« iepriekšējāTurpināt »
Especially to the business man a practical knowledge of commercial law is of the utmost importance. Such a knowledge enables him, not only to avoid mistakes and consequent loss, but also to take advantage of opportunities to reap profits which without such knowledge would be overlooked. Every business man, therefore, should possess a general knowledge of the fundamental principles underlying the law of contracts in general, negotiable instruments, agency, partnerships, corporations, bailments and carriers, guaranty and suretyship, credits and loans, bankruptcy, insurance, sales, mortgages, leases, etc.
2. Definition of law.—The term law, in its technical sense, means a rule, or body of rules, of human conduct prescribed and enforcible by public authority. This definition does not include what is known as the moral law, the divine law or the law of nature.
3. Classification of law.—Technical law is usually divided into two classes: (1) municipal law; (2) international law. It is also divided into the following two classes: (1) public law; (2) private law.
4. Municipal law.—Municipal law comprises the body of rules of human conduct prescribed and enforcible by the supreme power of a particular state or nation. This supreme power, however, may delegate authority to enact and enforce local laws. Thus, it may delegate to cities within its territorial jurisdiction authority to enact and enforce ordinances, and such ordinances constitute part of the municipal law.
5. International law.—International law consists of that body of rules of human conduct prescribed by nations by common consent, the purpose of which is to regulate intercourse with one another. It is also called the law of nations.
It has been urged that international law is not, technically speaking, law at all, because it is not enforcible except by an appeal to arms. It is to be observed, however, that it constitutes part of the English common law, and that our courts, both state and federal, take cognizance of it in cases where such recognition is necessary.
6. Public law.—Public law, as distinguished from private law, relates to matters which especially concern the state or nation, rather than individuals. It includes the law of nations, the law of crimes, constitutional and administrative law.
7. Private law.—Private law relates to matters which especially concern individuals. It includes the law of contracts, torts, pleadings and evidence.
8. Sources of law.—The sources of law in the United States are as follows:
1. Federal Constitution.
9. Federal Constitution.—The United States Constitution expressly declares that it, together with the laws of the United States made in pursuance thereof and the treaties made under the authority of the United States, shall be the supreme law of the land. Unlike state constitutions, it consists for the most part of a grant of power rather than of a restriction of power.
10. Federal statutes.-Federal statutes are laws passed by Congress in pursuance of powers granted by the people of the original states to that body and enumerated in the United States Constitution. Congress,
it is to be observed, has no authority except that given it, either expressly or impliedly, in this document. It follows, therefore, that any federal statute which is not within some power there granted is unconstitutional and void.
11. Federal treaties.-Treaties are agreements entered into by independent nations. An agreement between a nation and private individuals is not a treaty. There are various kinds of treaties, such as treaties of alliance, treaties of peace, treaties of guaranty, etc.
The Federal Constitution provides that the president of the United States shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.
In view of the fact that in the negotiation of treaties readiness of action and singleness of purpose are often in the highest degree desirable, this provision is a wise one.
In negotiating a treaty, the secretary of state, under the direction of the president, confers with the representatives of the foreign power.
The conclusions reached are then submitted to the senate for ratification. If ratified by that body, they become part of the law of the land, and if in conflict with prior statute or treaty provisions, the latter are thereby repealed.
An example of one of the most important of the treaties of the United States is the Treaty of Washington made with Great Britain in 1871. It settled disputes growing out of the Civil War of 1861–65, the Canadian fisheries and other matters.
12. State constitutions.-A state constitution embodies the organic or fundamental law of the particular state and constitutes the framework of the state government. As heretofore stated, it is restrictive in its nature, tying the hands, as it were, of the state legislature. It
must not conflict with the Federal Constitution, or with a federal statute, or a treaty of the United States.
13. State statutes.—State statutes are laws enacted by the legislature of a state. Some are merely declaratory of pre-existing laws and enacted for the purpose of removing doubt as to their existence or scope; others create new rules of human conduct; while still others repeal, either in whole or in part, pre-existing laws. They must not conflict with the Federal Constitution, a federal statute or treaty, or the state constitution.
14. Common law.—The English or old common law consists of usages, principles and rules applicable to the government and individuals, which relate to matters of liberty, security and property, and which do not rest for their authority upon any constitution, treaty or statute, but which are founded upon custom. Like the British Constitution, this source of law is unwritten. Its scope is not fixed, but as new conditions arise it develops new principles of analogy.
Originally, it was enforcible only by public opinion or private vengeance, but in the course of time its principles came to be recognized by the judges and enforced by them as positive law.
15. Laro merchant, - What is known as the law merchant now forms part of the old common law. It consists of general usages which obtain among merchants. It had its origin on the continent and through commercial intercourse came to be recognized by English merchants and later by the English courts."
16. American common law.—The American common law is founded upon the old common law. The early English colonists brought it with them to this country and it was carried westward as the scope of civilization broadened until it came to be recognized in the whole of the United States except in Louisiana. As this state was settled by the French, the basis of its system of laws is the Roman or Civil Law.
1 The English Bill of Exchange Act as well as our various negotiable instrument laws are codifications of the common law adoptions of the usages of the early traders.
17. Repositories of the law.-Laws, as Blackstone says, should not be “confined in the heart of the legislator.” Caligula we are told “wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people.” The lawyer's most important task is to know where to find the law. It is contained in many books, which through private enterprise are being indexed and digested so as to make the law they contain more easily accessible. The table on page 7 is an expansion of a similar summary prepared by Professor Eugene Wambaugh, for his essay on "How to Use Decision and Statutes," printed in an excellent book entitled “Brief Making."
18. Definition of “Court” and “Judge.”—A court is a tribunal whose functions consist in the public administration of justice at a time and place prescribed by law.
The terms "court” and “judge” are frequently used interchangeably. They are not in the strict sense, synonymous terms. A court, like a corporation, is an artificial, incorporeal being, and it is owing to this fact that in speaking of a court we use the neuter pronoun, “it.”
. The existence of a court, however, depends upon the presence of judges.
19. Inherent powers of courts.-A court has inherent power to do anything which is reasonably necessary to the proper administration of justice within the
1 The table as given has frequently appeared in publications of the West Publishing Company of St. Paul, Minn.