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any title of nobility which he may possess. (4) He must declare on oath that he will support the constitution of the United States. (5) The country from which such alien comes must not, at the time he seeks to be naturalized, be at war with the United States. (6) The applicant must be a person of good moral character. (7) Minor children of naturalized citizens are citizens of the United States, if they reside within the United States at the time of the naturalization of their parents."
22. See 2 Cyc. 110 et seq.
SOURCES OF THE MUNICIPAL LAW
§ 27. Sources of the Law in General. 28. The Unwritten Law in General. 29. The Civil or Roman Law.
30. The Common Law and Its Sources 31. Development of the Common Law32. The Law Merchant.
33. The Canon Law.
34. The Common or Unwritten Law in the United States.
35. Equity Courts of Equity and their General Jurisdiction.
36. Specific Character of Equity Jurisdiction.
37. The Maxims of Equity.
38. The Written Law in General.
Customs - Fictions
UNWRITTEN AND WRITTEN
47. Constitutionality of Statutes.
48. Affirmative and Negative Statutes. 49. Declaratory and Remedial Statutes. 50. Public and Private Statutes.
51. General and Local Statutes.
43. State Constitutions.
44. Acts of State and Territorial Legislatures.
45. Municipal Ordinances or By-Laws.
46. Enactment of Statutes.
39. Relation of the Written to the Unwritten Law.
40. The Constitution of the United States.
41. Acts of Congress.
52. Mandatory and Directory Statutes.
8 27. Sources of the Law in General. The sources of the municipal or positive law in the United States are: (1) The common or unwritten law of England as it existed at the time of the separation of the American colonies; (2) certain English statutes of general application enacted prior to that time; (3) the law administered in the English courts of equity; (4) the constitution of the United States and amendments thereto; (5) acts of the congress of the United States enacted in pursuance of the power conferred by the constitution; (6) treaties made between the United States and foreign nations under the authority conferred by the constitution; (7) the constitutions of the several States of the Union; (8) acts of the legislatures of the several States and Territories of the United States; (9) ordinances or by-laws
enacted by the legislative bodies of municipal corporations under authority conferred by the legislature of the State; and to some extent (10) the civil or Roman law, and (11) the canon law.
8 28. The Unwritten Law in General. All important systems of municipal law are made up of two elements, known, respectively, as the "unwritten law" and the "written law." The unwritten law of any country is that portion of the municipal law of that country which is not formally prescribed by the legislative branch of government or embodied in a written constitution, while the written law is that part which is expressly laid down by the legislature or adopted in express terms as the constitution of the
Not all municipal law is actually prescribed by the legislature of the state. That body, it is true, may make any law it sees fit, unless restricted by constitutional rules. But the law must have principles to govern every condition in which men are placed, and every relation which they bear to other men. When the complexity of modern civilization is considered, it becomes plain that these principles must be of an almost infinite variety and number. No legislature could, unless gifted with superhuman energy and foresight, prescribe laws to meet every state of facts which might arise within its jurisdiction. It will be found, therefore, that only a small proportion of the laws of any country are laid down directly by the law-making body. We may therefore divide the municipal law of any state into two kinds: (1) The written law, which is the direct result of legislation; and (2) the unwritten law, which is derived from other sources.
It is not to be understood that the unwritten law is at all times strictly without written form. It receives its name because it was not originally written. When a legislature passes a law, it is immediately recorded, and usually published in exact words, before it takes effect. Such a law is therefore in the strictest sense written. With laws of the other class, however, it is not necessary to their operation that they should be recorded at any time, and they are seldom written down except in the reports of judicial decisions and in the works of commentators.
The place of the unwritten law in the legal system is not difficult to understand. Courts, which are the instruments used by the judicial power in the exercise of its functions, may be said to be the mediators between law and fact. They are first confronted with a state of facts, to which they must apply some legal rule.
In a large majority of cases the legislative power has furnished no rule governing the case. But the courts do not deny justice to the suitors on that account. They reason that the sovereign body must have contemplated a rule for every case, and that such a rule, when not prescribed by the legislature, must be looked for elsewhere. In determining the proper rule to apply to the particular case, the courts look for guidance to the unwritten law.
§ 29. The Civil or Roman Law. The term "civil law" is sometimes used to designate what we have described as the "municipal law," and sometimes to designate that division of the municipal law which relates to civil rights and remedies, as distinguished from criminal law. In its more particular significance, however, it means that body of the law known as the Roman law, as distinguished from the law of England, and particularly from the common law, hereinafter explained; and in that sense it is used here.
Two great systems of unwritten law have been developed in the history of the Aryan races: the civil law of ancient Rome and the common law of England. The laws of every civilized nation of Europe and America are based upon one or the other of these two systems.2 The civil or Roman law (jus civile Romanorum), in its general sense, includes all the laws that were in force in Rome at any time during its history. But the term "civil law" is usually applied in a more restricted sense to that system which is embodied in the compilations made in the reign of the Emperor Justinian, during the sixth century A. D.
In the form in which it comes down to us, the Roman law, being codified, must be regarded as a system of written law. But in this condition it is merely the crystallization of that which it took centuries to develop, and until it reached this final form the unwritten law was its most important element, as it must needs. be in any desirable legal system. The growth of the Roman law begins with the beginning of Roman history. Its first authentic records are the laws of the Twelve Tables, which, although established as early as the year 450 B. C., yet were regarded as the foundation of the Roman law until the time of Justinian. The first five centuries of the christian era constituted the period during which the civil law was molded into the form in which we find it in Justinian's reign. It seems to have been chiefly made up of (1) the constitutions, or decrees and edicts and authoritative commands of the emperor; (2) the acts of the senate; (3) the laws of the people (plebiscita), passed in the popular assembly; (4) judicial decisions; (5) the judgments of magistrates;
2. As to the common law see infra, § 30.
and (6) the responsa prudentium, or the opinions and writings of jurists. Previous to the reign of Justinian, the Roman laws had several times been reduced to the form of a code. The principal compilation of this kind was that of Theodosius, in the fifth century A. D. But to Justinian we are indebted for the final compilation of the laws into a code so systematic and perfect that it is still regarded, after the lapse of nearly fourteen centuries, as a most magnificent monument of legal reason.
It is a striking fact that not one of the nations on the continent of Europe has produced an independent legal system. The states which composed the Holy Roman empire, regarding themselves as the legitimate successors of the Roman name and dignity, naturally held to the Roman law. And the other nations which had at one time or another been subject to the Roman arms, adopted the civil law as their inheritance when the Roman empire fell. The civil law, in the form given it by the compilation or codification of the Emperor Justinian, lies at the base of the legal systems of all of the nations of continental Europe and of countries colonized by them.
§ 30. The Common Law and its Sources Customs Stare Decisis. The common law is that system of unwritten law which grew up in England, and forms the basis of the English legal system. England has the distinction of being the only nation of modern times. which has evolved an independent system of unwritten law. The early English lawyers were accustomed to regard this system as of high antiquity, sometimes asserting that it was as old as the native Britons. But Blackstone justly remarks that to the ancient British laws were added many of the customs of the Romans, the
3. The Justinian Code consists of the following compilations: (a) The Early Code. Justinian first ordered a compilation of the imperial constitutions. This compilation, called the "Codex Vetus," or "Early Code," was completed and promulgated as law in the year 529 A. D. None of it has been preserved. (b) The Pandects or Digest. The Early Code having been completed, Justinian next appointed sixteen persons to revise and codify the entire civil law with the exception of the constitutions. This work was completed in three years, and the New Code was published in 533 in fifty books under the title "The Pandects." (c) The Institutes. These consisted of a still later work, also published in 533, designed as a text-book for the study of the law. It was hardly more than a revision of the work of
an earlier jurist named Gaius. Although it was primarily an elementary treatise, yet it was of equally binding force upon the people as the more pretentious works. (d) The New Code. This was a revision of the Codex Vetus, made desirable by the large number of new constitutions promulgated by Justinian since the compilation of that work, and it was published in 534. (e) The Novels. After the publication of the New Code, Justinian still continued to issue constitutions in such number that, upon his death, a separate collection of them was made. Many of them created material changes in the previously existing law. The new collection was published under the name of the "Novellae Constitutiones," or "New Constitutions." They are now usually referred to as the "Novels."