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Definition of Law. Law has been defined by one of the most noted legal writers as a rule of action. This definition evidently applies to, and includes, the laws of mechanics and many other natural laws. In a re stricted sense the law with which attorneys and courts have to do is sometimes called “municipal law," which is defined by the same lawyer as “a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." It is with this kind of law that this treatise is to deal.

Purpose of Law. It should be observed and definitely understood at the outset that the purpose of law is to secure right and justice, and as great a measure of liberty for each as is consistent with the rights and proper privileges of others; it relies in part upon usage and custom as to right and wrong. That hardship, or what seems injustice, may at times result from the workings of any system which of necessity has some rigidity, ought not to occasion surprise nor provoke harsh criticism. While justice may seem in some cases to miscarry, nevertheless far greater respect is felt, and properly so, for the judges of the courts and the work of the courts, taken as a whole, than is felt for either the executive or the legislative branches of the government. Much of whatever dissatisfaction exists with the results of court trials is the outcome of the work of the juries, whose functions in court, as will appear later, are entirely removed from determining what the law is, and whose errors result more often from inexperience and the difficulties of the situation than from any conscious bias or wrong intent. The judges, upon whom rests the duty of determining the law, are as a rule qualified by learning, experience, and temperament to perform the duties required of them and are in general well entitled to the respect almost universally accorded them.


Common Law and Statute Law. Law is conveniently and properly divided into two kinds: Common Law and Statute Law. Of these, Statute Law, as its name indicates, consists of laws and ordinances passed in set terms by the proper legislative bodies. The Common Law may be properly appreciated if it be stated that it represents the determination of what is right and wrong as found by the judges (or "courts ") to which various cases have been submitted by parties to legal controversies; the decisions of the courts, so far as these are known to us, are found in the printed reports of cases which have been decided by courts of sufficient dignity to warrant perpetuating their decisions, and together they cover so large a field of probable dispute as to form a fairly complete guide as to the rules of conduct prescribed by the Common Law.

Definitions of Common Law. Not only do the decisions of the courts as found in the reports determine for us what is the law in a case referred to it, but, in addition, we find in the reports definitions even of what the Common Law. is. This Common Law has come down to us from the mother country, and a Maryland judge thus states of it:

"The English Common Law is derived from immemorial usage and custom." "It is a system of jurisprudence founded on the principles of justice, and denominated by Blackstone 'the perfection of reason. The evidences of its existence are the treatises of men learned in the law and the judicial records of the courts of justice of England."

Blackstone's Statement. Blackstone, whose treatise is the oldest and the most fundamental of those generally read, says:

"These maxims and customs of the Common Law are of higher antiquity than memory or history can reach, and nothing is more difficult to ascertain than the precise beginning and the first spring of an ancient and long-established custom."

So that while we may not trace the progress of the Common Law from its beginning, we may rightly speculate as to some of its earlier workings.

Early Example. At some distant time in the past it doubtless happened that a man carrying a case into court secured a ruling as to what the judge considered right and just, and in harmony with prevailing customs. This man, in his future transactions, carried them on according to the rule thus established; but in this early day when a second case, quite like the first, was tried before another judge, sometimes a contrary ruling was made. It is quite clear that this produced an intolerable condition of affairs; stability of business procedure became an impossibility, and a law-abiding and well-intentioned man could have no fixed rule of conduct for his guidance. The next step was very simple. After a time, whenever a legal controversy was decided, a record was made of the decision, in writing or in print, and this record became available for presentation when a similar case came up elsewhere. The decision made by one court came to be regarded as of great importance, or even of controlling weight, in determining the decision of the second court or of any future court passing upon substantially the same points in controversy. In this way there was secured the advantage (practically a necessity) of a fixed rule of conduct in business affairs, or affairs of various kinds, and order prevailed instead of something like chaos.

Kent's Statement. Kent's Commentaries on American Law is a book very commonly used as the foundation for the reading of American law students, and Chancellor Kent describes or outlines this process :

“The Common Law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." "A great proportion of the rules and maxims which constitute the immense code of the Common Law grew into use by gradual adoption and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases.”

Rhode Island Opinion. The procedure in determining the law in a new case in court is well described by a Rhode Island judge in a way which enlarges our outlook over the Common Law:

“When a case arises which is not affected by any statute, the facts therein being fully established, the question first to be considered is : Does there exist any clear and well-defined principle of Common Law which directly and immediately controls it, and determines the rights and obligations of the parties? If no such principle is found to exist, the question next presents itself: Is there any principle of the Common Law which, by analogy, should govern it? If both these sources fail in furnishing a determinate solution of the controversy, resort must next be had to the principles of natural justice which form the basis of a portion of the Common Law; and should these principles be discovered to apply in a full and determinate manner to all the circumstances of the case, they are adopted and determine the rights of the parties."

Evidently this decision based upon the “principles of natural justice" becomes in its turn a part of the Common Law from that time on.

Example. Innkeeper. It has come about that a rule of conduct or a principle once established under the Common Law stands good and sometimes holds even after the passing away of some of the conditions which had been instrumental originally in determining the law. For instance, during the period when the highway robber was a constant menace, a traveler had little chance to protect himself either in traveling or while sleeping at the wayside inn. It was possible for the innkeeper to furnish protection if he desired, or to stand in with robbers if it would profit him to do so. The law therefore did right in holding the innkeeper responsible in case his guest was robbed, and under the Common Law the rule even now holds good, although the conditions are so changed that the necessity hardly exists. As a result, and as a cure, Statute Law has in most States repealed the older Common Law, so that the innkeeper is now responsible for valuables only when deposited in the hotel safe. This provision seems wise and just, for without it there would be today more probability of collusion between some guest and thief, than between the hotel keeper and a robber. A rule of similar origin which remains unchanged, holds that a railroad company, as a common carrier, is fully responsible for the safe transportation of all freight intrusted to its care, with certain unusual exceptions to be noted later.

New York View. The tenacity of the Common Law has been indicated in a case before the Supreme Court of New York, where it was stated :

“While the rules of the Common Law and the result of the application of its principles will vary with the facts to which it is applied or the condition under which such application is made, the fundamental principles of the law remain immutable.”

Value of Stability. Possibly it is not stating the case too broadly to suggest that it is more important that a rule or principle which has been once well established should remain fixed, than that it should seem in all cases that the ruling of the court should be free from hardship or sometimes apparent injustice. The Supreme Court of Indiana has gone so far as to say:

"There are some questions in law the final settlement of which is vastly more important than how they are settled."

This is especially true as it affects titles to land. Where a fixed rule may at times seem harsh, a shifting and changeable law must eventually work much greater wrong, injustice, and hardship. It is wiser on the whole that the settled rule should continue unless, or until, a sense of its injustice under changed conditions leads to the proper cure by Statute Law.

Rules Changed for New Conditions. It is not quite true, however, that the courts exercise no discretion or liberty in adapting the principles of the Common Law to new conditions. While slow to change a rule once fixed, it is sometimes found that circumstances and conditions have

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