§ 13. Statute Law The term "statute law" or "statutory law" is frequently used in contradistinction to the common law. In its general use it means all law expressed in constitutions, codes and enactments of the legislature, and is identical with the term "written law" as used herein. In a narrower sense it means the legislative enactments of the states or of the United States, which are published in volumes of statutes, or revised statutes, as "The Revised Statutes of the State of New York." In such a work will be found all the laws regulating the conduct and activities of the citizens and others in the state. The common law gives way whenever it comes in conflict with the statute law. The legislature in each state has authority to supersede, extend or abrogate the common law. The common law is the old law that prevails until it is overruled by statutes of the United States or of a state legislature. §14. Subsidiary Laws In late years there has come into existence an immense additional body of written law consisting of the rules and regulations issued by boards of health, building boards, school authorities, and various bureaus and commissions. For instance, the Interstate Commerce Commission is empowered by Congress to regulate particular matters concerning the railroads. In most of the states there are railroad commissions with similar authority to regulate traffic within state boundaries. Moreover, the different transportation companies and the other corporations operating public utilities have the right to make reasonable regulations for the government of those using their facilities. Thus, in the aggregate, the "written" or "statutory" law comprises a vast number of legal and semi-legal enactments, from articles of the Constitution down to the rules of the trustees of the smallest school district. REVIEW QUESTIONS 1. What is written law? What is a constitutional government? 3. Does a constitution have to be written? 4. What is meant by a government of limited powers? 6. How have powers granted by the constitution been extended from time to time? 7. Why cannot Congress give us a system of uniform divorce laws? 8. Has Congress the right to debar from interstate commerce articles made by child labor? Give reason for your answer. 9. Why has it been made difficult to amend our constitution? What is the difference between matters that should be embodied in a constitution and matters that are properly subject to legislative action? 10. II. Name in order of authority and dignity the sources of "written law." 12. Why has New York State a constitution, while New York City has not? 13. Name some congressional laws passed within recent years. 14. What laws are superior to a state constitution? 15. Name some laws passed by the legislature of your state within recent years. §15. Definition CHAPTER III THE UNWRITTEN LAW To the layman, perhaps, the term "unwritten law" is somewhat misleading. It is called unwritten law because there was a time when it was not written. As soon as men commenced to live in communities they found it necessary to conduct their intercourse and dealings according to rules, and these customs or uniform methods of doing things are supposed to be the foundation of what is now called the "common" or "unwritten law." For instance, when vehicles meet it is the custom in this country to turn to the right. This custom is not the enactment of any legislature, and yet it is practically a law, for if anyone driving a vehicle failed to observe it he would be liable for any damage that resulted. It might be possible to find cases where this particular matter had come up and received the ratification of a court decision, but in such cases the court did not make either the custom or the law; it merely recognized that the custom was general and hence had the force of law. That is, the court recognizes the custom as law, because men have acted in one way until that way has become a rule of action; the court is bound by it although there is no written record. When so recognized by a court, it would be placed upon the court records and so would actually be written down, yet it is still called "unwritten law" because it is based on the earlier unwritten custom instead of upon legislative enactment. Lawyers distinguish these classes by the Latin terms lex scriptawritten law-and lex non scripta-unwritten law. § 16. The Doctrine of Precedents The courts do more than record customs; they create law by decisions that then become precedents. In primitive days when men had differences of opinion they would get someone older and supposedly wiser than the rest, to arbitrate or decide the matter. When a given matter had once been decided in a certain way, the inhabitants of the country would shape their conduct according to this decision; it would be a precedent for future action and future decisions and in this way would become part of the unwritten law. Gradually, as civilization increased and these precedents accumulated, a "body" of unwritten law grew up, founded partly on customs and partly on precedents established by the courts. Moreover, if a question came before one of these early courts and no custom could be found on which to base the decision and no precedent to guide it, the judge would decide according to his ideas of right and justice and thus would add a new item to the sum of this unwritten law, which in turn would become a precedent for later cases like it. England has been eulogized by its poet laureate as: A land of settled government, A land of old and fair renown, Where Freedom broadens slowly down, § 17. Court Reports In the old days when writing was a rare accomplishment, individual lawyers used to make their own notes of cases in what were called "Common-Place Books," which they would use as authorities when similar cases were tried. In this way there grew up the custom of making court reports. Today the decisions of the courts are most carefully recorded and published, and the court reports are the greatest repositories of this so-called "unwritten law." § 18. The Volumes of Reports The difficulty in our country at the present time is that we have over forty-eight different and independent systems of courts, all grinding out decisions, which are recorded and published in long rows of volumes. In the first place the number of reports has become so great that it is impossible for even the most industrious lawyer to keep up with them. The existing law reports of this country fill thousands of volumes, and every year they are growing in number and complexity. In the second place, there are forty-eight separate jurisdictions, the decisions do not always harmonize, and then occurs a conflict of laws. Lawyers depend on large law libraries to which they have access, kept up usually on a co-operative basis. Meanwhile, they subscribe for volumes of digests and use encyclopedias of law to guide them in their searches through this ever-increasing maze of judicial decisions. In each state the decisions of the highest state courts are paramount, and the lawyers in the state try to familiarize themselves with at least the trend of these decisions. Whenever political, economic, and social conditions change so radically that the decisions of the higher courts become unjust or restrict legitimate activity too much, the state legislature interferes and enacts laws that supersede the judicial decisions. In other words, the written law prescribed by the legislature overrules the unwritten law that comes from the decisions of the court. $ 19. Citations When a lawyer wishes to use a case in argument, he cites it by naming the parties, the number and name of the report, and the page on which the case is found. Only by practice can a person know, when a case reference is given, what court |