common law

The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.

That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, suph as the Roman or civil law. As distinguished from statute law, those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent, Comm. 492. The body of rules and remedies administered by courts of law, technically so called, in contradistinction to those of equity, and to the canon law. 3 Pet. (U. S.) 446. The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application. As used in the United States, it includes both the unwritten law of England and the statutes passed before the settlement of the United States. 5 Pet. fU. S.) 124; 18 Wis. 147. The common law is not fixed in its scope, but develops new principles by analogy as new conditions arise. 42 Ala. 597.

That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the Roman or civil law. Those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent 492. The body of rules and remedies administered by courts of law, technically so called, in contradistinction to those of equity and to the canon law. The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application. The most prominent characteristic which marks this contrast, and perhaps the source of the distinction, lies in the fact that under the common law neither the stiff rule of a long antiquity, on the one hand, nor, on the other, the sudden changes of a present arbitrary power, are allowed ascendency, but, under the sanction of a constitutional government, each of these is set off against the other; so that the will of the people, as it is gathered both from long established custom and from the expression of the legislative power, gradually forms a system— just, because it is the deliberate will of a free people — stable, because it is the growth of centuries — progressive, because it is amenable to the constant revision of the people. A full idea of the genius of the common law cannot be gathered without a survey of the philosophy of English and Americam history. Some of the elements will, however, appear in considering the various narrower senses in which the phrase "common law" is used. Perhaps the most important of these narrower senses is that which it has when used in contradistinction to statute law, to designate unwritten as distinguished from written law. It is that law which derives its force and authority from the universal consent and immemorial practice of the sanction of the When It is spoken of as the lex non scripta, It is meant that it is law not written by authority of law. The statutes are the expression of law In a written form, which form is essential to the statute. The decision of a court which establishes or declares a rule of law may be reduced to writing and published in the reports; but this report is not the law; it is but evidence of the law; It Is but a written account of one application of a legal principle, which principle, in the theory of the common law, is still unwritten. However artificial this distinction may appear, it is nevertheless of the utmost importance, and bears continually the most wholesome results. It Is only by the legislative power that law can be bound by phraseology and by forms of expression. The common law eludes such bondage; its principles are not limited nor hampered by the mere forms in which they may have been expressed, and the reported adjudications declaring such principles are but the instances in which they have been applied. The principles themselves are still unwritten, and ready, with all the adaptability of truth, to meet every new and unexpected case. Hence it is said that the rules of the common law are flexible; Bell v. State, 1 Swan (Tenn.) 4^; Rensselaer Glass Factory v. Reld, 5 Cow. (N. Y.) 587, 628, 632. It naturally results from the inflexible form of the statute or written law, which has no self-contained power of adaptation to cases not foreseen by legislators, that every statute of Importance becomes, in course of time, supplemented, explained, enlarged, or limited by a series of adjudications upon it, so that at last it may appear to be merely the foundation of a larger superstructure of unwritten law. It naturally follows, too, from the less definite and precise forms in which the doctrine of the unwritten law stands, and from the proper hesitation of courts to modify recognized doctrines in new exigencies, that the legislative power frequently intervenes to declare, to qualify, or to abrogate the doctrines of the common law. Thus, the written and the unwritten law, the statutes of the present and the traditions of the past, interlace and react upon each other. Historical evidence supports the view which these facts suggest, that many of the doctrines of the common law are but the common-law form of antique statutes, long since overgrown and imbedded in judicial decisions. While this process is doubtless continually going on in some degree, the contrary process is also continually going on; and to a very considerable extent, particularly in the United States, the doctrines of the common law are being reduced to the statutory form, with such modifications, of course, as the legislature will choose to make. This subject is more fully considered under the title Code, which see.

In a still narrower sense, the expression "common law" is used to distinguish the body of rules and of remedies administered by courts of law technically so called in contradistinction to those of equity administered by courts of chancery, and to the canon law, administered by the ecclesiastical courts. In England the phrase is more commonly used at the present day in the second of the three senses above mentioned. In this country the common law of England has been adopted as the basis of our jurisprudence in all the states except Louisiana. Many of the most valued principles of the common law have been embodied in the constitution of the United States and the constituf Tons of the several states; and in many of the states the common law and the statutes of England in force in the colony at the time of our independence are by the state constitution declared to be the law of the state until repealed. There is an express Virginia, and an implied adoption of it in the constitutions of Kentucky and West Virginia. It has been adopted by.statute in Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Pennsylvania, South i Una, Texas, Vermont, Virginia, Wash; and Wyoming. It was extended to Alabama by the ordinance of 1787 and the recognition of the latter In the state constitu lard v. Ilagan, 3 How. (U. S.) 212, 11 L 505; Barlow v. Lambert, 28 Ala. 7<>7, <;:, Am. Dec, 374. It is recognized by judicial decision without any statute in Iowa; Sti Twogood, 7 la. 252; Mississippi; Hemingway v. Scales, 42.Miss. 1. P7 Am. Dec 2 Am. Rep. 586. See 1 r.ish. Crim. haw f 15, note 4, § 45, where the rules adopted by the several states in this respect are slated.. where a question in the courts of one state turns upon the laws of a sister state, if no proof of such laws is offered, it is, in general, presumed that the common law existed at the time of the separation of this country from England prevails in such state; Abell v. Douglass, 4 Denio (N. V.. Schurman v. Marley, 29 In<L 458; Kermot v. Aver, 11 Mich. 1S1; Mohr v. Miesen, 47 Minn. 228, 49 N. W. 802; contra, in Pennsylvania, in cases where that state has changed from the common law; the presumption being that the law of the sister state has made the same change, If there is no proof to the contrary. The term common law as thus used may be deemed to Include the doctrine of equity; Williams v. Williams,

I. As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is that body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Anglo-Saxon stock. Lux v. Haggin, 69 Cal. 255, 10 Pan. 674. 2. An distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; State v. Buchanan. 5 Har. & J. (Md.) 365, 9 Am. Dec. 534; Lux v, Haggin, 69 Cal. 255, 10 Pac. 674; Barry v. Port Jervis, 64 App. Div. 268, 72 N. Y. Supp. 104. 3. As distinguished from equity law, it is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished from any claim to ethical superiority. Kle-ver v. Seawall, 65 Fed. 395, 12 O. C. A. 661. 4. As distinguished from ecclesiastical law, It is the system of jurisprudence administered by the purely secular tribunals. 5. As concerns its force and authority in the United States, the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. Browning v. Browning, 3 N. M. 371, 9 Pan. 677; Guardians of Poor v. Greene, 5 Bin. (Pa.) 557; U. S. v. New Bedford Bridge, 27 Fed. Cas. 107. 6. In a wider sense than any of the foregoing, the "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs. As a compound adjective "common-law" is understood as contrasted with or opposed to "statutory," and sometimes also to "equitable" or to "criminal." See examples below. -Common-law action. A civil suit, as distinguished from a criminal prosecution or a proceeding to enforce a penalty or a police regulation ; not necessarily an action which would lie at common law. Kirby v. Railroad Co. (Cl Ct) 106 Fed. 551; U. S. v. Bloc 33 Or. 584, 56 Pac. 275, 44 L. R. A. 266, 72 Am. St. Rep. 758.

— Common-law courts. In England, those administering the common law. Equitable L. Assur. Soc. v. Paterson, 41 Ga. 364, 5 Am. Rep. 535.

— Common-law crime. One punishable by the force of the common law, as distinguished from crimes created by statute. In re Greene (C. C.) 52 Fed. 104.

— Common-law jurisdiction. Jurisdiction of a court to try and decide such cases as were cognizable by the courts of law under the English common law; the jurisdiction of those courts which exercise their judicial powers according to the course of the .common law. People v. McGowan. 77 111. 644, 20 Am. Rep 254; In re Conner, 39 Cal. 98, 2 Am. Rep. 430; U. S. v. Power, 27 Fed. Cas. 607,

— Common-law lien. One known to or granted by the common law, as distinguished from statutory, equitable, and maritime liens; also one arising by implication of law, as distinguished from one created by the agreement of the parties. The Menominie (D. C.) 36 Fed. 197; Tobacco Warehouse Co. v. Trustee, 117 Ky. 478. 78 S W. 413, 64 L. R. A. 2l9.

— Common-law marriage. One not solemnized in the ordinary way, but created by an agreement to marry, followed by cohabitation; a consummated agreement to marry, between a man and a woman, per verba de præsenti, followed by cohabitation. Taylor v. Taylor, 10 Colo. App. 303, 50 Pac. 1049; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284 ; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 In R. A. 411,

— Common-law mortgage. One possessing the characteristics or fulfilling the requirements of n. Mortgage at common law; not known in Louisiana, where the civil law prevnils; but such a mortgage made in another state and affecting lands in Louisiana, will be given effect there as a "conventional" mortgage, affecting third persons after due inscription. Gates v. Gaither, 46 La. Ann. 286, 15 South. 50.

— Common-law procedure acts. Three acts of parliament, passed in the years 1852, 1854. and I860, respectively, for the amendment of the procedure in the common-law courts. The common-law procedure act of 1852 is St. 15 & 16 Viet. c. 76; that of 1854, St. 17 & 18 Viet. c. 125; and that of 1860, St. 23 & 24 Viet. c. 126. Mozley & Whitley.

— Common-law wife. A woman who was party to a "common-law marriage," as above defined; ot one who, having lived with a man in. a relation of concubinage during his life, asserts a claim, after his death, to have been his wife according to the requirements of the common law. In re Brush, 25 App. Div. 610, 49 N. Y. Supp. 803.

— Common lawyer. A lawyer learned in the common law. Common opinion is good authority in law. Co. Litt. 186a; Bank of Utica v. Mer-sereau, 3 Barb. Ch. (N. Y.) 528, 577, 49 Am. Dec. 189.