COMMON LAW, is that branch or department of the municipal law of any state which is opposed to the edic tal, legislative, or other written constitutions. It con sists of those maxims, customs, and established usages, which, originating in the peculiar genius, local situation, military institutions, or other circumstances of a peo ple, take root and gradually spring up in every country. Hence the different parts of it are not of equal antiquity, but have been successively recognised, as the maxim, custom, or usage, was found to be consonant to the pub lic sentiment, and had received a general adoption. What, therefore, formed no part of the common law of a country at one period of its history, came afterwards to be acknowledged as an important feature of it ; and thus passing from one acquisition to another, as the changes in society produced correspondent changes in the public sentiments and manners, the common law of most countries has insensibly accumulated into an ex tensive system. The gradual departure, however, from ancient manners, has, in some instances, undermined this department of law ; while in others it has been directly overthrown by positive enactment. A history, therefore, of the common law of any country, must fur nish information of no ordinary interest and importance, since it is nothing else than a developement of the changes which take place on the sense of justice and morality among any particular people, in consequence of the changes which have taken place on their condi tion.
It is opposed to the lex Berlina, or written law of a country, not because it cannot absolutely be said to be unwritten itself, but because, unlike the edicts of em perors, or the legislative enactments of free states, it is not originally promulgated in a written form. It gra dually comes, however, to be firmly embodied in the same form ; and the recorded decisions of the supreme courts are the authentic and mighty volumes in which it is chiefly to be read. A labour so impracticable, in deed, no understanding, however undaunted or absurd, could be expected to undertake ; so that in most states where the study of the law is not obstructed from views of oppression, recourse has been had at an early period, and afterwards successively continued, to " reported cases," or abridgments ul the most important decisions. These, when disputed, are of course authenticated by reference to the records themselves.
We have said, that the common law is chiefly to be found in the records of the supreme courts ; for there are other repositories of it, though greatly inferior in extent, and also to a certain degree in authority. These
are the ancient sages of the law, whose writings either precede the time at which the decisions of toe courts began to be regularly recorded and preserved ; or which supply the deficiencies of the records; or, by the wis dom and analogy or the observations they contain, have acquired an authoritative respect bordering on venera tion. Thus, in England, Glanvil, Theta, Littleton, and even so late a writer as Sir Edward Coke, are regarded as oracles of the connnon law. However, the authority of such writers depends chiefly upon the belief, that they are the faithful reporters of cases which, either by reason of their antiquity, or other causes of an acciden tal nature, are not now to be found upon record; and that they speak correctly the language of the maxims, customs, and usages of the times to which they seve rally relate.
In most countries of modern Europe, the civil and canon laws constitute likewise, more or less, a part of the common law. " But," as remarked by Black stone, " all time strength which these laws have obtain ed in England, or in any of the other kingdoms of Eu rope, is only because they have been admitted and re ceived by immemorial usage and custom in some par ticular cases, and some particular courts ; and then they form a branch of the loges non scrintie, or customary laws ; or else, because they are in some other cases in troduced by consent of parliament, and than they owe their validity to the leg-es scrihtx, or statute law." In Scotland, the words common law, appear to have been sometimes used as synonymous with the civil or Roman law. Thus in statute 1540, c. 69 ; 1585, c. 18; 1587, c. 31. they are so used ; and sunietimes they em ploy the civil and canon law together: as in 1340, c. 80, and 1531, c, 22. It by no means follows, however, that either of these bodies of foreign law ever constitu ted, indiscriminately, and or their own proper authori ty, the common la w of the country. 011 tile contrary, when the common law proper to the country is meant, the statutory phrase is, the common laws of this realm, as in Statute 1503, c. 79, and 1384, c. 131, w,a_ie toe tneient maxims and usages of Scotland, whetherorigi nating in the Roman, the canon, or the teuual institu tions, ur in whatever other source, ate understood. So that, in the former instances, the phrase seems to re solve into a mere inaccur xy of expression. (a. a.)