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STATUTORY AND CONSTITUTIONAL LAW.

REES

CHAPTER

I.

The Sources of Municipal or Civil Law usually twofold: Usage or Common Law and Statute Law.-In America a third superadded: Constitutional Law.―The two last written; of these, the Interpretation and Construction belong to the Judiciary.—The Object of this Volume, to define the Limits of Legislative and Judicial Power; and to give the Rules which govern the Application of Constitutional and Statute, in other words, of Written Law.

MAN, in whatever situation he may be placed, finds himself under the control of rules of action emanating from an authority to which he is compelled to bow,-in other words, of Law. The moment that he comes into existence, he is the subject of the will of God, as declared in what we term the laws of nature. As soon as he enters into society, he finds himself controlled by the moral law (more or less perfect and active according to the condition of the community to which he belongs, and the degree in which it has accepted the divine precepts of our religion), and also by the municipal or civil law.* When States come to be organized as separate and independent governments, and their relations grow frequent and complicated, there is superadded the law of nations. These codes are variously enforced, but each has its own peculiar sanction. They are curiously interwoven together, and in their combination tend to produce that progress and improvement of the race which we believe Christianity teaches, and to which we hope civilization leads.

* Blackstone, in his introductory lecture, has referred to the inappropriateness of the phrase municipal law. "I call it the municipal law," he says, "in compliance with common speech, for though strictly that expression

denotes the particular customs of one single
municipal or free town, yet it may, with suffi-
cient propriety, be applied to any one State
or nation which is governed by the same
laws or customs.”

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Thus, the law of nature, the moral law, the municipal law, and the law of nations, form a system of restraints before which the most consummate genius, the most vehement will, the angriest passions, and the fiercest desires, are compelled to bend, and the pressure of which the individual is forced to acknowledge his incapacity to resist.

Of these various systems of rules for the government and control of men, the municipal or civil law asserts its claim emphatically as a distinct branch of knowledge, and is that to which we refer when we speak of the profession of the law, the study of the law, the science of the law.

Municipal law is defined by the great English commentator,

a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." Our American Kent describes it "as a rule of civil conduct prescribed by the supreme power of a State." *

Both of these definitions are perhaps obnoxious to criticism. Either of them sufficiently answers our present purpose.

Before entering on the precise subject of this treatise, it is necessary to have an accurate idea of the various elements constituting that system of municipal law which controls the conduct of the active millions who compose our race.

The two great sources of municipal or civil law, in all

* Kent, Com. i, 446. Legis virtus hæc est, imperare, vetare, permittere, punire.-Dig. i, iii, 7. There has been much scholastic discussion as to the proper definition of the term Law; and when we come to the subject of the boundaries of legislative and judicial power, we shall find that in practice it is not very easy to give the phrase an accurate or fitting interpretation. Cicero, XI Philip. 12, and after him Bracton, Coke, and Blackstone (as in the text), define it to be a holy sanction, commanding whatever is honest, and forbid. ding the contrary. Sanctio justa, jubens honesta, et prohibens contraria.-Black. Com., Lib. i, ch. i. Blackstone's citation is incorrect, the precise words are, Est enim lex nihil aliud nisi recta et a numine deorum tracta ratio, imperans honesta, prohibens contraria.

Bentham, in his Fragment on Government, attacks Blackstone's doctrines on the subject of the nature of law in general, with great severity. Hobbes defines a law to be "the command of him or them that have sovereign power, given to those that be his or their subjects, fully and plainly declaring what any one of them may do and what they must

forbear to do."-Dialogue between a Lawyer and a Philosopher. Montesquieu says (Esprit des Lois, Lib. i, ch. i), Les lois, dans la signification la plus étendue, sont les rapports necessaries qui derivent de la nature des choses; et dans ce sens tous les êtres ont leurs lois." Of which Toullier says (Droit Civil Francais, vol. i, p. 3), " On a observé, avec raison, que cette definition etait plus obscure que la chose à definir." See Grotius de Jure Belli et Pacis, liv. i, ch. i, as to the distinction between Jus et Lex; and see also Fortescue de Laudibus Legum Angliæ, Amos's edition, p. 8, in notes.

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As to the origin of the term, Cicero says that lex is derived from legendo, or choosing: Ego nostro (nomine) a legendo-nos delectus vim in lege ponimus et proprium legis est."De Leg. i, 6. Quoniam in lege inest vis delectus, jubet enim quæ honesta sunt, prohibet contraria," says Vinnius, Comm. Just. Inst., Lib. i, Tit. ii, §4. Turnebus says (Cicero, Olivet edition, vol. iii, p. 160, note) that it is called Lex, quod legenda cognoscenda populo proponeretur.

countries of which we have the means of tracing the jurisprudence, are unwritten law or usage, and written or statute law; in other words, custom and positive enactment.

The first general rules of action in all young societies before the working of any central authority is firmly established or extensively recognized, must necessarily result from the adoption of customs or usages recommended by their practical utility, the growth of religious zeal, or local necessity, and established as law by gradual and general recognition. Every system of jurisprudence declares this truth. The civil law and its great expounders are all full on the binding force of custom. "Consuetudinis ususque longævi," says the Code, "non vilis auctoritas est.* And again:† Inveterata consuetudo pro lege non immerito custoditur, et hoc est jus, quod dicitur moribus constitutum. Nam cum ipsæ leges nulla alia ex causa nos teneant, quam quod judicio populi recepta sunt; merito et ea quæ sine ullo scripto populus probavit, tenebunt omnes. Nam quid interest suffragio populus voluntatem suam declaret, an rebus ipsis et factis? Quare rectissime etiam illud receptum est, ut leges non solum suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogentur. ‡

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Custom," says Voet, "is in many respects like statutory enactment. It is an unwritten law gradually introduced by the usages of those who adopt it, and thus acquiring the force of enactment." Legi in multis similis est consuetudo; jus non scriptum, moribus utentium paullatim introductum, legis habens vigorem. ||

Forti states well and simply, the manner in which custom establishes its empire. "In the infancy of human society, as writing is little used, and affairs are not yet complicated, differences are adjusted rather according to notions of natural right than statutory enactment. The example of one generation becomes a law for their descendants, and the rules found in the past, furnish a guide for the present and the future. Thus is introduced a kind of law that is called custom." T

* Code, Lib. viii, Tit. 53, Quæ sit long.

consuet.

↑ Dig. i, iii, 32.

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"Consuetudo regni est communis lex."- perche non vi e uso di lettere ne gran compli Anon. Cro. Eliz. 10. cazione d'affari le discordie tra gli uomini

So France, before the revolution of 1789, was to no small extent governed by the unwritten customs (usages) of her different provinces.*

To this source is also chiefly to be traced the great body of the original English law, "that ancient collection of unwritten maxims and customs called the COMMON LAW," which still exercises such extensive sway in both England and America, and on which we daily see engrafted regulations owing their origin to the same principle. Sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur.

As, however, societies advance, and become consolidated or crystallized into regular governments, they do not wait for the slow process of custom to establish general rules. In order to create more certain and rapid uniformity, they resort to positive enactments, to statute laws. And these enactments, in many cases, more or less supplant the usages which precede them. Such is the gradual tendency of civilization.

So, the first demand of that extraordinary people which has been to the world the great exemplar of organization and administration, of order and discipline,-its first serious internal struggle, was for a body of written law to replace the vague and undefined customs and usages by which they had till then

associati ad uno stesso vivere civile si compongono piutosto secondo la ragion naturale che per autorita di leggi autenticate della scrittura. Poi l'esempio dei maggiori divien legge pei nepoti, e le regole che furon formate pel passato danno norma al presente ed al futuro. In questa guisa s'introduce una specie di gius che dicesi, di consuetudine."-Forti, Instituzioni Civile, Lib. i, Cap. ii, § 11, p. 19.

Franceso Forti, of Pescia, a nephew of Sismondi, the historian, born in 1806, died in 1838. He is, in the domain of the law, one of the most eminent instances of the inextin. guishable genius of his unhappy country.

*Toullier, Tit. Prel. Sect. xi, § 188.

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qu'elles s'appliquent a un plus grand nombre de questions."

These provincial customs, or common law, formed the subject of separate treatises written by the most eminent of the French legists. Thus, the customary law of Normandy was discussed by Basnage; of Orleans, by Pothier; of Paris, by Dumoulin.-Camus, Etude du Droit Francais, 4th Letter, pp. 81, 110.

Blackstone, Introd. Sect. 1.

Consuetudo," says Coke, "is one of the main triangles of the laws of England, those laws being divided into common law, statute law, and custom."-Coke, Inst. 110, b.-" particular customs. I say, particular customs, for if it be the general custom of the realm, it is part of the common law."-Coke, Inst. 115, 6.

Among the most marked instances of the constant tendency of custom to become law, may noticed the American marine insurance doctrine of one-third new for old, entirely the creature of a usage which has gradually grown up with the last half century. Inst. Lib. i, Tit. 2, § 9.

been governed. This was the origin of the law of the Twelve Tables, which united the functions of a constitution and a code, and was for nearly a thousand years, until the time of Justinian, the basis of the jurisprudence of Rome.*

So, we see in France, the old multifarious customs which, before the revolution, ruled the various provinces of the kingdom, giving way to the Code, the greatest and most permanent work of the central authority of the empire.†

So again in England, although the common law, the great customary law, as fixed by the art of printing, expounded and extended by judicial interpretation, retains, even to our time, so great a sway, still, we daily see it modified by and giving way before the inroads of the lawgiver.

But wherever a great body of customary law exists, or has ever existed, a familiar knowledge of its provisions and its history is indispensable to the jurist. First in point of time, it is often first in point of importance, as explaining and even to a certain extent controlling the statute law to which it apparently gives place.

The importance of bearing this in view in the consideration of our present subject, will be recognized when it is recollected that the great body of unwritten usages called the common law of England, is also the basis of the law of this country. The sources, indeed, of American and English jurisprudence, are identical. This is universally true, with the exception only of those States, like Louisiana, Florida, Texas, and California, which, before they were annexed to the United States, belonged

"The most striking point," says Arnold (Hist. of Rome, ch. vi, p. 70), "in the character of the Romans, and that which has so permanently influenced the condition of mankind, was their love of institutions and of order, their reverence for law, their habit of considering the individual as living only for that society of which he was a member. This character, the opposite to that of the barbarian and the savage, belongs apparently to that race to which the Greeks and Romans both belong, by whatever name, Pelasgian, Tyrrhenian, or Sikelian, we choose to distinguish it."

The Decemviri legibus scribendis, were appointed to frame as well a constitution as a code of laws. Like the Greek vopera, "they were to provide for the whole life of their

citizens, in all its relations, social, civil, political, moral, and religious."—Arnold's History of Rome, ch. xiii, p. 146.

But even this great body of statute or written law bears traces of the controlling force of ancient usage. "Whatever is ambiguous," says the Code (Art. 1159, speaking of the interpretation of contracts), “is to be interpreted by the usage of the district where the contract was made." "Ce qui est ambigu s'interprete par ce qui est à usage dans le pays où le contrat est passé." And again (Art. 1648), L'action resultant des vices redhibitoires doit être intenté par l'acquereur dans un bref délai suivant la nature des vices redhibitoires et l'usage du lieu où la vente a été faite." See also, Art. 1786 and 1748.

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