The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Unconstitutionality of Slavery. Part Second.
• Chapter XIV.: The Definition of Law.
• Chapter XV.: Ought Judges to Resign Their Seats?
• Chapter XVI.: “the Supreme Power of a State.”
• Chapter XVII.: Rules of Interpretation. *
• Chapter XVIII.: Servants Counted As Units.
• Chapter XIX.: Slave Representation.
• Chapter XX.: Why Aliens Are Counted As “three Fifths.”
• Chapter XXI.: Why the Word’s “free Persons” Were Used.
• Chapter XXII.: “all Other Persons.”
• Chapter XXIII.: Additional Arguments On the Word “free.”
• Chapter XXIV.: Power of the General Government Over Slavery.
• Appendix A.: Fugitive Slaves.
• Appendix B.: Suggestions to Abolitionists.

CHAPTER XIV.

THE DEFINITION OF LAW.

It has been alleged, by way of objection to the definition of law given in chapter first, that under it the law would be uncertain, and government impracticable. Directly the opposite of both these allegations is true. Let us see.

1. Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words, in which statutes and constitutions are written, are susceptible of so many different meanings,—meanings widely different from, often directly opposite to, each other, in their bearing upon men’s rights,—that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret the written law, unless they previously understand the natural law applicable to the same subject. It also assumes that the people must understand the natural law, before they can understand the written law.

It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, no one can know what the written law is, until he knows what it ought to be; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words ought to be taken. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken.

Take, for example, the Constitution of the United States. By adopting one or another sense of the single word “free,” the whole instrument is changed. Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only in some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess.

Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,—which are a mixture of natural and written laws,—arises from the difficulty of construing, or, rather, from the facility of misconstruing, the written law. While natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,—and the fact should be kept forever in mind, as one of the most important of all truths:—“It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.”* In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter.

The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.†

Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men’s rights.

There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men’s minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.*

It is not necessary that legislators should enact natural law in order that it may be known to the people, because that would be presuming that the legislators already understand it better than the people,—a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject, are open to the people, that are open to the legislators, and the people must be presumed to know it as well as they.†

2. But it is said further, that government is not practicable under this theory of natural law. If by this is meant only that government cannot have the same arbitrary and undisputed supremacy over men’s rights, as under other systems—the same absolute authority to do injustice, or to maintain justice, at its pleasure—the allegation is of course true; and it is precisely that, that constitutes the merits of the system. But if anything more than that is meant, it is untrue. The theory presents no obstacle to the use of all just means for the maintenance of justice; and this is all the power that government ought ever to have. It is all the power that it can have, consistently with the rights of those on whom it is to operate. To say that such a government is not practicable, is equivalent to saying that no governments are practicable but arbitrary ones; none but those that are licensed to do injustice, as well as to maintain justice. If these latter governments only are practicable, it is time that all men knew it, in order that those who are to be made victims may stand on their defence, instead of being cheated into submission by the falsehood that government is their protector, and is licensed to do, and intends to do, nothing but justice to any.

If we say it is impracticable to limit the constitutional power of government to the maintenance of natural law, we must, to be consistent, have done with all attempts to limit government at all by written constitutions; for it is obviously as easy, by written constitutions, to limit the powers of government to the maintenance of natural law, as to give them any other limit whatever. And if they were thus limited expressly, it would then, for the reasons before given, be as easy, and even altogether more easy, for the judiciary to determine what legislation was constitutional, and what not, than it is under a constitution that should attempt to define the powers of government arbitrarily.

On what ground it can seriously be said that such a government is impracticable, it is difficult to conceive. Protecting the rights of all, it would naturally secure the cordial support of all, instead of a part only. The expense of maintaining it would be far less than that of maintaining a different one. And it would certainly be much more practicable to live under it, than under any other. Indeed, this is the only government which it is practicable to establish by the consent of all the governed; for an unjust government must have victims, and the victims cannot be supposed to give their consent. All governments, therefore, that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all, or even any very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.

It is true that those appointed to administer a government founded on natural law, might, through ignorance or corruption, depart from the true theory of the government in particular cases, as they do under any other system; and these departures from the system would be departures from justice. But departures from justice would occur only through the errors of the men; such errors as systems cannot wholly prevent; they would never, as under other systems, be authorized by the constitution. And even errors arising from ignorance and corruption would be much less frequent than under other systems, because the powers of government would be much more definite and intelligible; they could not, as under other systems, be stretched and strained by construction, so as to afford a pretext for anything and everything that corruption might desire to accomplish.

It is probable that, on an average, three fourths, and not unlikely nine tenths, of all the law questions that are decided in the progress of every trial in our courts, are decided on natural principles; such questions, for instance, as those of evidence, crime, the obligation of contracts, the burden of proof, the rights of property, &c., &c.* If government be practicable, as we thus see it to be, where three fourths or nine tenths of the law administered is natural, it would be equally practicable where the whole was so.

So far from government being impracticable on principles of natural law, it is wholly impracticable to have a government of law, applicable to all cases, unless the great body of the law administered be natural; because it is impossible for legislation to anticipate but a small portion of the cases that must arise in regard to men’s rights, so as to enact a law for them. In all the cases which the legislature cannot anticipate and provide for, natural law must prevail, or there can be no law for them, and, consequently,—so far as those cases are concerned—no government.

Whether, therefore, we regard the certainty of the law, or the practicability of a government applicable to all cases, the preference is incomparably in favor of natural law.

But suppose it were not so. Suppose, for the sake of the argument, that the meaning of the arbitrary commands of power were, in the majority of cases, more easily ascertained than the principles of natural justice; is that any proof that the former are law, and the latter not? Does the comparative intelligibility of the two determine which is to be adopted as the true definition of law? It is very often easier to understand a lie than to ascertain a truth; but is that any proof that falsehood is synonymous with fact? or is it any reason why falsehood should be held to be fact? As much reason would there be in saying this, as there is in saying that the will of the supreme power of the state is law, or should be held to be law, rather than natural justice, because it is easier to understand the former than to ascertain the latter.

Or suppose, further, that government were impracticable, under such a definition of law as makes law synonymous with natural justice; would that be any argument against the definition? or only against government?

The objection to the practicability of government under such a definition of law, assumes, 1st, that government must be sustained, whether it administer justice or injustice; and, 2d, that its commands must be called law, whether they really are law or not. Whereas, if justice be not law, it may certainly be questioned whether government ought to be sustained. And to this question all reasonable men must answer, that we receive such an abundance of injustice from private persons, as to make it inexpedient to maintain a government for the sole purpose of increasing the supply. But even if unjust government must be sustained, the question will still remain, whether its commands ought to be called law? If they are not law, they should be called by their right name, whatever it may be.

In short, the definition of law involves a question of truth or falsehood. Natural justice either is law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except what is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandates.

If natural justice be not law, then all the decisions that are made by our courts on natural principles, without being prescribed by statute or constitution, are unauthorized, and not law. And the decisions of this kind, as has already been supposed, comprise probably three fourths, or more likely nine tenths, of all the decisions given by our courts as law.*

If natural justice be law, then all statutes and constitutions inconsistent with it are no law, and courts are bound to say so. Courts must adopt some definition of law, and adhere to it. They cannot make it mean the two opposite principles of justice and injustice at once. White cannot be made white and black at the same time, by the assertions of all the courts on the globe. Neither can law be made two opposite things at once. It must be either one thing or the other.

No one doubts that there is such a principle as natural law; and natural law is natural justice. If natural justice be law, natural injustice cannot be made law, either by “the supreme power of the state,” or by any other power; and it is a fraud to call it by that name.

“The supreme powers of states,” whether composed of majorities or minorities, have alike assumed to dignify their unjust commands with the name of law, simply for the purpose of cheating the ignorant into submission, by impressing them with the idea that obedience was a duty.

The received definition of law, viz., that it is “a rule of civil conduct prescribed by the supreme power of a state,” had its origin in days of ignorance and despotism, when government was founded in force, without any acknowledgment of the natural rights of men. Yet even in those days the principle of justice competed, as now, with the principle of power, in giving the definition of law; for justice was conceded to be the law in all, or very nearly all, the cases where the will of the supreme power had not been explicitly made known; and those cases comprised, as now, a very large portion of all the cases adjudicated.

What a shame and reproach, nay, what an unparalleled crime is it, that at this day, and in this country, where men’s natural rights are universally acknowledged, and universally acknowledged to be inalienable, and where government is acknowledged to have no just powers except what it derives from the consent of the governed, (who can never be supposed to consent to any invasion of their rights, and who can be supposed to establish government only for their protection,) a definition of law should be adhered to, that denies all these self-evident and glorious truths, blots out all men’s natural rights, founds government on force, buries all present knowledge under the ignorance and tyranny of the past, and commits the liberties of mankind to the custody of unrestrained power!

The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong, and at the same time least capable of resistance.*

[* ] Jones on Bailments, 133.

[† ] Kent, describing the difficulty of construing the written law, says:—

“Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning.”—Kent, 460.

[* ] This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.

[† ] The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science, but it is equally true, that it is very easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. It is the science of justice,—and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,—Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere.

Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet, children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were.

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,—if system it can be called, and if learned it can be,—is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is.

Neither is it the object of legislation to establish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it.

The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men’s rights. At least, such is its only effect; and its design must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,—except the auxiliary ones just mentioned,—that does not violate natural law; that does not invade some right or other.

Yet, the advocates of arbitrary legislation are continually practising the fraud of pretending, that unless the legislature make the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known.

[* ] Kent says, and truly, that “A great proportion of the rules and maxims, which constitute the immeuse code of the common law, grew into use by gradual adoption, and received the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and cultivated reason to particular cases.” 1 Kent, 470.

[* ] That is, these decisions are unauthorized, on the supposition that justice is not necessarily law, unless the general requirement, made upon courts by some of our constitutions, that they “administer right and justice,” or some other requirement contained in them equivalent to that, be considered as arbitrarily prescribing these principles as law, and thus authorizing the decisions. But if these requirements, instead of being regarded, as they doubtless ought to be, as an acknowledgment that “right and justice” are law of themselves, be considered only as arbitrarily prescribing them as law, it is at least an admission that the simple words “right and justice” express, with legal accuracy, an infinite variety of fixed, definite, and certain principles, that are properly applicable, as law, to the relations of man with man. But wherever a constitution makes no such requirement, the decisions are illegal, as being made without authority, unless justice itself be law.

[* ] We add the following authorities to those given in the note to chapter first, on the true nature and definition of law:—Cicero says, “There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal. * * * * This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. * * * * It is not one thing at Rome, and another at Athens; one thing to-day, and another to-morrow; but in all times and nations, this universal law must forever reign, eternal and imperishable. * * * * He who obeys it not, flies from himself, and does violence to the very nature of man.”—Cicero’s Republic, Barham’s Translation, B. 3, p. 270.

“This justice is the very foundation of lawful government in political constitutions.”—Same, B. 3, p. 272.

“To secure to the citizens the benefits of an honest and happy life, is the grand object of all political associations.”—Same, B. 4, p. 283.

“There is no employment so essentially royal as the exposition of equity, which comprises the true meaning of all laws.”—Same, B. 5, p. 290.

“According to the Greeks, the name of law implies an equitable distribution of goods; according to the Romans, an equitable discrimination between good and evil. The true definition of law should, however, include both these characteristics. And this being granted as an almost self-evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality.”—Cicero’s Treatise on the Laws, Barham’s Translation, B. 1, p. 37.

“Of all the questions which our philosophers argue, there is none which it is more important thoroughly to understand than this,—that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature.”—Same, B. 1, p. 45.

“Nature hath not merely given us reason, but right reason, and, consequently, that law, which is nothing else than right reason, enjoining what is good, and forbidding what is evil.

“Now, if nature hath given us law, she hath also given us justice; for, as she has bestowed reason on all, she has equally bestowed the sense of justice on all.”—Same, B. 1, p. 48.

“Nature herself is the foundation of justice.”—Same, B. 1, p. 49.

“It is an absurd extravagance, in some philosophers, to assert that all things are necessarily just, which are established by the civil laws and the institutions of the people. Are, then, the laws of tyrants just, simply because they are laws? If the thirty tyrants of Athens imposed certain laws on the Athenians, and if these Athenians were delighted with these tyrannical laws, are we, therefore, bound to consider these laws as just? For my own part, I do not think such laws deserve any greater estimation than that passed during our own interregnum, which ordained that the dictator should be empowered to put to death with impunity, whatever citizens he pleased, without hearing them in their own defence.

“There can be but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.

“But if justice consist in submission to written laws and customs, and if, as the Epicureans persist in affirming, everything must be measured by utility alone, he who wishes to find an occasion of breaking such laws and customs, will be sure to discover it. So that real justice remains powerless if not supported by nature, and this pretended justice is overturned by that very utility which they call its foundation.”—Same, B. 1, p. 55-6.

“If nature does not ratify law, all virtues lose their sway.”—Same, B. 1, p. 55.

“If the will of the people, the decrees of the senate, the adjudications of magistrates, were sufficient to establish justice, the only question would be how to gain suffrages, and to win over the votes of the majority, in order that corruption and spoliation, and the falsification of wills, should become lawful. But if the opinions and suffrages of foolish men had sufficient weight to outbalance the nature of things, might they not determine among them, that what is essentially bad and pernicious should henceforth pass for good and beneficial? Or why should not a law, able to enforce injustice, take the place of equity? Would not this same law be able to change evil into good, and good into evil?

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a had law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous. For common sense has impressed in our minds the first principles of things, and has given us a general acquaintance with them, by which we connect with virtue every honorable and excellent quality, and with vice all that is abominable and disgraceful.

“Now we must entirely take leave of our senses, ere we can suppose that law and justice have no foundation in nature, and rely merely on the transient opinions of men.”—Same, B. 1, p. 56-7.

“Whatever is just is always the true law; nor can this true law either be originated or abrogated by any written enactments.”—Same, B. 2, p. 83.

“As the divine mind, or reason, is the supreme law, so it exists in the mind of the sage, so far as it can be perfected in man. With respect to civil laws, which differ in all ages and nations, the name of law belongs to them not so much by right as by the favor of the people. For every law which deserves the name of a law ought to be morally good and laudable, as we might demonstrate by the following arguments. It is clear, that laws were originally made for the security of the people, for the preservation of cities, for the peace and benefit of society. Doubtless, the first legislators persuaded the people that they would write and publish such laws only as should conduce to the general morality and happiness, if they would receive and obey them. Such were the regulations, which being settled and sanctioned, they justly entitled laws. From which, we may reasonably conclude, that those who made unjustifiable and pernicious enactments for the people, counteracted their own promises and professions, and established anything rather than laws, properly so called, since it is evident that the very signification of the word law comprehends the essence and energy of justice and equity.”—Same, B. 2, p. 83-4.

“Marcus. If then, in the majority of nations, many pernicious and mischievous enactments are made, as far removed from the law of justice we have defined as the mutual engagements of robbers, are we bound to call them laws? For as we cannot call the recipes of ignorant empirics, who give poisons instead of medicines, the prescriptions of a physician, we cannot call that the true law of the people, whatever be its name, if it enjoins what is injurious, let the people receive it as they will. For law is the just distinction between right and wrong, conformable to nature, the original and principal regulator of all things, by which the laws of men should be measured, whether they punish the guilty, or protect the innocent.

“Quintus. I quite agree with you, and think that no law but that of justice should either be proclaimed as a law, or enforced as a law.

“Marcus. Then you regard as nullable and voidable, the laws of Titius and Apulcius, because they are unjust.

“Quintus. You may say the same of the laws of Livius.

“Marcus. You are right; and so much the more, since a single vote of the senate would be sufficient to abrogate them in an instant. But that law of justice which I have explained can never be rendered obsolete or inefficacious.

“Quintus. And, therefore, you require those laws of justice the more ardently, because they would be durable and permanent, and would not require those perpetual alterations which all injudicious enactments demand.”—Same, B. 2, p. 85-6.

“Long before positive laws were instituted, the moral relations of justice were absolute and universal.”—Montesquieu.

“All the tranquillity, the happiness, and security of the human race, rests on justice; on the obligation of paying a regard to the rights of others.”—Vattel, B. 2, chap. 12, sec. 163.

“Justice is the basis of all society.”—Vattel, B. 1, chap. 5, sec. 63.

Bacon says, “There are in nature certain fountains of justice, whence all civil laws are derived but as streams.”—Bacon’s Tract on Universal Justice.

“Let no man weakly conceive that just laws, and true policy, have any antipathy, for they are like the spirits and sinews, that one moves with the other.”—Bacon’s Essay on Judicature.

“Justice is the end of government. It is the end of civil society.”—Federalist, No. 51.

About half our state constitutions specially require of our courts that they administer “right and justice” to every man.

The national constitution enumerates among its objects, the establishment of “justice,” and the security of “liberty.”

Judge Story says, “To establish justice must forever be one of the greatest ends of every wise government; and even in arbitrary governments it must, to a great extent, be practised, at least in respect to private persons, as the only security against rebellion, private vengeance, and popular cruelty. But in a free government, it lies at the very basis of all its institutions. Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected.”—1 Story’s Com. on Const., 463.

“It appears in our books, that, in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament is against common right or reason, the common law will control it, and adjudge such act to be void.”—Coke, in Bonham’s case; 4 Coke’s Rep., part 8, p. 118.

Kent also, although he holds that, in England, “the will of the legislature is the supreme law of the land, and demands perfect obedience,” yet says: “But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the King’s bench, to declare, as he did in Doctor Bonham’s case, that the common law doth control acts of parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion led Lord Chief Justice Hobart, in Day vs. Savage, to insist that an act of parliament, made against natural equity, as to make a man judge in his own case, was void; and induced Lord Chief Justice Holt to say, in the case of the City of London vs. Wood, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying.”—1 Kent, 448.

“A treaty made from an unjust and dishonest intention is absolutely null, nobody having a right to engage to do things contrary to the law of nature.”—Vattel, B. 2, chap. 12, sec. 161.

That definition which makes law to be “a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear,” is manifestly a false definition, inasmuch as it does not include the law of nations. The law of nations has never been “prescribed” by any “supreme power,” that regards the nations as its “subjects,” and rules over them as other governments rule over individuals. Nations acknowledge no such supreme power. The law of nations is, in reality, nothing else than the law of nature, applicable to nations. Yet it is a law which all civilized nations acknowledge, and is all that preserves the peace of nations; and no definition of law that excludes so important a portion of the law of the world, can reasonably be for a moment regarded as true.