The legislative or statutory contributions to the common law have been massive in quantity and of transcendent importance in their subject matter. It is impossible to even men tion more than a few, which stand out above the rest in the formative influence they have exerted. The statutes of Mortmain and Chari table Uses were designed to prevent perpetuities. They marked the growth of the right to alien ate land and the gradual undermining of the feudal system. Frequent additions and amend ments were required to overcome the ingenuity exercised by the lawyers to evade the statutes against the formation of ecclesiastical and other latifundia. Of equal importance, though in a quite different direction, was the Statute of Frauds. A distant progenitor of this was the provision of Magna Carta which required sects (witness proofs) for parol debts, and set a limit to contentious and vexatious litigation by for bidding suit for such debts except within the traditional limits of the sects. The statute of Charles II (1677) for the Prevention of Frauds and Perjuries requires written instruments as proof in many classes of contracts and in all contracts not to be performed within a year. The imperfection and danger of testimony as proof of past transactions make this one of the most salutary legislative measures in English jurisprudence. The Statute of Limitations, passed during the reign of James I, should also be mentioned. The barring of stale claims from litigation after long lapse of years, when oral and other evidence concerning the trans action was no longer procurable, is the only effective means of quieting titles and assuring the members of society from provocative inter ference with other long enjoyed rights and promoting the peace. Other sources of the common law, which may here be conveniently mentioned, are the charters granted to munici palities and trading companies, many of the "liberties" granted in these having become gen eral rules of law. The "Law Merchant" was a body of usages common to traders in all parts of Europe relating mainly, of course, to mer cantile transactions. The law was laid down by the merchants themselves. The traders of the later Middle Ages were cosmopolites and their established customs and legal rules were observed by all alike, irrespective of nationality. The law was administered by special tribunals —in England by the Courts of Staple and Pie powder Courts. It was administered as dis tinct from the Common Law even after Coke, in whose time the ordinary law courts had be gun to take jurisdiction of controversies be tween traders. The customs had to be proved as facts in each case. During the presidency of Lord Mansfield over the Bench, the Law Merchant was finally incorporated with the common law (see COMMERCIAL LAW). Finally, the equity jurisdiction assumed by the lord chancellors at an early date, and continu ally broadened, wielded a tremendous in fluence on the matter, form and practice of the common law; more particularly with regard to women, children and other persons of im perfect legal capacity. This department of law reached its full development in the 18th century under Lord Eldon (see EQurry). The laws of marriage and the family, of consanguinity and testamentary succession had their origin in the civil and canon law and until modern times (in England) they were administered by the ecclesiastical courts. The title "Surrogate," quite common in the United States, was origi nally that of the officer who presided over the probate of wills in the Ordinary's Court.
In the domain of constitutional rights the common law has drawn its tenets from a variety of sources; but all of them are purely English. The right of freemen to representa tion in their own government is traditional, and the Saxon "witenagemots* and Norse "folke things* were the prototypes of Parlia ment and Congress and all other later legis lative assemblies. Immemorial usage also is the basis of the right to trial by jury, though this is also confirmed by Magna Carta. The English Bills of Rights, as their names import, were acts of Parliament, though in America they have generally been embodied in written constitutions, State and Federal. The inde pendence of the judiciary of royal prerogative and the answerability of judges to God and their own conscience, and to no other authority whatsoever, were pronounced in a deft of King James I by Lord Chief Justice Coke. The latter also anticipated the United States Su preme Court by nearly 200 years in passing upon the constitutionality of statutes, saying that "the common law doth control acts of Parliament and adjudge them void when against common right and reason." The fiction that English sovereigns rule by divine right was shattered at least four times, when reigning monarchs were deposed and it was shown that kings in England ruled only by grace of the law and of Parliament. This was the complexity of political liberties and public and private rights, known as the common law, which the English colonists carried with them to America as a cherished heritage. It may suffer in the estimation of precisians because of its lack of form; its nomenclature, as has been truly said, is "a mosaic of many languages"— and the law itself, "except so far as it has been deduced with much logical punctiliousness from the theory of feudal tenure," is little more than a collection of rules strung together on a slender thread of analogy, through which the practi tioner must be content to find his way by the help of indices, abridgments or so-called "Digests" arranged in alphabetical order. On the other hand the case against the embodi ment of the law in a code, where the rules would be restated in the language of the codifier, is a strong one. A code, being in flexible in its character, prevents true growth in the law. Discussions in court would turn on the interpretation of words employed in the codification instead of the examination of legal principles. Moreover, an uncodified system of law can be mastered by the student whose scientific equipment enables him to cut his own path through the tangled growth of enactment and precedent and, so, to codify for his own purposes. The common law as it existed at the time of the Declaration of Independence, including the acts of Parlia ment in so far as they were not repugnant to the rights and liberties contained in their re spective. constitutions, was formally adopted in all the original States of the Union and by most of the commonwealths subsequently ad mitted as States. Louisiana, where the 'Code
Napoleon) prevailed at the time of its admis sion to statehood, is an exception. Feudal tenures, the right of primogeniture and entails were abolished in all the original States, and were never recognized by the conunon law in America. Though the Constitution of the United States in no words adopts the common law, its provisions no less recog-nize the exist ence and continuance thereof as the law of the States, with whic.h the national government might not interfere. But even statutes are to be construed with reference to the common law, for it is not to be presumed that the legis lature intended to make any innovation upon the common law further than the case abso lutely required. This rule of construction has been held applicable to acts of Congress. The Federal courts have no jurisdiction over com mon law crimes; however, in the trial of ac tions between citizens of different States involving ordinary legal rights these courts necessanly take cognizance of the laws of the States and of the principles of the common law governing the cases thus brought before them. The Constitution of the United States, together with foreign treaties and acts of Con gress made under its authority, are the supreme law of the land. In the States their constitu tions, statutes and the common law rank in authority in the order given. When the Ameri can colonies had achieved their independence Blackstone's 'Commentaries on the Laws of England,' which Horne Tooke called °a good gentleman's law-book, clear but not deep,° had not long been off the press. In it the emphasis is still laid on the nghts pertaining to land ownership though, under the titles °Rights of Persons,° °Rights of Things° and °Private Wrongs,0 he classified, not very scientifically, the law of possession and ownership, contract and succession to property by sale, assignment or inheritance, and the law of trespass, negli gence and fraud. Bentham criticised the com mentators' overstrained, courtly praise of his subject and the obscurity and confusion of his fundamental ideas with irresistible point and vigor and a racy sense of humor. Admitting all these defects, the fact remains that °Black stone first rescued the common law from chaos and did exceedingly well, for the end of the 18th century, what Coke tried to do, and did exceedingly ill 150 years before.° He gave an account of the law as a whole capable of being studied, not only without disgust, but with interest and profit. Another rich mine of the common law was laid open to the young American commonwealth in the decisions of Lord Mansfield, who during his 30 years' in cumbency of the office of Chief Justice of England (1756-88)' reduced the mercantile law to a systematic and harmonious form. The rise of the United States early in the 19th cen tury to the position of a maritime power sec ond only to Great Britain, and the long-con tinued state of war on the high seas during that period, naturally produced litigation pertaining to shipping and commerce. Accordingly, the early American law reports are noteworthy for the large proportion of judicial opinions they contain on bills of exchange, bills of affreight ment, charter party and, particularly, marine in surance. Little was left for succeeding courts to add to the law on the last named topic. The growth of trade and industry made a form of association desirable, to which many could sub scribe capital, with liability limited to the amount of their subscription ; therefore, the adaptation to the requirements of manufacturing, trading and other business enterprises of the corporation, which had theretofore served mainly for the ad ministration of charitable, ecclesiastical and educational foundations, of municipalities and such politico-commercial entities as the East India Company. The institution and develop ment of the business corporation are to be counted among the great achievements of Amer ican juriiprudence. The partial emancipation of married women from the disabilities of cover ture was begun by legislative enactments in the States in the 40's of the last century. In the systematization or codification of the substan tive law no great progress has been made in the United States. The law on such topics as negotiable instruments, bills of lading and sales has been reduced to the form of nroposed statutes, which have been recommended to the States for adoption—and the first mentioned has been almost unanimously adopted, so that the law on this subject is practically uniform throughout the country. New York led the way in the codification of the rules of civil pro cedure, with incidental simplification and the abolition of the distinction between common law and equity pleadings. The example has been pretty. generally followed and the penal law and cnminal procedure have likewise been codified in many States. See COMMERCIAL LAw ; OUMINAL LAW ; EQUITY; FAMILY LAW ; Hus BAND AND WIFE; JURISPRUDENCE; MARITIME LAW.
Bibliography.— Haynes, J. F., 'Students' Leading Cases' (London 1878) ; id., 'Students' Statutes) (London 1876) ; Holmes, O. W., Jr., (The Common Law' (Boston 1881) ; Inder maur, J., (Principles of the Common Law) (5th ed., London 1900) ; id„ (Leading Conveyancing and Equity Cases) (3d ed., London 1877) ; Kent, James, (Commentaries on American Law) (14th ed., by J. M. Gould and O. W. Holmes, Jr., Boston 1896) ; Littleton, Thos. de, (Tenures) (London 1846) • Mitchell, W., (Early History of the Law iferchant) (Cambridge 1904) ; Pattee, W. S., (Illustrative Cases in Personalty) (Part II, (Sales,) Philadelphia 1894) • id., 'Il lustrative Cases in Realty ; (ib. 18'94) • id., 'Illustrative Cases in Contracts) (ib. 1/393) ; Pollock and Maitland, (History of the Law of England) (2c1 ed., Boston 1899) ; Salmond, J. W., (Jurisprudence) (5th ed., London 1916) ; id., (Law of Torts) (4th ed., London 1916) ; Shirley, W. S., (Selection of Leading' Cases in the Common Law) (author's 3d ed., London 1886-7th ed. by Watson, London 1904); Stephen, J. Fitzjames, (Digest of the Law of Evidence) (5th ed., London 1887) ; Stephen, tiln H., (New Commentaries on die Laws of gland—partly founded on 4Blacicstone" (15th ed., London 1908) ; id., (Principles of Pleading' (ed. by F. F. Heard, Philadelphia 1867); Terry, H. T., (Leading Principles of Anglo-Amencan Law) (Philadelphia 1884) ; Thorpe, Benj., (Ancient Laws and Institutes of England, (Record Commission, London 1840) ; see also bibliographies under titles CIUMINAL