Divine the same relation as the Court of Session or the Privy Council to Parliament, when they issue Acts of Sederunt or Proclamations, in virtue of powers delegated to them. Human statutes are like Rules of Court issued by the judges, on general principles laid down by Parliament. God enacts the moral law, and leaves the details of working it out to kings and such as are in authority. The criticism under the next head will apply to this usage of the phrase.

5. A more modern use of the phrase is to denote an ideal law or body of laws. In this view every positive law is an attempt to reach a natural law, which serves as a model. Positive laws are asymptotes which approach, but do not ever reach, natural laws. M. Demangeat expresses this idea when he says,1 "For us natural law (le droit naturel) is the beau ideal; it is the abstract type of perfection in the matter of law. Natural law is therefore before us and not behind us. Each time that the legislator modifies a rule of law, he thinks that the new rule which he establishes is more conform to natural law than the former one, which he supersedes; or, in other words, each time that we seek to perfect positive law (droit positif), by that very act we seek to bring it nearer to natural law." In concluding, he points out that human weakness will always prevent the complete realisation of this. abstract ideal in human legislation. In regard to this I would only repeat that the natural law at which the legislator or judge aims cannot be realised apart from positive law. Such natural law is present in every positive law. And so it is the grossest absurdity for Erskine to call the right of testing a natural law. It is as much a positive law as the law "Thou shalt not steal." Mere generalisation of a positive law does not make a natural law. The blank schedule of the end of a conveyancing act is a positive law as much as the completed deed founded on it. We may go further, and say that the three precepts of the law-"Honeste vivere," "neminem lædere," "suum cuique tribuere," are also positive laws, highly sublimated, no doubt, but still positive laws. And suppose we go further and reduce our three precepts to one, say Kant's Categorical Imperative-" Act so that thy will may become a universal law," we are still in the region of positive law.

1 Cours de droit romain, vol. i., p. 7.

T

we are seeking is one transcendental statute or law, which includes and implies every conceivable positive law. Is this transcendental law not as much out of our reach as the transcendental, as distinguished from the phenomenal, universe? Can we know duty apart from particular single individual duties? or law apart from particular positive laws? Can we have rights in general without having particular rights? Can we have a right of property without possessing anything? The metaphysic. of ethics should therefore bring us to a law, in the physical or mathematical sense, and not to a law in the jural sense. If we put our result in the form of an imperative law, we have gone a step beyond the sphere of pure reason. We make the law a positive law.1

6. On the physical side the phrases in question now approach Ulpian's idea-"Jus naturale est, quod natura omnia animalia docuit," and we may extend it to all animate and inanimate nature. This usage is now admitted to be undoubtedly a metaphor.

7. The last and certainly the best usage is to define natural law as the science of law.2 This is the sense in which Ahrens uses the words when he says, "The philosophy of law, or natural law, is the science which discloses the first principles of right, conceived by reason, and founded on the nature of man, considered in itself, and in its relations with the universal order of things."3 Trendelenburg uses the words in the same sense, but wisely leaves them on the title-page and in the preface. To attempt to put the new wine of modern philosophy into the old bottles of the scholastic terms, "natural law" and "laws of nature," can only result in the usual catastrophe. The experiment is so dangerous that it should be avoided. It is only by giving up the use of those words that we can give anything like satisfactory answers to the questions which so much occupied the schoolmen, and which still divide the schools of philosophical jurists. Is law one or many? Is it created by God or men, or is it prior to and independent of them? Law is all of these at once. The thought which is at the foundation of positive law is

1 See Green's Ethics, p. 206.

2 The transition from the idea of natural law as the subject to the idea of natural law as the science of that subject is analogous to the confusion between religion and theology.

3 Cours de droit naturel, vol. i., p. 1.

4 See Thomas Aquinas, Summa Theologiæ, Prima Secundæ, Quæst. xciv.

one, but cannot be conceived by itself as an abstraction. Even for the idea of personality or being we must have the prior idea of right. The two sides are inseparable. It then becomes an historical question how men became acquainted with law. If it were revealed it must necessarily be in the form of positive law, but the positive law necessarily involves the idea of right. And so at the same time even man may create, and, after all, only declare law, which existed prior to him. He will only be "thinking God's thoughts after Him."

I would only observe further that, if we work out the ideas involved in the words "Right," "Rights," "Natural Right," "Rights of Nature," it will be found that they go through variations corresponding to those above indicated with reference to the word "Law;" but the subject is looked at from the point of view of the individuals subject to the law, instead of from that of the state enacting or recognising it.'

1 On the subject here discussed reference may be further made to Professor Pollock's Essays in Jurisprudence and Ethics, essay II. I have thought it unnecessary to refer to the phrase the law of nations," which is so intimately bound up with the "law of nature." That phrase denotes what is truly positive law, and this supports my contention that natural law, as commonly conceived, is only a generalised positive law.

B.-NOTE ON THE HISTORY OF SECONDARY RESPONSIBILITY

FOR SERVANTS IN SCOTLAND.1

THE name "secondary responsibility" was applied in a recent case in the Court of Session2 to the liability arising in cases where a person is held to be answerable for a wrong done by another person, thing, or animal belonging to him or in his possession. The chief exception down to the year 1881, was when one servant injured another servant in the same employment as himself, under the same master. The servants are then called "collaborateurs," and the doctrine in question is generally called "the doctrine of collaborateur."

A person may commit a wrong through another in various ways. The simplest case would be like this:-If a person put poison into a cup of tea which a servant has put down for a moment, and is about to take to his master, it is the first person and not the servant who is guilty of the crime. Here the maxim applies, Qui facit per alium facit per se. Again, if a person conspire with a servant to poison some person, both are equally guilty. This is recognised every day in the doctrine of art and part in Scots criminal law. And it is the most elementary view of the foundation of secondary responsibility for civil reparation. This is the sole ground of responsibility mentioned by Erskine in his Institutes, which were published after his death, in 1773. He says "As to the persons liable to repair the damage, it is he who does the wrong that must repair it; and whoever gives a mandate or order for doing it is held as the doer," and he refers in support of this doctrine to L. 169 D., de Reg. Jur. (50, 17), where Paul says-"Is damnum dat, qui jubet dare: ejus vero nulla culpa est, cui parere necesse est."

1 See p. 106, supra.

469.

Woodhead v. The Gartness Mineral Company, 10th Feb., 1877, 4 Rettie,

We cannot understand the modern law on this subject without referring to the Roman law. I may state that, as a general rule, by that law one freeman would never be responsible for another, unless a mandate were given for the commission of the act. But the case was different with sons, slaves, and beasts. At an early period these, no doubt, stood on precisely the same level. They were all mancipia-all in manu of the paterfamilias. The paterfamilias was liable for them, because they were in his possession. By a law of the Twelve Tables it was competent to him, when sued for damages, to abandon his son, slave, or animal to the person suing. In other words, his liability was limited to the value of the person or animal doing the damage: just as in cases of collision, under the Merchant Shipping Act, liability is limited to so much per ton. The advance of civilisation raised sons to a higher level. It was not, however, until the time of Justinian that the old law as to sons was repealed. Under his legislation, since the paterfamilias had no longer the right to abandon his son, he was no longer liable for him. The person injured must sue the son, who would pay the damages if he had a sufficient peculium.1

Another noteworthy point in the Roman law was that, as the master was liable for his slave, it was the master alone who could recover the damages. A slave had no persona in a court, and therefore the master sued for injury to his property. The master could do no wrong to his servant, because he was simply a piece of property. Generally speaking, the law stood thus: (1.) There must be personal fault in order to create liability; (2.) Possession of a slave, or of an animal which did damage created liability, but this might be got rid of by surrendering the slave or the animal to the person injured. The chief exception to these rules was that by which a person inhabiting a house was liable for injury caused by something being thrown from the window, even though he was not aware of it. This was really a police regulation, and did not affect the general law. But even here, if a slave were the culprit and his master personally innocent, he could elude

1 The codes of France, Belgium and Italy impose liability on parents for pupil children residing with them. See p. 113, supra.