I.—LAW IN GENERAL.

It perhaps would be well for us to take a glance at the origin of the law

which we are about to consider in its practical applications. In all our

business relations, and in fact in our general conduct, so far as that

term would apply to one as a member of a community and a citizen, we are

controlled in our action by absolute, and in some instances possibly,

by arbitrary regulations or laws, with which perhaps we may be wholly

unfamiliar, but which are none the less binding and positive in their

exactions because we have neglected to familiarize ourselves with their

requirements.

It is a rule of law, that ignorance of it excuses no one. For this reason

ignorance is never pleaded in court as an answer to civil or criminal

allegations of any sort. This rule presupposes a knowledge of the law on

the part of every citizen. While, strictly speaking, this is impossible

and in reality but a fiction, any other provision would be fraught

with danger. Although, through the observance of this rule, doubtless,

hardships are occasioned—as in fact must result from the enforcement of

any law, however wise—it is notwithstanding that, a very necessary and

strictly proper presumption. Were it to be otherwise, any attempt to

enforce obligations against dishonest parties or to punish crime would

prove ineffectual, because recourse would always be had to this defense.

Thus all law would be a nullity.

There is fortunately a safe rule to be adopted as a guide for our

conduct, which in the main, if strictly obeyed, will obviate the seeming

hardship. Notwithstanding the fact that all inhibitions do not involve

an absolute wrong or right, that all enforcements of law are not with

justice, yet if a strict standard of right and honorable dealings

characterize individual action and conduct, for those who adopt such

a course there is but slight possibility that there is any especial

oppression in store.

But wrong doing exists. The remedy is existing law. What is it, which as

such we are to obey, and which we may safely designate as the principle

of personal protection?

The nucleus of the now voluminous laws of our country was the well

established laws, customs and usages of the American colonies of Great

Britain, when their independence was secured. At that time the laws of

Great Britain had become so generally interwoven into our judicature as

well as into our business customs and relations, that the introduction

of a wholly new system of laws would have proved disastrous, even if it

could have been accomplished.

Since, in part, law is the outgrowth of customs and ways, as we shall

see, to have attempted the engrafting of a wholly new system would

have been equivalent to an attempt to change at once the habits and

characteristics of a people.

The familiarity of the colonists with the then existing law, and its

adaptability to the then commercial transactions, made it a desirable

nucleus—already for our people, with which they might inaugurate a system

of their own.

This, then, was accepted as the common law of the country at that time.

But however well adapted the then existing laws may have been to the

wants of the people and commerce, ever changing conditions of life

and ever increasing business complications rendered additions and new

provisions necessary. These changes were made necessary and were fostered

by statute law.

Statute law is the result of the deliberations of legislative assemblies.

Each state has its own legislature and statute law, as has the national

government. The general government being the superior power, its laws

must be recognized as superior to state laws, that is, there can be no

state law inconsistent with the laws of the national government. The

state legislatures and national congress have power to make laws, and

whatever is declared by these bodies to be the supreme law of the land,

for the government of the individual and the protection of property,

providing it does not conflict with the provisions of the national and

state constitutions respectively, must be obeyed as such.

This then is statute law: An enactment regarding the rights of persons

or property, passed by representatives of the people in legislature

assembled.

When a question has arisen concerning which statute law has no

provisions, or some regular enactment is so worded that its meaning is

doubtful and extremely liable to be misunderstood, to compensate for the

lack in the one instance and to interpret properly the intention of the

law makers in the other, we resort to the common law, fairly said to be

“the accumulated wisdom of centuries.” Analogy will lead us to conclude,

and correctly, that this is the conservative element of the system—the

origin of which we have previously alluded to in part—to which we would

add the customs and usages which have, since our recognition as an

independent people, received the sanction of our courts, and to become

acquainted with which reference must be made to the published reports of

the courts, known as the “U. S. Reports,” “Maine Reports,” etc.

That the common law may remain to a great extent unchangeable, much

respect is paid to the decisions of the courts, by others than those by

which they were enunciated, for it has ever been deemed better that a

precedent be respected, even if it be not the soundest law, than to have

what might seem to be better logic at the expense of a varying precedent.

Then we conclude, that though legislatures be radical in the change of

existing laws, yet in the task of applying or interpreting such laws, so

changed, courts are generally very conservative. It will thus be seen

that the rights of the people are not liable to be unwarrantably abridged

or destroyed by any uncertain movement of a day.

By referring to our national and state constitutions, our readers will

see that the powers of both national and state governments are divided

into three departments, known as the executive, legislative and judicial,

each of which is distinct from the others, although they work in harmony

in the enactment and enforcement of the laws. The courts come under the

head of that last named, and their duties have been demonstrated to be

“to define, declare and apply the laws.”

Of this common and statute law a very essential part is that which

is applicable to business, or commercial law, or, as it is generally

denominated in the books, the “Law-Merchant.” Much of the law bearing

upon this subject is the old common law, with the enlargements consequent

upon an increased commercial activity. Here it is that we find many of

the customs and usages of merchants gradually merging into recognized

law. The three “days of grace” allowed on all commercial paper is but a

common illustration of this, similar in origin to many customs in all

departments of trade, which might easily be cited, and which were in

their inception of very limited significance, but which have continually

been receiving a more extended recognition, until we find them clothed

with all the insignia of authority.

These customs and usages we shall have occasion to give more extended

explanations as we touch upon the several sub-divisions of our topic.

There are a few technical words which we shall find it convenient to use.

Prof. Greenleaf clearly expresses the reason for this, as follows:

“A great deal of the language of every art or science or profession

is technical (indeed, technical means belonging to some art), and is

peculiar to it, and may not be understood by those who do not pursue the

business to which it belongs. This is as true of the law as of everything

else.… A good instance of this is in those words which end in _er_ (or

_or_) and in _ee_. As for example, promisor or promisee, vendor and

vendee, indorser and indorsee. These terminations are derived from the

Norman-French, which was for a long time the language of the courts

and of the law of England. And it might seem that we had just as good

terminations in English, in _er_ and _ed_, which mean the same thing. But

this is not so. Originally they meant the same thing, but they do not

now, for both _er_ and _ee_ are applied, in law, to persons, and _ed_ to

things, so that we want all three terminations. For example, indorser

means the man who indorses; indorsee the man to whom the indorsement is

made; but the note itself we say is indorsed. So vendor means the man who

sells, vendee the man to whom something is sold, and the thing sold is

vended.”

In regard to the phrase “presumption of law,” to which we may have

occasion to refer. The significance of this phrase is this: Under certain

conditions, without absolute proof of the matter concerning which some

conclusion is sought, the law will presume to interpret the intention

or acts of persons. For instance, regarding criminal procedure, one is

presumed to be innocent until he is proved to be guilty. Presumptions

prevail only when proof is lacking.

The Chautauquan, Vol. 04, February 1884, No. 5. · 第 23 / 120 题