Institutes of American Law 1851

A very informative book that i would suggest you take some time out to look over. I of course have taken the liberty of quoting some of it here for your reading and understanding.

TITLE II.—OF LAWS. 8. To make a law, there must be a superior, who has authority to make it, and an inferior, who is bound by it. To complete the definition of law, we must say that it is a rule prescribed by a lawful superior.




CHAPTER HI.—OF MUNICIPAL LAW. 11. Various definitions have been given of munici pal or civil law. According to Mr. Justice Blackstone, it is "a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong." This definition has been justly criticised, the latter part has been considered superabundant, and the first too general and indefinite, and too limited in its signification, to convey a just idea of the subject. Mr. Chitty defines it to be " a rule of civil conduct, prescribed by the supreme power in a state, commanding what shall be done and what shall not be done."(6) But this does not appear to distinguish between a law which may have the form of a judgment and a general law, as, for example, that Primus shall pay Secundus a certain sum of money. Laws should apply to all the citizens, (c) Civil or municipal law is a rule of conduct prescribed to all the citizens by the supreme power in the state, in conformity to the constitution, on a matter of common interest. It is the solemn declaration of the legislative power, by which it commands, under certain penalties or certain rewards, what each citizen should do, not do, or suffer, for the common good of the state. In order fully to comprehend the subject, let us con sider the several parts of this definition. 1 . It being the civil law, it of course prescribes rules of civil conduct only. This distinguishes it from the moral law, which is regulated by the law of nature or the revealed law.



In considering the people of the United States they may be classed as follows : those born in the country, and those born out of it. CHAPTER I.—OF THOSE BORN IN THE COUNTRY. 40. The natives, or persons born within the jurisdiction of the United States, in any state or territory, have not all the same rights, some being citizens, and others not; some having all their civil rights, and others being deprived of them.



CHAPTER II.—OF THE STATE OR CONDITION OF A PERSON. 138. The word state or condition of persons, has various acceptations. When we speak of a person, we consider only the part a man plays in society, without taking into view the individual. State and person are then correlative terms. If we inquire into its origin, the word state will be found to come from the Latin status, which is derived from the verb stare, sto, whence has been made statio, which signifies the place where a person is located, stat, to fullfil the obligations which are imposed upon him. (b) State, then, is that quality which belongs to a per son in society, and which secures to, and imposes upon him, different rights and duties, in consequence of the differences of that quality. 139. Although all men come from the hands of nature upon an equality, yet there are among them marked natural differences. The distinctions of sex, parentage, age, youth, etc., all come from nature. To these natural qualities, the civil or municipal laws have added distinctions which are purely civil and arbitrary, founded on the manners of the people, or the will of the legislature.


PART II.—OF THE ENJOYMENT AND LOSS OF CIVIL RIGHTS. TITLE I.—OF CONSTITUTIONAL RIGHTS. 196. Whatever may be the theories which have been adopted in other countries in order to establish a civil state, or the combination of all the power of a society of men under a particular direction, in the United States we need not have any recourse to them, because the foundation of our government is a com pact or agreement of the people establishing the civil state, the constitution. The first law of the civil state is the establishment of a public power to cause the execution of the laws, which shall not be exercised by any individual of the society : he is not permitted to do himselfjustice, but must appeal in all cases when required to the deposi tories of the public authority, or to the power of all for the surety of all, whenever he can have recourse to it. Hence the maxim that all the people are under the protection of the law. All rights flow from the same source, the whole of the laws which concern the state ; but they may be divided conveniently into political rights and civil rights.



200. In entering into society, man yields up a part of his natural independence in exchange for the advantages he receives from society ; and in consideration of those advantages he becomes bound to obey the laws which the majority have established. This species of constraint is far preferable to the ferocious liberty of a state of nature ; for if he is restrained, others are also prevented from doing him any injury.


CHAPTER m.—OF THE DOMICIL OF CHOICE. 233. The domicil of origin is retained until another is acquired by the act of the party, or by operation of law. In order to acquire a domicil of choice, there must be an actual removal with an intention of resid ing in the place to which the party has removed.(a) As soon as the removal is completed, with such inten tion, the new domicil is acquired, and the old one is lost. (6) A mere intention to remove, unless such intention be carried into effect, is not sufficient to operate the change, (c) When a man changes his domicil and gains another, and afterwards returns to his original domicil with an intention to reside there, his original domicil is at once restored. (a)



SECTION 2. OF THINGS WHICH CANNOT BE THE OBJECTS OF PRIVATE PROPERTY. 423.—2. Things extra patrimonium, or those in which no private property can be had by individuals, exclusively from the rest of mankind, are, 1, those which are common to all men ; 2, those which belong to the public generally; 3, those which belong to cities or municipal corporations. § 1.—Of things common. 424. Things common are the heavens, the light, the air, and the sea, which cannot be appropriated by any man or set of men, so as to deprive others of the use of them. (a) It is evident that no private property can be had in the heavens, the light, the air, and the sea, which belong equally to all men, and are indispensable to their existence. All men have the right to navigate the sea, and to fish there, (b) § 2.—Of things public. 425. Res pvblica, or things public, are those the property of which is in the state, and their use is common to all its members, as navigable rivers, harbors, the sea shore, highways, bridges, and the like.