COMMON LAW means the law common to the whole realm, as distinct from the law peculiar to certain classes of persons such as, in the middle ages, the "Law Merchant." This is the sense in which the term comes into general use in the reign of Edward I. The term, which has often been used in many senses, is best de fined by contrast. It is contrasted with statute law, as law not promulgated by the sovereign body; with equity, as a kind of "supplemental law," which, in Maitland's words, is in the nature of "a gloss" upon the common law, corrective of it and auxiliary to it; and again with local 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 com mon law. When so contrasted with foreign systems of law or with statute law, it is used to include equity itself, and since the "fu-' sion" of common law in equity, which was finally consummated by the Judicature Act of 1873, common law and equity are adminis tered in the High Court "concurrently" and indeed conjointly. As the universal law of the realm it has often been described as the national inheritance or "birthright" of Englishmen which Eng lish settlers carry with them when they occupy or colonize a new country. It was defined by Lord Wensleydale in Mirehouse v. Alennell 8 Bing. 515, as "a system which consisted in applying to new combinations of circumstance:). those rules which we derive from legal principles and judicial precedents." Its sources are therefore to be found in the law reports of cases actually decided, and it was said with perfect truth by Burke that "to put an end to reports is to put an end to the law of England." 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 (r) general customs, which are the common law strictly so called, (2) particular customs prevailing in certain dis tricts, 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 was heir to his ancestor, that a deed is of no validity unless sealed and delivered, that wills shall be construed more favour ably and deeds more strictly, are examples of common law doc trines, "not set down in any written statute or ordinance, but de pending 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." Thus Blackstone, a decision of the supreme court of appeal, namely the House of Lords, is consequently final, arid the question at issue can never be raised and re-argued again. "Nothing," as Lord Halsbury remarked, "but an act of parliament can set right that which is alleged to be wrong in a judgment of this House." (London Street Tramways v. L.C.C., 1898, A.C. 375.) Deference to Precedents.—The extraordinary deference paid to precedents is the source of the most striking peculiarities of the English common law. It was the rigid adherence of the common law courts to established precedent which caused the rise of an in dependent tribunal administering justice on more equitable prin ciples—the tribunal of the chancellor, the court of chancery. The old common law courts—king's bench, common pleas and ex chequer—were always, as compared with the court of chancery, distinguished by a certain rigidity of ideas and their whole sys tem of practiced pleading was highly technical. At the same time the common law judges showed extraordinary ingenuity in extend ing the scope of the "original" writs, with which a common law action began, to meet the changing circumstances of society. The common law by the free use of fictions swallowed the law mer chant and digested the greater part of Admiralty law.
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 "conflict." As a matter of fact there had been little conflict between the two sys tems of law since the 17th century. As Maitland has happily put it, "equity had come not to destroy but to fulfil." Equity was not a self-sufficient system whereas the common law was. Another defect 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 dif ficulty has been overcome by such acts as the Bills of Exchange Act 1882, the Sales of Goods Act 1893 and the Law of Property Act of 1925. The last act was no mere codification, but revolu tionary in the very doctrine of the law. The former acts were, however, little more than a reproduction in statute form of doc trines already established by the courts, and in spite of the mod ern growth of legislation, mainly social and administrative, what Dicey wrote many years ago is still true, namely that "nine tenths of the law of contract and nearly the whole of the law of torts are not to be discovered in any volumes of the statutes." In the early 16th century most countries in Europe underwent the influence of what was known as the "Reception," i.e., the re ception of Roman Law which, with the revival of the study of jurisprudence, was "received" into various European countries and displaced their old customary or "common law," or as it was sometimes expressively called "folk-law." England alone escaped this invasion by an alien system of law, and Maitland ascribed her immunity to the fact that "Mediaeval England had schools of law," in other words Inns of Court which preserved the traditions of the common law. "What is distinctive of mediaeval England," he wrote, "is not parliament, for we may everywhere see in Europe assemblies of estates, nor trial by jury, for this was but slowly suppressed in France ; but the Inns of Court, and the Year Books (i.e., the mediaeval law reports) that were read therein, and we shall hardly find their like elsewhere." And to any reception of Roman law the Inns of Court offered a stout and successful re sistance. The constitutional importance of their victory was enor mous, for the absolutist doctrines of Roman law found little or no place in the common law of England, and it was no accident that the greatest champions of the liberties of the subject against the despotic claims of the Stuart kings were the common lawyers, headed by the redoubtable Coke. Indeed most of our constitu tional law, more particularily that which relates to the liberty of the subject, to the liability of servants of the Crown to answer for their wrongful acts, and other such fundamental principles, is to be found in the common law and nowhere else.
There is also the possibility of the invocation by judges of what is known as the principle of "public policy"—once defined as "the prevailing opinion of wise men as to what is for the public good" —whereby the judges have innovated freely, as, for example, by declaring certain kind of contracts unenforceable as contrary to the public interest, of which the most familiar example is con tracts in restraint of trade. The rule of policy is avowedly a rule susceptible of constant change to suit the changing conditions of society. It would therefore be quite a mistake to regard the fact that our common law is based upon precedent as meaning that it is rigid, inflexible and incapable of expansion. And although a statute can, of course, abolish any rule of common law, it can only do so by express words or necessary intendment. In the absence of such a manifest intention, the common law remains, and is the "key to unlock" the meaning of the statute which will always be construed by the light of it.
In its freedom from the infection of foreign influences, the corn mon law is as much a national possession as the English language itself. It is instinct with the English genius for practice as opposed to theory and of no other system of law can it be said so truly, in the language of Mr. Justice O. W. Holmes that "the life of the law is not logic but experience." The Pilgrim Fathers took it with them to America, even as they took the English speech, with the result that it is the foundation of the law of the United States and nowhere has it been more admirably studied.