JO
THE GREEN HAG
in this later stage of the law they could not have done so without authority from Parlia ment, which probably would have been re fused if it had been asked for — the chan cellor now would have been ready to take care of any such suggestion. And the pow erful, and in many cases the only effective weapon for defeating crime fell between the two and expired. There is no a priori law in this impair ment of the injunction; but it must be ad mitted that the failure of the chancellor to keep the injunction alive for possible needs is a serious departure from the idea that the law should follow and protect the reasonable pursuits of the people. The result is, that a great and serious cry is now going up against what might never have been dis puted; and the cry is so widespread and influential that legislation is halting if not powerless, and only the judges know what to do. . Constitutions and statutes are apt to con tain real expressions of a priori doctrine, constitutions particularly in the framing of government. The Constitution of the United States is of course the striking example, or rather contains a supply of examples; one has but to read the debates of the Conven tion which framed it to see how much of that famous instrument was fashioned on a priori lines — a thing of course to some extent unavoidable in such a case. And how liable the courts are to add to the dif ficulty — sometimes they are driven to it — in construing constitutional or statutory provisions. The word "commerce" in the commerce clause of the Federal Constitu tion is a striking and to the guild of insur ance underwriters a painful example. Con gress has power under the Constitution to regulate commerce between the States. "Commerce" was no doubt an unfortunate word to use; but what the framers of the Constitution were aiming at is made plain enough in their debates and in the notorious facts of the time, if not in the final lan guage of the Constitution itself; they were
endeavoring to break down the barriers to freedom of intercourse between the States — business intercourse especially, of all kinds. They however, without due caution, used the word commerce instead of business or some such term, and the Supreme Court of the United States, looking at the letter alone, could accordingly say, and did say, that insurance was not commerce, and hence that the States were not prohibited from discriminating against each other in regard to that important subject.1 And so the business of insurance was put in fetters not intended. The recent codification of the law of nego tiable instruments affords another illustra tion. Objection has been found to details of the statute, and for the most part, it seems to me, justly. But a more serious objection, I cannot but think, is that the compilers seem to have drafted the law step by step, without sufficient grasp of the gen eral theory which underlies the whole of the law merchant — a defect, it must be admitted, in which they have, now and then, the good company of the courts. The codifiers of the statute in question appear never to have sufficiently considered the fact that the basis of the law was the custom of mer chants and bankers, and that that should, as far as possible, that is always if possible, be considered to have been the guide of the courts in expounding the subject, a guide sometimes lost indeed, sometimes not looked for, but after all the general guide. It should have been clear that the departure of the judges, whenever they do appear to have lost sight of the guide, was due, not to any real purpose to refuse a place to custom, but to the natural tendency to apply reasoning, that is common law reasoning, everywhere. Indeed, the codifiers of the statute seem not to have taken to heart the plain inti mation of theory given in one of the early sections of the act itself, — the section in Paul v. Virginia, 8 Wall. 168.
