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mon law to the wants of society is found in the manner in which the rules of the law merchant were incorporated into or were assimilated by the common law. During the operation of the feudal system the rules of the common law were inadequate to the needs of the mercantile classes. As controversies. came before the courts, they were in the habit of applying to commercial contracts the rules which had been adopted among merchants in their business dealings, just as courts now interpret and enforce the contracts of men engaged in the various callings of life, according to the customs and usages prevail. ing in such callings. So numerous were the rules of the law merchant, and so important had the mercantile classes become, that by a statute enacted during the reign of James I these rules were declared to be a part of the common law. And substantially as they were when this statute was enacted, they have come to be a part of the common law of the United States.
§ 35. Functions of the courts.—The unwritten or common law constitutes the great bulk of the English and American system of law. Of this system the lawyers and judges are the visible artificers. “The state has," as Prof. Holland says, “in general two and only two articulate organs for law-making purposes—the legislature and the tribunals. The first organ makes new law; the second attests and confirms old law, though under cover of doing so it introduces many new principles.” It is the function of the legislature to innovate, for it is the desire or object of the legislator to do away with something old or establish what is new. On the other hand it is the province of the tribunal not to innovate, but to declare and confirm what already is assumed to exist. And while courts may and many courts do seek to make new rules, in so doing they enter upon the dangerous ground of judicial legislation. Judge-made law, or law made by one man, is, in this country at least, an abomination. It is a usurpation by one branch of the government upon the powers of another. It is the foulest injustice to remove landmarks, and to corrupt the law is to poison the very fountains of justice. Judicial laws are always retrospective and are worse than retrospective statutes. Against retrospective statutes there is the bar of constitutional provisions. There is no such bar against the capricious legislation of a judge. A judicial superseding of legislative intent is an act of mere executive insubordination. It is dangerous and may easily become the source of the gravest abuse.
§ 36. Common law in the United States. — The common law of the states comprising the United States consists of the common law of England as modified by English statutes previous to the colonization of America, so far as it was adapted to the altered conditions and circumstances of the colonies, and those English statutes passed afterwards prior to the American Revolution, which were practically accepted and adopted in America and became a part of the common law. The common law is presumed to exist in the colonial states and in states of which the population was made up from those states, in fact all the states except Louisiana have in one form or another adopted the common law. The United States as a nation has no law that is not embodied in the constitution, treaties or laws enacted by congress, and the common law could be made a part of our federal system only by legislative adoption.
§ 37. Precedents, importance of.—What is common law is declared by the courts, and what the courts have declared to be the law is found in their records and published decisions. When a rule of law has once been declared it ought not to be disturbed unless by a court of appeal or review, and never by the same court, unless upon very urgent reasons and upon a clear manifestation of error; any other practice leaves the citizen in a perplexing uncertainty as to the law. A precedent, even where it appears to be flatly unreasonable and unjust, may and should be followed if it has been acquiesced in for a long period, or if it has become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by overruling it. In such a case the better course is to leave the correction of the error with the legislature which can so shape its action as to make it prospective only, and thus prevent the injurious consequences that must follow from judicially declaring the previous decision unfounded.
§ 38. Customs.-Customs form a large part of the common law, and these customs are general or particular. It is a matter of historical observation that long before any supreme political authority has come into being a series of practical rules determine the main relations of family life, the conditions of ownership, the punishment of the more violent forms of moral wrong-doing, and the adjustment of contracts. The mode in which such rules are formulated seems to be the following: A spontaneous practice is first followed, and if good and useful, is generally copied over and over again, the more so as habit and association always render the imitation of an old and familiar practice easier than inventing a new and untried one. It is the peculiarity of the class of customs which are the true germs of future law that they are being constantly brought to mind and tested by application to actions. Customs prescribing the formalities and conditions of marriage are brought into distinct consciousness on the formation of every fresh family. The incessantly active vicissitudes of birth and death in every community call for an unintermittent series of decisions upon the competing claims of survivors in matters of ownership, and upon the responsibilities of those who may already be called "personal representatives” in matters of contract. The main machinery for the conversion of desultory and uncertain customs into fixed rules are the decisions which are constantly demanded for the purpose of ascertaining the nature and extent of an alleged custom. These decisions may be made by a casually selected arbitrator, a village council, or any man or body of men agreed upon, or who may have authority to hear the matter. The grounds of decision may be the personal mercy of the judge, or expediency, or analogy. Such decisions become precedents and by them the uncertain custom becomes fixed and solidified as a rule of civil conduct, or law.
$ 39. A custom is defined as being such a usage as by common consent and uniform practice has become the law of the place, or of the subject-matter to which it relates. A particular custom is distinguished from a'rule of the common law in this, that the latter is universal, while the former is particular to this or that place. It is distinguished from usage in this, that custom is the rule of which usage is the legal evi. dence. The difference between prescription and custom is that while prescription is the making of a right, custom is the making of a law. General customs are such as constitute a part of the common law, of the country, and extend to the whole country; particular customs are those which are confined to a particular district; or to the members of a particular class; the existence of the former is to be determined by the court, of the latter by the jury. Customs are said to be good in law : (a) where they have existed time out of mind; (b) have been uninterrupted; (c) have been peaceably enjoyed or acquiesced in; (d) are reasonable; (e) are certain; (f) are compulsory; (g) are consistent with one another. Local usages or customs, applying to particular callings, will be enforced between parties who have dealt with reference to them. Usages, which are plainly repugnant to well known rules of law, are not recognized and can not be proven. Customs of trade are proven to show the intention of parties in making contracts. But customs of trade can not be enforced against a stranger who is ignorant of them. For instance, a merchant can not charge a customer interest on a running account because it is his custom, unless the customer knows it. Nor will