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pose, for example, a state, aliquisque populus sibi constituat, that murder or larceny shall be and is lawful, as in some countries they are, shall command, under some terrific exposure of penalties, that every mother, within fourteen days of the birth of her every child, shall chop off one arm or one leg of the helpless infant. Suppose, to employ Professor Christian's own example, the Congress of the United States to reënact and deposit upon the statute-page the bloody edict of Herod of old, such enactments upon the modern theory, and upon the logical exigesis of Blackstone, Justinian, and Christian's definitions are the commandments of what is right, and obedience implicit is demanded for them upon moral and divine, as well as political considerations, that is to say, by the humanitarian, the preacher, and the statesman.
To this it may be said, that the spirit enunciated in these maxims for the government of communities at peace, and in times of peace, is a spirit ignored between civilized enemies in times of war, for the spirit of the hostile code has been, from the time of Grotius, increasingly, and now is, not only that no life is to be taken except as is absolutely necessary, but that the territory even of the enemy shall be held free from ravage and destruction. Herod's edict put to death all the children of the realm of such tender years as rendered them incapable of public harm, and this is put as an exemplar illustration of the modern doctrine of governmental obedience, or legal obligation. From all such violence, the laws of war exempt "the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and generally all other public or private individuals engaged in the ordinary civil pursuits of life."
Again, the modern dogma stops at no severity, the binding force of the law abates not at issues the "most flatly absurd and unjust;" they may legalize the grossest barbarities, and there is no relief, save that the judge of larger humanity and true fealty to right, must resign to a successor whose relentless. ferocity may keep even crescendo with the ferocious law!
Besides, it is inimical to all the higher sentiments of the
human creature, so that we have only to appeal, without reasoning, to the educated law of nature, which presides as the oracle of truth in every free thinking bosom, to hear a peremptory denial of its obligatory force as law. Let but the breath of such a statute tremble upon the chords of the divine lyre implanted in the human breast, as the sympathetic test of justice and right, and there shall become audible a crash of dissonance, that no subtlety of argument, no bond of sect, no thunderings of governmental wrath, can gainsay or silence.
If these instances reveal the fallacy of the common definition, they have done their work, and we must recognize and find the binding attribute of the law elsewhere, that is, in its consonance with the divine thought and will, in the fact that it is a human expression of that thought and will, in terms, or deducible from it by just and substantial inference.
Some such ultimate and essential authority seems to have been intended in the definition which Cicero gives of law, "Lex est summa ratio insita a naturâ, quae jubet ea, quae facienda sunt, prohibetque contraria." Law is the command of the highest innate reason as to what ought to be done, and what not done. And again, "Natura enim juris explicanda est nobis, eaque ab hominis repetenda naturâ." Now the nature of law is to be sought out by us, and this is to be sought in its turn from the nature of man.
The description of law given by Demosthenes is in this regard deserving of closer study than it is wont to receive, and may be admitted eminently appropriate and beautiful, without endorsing Christian's eulogium, that it is "perhaps the most perfect and satisfactory that can be found or conceived."
"The laws will the just, the beautiful, and the harmonic, and for these search, and so soon as they have been discovered, they are shown forth as a universal ordinance, equal and impartial to all;--and they are law which it behooves all men upon the greatest and best considerations to obey as by the sympathy of a natural affection, especially because every law is the discovery and gift of the gods, the sentiment of prudent men, the corrective of transgressions, voluntary and involun
tary, and the universal constitution of states, in conformity to which it is incumbent on every man to live."*
Professor Henry says, "As individual man can attain the ideal perfection of his nature only as a rational being, by the harmony of all his powers with his reason, so it is equally clear that humanity can realize the idea of social perfection only as a rational society, by the union and brotherhood of the human family, and the harmony of all individuals with the Divine reason."
Hooker says, "Of law there can be no less acknowledged than that her seat is the bosom of God."
And John Adams forcibly exclaims, "Search for the foundation of Law and Government in the frame of human nature, in the constitution of the intellectual and moral world. Then let us see that Truth, Liberty, Justice, and Benevolence are its everlasting basis;-and that if these could be removed the superstructure is overthrown of course."
The omission of this fundamental element in our modern definitions of Law, is, doubtless, attributable, in part, to the apparent remoteness of any divine principle underlying such enactments as are of purely social regulation, and, in part, also, to that habit of modern mind, that is wont to generalize every installment of facts into a completed temple of science, whether such facts do, or do not, exhaust the subject to which they belong.
Of this latter cause it may be said, first, that the facts of which the science of law is built are, to a singular degree, detached, tangible, discrete; and, secondly, that it is not the province of inductive reasoning to enunciate first laws in this, or in any science, it may build up the butments upon which the feet of the radiant arc shall rest;-it may charge the jars, but First Truths are the electric sparks that flash from point to point. These are not subjects of inference, but of intui
* “ Οἱ δὲ νόμοι τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τοῦτο ζητοῦσι, καὶ ἐπειδὰν εὑρεθῇ, κοινὸν τοῦτο πρόσταγμα ἀπεδείχθη, πᾶσιν ἴσον καὶ ὅμοιον, καὶ τοῦτ' ἔστι νόμος, ᾧ πάντας πείθεσθαι προσήκει διὰ πολλὰ, καὶ μάλισθ' ὅτι πᾶς ἐστὶ νόμος εὕρημα μὲν καὶ δῶρον θεῶν, δόγμα δ' ἀνθρώπων φρονίμων, ἐπανόρθωμα δὲ τῶν ἑκουσίων καὶ ἀκουσίων ἁμαρτημάτων, πόλεως δὲ συνθήκη κοινή, καθ ̓ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τῇ πόλει,”—Orat. against Aristogeiton.
tion;-not susceptible of proof, but of illustration only,-the axioms of algebra, the elementary definitions and postulates of geometry, for example, may be illustrated and made conspicuous by outward symbols, but the truths they embody are alphabetical truths, alpha or omega, antecedents of the symbols in creation, and equally so in the order of knowledge.
How subtle is the influence of the former cause, will be seen by a cursory glance at the several groups of the sciences. The physical sciences deal at once and directly with the material objects of the natural world, and so are brought into contact, at the outset, with the idea of some necessary First Cause. This cause they receive and recognize as God, who thus becomes their starting point. Then, again, their growth and development, so far as it is scientific, are not a manufacture of their own, from materials of their own raising or invention, and after a pattern of their own, but a reading of ideas already long since embodied in nature, the very soul of nature, the central life that has controlled the form and outlays of all its material being. These sciences, therefore, are, from first to last, a progressive and continuing companionship at an even step with the Divine thought. This ever-recurring identity of the principles of Science with the laws of nature, and of these both with the beneficent volitions of God, compels true science forever to receive and pay homage to the Divine Will, as the only real law of nature.
The moral sciences, also, for the most part, are compelled to take their initial premise in the constitution of the mind;and their development thence is two-fold, by analyzing the mind into its constitutional functions, defining the tendency and measuring the scope of each, all of which is but revealing the Divine thought, and then by inferring, in the light of these innate faculties, powers, and desires, the laws which ought to govern the mind in its conjunctions with the outward world. So that the scientific man, here, as in physics, though by a subtler and more difficult research, is, nevertheless, rigorously and always held to the grand foundation thoughts of Deity for the life and vigor of his laws.
In the pure sciences, those great First Truths which were or
dained in the councils of eternity, are the very facts themselves, and materiel of the science;-at once the solid masonry of the foundation, and the lighter, detached frame-works,which the student combines into edifices of a thousand shapes and styles, according to the motives and purposes of his labor, and so it results that through all the maturing of these sciences, they are held face to face with the same omnipresent, omni-ruling Deity, and must incorporate into their structure the same acknowledgment of the Divine power and dominion. In the matter of municipal law, on the contrary, and for the most part, the mind is not driven back to any such first truth, but acts and makes its enactments, from time to time, upon the aggregate of facts which the social life has then developed. The visible beginning of the science of law is the agreement of the members of society to be bound by certain articles of their own devising, and then the great body of the rules of social life follow as sequences upon the acts and tendencies which, as so many facts, society is calling into being, and are devised to control, encourage, or restrain those acts and tendencies, according to the social exigence and conscience of each given epoch. And it is only when society, under the resultant pressure of some giant evil, arrays itself for the purposes of revolution or radical change, that there comes any reflection upon the great truths which underlie and are the very essence of law, as of all other sciences, and even this little reflection is as the compulsory growth of the hot-house, rather than the wholesome, sturdy product of the open fields. Considering now how perfectly human the whole web of social life seems, it is scarcely a wonder that the ablest administrators of the law should be sometimes found to say with Chief Justice Wilmot, "All our law began by consent of the legislature," a proposition that, in the great crises of human rights, sinks into spontaneous contempt and derision.
But the stronghold of the error against which we contend, is in the local laws which attempt to provide for the guidance of the minor affairs of social life, and these must be also shown to require the same recognition of the divine sanction, or our principle will not be fully established.