decision the author cites. It is no small part of a lawyer's training to know where to find the decision he wants. This matter of finding cited cases is explained in Appendix B.

$20. The Common Law

The unwritten law was also called, as has been said, the "common law," and old-school lawyers were fond of extolling it as the perfection of human wisdom. When this country broke away from England at the time of the Revolution we retained the English common law, and it became the foundation of the general system of law prevailing throughout most of this country. In Louisiana, however, and to a certain extent in Texas and California, the so-called Roman or "civil law" was introduced and became largely the foundation for the systems of law in those states. This system based on the old Roman law, prevails in Italy, France, and other Latin countries in Europe and is utilized by the Teutonic peoples as well. The English law is indebted to the Roman system more than English common law advocates are willing to admit, and it might have been better had more been borrowed.

The original English common law was a harsh and barbarous code, having little or no consideration for the rights of women and children and making man the tyrant of the family. Any infractions of its provisions were punished with drastic penalties. The smallest theft by man, woman, or child, was punished by death. At the present time most of the harsher features of the common law have been eliminated. Juries refused to convict prisoners on account of the cruel penalties, and the law has been modified by numberless legislative enactments and expanded by judicial construction, to fit a more civilized and cultivated society than that in which it originated.

It is evident that the term "unwritten law" covers a wider field than "common law." Therefore it is used in this work

to designate the law that is contained in the reports of the

courts.

§ 21. Law-Merchant and Commercial Law

The law-merchant was originally a part of the general law of nations, being concerned with bills of exchange and the like, freights, average, demurrage, insurance, bottomry and other matters of the same nature pertaining to commerce.

Chancellor Kent in his commentaries says that the lawmerchant "consists of certain principles of equity and usages of trade, which general convenience and a common sense of justice had established to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world."

Blackstone refers to it as "The particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions."

While the law-merchant had its origin in international usage, as a matter of fact it was incorporated into and made a part of the body of the common law of England and was with it transplanted to this country and made a part of our own common law so far as it was applicable to our conditions. In later years it has been largely extended and modified by statute but still remains part of our unwritten law and as such governs in the present course of trade and business.

The term law-merchant is generally applied to the old laws or customs of merchants. The corresponding modern term is commercial law, which is defined as the body of principles and rules, drawn chiefly from the customs of merchants, by which the rights and obligations arising in commercial transac

tions are determined. It is also defined simply as the law applicable to commercial transactions.

§ 22. Unconstitutional Laws

It frequently happens that a legislative enactment designed to overrule some objectionable decision of the courts comes into conflict with a provision of the state constitution or of the United States Constitution and the courts may decide this new law to be unconstitutional. If the people in the state should still desire to maintain the legislative enactment, they would have to amend the state constitution except in states, Colorado for example, whose constitution provides for the “recall of judicial decisions" by the vote of the people. So far as the writer knows, however, this power has never been invoked, and indeed it seems a dangerous right since popular passion might easily be swayed to commit on occasion, in this way, great injustice. In case the law were in conflict with the Constitution of the United States, the people must either submit or else undertake the very arduous task of stirring up all the people in the country to amend the Federal Constitution.

A notable instance of this is the income tax law, which was passed by Congress but declared unconstitutional by the Supreme Court. Then the Constitution was amended, whereupon Congress passed the present income tax law which, with its amendments, will doubtless be a permanent feature of our system of taxation.

§ 23. The Recall of Judges

Within the last few years many persons have become impatient with the slow process of changing the Constitution. This has led them to advocate, as a short cut to securing better laws, the recall, that is, the dismissal, of any judges who decide that popular laws are unconstitutional. If this law went into

effect any judge who rendered decisions opposed by the majority of the voters could be recalled and a more subservient arbitrator elected. For several reasons such a procedure seems unwise. It would be better to facilitate the process of amending the Constitution than to seek judges who will disregard the plain letter of existing law and will support, as legal, laws that plainly are not in harmony with the provisions of the Constitution. But this is too large a subject for treatment here.

REVIEW QUESTIONS

1. Give some examples of custom-made law.

2. When a custom is recognized by a court and its decision is recorded, what is the effect?

3.

What is the argument for observing precedents?

4. What is the disadvantage of our numerous volumes of reports?

5. In what cases do legislative enactments supersede court decisions?

6. Give the arguments for and against the recall of judges.

7. What is the relation between the common law and statute law?

8. Where do we get our common law?

9. What countries have laws most nearly like ours?

CHAPTER IV

LAW AND EQUITY

§ 24. Remedial Law

When anyone has suffered wrong and his legal rights have been infringed, he seeks a remedy. The law itself may be ideal, but if the machinery to enforce the rights defined by the law be defective, abstract perfection will avail but little. Therefore a study of what is called remedial law is necessary before we can tell what real help we are likely to obtain from the law. The "law's delay" is proverbial. In all matters of judicial procedure there has always been a tendency to formality and "red tape." Too often this tendency becomes so excessive that it nullifies the remedy and results in a denial of justice. The remedy may be so costly and long deferred that it were better left unsought. The man with limited means is too often, on this account, barred from seeking justice.

Suits or actions to redress wrongs or to enforce rights are classified as suits at law and suits in equity. It is not easy to explain briefly the distinction between the terms "law" and "equity" as they are used in our administration of justice. The two words are used in this connection without any reference to the ordinary meaning attached to them. A real, technical distinction exists between a case at law and a case in equity which a lawyer must thoroughly understand. Whether it would pay a business man to study out the exact and full distinction between the two is doubtful. But, as it is impossible for a lawyer to avoid using the terms in their technical sense, it is important that the layman should have a general idea of what the lawyer means, so that the plain