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for his guidance. The next step was very simple. After a time, whenever a legal controversy was decided, a record was made of the decision, in writing or in print, and this record became available for presentation when a similar case came up elsewhere. The decision made by one court came to be regarded as of great importance, or even of controlling weight, in determining the decision of the second court or of any future court passing upon substantially the same points in controversy. In this way there was secured the advantage (practically a necessity) of a fixed rule of conduct in business affairs, or affairs of various kinds, and order prevailed instead of something like chaos.

Kent's Statement. Kent's Commentaries on American Law is a book very commonly used as the foundation for the reading of American law students, and Chancellor Kent describes or outlines this process:

"The Common Law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." "A great proportion of the rules and maxims which constitute the immense code of the Common Law grew into use by gradual adoption and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases."

Rhode Island Opinion. The procedure in determining the law in a new case in court is well described by a Rhode Island judge in a way which enlarges our outlook over the Common Law:

"When a case arises which is not affected by any statute, the facts therein being fully established, the question first to be considered is: Does there exist any clear and well-defined principle of Common Law which directly and immediately controls it, and determines the rights and obligations of the parties? If no such principle is found to exist, the question next presents itself: Is there any principle of the Common Law which, by, analogy, should govern it? If both these sources fail in furnishing a determinate solution of the controversy, resort must next be had to the principles of natural justice which form the basis of a portion of the Common Law; and should these principles be discovered to apply in a full and determinate manner to all the circumstances of the case, they are adopted and determine the rights of the parties."

Evidently this decision based upon the "principles of natural justice' becomes in its turn a part of the Common Law from that time on.

Example. Innkeeper. It has come about that a rule of conduct or a principle once established under the Common Law stands good and sometimes holds even after the passing away of some of the conditions which had been instrumental originally in determining the law. For instance, during the period when the highway robber was a constant

menace, a traveler had little chance to protect himself either in traveling or while sleeping at the wayside inn. It was possible for the innkeeper to furnish protection if he desired, or to stand in with robbers if it would profit him to do so. The law therefore did right in holding the innkeeper responsible in case his guest was robbed, and under the Common Law the rule even now holds good, although the conditions are so changed that the necessity hardly exists. As a result, and as a cure, Statute Law has in most States repealed the older Common Law, so that the innkeeper is now responsible for valuables only when deposited in the hotel safe. This provision seems wise and just, for without it there would be today more probability of collusion between some guest and thief, than between the hotel keeper and a robber. A rule of similar origin which remains unchanged, holds that a railroad company, as a common carrier, is fully responsible for the safe transportation of all freight intrusted to its care, with certain unusual exceptions to be noted later.

New York View. The tenacity of the Common Law has been indicated in a case before the Supreme Court of New York, where it was stated:

"While the rules of the Common Law and the result of the application of its principles will vary with the facts to which it is applied or the condition under which such application is made, the fundamental principles of the law remain immutable."

Value of Stability. Possibly it is not stating the case too broadly to suggest that it is more important that a rule or principle which has been once well established should remain fixed, than that it should seem in all cases that the ruling of the court should be free from hardship or sometimes apparent injustice. The Supreme Court of Indiana has gone so far as to say:

"There are some questions in law the final settlement of which is vastly more important than how they are settled."

This is especially true as it affects titles to land. Where a fixed rule may at times seem harsh, a shifting and changeable law must eventually work much greater wrong, injustice, and hardship. It is wiser on the whole that the settled rule should continue unless, or until, a sense of its injustice under changed conditions leads to the proper cure by Statute Law.

Rules Changed for New Conditions. It is not quite true, however, that the courts exercise no discretion or liberty in adapting the principles of the Common Law to new conditions. While slow to change a rule once fixed, it is sometimes found that circumstances and conditions have

changed sufficiently so that, in the opinion of the court, the rule is inapplicable. Sometimes, but very rarely, the highest court of a State will reverse a ruling made by the same court (differently composed probably) at an earlier date. This happens so seldom, however, as not to affect the general proposition.

Pennsylvania Statements. A Pennsylvania court sheds light upon the subject in stating that:

"The Common Law of the United States is composed partly of the Common Law of England, and partly of the usages which have grown up in and are indigenous to the United States. When the ancestors of the people of the United States emigrated from the mother country, they brought with them such principles only as they deemed expedient for the situation in which they were about to place themselves."

A similar view is expressed in two other cases, both of them in Pennsylvania:

"It is the very essence of Common or Customary Law that it consists of those principles and forms which grow out of the customs and the habits of the people. It is therefore involved in its very nature that only so much of the English Law as is adapted to our circumstances and customs, is properly recognized as part of our Common Law."

"Common Law grows out of the general customs of the country, and consists of definitions of these customs and those auxiliary principles that naturally accompany them, or are deduced from them. The Common Law of one country or century is not necessarily the Common Law of another, because customs change."

Common Law in Different States. Following the principle of these Pennsylvania rulings, it happens that, under the different conditions prevailing in various States of the United States, the law in one of these States has come to differ in some particulars from that in another, although in general the main lines of the Common Law will be the same throughout all the States. Louisiana alone of the States is not governed by the Common Law; another system, the Civil Law, acquired from France, which will not be discussed here, has attained a foothold so strong that it still forms the basis of the law for that State. Each State of the Union is a sovereign State, and is thus independent of other States in the operation and control of its internal affairs. Especially is this true of its courts, which determine its laws; and the highest court of any State (generally called the "Supreme Court ") is not controlled or bound by the action of the courts of any other State, nor even by the courts of the United States in any controversies as to matters within the State when the parties to it are citizens of that State. One exception is when there is some conflict with a provision of the Constitution of the United States; in

this case an appeal may be carried to the Supreme Court of the United States. Another apparent exception lies in the fact that the United States courts are available and a proper resort for the trial of cases or controversies between citizens of different States.

Systems of Courts. In each State there are courts of higher jurisdiction and of inferior jurisdiction. In most States the court of highest jurisdiction is called the Supreme Court. The inferior courts are designated differently in different States; in Massachusetts the Superior Court is the second in dignity; there is also a Municipal Court; and, as in most States, there are also the minor courts presided over by justices of the peace. The Supreme Court is made up of a number of judges who together act in determining the law and formulating the "decisions" of this Supreme (or highest) Court; these decisions are recorded and printed, and it is now well settled that they are absolutely binding upon any lower court in the same State. The Supreme Court of a State may (but very rarely does) reverse an earlier decision of the same court, as has already been stated. The inferior court has absolutely no discretion; it is strictly held by the decisions of the Supreme Court of its State. While the decisions in one State are not binding upon the courts of another State, yet even here they are entitled to, and do in fact receive, the greatest consideration, and in a large share of cases will be accepted as conclusive. It is true, however, that the decisions of the courts of some of the States are regarded more highly than those of other States.

Reports of Decisions. In this way have grown up a vast number of printed reports, and from the decisions found in these reports can be extracted, if one be wise and skilful, what the established law is; that is, the "Common Law." It should be understood that the opinion of a judge has force in the Common Law only upon the points specifically in controversy before him. Each case is tried, the two sides are presented by their respective lawyers, and the case is decided in harmony with other decisions to be sure, so far as the cases are parallel, but, so far as new principles are involved, according to what the court believes to be right and just.

Textbooks. Textbooks of law are valuable as compilations of the law as found in law reports; often the text is in reality a series of quotations from reports. So far as the author of a textbook expresses opinions of his own, they are of no binding force upon any court, and are valuable only as these opinions are sound and likely for this reason to favorably impress the mind of the judge.

Sense of Right and Justice. So far does the spirit of right and justice enter into the law that some good lawyers believe that a fine sense of right and wrong is well-nigh the best equipment any lawyer can have. A keen

sense of what is right and what ought to be the law in a special case will often lead to the discovery that this is in fact the law.

It cannot be too strongly emphasized that the fundamental basis of the Common Law is right and justice; with this is a recognition of the fact that in many cases business custom determines what it is right to do, and that certainty and stability as to right action are essential if correct relations and conduct are to be secured.

Value of Stability for Engineers. Following the principle underlying the Common Law that stability is a prime necessity, it would add much to the dignity and the respect accorded to the profession of engineering, to the engineer and surveyor, if greater stability was secured from their work. A boundary line once reasonably fixed by one surveyor should be held to by another surveyor unless definitely found to be in error. In other directions, unnecessary disagreements should be avoided, and, so far as reasonable, engineering should be recognized as fixed and definite in its principles. The entire profession of engineering suffers when the work of a reputable engineer is unnecessarily attacked or held up to contempt.

STATUTE LAW

Statute Law to Meet Changed Conditions. As has been suggested previously, it will be found sometimes that what seemed right and just a hundred years ago may cease to be right and just now; this is one reason for the passing of laws or statutes. Statute Law serves various purposes; it sometimes changes the older Common Law; it sometimes provides for different penalties, or different legal procedure. In any case it does away with previous law inconsistent with it. A later statute as a rule repeals all earlier conflicting laws whether Statute or Common Law.

Definition. Statute Law consists of acts or statutes passed in set terms by the proper legislative bodies. It may be divided into three classes; declaratory, remedial, and penal. Sometimes the statute is passed for the purpose of clearing a doubt which may exist in the Common Law, and in this case it is called "declaratory"; when the statute is passed to remedy what seems to have become a defect, or an injustice, in the "Common Law," or to improve the procedure, it is "remedial," and a statute which provides for the imposition of a penalty is called a penal statute.

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Example. Interstate Commerce Act. The original Interstate Commerce Act of 1887 is partly declaratory, as where, in Sections 2 and 3, it declares it unlawful (which was already the case) for any common carrier to charge or receive from one person more or less than from another for the same service, or to give undue preference to one over another; it is

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