No. 122.

Preliminary Book, part 5, tit. 9, chap. 3, sec. 1.

SECTION 2.-OF THE ROMAN law.

No. 124.

122. The Roman or civil law has furnished many rules, and is constantly supplying the common law with maxims which appear there without any acknowledgment of their paternity. This law is the source of wisdom, from which many of our judges have drawn with unsparing hands, to adorn their judgments. The proceedings of the courts of equity, and many of the admirable distinctions which manifest their wisdom, flow from this source. And from this great store-house the courts of admiralty have borrowed most of the laws which govern in admiralty cases. The civil law is to be found in the Institutes of Justinian, the Pandects, the Novels, and the Code, (a) and their numerous commentators.

SECTION 3.-OF THE CANON LAW.

123. The Canon law is a system of Roman ecclesiastical law, relative to such matters as the church of Rome either has or pretends to have jurisdiction over. Many of the rules of this system have been adopted by the English ecclesiastical law, and they have been incorporated into ours. Perhaps all, or at least a great number of rules relating to administrations, wills, and marriages, have been derived from the ecclesiastical law.(b)

CHAPTER III.-OF THE OBJECTS OF THE LAW.

SECTION 1.-OF CIVIL AND CRIMINAL LAWS.

124. Those laws which regulate civil matters between individuals, are called civil laws, in contradistinction to those which regulate criminal matters, and

(a) Bouv. L. D. Law, Civil. By the phrase Civil Law, is meant the whole body of Roman jurisprudence promulgated by Justinian and his successors. This does not include the Jus Ante-Justinianeum, a part of which was composed of the Laws of the Twelve Tables. Walker's Inquiry, 26,

(b) 1 Bl. Com. 82; Bouv. L. D. Law, Canon.

No. 125.

Preliminary Book, part 5 tit. 9, chap. 4, sec. 1, 2.

No. 129.

provide for the repression and punishment of crimes, which are called criminal laws.

SECTION 2.-OF LAW MERCHANT.

125. Those which form a system of customs acknowledged and taken notice of by all commercial nations, are called the law merchant. These customs constitute a part of the general law of the land; and, being part of that law, their existence cannot be proved by witnesses, but the judges are bound to take notice of them ex officio. (a)

SECTION 3.-OF MUNICIPAL LAW.

126. Municipal law. This has been already considered. (b)

SECTION 4.-OF MARTIAL LAW.

127. Martial law. This is a code of laws established for the government of the army and navy of the United States. Its principal rules are to be found in the Articles of War. The violations of this law are to be tried by a court martial. A military commander may, in extreme cases, declare a district of country or a city under martial law; but he has no right to suspend the habeas corpus act.(c)

CHAPTER IV.—OF IMMUTABLE AND ARBITRARY LAWS.

SECTION 1.-OF IMMUTABLE LAWS.

128. Those laws are immutable which are founded on the laws of nature, and if ever altered by men, are not binding, because the laws of God are superior to all human laws.

SECTION 2.-OF ARBITRARY LAWS.

129. An arbitrary law is one made by the legisla

(a) See Beawes, Lex Merc.; Cain. Lex Merc. Am.; Pardes. Dr. Com. (b) Ante, n. 11.

(c) Johnson v. Duncan, 3 Mart. Lo. R. 531.

No. 130.

Preliminary Book, part 5, tit 9, chap. 5, 6, sec. 1.

No. 132.

tor, simply because he wills it, and is not founded in the nature of things; such law, for example, as the tariff law, which may be high or low.

CHAPTER V.-OF NATIONAL OR DOMESTIC AND FOREIGN LAWS.

SECTION 1.-OF NATIONAL OR DOMESTIC LAWS.

130. Laws enacted by the government of the United States, duly constituted, are national or domestic laws. These have a binding force over the whole country, as will be shown in the next chapter.

The laws of each state are obligatory on all persons in the state, but do not extend beyond their territorial jurisdictions. Considered with regard to their connection with each other, the states are foreign to one another.

SECTION 2.-OF FOREIGN LAWS.

131. The laws of a foreign country are said to be foreign laws. They have no force to regulate any thing out of their jurisdiction; but sometimes contracts are made in a foreign country, which are broken in this, and a remedy is sought here. In such case, the matter in dispute is to be adjudicated in this country by the law of the country where the contract was made. (a)

But there is an exception to the universal validity of this rule. A foreign law, which violates the law of nature, or the laws of this country, or which opposes our national policy or institutions, (b) will not be enforced here.

CHAPTER VI.-OVER WHAT COUNTRIES AND PLACES THE LAWS EXTEND.

SECTION 1.-LAWS EXTEND OVER THE UNITED STATES.

132. The laws of congress extend over all the

(a) Story, Confl. of Laws, § 242.

(b) Story, Confl. of Laws, § 246 to ý 260.

No. 133.

Preliminary Book, part 5, tit. 9, chap. 6, sec. 2.

No. 133.

United States. Not only those which originally formed the federal compact, but also over those which have been admitted since, whether they were formed out of the original territory, or of that acquired from France, by the treaty which ceded Louisiana to the United States; Florida from Spain; or that which was annexed by an agreement with the independent republic of Texas, and which annexation has since been recognized and sanctioned; nor to the additional territory which has been granted to the United States, by a treaty made with Mexico.

How far the country extends into the open sea, is a question not easily solved. Though the open sea be not capable of being possessed as private property by a nation, yet the waters on the coast to a certain extent are considered as belonging to the territory. By the law of nations, this space is limited to the distance to which a cannon can throw a ball, (a) though a claim extending farther than this has been made by the United States. (b)

The constitution provides that "new states may be admitted by congress into this Union; but no new state shall be formed by the junction of two or more states, or parts of states, without the consent of the legislature of the states concerned, as well as of congress."(c)

These states, when once established, are considered as upon an equal footing with the original states, and the laws of the Union bind them.

SECTION 2.-OF THE TERRITORIES OF THE UNITED STATES.

133. By territory is understood, in the sense in which this word is used in the constitution, that portion of the country subject, and belonging to the

(a) Vatt. liv. 1, c. 23, n. 289, in fin.; Chit. Law of Nat. 113; Marten's Law of Nat. B. 1, c. 8, s. 6; 3 Rob. Adm. R. 102; 3 Hagg. Adm. R. 257. (b) 1 Kent, Com. 29, 30. But see Serg. Const. Law, 219, 2d ed. (c) Const. art. 4, s. 3, n. 1.

No. 134.

Preliminary Book, part 5, tit. 9, chap. 6, sec. 3.

No. 135.

United States, which is not within the boundaries of any of them, or within the District of Columbia.

The constitution directs that "the congress shall have power to dispose of, and make all needful rules and regulations, respecting the territory or other property belonging to the United States."(a)

Some of these territories are organized by act of congress, and have a government to make their local laws, generally having the powers which have been retained by the states; with courts established to administer justice. Others are not organized, and these are regulated altogether by the laws of the Union.(b)

SECTION 3.-JURISDICTION OVER SHIPS.

134. The laws of the United States extend over all merchant ships owned by citizens of the United States, and ships of war of the United States in the open sea generally, or while lying in a foreign port or place, and also over the crews. (c)

135. Having taken this general view of the laws, the consideration of their application to persons, to things, and to actions, will next be the subject of inquiry. For this purpose this work will be divided into five books. In the first, we will treat of persons; in the second, of things; injuries and wrongs will be the subject of the third; in the fourth, will be explained what remedies can be had at law for injuries; and in the fifth, the nature and proceedings in equity.

(a) Const. art. 4, s. 3, n. 2.

(b) Story on the Const. § 1318.

(c) Act of Sept. 24, 1789, s. 9 and 11; Act of 1790, c. 9; Act of March 3, 1825, s. 5; 1 Kent, Com. 362, 363.