SOURCES OF THE LAW. The authority from which the laws derive their force. A term used to include all the reliable testimo nials of what constitutes the law.
The power of making all laws is in the people or their representatives, and none can have any force whatever which are derived fronl any other source. But it is not required that the legislator shall ex pressly pass upon all laws, and give the sanction of his seal, before they can have life or existence. The lawe are, therefore, such as have received an ex press sanction, and such as derive their force and effect from implication.
The express laws are—first, the constitution of the United States ; secondly, the treaties made with foreign powers ; thin[l]y, 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, and the general rules made by the courts. The constitutions of the respective states, if not opposed to the provisiona of the constitution of the United States, are of binding force in the states re spectively ; 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 com plete 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 bor oughe. Their laws are generally known by the name of ordinances, and when lawfully ordained they are binding on the people. The courts, per haps by a necessary usurpation, have been in the practice of making general rules and orders, which sometimes affect suitors and parties as much as the most regular laws enacted by congress. These ap ply 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 en actment, may be subdivided into,— The common lam, which is derived from two sources, the common law of England, and the prac tice and decisions of our own 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. See LAW.
Customs which have been generally adopted by the people have the force of law.
The principles of Roman law. See Crvn, LAtv. The Canon law, which was adopted by the eccle siastical courts, figures in our laws respecting mar riage, divorces, wills add testaments, executors and administrators, and many other subjects.
The jurisprudence, or 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 mentioned, and sometimes by the lees ex cusable disposition of the judges to legislate on the bench.
The monument 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 acces sible, are seldom used.
"Laws derive their authority from possession and use ; 'tis dangerous to trace them back to their beginning ; they grow great and ennoble them selves, like our rivers, by running ; follow them upward to their source, 'tis but a little spring, scarce discernible, that swells thus and thus fortifies itself by growing old. Do but consult the ancient considerations that gave the first motion to this famous torrent, so full of dignity, awe, and rever ence ; you will find them so light and weak that it is no wonder if these people, who weigh and re duce everything to reason, and who admit nothing by authority or upon trust, have their judgments very remote and differing from those of the public." Montaigne, Essays, 1I, ch. xii.
See LAW; PRECEDENT ; JUDGE-MADE LAW; JUDI CIAL POWER ; LEGISLATIVE POWER ; STARE DECISIS ; CONSTITUTIONAL; TREATY; STATUTE; COMMON LAW; CIVIL LAW; PRIZE COURT ; INTERNATIONAL