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THE SOURCES AND NATURE OF JURISPRUDENCE.
§ a. LAW is the offspring of God; and, like him, is everywhere. Deep in the nature of things lie her fountains, and their outflowings gladden all existence. From her is the music of the universe. Before all, in all, above all, subject only to the Infinite One, she reigns over matter and mind alike.
§ b. Indeed, the fountains of law are all one universal, united, unchanging spring, issuing forth from the bosom of the Deity. With him they are ever present, in him they are ever flowing, like him they are ever one, like him moreover they are multiform in manifestation, and like him they bless wherever they are. Law, in the broadest acceptation of the term, is the order of the universe; and it has as many narrower meanings as there are subjects to which our minds. apply the word.
§ c. The municipal laws of nations and of communities are, in their origin and intrinsic force, no other than the rules
of being given us by God. Not indeed are they without provisions of mere human invention, and provisions conflicting with the primary rule. For the heavenly wisdom flows often impure through earthly channels; and the divine rule itself provides for human modifications of the abstract, adapting it to particular circumstances, views, and wants. And whether the modifications accord with the original right or not, they are alike permitted, as acts in the one case of well-doing, in the other of evil-doing.
§ d. The legal author is not to trace in full the original right through the windings of human affairs; but to state the conclusions of right, and state the technical and arbitrary rules, established by legislatures and courts to guide the people. Yet his readers should know, that beneath, above, and around the rules of mere human invention, and the rules of original justice established thus by man, woven into their very texture also, are the broad doctrines which an abstract science could draw from nature herself; and know, that the abstract doctrines fill the vacuum where particular rules are not. The rules are uncreated substance, fashioned by man, yet not made by him; they are moulded from the original mass of things given for human use. Especially should the young person just entering upon legal studies understand, that the courts in the olden time decided cases mainly in reference to the demands of original justice; and that, even now while precedents are numerous, the voice of God speaking the language of this abstract right is listened to by every good judge, as well as by the legislature itself.
§ 1. Our jurisprudence is contemplated in two divisions : the one concerns the public, the other concerns individuals. The former embraces the criminal department of the law; the latter, the civil. Yet practically many things which belong to criminal jurisprudence, viewed in a philosophical way, are embraced in the civil department of the law; while some things belonging properly to the civil, have found place with the criminal. And, practically also, the line separating the
two departments is somewhat arbitrary, and it necessarily runs on disputable ground; because private and public affairs and interests entwine themselves into one another. Courts have made also a distinction between what belongs to criminal jurisprudence and to criminal law, though the distinction is nice, and is of little importance. Moreover, the criminal law, properly viewed, deals with individual wrongs when of a nature to affect the public.2 But these things must be unfolded in their order.
§1a. These divisions flow not out of the nature of law itself, but out of the artificial structure of human society. For, by nature, an act is either right or wrong; and, by nature, there is no difference between wrongs done to one individual and to many. But in the constitution of human society there is a great difference; for, as will be further explained in these pages, the government does not punish every crime which is such by the law of nature; and it therefore distinguishes those natural offences which are directed against the State at large, from mere offences against individuals only, taking into its own hand the punishment of the former, and furnishing courts to punish the latter through what is called the civil process, wielded by the individual suffering.
§ 2. Before we enter upon the criminal law, let us look at some further things which concern both it and the civil. No two human beings can exist together, without being governed in their association by rules, termed law. For example, it must be a rule, that neither shall occupy the space occupied for the moment by the other: a violation of this rule would end the physical lives of both. And, on the same ground, neither shall attempt to take the other's life: this rule cannot be violated and the association continue. So if they would not only exist together, but make their relations happy ones,
1 Post, § 43.
Post, § 403 et seq.
they must obey laws tending to promote this object; as, that neither shall assault the other, nor use language wounding the feelings of the other. And the further they carry this class of rules, the more full will be their enjoyment, which will be complete only, when, following the injunction of Holy Writ, each loves the other as himself.
§ 3. Therefore law is essential to human association; so essential, that man cannot live in communities without it. And by law, as the word is here used, is meant not merely the precept, but the penalty also. Law indeed, without punishment for its violation, is impossible in the nature of things. The statement is a contradiction; it is like an earth without matter, an atmosphere without air, an existence without existence. Whence we have the proposition, that, wherever two or more human beings are found together, law necessarily abides with them, regulating their association, — law with its pénal sanction practically enforced,-whether they are themselves cognizant of the fact or not. No instance ever was or will be in which this is not so.
§ 3 a. Enthusiasts paint in vision a condition of society in which human laws, as they term rules binding man to man by penal sanctions, shall be no more. But such a result can never come in any one realm of Him who rules all things well. Because, in the infancy and feebleness of each created existence, it needs law with its penalty; and the nature given it at first cannot change with its growth and development. Man, indeed, may learn to avoid the punishment, but the law which includes the punishment abides.
§ 3b. That law and punishment are inseparable, both from one another and from existence itself, will appear on a single consideration being stated. If we should imagine any exist ence, mental or physical, to be without law, we should imagine a thing which was not a thing; because all of which we can take cognizance concerning any thing is the action of its laws of being. A single particle of matter presents a