The Law
What is Meant by the Law.—Having outlined the organization and jurisdiction of the federal courts, the question next arises: What branches of law do American courts administer? We often speak of the courts as administering “justice ”, and it is no doubt true that their decisions usually@ possess the quality of justice; but what the courts really administer is the law. The law may be just or unjust, and it is very difficult, if not impossible, for any court to wring justice out of an unjust law. Where injustice is done, the law and not the court is in most cases to blame.
How the common law developed.
The Common Law.—Speaking broadly the system of jurisprudence which American courts administer is made up of three branches, known as common law, statutory law, and equity. Of these the common law is made up of various time-honored usages, some of which go back many hundreds of years. The common law began its growth in mediaeval England when there were very few written rules, and the courts found it necessary to decide cases in accordance with the usages or customs of the people. Gradually these decisions became uniform, one court following the example of another, until this body of usages interpreted by judicial decision became “common” or universal throughout the whole realm of England although it had never been so established by any action of parliament. Thus the rule developed that no man should be compelled to testify against himself, that mere hearsay should not (with certain exceptions) be received as evidence, that all witnesses should be put upon oath, that questions of fact should be decided by juries, that agreements to restrain trade in an unreasonable manner were punishable, and so on.[[143]] During several centuries a great body of legal rules developed in this way and the system of common law was brought by the English colonists to America, where it speedily took root and was administered by the colonial courts.[[144]] After the Revolution it was continued and it still remains the groundwork of the law in all the states except Louisiana. Of course it has been gradually modified during the past hundred or more years by court decisions and by statutes, and it still keeps on changing.
Statutory Law.—Second, there is statutory law. This is law made by definite action of the people or their representatives. Constitutions are in effect statutory law, supreme statutory law. Laws enacted by the people through the initiative and referendum are statutory law. |Statutes.| Most statutory law, however, consists of laws made by Congress, by the state legislatures, by city councils, and by other regular lawmaking bodies.[[145]] These enactments supplement or alter the common law. Until a statute is passed affecting any question, the common law prevails. Whenever a statute conflicts with a provision of the common law, the statute prevails. But when ordinary statutes conflict with the constitution, the constitution prevails. Enormous numbers of statutes are enacted each year by Congress and the legislatures of the forty-eight states. They now form the larger part of the whole system of law.
The Need for Greater Uniformity in Statute Law.—In many matters of business the fact that the statutes are different in every one of the forty-eight states is a great disadvantage. When wholesale dealers sell goods on credit to merchants in far-off states they want to know just what the laws provide in the matter of collecting debts. The only way to do this is to enquire into the statutes of each state where goods are sold. So it is with wills, contracts, notes, and so on. In some states a will must have three witnesses; in others only two. The man who endorses a note in one state assumes greater liabilities than are assumed by endorsers somewhere else. To remedy this situation there is a strong movement to secure uniformity among all the states in the case of certain important statutes (for example, the statutes relating to sales). A commission of eminent lawyers has been at work for years preparing uniform laws on various subjects and some of these have been adopted by the legislatures of many states.[states.] A uniform statute relating to negotiable instruments (notes, bills of exchange, etc.) has now been adopted by more than forty states, and a uniform sales act by about a dozen of them.
Equity.—Finally, there is the branch of jurisprudence known as equity. People think of this word as implying something that is more just than the law, something which has its roots in the conscience of the judge rather than in the statute books. But equity as actually administered in the courts is made up of formal rules which the judges apply in certain cases without having much discretion in the matter. The rules of equity are written in books just like the rules of law, and they are about as precise.
The origin of equity.
The origin of these rules is an interesting story which cannot be narrated here save in the briefest way. In early England there grew up, side by side with the common law, a set of unwritten rules administered by the chancellor, who was called the “keeper of the king’s conscience” and to whom people could appeal for relief when they felt that they had not received justice in the courts of common law. At the outset the chancellor, whose office eventually grew into a Court of Chancery, decided every case on its own merits; but in due course all cases of the same kind came to be decided in the same way, and thus a set of rules or principles was gradually formulated. With further growth these rules of chancery or equity were gathered together, arranged logically, put into written form, applied by the English courts, brought to America in colonial days, retained after the Revolution, and they continue in force at the present time.
The differences between law and equity are too technical to be explained here; even lawyers sometimes fail to understand them thoroughly.[[146]] Cases in equity often result in the issue of injunctions and the issue of these injunctions in labor disputes has given rise to much complaint. (See pp. [407-408].) Both equity and law are usually administered by the same courts.[[147]]