempted application. 



Instituted and Positive Morcdity Vistinguished. 



We thus have denoted by the same term, two essentially 

 different notions, which are commonly confounded. Nor can 

 the resulting confusion be obviated, otherwise than by assigning 

 to each notion an appropriate name. We will, therefore, assign 

 to the received or customary Alorality, the name of " Instituted 

 Morality," and to the true Morality in its logical application 

 to circumstances of time and place, the name of " Positive 

 Morality." 



Of Politiccd Acts. 



This also, though much neglected, is a subject of fundamental 

 importance. 



These are commonly divided into three kinds, namely : 

 Administrative, Judicial and Legislative. To all of these, the 

 principle will apply, that they are but the acts of men, and, like 



