COMMON LAW. That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the Roman or Civil Law.
Those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent, Comm. 492.
The body of rules and remedies adminis tered by courts of law, technically so called, in contradistinction to those of equity and to the canon law.
The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application.
2. The most prominent characteristic which marks this contrast, and perhaps the source of the don, lies in the fact that in the common law neither the stiff rule of a long antiquity, on the one hand, nor, on the other, the sudden changes of a present arbitrary power, are allowed ascendency, hut, under the sanction of a constitutional government, each of these is set off against the other; so that the will of the people, as it is gathered both from long established custom and from the expression of the legislative power, gradually forms a system,—just, because it is the deliberate will of a free people,— stable, because it is the growth of centuries,—pro gressive, because it is amenable to the constant re vision of the people. A full idea of the genius of the common law cannot be gathered without a survey of the philosophy of English and American history. Some of the elements will, however, ap pear in considering the various narrower senses in which the phrase "common law" is used.
3. Perhaps the most important of these narrower senses is that which it has when used in contra tinction to statute law, to designate unwritten as clis• tingnished from written law. It is that law which de rives its force and authority from the universal con sent and immemorial practice of the people. It has never received the sanction of the legislature by an express act, which is the criterion by which it is distinguished fiom the statute law. When it is spoken of as the lex non eeripta, it is meant that it is law not written by authority of law. The sta tutes are the expression of law in a written form, which form is essential to the statute. The decision of a court which establishes or declares a rule of law may be reduced to writing and published in the re ports; hut this report is not the law : it is but evidence of the law ; it is but a written account of one appli cationof a legal principle, which principle, in the theory of the common law, is still unwritten. How
ever artificial this distinction may appear, it is n ever thel .ss of the utmost importance, and bears conti nually the most wholesome results. It is only by the legislative power that law can he bound by phraseology and by forms of expression. The com mon law eludes such bondage: its principles are not. limited nor hampered by the mere forms in which they may have been expressed, and the reported adjudications declaring such principles are but the instances in which they have been applied. The principles themselves are still unwritten, and ready, with all the adaptability of truth, to meet every new and unexpected case. Hence it is said that the rules of the common law are flexible. 1 Gray, Mass. 263; 1 Swan, Tenn. 42; 5 Cow. N. Y. 587, 628, 632.
4. It naturally results from the inflexible form of the statute or written law, which has no self-con tained power of adaptation to cases not foreseen by legislators, that every statute of importance becomes, in course of time, supplemented, explained, enlarged, or limited by a series of adjudications upon it, so that at last it may appear to he merely the founda tion of a larger superstructure of unwritten law. It naturally follows, too, from the less definite and precise forms in which the doctrine of the unwrit ten law stands, and from the proper hesitation of courts to modify recognized doctrines in new exi gencies, that the legislative power frequently in tervenes to declare, to qualify, or to abrogate the doctrines of the common law. Thus, the written and the unwritten law, the statutes of the present and the traditions of the past, interlace and react upon each other. Historical evidence supports the view which these facts suggest, that many of the doc trines of the common law are hut the common-law form of antique statutes, long since overgrown and imbedded in judicial decisions. While this process is doubtless continually going on in some degree, the contrary process is also continually going on; and to a very considerable extent, particularly in the United States, the doctrines of the common law are being reduced to the statutory form, with such modifications, of course, as the legislature will choose to make. This subject is more fully con sidered under the title Code, which see: 5. In a still narrower sense, the expression "com mon law " is used to distinguish the body of rules and of remedies administered by courts of law, tech nically so called, in contradistinction to those of equity, administered by courts of chancery, and to the canon law, administered by the ecclesiastical courts.