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 ac tion applicable to the government and secur ity 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 492.
The body of rules and remedies adminis tered by courts of law, teebnically 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 lo cal application.
The most prominent characteristic which marks this contrast, and perhapa the source of the distinc tion, lies In the fact that under the commas 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, but, under the sanction of a constitutional govern ment, 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 expres sion of the legislative pdwer, gradually forms tern—just, because it is the deliberate will of a fres people-Lstable, because it Is the growth of centuries —progressive, because it is amenable to the con stant of the people. A full Idea of the genius of the common law cannot bs gathered with out a survey of the philosophy of English and American history. Some of the elements will, how ever, appear In considering the various narrower senses in which the phrase "common law" is used. Perhaps the most Important of these narrower senses Is that which It has when used in contrsdis. Unction to statute law, to .designate unwritten es distinguished from written law. It is that isie which derives Its force and authority from the uni versal consent 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 dlltinguished from the statute law.
When it is spoken of as the lea non scripta, it is meant that it is law not written by authority of law. The statutes are the expression of law in a written form, which form is essential to the statute. The decision of a court which establishes or de clares a rule of law may be reduced to writing and published in the reports ; but this report is not the law; it is but evidence of the law ; it is but a writ ten account of one application of a legal principle, which principle, in the theory of the common law, is still unwritten. However artificial this distinction
may appear, it is nevertheless of the utmost im portance, and bears continually the most wholesome results. It is only by the legislative power that law Can be bound by phraseology and by forms of ex pression. The common 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 prin ciples are but the instances in which they have been applied. The principles themselves are still unwrit ten, 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 ; Bell v. State, 1 Swan (Tenn.) 42; Rensselaer Glass Factory v. Reid, 6 Cow. (N. Y.) 687, 628, 632. 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 be comes, in course of time, supplemented, explained, enlarged, or limited by a series of adjudications upon it, so that at last it may appear to be merely the foundation of a larger superstructure of unwrit ten law. It naturally follows, too, from the less def inite and precise forms in which the doctrine of the unwritten law stands, and from the proper hesita tion of courts to modify recognized doctrines in new exigencies, that the legislative power frequent ly intervenes to declare, to qualify, or to abrogate dm doctrines of the common law. Thus, the writ ten and the unwritten law, the statutes of the pres ent and the traditions of the past, interlace and react upon each other. Historical e''idencs sup ports the view which these facts suggest, that many of the doctrines of the common law are but 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 con tinually going on; and to a very considerable ex tent, particularly in the United States, the doc trines of the common law are being reduced to the statutory form, with such modifications, of course, as the legislature will choose to make. This sub ject is more fully considered under the title Code, which see.