Chapter XLIII. Kinds of Interest in Real Estate.. Chapter XLIV. Rights Incident to Ownership.... A TEXT-BOOK ON COMMERCIAL LAW. INTRODUCTION. A GENERAL CONSIDERATION OF LAW, AND OF THE SOURCES OF LAW IN THE UNITED STATES. 1. Existence of Law.-Law is a direction from the governing power of a country to its inhabitants, telling them what they must or must not do. It is, thus, a rule laid down by a higher power, limiting the absolute freedom of the individual. Every civilized nation has its system of written law. Even half-civilized nations and barbarous tribes have some law, sometimes written, and sometimes consisting merely of the will of a king or chieftain. Thus among human beings there is a higher authority than physical force. But animals are without law. Each one is absolutely free. Among them the strongest do as they please, and the weak ones suffer and have no remedy. 2. Its Necessity.-No country has a perfect system of law: human law cannot deal out perfect justice. But no nation could exist and be civilized without a system of some sort. Law in some form will be necessary, as long as people remain less than perfectly just and perfectly wise. Note to Teacher.-In a book of this character there is no room to do more than suggest the ideas of these two sections. There are many ways in which they may be easily and profitably amplified and explained in teaching. 3. Each Nation has its own laws. Those laws are supreme within its own boundaries, and cannot be affected by the laws of any other nation, but on the other hand they have no force outside of those boundaries. Thus the laws of England govern all persons and all property within English territory: the laws of France govern those in France. And though the systems of the different nations upon commercial law have many similarities, because the principles of justice are always the same, yet in many particulars they widely differ. But the laws of a country do affect all who are there, whether they are citizens of that country or of some other. Even when merely travelling we must obey the laws of the country where we are. So also if a citizen of one country has property in another, in respect to that property he is governed by the law of the place where it is situated. 4. The States of our Union are, in regard to most law which affects the private actions and relations of men, entirely separate and independent communities. In that respect they are like independent nations. Each has its own laws, which have no force beyond its own boundaries. Those laws affect not only the citizens of that State but all people who happen to be in it, and they affect all property within that State, no matter where its owner is. 5. Sources of Law. If now, considering any particular State, we inquire what are the sources of its law, i.e., what documents and books shall we examine to find out all the law in force within its boundaries, we find that in each State there are five sources of law; viz., the United States Constitution, the laws of Congress, the State constitution, the statutes of the State, and what is called the common law. Let us consider first the State constitution. 6. State Constitutions. Each State in the Union has its own constitution. This is a written instrument adopted by the people of the State. It is the foundation of all State law. The legislature cannot change any rule established by it, nor pass any law except such as the constitution allows. But constitutions treat in general only of fundamental matters, such as how elections shall be held, what officers the government shall consist of, freedom of speech, etc. The regulation of commercial law directly is left almost entirely in the power of the legislature. 7. Statutes and Common Law.-These are the two chief sources of commercial law in any State, and of these the common law supplies the greater part. Statutes are written laws passed at different times by the legislature. The common law consists of a great body of unwritten rules or laws, not enacted one by one by legislative authority, but established long ago in England by long usage, and adopted by the particular State as a body of law. The statutes are of the higher authority, and very often statutes are passed to change some rule of the common law. 8. National Law. The last two sections have treated only of State law. But we have in this country, besides each State with its own government and system of law, another government, higher than all. That is called the National Government and is founded on the United States Constitution, which is the supreme law of the land throughout all the States. That constitution establishes a National legislature (Congress), to which it gives power to pass laws upon certain subjects enumerated in it. The laws of Congress have full force throughout all the States, and are of higher authority than any State constitution or law. Thus we see that there are in each State two systems of law, the State and the National. Whenever they conflict the former must give way. But they do not conflict, at least in theory, for Congress has no power to pass any laws except upon the subjects named in the United States Con |