SOURCES OF THE LAW
By this expression is understood the authority from which the laws derive their force.
The power of making all laws is in the people or their representatives, and none can have any force whatever, which is derived from any other source. But it is not required that the legislator shall expressly pass upon all laws, and give the sanction of his seal, before they can have life or existence. The laws are therefore such as have received an express sanction, and such as derive their force and effect from implication. The first, or express, are the Constitution of the United States, and the treaties and acts of the legislature which have been made by virtue of the authority vested by the Constitution. To these must be added the Constitution of the state and the laws made by the state legislature, or by other subordinate legislative bodies, by virtue of the authority conveyed by such Constitution. The latter, or tacit, received their effect by the general use of them by the people, when they assume the name of customs by the adoption of rules by the courts from systems of foreign laws.
The express laws, are first, the Constitution of the United States; secondly, the treaties made with foreign powers; thirdly, the acts of congress; fourthly, the Constitutions of the respective states; fifthly, the laws made by the several state legislatures; sixthly, laws made by inferior legislative bodies, such as the councils of municipal corporations, and general rules made by the courts.
The Constitution is an act of the people themselves, made by their representatives elected for that purpose. It is the supreme law of the land, and is binding on all future legislative bodies, until it shall be altered by tho authority of the people, in the manner, provided for in the instrument itself, and if an act be passed contrary to the provisions of the Constitution, it is, ipso facto, void.
Treaties made under the authority of the Constitution are declared to be the supreme law of the land, and therefore obligatory on courts.
The acts and resolutions of congress enacted Constitutionally, are of course binding as laws and require no other explanation.
The Constitutions of the respective states, if not opposed to the provisions of the Constitution of the United States, are of binding force in the states respectively, and no act of the state legislature has any force which is made in contravention of the state Constitution.
The laws of the several states, Constitutionally made by the state legislatures, have full and complete authority in the respective states.
Laws are frequently made by inferior legislative bodies which are authorized by the legislature; such are the municipal councils of cities or boroughs. Their laws are generally known by the name of ordinances, and, when lawfully ordained, they are binding on the people. The courts, perhaps by a necessary usurpation, have been in the practice of making general rules and orders, which sometime affect suitors and parties as much as the most regular laws enacted by congress. These apply to all future cases. There are also rules made in particular cases as they arise, but these are rather decrees or judgments than laws.
The tacit laws, which derive their authority from the consent of the people, without any legislative enactment, may be subdivided into; 1st. The common law, which is derived from two sources, the common law of England, and the practice and decisions of our own courts. It is very difficult, in many cases, to ascertain what is this common law, and it is always embarrassing to the courts. In some states, it has been enacted that the common law of England shall be the law, except where the same is inconsistent with our Constitutions and laws.
2d. Customs which have been generally adopted by the people, have the force of law.
3d. The principles of the Roman law, being generally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rules which now adorn the common law appear there without any acknowledgment of their paternity, and it is at this source that some judges dipt to get the wisdom which adorns their judgments. The proceedings of the courts of equity and many of the admirable distinctions which manifest their wisdom are derived from this source. To this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical courts, figures in our laws respecting marriage, divorces, wills and testaments, executors and administrators and many other subjects.
5th. The jurisprudence, or decisions of the various courts, have contributed their full share of what makes the law. These decisions are made by following precedents, by borrowing from the sources already mentioned, and, sometimes by the less excusable disposition of the judges to legislate on the bench.
The monuments where the common law is to be found, are the records, reports of cases adjudicated by the courts, and the treatises of learned men. The books of reports are the best proof of what is the common law, but owing to the difficulty of finding out any systematic arrangement, recourse is had to treatises upon the various branches of the law. The records, owing to their being kept in one particular place, and therefore not generally accessible, are seldom used.