페이지 이미지
PDF
ePub

well-nigh imperative. The art or the practice of writing the forms contained in Part II is likely to show changes and advances, and new material will doubtless come into the author's hands, partly as the result of this book. Such changes as seem necessary will probably be made first by additions to chapters rather than by any general revision.

The author desires to express his thanks to many who have furnished him with advice or with forms of contracts and items of information otherwise. He is especially indebted to Mr. Homer Albers, Dean of the Law School of Boston University, who read many of the chapters of Part I, and to Mr. Roscoe E. Learned, of the Boston Bar, who read other portions of the book; also to Mr. Frederick H. Fay, of the consulting engineering firm of Fay, Spofford, and Thorndike; to Mr. James W. Rollins, a civil engineer and contractor, and president of the Holbrook, Cabot, and Rollins Corporation; and to Mr. Charles R. Gow, a civil engineer, and president of the Charles R. Gow Company, contractors, all three of whom have read most of Part II and offered valuable suggestions; also to Professor Charles B. Breed and Professor Carroll W. Doten, both of the Faculty of the Massachusetts Institute of Technology, the former of whom has made useful suggestions covering several of the earlier chapters, while the latter has read substantially all the text. None of the readers, however, has read the text in its final form.

Grateful acknowledgment is made to the American Railway Engineering Association for permission to use contract forms copyrighted by them; also to the American Institute of Architects, for similar permission to use their copyrighted forms.

C. FRANK ALLEN.

September, 1917.

PART I
ELEMENTS OF LAW FOR ENGINEERS

CHAPTER I

INTRODUCTION

Definition of Law. Law has been defined by one of the most noted legal writers as a rule of action. This definition evidently applies to, and includes, the laws of mechanics and many other natural laws. In a restricted sense the law with which attorneys and courts have to do is sometimes called “municipal law,” which is defined by the same lawyer as “ a rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong.” It is with this kind of law that this treatise is to deal.

Purpose of Law. It should be observed and definitely understood at the outset that the purpose of law is to secure right and justice, and as great a measure of liberty for each as is consistent with the rights and proper privileges of others; it relies in part upon usage and custom as to right and wrong. That hardship, or what seems injustice, may at times result from the workings of any system which of necessity has some rigidity, ought not to occasion surprise nor provoke harsh criticism. While justice may seem in some cases to miscarry, nevertheless far greater respect is felt, and properly so, for the judges of the courts and the work of the courts, taken as a whole, than is felt for either the executive or the legislative branches of the government. Much of whatever dissatisfaction exists with the results of court trials is the outcome of the work of the juries, whose functions in court, as will appear later, are entirely removed from determining what the law is, and whose errors result more often from inexperience and the difficulties of the situation than from any conscious bias or wrong intent. The judges, upon whom rests the duty of determining the law, are as a rule qualified by learning, experience, and temperament to perform the duties required of them and are in general well entitled to the respect almost universally accorded them.

COMMON LAW Common Law and Statute Law. Law is conveniently and properly divided into two kinds : Common Law and Statute Law. Of these, Statute Law, as its name indicates, consists of laws and ordinances passed in set terms by the proper legislative bodies. The Common Law may be properly appreciated if it be stated that it represents the determination of what is right and wrong as found by the judges (or “ courts ") to which various cases have been submitted by parties to legal controversies; the decisions of the courts, so far as these are known to us, are found in the printed reports of cases which have been decided by courts of sufficient dignity to warrant perpetuating their decisions, and together they cover so large a field of probable dispute as to form a fairly complete guide as to the rules of conduct prescribed by the Common Law.

Definitions of Common Law. Not only do the decisions of the courts as found in the reports determine for us what is the law in a case referred to it, but, in addition, we find in the reports definitions even of what the Common Law is. This Common Law has come down to us from the mother country, and a Maryland judge thus states of it:

"The English Common Law is derived from immemorial usage and custom.” "It is a system of jurisprudence founded on the principles of justice, and denominated by Blackstone 'the perfection of reason.' The evidences of its existence are the treatises of men learned in the law and the judicial records of the courts of justice of England.”

Blackstone's Statement. Blackstone, whose treatise is the oldest and the most fundamental of those generally read, says:

“These maxims and customs of the Common Law are of higher antiquity than memory or history can reach, and nothing is more difficult to ascertain than the precise beginning and the first spring of an ancient and long-established custom."

So that while we may not trace the progress of the Common Law from its beginning, we may rightly speculate as to some of its earlier workings.

Early Example. At some distant time in the past it doubtless happened that a man carrying a case into court secured a ruling as to what the judge considered right and just, and in harmony with prevailing customs. This man, in his future transactions, carried them on according to the rule thus established; but in this early day when a second case, quite like the first, was tried before another judge, sometimes a contrary ruling was made. It is quite clear that this produced an intolerable condition of affairs; stability of business procedure became an impossibility, and a law-abiding and well-intentioned man could have no fixed rule of conduct

« 이전계속 »