Page:The Green Bag (1889–1914), Volume 06.pdf/456

 Cases as " The Original Sources " of the Law.

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CASES AS "THE ORIGINAL SOURCES" OF THE LAW. By Dwight Arven Jones. IT is not uncommon to hear the decided cases referred to as " the original sources " of the law. And this character ization has some plausibility because of the fact that the cases do declare the law for a given locality. But when one stops to consider, he will see that the statement is not as to the authority of the law, but as to whence it comes, and that it contains a broad and exclusive assertion that the original sources of the law are to be found in the cases. Now this assertion is wholly untenable, and I think therefore that the use of the phrase alluded to is open to the serious objections that it ex aggerates the cases out of their proper sphere and ignores other and more im portant sources of our jurisprudence. To gain a better view of this question let us consider, first, some of the apparent sources of our law, and second, the scope of reason in creating and maintaining rules of law. No one in these days can question the great influence of Roman law upon the laws of European countries; and the more the subject of this influence is studied the more does it appear that this law has had a farreaching effect even upon the law of Eng land. In our search for the sources of the law, we are therefore at once directed to a study of the Roman law, and there we find as the basis of the law a body of orderly principles. We perceive that we must study early fragments of laws, the Twelve Tables, and later the famous Institutes of Justinian, and that we must constantly investigate generalizations of law. In no other way moreover can we gain an idea of the system of law which was approved by the Romans, and most of which, as Prof. Shel don Amos says in the preface to his 'work on the Civil Law, " is, under one form or another, living at this hour."

Back then of all the earliest decided English cases, we find this learned system of law. And not only has it existed in the far past, but side by side with the develop ment of the common law in England, there has gone on the application of the principles of the civil law to certain phases of English life and to every-day affairs in France, in Germany and in other European countries. The English people therefore have been continually absorbing the rules of the civil law, and both reported cases and ancient treatises bear much internal evidence of the great extent to which principles of right recognized centuries before have been in corporated into the English law. But not only have the cases thus been dependent upon ancient law, they have also frequently been controlled by custom or statutes, and they are in no sense the sole sources of English law. Statutory law more over was not infrequently adopted for the express purpose of overturning the decisions of the courts, as may be illustrated by re ference to the history of the early statutes enacted to prevent religious corporations from holding property in perpetuity. If we take our position at the present day and look about for the sources of our modern law, we find that we are entering upon a study to which a lifetime might be given with advantage. To estimate the effect upon our law of Roman, German, French and English law would be a haz ardous and laborious undertaking, and one would be forced to study statutes, decisions and commentaries alike. But the task would not end there, for to trace the sources of the laws of a particular locality in this country one must take into consideration the effect upon them of many neighboring and co ordinate jurisdictions. At no time more over has the effect and influence of statute