1902 Encyclopedia > Common Law

Common Law

COMMON LAW, like civil law, is a phrase with many shades of meaning, and it is probably safest to define it with reference to the various things to which it is opposed. It is contrasted with statute law, as law not promulgated by the sovereign body; with equity, as the law prevailing between man and man, unless when the Court of Chancery assumes jurisdiction ; and with local or customary law, as the general law for the whole realm, tolerating variations in certain districts and under certain conditions. It is also sometimes contrasted with civil, or canon, or interna-tional law, which are foreign systems recognized in certain special courts only and within limits defined by the common law. As against all these contrasted kinds of law, it may be described broadly as the universal law of the realm, which applies wherever they have not been introduced, and which is supposed to have a principle for every possible case. Occasionally, it would appear to be used in a sense which would exclude the law developed by at all events the more recent decisions of the courts.

Blackstone divides the civil law of England into lex scripta, or statute law, and lex non scripta, or common law. The latter, he says, consists of (1) general customs, which are the common law strictly so called, (2) particular customs prevailing in certain districts, and (3) laws used in particular courts. The first is the law by which " proceed-ings and determinations in the king's ordinary courts of justice are guided and directed." That the eldest son alone is heir to his ancestor, that a deed is of no validity unless sealed and delivered, that wills shall be construed more favourably and deeds more strictly, are examples of common law doctrines, " not set down in any written statute or ordinance, but depending on immemorial usage for their support." The validity of these usages is to be determined by the judges—" the depositaries of the law, the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." Their judgments are preserved as records, and " it is an established rule to abide by former precedents where the same points come again in litigation." The extraordinary deference paid to precedents is the source of the most striking peculiarities of the English common law. There can be little doubt that it was the rigid adherence of the oommon law courts to established precedent which caused the rise of an independent tribunal administering justice on more equitable principles—the tribunal of the chancellor, the Court of Chancery. And the common law courts—the Queen's Bench, Common Pleas, and Exchequer—have always, as compared with the Court of Chancery, been distinguished for a certain narrowness and technicality of reasoning. At the same time the common law has never been a fixed or rigid system. In the application of old precedents to the changing circumstances of society, and in the development of new principles to meet new cases, the common law courts have displayed an immense amount of subtlety and ingenuity and a great deal of sound sense. The continuity of the system is not less remarkable than its elasticity. Two great defects of form disfigure the English law. The first is the separation of common law and equity. The second is the overwhelming mass of precedents in which the law is embedded. The recent Judicature Act is an attempt to remedy the first by merging the jurisdiction of all the courts in one supreme court, and causing equitable principles to prevail over those of the common law where they differ. The second can only be removed by some well-conceived scheme of the nature of a code or digest (see CODE). The English common law may be described as a pre-eminently national system. Based on Saxon customs, moulded by Norman lawyers, and jealous of foreign systems, it is, as Bacon says, as mixed as our language and as truly national.

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