It is The Law of Nations furnishes another illustration. everywhere acknowledged; but nations have no common civil tribunal to expound and enforce it, therefore they interpret it among themselves by the light of reason, and execute the decree by a resort to arms. So, 3 Laws not change with Government. A country conquered or ceded to another does not thereby lose its laws; but they remain in force as before, liable only to be superseded by new laws should the new power elect.2 It is the same when a new organization of government follows a political revolution, or when a new constitution is adopted in one of our States. So also in the case of a great rebellion, hostile acts and legislation against the rightful government are void, but the ordinary laws not connected therewith remain, and new statutes not in aid of it survive its suppression.5 On the same principle, Emigrants to an uninhabited country carry along their laws, which go with them step by step from the mother country, and constitute the rule of action and dealing as well before a government and courts are established for their enforcement as afterward.6 § 15. The Law which precedes Government is not the unmodified primary right furnished by God for human use; but, foreshadowing the cultivated jurisprudence, it is more or less mingled with earthly devices, and restrained in its operation by technical rule. And so it should be. The same reason which casts upon man the labor of cultivating the soil, supervising the growth of its fruits and its grains, and preparing them for the 11 Kent. Com. 2. 2 U. S. v. Power, 11 How. U. S. 570; McMullen v. Hodge, 5 Tex. 34; Cass v. Dillon, 2 Ohio St. 607; Chew v. Calvert, Walk. Missis. 54; Leitensdorfer v. Webb, 20 How. U. S. 176, 177; American Ins. Co. v. Canter, 1 Pet. 511, 542; U. S. v. Perot, 98 U. S. 428. See also Fowler v. Smith, 2 Cal. 39. * Shaw, C. J. in C. v. Chapman, 13 Met. 68, 71; S. v. Cawood, 2 Stew. 360, 362. 4 Cass v. Dillon, 2 Ohio St. 607. 6 Horn v. Lockhart, 17 Wal. 570; Williams. Bruffy, 96 U. S. 176, 192; Stevens v. Griffith, 111 U. S. 48; Pennywit v. Foote, 27 Ohio St. 600, 621, 22 Am. R. 340; Luter v. Hunter, 30 Tex. 688, 98 Am. D. 494; Canfield v. Hunter, 30 Tex. 712; Culbreath v. Hunter, 30 Tex. 713; Levison v. Krohne, 30 Tex. 714; Arceneaux v. Benoit, 21 La. An. 673; Watson v. Stone, 40 Ala. 451, 91 Am. D. 484; Michael v. S. 40 Ala. 361; Central Rld. . Collins, 40 Ga. 582; Reynolds v. Taylor, 43 Ala. 420; Ray v. Thompson, 43 Ala. 434, 94 Am. D. 696; Winter v. Dickerson, 42 Ala. 92; S. v. McGinty, 41 Missis. 435, 93 Am. D. 264. See Hedges v. Price, 2 W. Va. 192, 94 Am. D. 507; Thornburg v. Harris, 3 Coldw. 157; Leach v. Smith, 25 Ark. 246; Woodruff e. Tilly, 25 Ark. 309; Baily v. Milner, 35 Ga. 330; Scudder v. Thomas, 35 Ga. 364. 61 Bishop Mar. Div. & S. § 116-127; Bishop First Book, § 43-59. table, demands of him also the labor of moulding the primary right into laws, before it constitutes, even in a rude age, the accepted full guide for his conduct. The laws need not, to perform their functions, be written, or passed upon by vote, or even in any way be ordained in words; for a tacit recognition and assent are, in essence, the same as a formal. 1 § 16. Primary and Technical Rules blend variously. - One of the chief labors of legal science is to ascertain the distinction already mentioned, between the law which the courts enforce and the law which they decline enforcing. The rules concerning this distinction vary with the time and the country in which the court sits. And otherwise the manner and degree in which man's technical rules and God's primary right blend, differ with the age, the country, the circumstances of the people, and their enlightenment. But Will be enforced. 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. 2 § 17. Administering Natural Law. It cannot be otherwise than that opinions will vary with the age and people, as to how much of the law of nature shall be administered in the courts. But, said a learned judge, "every nation must of 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." And however some deprecate what they term arbitrary power in judges, who decide causes upon laws not written in the statute-books, such 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 withholding the right in every case which the legislature had not foreseen. These § 18. Law for New Case Judicially Manufacturing. views show the absurdity of the charge sometimes made that our tribunals manufacture law. Law preceded writing, and no writing can be comprehensive enough to include all law. And no blundering of a judge is so monstrous as the denial of right to a 1 See ante, § 10, 11. 2 Turley, J. in Jacob v. S. 3 Humph. 493, 514. suitor who is simply unable to find his case laid down in the statute-book, or in a previous decision. Our tribunals commit many more errors by refusing to deal out the justice which the general principles of our jurisprudence and the collective conscience of mankind confessedly demand alleging in excuse the want of a statute or a precedent — than in all other ways combined. Not thus was it anciently, when the courts of our English ancestors decided controversies with but few statutes and precedents to aid them; deriving principles for their decisions from the known usages of the country, and from what they found written by God in the breasts of men.1 And because it was not thus formerly, it should not be now. For by admitted doctrine, the judges should not decide from their individual fancies, but by the law as they find it; and we see that the law, as the judges find it, commands them to go in proper cases outside the statutes and prior decisions, for principles on which to adjudicate the particular matter before them. Precedents. - These § 19. Further of New Cases views will appear more important to the reader in proportion as he becomes truly acquainted with what has gone before in our jurisprudence, and contemplates the ceaseless variety of change in human affairs, presenting questions as new to-day as were those which came up for decision a thousand years ago. Therefore, though the courts properly adhere to precedents, yet it is as true now as it was in the earlier periods that precedents have not covered the entire ground. And it is absurd that a question between man and man, or between a man and the community, should depend, neither on the abstract right, nor on the practical convenience or propriety of 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! 2 § 20. Expansions of the Law. In the vast complications of affairs, requiring new applications of old principles continually to be made; in the measureless range of thought, bringing new doctrines out of events new and old; in the immense fields of 1 In an old case, one of the counsel said that he had searched the books, and "there is not one case," &c.; to which Anderson, C. J. responded: "What of that? Shall not we give judgment because it is not adjudged in the books before? We will give judgment accord ing to reason, and if there be no reason 2 And see post, § 35-37. See Bishop human exploration, luminous with the light of every species of science, over which the race is always travelling; in the unlimited expansibility of society, developing new aspects, new relations, new wants; in the fact that although the reported decisions are numerically considerable, they embrace but comparatively few even of the questions which have arisen heretofore; in the 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 question comes before the courts it is really a call for a new enunciation of legal doctrines; and that from the past we gather merely a few rays to guide us in the future. We learn that both the old light and the new point to the way of principle for the settlement of all new cases where particular precedents fail. - Conclusion. § 21. Sketch of Wider Field These views of the nature and sources of jurisprudence comprehend what is here to be said on this branch of our subject. If space permitted, we could profitably enlarge them much. There remain regions into which we have not even looked. There are the rise and progress of the different systems of laws, the origin of their respective rules, -the influence of morals, of manners, and of religion upon each system, the scientific and the practical view of each, the weight given to judicial decision in each, and unnumbered other things of the like general sort; but only as the common law, in conjunction with the written constitutional and statutory laws of our own country, presents itself to us in the following investigations, can we examine these things. Nor, if we could, should we derive from the searching into other systems much useful assistance in the labor of learning 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 any one man has yet gathered in the entire juridical field of the world. And if, in the attempt to extract the sweet from this unsightly heap, the author might hope for any near approach to success, it alone would be an aspiring to what no single writer on any system of laws ever, in fact, accomplished. CHAPTER II. INTO WHAT CLASSES GOVERNMENTAL LAW IS SEPARABLE. § 22. The Law as a Unit. - There is a sense in which the law of the land meaning the law of human association as recognized among us and enforced by the governmental powers - is an entirety, without seam or division. The several parts of it, if we speak of parts, are alike authoritative over us all; and when the whole is rightly construed and carried into practical effect, there is no conflict between the parts. But § 23. The Laws as diverse. In another sense, there is a diversity. Our laws are derived from different immediate sources, and administered by different functionaries. This to a certain extent is so also in other countries; but we have one. peculiarity little known elsewhere, exerting a decided influence, and presenting complications not always readily understood. It is National and State. We who live in particular States, constituting the mass of our people, are under a double government and a double set of laws, each of which governments is supreme and sovereign within its sphere, and the laws emanating from each are alike binding upon us. The government of the United States is larger in its sphere than the governments of the several States; while, on the other hand, the State governments for the most part descend to minuter things. § 24. Written Constitutions. In this country also, unlike most others, and particularly unlike England whence we derive our unwritten laws, we have written constitutions circumscribing the legislative power. There is a written constitution of the United States, and each State has its written constitution. No State law can be valid if in conflict with either. A national law, to be of effect, must not be in violation of the Constitution of the United States. But no constitution, statute, local custom, or other law written or unwritten, of any State, can under |