Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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LAW, Common.

II.247.1

LAW, Common. This term is frequently used in contradistinction to all statute law, sometimes in contradistinction to the civil or canon law, occasionally to the admiralty and maritime jurisprudence, and very often to equity. Its proper signification, however, is an unwritten law which receives its binding force from immemorial usage and universal reception, in distinction from the written or statute law. Its rules or principles are to be found only in the works of institutional writers, in the records of courts, and in the reports of judicial decisions, and it is overruled by the statute law. Its origin is indefinite and can be traced only to the ancient customs of the early people of England, more particularly known as the "ancient Saxon privileges" or the body of laws and privileges framed by Alfred the Great and reaffirmed by Edward the Confessor. The spirit of these ancient laws is assumed to have descended with the race, and to have continued to be developed and the laws to have been framed, and the common law expanded, from the original Saxon vigor, even after the Norman conquest. This ancient code is assumed by historians to have been compiled by Alfred from various sources; from the Mercian laws, existing in counties bordering upon Wales, and retaining old British customs; from the west Saxon of southern and southwestern counties of England; and from the Danish of the western coast, where a Danish settlement had been effected. Some allege that it was in part framed from the Old Testament; and the belief is entertained by others, that these ancient laws and customs were gathered from the principles of the Roman Pandects, which had been compiled in the sixth century from the decisions, writings and opinions of the old Roman jurists, by order of Justinian, and which formed a part of the body of the civil law of Rome, which has been universally accepted as the basis of all mediæval legislation and of all European law. The spirit of these laws, if not the letter, found its way into England, perhaps through the clergy who were the only learned class of that period, as the laws did, some centuries later, in a more positive and extensive form. It is a fact, however, that they had already entered into the system of other European countries, which at one time formed in part the fabric of the Roman empire. A century and a half after the death of Alfred a new code was compiled by Edward the Confessor, the basis of which was the code of Alfred. This was probably a collection of all laws then in force both by custom and statute, and was long held in the highest esteem by the English people, and for many years formed the basis of English jurisprudence. It was, in fact, the system in force at the time of the Norman conquest, and thoroughly identified with Saxon liberty and nationality. The renewal by magna charta of the "ancient Saxon privileges," was the re-enactment, doubtless, of a part of the code of Edward, the spirit of which had always existed in the common law.

II.247.2

—Although the common law is an unwritten law, its rules and principles have been handed down from generation to generation, and sometimes have almost approached, from exactitude, the complete and precise form of statute law. The law of primogeniture—a rule of law under which the oldest son of the family succeeds to the father's real estate in preference to, and to the absolute exclusion of, all others of the family—is a part of the common law. This rule dates back to the conquest, when, under the feudal system, the ownership of land depended upon the personal ability of the party to perform military service, and thus excluded females. While the principle is repugnant to the spirit of British institutions, it has been preserved and handed down by the common law from that period. Blackstone also classifies the law merchant—a system of laws consisting largely of the usages of trade and applied by courts to contracts and dealings of persons engaged in mercantile business—as a part of the common law. The correctness of this classification has been questioned by other authorities, inasmuch as many of the rules of this system were in direct contradiction to the common law. During the operation of the feudal law, the system was found to be inadequate to the needs of the mercantile class then springing into prominence, and the courts of that day, when commercial contracts were brought before them, adopted from the merchants, for their guidance, the rules that governed their business dealings and made them rules of law. During the reign of James I. these rules were declared to be a part of the law of the realm. In such cases the common law was extended by the courts, and new rules were adopted to meet the association of circumstances which bore an analogy to what the common law had established in causes that came within the scope of its provisions.

II.247.3

—The decisions of the courts of law are of the highest authority in declaring its principles, and, when not inconsistent, are accepted as establishing the law. But being merely declaratory and not mandatory. among courts of equal jurisdiction a single judgment of a court will not be accepted as final Among inferior courts, however, the decisions of a superior court are accepted as binding. Courts generally are not iron-bound in their decisions, and frequently reverse their own decisions when convinced that the law has been incorrectly stated. It is, however, held that the house of lords should be an exception to this rule, as it is the court of last resort, and therefore, as the highest court of the land, its judgments partake of the essence of statute law, and having been once declared, the rule can not be altered save by a statute. In its judicial capacity, as defined by the English appellate jurisdiction act of 1876, the house of lords forms a court of final appeal from the queen's court of appeal in England, from the court of sessions of Scotland, and the superior courts of law and equity of Ireland. It is, however, regarded as settled that the jurisdiction of the house of lords is absolute and its decrees irrevocable, as being the only manner in which a court of supreme jurisdiction can remain in the unchallenged exercise of its chief functions.

II.247.4

—While the common law is recognized as pertaining to the whole realm, it yet determines the principle as a part of its own system, that under a certain condition of facts connected with the status of a case, it may accept the binding force of rules of law which are not of universal application. It is not, therefore, absolutely unalterable in declaring the law, as in some courts it adopts the provisions of codes which in others it rejects. Some of the rules of civil and canon law are also accepted as part of the common law, having been transmitted from the customs of remote ages. Custom frequently establishes such precedents as are recognized by the common law as a part of its system, although at variance with its general principles, viz.: under the law of primogeniture which, as we know, forms a part of the common law of England, the eldest son succeeds to the father's real estate, to the exclusion of all others. Although the law of primogeniture is the general law of England, as well as of Scotland and Ireland, there is one county in England—that of Kent—where, by "ancient custom." called gavelkind, a different rule prevails, and the land, instead of going wholly to the eldest son, is divided equally among all the sons. Gavelkind was the old British custom or law of succession in Wales, Kent and Northumberland. In its mixture with Anglo-Saxon law, all the sons of the father inherited. Although Blackstone ascribed to it a Celtic origin, legal antiquaries claim that it prevailed over the whole kingdom in Anglo-Saxon times. In Wales it was abolished during the reign of Henry VIII., but still remains in force in Kent county, England, having been permitted to remain by the Conqueror, as one of the "ancient liberties." There is likewise an exception called borough English in some cities and boroughs of England, where the land, instead of going to the eldest son, goes wholly to the youngest. These exceptions to the general rule of law in the kingdom are accepted by the common law as a part of its system, although at variance with its general provisions and the established custom.

II.247.5

—The tension, however, of the common law is still greater, and it will accommodate itself to customs of still more limited operation. It is not deemed at variance with its system to adopt a rule which is pronouncedly contrary to its own, if its application be established to be clear and precise, although confined to a single locality. Still, to be vested with the sanctity of law. a custom must be firmly established as of ancient origin. Should the custom be determined to have originated at a period of English history embraced within a hundred years succeeding the conquest, it would be accepted by the system as a part of itself. If such proof does not exist, the custom must be established by living witnesses of undoubted character, or by unquestioned documentary evidence that will sustain the assumption—The feudal law system established the principle of non-alienation. This restriction was removed by the statute 18 Edward I., and the principle of conditional fees or estates tail was introduced. By the charter of Henry III., conveyances to religious houses were prohibited. By the statute De Religiosis of 7 Edward I.. usually called the statute of mortmain, this prohibition was extended to all others holding for the same purpose. The clergy, to evade these provisions, devised a system of conveyance by which the use instead of the fee was granted to the church beneficiary, while the possession or seisin remained with the feoffee, and the decisions of the courts of equity which were in the bands of the clergy, held that the feoffee was bound in conscience to account to the cestuy que use, for the profits of the estates. By the act of 15 Richard II., this was annulled by the provision declaring that uses should be subject to the statute of mortmain as well as the lands.

II.247.6

—In the reign of Henry VIII., the statute relating to wills was passed, which excluded devises to corporations. By a subsequent act, 43 Elizabeth, a devise to a corporation for a charitable purpose was allowed. This is now the only means whereby religions corporations can acquire real estate either by deed or will.

II.247.7

—A complicated part of the English law of real property was introduced by the doctrine of uses, forming a part of the common law. In order to perpetuate estates in families, large landed proprietors, to prevent alienation, resorted to the expedient of the clergy—that of conveying the use instead of the fee, and the court of chancety held such conveyances to be binding. This gave rise to the statute of uses, 27 Henry VIII, of which Lord Bacon said, in his celebrated treatise upon this statute, expounding its connection with common law principles: "A law whereupon the inheritances of this realm are tossed at this day, like a ship upon the sea, in such sort that it is hard to say which bark will sink, and which will get to the haven, * * on account of the tides and currents of received errors and unwarranted and abusive experience, as they were not able to keep a right course according to the law." This statute provided that the use should be transferred into possession, or, in other words, the estate vested in the cestuy que use. Its operation was to a very great extent evaded by the substitution of trusts for uses, and under that name conveyances were introduced and enforced in chancery, with some important modifications as to legal effect.

II.247.8

—To more fully understand the development of the principles of the common law through ecclesiastical connection, it may be stated that, in the year 1130, in the town of Amalfi, in Italy, there was accidentally found a copy of the Roman Pandects compiled by order of Justinian the emperor, in the sixth century. This great system of jurisprudence was immediately adopted by the ecclesiastics who zealously spread its knowledge throughout every part of Europe. Besides its intrinsic merit, it became recommended by its early association with the imperial city of Rome, the seat of their religion, which acquired greater lustre by thus diffusing throughout Europe its own matchless laws. Before ten years had elapsed from the period of the discovery, Vacarius, under the direction of the archbishop of Canterbury, began the reading of public lectures on civil and municipal law, in the university of Oxford. The order of ecclesiastics was possessed of all the knowledge of the age, and naturally the science of law fell into their hands; with large possessions to defend from the rapacity and violence of princes and barons. it became to them a matter of personal interest to enforce the observance of general and equitable rules and customs, by which alone they could receive proper protection. Thus they formed a connection between the civil and canon law. But their energetic assumption begot a jealousy in the laity of England which prevented the Roman jurisprudence from becoming the municipal law of England, as was the case in many European states. Still, a great part of it was secretly transferred into the practice of the courts of justice, and further, by the imitation of its more fortunate neighbors, England gradually elevated its own law from its original state of rudeness and imperfection. During the reign of Edward I. in the closing years of the thirteenth century, the people of England reaped a wonderful benefit from the correction, extension, amendment and establishment of the laws of England, which Edward accomplished and transmitted to posterity as an enduring monument of his wisdom and personal worth. This patriotic labor conferred upon Edward the name of the English Justinian. According to Sir Edward Coke, not only were the statutes of his reign deserving of the character of establishments on account of their standing and durability, but the common law became refined to a remarkable degree by the regular order maintained in the administration. The judges were brought to a certainty in the determination of the law, and lawyers to a greater precision in their pleadings, and according to Sir Matthew Hale, the remarkable improvement of the common law during the reign of Edward was unexampled, save in the increase of his own time. Edward settled the jurisdiction of the several courts and first established the office of justice of the peace. He refused to interfere with the operations of justice by mandates from the privy council, as had been the custom of previous reigns. He repressed robberies and lawlessness, and encouraged trade by enabling merchants to recover their debts, by improving the system of collection under the common law, and simplifying the operation of the common law courts. He divided the court of exchequer into four distinct courts, each of which managed its own branch without dependence on the others, and as the lawyers introduced a system of carrying business from one court to another, the several courts became checks upon each other, and the administration of justice became wonderfully improved in tone.

II.247.9

—Three hundred years before the reign of Edward, William the Conqueror had instituted an ordinance which provided that the bishop who sat in the county court with the sheriff, disposing of causes both civil and ecclesiastical, should hold a separate court for the trial of ecclesiastical cases. Under this procedure, the bishop being now independent of the secular court, appropriated to his separate jurisdiction a large number of causes, on the plea of their involving matters of a spiritual nature relating to tithes and benefices. Under this head the bishop's court. claimed jurisdiction over questions relating to marriage on the ground of a spiritual contract being involved by the act, and consequently a power to annul marriages, grant divorces, determine questions of bastardy and legitimacy, and issue letters of administration in cases of intestacy on the ground that the bishops were best qualified to determine what would most benefit the soul of the intestate. On the effort of the clergy, however, to proceed still further in the assumption of judicial power under the new constitution of the ecclesiastical courts, in the attempt to introduce the entire canon law as promulgated at Rome, the national jealousy was so aroused that the king, Henry II., although a warm friend of the clergy, was compelled to prohibit the reading of books of canon law at Oxford, and a contest was inaugurated in which the whole pontifical power was invoked in behalf of the efforts of the clergy. The constitution of Clarendon, enacted by Henry II., with the concurrence of the great council, in 1164, and afterward confirmed by a council at Northampton in 1176, finally determined the disputed points. It was ordained that questions relating to benefices should be tried by the king's secular courts; that the ecclesiastical courts should be subject to the jurisdiction of the king's secular courts; that the ecclesiastical courts should be excluded from jurisdiction of pleas of debt which they had also assumed. The authority of the canon law now rests upon a statute of Henry VIII., which declares that all causes, constitutions, etc., then existing and which are not repugnant to the law of the land or the king's prerogative, shall remain in force. The canon law now pertains solely to the laws, regulations and exigencies of the church.

II.247.10

—With regard to the union of the canon and common law it may be said that the law of England relating to personal property which in many respects was deficient, received important accessions from the canon law, especially its rules relating to consanguinity and descent.

II.247.11

—The most important part of the common law of England is that which pertains to the personal rights and liberty of the citizen. At various periods of English history a large number of statutes have been passed declaratory of common law principles in aid of constitutional rights. The first that boldly strikes national attention is that of magna charta, which was a royal confirmation of inherent rights of the people by King John at Runnymede, in the thirteenth century This charter was afterward confirmed by Henry III. with other important grants. (See MAGNA CHARTA.) Also during the reign of Edward III., there were twenty parliamentary confirmations of the great charter granted, relating to common law principles. It was also during this reign that the use of the French language in common law pleadings and public deeds, first instituted by William the Conqueror in the subjugation of England, was abolished, and the English tongue substituted. The second is the petition of rights, passed by parliament during the reign of Charles I. This act continued those principles of common law contained in the great charter, which by usurpation of the crown in a measure had lapsed. The third is the habeas corpus act, passed during the reign of Charles II., which did not alter or amend the provisions contained in magna charta, but provided for their greater efficiency in the clear and precise manner of their application by the courts of law. (See HABEAS CORPUS.) The fourth is the bill of rights, which extended the provisions of magna charta in favor of those fundamental principles of the constitution which denied to the sovereign the power of suspending or dispensing with laws of the realm, etc., etc., which was adopted by parliament early in the reign of William and Mary. (See BILL OF RIGHTS.) To the common law, which applied these principles of freedom, the English subject owes all his liberty. Statutes could have availed nothing without the principles entering through the courts into the national life. The common law claimed the existence of these free principles long before their essence was established by particular statutes. The right of trial by jury is one of the most prominent of common law rights, as it belongs almost exclusively to the English race. The oldest law writer of the time of Henry VI. declares that no other country at that time and previously contained the elements of society able to constitute a jury. That in other countries there was no "middle class" between the nobility and the impoverished peasantry, and no class of commoners sufficiently intelligent to perform the duties of jurymen. The English law of evidence is a wide branch of the common law. In all criminal cases the accused is not compelled to testify against himself; while in a preliminary examination he is always permitted to do so. if it is his desire.

II.247.12

—While there is much to admire in the common law system, some of its rules are very inequitable. Until superseded by the statutes of 1870 and 1882, common law vested all the property of a married woman in her husband, without responsibility on his part; and for a long time the only way through which she could enjoy any part of it was by the intervention of the court of chancery.

II.247.13

—Under the common law marriage can be annulled for but one offense after the union—the act of adultery. Fraud, impotence, and such pre-existing causes, may constitute grounds for divorce, but only the act of adultery after the marriage ceremony. Under the common law a child born out of wedlock is illegitimate, and no subsequent act of the father and mother can affect its legal status. This intolerant rule has, however, been indelibly stamped upon the common law by the action of parliament. During the reign of Henry III great disputes originated between the civil and ecclesiastical courts concerning bastardy. By the common law those who had been born before wedlock were bastards. By the canon law they were legitimate: and when any dispute arose relating to inheritance, it had been usual for the civil courts to issue writs to the spiritual, directing them to inquire into the legitimacy of the person. The bishop always returned answer according to the canon law, though contrary to the municipal law of the kingdom. For this reason the civil courts changed the terms of their writs, and required the spiritual courts merely to make inquiry concerning the legitimacy of the party in question, by proposing the simple interrogatory whether he were born before or after marriage. The prelates complained of this practice to the parliament assembled at Merton in the twentieth year of the king's reign, and requested that the municipal law might be made to conform with the canon law. They, however, received from that parliament the memorable answer, Nolumus leges Angliœ mutare.

II.247.14

—The courts of common law are divided into superior and inferior. They bore the names of the court of queen's bench, the court of common pleas or common bench, and the court of exchequer. They all sprung originally from the aula regia of the Norman kings. This court was formed of the chief officers of state and of the king's household, and of the chief nobility and other learned justices of the kingdom, all presided over by the chief justiciar. This court for a long time was omnipresent with the king; followed him from place to place in his journeyings, and formed the supreme court of the kingdom. The inconvenience to the people by this mode of dispensing justice became so great that a demand was made for a fixed court, which was granted in magna charta by King John, and the court of common pleas established. A still greater change occurred under Edward I., as before alluded to, when the court of aula regia was entirely abolished, and its judicial functions apportioned among a court of chancery and the three courts of common law above mentioned. By the acts of 1873 and 1875 all the superior courts of England were consolidated into two new courts, styled the high court of justice and the court of appeal. Three of the five divisions of the high court of justice were called after the names of the old common law courts, to wit, the queen's bench, common pleas and exchequer divisions. Their business relations were unchanged, save with this distinction, that thereafter they should administer justice without regard to its being known as common law or equity. All the judges of the consolidated courts acquired equity jurisdiction; the result of this "fusion of law and equity" being to put an end to that anomalous system under which decisions of courts of law were continually set aside by co-ordinate courts of equity. and to give wider application to the old doctrine that when law and equity are at variance, equity should prevail.

II.247.15

—The inferior courts, formerly numerous, are nearly all abolished. Those that remain are of very restricted jurisdiction, chief of which is the modern county court. A few borough courts exist, from which a writ of error lies to a superior court. The lord mayor's court and the city court of London transact considerable business. There is also remaining a court of hustings, a court of the cinque ports, and the stannary courts of Cornwall and Devonshire. In some counties there are baronate courts for adjudication of mining matters. The court of common pleas in Lancaster and the court of pleas in Durham, have jurisdiction in personal matters, and form part of the high court of justice.

II.247.16

—The common law in the United States is the same in all particulars as the common law in England. It differs only in the form of administration. It contains the principles, customs and rules pertaining to the government and the safety of persons and property, not to be found in any statute or legislative enactment. The rule of common law with regard to the relations between husband and wife has been modified in some respects, principally that relating to the control of the wife's property. This change has not been effected by altering the principle of common law, but by statute, as in England. Also with regard to the legitimacy of children, the statutes of many, if not all, of the states have ameliorated the harsh rules of the common law, and infants born out of wedlock are legitimized and succeed to all the rights of those born in wedlock, by the subsequent marriage of the parents. This is in imitation somewhat of the Scotch law of legitimation, under the operation of which a person who was born illegitimate, was rendered legitimate by the parents' subsequent marriage, provided that at the time of his birth there was existing no legal impediment to their union. The Scotch law of putative marriages also legitimized the children of the union.

II.247.17

—Among the earliest institutional writers on the common law was Henry de Bracton, an ecclesiastic and chief justiciary in the reign of Henry III. He wrote a comprehensive work on "The Laws and Customs of England," modeled after the "Institutes" of Justinian, treating largely upon the rules of personal property and contracts.

II.247.18

—He was followed by Sir John Fortescue, who was chief justice of the king's bench during the reign of Henry VI. He was exiled on attainder after the battle of St. Albans. and accompanied Queen Margaret and her young son into Scotland. While in Scotland Sir John Fortescue wrote his celebrated treatise De Laudibus Legum Angliœ. This treatise on the common law of England was written originally for the benefit of the young prince. He likewise wrote a valuable work on the English constitution.

II.247.19

—During the same reign Sir Thomas Lyttleton. a celebrated jurist and judge of the court of common pleas, wrote a valuable treatise on Tenures, which went through a multitude of editions. Lord Bacon characterized the writings of this jurist, together with those of Mr. Fitzpatrick, another common law writer, as the "Institutions of the laws of England."

II.247.20

—Another eminent authority on common law is Sir Edward Coke, one of the brightest legal luminaries of English history. He was a jurist of great power and learning, and early acquired a high rank in his profession by his argument in Shelly's case, from which case came the celebrated rule of real property law known as "the rule in Shelly's case," reported in Coke, i., 104, to wit: "When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation and not words of purchase." (This rule, however, in most of the states has been abolished by statute) He successively became king's sergeant, recorder of London, member of parliament, speaker of the house of commons, solicitor general, attorney general. judge of the court of common pleas, chief justice of the court of king's bench, member of the privy council, and had is not have been for the enmity and opposition of Lord Bacon, would have reached the position of lord chancellor. His principal legal work is "Coke upon Lyttleton," or the First Institute, a standard work on all constitutional and municipal law in England. His other treatises on the common law are the Second, Third, and Fourth Institutes. His work on Copyholder and Fines, and his law reports, which made a commotion on their appearance, are still of great value to the profession. As a member of parliament he performed very important services for the people. His resolutions which formed the basis of the habeas corpus act, and his work in framing the famous bill of rights, entitle him to the gratitude and veneration of his countrymen.

II.247.21

—As remarked, Sir Francis Bacon was the contemporary of Coke. He was affirmed to be the greatest genius that England ever produced, and the glory of his age and race. His works on the common law were numerous, and composed of his treatise on The Elements of the Common Law of England, divided into Maxims of the law and The use of the law; treatise on Compositions for Alienations; Reading on the Statute of Uses; Proposal for Amending the Laws of England; essays on Despatch Judicature and Innovation; Advancement of Learning; and his work entitled the Doctrine of Universal Justice; all presenting, in the language of his biographer, "the substance of profound jurisprudential reflection."

II.247.22

—Coke and Bacon were succeeded by Sir Matthew Hale, a distinguished lawyer of the seventeenth century, who was appointed by Cromwell a judge of the court of common pleas, and afterward, by Richard Cromwell, chief justice of the court of king's bench. He was incorruptible and able, and his treatises on the common law were received with great favor and are still of high authority in England, where his legal MSS. are preserved at Lincoln's Inn.

II.247.23

—Sir William Blackstone, another writer and lecturer on common law of the last century, has transmitted his famous Commentaries, which for a lengthy period were greatly esteemed as an authority and are now regarded as of great value as materials for history.

II.247.24

—Space does not permit a more extended review of this part of the subject, but the foregoing have been the principal writers on the science of English common law. The causes have accumulated with the years, and other abridgments and digests have followed, reproducing the rules and principles in other forms, and the old books of the old masters are rarely cited now as authorities. The common law continues to grow on both continents, and with each generation will become more rich and powerful in determining the principles of law governing the growth, development and security of society.

J. W. CLAMPITT.

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