SOURCES OF THE LAW. The au thority from which the laws derive their force. A term used to include all the relia ble testimonials of what constitutes the law.
2. 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, bpfore they can have life or ex istence. The laws are, therefore, such as have re ceived 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 ond 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 subordioate legis. lative bodies, hy 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— or by the adoption of rules by the courts from systems of foreign laws.
3. 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 legisla tures ; sixthly, the laws made by inferior legislative bodies, such as the councils of municipal corpora.. tions, ond the general rules made by the courts.
The constitution is an act of the people them. selves, 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 the authority of the people, in the manner provided for in the instru. ment itself; and if an act be passed contrary to tho provisions of the constitution it is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall. 309; 3 id. 386 ; 4 id. 18; 6 Crunch, 128.
4. Treaties made under the authority of the constitution are declored to be the supreme law of the land, and, therefore, obligatory on coorts. 1 Branch, 103. See TREATY.
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 mode by the state legislatures have full and com plete authority in the respective states.
5. Laws are frequently made by inferior legisla tive bodies which are authorized by the legisla ture : 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, par haps by a necessary usurpatioo, have been in the practice of making general rules and orders, which sometimes affect suitors and parties se much as the most regular laws enaoted by congress. These apply to all future cases. There are also rules made in particular cases as they arise; but that) are rather decrees or judgments than law 3.
6. The tacit laws, which derive their authority from the consent of the people without any legis lative cuactment, may be subdivided The tommon law, which is derived from two sourees,—the common law of England, and the praotice and decisions of our own courts. In some states it has been enacted that the common law of England shull be the law, except where the same Is ioconsistent with our constitutions and laws. See LAW.
atallIII8 which have been generally adopted by the people have the force of law.
.The principles of the Roman law, being gene rally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rulea which now adorn the common law appear there without any acknowledgment of their paternity ; and it is at this source that some judges dipped to get the wisdotn which adorns their judgments. The proceedings of the courts uf equity, and many of the admirable distinctions which manifest their wisdom, are derived from this source. Tu this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty eases.
The Canon. law, which was adopted by the eccle siastical courts, figures ia our laws respecting mar riage, divorces, wills and testaments. executors and administrators, and many other subjects.
The juri,iprudence, pr decisions of the various courts, have contributed their full share of what makes the law. These decisions are made by fol lowing precedents, by borrowing from the sources already tnentioaed, and sometimes by the less ex cusable disposition of the judges to legislate on the bench.
7. The monument where the common law is to be found are the records, reports of cases adjudi cated by the courts, and the treatises of learned mea. The books of reports are the best proof of what is the commen law; but, owing to the difficulty of finding out any systematic arrangement, re °course is had to treatises upon the various branches of the law. The records,. owing to their being kept in one particular place and therefore nut geaerally accessible, are seldom used.