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 technically so called in contradistinction to those of equity administered by courts of chancery, and to the canon law, administered by the ecclesiastical courts.
In England the phrase is more commonly used at the present day in the second of the three senses above mentioned.
In this country the common law of Eng land has been adopted as the basis of our jurisprudence in all the states except Louisi ana. Many of the most valued principles of the common law have been embodied in the constitution of the United States and the Constitutions of the several states ; and in many of the states the common law and the statutes of England in force in the colony at the time of our independence are by the state constitution declared to be the law of the state until repealed. There is an express constitutional adoption of it in Delaware, New York, Michigan, Wisconsin, and West Virginia, and an implied adoption of it in the constitutions of Kentucky and West Virginia. It has been adopted by statute in Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Pennsylvania, South Caro lina, Texas, Vermont, Virginia, Washington and Wyoming. It was extended to Alabama by the ordinance of 1787 and the recognition of the latter in the state constitution; Pol lard v. Hagan, 3 How. (U. S.) 212, 11 L. Ed. 565 ; Barlow v. Lambert, 28 Ala. 707, 65 Am. Dec. 374. • It is _recognized by judicial deci sion without any statute in Iowa ; State v. Twogood, 7 Ia. 252; Mississippi; Heming way v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586. See 1 Bish. Crim. Law § 15, note 4, § 45, where the rules adopted by the several states in this respect are stated. Hence, where a question in the courts of one state turns upon the laws of a sister state, if no proof of such laws is offered, it is, in general, presumed that the common law as it existed at the time of the separation of this country from England prevails in such state ; Abell v. Douglass, 4 Denio (N. Y.) 305;
Schurman v. Marley, 29* Ind. 458; Kermot v. Ayer, 11 Mich. 181; Mohr v. Miesen, 47 Minn. 228, 49 N. W. 862 ; contra, in Penn sylvania, in cases where that state has changed from the common law ; the pre sumption being that the law of the sister state has made the same change, if there is no proof to the contrary. The term common law as thus used may be deemed to include the doctrine of equity ; Williams v. Williams, 8 N. Y. 535 ; but the term is also used in the amendments to thy constitution of the United States (art. 7) in contradistinction to equity, in the provision that "In suits at common law where the value in controversy shall ex ceed twenty dollars, the right of trial by jury shall be preserved." The "common law" here mentioned is the common law of England, and not of any particular state ; U. S. v. Wonson, 1 Gall. 20, Fed. Cas. No. 16,750; Bains v. The Catherine, 1 Baldw. 554, Fed. Cas. No. 756; Robinson v. Campbell, 3 Wheat. (U. S.) 223, 4 L. Ed. 372; Parsons v. Bed ford, 3 Pet. (U. S.) 446, 7 L. Ed. 732. See Patterson v. Winn, 5 Pet. (U. S.) 241, 8 L. Ed. 108 ; Com. v. Leach, 1 Mass. 61; Coburn v. Harvey,, 18 Wis. 147. The term is used in contradistinction to equity, admiralty, and maritime law ; Parsons v, Bedford, 3 Pet. (U. S.) 446, 7 L. Ed. 732; Baths v. The Catherine, 1 Baldw. 554, Fed. Cas. No. 756.
The common law of England is not in all respects to be taken as that of the United States or of the several states: its general principles are adopted only, so far as they are applicable to our situation, and the prin ciples upon which courts discriminate be tween what is to be taken and what is to be left have been much the same whether Ithe common law was adopted by constitu tion, statute, or decision. While no hard and fast rule can be laid down which will at once differentiate every case, a very dis criminating effort was made by Chancellor Bates, in Clawson v. Primrose, 4 Del. Ch. 643, to formulate the result of the decisions and ascertain the criterion which they had in most instances applied to the subject.