definition of law.—the term "law" is used in many ways. we speak of moral law, law of gravity, divine law, and the like. in each case we are making proper use of the term, but in no instance are we using it as we shall use it in this book. to illustrate: you find a beggar on your front porch when entering your house late at night. suppose he should ask you for food and lodging for the night. although there is no other house within five miles of your home, you refuse to take him in, or do anything for him. as a result he contracts pneumonia from exposure, because he is not able to proceed further. you would, nevertheless, not be liable in the sense in which we are using the term "law." but, you say, in an extreme case of this kind, it is one's duty to act. we grant it, but to be accurate, you must preface your proposition with the statement, "under the moral law" or "under divine law it is one's duty to act in such a case." however much it is to be regretted that moral or divine law sometimes does not harmonize with "law" as we shall treat it, we must, nevertheless, recognize that fact. law, as viewed by the jurist, and this is the way we, as students, are to consider it, is defined by blackstone to be "a rule of civil conduct prescribed by the supreme power in the state, commanding what is right, and prohibiting what is wrong." referring[pg 8] again to our illustration, is it not easy to see that it would be impracticable in the present condition of society for the legislature of california, for example, to pass a law which should, in that state, constitute "a rule of civil conduct" commanding that every one "shall be his brother's keeper" and for a violation thereof "shall be imprisoned for one year, or fined one thousand dollars, or both." however much we recognize the obligation of moral law, jurists and legislators cannot ignore the fact that society is composed of ordinary human beings, still far from perfection. assuming, although perhaps it is doubtful, that it is within the power of the legislature of california to pass such an act as has been suggested, there are not courts enough in the whole united states to decide the cases which would arise in new york city alone in attempting to apply the provisions of such an act. on second thought, then, it is not such a startling proposition for us to learn that "law" is not synonymous with the same term when used in referring to natural law, moral law, and the like. much has been written on the essential nature of "law" as we shall use the term. the time-honored definition of blackstone, which we have quoted, is confessedly imperfect. the last clause, "commanding what is right, and prohibiting what is wrong" has been much criticized, and mr. chitty has modified it to "commanding what shall be done, and what shall not be done." today, to attempt to buy a bottle of light wine at a hotel does not seem to many of us intrinsically wrong, but legally, under existing laws, it is, and so perhaps mr.[pg 9] chitty's modification of blackstone's definition does bring out the correct idea more clearly. for our purpose, these two definitions are sufficient.
the systems of law.—there are two chief systems of law in use among civilized peoples today, the roman or civil law, and, the english or common law. the roman, or civil law (roman law is spoken of as civil law, from the latin "civilis," belonging to a citizen) as its name implies, originated in rome. as the city of rome developed into the roman empire, its law became that of the ancient world. it was finally codified by the roman emperor justinian, in the year 530 a.d., and was eventually absorbed, from the twelfth to the eighteenth century, into the law of modern europe. it is the basis of the systems of law used in the countries of continental europe, central and south america, and all french, spanish, portuguese, and dutch colonies or countries settled by those peoples.
common law.—the common law had its roots in the customary law of the germanic peoples of western europe, and was developed by the english courts from the thirteenth to the nineteenth centuries. like the roman law, it has spread all over the world wherever english-speaking peoples have settled, and founded colonies. the common law now prevails in england, canada (except quebec), india, except over hindus and mohammedans in certain instances, and the principal british colonies, except those in south africa. the united states is largely an english settlement, hence the common law prevails with us,[pg 10] except in the state of louisiana, where the influence of the french and spanish settlements still remains and makes the basis of the louisiana law the roman law, and in the philippines and porto rico, where the law was roman when we took those possessions from spain in 1898.
the source of law.—where does this rule of civil conduct we are to study come from? at first blush, the superficial observer might suggest some legislative hall where it is created by a legislative body, a perfect product, to be imposed on men and women as the guide in their every act in civil life. the slightest reference to historical jurisprudence will convince us that this is not the true source of the law. mr. justice holmes of the united states supreme court, in his classic, "the common law," indicates the real source of law when he observes: "the life of the law has not been logic; it has been experience. the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. the law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. in order to know what it is, we must know what it has been, and what it tends to become. we must alternately consult history and existing theories of legislation. but the most difficult labor will be to understand[pg 11] the combination of the two into new products at every stage. the substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past."
where to look for law.—knowing the source of law does not necessarily tell us where to look for the law. today, in the united states, we have three primary sources to which the lawyer goes to seek the law on any particular point. first, the constitution of the united states and the constitution of the state in which he is to ascertain the law, including the statutes which have been enacted by congress and by the state legislature under those constitutions. second, the decisions of the courts, particularly those of the united states courts and of the state where he wishes to learn the law, and, if need be, the decisions of other states. third, text-books and treatises on the branch of law to be investigated.
illustration.—let us suppose you wish to ascertain the law concerning a question that comes up in your own daily life. take two problems. first: we will assume you keep a clothing store, and an infant, twenty years old, purchases a suit of winter clothes. his income is $1000 per year. he already has two perfectly good winter suits. a week after purchasing this suit, he returns it and demands his money back. you wish to know whether you have to give it to him. if you should look in the constitution of the united states, or of the state of vermont (assuming this to[pg 12] be a vermont contract), you would find nothing that would give you any help in answering this question. if you should look through all of the acts of congress and the laws passed by the legislature of the state of vermont, you would find nothing to give you any help. if, however, you should look in the decisions of the courts, both of the united states and of the state of vermont, you would find cases, probably many of them, covering this particular situation, and you would find the rule to be laid down as law, that an infant (and by an infant we mean anyone under twenty-one years) is not liable on his contracts, except for necessities, and then only in a quasi-contractual action for their reasonable value. applying the law to the problem, you would be obliged to admit the legality of the infant's claim, and if you did not refund the money to him, he would be entitled to sue for it in a court. three winter suits are clearly not necessaries at one time for an infant with an income no greater than $1000 per year. this is a comparatively simple problem. now let us take another case somewhat more difficult. you live in new jersey near the plant of an airplane manufacturing company. machines are constantly being tried out, and they circle over your premises within four or five hundred feet from the ground. you have several children who are using your back yard as a playground and you are much alarmed, fearing that an airplane may fall in the yard and kill or injure a child. you wish to ascertain your rights. you look in the constitution of the united states, and of the state of new jersey. you will find nothing in[pg 13] either about airplanes. you look in the acts of congress and the laws of the legislature of the state of new jersey. you will find nothing there to help you. you look in the decisions of the courts, both of the united states and of the state of new jersey. you will find nothing there. you look in the text-books, and, except in the most recent, in all probability you will find nothing there in regard to airplanes. you may search the recent legal publications and you will find articles discussing in a purely theoretical way this interesting topic. you study recent legislation and you will find stray instances of attempts to deal with aerial matters. for example, connecticut has a statute on airplanes. in fact, your whole search will be most interesting. all you will find, however, is not law in new jersey, but is simply theory, based on common law principles or statutes having no force in new jersey. should you then conclude that you have no rights, that the law cannot help you? perhaps not. if you turn to treatises relating to the ownership of land as developed in the english common law and as applied by the courts in the united states, you will find that the word "land" is often used as practically synonymous with realty or ground or soil, and you will also find that it includes everything attached to the realty or growing on it. as is commonly said, land has an indefinite extent upward as well as downward, the old books using the latin maxim: "cuius est solum, eius est usque ad coelum usque ad orcum." (to whomsoever the soil belongs, he owns also to the sky and to the depths.)[pg 14]
there are three houses in a row on smith street, nos. 1, 3 and 5. mary jones lives in no. 1, and sarah green in no. 5. they are friends, and accordingly arrange to stretch their clotheslines from their rear second-story windows across the back yard of no. 3. under common law principles, this is a trespass upon no. 3. should mary jones and sarah green continue to do this for the required time, usually twenty years, they would acquire by prescription a permanent right to stretch clotheslines over lot no. 3. when the owner of lot no. 3 wished to erect a ten-story building covering all of his lot, he would be seriously interfered with by the right acquired by his two adjoining neighbors. he could have protected himself by proper action in a court when the offense was first committed. could not, therefore, the court take this principle of the common law as to the ownership of land and apply it to the airplane case? if the owner of lot no. 3 could prevent the owners of lots nos. 1 and 5 from stretching clotheslines across his land, could you not prevent the airplane from crossing your land, although it is five hundred feet above the surface of the soil? twenty years' continuation of that practice would interfere with your ability to build a woolworth building twenty-five years from now should you desire to do so. it is simply taking an old principle of law recognized for centuries, and applying it to new conditions. this is what we mean when we say that the principles of common law are capable of indefinite expansion; that the common law is always growing, or, as mr. justice holmes puts it, it is the product of "the felt necessities[pg 15] of the time." as soon, however, as you have secured an injunction from the court preventing the airplane factory from practicing its machines over your land, all of the other property owners in the neighborhood of the factory decide to protect their rights, with the result that no airplane can leave the factory through the air. does this mean that the airplane factory must move, and probably be subjected to the same annoyances in its new location in a short time? we are coming to realize that airplanes are necessities. when a necessity and a principle of law cannot exist side by side, something must be done to remedy an intolerable situation. the illustration here used presents what in the course of a few years, undoubtedly, will become an intolerable situation, unless remedied in some way. it has been suggested that we must modify our principles of the ownership of land, and give airplanes the right of free passage over the land of any person, when a certain distance in the air, far enough up to cause no great amount of danger or annoyance. such a change in the law would have to be accomplished by the state legislature or by an act of congress for such territory as congress has jurisdiction over. no doubt, legislation along such lines may be expected soon. it will be simply a repetition of a situation created by a leading case in new york in 1902.
in roberson v. the rochester folding box company, 171 new york 538, the suit was brought on behalf of a living person, a young lady, to restrain a flour company from putting her[pg 16] likeness upon prints advertising its flour. mr. justice parker, writing the opinion of the court, held that there was no principle of law which would authorize the court to issue an injunction restraining this unauthorized use of a photograph. this created the unfortunate situation in the state of new york of allowing anyone to make use of another's photograph without that person's consent, for advertising or other purposes. the court, in its opinion, admitted the unfortunateness of the situation, observing that "the legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. in such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by statute. the courts however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme, and therefore unjustifiable application of an old principle. the court below properly said that: 'while it may be true that the fact that no precedent can be found to sustain an action in any given case is cogent evidence that a principle does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court,' provided (i think should be added)," mr. justice parker continues, "there can be found a clear and unequivocal principle of the common law, which either directly or mediately governs[pg 17] it, or which, by analogy or parity of reasoning, ought to govern it." relief was denied the young lady. the following session of the legislature corrected the evil by passing a law making it a criminal offense to use another's photograph without that person's consent. this has been a long illustration. it has served its purpose best if it has left the very distinct impression that the law is a vital, living, growing thing. true, its roots are in the dim past, but it lives, and moves, and has its being in the problems of today. in no field of law is this more true than in our subject, commercial law.
who knows the law.—the layman is frequently of the opinion that a lawyer ought to be able to give him a definite answer as to just what the law is in a given set of facts. why is it not possible to go to the sources which we have been discussing and from them ascertain definitely what the law is in a given case? frequently the lawyer can do this, but one should not lose respect for the lawyer because he is not, in many cases, willing to give a definite answer, but may frame his reply in an opinion beginning "it would seem that the law in this case would be, etc.—" we have already suggested some of the difficulties that in part answer the question we now ask. let us take one more illustration, a striking example from the united states supreme court. few would question the statement that that court is the highest type of judicial body in the world today. we are familiar with the rent profiteering legislation enacted in the district of columbia, new york and at[pg 18] least five other states, as a result of the house shortage created by the world war. the united states supreme court, in the cases of block v. hirsh, 254 u.s. 531 and marcus brown holding co. v. feldman et al., 254 u.s. 539, held the new york and the district of columbia rent profiteering laws to be constitutional, but this decision is by a vote of five to four, and the arguments advanced in the two opinions, one by mr. justice holmes, representing the majority of the court, and the other by mr. justice mckenna, are striking examples of how strongly the ablest body of jurists in the united states can differ on a legal question. speaking for the majority in block v. hirsh, mr. justice holmes says: "the main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. but if the public interest be established, the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since munn v. illinois, 94 u.s. 113. it is said that a grain elevator may go out of business, whereas here the use is fastened upon the land. the power to go out of business, when it exists, is an illusory answer to gas companies and waterworks, but we need not stop at that. the regulation is put and justified only as a temporary measure. * * * a limit in time, to tide over a passing trouble, well may justify a law that could not be upheld[pg 19] as a permanent change." in the case of marcus brown holding co. v. feldman, involving a similar new york law, mr. justice holmes says: "the chief objections to these acts have been dealt with in block v. hirsh, supra. in the present case more emphasis is laid upon the impairment of the obligation of the contract of the lessees to surrender possession, and of the new lease, which was to have gone into effect upon october 1, last year. but contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be." mr. justice mckenna, in writing the dissenting opinion in block v. hirsh, supra, and with whom the late chief justice white, and justices van devanter and mcreynolds concurred, says: "if such exercise of government be legal, what exercise of government is illegal? houses are a necessary of life, but other things are as necessary. may they, too, be taken from the direction of their owners and disposed of by the government? * * * an affirmative answer seems to be the requirement of the decision. if the public interest may be concerned, as in the statute under review, with the control of any form of property, it can be concerned with the control of all forms of property. and, certainly, in the first instance, the necessity or expediency of control must be a matter of legislative judgment. * * * the facts are significant and suggest this inquiry: have conditions come not only to the district of columbia, embarrassing the federal government, but to the world as well, that are not amenable to passing palliatives, and that socialism, or some form of[pg 20] socialism, is the only permanent corrective or accommodation? it is indeed strange that this court, in effect, is called upon to make way for it, and through an instrument of a constitution based on personal rights and the purposeful encouragement of individual incentive and energy, to declare legal a power exerted for their destruction. the inquiry occurs, have we come to the realization of the observation that 'war, unless it be fought for liberty, is the most deadly enemy of liberty.'"
in the marcus brown holding co. case, he again says for the same justices: "we are not disposed to further enlarge upon the case, or attempt to reconcile the explicit declaration of the constitution against the power of the state to impair the obligations of a contract, or, under any pretense, to disregard the declaration. it is safer, saner, and more consonant with constitutional pre-eminence and its purposes, to regard the declaration of the constitution as paramount, and not to weaken it by refined dialectics, or bend it to some impulse of emergency because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." no more striking illustration of the most decided differences of opinion among nine of the ablest jurists in the world can be found. it is no wonder then that a lawyer at times hesitates in giving an opinion as to what the law may be.
the function of the court.—an infant bought a motorcycle on an installment contract at the agreed price of $325. he made an initial payment[pg 21] of $125, used the machine a month, damaged it to the amount of $156.25, and then returned it in this condition and demanded the return of his $125. these are the facts in the case of petit v. liston, 97 oregon 464, a case decided in the supreme court of oregon. the case involves the right of an infant to disaffirm a contract made by him, when purchasing an article which is not a necessity. the oregon court had never before been called on to determine what the law in oregon was as applied to such a situation. according to the rule in new york, as laid down in rice v. butler, 160 n. y. 578, the infant could not recover the $125, but according to the rule in pyne v. wood, 145 mass. 558, the infant would be entitled to his money. it thus became the problem of the oregon court to refer to the theories back of these two decisions. after doing so, it approved of the new york view, rather than the massachusetts view. this case indicates the function of a court. if a court, from the various sources of law which we have enumerated, can find an exact precedent for the case before it, or can find a general principle of law which can be applied, it renders a decision as to the law, as the oregon court did. if no law can be found nor any principles which can be applied, the court is forced to deny the relief, as in the roberson case, 171 n. y. 538, adding, perhaps, to its opinion, as it did in that case, the suggestion that it is a matter congress or a state legislature might properly remedy.
the court system.—knowing the function of a court, the student should then have an outline[pg 22] of the court system of his own jurisdiction. we can only sketch, in a book to be used generally throughout the united states, the court systems. each state has two sets of courts: the federal and the state courts. we have a federal and a state government; it follows that there should be courts to interpret the laws of each of these two governments. matters pertaining to the united states constitution, or matters affecting citizens of different states, are tried in the federal courts. the same is true of admiralty and bankruptcy. there is at least one united states district court in each state in the country, and federal cases are begun in these courts. if either party is dissatisfied with the decision, he may appeal to the next higher court. the entire country is divided into nine circuit courts of appeal, to which appeals from united states district courts are taken. in case either party is dissatisfied with the decision in that court, he may, in certain cases, appeal to the court of last resort, the united states supreme court, presided over by a chief justice and eight associate justices at washington. each state has its own system of courts. usually that system is more elaborate than that in the federal government. there is in each state a court of last resort, which we would expect to find designated the supreme court of new york, or whatever state it might be. frequently there is a misuse of terms, as, for example, the court of last resort in new york is the court of appeals, and the supreme court is a lower court. this is true in a number of states. in addition to the court of last resort, there will be a court of general[pg 23] jurisdiction, frequently one of these courts for each county of the state, and then courts for the trial of smaller cases in the various cities and towns. the system of appeals is the same as in the federal courts, either party who is dissatisfied having a right to appeal his case to the higher court. the question as to whether a particular case must be brought in a federal court or a state court is too complicated to be taken up in detail. sometimes the suit must be brought in the federal court, as, for example, a bankruptcy matter, or a matter involving the united states constitution, while in other cases, perhaps the majority, the suit must be brought in a state court. in other cases a person may have his option of either jurisdiction, as where a citizen of texas wishes to sue a citizen of rhode island, and the amount involved is over $3000, then either the federal or state courts of either state are open to the parties.
