COMMON LAW, the great body of un written law in England and the United States as distinguished from the written or statutory law. The ultimate sources of the common law of England are the usages and customs Zia were observed by the barbarous ancestors of the Saxon and Norman conquerors, and adminis tered in their rude forest courts long before the beginning of their historic records. This origination is not peculiar to Teutonic law. aCustom is law,* said Cicero. Usage, or rather the spontaneous evolution by the popular mind of rules, the existence of which is proved by their general observance, is the oldest form of law making. The criminal law was a major part of the early English as of every other rudi mentary legal system. All law was penal in its beginning, and the licensed revenge of in jured parties, next to popular opinion, was the most powerful means of enforcing customary rules of conduct in loosely organized primitive communities. Indeed, compounding for injury was the beginning of criminal and, also, of civil procedure; the privilege of paying aweregild* to buy off the avenger passed by almost imper ceptible stages into the obligation to pay dam ages for breaches of contract as well as for in juries resulting from distinctively tortious acts. Oliver Wendell Holmes, Jr., now justice of the United States Supreme Court, in his 'Common Law,' published nearly 40 years ago, illustrated this evolution, and also the almost perfect parallel in the development of the Roman and Teutonic systems. A few examples of the early law of liability drawn from each of these sys tems may be useful as well as interesting. In the Twelve Tables (n.c. 451) it was provided that if an animal had done damage it must be surrendered to the injured party or his personal representatives, or compensation paid for the damage done. The same rule was applied (con sult Gaius, 'Institutes') to the torts of children or slaves. The underlying idea in all these cases was the surrender of living things, from which an injury had proceeded, to the vengeance of the obligee; the owner's privilege to pay damages in compensation being in effect a right of ransom. The forfeiture of the thing causing injury was afterward extended to inanimate objects by the Roman law ; but an even more revolutionary innovation was the malting of a person answerable for the wrongs of a free man in his employ as well as for injuries caused by slaves and other persons and things over which he had, or claimed, a proprietary right. Failure to observe a contractual obligation might not be considered a wrong that would excite a desire for vengeance; still, it is provided in die Twelve Tables that an insolvent debtor should be surrendered to his creditors, who, after the observance of certain formalities, obtained the right to cut up the bankrupt's body and divide parts among themselves. Now as to the Teutonic parallels: According to the Salic Law, if a man was killed by a domestic animal, the owner was required to pa,y one-half the com position (weregild) which he would have had to pay to buy off the blood feud if he himself had lcilled the man; for the other half he was required to surrender the animal to the com plainant. The same law provided for payment of one-half the customary weregild where the slayer was a slave, and for the surrender of the latter to the vengeance of the blood kindred of the slain. In more primitive Teutonic law, as
in the Twelve Tables, injuries done by animals were atoned for by their surrender alone. The 'Lex Saxonica' made the master responsible for wrongs done by his bondmen at his com mand and, according to the Thuringian law, the master was required to pay damages for all in jurie.s resulting from the acts of his slaves. In the Kentish laws of Hlothaere and- Eadric (A.D. 680) it is provided that if a slave slay a freeman . . . let the owner pay with 100 shillings and give up the slayer.* According to the laws of Ine, aif a Wessex slave slay an Englishman, then shall he who owns him de liver him up to the lord and the lcindred, or give 60 shillings for his life.* (Consult Thorpe, 'Ancient Laws,' I, pp. 27, 29 and 149). In the laws of King Alf ren (A.D. 871-901) is the pro vision that *if a neat wound a man let the neat (cattle) be delivered up or compounded for.* (Thorpe, 'Ancient Laws,' I, p. 79). Here we have the successive and almost identical stages through which the law of an oamer's lia bility passed in both the Roman and Teutonic Ktems, from the requirement to surrender cause of injury to the payment of compensatory damages. In Alfred's laws may be foluid eyen a curious extension to inanimate objects of the injured parties' right of vengeance. It is there declared that a tree by which a man is slain, though without fault of the owner, shall be given to the kindred; which is not unlike the custom of the Kulds, a savage tribe in southern Asia, recorded by Tyler in his 'Primitive Culture,' that, if a man be killed by falling from a tree, his relatives take revenge by felling the tree and scattering it in chips. And the idea of avenging a death on the instriunent which caused it persisted in English jurisprudence up to relatively modern times. A adeodand," the thing with which a homicide was committed, was regarded as ac cursed and was forfeited to the Crown, although the owner had nothing to do with the slaying. From a record (tenspus Edward I) we learn cif a man fall from a tree, the tree is deodand; if he be drowned in a well, the well shall be filled up," while from the days of Elizabeth downward law students have been made familiar with the proposition: aIf my horse strikes a man, and afterward I sell my horse, and after that the man dies, the horse shall be forfeited.* The curse follows the deodand and nobody can acquire property therein. There is nothing in Teutonic law qtute comparable in ferocity to the division of an insolvent debtor's body among his creditors, as authorized in the Twelve Tables; yet the early Teutonic law of suretyship was very severe. Down to the times of Charlemagne (800 A.D.), and later, a surety was a hostage and his life was forfeited if his principal defaulted in the performance of an obligation. 'Tail is a prisoner's keeper and shall be charged for an escape, sotne say the bail shall be hanged in his place — thus an opinion of Shard, a justice of the time of Edward HI, cited in Fitzherbert's 'Abridg ment,' under title °Mainprise,° pl. 12.