ebbs and flows, is not a water-course; and the abutting owners have no riparian rights. Chamberlain v. Hemingway, 63 Conn. 1.

SUBROGATION.-A bill of lading provided, that in case of loss the carrier, if liable, should have the right to any insurance effected by the shipper. Held, that the right of subrogation of the insurer to recover over against the carrier, upon payment of the loss, was limited by this provision. If the carrier is actually and nominally the party insured, the underwriter cannot, under any circumstances, recover

What is meant by the expression "our law?" Simple as it seems, this is a most important inquiry. It lies at the threshold,-nay, more, it lies at the foundation, -of all legal thinking and all legal studies scientifically conducted. What is meant will be made more clear by first stating, negatively, what is not meant. phrase "our law," I do not mean moral law; on the contrary, I mean to exclude it, so far, at all events, as moral law stands distinguished from civil or municipal law.

By the

It is absolutely essential to a correct legal conception of law to define its province, and to separate it for purposes of definition, classification, study, and administration, from the domain of ethics or morality; that is to say, for all the purposes of the lawyer and the judge, or more comprehensively, for all the purposes of jurisprudence, which concerns. itself only with civil laws properly so called; namely, rules of conduct which are enforced or enforceable by the State.

Austin rendered, perhaps, no greater service to jurisprudence than in his elaborate chapters on the "Province of Jurisprudence Determined," wherein he defined the boundaries of jurisprudence, and separated it from the domain of ethics or morality. Continental, and particularly German, commentators upon the law have not always, if indeed they have ever, fully made this separation,-a separation so essential to the advancement of legal science.

Again, by the phrase "our law" I do not mean to include what may be called the science of politics or government, although this also stands closely related to law, and in many points in direct contact with it. Strictly speaking, the science of politics or of government falls within the domain of the statesman or legislator.

I mean by "our law" what Magna Charta calls the lex terræ, the law of the land, the law of the land as it actually exists in distinction from what in the view of the law reformer, the legislator or the jurist it is conceived or believed it

ought to be. "Law" and "legislation" are by no means synonymous. The work of consciously changing the law from what it is to what it ought to be is the work of the legislator. This work may, and indeed usually does, fall largely into the hands of and is moulded by the lawyer in his capacity as a statesman or legislator, or the adviser of these; and thus legislation, especially in modern times, has become the usual and effective instrument for changing or amending the law, or making needful or special additions to it. One might, a priori, think it were easy to define law. Grave mistake! Whoever has studied this subject feels an overpowering sense of its difficulties,-difficulties which seem to be beyond the reach of the most enlightened and trained intellects, and to overwhelm them with a consciousness of their own insufficiency. It requires a bolder man than I to propound a definition of the law of the land which shall be at once comprehensive and accurate. Volumes have been written upon this precise subject, with, to me at all events, no satisfying result.

Blackstone's definition, following Hobbes's, is the one best known to the profession, and is in these words:

Municipal law is a rule of civil conduct, prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong."

I cannot, after much reflection, but regard this definition as both inadequate and incorrect. To make it cover the actual body of the whole civil law of a State, the word "prescribed" and the word "command" here used must be given an elasticity of meaning, or an artificial meaning, not consonant with the general or appropriate use of these words.

Austin's definition of law is similarly defective, and the same criticism applies. "Law," according to Austin, "is the aggregate of rules set by men as politically superior or sovereign to men as politically subject.”

The definitions of Blackstone and Austin are apt and accurate as applied to the great body of what we may call the ordained or enacted law of a State. But there is a large body of law to which the term "rules prescribed" or "commands" or "rules set" by a sovereign does not apply, except by subjecting these words to a strain which alters or greatly expands their proper meaning.

This subject has been carefully considered by Professor Holland in his "Elements of Jurisprudence," and I may adopt as sufficiently accurate for my present purpose (although with a conscious sense of its inadequacy) his conclusion that law may be defined as a general rule of civil conduct or of external human action, enforced, or at all events purporting to be enforced, by a sovereign political authority. Consequently we can recognize as laws proper only such rules as are enforced or enforceable by a sovereign political authority-that is, the State. As a result, law, as the lawyer has to deal with it, is concerned only with legal rights; and by legal rights are meant only such rights as are recognized and enforced by the power of the State. The thing to remember is that coercion by the State is the essential quality of law, distinguishing it from morality or ethics. Nothing is a legal right unless it implies a capacity residing in one person of controlling, with the assent and assistance of the State, the actions of others; and that which gives validity, or at least effect, if not existence,

to a legal right, is in every case the force which is lent to it by the State. Duty is the correlative of right, and duty in a legal sense implies a sanction or amenability to sanction, which sanction it is the function of the judicial tribunals to apply and enforce. Whatever rights and duties they thus recognize and enforce are legal rights and duties, and for practical purposes none others fall within the domain of law so far as lawyers and courts are concerned. A moral right, if disregarded, will be viewed with public censure or disapprobation, but that is all; a legal right, however, if disregarded, will be enforced by the public will of the organized society which is called the State.*

But while we must for all purposes of legal study, science and jurisprudence keep the boundaries of law and ethics distinct, it would be a most serious error for the lawyer to suppose that he has to do only with constitutions and statutes and decided cases, and that these constitute all there is of law. Law, even municipal or civil law, is vastly more than Blackstone's and Austin's stereotyped and imperfect definitions make it "a command of the sovereign," "a rule of civil conduct prescribed by the supreme power in a State,❞—if by this is meant something always originating with and created de novo by the legislature-a mere product of sovereignty, of legislation-and which, therefore, the legislature can determine, fix, and mould, as clay in the potter's hand, at his pleasure.

What the sovereign authority in other countries (Parliament, for example, in Great Britain), or Congress or a State legislature in this country, acting within

* Holland, "Elements of Jurisprudence," passim, chaps. iii.. iv., vii., viii.

constitutional limits, commands, is indeed law; and nothing in a legal sense is law, in whatever shape existing, which the State will not en force. And yet it is true that the body of such commands, even if the State may by artifice of speech be supposed to command whatever it permits to its judges, does not represent the totality of the civil or municipal law of any given State. If you ask me to define law, I can, speaking as a lawyer, do no better than to adopt Professor Holland's definition already given. If you ask me to enumerate all of the ultimate sources whence legal rights and duties originate, and how these are evolved, I frankly confess on this occasion as I recently did before the American Bar Association, my inability satisfactorily to formulate an answer. Law is not ethics, it is true; but except so far as laws are arbitrary or conventional regulations, or are mere usages and customs not having a moral quality-if there be any such-they have an ethical foundation. Laws are to be found in part expressed in written constitutions and statutes, and in part the evidences thereof will be found in judicial decisions, in the commentaries and works of learned men; and yet, with all their voluminousness, the law is not to be found in these alone. These constitutions, statutes, judicial decisions, and treatises are numbered by thousands. They are almost unknown to the mass of men; they are at best imperfectly known to lawyers; and yet so it is that any man who in good faith obeys the dictates of a pure and honest heart, whose civil conduct toward his fellow-men is guided by the sense of justice and right which is graven on his heart by the Supreme Law-giver--will find such a course

of conduct, except in the rarest instances, to be in perfect conformity with the requirements of the laws of his country. This is to me conclusive proof of the essential ethical nature and foundation of our laws, and also conclusive proof that laws are something more than a body of commands in any real and proper sense of the word.

If you will critically examine the long catalogue of legislative enactments found in the Revised Statutes of the United States, or in the statute books of any of the States or of Parliament, you will find that the most of them relate to positive regulations of expediency, and not to the great and permanent doctrines of general or universal justice or jurisprudence. Prolific as the various legislatures are in the exercise of the function of legislation, yet how infinitesimal compared with the vast aggregate of our laws and jurisprudence is the work of any given legislature, or even the combined work of all the legislatures, from the beginning down to this present. Thus much as to the differentiation in general of law and legislation, and as to the essential nature of law as the equivalent of the enlightened, ethical, permanent justice of the State.

These views are enforced by considerations of the necessity, purpose, and effect of our American written constitutions, since these are our supreme law; and in these the people have embodied not only their deliberate judgment as to the best form in which to mould the framework of their government, but they have also infused and incorporated therein their highest, their best, their loftiest conceptions of the fundamental rights and duties on which the organic, permanent justice of the State rests.

In considering, therefore, what law is, under the limitations of our written constitutions, Federal and State, it is first of all necessary to get rid of the idea that law is whatever the populace of the moment may determine to be their sense of expediency or right, even though enacted by a legislative majority. Law in its more engaging and nobler aspects, and in its essential nature, is "the beneficence of civil society acting by rule;" is "the absolute justice of the State enlightened by the perfect reason and morality of the State," as ordained, established, and declared in the constitutions.

Law in its nature is therefore opposed to all that is fitful, capricious, unjust, partial, or destructive; and happily legislative enactments of this character will in general be found to be in conflict with some one or more of the express provisions of the organic law, and therefore void.

Theoretically, then, and for many purposes practically, lawyers must discriminate law from morality, and define and keep separate and distinct their respective provinces. But these provinces always adjoin each other; and ethical considerations can no more be excluded from the administration of justice, which is the end and purpose of all civil laws, than one can exclude the vital air from his room and live. A thousand times have I realized the force of this truth. If unblamed I may advert to my own experience. I always felt in the exercise of the judicial office irresistibly drawn to the intrinsic justice of the case, with the inclination, and if possible the determination, to rest the judgment upon the very right of the matter. In the practice of the profession I always feel an abiding