COMMON LAN, in England. These words, in their proper sense, signify the ancient consuetudinary law of England. The C. L. is therefore distinguished from the statute law and from equity. It is wholly overruled by the statute law. On the 2(1 Nov., 1875, the C. L. courts were merged iu the supreme court of judicature by the act of 1873 (see COURTS OP COMMON LAW), with a view to incorporate equity also, when the two systems conflicted. Accordingly, the old relation between law and equity subsists, and the former maintains its force in spite of any discordant rules of equity, which can there fore now take effect through the intervention of a court by which the C. L. is iu each Particular case corrected or superseded. For an enunciation of cases in which this result is shown, the reader is referred to the article under the heading Eournr.
The C. L. is, in one sense, an unwritten law. Its rules have been handed down by tradition, sometimes in a complete and definite shape, such as the law of primogeniture, the jurisdiction of the courts, etc.; sometimes as a mere spirit or tendency, according to which, in novel eases, as they may arise, the law is to be expounded. Thus, the law merchant is chiefly part of the C. L., although only some of its rules are of real antiq uity, and the greater portion of them were developed no later than the last century. Therefore, in such cases, the C. L., though accounted traditional, is expanded by the judges who declare it, who enounce new rules suited to new combinations of circum stances, and merely bearing an analogy to what the ancient C. L. had established in cases which fell within its purview. It is therefore not wonderful that there should frequently be dispute as to what the C. L. is, and that different courts should occasion ally give different decisions upon such questions.
As the C. L. has never been formally enacted, nor has yet been reduced to a regu lar code, it is to be sought for in the treatises of institutional writers, and in the decisions of the courts of law. These last are of the highest authority, and where they are consistent, they are taken as irrevotiably establishing the law. But being declar atory merely, and not imperative, a single judgment of a court is not held conclusive upon courts of equal jurisdiction, though it is commonly accepted as binding by infe rior courts. A court may even depart from its own decision, if it shall come to be of opinion that the law has before been incorrectly stated. But this principle perhaps
undergoes an exception in the house of lords, which being the highest court of all, it is laid down by some of the law peers that its judgments have the force of statute, and that the rules it has once sanctioned can be altered only by statute. The point has long been regarded as settled ; and it is almost the only correct theory on which a court of supreme jurisdiction, like the house of lords, can continue to exercise its func tions.
The C. L. is applicable to the whole realm, but it is part of its principles that in particular circumstances it may recognize rules which are not of universal application; thus, in certain courts, it adopts as its own the provisions of codes which it entirely rejects in other courts. The civil and canon law are in some of their rules recognized as part of the C. L. in the maritime and ecclesiastical courts (including under the latter denomination the new courts of probate and divorce), but they are of no authority otherwise in the courts by which the main branches of the C. L. are administered. So also, in particular localities, customs exist which the C. L. sanctions, although they may be at variance with its general provisions. Such are the rules regarding- succession which prevail in Kent under the name of gavelkind (q.v.), and in certain towns under the name of borough English (q.v.). But customs of much more circumscribed opera tions are, when proved, equally accepted by the C. L. as part of itself within the limits in which it prevails; for the C. L. deems it not inconsistent to adopt a contrary rule to its own, if clear and uniform and confined to one locality. In order to entitle a custom to the force of law, it must be of such endurance "whereof the memory of man runneth not to the contrary." The period thus indicated is more precisely defined as extending to the commencement of the reign of Richard I. By this is meant, however, not that the custom must be proved to have been in perpetual vigor since that remote epoch, but that proof of its non-existence within that period will invalidate it. If no such proof is adduced, the custom will be established by the evidence of experienced living or by such documentary evidence as is inconsistent with any other assumption.