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.