! variety of laws; as the law of extension, the law of gravity, and the like; but it presents nothing whereof we can take cognizance, except the action of these laws. And the soul of a man, like the particle of matter, presents its peculiar laws, by whose action alone we understand 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 a single soul lives, or the laws of a particle of matter, were violated, there must be necessarily a disturbance of what before was, a disturbance in all the thing to which the violation related; and this disturbance is the penal sanction given to the laws. Consequently a law, the violation of which was not attended by the disturbance, would be no law. § 4. We therefore see, that law, with its punishment, is anterior to organized government. Before the formation of the government, it is enforced by the party more immediately aggrieved pursuing the wrongdoer, or by a company of individuals spontaneously uniting to enforce it, or by such other means as a rude state of society brings about. But these modes of administering justice are uncertain, inadequate, and perilous to the peace of the community; so that, as civilization advances, some one takes into his hands the enforcement of the laws, and the power, under the name of king or chief or patriarch of his tribe, to modify or change them, as circumstances may require; or sometimes, as in the United States, the people establish a government for themselves. Yet this view is rather a philosophical than a precisely accurate historical one of the matter; for historically the methods variously blend; as, for instance, the laws are partly enforced by a feeble and vicious government, and partly by the arm of private revenge. But the establishment of the government neither obliterates the law which before was, nor changes it; being modified only by the act of governmental organization, or by decree or statute of the government itself. § 5. The government, however, does not take cognizance of all the law (using this word in its larger sense) existing in the community. For instance, the law everywhere prevails, that a person civilly spoken to shall return a civil answer; but no court would entertain a suit to enforce its observance. The party aggrieved may inflict a mild punishment, such as to decline speaking to the offending person; but, if he goes beyond certain limits, the legal tribunals will interfere. A case of such interference occurs, where, for an affront not cognizable by the courts, but a real breach of the law of honor, the injured one undertakes to meet the aggressor in a duel. If death ensues, the government says the penalty was beyond the jurisdiction of individuals to inflict, and so holds the one killing to be guilty of murder. § 6. Therefore the student of our jurisprudence has to inquire, alike what is the law which existed anterior to the government, how it has been modified and changed by subsequent custom and legislation, and 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 may be arranged in many other classes. Thus, the courts entertain suits for the violation of contracts; but, if the party bringing a suit has no interest in the question,2 or if the contract is illegal or immoral, and the plaintiff is parti ceps criminis in it, and so comes not with clean hands, he will be dismissed; not because the matter is too small or otherwise improper for judicial investigation, nor because the defendant is in the right, but because the plaintiff has no 1 Blackstone says, that 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." And so, in England, the court of chivalry, now abolished, used to take cognizance of it. 3 Bl. Com. 104. * 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 Maine, 322. 3 Bishop Mar. & Div. § 388. proper status to complain. So the wrong may be of sufficient magnitude, and the plaintiff meritorious; but, for some other reason, it may be against good policy to sustain the action. An example of this is seen in the maxim caveat emptor,1 as applied in the common law. The meaning of which maxim with us appears in substance to be, that if, without fraud or warranty, one purchases of another an article or estate open to inspection, he cannot ordinarily recover any thing of the seller by reason of failure in the title, if it is real estate, or defect in quality, whether the estate is real or personal; though he had in fact made the purchase confiding in the seller's erroneous representations, and so parted with his money without receiving the return mutually contemplated; the reason being, according to the better opinion, not that the vendor has acquired any just right to retain the money, but because a denial of the other's demand to recover it would promote the public good, by educating men to be sharp and cautious in trade.* In the civil law, this policy seems not to prevail; and it therefore permits the buyer to get back, what, according to both systems of jurisprudence, he is entitled to receive.3 § 6 a. Whether the civil or the common law embodies the purer wisdom, in its application of the maxim mentioned at the close of the last section, is a question of a class not for discussion in a book treating of either system of laws as actually administered. Therefore, in unfolding our common law as received in our courts of justice, we shall not indulge often in discussions of this nature. And though we shall not unfrequently look for light toward those original rays which the Father of Lights has given us, we shall not be 1 Broom Leg. Max. 2d. ed. 506–538. * The meaning of the words common law and civil law is explained, post, § 9, 10. * See Seixas v. Woods, 2 Caines, 48; 2 Kent Com. 478, et seq.; Rawle Cov. Title, 1st ed. 458, et seq.; 1 Smith Lead. Cas. 77, and the American notes. deemed recreant to the duty of a commentator on the law as it is, if sometimes absolute infringements of the original right, established by judicial rule, are suffered to pass in our statements of the law, without mention of their inherent deformity. § 6b. In all countries the laws take cognizance of the original right; in all, they recognize the necessity of conventional limitations and definings of the right; while in nothing do men differ less than in their understanding of the original rules. Therefore the technical limitations of rules constitute the chief inherent differences in the different systems of cultivated jurisprudence. Even religion herself wears a becoming uniformity in her doctrines of the primary truth and duty; while her earthly part divides itself into as many sects as ingenuity can invent. § 7. In the 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 the people were living without any thing which might in some 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 atmosphere, pervades human society always, without leaving any vacuum, be there a government or not, is illustrated in daily examples before us. Thus, in the recent sudden settlement of California, before a governmental organization was made, law was there recognized, and was enforced under the severest penalties. And in the law of nations we have an illustration in point: international law is everywhere acknowledged; but nations have no common civil tribunal to expound and enforce it,1 and so they interpret it among themselves according to the lights which reason gives them, and execute the decree by a resort to arms. When a country is conquered, or ceded to another country, there being already in it a sys 11 Kent Com. 2. tem of laws, these are not overturned by the change of gov- $7 a. In the consideration of questions like those mentioned in the last section, there is room for the inquiry, whether the law which pervades the associations over which government is not established, is the primary law of nature, or the law modified by human rules. Supposing it to be the latter, no doubt arises that it is the particular modification of it under which the inhabitants had before lived; for plainly it must be. But it must also be this modification in distinction from the pure law of nature; because natural municipal law, quite unclothed by man, does not exist on the earth. Unwise people indeed have argued, that our physical bodies should go without human apparel, because they came thus into the world from the Maker's hand; and that we should eat uncooked food, because the mother earth produces no other. The wise view however is, that He who gave us our bodies and their food, gave us also human understanding to use the 1 United States v. Power, 11 How. U. S. 570; Texas, 34; Cass v. Dillon, 2 Ohio State, 607. 2 McMullen v. Hodge, 5 * Shaw, C. J., in Commonwealth v. Chapman, 13 Met. 68, 71; The State v. Cawood, 2 Stew. 360, 362. When a State of the American Union changes its constitution, the change does not abrogate prior laws not repugnant to the new constitution. Cass v. Dillon, 2 Ohio State, 607. 'The law, however, cannot be judicially enforced until the establishment of judicial tribunals, and in this sense it remains in abeyance. Bishop Mar. & Div. § 19. |