CHAPTER IL THE SOURCES OF THE LAW. THE sources of American law must for the most part be sought in English law. The early colonists, having come from a country with a settled system of law, naturally made use of rules and principles with which they were familiar, at the same time rejecting any that were inconsistent with the changes in their institutions produced by the American Revolution or other On their separation from the mother country, they found it necessary to make definite provision as to the relation of the law in each State to the English law. The provisions adopted in New York will serve as an illustration. causes. In the 35th Article of the Constitution of 1777 of that State it is ordained that "such parts of the common law of England and of the statute law of England and Great Britain, and of the Acts of the Legislature of the Colony of New York, as together did form the law of the said colony on the 19th day of April in the year of our Lord one thousand seven hundred and seventyfive" (date of the battle of Lexington) "shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same." 1 (a) There are but few instances in which the courts of New York have decided that an English statute was so fully adopted as law during the colonial period, as to make it a part of the general law of the colony, within the purview of the constitutional provision just cited. A striking instance is that of statutory restriction on the power of religious corporations to sell their real estate. These restrictions, found in the statute of 13 Eliz. c. 10, and later acts, were tacitly adopted in the colony, and still prevail. But in general, English statutes were repealed, 1 The rules adopted in other States are collected in Bishop's First Book of the Law, § 58, note 4. 2 M. A. Baptist Church v. Baptist Church in O. St., 46 N. Y. 131-141, 142, and cases cited. (a) See Constitution of the State of New York, Art. I. § 17. though a number of them were re-enacted, with some changes, either in form or substance.1 English law of the date fixed by each State is accordingly to be studied as American law.2 An exception must be made as to the State of Louisiana. The civil but not the criminal law of that State is embraced in a code based upon the Code Napoléon of France. The law of England and of the United States, in reference to its origin, is divided into two great divisions, common law and statute law. The latter is enacted by Parliament in England, and in this country by Congress, or by State legislatures. The former is said to depend upon custom existing from time immemorial. It is announced from time to time by courts, as cases present themselves for adjudication. The courts also have much to do with statutes and constitutions, applying common-law rules of interpretation and construction in ascertaining their meaning and giving them due application. The prime distinction between statute and common law is, that the former has its origin in legislative enactment, while the latter is assumed to originate in custom, and to obtain authenticity from the decisions of courts. The law of any State of the Union may be said to consist of four parts: (1) Such rules of the law of nations as may be applicable to it separately from the general government; (2) the law and Constitution and treaties of the United States; (3) the constitution of the State; (4) the ordinary municipal law of the State. 8 DIVISION I.-COMMON LAW. This expression has in law two meanings: one is that already given as contrasted with statute law; the other is a narrower sense in which certain legal rules are contrasted with other legal rules having no statutory origin, e. g., common law as contrasted with equity. The wider signification is mainly adopted in this chapter. I. Equity. In the early history of English law, equity had little or no place. The legal business of the people consisted 1 The New York statute repealing the English statutes is ch. 46 of the Laws of 1788, § 36. Its language is, "From and after May next, none of the statutes of England or of Great Britain shall operate or be considered as laws of this State." 2 Blackstone's Commentaries were pub lished between the years 1765 and 1770. mainly in litigation involving title to the various estates in land, the redress of injuries to the person, etc. As Only simple remedies were needed for these purposes. society advanced, and business became more complex, the scope of law required enlargement, and new remedies were necessary. The introduction of trusts, whereby the ownership in property was divided so that one person had the formal ownership and another the beneficial enjoyment, led to new legal principles. There were no methods known to the ordinary courts for the enforcement of such rights. A new set of tribunals came gradually into existence known as courts of "equity." A leading one of these was held by the Lord High Chancellor, who presided in the Court of Chancery, -a high court of equity jurisdiction. These courts are largely governed by special rules worked out by precedents or decisions. Nothing is arbitrary, or merely the result of reasoning on ethical rules. The whole subject has become a matter of legal science, and must be studied in the reports of cases and in treatises on equity jurisprudence. II. The Roman or Civil Law as used in the Admiralty, Ecclesiastical, and Military Courts.-The Roman law, although presented in modern times in a codified form, is not to be regarded as statutory law. The term "statute" can only be applied to law enacted by the legislature of the State where the law prevails. If any State tacitly or by judicial decision adopts the statute of another State, it is taken into the law of the adopting State as part of its common law. The Roman law has influenced English jurisprudence in a variety of ways: first, by furnishing a storehouse of principles from which the ordinary courts (law and equity) could draw, where their own rules were insufficient or imperfect; and again by supplying a whole body of law for special courts, viz., admiralty, ecclesiastical, and military; and finally, by the suggestion of appropriate and remedial legislation. An instance of the latter is the statute for distributing the personal property of intestates, passed in the reign of Charles II., and of general prevalence throughout this country.1 A sketch of the Roman law, though very brief, will accordingly be useful. This system, like all other permanent systems of jurisprudence, had an historical development. Commencing practically with the rude rules laid down in the Twelve Tables, it had expanded by legal adjudication and the written opinions 1 22 & 23 Car. II. c. 10; explained by 29 Id. c. 30. and treatises of learned jurists, into a great and complicated mass of rules. It therefore became highly desirable to have its leading rules arranged in systematic form. In the meantime the empire had become divided into its Eastern and Western divisions. The most successful digest of the law, and that which has left its chief impress upon modern jurisprudence, was made in the Eastern empire under the direction of the Emperor Justinian, about the year A. D. 530. The Pandects went into effect in the year A. D. 533 (Dec. 30th). The Roman law, as then arranged, consisted of two principal parts, the Pandects, otherwise called the Digests, and the Institutes. - The Pandects or Digests. The great result to be achieved in forming the Digests was to make extracts from the writings of the jurists of highest repute, and to classify these extracts with the name of each author attached, in fifty "books" or divisions. This work was designed for legal practitioners. Its arrangement followed existing methods then in use, viz., the prætor's edict. Extracts were made from the works of thirty-nine jurists. It happened that these writers, in some instances, contradicted each other. It was the province of the emperor when these contradictions were called to his attention to settle the question by special decision. Some of these decisions remain. The Pandects are the principal source from which the civil or Roman law is derived, as its principles now prevail on the continent of Europe. They are readily accessible, not only in the original Latin, but in French and German translations. 1 The Institutes. These were also prepared under the direction of Justinian for the use of students. There was already in use by Roman students for the same purpose a work of great value, "Institutes of Gaius." Gaius was a jurist of remarkable merit. His work, having been published several hundred years before that of Justinian, had become in part obsolete. Justinian did little more than prepare a new edition of Gaius, with the obsolete portions omitted. It may be said, in conclusion, that 66 Justinian's work bears much the same relation to the Institutes of Gaius, as do the commentaries of Sergeant Stephen to those of Sir William Blackstone." 2 The work of Gaius was long supposed to be wholly lost. It was, however, discovered in 1816 by the great German historian, Niebuhr, at Verona, Italy, in a palimpsest, the epistles of 1 Select titles from the Pandects were published at the Clarendon Press, Oxford University, Eng., by Professor Holland and C. L. Shadwell, Esq., in 1881. 2 Professor Holland. St. Jerome being written over it. It has since been fully deciphered, and has shed great light on some perplexing features of Roman jurisprudence.1 The "Institutes of Justinian" is the more important of the two works to the ordinary student, as forming a portion of the corpus juris civilis, "body of the Roman law." There has been in England a great revival of interest in this class of studies, and the Institutes have been reprinted a number of times within a few years past in such a form as to be useful and accessible to students." The New Code and Novels. There had been a code containing imperial ordinances published A. D. 529. After the publication of the Institutes and Pandects, Justinian thought it desirable to have this code revised, and his decisions settling controverted points in the Pandects included. This was accomplished in the year 534. This branch of the law resembles what is now called statute law, and stands in contrast with the Pandects, which bear strongly upon their face the marks of legal discussion and the successful tracing of rules to principles. The Novels consist of such ordinances as the emperor made in the intervening years between 535 and the close of his reign (A. D. 565). They are frequently subversive of former rules of law. They were issued from time to time as exigencies might require, and were never officially collected by him. Numbers of them were brought together and published after his death. They are not of much value to the modern student except as matter of history.3 The Relation of the Roman Law to the Admiralty, Ecclesiastical, and Military Jurisprudence of England. - The Roman law had but slight influence on the common law of England as administered in the superior courts. It was, however, different with the special tribunals having in charge maritime and military questions, the probate of wills of personal property, the 1 Professor Gneist of Berlin has published the "Institutes of Gaius" in tabular form, so that their corresponding passages and differences may readily be noted. A similar publication with English translations was made in 1882, by T. Lambert Mears, Esq. (Stevens & Sons, London). See also Holland's "Institutes of Justinian, Edited as a Recension of the Institutes of Gaius." Oxford, 1881. 2 The recent work of J. B. Moyle, Esq., of Lincoln's Inn, is strongly recommended to students. It contains the Institutes in the original, with a careful English translation and many valuable notes. (Clarendon Press, Oxford, Eng., 1883.) Reference may also be made to Sandars's Justinian. The student may find a good sketch of Roman law by Mackeldey (Dropsie's Ed. 1883). Ortolan's History is also very useful. The German writers must be resorted to for a complete mastery of the subject. Puchta's Institutionen is a work of high merit. Professor Bryce, of Oxford, has prepared an excellent article on Justinian in the Encyclopædia Britannica (9th ed.). |