times used to denote the whole body of a legislative act of whatever name or origin, and may not improperly be extended to embrace the entire map of what are denominated laws, taken attentively. It is in this latter sense that legislation is distinguished from jurisprudence. a

But it is not in the power of human intelligence whether combined in legislative bodies, or otherwise, to foresee and provide beforehand, for every combination of facts, or circumstances, which may occur in the infinite variety of human affairs. No human code; no body of legislators ever undertook to do this. No human wisdom could have accomplished such a task, if it had ever been undertaken. The lawmaker however desirous he may be to make his code complete, can only foresee and provide for classes of cases; and in doing this, he must rather be guided by the experience of the past, than by any faculty of discerning the future. b

There is accordingly, a large class of cases which are inevitably left unprovided for by every system of human legislation; and it becomes an interesting inquiry to determine how much has been actually settled by legislation, and the rules by which this fact is determined, and what are the rules of conduct, and what the measure of justice that applies to cases not included in the general provisions of legislation. The only answer that can be given to this latter inquiry is, that they are to be determined in each state or government, by what is called its jurisprudence, which is the administration of all the laws of the state including legislation. But jurisprudence, which consists in giving interpretation to, and in making application of statutes to particular cases, includes also the application of those precepts of natural right which have not been superceded by express legislation, and which therefore remain in full force as to all other circumstances and cases.

These precepts or principles of natural right, which are thus left unaffected by positive legislation, are those fundamental principles which are necessarily presupposed by every code, and by every act of legislation, general or special, while they are also rules to control legislation in the spirit of laws, determine when properly applied, what legal rights and duties have been violated, a Cushing v. The Roman Law, § 27. b Id. § 33.

and what ought to be done, in order that those whose legal relations are disturbed, may be placed, as near as may be, in the same situation in which they would have stood if the rules of right had been observed. This, equally with legislation, is a measure of justice. This is also jurisprudence. If a case is left wholly unprovided for by legislation or positive law, it is governed solely by the natural law; if in part only, then partly by the natural, and partly by the positive law. The natural law thus becomes the complement of positive legislation, and supplies its deficiencies, in reference to all cases which are either wholly, or in part only, regulated by its provisions.

Principles of jurisprudence, as above described, become developed in two ways or forms. The first occurs when the question arises in the mind of an individual as to what the law requires him to do in a particular case. When this happens, the party either determines for himself what he ought to do, or he applies for information to some other person, who makes it a business, or profession, to consider and advise in such matters. The principles which are thus developed, gradually assume the character of usages, and become a part of the customary law. The second form in which jurisprudence technically so called is developed,— occurs in the administration of justice. The cases which are decided in this way, become precedents or authorities for similar and analogous cases subsequently occurring. a

Legislation being the establishment, beforehand, of those general principles by which civil conduct is to be regulated; and jurisprudence, consisting of those principles which are developed in the application of the former to particular cases, it follows, that the latter will be more or less extensive, according as the former is more or less general or particular; jurisprudence being the most extensive when the law is most general, and least extensive when the law goes furtherest into details and particulars. Legislation, though usually general, may neverthless descend to minute details and particulars. When this is the case, it so far occupies the place which would otherwise be filled with jurisprudence Jurisprudence on the other hand supplying all that legislation leaves unprovided for in the administration of justice, and devela Cushing on Jurisprudence, § 40.

oping principles which serve as rules of conduct for cases subsequently arising, so far stands in the place, and performs the functions of legislation. a

It will thus be seen to be a most difficult task to establish the precise boundary which separates legislation proper, from what is properly called jurisprudence, and to attribute to each the exact domain to which it is appropriately entitled. An examination of codes and systems would probably show, that the great outlines, embracing those institutions which are peculiar to each, and which, to a certain extent, are political in their character, have been the work of legislation; while those parts which have their foundation in natural justice, and are the same, or nearly so, among all nations of the same rank in civilization, and which chiefly affect the relations of the citizens to one another, have been the product of jurisprudence.

The

The great and essential difference between legislation and jurisprudence, that which separates one from the other distinctly, is the manner in which they respectively become established. The former takes the place where the law making power discovers occasion for it; and its provisions are framed prospectively for such classes of cases as the legislator thinks most likely to occur. latter is only called into being when an actual case arises for its exercise, and is then adapted to the particular circumstances of that case. Legislation, when once established, becomes fixed and unalterable; and it receives no additions, but by subsequent legislation. Jurisprudence is constantly progressive, and continually enlarging and extending itself, as cases occur for its exercise, and adapting its principles to the social and political changes which are perpetually going on in society.

The French quotation, above cited by Mr. Dwarris, as also those which follow in this chapter, are a kind of preface to the code Napoleon. The importance of this code in the French system of jurisprudence for the time, and its value as continuing sound principles in the view of Mr. Dwarris, makes its history, perhaps, of interest to the student. The frequent revolutions in that country, based somewhat upon the oppressive institution of the state,-the privileges of the nobles, of the church,-and a vicious financial system,

a Id. 41.

seemed to have turned a portion of the popular fury against its legal institutions; and these were rendered the more odious by the acts of various assemblies, under different names, who exercised legislative power in a dictatorial and despotic manner. These new acts, by the new principles they asserted in effect, swept away all the former principles of what was called the jurisprudence of the state. '

About the year 1793, the celebrated lawyer Cambaceres, a native of Montpelier, who had risen to the highest eminence in his profession, proposed a code of laws, conceived in the spirit of the age to the then rulers, a body of men, who, it may be said, had cut their way with the dagger and the sword, to first and simple principles. In August of that year, he presented a draft of his code to the convention, entitled "Projet de Code Civile;" The work was too great, and too profound, to be deliberated upon at so stormy a moment, when the minds of the convention were too unsettled for an undertaking so important as the settlement of a legal system for the nation.

Two years later, in 1795, Cambaceres, then a member of the council of Five Hundred, presented to this body an amended pro ject of a code, which was ordered to be printed. Nothing decisive, however, was done by this convention towards the achievement of this great work.

On the overthrow of the Directory, by the revolution of the 9th November, 1799, the attention of the new consular government was immediately turned to the subject of a code. Bonaparte made it one matter of charge against the Directory, that they had not achieved a work so loudly called for by the spirit of the age, and the unsettled state of the jurisprudence of the country; and especially the great interest which Cambaceres, their second Cousul, had taken in his former efforts towards this end, and he (Cambaceres,) was then engaged by the first Consul to pursue the same design. Accordingly, in the course of the first year of the Con

NOTE 2. The data upon which the following observations are made, and some of its views adopted, are from a French author, (translated) entitled, Les cinq codes avec notes et traites pour servir a un cours complet de Droit Francais; a l'usage des Etudiants en Droit, et de toutes les classes de citoyens cultives." Par J. B. Liserf, Avocat aux conseils du Roi et a la cour de cassation, 8 vo., Paris, 1819.

sulate, a third project of a code, embracing the views of Cambaceres, was drawn up and presented to the government, by a commission of the council of Five Hundred, at the head of which was Jacqueminot, who was afterwards a member of the Senate under Napoleon.

Such was the condition of things, when Napoleon, by a consular decree of the 12th August, 1800, ordered a commission to be instituted "to compare the order which had been followed in the preparation of the projects for a civil code hitherto published, to determine the plan, which the commission shall think best to adapt, and to discuss the chief principles of civil legislation." This commission consisted of Messrs Portalis, Trouchet, Rigot, Premaneau and Malleville, and the Minister of Justice was added to their number.

In the following year, 1801, these commissioners reported a draft of a civil code, formed chiefly out of the materials of the former projects. These were accompanied with a preliminary discourse on the principles by which they had been guided. This discourse was entitled, " Discours preliminaire du premier projet du code civil," and this is the authority from which Dwarris has selected his French quotations.

This last mentioned draft of a code was, in the first instance submitted to the court of Cassation, (of errors,) and the various courts of appeal, and the reports of the judges of these courts furnished the matter of some improvements in the draft, and it was next submitted to the Council of State. In this body over which Bonaparte, then first Consul, presided, every part of the proposed code was thoroughly discussed. After it had been discussed in this manner, it was presented to the Tribunate, where it underwent another discussion, and was returned to the Council of State, as adopted, rejected, or amended.

In this way, five codes of law, were successively matured and produced, viz: 1st. "The Code Civile," which was that called by eminence "The Code Napoleon;" 2d. "The Code de Procedure Civile," by which the forms of actions and modes of proceedings, from the tribunal of a justice of the peace up to the highest courts in civil cases, were enacted; 3d. "The Code Penal," or criminal code; 4th. "The Code d'Instruction Criminelle," or mode of pro