law of nature, the law of nations, the law of politeness and good society, the municipal law of the particular country, the law (as in England) of the unwritten constitution, the law (as in this country) of the written constitution, and so through the rest.1 Therefore

§ 3. The Municipal, Constitutional, and other like laws which govern nations and communities are in their origin and intrinsic force rules of being given to man by God. But though originating in the Maker, man took them as he did the air, the streams, the soil, and their productions, to use, and in a limited degree to form and transform, at pleasure. So that practically the laws, in the sense in which a legal author employs the term, are a blending of the perfect and imperfect, in part the work of God, and in part the work of man. It cannot be otherwise than that the stream of the Primary Wisdom should sometimes become mingled with impurities while flowing through earthly channels; and the divine rule itself provides for human modifications of the abstract, adapting it to particular circumstances, views, and wants. And whether the modifications accord with the original right or not, they are alike permitted as laws, being in the one case acts of well-doing, in the other of evil-doing. 2 § 4. The Legal Author, writing for practical instruction, is not expected to trace every law of the land upward to its source in the Infinite Wisdom, and show whether and to what extent human hands have bent the original beam of light. Yet all who

1 Similar is 1 Bl. Com. 38.

2 Other Definings.-Not often is a word of such wide meaning as "law" employed by a writer in its broadest sense. Nor often do we find it in this sense defined. Our books give us numerous definitions of law, each good from its own standpoint, yet in words differing from the rest. Blackstone's definition of "municipal law," not taking into the contemplation its divine source, is not antagonistic to my text. He says it is "a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." 1 Bl. Com. 44. It would render this definition more nicely accurate to say "prescribed or recognized," instead of "prescribed" alone; for the greater part of the laws of every State preceded the State itself, and what

the government did was simply to forbear changing them. Hooker, not writing of municipal law, observes in a much-admired passage: "Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world: all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power." Bartlett's Fam. Quot. 8th ed. 18. If we deem this a definition, we cannot say that it differs from Blackstone's, but the picture which constitutes the defining is from a different standpoint. So, taking another view, yet an even more practical one than Blackstone's, our law is a system of reasoning, proceeding from a foundation of natural right, accepted usage, statutes, and judi cial precedents, considered in combination

deal with our law should keep in mind its high origin; and not unfrequently an appeal thereto will settle a question of difficulty or doubt. In the beginning of our jurisprudence, the courts of necessity decided causes to a greater extent than now by what was supposed to be natural justice; and even now, while precedents are numerous, the voice of God, uttering the abstract right, is listened to by every good judge and by the legislature. Partly to repeat,

§ 5. Law a Necessity. No two human beings can exist together without rules of association, or law. For example, it must be a rule that neither shall occupy the space which at the same moment the other does: a violation of this rule would end the physical lives of both. Again, neither shall attempt to take the other's life: this rule cannot be set aside and the association continue. So if not only they would exist together, but be mutually happy, they must obey laws tending to promote this object; as, that neither shall assault the other, or use language wounding the feelings of the other. And the further they carry this class of rules, the more will be their enjoyment, which will be complete only when, following the injunction of Holy Writ, each loves the other as himself.

§ 6. Penalty essential to Law. By law, as the word is here used, is meant, not merely the precept, but the penalty also. Indeed, law, without punishment for its violation, is in the nature of things impossible. It is as though we were to speak of an earth without matter, an atmosphere without air, an existence without existence. If no two human beings can dwell together without rules of association, so neither can they without the penal sanction practically enforcing them, whether themselves cognizant of the fact or not.

§ 7. Why Law must always exist. Some deem that there will yet be a condition of society wherein human laws, as they term rules binding associated men by penal sanctions, shall cease. But this is impossible; because, as admitted, every infancy must have rules of being and penalties for their violation, and a nature originally given is not changed by growth and development. Man, indeed, may learn to avoid the punishment: but the law, which includes the punishment, abides.

§ 8. Further of Rule and Penalty combined. If we should imagine any existence, mental or physical, to be without law,

it could not be made palpable to our reason; because our only cognizance of anything relates to the action of its laws of being. A particle of matter presents to our understanding a variety of laws; as, the law of extension, the law of gravity, and the like; but nothing else. And the soul of a man, like the particle of matter, has its laws, from whose action alone we learn that it exists. And when men come together in communities of many souls, we only know the fact of their association from perceiving the effects of the laws of their combined being. Now, if the laws which bind them together, or the laws under which one man lives, or the laws of a particle of matter, are violated, there is a disturbance of what was before, in all the thing to which the violation relates; and this disturbance is the penal sanction of the laws. Consequently a law, the violation of which was not attended by the disturbance, would be no law.

§ 9. Law anterior to Government and how enforced. We therefore see that law, with its punishment, is anterior to organized government. It is then enforced by the aggrieved party pursuing the wrong-doer, or by individuals uniting to enforce it, or by other means springing from a rude state of society.

Law the Parent of Government. But all irregular and mere private modes of administering justice are uncertain, inadequate, and perilous to the peace of the community. Therefore, as civilization advances, some one takes into his exclusive hands the enforcement of the laws, and the power, under the name of king, or chief, or patriarch of his tribe, to modify them as circumstances require; or sometimes, as in the United States, the people establish a government for themselves. Yet this view is rather philosophical than historically accurate: for historically the methods blend; as, the laws are partly enforced by a feeble or vicious government, and partly by the arm of private revenge. But

Effect of Government on Law. The establishment of the government neither obliterates the law which before existed, nor changes it, being modified only by the act of governmental organization, or by decree or statute of the government itself. § 10. Limit of Governmental Cognizance of Law. The government does not take cognizance of the entire law of human association. For example,

Etiquette

Honor. The law, in the broad meaning of the

word, provides that a person civilly spoken to shall return a civil answer; but no court will entertain a suit to enforce this provision. The party aggrieved may inflict a mild punishment, such as to decline speaking to the offending person; yet a step therein too far will bring interference from the legal tribunal. A case whereof occurs when, for an affront not cognizable by the courts, but a real breach of the law of honor, the injured one meets the aggressor in a duel. The penalty of death is beyond the jurisdiction of the individual to inflict; and he who resorts to it commits murder.2 Therefore

1

§ 11. Further of Limits. The student of our jurisprudence has to inquire, not alone what is the law which God created for man, or simply also how it has been modified by the dwellers in the particular country, but likewise when the courts assume and when decline jurisdiction to enforce it. Cases in which the jurisdiction is declined are not alone those wherein the offence is too trifling, or not adapted to legal investigation, but they are of many other classes besides. Thus,

No Interest. A court will not entertain the civil suit of one who has no interest in the question, or who has not suffered, whatever injury the defendant may have inflicted on others. Or,

Wrong Mutual. If the plaintiff was partaker with the defendant in the wrong he complains of, so that he does not come into court with clean hands, he will be dismissed, however much or unjustly he may have suffered.1 Or —

Policy of Law Caveat Emptor. For some other reason the policy of the law may forbid an action though the plaintiff has been injured by the defendant, and he is not himself in the wrong. It is so according to some views of the maxim caveat

1 Blackstone says, honor is "a point of a nature so nice and delicate that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere." Therefore, in England, the Court of Chivalry, now abolished, used to take cognizance of it. 3 Bl. Com. 104. Grotius: "Honor is an opinion of one's own excellence; and he who bears such an injury shows himself excellently patient, and so increases his honor rather than diminishes. Nor does it make any difference if some corrupt judgment turn this virtue into a disgrace by artificial names; for those perverse

judgments neither change the fact nor its value. And not only the ancient Christians said this, but also the philosophers, who said it was the part of a little mind not to be able to bear contumely." Grotius de Jure Belli et Pacis, ii. 1, 10, 2 Whewell's ed. vol. i. p. 215.

2 Vol. II. § 311.

Bishop Non-Con. Law, § 22, 32, Actio non datur non damnificato. An action is not given to him who has received no damage. Jenk. Cent. 69. See also Nichols v. Valentine, 36 Me. 322.

42 Bishop Mar. Div. & S. § 344, 345, Bishop Non-Con. Law, § 54-64.

emptor 1 as applied in the common law. According to which, in various circumstances one cannot recover back money which he has paid for what is found to be a void title; the reason appearing to be, not that the vendor has any just right to retain the money, but that a denial of the vendee's demand of it will promote the public good by educating men to be sharp and cautious in trade. In the civil law, this policy seems not to prevail; therefore it permits the buyer to reclaim what, according to both systems of jurisprudence, truly belongs to him and not to the seller.2 Now,

§ 12. Differing Technical Rules. These illustrations show how, when man has appropriated God's original right, and transformed it into municipal law, it differs in different countries, and presents in all a seamed and broken aspect. Still, § 13. Technical Limitations of Original Right. In all countries, the laws take cognizance of the original right; in all, they recognize the necessity of conventional limitations and definings of it; while in nothing do men differ less than in their understandings of what are the original rules. Therefore the technical limitations of rules constitute the chief differences in the varying systems of cultivated jurisprudence. Even Religion herself wears a becoming uniformity in her doctrines concerning the primary truth and duty; while her earthly part divides itself into as many sects as ingenuity can invent.

In the

§ 14. Law further distinguished from Government. foregoing outline, we have supposed fewer steps in the progress of mankind than have in fact been taken. We cannot absolutely trace any community back to a time when it had nothing which might in any sense be termed a government; yet we see something of this, even at the present day, in rude and barbarous nations. But the principle that law, like the atmosphere, pervades human society always, without for a moment leaving any vacuum, be there a government or not, is illustrated in daily examples before us. Thus,

In our New Settlements, - when there has been no time to establish a government or organize courts, law is recognized, and enforced under the severest penalties.

1 Broom Leg. Max. 2d ed. 506–538. 2 See Seixas v. Woods, 2 Caines, 48, 2 Am. D. 215 & note; 2 Kent Com. 478

And

et seq.; Rawle Cov. Title, 1st ed. 458 et seq.; 1 Smith Lead. Cas. 77, and the American notes.