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Common Law

laws, called, decisions, courts, rules and customs

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COMMON LAW. In its most general signification the expression Common Law denotes the ordinary law of any country : when used in this sense it is called com mon, as prevailing generally over a whole country, in contradistinction to particular laws, the operation of which is confined to a limited district or to a peculiar class of inhabitants. In England the Common Law is that body of customs, rules, and maxims which have acquired their bind ing power and the force of laws in con sequence of long usage, recognised by ju dicial decision, and not by reason of sta tutes now extant. The common law is therefore called, in early periods of our legal history, the " lex et consuetudo Ang liae," and at the present day the appella tion is used to denote " lex non scripts," in opposition to "leges seriptte," or sta tutes. Sir Matthew Hale, in his ' History of the Common Law of England,' divides all the laws of England into two kinds, lex scripts, the written law, and lex non scripts, the unwritten law ; and he adds, "although all the laws of this kingdom have some monuments or memorials there of in writing, yet all of them have not their original in writing; for some of these laws have obtained their force by imme morial usage or custom, and such laws are properly called leges non scripts, or unwritten laws or customs" (chap. 1). He confines the term leges script°, or written laws, in which he is followed by Blackstone, to statutes or acts of parlia ment; but this is not quite correct, for there are other rules, such as rules of court, made by the judges of the common-law courts, and orders in chancery, made by the judges in chancery pursuant to power given to them, which are laws, and " writ ten laws," according to Hale's definition, for the "original " of them is in writing. The term unwritten law also is applicable to a great part of that kind of law called equity, for the original of it does not exist in writing. A large part of the law of equity is founded on judicial decisions made in conformity with some established principles, and therefore it resembles that part of the common law which is recog nised as such by the decisions of common law judges. In addition to customs and

usages, whose particular origin is un known, many portions of the common law consist of statutes passed before the time of legal memory, that is, the beginning of , the reign of Richard I., which, though known historically to have been acts of parliament, have uo authority as laws in that character, but derive their obligation from immemorial usage, recognised by judicial decision. The provisions of the common law are, however, quite as bind ing as acts of the legislature, for they have received the character of law by force of judicial decisions. In very early times it is probable that the system of rules which composed the common law was wholly traditional. In course of time the decisions of the king's ordinary courts of justice were recorded, and be came the most authoritative evidence of such customs and maxims as formed part of the common law, according to the rule of the civil law, that what the emperor had once judicially determined was to serve as a guide in all like cases for the future. (Cod. 1, tit. 14-12.) In addition to the recorded judgments of courts, tech nically called precedents, the treatises of Bracton, Fleta, Britton, Staundforde's Pleas of the Crown,' and Coke's Com mentary upon Littleton,' are acknow ledged as evidence of what is Common Law. Of the whole system the judges of the superior courts are the expositors ; they declare the law by applying certain established rules and principles to cases which come before them for judgment, but they have no power to add to or vary the law in any other way than by their decisions upon particular cases that are brought before them. Law made by judicial decision is called by Bentham judge-made law ; a term which, as already intimated, belongs to a part of the law called equity, which is administered in the courts of chancery.

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