What would be an advantage of this? What a disadvantage? Would an amendment to the Federal Constitution be necessary to bring this about? (Note to Case 13: This quotation is given merely as a means of emphasizing in the mind of the student that our commercial law is chiefly state law. Admitting a tendency to vest power in the Federal Government, it seems utterly unlikely that there will ever be a passing over to the Federal Government, legislative jurisdiction in the sense suggested in the above quotation.) § 17. (General Survey, Sec. 17.) Unwritten law. Case 14. Blackstone's Commentaries, Cooley's Ed., Book I, Sec. 3. "The Municipal Law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law. 66# When I call these parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral or communicated from the former ages to the present solely by word of mouth. With us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions and in the treatises of learned sages of the profession preserved and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptae, because their original institution and authority are not set down in writing as Acts of Parliament are, but they receive their binding power and the force of laws by long and immemorial usage, and by their universal reception throughout the kingdom. * * Question 14: What is the "unwritten" (or common) law? Why so called? In what sense is the "unwritten law" written? Case 15. Walker's American Law, 8th Ed., Sec. 18. The common law, thus slowly matured into a system in England, was introduced into this country by the first colonists, together with the statutes by which it had then been modified, so far as applicable to their condition. This was at first a matter of necessity, and when the colonies became independent, the system, which in the meantime had been much improved by legislation, was retained from choice. The new states with the exception of Louisiana, which has preferred the civil code, have adopted it from the old; so that the common law now prevails generally throughout the Union. Nearly all our technical terms and forms of proceeding are borrowed from it and defined by it. Question 15: Is there a common law in force in the United States? Whence its original source? (Note: The unwritten or common law must not be thought of as having reached a state of development and there stopped. Common law is ever developing. A good illustration is the law of unfair trade which has lately come frequently before the courts. Blackstone says that the common law is law "whereof the memory of man runneth not to the contrary" but this statement is inaccurate. We can trace the development of much of the common law, and see the process of its growth even within our own time.) § 18. (General Survey, Sec. 18.) The judicial reports. Case 16. Blackstone's Com. Intro., page 71. "The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer's library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records, which always, in matters of consequence and nicety the judges direct to be searched." Question 16: What are the judicial reports? (Note to Case 16: In the reports we find not only the judge's declaration of the common law but the validity, construction and application of the statutory law. The reports of decided cases are in that sense, therefore, not only the repository of the common law, but of the statutory law.) 819. (General Survey, Sec. 19.) Doctrine of stare decisis. Case 17. Kent's Commentaries, lecture 21. 66# A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is on the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law. "But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are more than one thousand cases [of course this number has been greatly augmented since this was written] to be pointed out in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts of this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it." Question 17: What is a judicial precedent? What is the doctrine of stare decisis? Is it ever departed from? Why? § 20. (General Survey, Sec. 20.) Secondary sources of the law. (Note: The original sources of the law are so vast in bulk, that it is at once apparent that the practicing lawyer, or any student of the law, must have assistance in finding the law in its original sources. We may classify the secondary sources of the law as follows: 1. Text Books. 2. Cyclopedias. 3. Digests. 4. Annotations of cases. 5. Citation systems. 6. Legal periodicals. 7. Law dictionaries. Text Books. The text book is a statement of the law upon some subject, as Law of Contracts, with a reference to and perhaps discussion of, the statutes and cases which constitute the authorities. Needless to say, text books may range from the book that is little more than a reference book to the book which takes rank as almost an original authority in itself. Some text books, perhaps better called treatises, have been very influential in the development of the law. As illustrations, Blackstone's Commentaries on the English Law, Chitty on Pleading, the works of Justice Story, have had a remarkable influence on the development of the law, while among remarkable modern works may be mentioned Pomeroy's Equity Jurisprudence, and Wigmore's Evidence. The Cyclopedia is a book or set of books which purports to cover the entire body of the law, being a series of articles upon the various topics of the law, alphabetically arranged. It may be local or general in its subject matter. There are encyclopedias covering the entire United States and those that cover merely a particular state. The important national legal cyclopedia of today is "Corpus Juris." The cyclopedia constantly refers to the original sources from which the text is written. The lawyer uses it as a means of direction to original sources. Digests. The digest is a sort of cyclopedia, except that instead of being in narrative form, it consists of a topical division of headings under which the cases are briefly digested. There are local and national digests, and digests of reporter systems. The great digest now in use is the Century Digest purporting to digest all American Cases down to 1896; supplemented by the Decennial Digest, bringing the cases to 1906; the Second Decennial bringing the cases down to 1916; and the annual digests which are temporary digests of the current law. Annotations of Cases. The selected case series, referred to in the section above are "annotated," that is the cases are supplemented by a discussion of the law or some point of law covered in the case. Citation Systems. By means of the citation system a case may be traced through all references to it in the same jurisdiction. For instance if I have a case in 16 Illinois Reports, 425; and I want to find whether it has ever been referred to again, I use one of the citation systems and am able in a few minutes |