§ 47. The right-and-wrong clause condemned. After establishing and locating in this manner the supreme authority, he proceeds to the latter clause of the definition, commanding what is right and prohibiting what is wrong (18), and proceeds: "Now, in order to do this completely, it is, first of all, necessary that the boundaries of right and wrong be established and ascertained by law." What law does he mean? Obviously the municipal or civil law, of which he is speaking, for he proceeds: It remains to consider in what manner the law is said to ascertain the boundaries of right and wrong. For this purpose laws are said to consist of two parts, declaratory and directory (19). "The first," he says, "depends not so much upon the law of revelation or of nature as upon the will of the legislator." But he at once modifies the view by the statement that the "legislature must not violate rights established by natural law." "The direc tory part of the law," he says, "stands upon the same footing, being implied from the declaratory" (20). The question, then, whether this clause of the definition is surplusage or conveys an erroneous idea of a law, resolves itself into this: whether or not legislative acts must conform to the moral or natural standard of right and wrong as taught by the law of nature or religion? For Blackstone says: "No human laws are of any validity if contrary to this (law of nature), and such of them as are valid derive all their force, mediately or immediately, from this origin." The United States supreme

18 Page 51.

19 Page 53.

20 Book I, p. 55.

court has declared this idea impracticable as a rule of action to be administered in courts (21).

Judge Cooley, in his notes to this proposition in the Commentaries, with his usual directness and practical good sense, the result of lifelong contact with practical jurisprudence, says: "Under no circumstances do mankind differ more widely than when they undertake to apply their fallible judgment to the determination of what the law of God commands or of what it forbids. Now, when it is said that no human laws which are opposed to the law of God can be of any validity, we may accept the declaration as theoretically true, but in government it is fallacy" (22).

Christian says that the "latter branch, commanding what is right and prohibiting what is wrong, must be either superfluous or convey a defective idea of municipal law; for if right and wrong refer to the municipal law, then whatever it commands is right and whatever it prohibits is wrong, and the clause would be insignificant tautology; but if right and wrong be referred to the law of nature, then the definition will become deficient or erroneous" (23).

Judge Sharswood says: "But mere law (the command of a superior) cannot per se annex the moral qualities of right or wrong to the action, in itself considered, commanded or prohibited. Right and wrong are abstract moral qualities, resulting necessarily from the relations

21 Allen v. Ferguson, 18 Wall. 1.

221 Cooley's Blk. (4th ed.) 50, note; Peel Splint Coal Co. v. West Virginia, 36 W. Va. 802; 17 L. R. A. 387.

231 Sharswood's Blk. 44, note.

of persons or things. No law can make that right which is itself wrong. The definition of Cicero certainly avoids this objectionable feature of Blackstone's language" (24).

In his notes to page 122 of book 1 of the Commentaries (3d edition), Judge Cooley has made a complete and exhaustive examination of the idea of natural rights, moral rights, and legal rights. In respect to natural rights, which Blackstone treats as having their origin in the natural state of society, he says: "By this it is implied that there is a state of nature antedating political organizations, and therefore antedating law, of which every individual has rights given him by the law of nature, which every other individual is under obligation to respect and observe. Now of this it must be said, first, that the conception of such a state of nature is mere fancy; that it never did and never can exist; for the individual is never found outside of society, or of the reach of human law, except, perhaps, in wholly exceptional and anomalous cases, and therefore the supposition of such a state must be useless, even as a matter of theory. It seems clear that any theory, in order to possess any possible value, must recognize whatever condition of things is universal and inevitable."

Judge Cooley quotes approvingly (25) from Mr. Bentham: "The great multitude of the people are continually talking of the law of nature, and then they go on giving you their sentiments as to what is right and what is wrong, and these sentiments you are to understand are

241 Sharswood's Blk. 44, note.

251 Cooley's Blk. (3d ed.), p. 39, note.

so many chapters and sections of the law of nature. Instead of the law of nature, you have sometimes the law of reason, right reason, natural justice, natural equity, good order; and any of them will do equally as well."

The great trouble with the theory is that it is a mere theory, and is not based on any fact. It is defining what law is by the use of a philosophical theory of what it ought to be. There never was, and never could be, any natural society not governed by human laws (26). The fallacy seems more plain if the doctrine is traced to its source. The Institutes define jurisprudence as the knowledge of things divine and human, the science of the just and the unjust (27).

§ 48. The definition no basis for classification. Sandars, in his notes, says: "Jurisprudentia is the knowledge of what is jus; and jus, according to the theory of the law of nature, laid down what is commanded by right reason, this right reason being common to nature, or, as the Romans more often said, to the Gods and to man. On this ground, and also because public law has to deal with religious worship, the knowledge of divine things was therefore necessary, as well as the knowledge of human things, to say what were the elements of jus. Both this and the preceding definition, taken at random out of the writings of Ulpian, are unintelligible unless taken in connection with a philosophical theory from which they are here dissevered, and are quite out of place at the be

26 2 Wilson's Works, p. 300; 1 Sharswood's Blk., p. 48, n. 11. 27 Inst., 1-1.

ginnig of an elementary treatise on law" (28). Blackstone did not regard this, and based his whole theory of law and classification upon this obsolete definition.

The Christian religion having been, until quite recently at least, held to be the basis of the law of England (29), and so rigidly so at the time of Blackstone that it was an indictable blasphemous libel to question, no matter how moderately, the divinity of Christ or the truth of the Christian religion, constitutes a justification for his position stronger than many now suppose who look at matters from the present standpoint. A recent decision in England has materially changed the light in which the matter is regarded, and England now enjoys the liberty of free religious discussion, providing the party questioning the truth of the prevailing Christian religion maintains a perfect control of his temper and couches his argument in dignified and well-chosen language (30). Americans can appreciate the fourth so-called absolute right.

The Institutes also defines the law of nature. The law of nature is that law which nature teaches to all animals; for this law does not apply exclusively to the human race, but applies to all animals, whether of the air, the earth or the water (31).

The trouble with this appendage (commanding what is right, etc.) and its basis is that by it you can prove

28 Sandars' Justinian, lib. 1, tit. 1, and note. See also Id., Introduction, sec. 34.

29 1 Cooley's Blk., p. 59. See Cooley's Const. Lim., p. 572.

30 Reg. v. Ramsay & Foot, 48 L. T. (N. 8.) 733, a case involving the Bladlaugh episode.

31 Inst., 1-2.