A bare resolution, It is likewise "a rule prescribed." confined in the breast of the legislator without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be made known to the people who are to obey it. The manner in which the notification is to be made is a matter of indifference. The notification may be verbally by officers appointed for that purpose, as, formerly, in the case of proclamations; or, it may be by writing, printing, or the like, which is the method usually employed.* 5. The rule must be prescribed by the supreme power in a state. Legislature is the greatest act of superiority that can be exercised by one being over another. Wherefore, it is requisite to the very essence of a law that it be made by the supreme power-that it be prescribed by the law-making power in the state." As the power of making laws constitutes the supreme authority, so, wherever the supreme authority in any state resides, it is the right of that authority to make laws, that is, to prescribe the rule of civil action. This may be discovered from the very end and institution of civil states. A state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man, by uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony so as to constitute and produce that one uniform will of the whole. It can therefore be produced in no other manner than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted; and this will of that one man, or assemblage of men, is, in different states, according to their different constitutions, understood to be law." 6. It is likewise the duty of the supreme power to make laws. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of its will. It is incumbent on the state to establish rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquility." CONSTITUENT PARTS OF A LAW 7. Every law may be said to consist of several parts: one, declaratory, whereby the rights to be observed, and the wrongs to be eschewed are clearly defined and laid down; another, directory, whereby the people are instructed and enjoined to observe those rights and to abstain from the commission of those wrongs; a third, remedial, whereby method is pointed out to recover private rights or redress private wrongs; a fourth, vindicatory, whereby is signified what evil or penalty shall be incurred by such as commit any public wrongs and transgress or neglect their duty. This branch of the law is usually termed the sanction.1o The declaratory part of the municipal law depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. Natural rights, such as life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human 91 Black. Comm. 52, 53. 10 Ibid. 54. 1 ப legislature has power to abridge or destroy them, unless some act be committed that amounts to a forfeiture. Neither do divine or natural duties, such as the worship of God, the maintenance of children, and the like, receive any stronger sanction from being so declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors that are forbidden by the supreme laws, and, therefore, called wrong in themselves, such as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all with regard to actions that are naturally and intrinsically right or wrong. But, with regard to things in themselves indifferent, the case is altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the state sees proper, for promoting the welfare of society, and more effectually carrying on the purposes of civil life. The directory part of the law stands much upon the same footing as the declaratory, and virtually includes the latter, the declaration being usually collected from the direction." The remedial part of the law is so necessary a consequence of the former two, that laws would be very vague and imperfect without it. For in vain would rights be declared and directed to be observed, if there were no method of recovering and asserting those rights when wrongfully withheld or evaded. This is what is meant by the protection of the law. Human legislators have for the most part usually chosen to make the sanction of laws vindicatory rather than remuneratory, that is, to consist rather in punishments than in particular rewards; because, the quiet enjoyment and protection of all civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards; because, also, if the observance of the laws were to be enforced by the proposal of particular rewards, it would be impossible for any state to furnish stock enough for so profuse a bounty; and, 111 Black. Comm. 54, 55. because the dread of evil is a much more forcible principle of human actions than the prospect of good. Of all parts of a law the most effectual is the vindicatory, for its main force and strength consist in the penalty annexed to it. Legislators and their laws are said to compel and oblige; not that by any natural violence they so constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation, but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no one can easily choose to transgress the law, since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishment threatened, the obligation of the law seems chiefly to consist. in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment." 8. COMMON LAW AND WRITTEN LAW COMMON LAW Common law, in its broadest and most general signification, means those rules or precepts of law in any country, or that body of its jurisprudence, which is of equal application in all places, as distinguished from local laws and rules." It is that system of law, or form of the science of jurisprudence, which has prevailed in England and the United States, in contradistinction to other great systems, such as the Roman, or civil, law." The phrase common law is usually applied to the common law of England exclusively, or that part of the law which 121 Black. Comm. 56, 57. 13 Abbott's Law Dict. 253. 14 Bouv. Law Dict. The Roman, or civil, law, in its most extensive sense, comprises all those legal rules and principles which were in force among the Romans, without reference to the time when they were adopted. In a more restrictive sense, it is the law compiled under the auspices of the Emperor Justinian, and which is still in force in many of the states of modern Europe, and in the state of Louisiana, United States. The term civil law is commonly used by and in a few of the United States, notably. Louisiana. It is also commonly used by English and American authors to signify the whole system of Roman law. was administered in that country before the Judicature Acts by the common-law tribunals, as opposed to equity, or that part of the law which was administered by the court of chancery." It was denominated the unwritten law by Blackstone, and includes general customs, particular customs prevailing only in certain districts, and those particular laws that are by custom observed only in certain courts and jurisdictions." 9. The common law of the United States is composed of the common law of England and the usages that have grown up in, and are indigenous to, the United States. When the ancestors of the people of the states emigrated from England, they brought with them such principles as were expedient for the situation, together with such English statutes as were amendatory of the common law as it then existed." Practically, the common law, as recognized in the United States, consists of the local usages and customs of the sovereign and independent states, which together constitute the federal government. There is no principle which pervades the whole union of states, and which has the authority of law, that is not embodied in the constitution or laws of the union. The common law could be made a part of the federal system only by legislative adoption." In the sense that the common law exists in the United States, it includes only general customs and particular laws, and not particular customs." The common law is part of the jurisprudence of the District of Columbia. When congress created the District of Columbia, the common law prevailed in Maryland and Virginia, from which states the District was formed, and the existing laws of those states were declared to be still in force." The common law is the basis of the laws of those states which were originally colonies of England, or carved 153 Pet. (U. S.) 446 (1830); Sweet's Law Dict. 173. 161 Black. Comm. 63. 188 Pet. (U. S.) 658 (1834). 175 Binn. (Pa.) 554 (1813); Am. & Eng. Encyc. (2d Ed.). Vol. 6, p. 271; 2 Mass. 530 (1807). |