Sovereign power in the hands of One, or of a few men of Rank, or of the General Body of the Citizens, the State is a Monarchy, an Aristocracy, or a Democracy. These are the Simple Forms of Government. The Sovereign Power executes the existing Laws, and on all occasions, both in reference to the citizens within the State, and to persons and states without, acts for the State. These are the Executive Functions of the Government. 211. It is the existence of a Supreme Authority, or Government, which gives reality to the other Rights;— the Rights of the Person, of Property, of Contract, of Marriage. The Government acts as the State (94), and carries into effect the Laws by which Rights and Obligations are defined. The Government also, by means of its tribunals and Judges (94), decides disputed questions which arise among its citizens concerning their Rights and Obligations. These are the Judicial Functions of the Government. But the Definitions of Rights and Obligations, though given by the Law of each nation, are not arbitrary and capricious (105). They are intended in all nations to be right; that is, conformable to the Supreme Rule of Human action. They are intended to be just, that is, conformable to the Moral Idea of Justice, as well as to the actual Fact of Law. Such Moral Ideas will be the subject of our consideration hereafter. 212. Offenses against the Rights of Government are Rebellion, when subjects openly and by force resist the Governors: Treason, when by combination and contrivance they seek to dispossess them: Sedition, when they attempt to transfer some of the functions of Government from the Governors to other hands. In many free states, where the citizens have a considerable share in the government, they are divided into Parties, which act upon opposite or different maxims in the administration of the State. When a Party acts not for the good of the State, but for its own advantage as a Party, it is a Faction. 213. Since, in all Nations, the Definitions of Rights and Obligations are intended to be right and just, it is natural that there should be much that is common in the views and determinations of all nations on these subjects. That which is common in the determinations of all Nations respecting Rights and Obligations, is called Jus Naturæ, or Jus Gentium. That which is peculiar in the Law of a particular State or City, is called Jus Civile, or Jus Municipale. We may distinguish these two kinds of Jus as Natural Jus and National Jus. Jus Civile, Civil Law, is often used to denote Jus Civile Romanorum, the Roman Law. 214. Nations or States are, for the most part, independent bodies, with no common authority to which they can refer. Each is a Sovereign State, acknowledging no Superior. Hence there is no Authority which can define or enforce their Rights which they claim against each other. But the general rules and analogies of Natural Jus (212) lead to determinations of the Rights and Obligations of Nations, which form a body of acknowledged Law. This body of Law is Jus inter Gentes, and may be termed International Jus. : 215. Though the existing Government in each Nation is a Fact, the result of preceding historical Facts (209), it is not merely a Fact. Governments for the most part claim to exist by Justice, as well as by Power. They recognize the Rules of National Jus and International Jus of which we have spoken; and assert themselves to be Governments de jure as well as de facto. Moral Ideas, and the Sentiments combined with them, have great force among the springs of action (56); and thus the opinion, generally prevalent, that any person or body of persons The existing does or does not possess the Government of a Nation de jure, will very materially effect the support and obedience which men will render to it, and will thus determine the historical fact of its standing or falling. Government is a Fact; but it is a Fact the previously operating Idea of Justice. on the general opinion of its Authority. make Right; the opinion of Right makes Might; and the Might thus generated determines all subordinate questions of Right. determined by Its power rests 216. Although we at first, while treating of Jus, consider the Laws of each State as absolutely fixed and given (105), yet Laws are intended, as we have said (211), to be just. Hence the State has, for one of its offices, to remove out of the Laws all that is unjust, so as to make them more and more just. That part of the Governing Body which is by the Constitution (210) thus invested with Authority to make and alter Laws, is the Legislative Body, or Legislature. The Executive and Judicial branches of Government, of which we have already spoken (210, 211), and the Legislative Branch now spoken of, form the three great Members of every Constitution. 217. It will be our business hereafter to consider the Moral Idea of Justice, and its consequences; but we may already easily discern cases in which the general analogy of Natural Jus would lead to a modification of Laws. If, for instance, one Nation have made war upon another, invaded the Country, and reduced the inhabitants to slavery: (as in ancient times was the Rule of International Jus;) when the conquered inhabitants have lived as slaves for many generations, it would be agreeable to National Jus to annul the Laws which keep the slaves in bondage (this being done, of course, by the proper legislative authority). For the ancient conquest, in which the condition of the slaves was founded, was a transitory and accidental event, and cannot properly be the basis of an eternal Law. Indeed, the progress of time not only obliterates the effect of such events, but overthrows even the Rules of International Jus by which the events formerly produced such effects for it is now no longer a Rule of International Law, that when one nation conquers another in war, it makes slaves of the inhabitants. : By following such changes, States may aim at constantly making their Laws continually more and more just. In doing so, they tend to bring together the Idea of Justice and the Fact of Law. The Laws are rendered just; and they are actually carried into effect because they are the measures of Justice. 218. The Idea and the Fact cannot be separated. We cannot have Justice without Law, that is, without actual historical Law. For Justice requires us to give to each man his own, and Law alone determines what is each man's own. If we draw inferences from the notion of Justice, without taking account of the traditions of Law and History, we shall be led to contradiction and confusion. Thus, if we say that Justice implies Equality, and if we thereupon attempt to make the Property of all citizens always equal, we destroy the conception of Property. If, on the like ground, we declare that no man shall lose by a Contract, we destroy the conception of a Contract. Justice implies Property, and Property implies permanent actual possession, historically established. Justice implies Contracts; and a Contract implies that a transaction which takes place at one time, determines arbitrarily what follows. If we do not take the historical definitions of Property, Contract, and the like, the things themselves disappear; and there is no longer any material for the Idea of Justice to act upon. And on the other hand, we cannot be content with the mere Fact of Law, without the idea of Justice. Power without Authority, Might without Right, give Possession, but do not give Property. In order that Law may looked upon as Law, it must be combined with Justice. be 219. Actual and fixed Laws are requisite as means for the moral education of the members of the State (104). For the Moral Ideas are educed in man by his being made to understand the Terms denoting Moral Conceptions; and these Terms become intelligible by being applied under definite conditions. Moral Conceptions cannot be applied, without assuming the jural Conceptions of Property, Contract, Marriage, and the like. A child cannot learn that he ought not to take what is not his own, except he be made to understand what is, and what is not, his own. The Laws being, as in many States they are or have been, familiarly made known to young persons, form an important part of their education. And the Reasons commonly given for the Laws, involve the Idea of Justice, and serve to educe that Idea in the minds of the citizens. 220. Among the ancient Romans, the earliest Laws, and the Maxims and Formulæ of Laws, were thus inculcated in the earliest years of life. Their children were made familiar with these expressions, as our children are with Nursery Rhymes. Cicero says* to his brother: "A pueris enim didicimus Si in jus vocat, atque ejusmodi alias leges nominare." And againt: "Nostis quæ sequuntur; discebamus enim pueri XII (Tabulas) ut carmen necessiarum." And it was the office of the higher class of Romans to expound the application and interpretation of the Law to their clients. The familiarity with the Law, thus generated, joined with a * De Leg. 11. 4. From the time of our boyhood we learnt, If a man sues you at Law, and other Laws of that kind, by rote. + Id. 11. 23. You know what follows, for when we were boys we learnt the Twelve Tables like a familiar rhyme. |