food aright, and to clothe the bodies. In like manner did he, in giving us natural law, endow us with the capacity to modify it to human wants. And, thus modified, not in its primary state, it pervades human association.

§ 7 b. The word law is used in a broader or narrower sense, according to the subject to which it is applied. Even in legal works its signification is not uniform. But in these works it commonly stands for less than generally it does in the foregoing sections. Ordinarily we understand by it, used in a law-book, those doctrines which are authoritatively established by the legislature and the courts, to regulate affairs between men as individuals, and between them and the community. And though the law, in the more enlarged meanings of the word, is proper matter for the inquiry of every individual, yet, in a legal work, we treat only of what the courts enforce as such. But this law, let us repeat, exists in a more or less complete state, before governments and before courts.

§ 8. One of the chief labors of legal science is to ascertain the distinction between the law which the courts enforce, and the law which they decline enforcing.1 The rules concerning this distinction vary with the time and the country in which the court sits. But the truth remains, through all changes and in all countries, that there must be law pervading all human affairs; and that, if the tribunals and the legislature have failed to fill the entire space, still nature fills it; and, if the judges will not listen to the voice of nature, other powers will expound her laws and inflict her punishments.

§ 8 a. There is necessarily a diversity of opinion, among judges and among the people of different nations, concerning how much of the law of nature shall be administered in the courts. But, said a learned judge, "Every nation must of

1 See ante, § 5, 6.

necessity have its common law, let it be called by what name it may; and it will be simple or complicated in its details, as society is simple or complicated in its relations."1 And, however much men may deprecate what appears to be arbitrary power in judges, who administer laws not written in the statute-books, such administration of justice is necessary among every people, whether calling themselves free or not. Great, indeed, would be the calamity, if the courts were to compel mob violence, by refusing justice in every case which the legislature had not foreseen.

§ 8 b. These views show the absurdity of the charge sometimes brought against our tribunals, that they fabricate law. A court may err, since judges are only human beings; but no error is so monstrous as the denial of admitted right to a suitor who is simply unable to find his cause laid down in the statute-book. And the tribunals of the present time commit many more errors by such denial, alleging the want of a statute or a precedent, than in all other ways combined. Not thus was it in the early times; and; because it was not thus then, the rule of adhering to the law as we find it, should dictate that it be not thus now. For if we are to give heed to the wisdom of the past in matters of juridical science, let us not cast off the authority of that high wisdom which recognized the existence of law as independent, not only of legislation, but of precedent also.

§8c. The importance and significance of the views urged in the last section will more fully appear in the following pages. We shall find, that courts adhered, very properly, to the precedents; but we shall find also, that precedents may not have covered the entire ground. And how absurd it is, that a question between man and man, or between man and the community, should depend neither on the abstract right of the case, nor on the practical convenience or propriety of

1

1 Turley, J., in Jacob v. The State, 3 Humph. 493, 514.

one decision of it or another, but solely on the accident, whether it arose in early times, received then an adjudication, and the adjudication found a reporter! 1

§ 8d. In the vast complications of human affairs, requiring new applications of old principles continually to be made; in the measureless range of human thought, bringing new doctrines out of the mass of new and old events; in the immense fields of human exploration, luminous with the light of every species of science, over which the race of man is always travelling; in the unlimited expansibility of human society, developing new aspects, new relations, new wants; in the fact, that, although the reported decisions of the courts are numerically vast, they embrace but comparatively few of the questions which have arisen heretofore; in the known fact also, that evermore the surges of time are driving the shores of human capability further toward the infinite, we read the truth, pervading every system of jurisprudence, that, whenever a matter comes before the courts, it is really a call for a new enunciation of legal doctrines; and that from the past we only gather a few rules to guide us in the future. We learn, that both the olden light and the new point to the way of principle for the settlement of all new cases, where particular precedents fail.

§8e. These general views of the nature and sources of jurisprudence comprehend what we have to say on this particular branch of our subject. If space were allowed, we could profitably enlarge them much. There is the entire field of the rise and progress of different systems of laws; the origin of their several rules; the influence of morals, of manners, and of religion upon each; there is the scientific view and the practical view of each system, and how mutually they unite in their common centre, being the judicial force which has controlled the decisions of the tribunals; but only

And see post, § 45 a.

as the common law presents itself to us in the following investigations, can we now examine these things. Nor, if we could, should we derive from the searching into other systems much useful assistance in the labor to understand our own law. In the adjudications of our common law tribunals, we have the material from which more of science and of practical wisdom can be drawn, than the mind of man has yet gathered in the juridical field. And if, in our attempt to extract the sweet from this unsightly heap of things, we are in any full measure successful, we shall do what no single writer on any system of laws ever completely accomplished.

§ 9. FROM what is said in the previous chapter we learn, that law, as understood in works of legal science, had but one beginning; originating with man himself. The stream emerged from the same earth whence arose the first couple; flowed in even course with the race, augmented by human wisdom and by human folly likewise; till, divided into as many parts as there are nations and tribes among men, it has come to us bearing in its channels the accumulations of all past times. One of its outflowings, called the common law, is traceable back through mists of English history, and this it is which concerns us. Another division, called the civil law, has descended to the present generation through the older and later Roman governments; and it is the same from which the jurisprudence of modern Europe is mainly drawn. It has slightly augmented the common law of England; contributed the principal element in the civil, not the criminal,1 law of Scotland; and, with our common law somewhat interming

1 Hume considers, that the civil department of the law attained a greater degree of perfection among the Romans than the criminal. And, speaking of Scotland, he says: "6 Accordingly, although our lawyers have been in the use of resorting to the Roman Code for a confirmation of their arguments in criminal matters; and though of old they even sometimes set it forth in the preamble of indictments as law (in like manner as they did the Canon and the Jewish laws); yet I cannot find that the imperial constitutions ever were incorporated into our municipal system, or were held to possess an au