LAW. In its most general and comprehensive sense, law signifies a rule
of action; and this term is applied indiscriminately to all kinds of action;
whether animate or inanimate, rational or irrational. 1 Bl. Com. 38. In its more
confined sense, law denotes the rule, not of actions in general, but of human
action or conduct. In the civil code of Louisiana, art. 1, it is defined to be
"a solemn expression of the legislative will." Vide Toull. Dr. Civ. Fr. tit.
prel. s. 1, n. 4; 1 Bouv. Inst. n. 1-3.
2. Law is generally divided into four principle classes, namely; Natural law,
the law of nations, public law, and private or civil law. When considered in
relation to its origin, it is statute law or common law. When examined as to its
different systems it is divided into civil law, common law, canon law. When
applied to objects, it is civil, criminal, or penal. It is also divided into
natural law and positive law. Into written law, lex scripta; and unwritten law,
lex non scripta. Into law merchant, martial law, municipal law, and foreign law.
When considered as to their duration, laws are immutable and arbitrary or
positive; when as their effect, they are prospective and retrospective. These
will be separately considered.
LAW, ARBITRARY. An arbitrary law is one made by the legislator simply
because he wills it, and is not founded in the nature of things; such law, for
example, as the tariff law, which may be high or low. This term is used in
opposition to immutable.
LAW, CANON. The canon law is a body of Roman ecclesiastical law,
relative to such matters as that church either has or pretends to have the
proper jurisdiction over:
2. This is compiled from the opinions of the ancient Latin fathers, the
decrees of general councils, and the decretal epistles and bulls of the holy
see. All which lay in the same confusion and disorder as the Roman civil law,
till about the year 1151, when one Gratian, an Italian monk, animated by the
discovery of Justinian's Pandects, reduced the ecclesiastical constitutions also
into some method, in three books, which he entitled Concordia discordantium
canonum, but which are generally known by the name of Decretum Gratiani. These
reached as low as the time of Pope Alexander III. The subsequent papal decrees
to the pontificate of Gregory IX., were published in much the same method, under
the auspices of that pope, about the year 1230, in five books, entiled
Decretalia Gregorii noni. A sixth book was added by Boniface VIII., about the
year 1298, which is called Sextus decretalium. The Clementine constitution or
decrees of Clement V., were in like manner authenticated in 1317, by his
successor, John XXII., who also published twenty constitutions of his own,
called the Extravagantes Joannis, all of which in some manner answer to the
novels of the civil law. To these have since been added some decrees of the
later popes, in five books called Extravagantes communes. And all these
together, Gratian's Decrees, Gregory's Decretals, the Sixth Decretals, the
Clementine Constitutions, and the Extravagants of John and his successors, form
the Corpus juris canonici, or body of the Roman canon law. 1 Bl. Com. 82;
EncyclopÇdie, Droit Canonique, Droit Public Ecclesiastique; Dict. de Jurispr.
Droit Canonique; Ersk. Pr. L. Scotl. B. 1, t. 1, s. 10. See, in general, Ayl.
Par. Jur. Can. Ang.; Shelf. on M. & D. 19; Preface to Burn's Eccl. Law, by
Thyrwhitt, 22; Hale's Hist. C. L. 26-29; Bell's Case of a Putative Marriage,
203; Dict. du Droit Canonique; Stair's Inst. b. 1, t. 1, 7.
LAW, CIVIL. The term civil law is generally applied by way of eminence
to the civil or municipal law of the Roman empire, without distinction as to the
time when the principles of such law were established or modified. In another
sense, the civil law is that collection of laws comprised in the institutes, the
code, and the digest of the emperor Justinian, and the novel constitutions of
himself and some of his successors. Ersk. Pr. L. Scotl. B. 1, t. l, s. 9; 6 L.
2. The Institutes contain the elements or first principles of the Roman law,
in four books. The Digests or Pandects are in fifty books, and contain the
opinions and writings of eminent lawyers digested in a systematical method,
whose works comprised more than two thousand volumes, The new code, or
collection of imperial constitutions, in twelve books; which was a substitute
for the code of Theodosius. The novels or new constitutions, posterior in time
to the other books, and amounting to a supplement to the code, containing new
decrees of successive emperors as new questions happened to arise. These form
the body of the Roman law, or corpus juris civilis, as published about the time
3. Although successful in the west, these laws were not, even in the lifetime
of the emperor universally received; and after the Lombard invasion they became
so totally neglected, that both the Code and Pandects were lost till the twelfth
century, A. D. 1130; when it is said the Pandects were accidentally discovered
at Amalphi, and the Code at Ravenna. But, as if fortune would make an atonement
for her former severity, they have since been the study of the wisest men, and
revered as law, by the politest nations.
4. By the term civil law is also understood the particular law of each
people, opposed to natural law, or the law of nations, which are common to all.
Just. Inst. l. 1, t. 1, §1, 2; Ersk. Pr. L. Scot. B. 1, t. 1, s. 4. In this
sense it, is used by Judge Swift. See below.
5. Civil law is also sometimes understood as that which has emanated from the
secular power opposed to the ecclesiastical or military.
6. Sometimes by the term civil law is meant those laws which relate to civil
matters only; and in this sense it is opposed to criminal law, or to those laws
which concern criminal matters. Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut, prefers the term
civil law, to that of municipal law. He considers the term municipal to be too
limited in its signification. He defines civil law to be a rule of human action,
adopted by mankind in a state of society, or prescribed by the supreme power of
the government, requiring a course of conduct not repugnant to morality or
religion, productive of the greatest political happiness, and prohibiting
actions contrary thereto, and which is enforced by the sanctions of pains and
penalties. 1 Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper's Justinian the Pandects; 1 Bl. Com.
80, 81; EncyclopÇdie, art. Droit Civil, Droit Romain; Domat, Les Loix Civiles;
Ferriere's Dict.; Brown's Civ. Law; Halifax's Analys. Civ. Law; Wood's Civ. Law;
Ayliffe's Pandects; Heinec. Elem. Jur.; Erskine's Institutes; Pothier; Eunomus,
Dial. 1; Corpus Juris Civilis; Taylor's Elem. Civ. Law.
LAW, COMMON. The common law is that which derives its force and
authority from the universal consent and immemorial practice of the people. It
has never received the sanction of the legislature, by an express act, wbich is
the criterion by which it is distinguished from the statute law. It has never
been reduced to writing; by this expression, however, it is not meant that all
those laws are at present merely oral, or communicated from former ages to the
present solely by word of mouth, but that the evidence of our common law is
contained in our books of Reports, and depends on the general practice and
judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of England, and
the practice and decision of our own courts. In some states the English common
law has been adopted by statute. There is no general rule to ascertain what part
of the English common law is valid and binding. To run the line of distinction,
is a subject of embarrassment to courts, and the want of it a great perplexity
to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it
is binding where it has not been superseded by the constitution of the United
States, or of the several states, or by their legislative enactments, or varied
by custom, and where it is founded in reason and consonant to the genius and
manners of the people.
3. The phrase "common law" occurs in the seventh article of the amendments of
the constitution of the United States. "In suits at common law, where the value
in controversy shall not exceed twenty dollar says that article, "the right of
trial by jury shall be preserved. The "common law" here mentioned is the common
law of England, and not of any particular state. 1 Gallis. 20; 1 Bald. 558; 3
Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The term is used in contradistinction
to equity, admiralty, and maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that of
the United States, or of the several states; its general principles are adopted
only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet. 659; 9
Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. &
John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet. 241; 1
Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill &
John. 62; Sampson's Discourse before the Historical Society of New York; 1
Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat.
R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628; 2 Stew.
LAW, CRIMINAL. By criminal law is understood that system of laws which
provides for the mode of trial of persons charged with criminal offences,
defines crimes, and provides for their punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a foreign
country. The states of the American Union are for some purposes foreign to each
other, and the laws of each are foreign in the others. See Foreign laws.
LAW, INTERNATIONAL. The law of nature applied to the affairs of
nations, commonly called the law of nations, jus gentium; is also called by some
modern authors international law. Toullier, Droit Francais, tit. rel. §12. Mann.
Comm. 1; Bentham. on Morals, &c., 260, 262; Wheat. on Int. Law; Foelix, Du
Droit Intern. PrivÇ, n. 1.
LAW, MARTIALMartial law is a code established for the government of
the army and navy of the United States.
2. Its principal rules are to be found in the articles of war. (q. v.) The
object of this code, or body of regulations is to, maintain that order and
discipline, the fundamental principles of which are a due obedience of the
several ranks to their proper officers, a subordination of each rank to their
superiors, and the subjection of the whole to certain rules of discipline,
essential to their acting with the union and energy of an organized body. The
violations of this law are to be tried by a court martial. (q. v.)
3. A military commander has not the power, by declaring a district to be
under martial law, to subject all the citizens to that code, and to suspend the
operation of the writ of habeas corpus. 3 Mart. (Lo.) 531. Vide Hale's Hist. C.
L. 38; 1 Bl. Com. 413; Tytler on Military Law; Ho. on C. M.; M'Arth. on C. M.;
Rules and Articles of War, art. 64, et seq; 2 Story, L. U. S. 1000.
LAW, MERCHANT. A system of customs acknowledged and taken notice of by
all commercial nations; and those customs constitute a part of the general law
of the land; and being a part of that law their existence cannot be proved by
witnesses, but the judges are bound to take notice of them ex officio. See
Beawes' Lex Mercatoria Rediviva; Caines' Lex Mercatoria Americana; Com. Dig.
Merchant, D; Chit. Comm. Law; Pardess. Droit Commercial; Collection des Lois
Maritimes antÇrieure au dix hutiäme siäcle, par Dupin; Capmany, Costumbres
Maritimas; II Consolato del Mare; Us et Coutumes de la Mer; Piantandia, Della
Giurisprudenze Maritina Commerciale, Antica e Moderna; Valin, Commentaire sur
l'Ordonnance de la Marine, du Mois d'Aoñt, 1681; Boulay-Paty, Dr. Comm.;
Boucher, Institutions au Droit Maritime.
LAW, MUNICIPAL. Municipal law is defined by Mr. Justice Blackstone to
be "a rule of civil conduct prescribed by the supreme power in a state,
commanding what is right and prohibiting what is wrong." This definition has
been criticised, and has been perhaps, justly considered imperfect. The latter
part has been thought superabundant to the first; see Mr. Christian's note; and
the first too general and indefinite, and too limited in its signification to
convey a just idea of the subject. See Law, civil. Mr. Chitty defines municipal
law to be "a rule of civil conduct, prescribed by the supreme power in a state,
commanding what shall be done or what shall not be done." 1 Bl. Com. 44, note 6,
2. Municipal law, among the Romans, was a law made to govern a particular
city or province; this term is derived from the Latin municipium, which among
them signified a city which was governed by its own laws, and which had its own
LAW OF NATIONS. The science which teaches the rights subsisting
between nations or states, and the obligations correspondent to those rights.
Vattel's Law of Nat. Prelim. §3. Some complaints, perhaps not unfounded, have
been made as to the want of exactness in the definition of this term. Mann.
Comm. 1. The phrase "international law" has been proposed, in its stead. 1
Benth. on Morals and Legislation, 260, 262. It is a system of rules deducible by
natural reason from the immutable principles of natural justice, and established
by universal consent among the civilized inliabitants of the world; Inst. lib.
1, t. 2, §1; Dig. lib. 1, t. 1, l. 9; in order to decide all disputes, and to
insure the observance of good faith and justice in that intercourse which must
frequently occur between them and the individuals belonging to each or it
depends upon mutual compacts, treaties, leagues and agreements between the
separate, free, and independent communities.
2. International law is generally divided into two branches; 1. The natural
law of nations, consisting of the rules of justice applicable to the conduct of
states. 2. The positive law of nations, which consist of, 1. The voluntary law
of nations, derived from the presumed consent of nations, arising out of their
general usage. 2. The conventional law of nations, derived from the express
consent of nations, as evidenced in treaties and other international compacts.
3. The customary law of nations, derived from the express consent of nations, as
evidenced in treaties and other international compacts between themselves.
Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are the
1. The rules of conduct, deducible by reason from the nature of society
existing among independent states, which ought to be observed among nations.
2. The adjudication of international tribunals, such as prize courts and
boards of arbitration. 3. Text writers of authority. 4. Ordinances or laws of
particular states, prescribing rules for the conduct of their commissioned
cruisers and prize tribunal's. 5. The history of the wars, negotiations,
treaties of peace, and other matters relating to the public intercourse of
nations. 6. Treaties of peace, alliance and commerce, declaring, modifying, or
defining the pre-existing international law. Wheat. Intern. Law, pt. 1, c. 1,
4. The law of nations has been divided by writers into necessary and
voluntary; or into absolute and arbitrary; by others into primary and secondary,
which latter has been divided into customary and conventional. Another division,
which is the one more usually employed, is that of the natural and positive law
of nation's. The natural law of nations consists of those rules, which, being
universal, apply to all men and to all nations, and which may be deduced by the
assistance of revelation or reason, as being of utility to nations, and
inseparable from their existence. The positive law of nations consists of rules
and obligations, which owe their origin, not to the divine or natural law, but
to human compacts or agreements, either express or unplied; that is, they are
dependent on custom or convention.
5. Among the Romans, there were two sorts of laws of nations, namely, the
primitive, called primarium, and the other known by the name of secundarium. The
primarium, that is to say, primitive or more ancient, is properly the only law
of nations which human reason suggests to men; as the worship of God, the
respect and submission which children have for their parents, the attachment
which citizens have for their country, the good faith which ought to be the soul
of every agreement, and the like. The law of nations called secundarium, are
certain usages which have been established among men, from time to time, as they
have been felt to be necessary. Ayl. Pand. B. 1, t. 2, p. 6.
As to the law of, nations generally, see Vattel's Law of Nations; Wheat. on
Intern. Law; Marten's Law of Nations; Chitty's Law of Nations; Puffend. Law of
Nature and of Nations, book 3; Burlamaqui's Natural Law, part 2, c. 6;
Principles of Penal Law, ch. 13; Mann. Comm. on the Law of Nations; Leibnitz,
Codex Juris Gentium Diplomaticus; Binkershoek, Quaestionis Juris Publici, a
translation of the first book of which, made by Mr. Duponceau, is published in
the third volume of Hall's Law Journal; Kuber, Droit des Gens Modeme de
I'Europe; Dumont, Corps Diplomatique; Mably, Droit Public de l'Europe; Kent's
Comm. Lecture 1.
LAW OF NATURE. The law of nature is that which God, the sovereign of
the universe, has prescribed to all men, not by any formal promulgation, but by
the internal dictate of reason alone. It is discovered by a just consideration
of the agreeableness or disagreeableness of human actions to the nature of man;
and it comprehends all the duties which we owe either to the Supreme Being, to
ourselves, or to our neighbors; as reverence to God, self-defence, temperance,
honor to our parents, benevolence to all, a strict adherence to our engagements,
gratitude, and the like. Erskines Pr. of L. of Scot. B. 1, t. 1, s. 1. See Ayl.
Pand. tit. 2, p. 5; Cicer. de Leg. lib. 1.
2. The primitive laws of nature may be reduced to six, namely: 1. Comparative
sagacity, or reason. 2. Self-love. 3. The attraction of the sexes to each other.
4. The tendemess of parents towards their children. 5. The religious sentiment.
3. - 1. When man is properly organized, he is able to discover moral good
from moral evil; and the study of man proves that man is not only an
intelligent, but a free being, and he is therefore responsible for his actions.
The judgment we form of our good actions, produces happiness; on the contrary
the judgment we form of our bad actions produces unhappiness.
4. - 2. Every animated being is impelled by nature to his own preservation,
to defend his life and body from injuries, to shun what may be hurtful, and to
provide all things requisite to his existence. Hence the duty to watch over his
own preservation. Suicide and duelling are therefore contrary to this law; and a
man cannot mutilate himself, nor renounce his liberty.
5. - 3. The attraction of the sexes has been provided for the preservation of
the human race, and this law condemns celibacy. The end of marriage proves that
polygamy, (q. v.) and polyendry, (q. v.) are contrary to the law of nature.
Hence it follows that the husband and wife have a mutual and exclusive right
over each other.
6. - 4. Man from his birth is wholly unable to provide for the least of his
necessities; but the love of his parents supplies for this weakness. This is one
of the most powerful laws of nature. The principal duties it imposes on the
parents, are to bestow on the child all the care its weakness requires, to
provide for its necessary food and clothing, to instruct it, to provide for its
wants, and to use coercive means for its good, when requisite.
7. - 5. The religious sentiment which leads us naturally towards the Supreme
Being, is one of the attributes which belong to humanity alone; and its
importance gives it the rank of the moral law of nature. From this sentiment
arise all the sects and different forms of worship among men.
8. - 6. The need which man feels to live in society, is one of the primitive
laws of nature, whence flow our duties and rights; and the existence of society
depends upon the condition that the rights of all shall be respected. On this
law are based the assistance, succors and good offices which men owe to each
other, they being unable to provide each every thing for himself.
LAW, PENAL. One which inflicts a penalty for a violation of its
LAW, POSITIVE. Positive law, as used in opposition to natural law, may
be considered in a threefold point of view. 1. The universal voluntary law, or
those rules which are presumed to be law, by the uniform practice of nations in
general, and by the manifest utility of the rules themselves. 2. The customary
law, or that which, from motives of convenience, has, by tacit, but implied
agreement, prevailed, not generally indeed among all nations, nor with so
permanent a utility as to become a portion of the universal voluntary law, but
enough to have acquired a prescriptive obligation among certain states so
situated as to be mutually benefited by it. 1 Taunt. 241. 3. The conventional
law, or that which is agreed between particular states by express treaty, a law
binding on the parties among whom such treaties are in force. 1 Chit. Comm. Law,
LAW, PRIVATE. An act of the legislature which relates to some private
matters, which do not concern the public at large.
LAW, PROSPECTIVE. One which provides for, and regulates the future
acts of men, and does not interfere in any way with what has past.
LAW, PUBLIC. A public law is one in which all persons have an
LAW, RETROSPECTIVE. A retrospective law is one that is to take effect,
in point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of contracts, it is
void. 3 Dall. 391. But laws which only vary the remedies, divest no right, but
merely cure a defect in proceedings otherwise fair, are valid. 10 Serg. &
Rawle, 102, 3; 15 Serg. & Rawle, 72. See Ex post facto.
LAW, STATUTE. The written will of the legislature, solemnly expressed
according to the forms prescribed by the constitution; an act of the
legislature. See Statute.
LAW, UNWRITTEN, or lex non scripta. All the laws which do not come
under the definition of written law; it is composed, principally, of the law of
nature, the law of nations, the common law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution of the
United States the constitutions of the several states the acts of the different
legislatures, as the acts of congress, and of the legislatures of the several
states, and of treaties. See Statute.