In order to determine at what point of our inquiry we 1 Rela ought to commence, a preliminary observation of things tion of natur presupposed may not be uncalled for. al to positive The political or fundamental law of a people, considered law. in relation to its original principles, is, as all will admit, a more or less perfect recognition and expression of the socalled natural law; a particular system of political ethics, which they have drawn from the original fountain of ethics, and thence ordained and established as the positive rule of their conduct in relation to each other. The principal difference between the natural and the positive laws of human society, is seen in the different methods by which those laws are prescribed. Human nature is their common source. Both are prescribed by man to man: the first, by any and every individual as his opinion of natural right; the last, by the common authority, as the coMMON SENSE OF THE COMMUNITY AT LARGE. The right of self-government is the right of one people no more than of another, and it follows of course that every system of positive law should be everywhere respected, and in fact received and considered, as the original idea of justice particularly defined and applied by the wisdom and experience of the people by and for whom ordained and established; in other words, as the common sense and moral philosophy of that particular people, expressed and proclaimed by them as the law of their political state. And this is the reason of that friendly and mutual respect which the laws, the governments and the courts of civilized nations show for each other. tive laws. ¿2. The ne- If the principles of natural justice were everywhere well cessity of posi- understood, and men could be just to themselves, the institution of political states and positive laws would be wholly unnecessary and unwarranted. But even if men were naturally inclined to be just, yet positive laws would be still indispensable, in order to quiet those doubts and disputes which must otherwise constantly arise concerning the duties enjoined and the rights conferred by natural law. For what is or is not conformable to that law, is a question upon which the minds of mankind are oftener divided than agreed, and one that can only be settled by that legitimate expression of the common understanding and agreement of society which constitutes positive law, and which in fact is the only criterion or standard of right to which human government can justly permit an appeal. Positive law defined. 23. Its pri -rights and This positive, civil or municipal law, is therefore properly defined to be, 'a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Hence, to determine, define and prescribe the rights of mary objects men; and to prohibit, prevent or redress such wrongs as may be committed by them; these are the grand and primary objects of every system of positive law." wrongs. 24. Rights (1 a) RIGHTS, as defined and prescribed by positive distinguished. laws, are denominated positive rights; and these are primarily distinguished into public and private : public, as those of a body politic or political state; private, as those of private individuals or natural persons. 25. Public rights. (16) PUBLIC RIGHTS, namely, those of a people considered as a political community or state, are either such as grow out of the political relations of a people to their state, or such as arise with the political relations of their 11 Bl. Com. 44. 2 Id. 122. See Inst. 1, 1, 4; Dig. 1, 1, 2; Austin on Jurisprudence (Lond. 1869), p. 69-71. |