Page:The Green Bag (1889–1914), Volume 17.pdf/127

 THE GREEN BAG the law proceeds from the people; instead of being set down in fixed terms, it is a product of times and conditions changing in light and shade accordingly; and further, instead of being prescribed, it is part of the very life of the State. (4) The definition should not de clare that law consists in commands and pro hibitions. Courts command. The law is gen eral, the precept particular. (5) The words "right" and "wrong" in their context import divine rather than municipal law, and he ex plains them as referring to the declaration of the sovereign. A definition need not exclude what it does not suggest and a definition of law that puts the term within rigid lines would be perilous to use in the administration of jus tice. Allowance should be made for the great indeterminate forces that relate to law. "A correct analysis of the typical phenomena of law — a grip of things as they are — should lead to the desired results." The elements of law in the sense of require ment are right, duty, and a relation between the two. Right, apart from natural funda mental rights and rights not in dispute is whatever the judge decides. It is based on the idea of "freedom to do whatever is reas onable." What is meant by reasonable, so far as the meaning of right or law is con cerned, must be left indeterminate until decided by the courts. 'Duty is the comple ment of right. Both are particular and per tain to the individual. Law, however, is gen eral and is the relation between the individ uals to whom they respectively pertain. Law in the sense of authority signifies legislative authority. "Municipal law signifies the existence of binding relations direct and collateral of right and duty between men or between the State and men; or legislative grant of authority under which such relations may be created; each in virtue of freedom to do whatever is reasonable." "Remedial law signifies the existence of relation of right and duty between the State and the members of the same in consequence of a breach of duty, binding the State to en force compensation in civil and punishment subject to pardon in criminal cases. "Procedure signifies the means provided by

the State for enforcing the law original and remedial." MARITIME LAW (Barter Act) IN the Albany Law Jouinal (Vol. Ixvi, p. 369) and in the American Law Review (Vol. xxxviii., p. 843) is printed an address by John C. Walker, delivered before the Texas Bar Association of interest to admiralty lawyers, entitled "The Harter Act." A careful explan ation of the results of this change in the liability of ship-owners for negligence is con cluded as follows: "Does not this act afford food for thought respecting the future trend of national legis lation? Rightful complaint is made of want of uniformity in the statutes of different States; for example, the conflicting divorce laws, with 'their far-reaching consequences, and a cry is often heard for Federal control of that subject. It can not be denied that, generally speaking, uniformity is to be de sired in all laws. Would not the great rail road systems, those stupendous combinations of capital reaching through every State of the Union, be benefited by similar legislation re lieving them of liability for the negligence of their servants in any degree? May they not have the abstract right to be placed on the same footing with the great steamship corpo rations? Is not the argument more than plausible that special privileges should not be granted to one class of common carriers which are denied to others? And may not these railroad systems in time demand to be placed on an equality with carriers by water? Such demands when made by the representa tives of powerful moneyed interests are likely to obtain at least a respectful hearing before the national lawmakers. When we recognize the power of the National Legislature to reg ulate interstate commerce, does not the thought suggest the possibility that at some time hereafter Congress, in its wisdom (or want of wisdom), may enact a. law applying provisions like those contained in the third section of the Harter Act to interstate car riers on land?" PARTNERSHIP (see Associations)