Odger's English Common Law

2 RIGHTS AND DUTIES.
"We also sometimes read of the " law of nature." Certain
of the later Koman jurists bestowed this title upon that jus
gentium, which the prcetor peregrinus administered in his court
and which Sir Henry Maine describes as " the sum of the
common ingredients in the customs of the old Italian tribes." 1
But the jus gentium was part of the positive law of Eome ; it
differed, moreover, from the so-called " law of nature " in
more than one important particular, as appears from the
writings of these jurists themselves. 2
Again, when a law-
less band of men, such as the mutineers of The Bounty, settle
down in some uninhabited island outside the pale of civilisa-
tion, they are sometimes described as being governed by the
"law of nature "—that is, surely, by the remnants of their
consciences. So, too, our judges will refuse to enforce the
decisions of a foreign Court, if they consider them contrary
to " natural justice."
Sir W. Blackstone rightly defines the "law of nature " as
the unrevealed law of God. 3
But he goes too far when he
asserts that, " being coeval with mankind, it is superior in
obligation to any other ; ... no human laws are of any
validity, if contrary to this." "We read also in Calvin's Case 4
that the " law of nature is part of the Laws of England."
But this is not the fact : it is no part of the law of any State.
Again, in Forbes v. Cochrane 5 Best, J., erroneously declares
that if a "right sought to be enforced is inconsistent with
either the law of nature or the revealed law of God, the
English municipal Courts cannot recognise it." But surely
the duty of our judges is to administer the law of England
as they find it, whether they deem it consistent with the
" law of nature " or not.
In these and all similar passages the phrase the " law of
nature " means that " moral law " which we have already dis-
1 Maine's Ancient Law, with notes by Sir F. Pollock, pp. 52, 53.
2 See the passages cited in the Institutes of Justinian, I. 2 pr., and I. 3, 2.
8
St. Paul makes the same distinction between the voice of nature and the written
law of God in the second Chapter of his Epistle to the Romans " : When the Gentiles,
which have not the law, do by nature the things contained in the law, these ....
are a law unto themselves, which shew the law written in their hearts, their conscience
also bearing witness " . . . . (vv.' 14 15)
* (1608) 7 Eep. at p. 4b.
6
(1824) 2 B. & C. at p. 471.