Common Law

Common Law, like “civil law,” a phrase with many shades of meaning, and probably best defined 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 assumed 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 international 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 modern 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 “proceedings 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 common 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 old common law courts—the king’s bench, common pleas and exchequer—were always, as compared with the court of chancery, distinguished for a certain narrowness and technicality of reasoning. At the same time the common law was never 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 displayed an immense amount of subtlety and ingenuity, and a great deal of sound sense. The continuity of the system was not less remarkable than its elasticity. Two great defects of form long disfigured the English law. One was the separation of common law and equity. The Judicature Act of 1873 remedied this 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 other is the overwhelming mass of precedents in which the law is embedded. This can only be removed by some well-conceived scheme of the nature of a code or digest; to some extent this difficulty has been overcome by such acts as the Bills of Exchange Act 1882, the Partnership Act 1890 and the Sale of Goods Act 1893.

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 the English language and as truly national. And like the language, it has been taken into other English-speaking countries, and is the foundation of the law in the United States.