other is thereby revived, without any express words. (a) The time when statutes shall take effect is a matter of great importance. In England, they formerly took effect from the first day of the session; that is, before they were actually enacted, which is absurd. Here, unless some other time be provided, they take effect from their date; and consequently before they can possibly be known. In particular cases, this evil is obviated by specifying a future day; but by omitting to do this, great hardship is often occasioned. As it is the essence of the law that it should be known before it binds, there ought to be some general regulation, as in France, fixing a day so distant that every person may know what is enacted if he will. And in the mean time the most ample provision should be made for promulgation. I do not mean that copies should be sent to every citizen. This would be a useless expense, since all will not read them. But they should be so distributed as to be conveniently accessible to all. (b) The duty of superintending their publication usually belongs to the secretary of State, who has the custody of the originals; and the general practice is to publish them in certain newspapers, as well as in pamphlets. Copies of the latter are furnished to public officers only. Private persons are left to supply themselves as they may. This arrangement might answer the purpose if legislation were reasonably stable; and from the provision made to secure deliberation, through the forms of enactment, we might naturally suppose that statutes would be so well considered and carefully worded, that when once enacted they might stand for years without alteration. Indeed this is for the most part true of the legislation of Congress; but our State legislation has been exceedingly fluctuating.

§ 18. Unwritten Law. (c) It may sound strange to unpractised ears that there should be such a thing as unwritten law; for if there be one thing, which, above all others, demands all the certainty and precision which human ingenuity can attain, it is the law which governs us. Accordingly the three divisions of written law which have just been described, are required to pass the most searching scrutiny before their consummation as written law. And the question may naturally be asked, why we should have any other? Having organized a distinct department of government for the sole purpose of enacting laws, why should we recognize any other than those thus enacted? It is indeed true, that our political theory seems, at the first glance, not to require, or even tolerate, unwritten law. The very terms appear to involve an absurdity.

(a) See Commonwealth v. Churchill, 2 Metcalf, 118; but as this result is often unintentional, it would seem wise to enact the contrary, requiring the revival to be by express words, as has been done in this State. See Milne v. Huber, 2 McLean,

212.

(b) In Massachusetts it is provided by law that immediately after the close of each session of the legislature, copies of the general laws and resolves passed at such session shall be published at the expense of the State, and distributed in the proportion of one to each family, or eight inhabitants, in the several cities and

towns.

(c) See 1 Black. Com. 63-84; 1 Kent, Com. lec. 21, 22.

They do not, however, signify oral law; but law which has never been enacted in the shape of constitutions, treaties, or statutes. And strange as it may appear, unwritten law, as thus described, constitutes by far the greater portion of that entire body of law by which our rights are regulated. It consists of two great divisions, common law and equity, each of which I shall describe, beginning with the former.

Common Law. (a) This is said to be unwritten, because there is no record of its formal enactment. It is sometimes pretended that it consists of statutes worn out by time, their records having been lost. It also called a collection of customs and traditions commencing in immemorial times, acquiesced in by successive generations, and gradually enlarged and modified in the progress of civilization. The true account, however, is, that it is the stupendous work of judicial legislation. Theorize as we may, it has been made from first to last by judges; and the only records it ever had, are the reports of their decisions, and the essays, commentaries, and digests founded thereon. To explain its formation, we may suppose a question to have arisen in England, centuries ago, respecting which the written law contained no provision. Upon presenting this question to the judge, he must either let a wrong go unredressed, or make a law to meet the exigency. He chose the latter alternative; and in making up his decision, sought light from every available source. If a case exactly similar had before. been decided, he would naturally adopt the decision then made. Or if an analogous case could be found, he would adopt its principles so far as they would apply. (b) If neither of these, he would consult public policy and the abstract principles of natural justice. He would, moreover, be assisted by the arguments of the opposing counsel, who would present the case in all its bearings. With these aids, and in this manner, he would make up his decision; and if no sinister motives operated, the presumption is that it would be on the side of abstract right. Such briefly is the process by which the vast fabric of common law has been reared. A succession of judges, during a long lapse of years, have contributed the results of their reason and learning to elaborate and perfect it. In its theory, each successive adjudication has become a precedent for all similar cases involving the same principle; and it is obvious

(a) See 1 Story, Const. § 156-158; Lindsley v. Coates, 1 Ohio, Rep. 245, 312; Dawson v. Porter, 2 Ohio, Rep. 305; Sackett v. Sackett, 8 Pickering, 309; Patterson v. Winn, 5 Peters, 233; 8 Peters, 687.

(b) In deciding causes, it is the custom of judges to deliver opinions, in which they give the reasons for their decisions often at great length, and sometimes diverging from the point in issue and discussing questions not necessarily involved in it. Such opinions may be entitled to respectful consideration according to the learning and ability of the judge, and the attention bestowed by him at the time on the subjects discussed. But they are entitled to weight as authority only so far as they were necessary to the determination of the right or title in litigation between the parties. All discussions of this character upon points whose adjudication is uncalled for, are termed obiter dicta. This distinction may aid the student, as he consults the reports, to separate what may be regarded as adjudged, or settled by a judicial decision, from what remains open for further argument and consideration.

that just in proportion as precedents are multiplied, the number of unprecedented cases must be diminished. Legislation, moreover, has been constantly supplying deficiencies. It follows, therefore, that the field of judicial discretion, almost boundless at first, has been gradually but steadily narrowing. Still, however, admitting precedents to be absolutely binding, which is not the fact, though it is the theory, judges even at this day exercise a far wider discretion under the common law, than is usually supposed by those not conversant with the subject. And to this extent there is not that complete separation between the legislative and judicial power, which the theory of our government supposes.

The common law thus slowly matured into a system in England, was introduced into this country by the first colonists, together with the statutes by which it had then been modified, so far as applicable to their condition. This was at first a matter of necessity; and when the colonies became independent, the system, which in the mean time had been much improved under their own legislation, was retained from choice. The new States, with the exception of Louisiana, which has preferred the civil code, have adopted it from the old; so that the common law now prevails generally throughout the Union. Nearly all our technical terms and forms of proceeding are borrowed from it and defined by it. Where a question arises concerning which our written law is silent, we consult the reports, beginning with those of our own State. We pass thence to the other American reports, and finally to the English reports, searching back to the earliest times. If none of these settle the question, we seek light from the civil law, or from any other source which can furnish it. The whole number of English reports, digests, abridgments, and other works, containing the common law, may be set down at more than one thousand volumes; and the number of corresponding works in this country at five hundred; so that the principles of common law are to be sought for through fifteen hundred volumes. (a) The epoch down to which the English common law is to be received in this country, has been a matter of much doubt. Should it be the settlement of the country, the Declaration of Independence, or the present moment? The general sentiment has been, that it should be the settlement of the country. In truth, however, there is a great reluctance in recognizing the English common law as of absolute and binding authority down to any period. The doctrine repeatedly declared by our judges is, that they will be bound by it, only so far as they consider it suited to our state of society and form of government. (b) The only certainty, therefore, is, that we have something which we call common law, scattered at random over a vast surface. But precisely what it is, or how far it extends, is hidden in the breasts of our judges, and can only be ascertained by experiment.

(a) Mr. Wallace, in his book entitled "The Reporters" (1855), puts the number of reports at two thousand.

(b) Bloom . Richards, 2 Ohio State, 390; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio State, 177, 178.

Equity. (a) In its literal acceptation, equity is nearly synonymous with justice. But in its technical sense, it means chancery law; or that system of rules by which courts of chancery are governed in the administration of justice. It had its origin in the deficiencies of the ancient common law; which, by reason of the paucity of its then settled principles, and the inflexibility of its forms, could not so shape and modify its remedies, as to meet the circumstances of each particular case. When therefore the law furnished no remedy, or only an inadequate one; or when its rigorous enforcement would work positive injustice, the party thus aggrieved, assuming the attitude of a suppliant, petitioned to the king in person, as the fountain of justice, for relief. But it soon became inconvenient for the king to give personal attention to these petitions, and he referred them to an officer of his household called a chancellor. The office of chancellor, nominally derived from the Roman Empire, was at first purely ecclesiastical. The chancellor was the king's spiritual adviser or conscience-keeper, and had the custody of the great seal. Being of course distinguished for his learning and probity, it was natural that he should be thus selected by the king as the dispenser of his justice, and accordingly petitions were now addressed to him in the first instance. It therefore became necessary for the chancellor to adopt a system of rules and forms of proceeding; and as the civil law was then a part of clerical education, he borrowed from it as far as he could. Being at first without precedents, he acted according to his own ideas of natural justice, doing what he thought conscientiously right. He professed, indeed, to entertain jurisdiction of petitions, only when the law furnished no adequate remedy; but being the exclusive judge of this, comparatively ignorant of the common law, and one of a class notoriously ambitious to increase their power in the State, he construed this limitation very liberally. A writ of subpoena was soon devised to bring parties complained of before him, which, in those superstitious times, they feared to disobey; and thus a regular court of chancery became gradually established. As early as 1394, its authority was recognized by parliament, though no record is preserved of its proceedings earlier than 1420. But in an age of bigotry, with the suffrages of the church in its favor, its influence extended so rapidly as to excite the jealousy of the courts of law; and about the year 1616, a bitter controversy grew out of this rivalry. By this time, however, the court of chancery, though founded upon usurpation, was too firmly established to be overthrown. But by way of concession to public sentiment, it gradually became separated from church

(a) See 3 Black. Com. ch. 47; 1 Kent, Com. 489; 1 Story on Equity, ch. 1, 2; article by Charles Sumner, 10 American Jurist, 227; the Introductions to Jeremy and Fonblanque on Equity; and the very admirable treatise of Spence on the Equitable Jurisdiction of the Court of Chancery, which traces the principles of Equity to their sources.

influence by the selection of chancellors from the most eminent lawyers. Under their administration, its rules and forms have been improved, extended, and systematized, until they constitute, under the name of equity, one of the most regular and important branches of jurisprudence. The chancery system thus matured in England has been introduced into this country; not, however, so universally as the common law. In some of the States, as Pennsylvania and Massachusetts, only a few special chancery powers are conferred on the courts of law. (a) While in others, as New York and Virginia, the entire system has been adopted. The federal and some of the State constitutions reconize chancery powers in their fullest extent, but require them to be exercised by the same tribunals which administer the law. The same persons therefore officiate both as chancellors and judges; but the two jurisdictions are kept as distinct from each other, as if administered by different persons.

The general nature of equity, and the points wherein it differs from law, strictly so called, cannot be fully explained, until we come to consider the forms of proceeding. It resembles the common law, however, in being a mere collection of precedents, established by successive chancellors, during a long series of years, and treasured up in the reports of their decisions; and the precedents, thus established, are regarded as binding to the same extent as they are in law, but no further. Hence we perceive the fallacy of that popular notion, countenanced indeed by the early definitions, that equity consists in the application of moral principles to human transactions, without reference to positive regulations; that it ad dresses itself to the conscience of the chancellor, who administers relief whenever there is an honest claim; in short, that equity is something independent of law, and exercising a dispensing power over it. This may have been partially true at first; but conscience is now no more the guide of the chancellor than of the judge. Neither may decide according to his feelings. Such discretion would not be tolerated in any magistrate under a free government. In fact, the highest conception that can be formed of either a judge or chancellor, would be that of a pure intelligence, fully comprehending all legal principles, and utterly divested of passion or sympathy. If a statue could be imagined to have a mind, but no heart; an intellect, but no feeling; in a word, to be endowed with the single capacity of deciding unerringly what the law is, in every case, it would be a perfect chancellor, as well as judge; for just in proportion as this icy standard is approached, both become faultless ministers of justice, in their respective departments. But while equity agrees with law in being a system of precedents, it differs essentially in the modes of proceeding. These are

(a) The Supreme Judicial Court of Massachusetts has now "full Equity jurisdiction, according to the usage and practice of Courts of Equity, in all cases where there is not a plain, adequate, and complete remedy at law."