The Business Law of Wisconsin

THE BUSINESS LAW OF WISCONSIN.

CHAPTER I.

THE LAW IN GENERAL.

The word "law" in its broadest sense, denotes a rule of action. Whatever law, in this sense, we have reference to, lays down some principle; by its application to given facts or phenomena one may determine certain consequences. Thus, we speak of the laws of nature, of the laws of morality, etc. Nothing can occur in the physical world which is not subject to some law. We know, for instance, of the laws concerning falling bodies, the transmission of light and sound, and the movements of the heavenly bodies.

It is evident from the above that when the word law is used in its broadest sense, it may apply to inanimate matter as well as the conduct of men. Man's conduct is generally determined by his sense of right and wrong. We can easily understand that the laws governing human conduct are not as certain in their operation as the laws of matter. What is right and wrong is often a matter of circumstances, and even under similar circumstances men sometimes differ in judgment. It is also evident that laws governing human conduct, in order to be just, must change as conditions change, and therefore a system of human laws, which is unchanging and absolutely right, is for this reason alone impossible.

Kinds of Law.-Human beings, in their intercourse with each other, are regulated by various kinds of law. Usually, man's conduct is governed by the moral law, which may be defined as a rule of conduct dictated by the conscience. The

moral and municipal law, spoken of below, usually agree, but there are a great many matters which cannot be made the subject of positive legal regulation. For instance, it is morally wrong to lie, but lying alone is not followed by any legal consequences.

In their intercourse with each other as nations, or states, mankind are regulated by International Law. This is defined as consisting of "those rules of intercourse between nations, which are deduced from their rights and moral claims, or in other words, it is the expression of the jural and moral relations of states to one another."

Municipal Law is a rule of civil conduct prescribed by the law making power in the state. It consists of "those rules and principles of conduct which the governing power in a community recognizes as the rules and principles which it will enforce or sanction, and according to which it will regulate, limit or protect the conduct of its members."

Classification of Municipal Law.-It will be seen from the foregoing definitions, that by law as commonly understood is meant the municipal law. The term includes all rules of conduct to which obedience can be enforced by organized society. Under the system of government in force in the United States we are subject to various distinct branches of municipal law, as follows:

Constitutional law, state and national; statutory law, state and national; treaties; the common law; municipal ordinances.

The subject of constitutional law is spoken of in the next chapter.

Statutory Law.-Under the constitution of the United States, Congress, and under that of Wisconsin, the legislature, is authorized to make laws. Laws made by these bodies are called statutes. "A statute is the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state." A statute passed by Congress is sometimes called "an act of Congress." A statute differs from the common law in that it is a written enactment and expressly declared to be law by Congress or the legislature of a state, as the case may be. The reader should understand that the law of a state is not all made by the legislature. By far the greater part of the law is common law, defined in the next section.

The legislature has power to change the common law by statute, and sometimes statutes are only declaratory of the common law. No statute can be repugnant in its terms to the Constitution of the United States or laws passed in pursuance thereto, or treaties made or the Constitution of the state. When a statute conflicts with either constitution it is void and of no effect, and is said to be unconstitutional.

The method of enacting statutes is prescribed by the Constitution of the United States and the state of Wisconsin. The laws passed by Congress and the legislatures of the different states are collected at each session. In Wisconsin they are known as the Session Laws. The statutory law of Wisconsin is found in a work called the "Revised Statutes", which takes its name from the fact that it is revised every few years to embody the laws passed at the various sessions of the legislatures.

The Common or Unwritten Law. The common law consists of "those maxims, principles and forms of judicial proceeding, which have no written law to prescribe or warrant them, but which, founded on the law of nature, and the dictates of reason, have, by usage and custom, become interwoven with the written laws, and by such incorporation, form a part of the municipal code of each state or nation which has emerged from the loose and erratic habits of savage life to civilization, order, and a government of law." Blackstone says that "the common law is reason dealing by the light of experience in human affairs." In short, the common law consists of rules of conduct which have been established by custom and long experience, and which have the force of law. The common law, as found in Wisconsin, originated in England. It was adopted generally in the United States as far as applicable to our conditions, and has been modified by legislation and the rulings of courts to adapt it to this country.

The English common law is derived from immemorial usage and custom. Its rules originated in the customs and experience of mankind, and it has been called "the perfection of reason." Sir Mathew Hale, one of the early English law writers, says of it: "It is not the product of the wisdom of some one man, or society of men, in any one age, but of the wisdom, counsel, experience and observation of many ages of wise and observing men."

The colonies which afterwards became the original thirteen states forming the Union were governed by the English common and statutory law, and when they became independent, retained their former laws as far as applicable to their condition. As the principles of the common law are based on custom and experience, it will readily be seen that nearly all of the English common law was applicable to the United States. The common law of the United States then became a part of the law of the territories of the United States, and as the territories became states, they retained the common law. Thus the common law found its way to Wisconsin.

The Ordinance of 1787, passed by Congress for the government of the North-West Territory, of which Wisconsin was a part, provided that "The inhabitants of the said territory shall always be entitled to the benefits. . . . . of judicial proceedings according to the course of the common law" and when Wisconsin became a state, it was provided by the Constitution that "such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature." And our Supreme Court has decided that "the common law as amended by acts of parliament prior to the American Revolution is in force in this state, so far as it is applicable to our conditions and not modified by our constitution and statutes."

The advantage of the common law over statutory law is that its principles are flexible. They are applicable to all cases which may arise: the cases may be new, but none can arise which cannot be solved by the application of the principles of the common law, which adapt themselves to every condition and exigency of human society. What the common law on a given subject is can be acertained by a reference to the decisions of courts and the works of text book writers.

A treaty is "an agreement made between two or more sovereign states, entered into usually by authorized agents and duly ratified by the sovereign power of the respective parties." Treaties with foreign countries can only be made by the government of the United States, and the power to make them is vested by the constitution in the president and senate.

An ordinance is a law passed by the governing body of a

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The Business Law of Wisconsin: With a Collection of Practical Forms for the ...