This section is from the book "American Commercial Law Series ", by Alfred W. Bays. Also available from Amazon: American commercial law series.
In this chapter we propose to inquire into the form which the law takes in its expression. Where it is stated, so that we may read it ? Who has authority to state it ?
Written law is the law prescribed by a body having law making power, and is so called because the permanent memorial of it is in writing.
Law, as we have noticed, is essential to government. Necessarily, then, there must be a law maker or a law making body. In England it is the Parliament, in the United States, the Congress, and in the various states, the State assemblies. As law when made by a law making body is in the form of a permanent written record, it has come to be called written law. Obviously, this term would include all state papers that have the force of law, treaties and constitutions as well as statutes and city ordinances. Let us briefly notice each of these.
Constitutions we have already considered.
Treaties are compacts between nations. In the United States they are in the nature of legislative acts and are expressly declared by the constitution to be with the constitution the "supreme law of the land." Accordingly, the state legislatures as well as Congress must observe them.
"Statutes" is a word sometimes used in a larger sense to include state papers of any sort, but as commonly employed and understood signifies the enactments of the law making body in the pursuance of its normal powers. In our discussion of constitutional law we have noted the power of the federal congress and the power of the state assemblies to enact statutes and that any attempted enactment that is contrary to or inhibited by the constitution is void and of no effect and the court will so declare it.
A code is a statutory enactment which assumes to put the law of any particular subject in a complete written form, or which assumes to embody the entire law of the jurisdiction in orderly shape.
A form of statutory law is that of the code. A code is a textual embodiment of the law on a given subject or of all the law. The Code Napoleon is the first great example in history. In the United States there has been but little codification until the 3d quarter of the 1800's. Georgia, Iowa, Dakota and California were the first states to codify their entire law; about a dozen states now have such codes. The statutory law of the United States and of the several states has been enacted from time to time as need has required. But attempts have been made to codify on various subjects.
While there is much to be said in favor of codification, especially of the law of certain subjects, there are dangers that surround it. Unskilful codification is likely to twist and warp the law from the symmetrical growth which it would have with time by the enactment of statutes from time to time and the development of the common law.
For this reason codification more befits subjects of the law that are already fairly well developed.
A number of laws, chiefly on essentially commercial subjects, have been drafted by a commission, known as the Commissioners on Uniformity of Legislation, and adopted more or less widely by the various states for the purpose of establishing a uniformity on the subjects covered throughout the several states.
As the federal constitution takes over into national domain only the powers specifically enumerated, and leaves to the state the great bulk and reserve of power over commercial and other questions we have the possibility of the law developing differently in different states. To overcome this tendency, the different states have within times fairly recent appointed commissioners upon uniformity of legislation who have drafted bills upon various subjects and proposed them for enactment to the several states of the union. Some of these acts have been quite widely adopted, while others have been slow of acceptance. The principal acts are as follows:
(1) Negotiable Instruments Act.6
(2) Sales Act.7
(3) Bills of Lading Act.7
(4) Warehouse Receipt Act.7
(5) Partnership Act.8
(6) Limited Partnership Act.8
(7) Stock Transfer Act.9
The unwritten or common law is the law declared by the judges in the decision of litigated cases which there is no written law to cover and is derived from the common ideas of right and expediency.
6. See Volume on Negotiable Instruments in this series.
7. See Volume on Bailments, Carriers and Sales in this series.
8. See Volume on Partnerships in this series. 9. See Volume on Corporations in this series.
It is a little difficult to define the common law without giving the impression that the judges are law makers in all cases in which the legislature has not spoken. Such an impression would be very far from the truth. The early English writers defined the common law as that law which had been in existence for so long that the memory of man runneth not to the contrary. They thought of it as law the origin of which had been lost in the mists of antiquity. One writer says that it originated in statutes worn out by time. This is pure fiction and is an example of the fictions in which the earlier writers delighted to deal in the explanation of legal facts.
Common law is really judge made law, but only in the sense that judges must declare and apply the fundamental ideas of justice developed by the people at large. Myriads of cases must come before them for decision that involve questions of common right and wrong and questions of customs and even of expediency upon which there is no statutory law which they must decide. In so deciding them they make law, and other judges in future cases will strive to follow the precedent unless they believe it manifestly wrong, in which case it will be modified or overridden.
The great foundation of our law is the common law. Statutes add to it or modify it or alter it, or re-state it.
Let us see if we cannot get a more adequate idea of the nature of the common law by an illustration. Suppose one man slays another without cause. No statute has been enacted defining this to be a crime. The slayer is brought before the bar of justice. The court declares him to be guilty of a crime by the common law. Note that in this instance, the judge does not proclaim a general rule to govern future cases, as statutes do, but merely decides the case before him. Or, again, we shall notice in the law of contracts, the contractual rights and liabilities of minors. That whole subject has developed as a part of the common law as innumerable cases involving particular facts have arisen for decision.
The common law is found in the reports of cases to be considered in a following section.
The decisions of the courts, with the opinions sustaining them, are preserved in books called judicial reports.
The courts in deciding the cases coming before them, whether involving statutory law or common law or both, generally in the higher courts accompany them with opinions setting forth the reasons for their decision. The opinions are published in books termed judicial reports and they constitute one of the most important sources from which the lawyer obtains his estimate of the law.
In the early days reporting of the cases was done as private enterprise and most of these earlier reports go by the name of the reporter. Thus Marbury v. Madison, 1 Cranch, 137, means the United States Supreme Court case of Marbury against Madison, reported in Cranch's reports, Volume 1, at page 137. Reports now go by the name of the jurisdiction, as McDonald v. City, 258 111. 52, and the earlier reports have been numbered in the series so that the report of 1 Cranch could now also be identified as 5 United States.
The judicial reports are as important in determining the statutory law as the common law. They are, generally speaking, the only repository of the common law. Text books which are written upon the common law derive their information from the reports. But while the statutes are preserved in the legislative archives and separately published, and we need not go to the reports to find them out, yet the judges must construe and apply the statutes as they decide cases covered by them; and it is as important to our knowledge of the statutory law to find how it has been construed and applied to different sets of facts as it is to know the text of the statutes. For statutes are necessarily very general in their terms, and frequently need construction, and certainly need a great amount of consideration in applying them to the thousand different sorts of cases that arise. For instance, if a statute says that a workman injured in the course of his employment shall have compensation, we have a multitude of questions as to what constitutes the course of employment, upon which the statute cannot possibly be explicit not only because of the great amount of detail that would be required but because also of the impossibility of foreseeing all of the divers facts that will arise. Is an accident in the course of going to or from work in the course of the employment? If it occurs during the lunch hour upon the premises? Suppose the workman is doing an errand for the employer upon his way home from work; suppose that being sent upon an errand during working hours he deviates for a purpose of his own and is injured. We can readily see that if we had a case involving facts of this sort we would not only have to consult the statute on that subject, but also the reports to find the construction and application of the statute to a case as near our own as possible. So that we may readily see how important the judicial reports are, first, as the sole repository of the common law, second, as the exposition of the statutory law.
In. the English and American law it is the policy to stand by decided cases.
From what has been said in the former section it is apparent that we depend upon past decisions as guides to what the court will do in future decisions upon similar facts. From what the court has said we determine what the law is, that is, what the court will continue to say. The court will stand by precedents and the precedents form the law. This doctrine is expressed in the words "stare decisis."
Precedents will be overruled by the courts where manifestly unjust or erroneous or out of harmony with the decisions. And the law may be so gradually modified that a precedent of years ago may become overruled almost without any appearance thereof. Legislation, may of course at any time, override prior decisions.
Decisions of other jurisdictions have only a persuasive force; they are not binding.
Text books, encyclopedias, digests, derive their information from the statutes and reports and constitute very great helps in finding the law.
Finding the law is greatly facilitated today by the fact that there are cyclopedias, text books, digests and other law finders by which the law in the reports is arranged and pointed out. Were it not for the fact that this work is done for the lawyer, he would find himself helpless in the enormous mass of material he would have to digest for himself. To thoroughly investigate the law on any point he of course goes to the statutes and reports themselves, but he is able to find his cases expeditiously through these secondary authorities.