is declared to be an "immemorial custom" or "according to immemorial usage," in no way affects the nature of the acquiescence of the sovereign. In the great bulk of cases the appropriate law is set forth in previous judicial decisions; but, as there must have been in every instance a first decision, the law announced therein must have been an application of the principles of natural justice, which being declared by judicial authority are termed by Austin "judiciary law" or "judgemade law."9

Justice in the abstract as applied to human affairs, or natural justice, as it may be called to distinguish it from legal justice (i. e., the application of the laws of a state), is the desire and intent to render to every person that to which such person is entitled. Touillier makes the distinction between virtue and justice

that that which is considered positively and in itself is called virtue, when considered relatively and with respect to others has the name of justice. (Droit Civ., Pr., tit. prél., n. 7.)

In a word, virtue is righteousness applied to self; justice, righteousness applied to others. Burke said that

justice is the great standing policy of civil society.

In accordance with this truth it is assumed that a sovereign wills to be preeminently just, and that in controversies, to which enacted law does not apply, it is the sovereign will that principles of natural justice shall be applied. "Legibus sumptis disinentibus, lege naturali intendum est." On this assumption such principles, though often modified by enacted law, are accepted as the will of the sovereign and as such are subject to judicial interpretation, declaration and application.

It is apparent that, as natural justice is unlimited in its scope, the common law, either declared or undeclared, is applicable to all possible

**

* The common law includes those principles, usages, and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. * A great proportion of the rules and maxims which constitute the immense code of the common law goes into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. (Kent; Commentaries, 2d Am. ed., p. 471.)

social relations between man and man, and to all possible relations between government and society. This fact gives rise to the maxim, "Lex semper dabit remedium." But, though the common law is ethically superior and more truly in accord with the dignity of a sovereign, enacted constitutional law and statutory law supersede it whenever these come in conflict with it. The reason is evident. The two classes of laws are the express will of the sovereign while the common law, as has been said, rests on implied acquiescence.

Disapproval of non-fundamental laws (including in that category statutory and judicial laws and such customary laws as do not relate to constitutional subjects) may be shown by the real sovereign in one of two ways; first, by direct legislative act in adopting a nullifying constitutional amendment or in negativing them through the medium of the referendum; or, second, by physically resisting all attempts to enforce such laws. If the latter method is employed, the resistance must not only be successful, but substantially universal and perpetual, leaving no reasonable doubt but that the forceful manifestation of disapproval represents the collective will of the body of individuals in the state possessing the real sovereignty. If it falls short of this certainty, the resistance fails to be an expression of the will of the real sovereign, and the law retains its full force and validity. The mere act of resisting is not sufficient, that may be simply the crime of an individual, a riot, or an insurrection, according to the magnitude of the opposition and the degree of force used. Resistance that is absolutely and generally successful is essential to make resistance to law a disapproving act of the real sovereign.

Since the real sovereignty resides among the collection of individuals composing the political state, though its actual location in that body may not be determined and may constantly vary as to the individuals who possess it, and since the laws limit and control the conduct of all the individuals in a state irrespective of the location of the sovereignty, it follows that the individuals composing a state are collectively the repository of the supreme governing power, and that they are separately the governed The declaration, therefore, that all government rightly constituted must be founded upon the "consent of the governed”—a declaration of great potency in shaping political events during the eighteenth century-is to this extent true. But since the

possessors of the sovereignty never include all the members of the state, the assertion is never correct."

What has been said of a rightfully established government in its relation to the consent of the governed applies with equal force to the laws emanating from or enforced by such government. The sole purpose of all government in a state is to declare and carry out the will of the sovereign. If it fails to do this, it loses its true character as the agent of the sovereign. Laws are the expressions of the sovereign will. To make, interpret, apply and execute them is the duty of government Therefore, if a rightfully established government rests upon the consent of the governed, its acts, the laws, receive a like sanction. It should, however, be specially noted that it is only right charactered government and right charactered laws to which this maxim applies, for it is an historical fact that there have always existed governments and laws which do not conform to it and which are decidedly hostile to its spirit. They are undoubtedly constituted in legal right, though not in ethical right. The use of the word rightfully here is in an ethical sense, and not in a legal or political one Nevertheless the institutional growth toward liberalism and the moral influence of modern thought are making the application of this ethical maxim of government more and more general throughout the world. But the movement is based upon intellectual influences rather than upon sovereign power.

Natural justice-to repeat the definition already given-is the desire and intent to render to every person that to which such person is entitled. When applied without limitation or modification, such justice becomes the interpretation and enforcement of moral principles. But in the more restricted sense, which justice obtains when used in connection with the laws in a state, it supplants morality with legality and interprets and enforces legal rather than moral principles. This is the type of justice already designated as legal justice. It is apparent without demonstration that the two types are not synonymous; one is unlimited; the other, limited; one is applied morality; the other, applied law; and morality and law are by no means the same thing.

10 What may be styled "collective consent" is brought out by Austin in the following statement: Every government has arisen through the consent of the people or the bulk of the natural society from which the political was formed. For the bulk of the natural society from which a political is formed, submit freely or voluntarily to the inchoate political government. (Austin, p. 298.)

Emanating as law does from a sovereign or from the agent of a sovereign, who being human is morally imperfect, law is not necessarily either moral or right, though it must be obeyed so long as its author possesses the power to compel obedience. Even when a sovereign attempts to make laws conform to morality, he may fail to do so in the judgment of the rest of the world, for the moral standards of sovereigns may differ to such a degree that the principles expressed in their respective legal codes may be entirely contradictory of one another. To illustrate the different conceptions of what is and what is not moral, it is only necessary to compare the ethical codes of the Israelites, of the Mahometan world, of Puritan England, of France during the Terror, of the civilized and barbarous races of today. The obvious and inevitable conclusion is that, though there can exist but one perfect ethical standard in the world, moral law as known and accepted by various peoples, like the laws which are enacted by them, is imperfect and affected by the intelligence, the education and the mental environment of each individual or body of individuals that attempts to follow its precepts or to incorporate them in political legislation.

Thus the principles of natural justice are not a fixed quantity, an inflexible standard, throughout the world, and never will be until all nations come to one mind as to what is righteous in human conduct, both positively and relatively, and adopt a universal, unchangeable and identical code of morals.

ROBERT LANSING.

SOME SUGGESTIONS AS TO THE PERMANENT COURT OF ARBITRATION

Through the Hague convention of 1899, for the first time by a general treaty, nations in effect agreed that under certain circumstances, at least, they were morally bound, as were ordinary corporations or mere private individuals, to submit the merits of their disputes to impartial examination. The old doctrine that the king, as the representative of Deity, could do no wrong and the newer fiction that national governments were sovereign-beyond the ordinary gauges of right and wrong—and were their own courts of last resort upon the rightfulness of their actions toward other governments, subject only to the arbitrament of war, were measurably impaired, the signatory nations admitting fallibility and agreeing that, composed as they were of an aggregate of individuals, like their component parts they might err, and that the question as to whether they had erred or not could fairly be determined by other human beings, perhaps no wiser, but certainly more impartial than themselves.

It was not to be expected that this court, created for the first time by general action and against the more than silent protest of at least one of the contributing nations, should be perfect, either as to its jurisdiction or as to its composition. It is the history of all governmental institutions that as they "find themselves," their functions grow in extent and logical completeness. Always in this, as in other matters, it is "le premier pas qui coûte." The important first step having been taken, however, we may expect the future will afford an adequate solution of the jurisdictional questions timidly and inadequately suggested by the convention of 1899. It is the province of the present article not to deal with questions of jurisdiction, but to discuss certain matters of formation and procedure, which properly studied will most certainly tend to insure the impartiality and high standard of the court, and, in so doing, assure its usefulness, ultimately adding to its functions and renown.