Common Law

(Lat. communis, general, of general application; lex, law)

The term is of English origin and is used to describe the juridical principles and general rules regulating the possession, use and inheritance of property and the conduct of individuals, the origin of which is not definitely known, which have been observed since a remote period of antiquity, and which are based upon immemorial usages and the decisions of the law courts as distinct from the lex scripta; the latter consisting of imperial or kingly edicts or express acts of legislation. That pre-eminent English lawyer and law-writer, Sir William Blackstone, states in his "Commentaries upon the Laws of England" that the common law consists of rules properly called leges non scriptœ, because their original institution and authority were not set down in writing as Acts of Parliament are, but they receive their binding power and the force of laws, by long immemorial usage, and by their universal reception throughout the kingdom; and, quoting from a famous Roman author, Aulus Gellius, he follows him in defining the common law as did Gellius the Jus non scriptum as that which is "tacito illiterato hominum consensu et moribus expressum" (expressed in the usage of the people, and accepted by the tacit unwritten consent of men).

When a community emerges from the tribal condition into that degree of social development which constitutes a state and, consequently, the powers of government become defined with more or less distinctness as legislative, executive, and judicial, and the arbitration of disputes leads to the establishment of courts, the community finds itself conscious of certain rules regarding the conduct of life, the maintenance of liberty, and the security of property which come into being at the very twilight of civilization and have been consistently observed from age to age. Such were the usages and customs, having the force of law which became the inheritance of the English people and were first compiled and recorded by Alfred the Great in his famous "Dome-book" or "Liber Judicialis", published by him for the general use of the whole kingdom. That famous depository of laws was referred to in a certain declaration of King Edward, the son of Alfred, with the injunction: "Omnibus qui reipublicæ præsunt etiam atque etiam mando ut omnibus æquos se præbeant judices, perinde ac in judiciali libro scriptum habetur: nec quicquam formident quin jus commune audacter libereque dicant" (To all who are charged with the administration of public affairs I give the express command that they show themselves in all things to be just judges precisely as in the Liber Judicialis it is written; nor shall any of them fear to declare the common law freely and courageously).

In modern times the existence of the "Liber Judicialis" was the subject of great doubt, and such doubt was expressed by many writers upon the constitutional history of England, including both Hallam and Turner. After their day the manuscript of the work was brought to light and was published both in Saxon and English by the Record Commissioners of England in the first volume of the books published by them under the title, "The Ancient Laws and Institutes of England". The profound religious spirit which governed King Alfred and his times clearly appears from the fact that the "Liber Judicialis" began with the Ten Commandments, followed by many of the Mosaic precepts, added to which is the express solemn sanction given to them by Christ in the Gospel: "Do not think that I am come to destroy the law, or the prophets; I am not come to destroy but to fulfil." After quoting the canons of the Apostolic Council at Jerusalem, Alfred refers to the Divine commandment, "As ye would that men should do to you, do ye also to them", and then declares, "From this one doom, a man may remember that he judge every one righteously, he need heed no other doom-book." The original code of the common law compiled by Alfred was modified by reason of the Danish invasion, and from other causes, so that when the eleventh century began the common law of England was not uniform but consisted of observances of different nature prevailing in various districts, viz: Mercen Lage, or Mercian laws, governing many of the midland counties of England and those bordering upon Wales, the country to which the ancient Britons had retreated at the time of the Anglo-Saxon invasion. These laws were, probably, influenced by and intermixed with the British or Druidical customs. Another distinct code was the West-Saxon Lage (Laws of the West-Saxons) governing counties in the southern part of England from Kent to Devonshire. This was, probably, identical for the most part with the code which was edited and published by Alfred. The wide extent of the Danish conquest is shown by the fact that the Dane Lage, or Danish law, was the code which prevailed in the rest of the midland counties and, also, on the eastern coast. These three systems of law were codified and digested by Edward the Confessor into one system, which was promulgated throughout the entire kingdom and was universally observed. Alfred is designated by early historians as Legum Anglicanarum Conditor; Edward the Confessor as Legum Anglicanarum Restitutor.

In the days of the Anglo-Saxon kings the courts of justice consisted principally of the county courts. These county courts were presided over by the bishop of the diocese and the ealdorman or sheriff, sitting en banc and exercising both ecclesiastical and civil jurisdiction. In these courts originated and developed the custom of trial by jury. Prior to the invasion led by William the Norman, the common law of England provided for the descent of lands to all the males without any right of primogeniture. Military service was required in proportion to the area of each free man's land, a system resembling the feudal system but not accompanied by all its hardships. Penalties for crime were moderate; few capital punishments being inflicted and persons convicted of their first offence being allowed to commute it for a fine or weregild; or in default of payment, by surrendering themselves to life-long bondage. The legal system which thus received form under the direction of the last Saxon King of England, was common to all the realm and was designated as "Jus commune" or Folk-right.

In contradistinction to English jurisprudence the Civil Law of Rome prevailed throughout the Continent. William the Conqueror brought with him into England jurists and clerics thoroughly imbued with the spirit of the civil law and distinctly adverse to the English system. However, the ancient laws and customs of England prevailing before the Conquest, withstood the shock and stress of opposition and remained without impairment to any material extent. The first great court of judicature in England after the Conquest was the Aula Regis or King's Court wherein the king either personally or constructively administered justice for the whole kingdom. The provision in Magna Charta to the effect that the King's Court of Justice should remain fixed and hold its sessions in one certain place, instead of being a peripatetic institution, constitutes historic evidence of the existence of such a court and, also, gives expression to the public discontent created by the fact that its sessions were held at various places and thus entailed great expense and trouble upon litigants. In later days, the Aula Regis became obsolete and its functions were divided between the three great common-law courts of the realm, viz; the Court of King's Bench, the Court of Common Pleas, and the Court of Exchequer. The Court of King's Bench was considered the highest of these three tribunals, although an appeal might be taken from the decisions thereof to the House of Lords. The Court of Common Pleas had jurisdiction over ordinary civil actions, while the Court of Exchequer was restricted in its jurisdiction to causes affecting the royal revenues. Besides these courts the canon law was administered by the Catholic clergy of England in certain ecclesiastical courts called "Curiæ Christianitatis" or Courts Christian. These courts were presided over by the archbishop and bishops and their derivative officers. The canon law at an early date laid down the rule that "Sacerdotes a regibus honorandi sunt, non judicandi," i. e. the clergy are to be honoured by kings, but not to be judged by them, based on the tradition that when some petitions were brought to the Emperor Constantine, imploring the aid of his authority against certain of his bishops accused of oppression and injustice, he caused the petitions to be burned in their presence bidding them farewell in these words, "Ite et inter vos causas vestras discutite, quia dignum non est ut nos judicemus deos" (judge your own cases; it is not meet that we should judge sacred men).

The ecclesiastical courts of England were:

• The Archdeacon's Court which was the lowest in point of jurisdiction in the whole ecclesiastical polity. It was held by the archdeacon or, in his absence, before a judge appointed by him and called his official. Its jurisdiction was sometimes in concurrence with and sometimes in exclusion of the Bishop's Court of the diocese, and the statute 24 Henr. VIII, c. XII, provided for an appeal to the court presided over by the bishop.

• The Consistory Court of the diocesan bishop which held its sessions at the bishop's see for the trial of all ecclesiastical causes arising within the diocese. The bishop's chancellor, or his commissary, was the ordinary judge; and from his adjudication an appeal lay to the archbishop of the province.

• The Court of Arches was a court of appeal belonging to the Archbishop of Canterbury, and the judge of such court was called the Dean of the Arches because in ancient times he held court in the church of St. Mary le bow (Sancta Maria de arcubus), one of the churches of London.

• The Court of Peculiars was a branch of and annexed to the Court of Arches. It had jurisdiction over all those parishes dispersed throughout the Province of Canterbury in the midst of other dioceses, which were exempt from the ordinary's jurisdiction and subject to the metropolitan only. All ecclesiastical causes arising within these peculiar or exempt jurisdictions were, originally, cognizable by this court. From its decisions an appeal lay, formerly, to the pope, but during the reign of Henry VIII this right of appeal was abolished by statute and therefor was substituted an appeal to the king in Chancery.

• The Prerogative Court was established for the trial of testamentary causes where the deceased had left "bona notabilia" (i. e. chattels of the value of at least one hundred shillings) within two different dioceses. In that case, the probate of wills belonged to the archbishop of the province, by way of special prerogative, and all causes relating to the wills, administrations or legacies of such persons were, originally, cognizable therein before a judge appointed by the archbishop and called the Judge of the Prerogative Court. From this court an appeal lay (until 25 Henr. VIII, c. XIX) to the pope; and after that to the king in Chancery.

These were the ancient courts. After the religious revolution had been inaugurated in England by Henry VIII, a sixth ecclesiastical court was created by that monarch and designated the Court of Delegates (judices delegati), and such delegates were appointed by the king's commission under his great seal, issuing out of chancery, to represent his royal person and to hear ordinary ecclesiastical appeals brought before him by virtue of the statute which has been mentioned as enacted in the twenty-fifth year of his reign. This commission was frequently filled with lords, spiritual and temporal, and its personnel was always composed in part of judges of the courts at Westminster and of Doctors of the Civil Law. Supplementary to these courts were certain proceedings under a special tribunal called a Commission of Review, which was appointed in extraordinary cases to revise the sentences of the Court of Delegates; and, during the reign of Elizabeth, another court was created, called the Court of the King's High Commission in Cases Ecclesiastical. This court was created in order to supply the place of the pope's appellate jurisdiction in regard to causes appertaining to the reformation, ordering and correcting of the ecclesiastical state and of ecclesiastical persons "and all manner of errors, heresies, schisms, abuses, offences, contempts and enormities". This court was the agent by which most oppressive acts were committed and was justly abolished by statute, 16 Car. I, c. XI. An attempt was made to revive it during the reign of King James II.

The Church of England was the name given to that portion of the laity and clergy of the Catholic Church resident in England during the days of the Anglo-Saxon monarchy and during the history of England under William the Conqueror and his successors down to the time when Henry VIII assumed unto himself the position of spiritual and temporal head of the English Church. Prior to the time of Henry VIII, the Church of England was distinctly and avowedly a part of the Church universal. Its prerogatives and its constitution were wrought into the fibre of the common law. Its ecclesiastical courts were recognized by the common law - the jus publicum of the kingdom - and clear recognition was accorded to the right of appeal to the sovereign pontiff; thus practically making the pontiff the supreme judge for England as he was for the remainder of Christendom in all ecclesiastical causes. The civil courts rarely sought to trench upon the domain of ecclesiastical affairs and conflict arose only when the temporalities of the church were brought within the scope of litigation. The common law is chiefly, however, to be considered in reference to its protection of purely human interests. As such it proved to be powerful, efficient and imposing. The Court of King's Bench, Common Pleas and the Exchequer, together with the High Court of Chancery, were justly famous throughout Christendom. The original Anglo-Saxon juridical system offered none but simple remedies comprehended, for the most part, in the award of damages for any civil wrong and in the delivery to the proper owners of land or chattels wrongfully withheld. Titles of an equitable nature were not recognized and there was no adequate remedy for the breach of such titles. The prevention of wrong by writs of injunction was unknown.

The idea of a juridical restoration of conditions which had been disturbed by wrongful act as well as the idea of enforcing the specific performance of contracts had never matured into either legislation or judicial proceedings. Such deficiencies in the jurisprudence of the realm were gradually supplied, under the Norman kings, by the royal prerogative exercised through the agency of the lord chancellor by special adjudications based upon equitable principles. In the course of time, a great Court of Chancery came into being deriving its name from the fact that its presiding judge was the lord chancellor. In this court were administered all the great principles of equity jurisprudence. The lord chancellor possessed as one of his titles that of Keeper of the King's Conscience; and, hence, the High Court of Chancery was often called a Court of Conscience. Its procedure did not involve the presence of a jury and it differed from the courts of common law in its mode of proof, mode of trial, and mode of relief. The relief administered was so ample in scope as to be conformable in all cases with the absolute requirements of a conscientious regard for justice. Among the most eminent of the Chancellors of England was Sir Thomas More who laid down his life rather than surrender the Catholic Faith, and Lord Bacon who was the pioneer in broadening the scope of modern learning. After the time when courts became established and entered upon the exercise of their various functions, the common law developed gradually into a more finished system because of the fact that judicial decisions were considered to be an exposition of the common law and, consequently, were the chief repository of the law itself. For this reason the observance of precedents is a marked feature in English jurisprudence and prevails to a much greater extent than under other systems. As the law is deemed to be contained in the decisions of the courts, it necessarily follows that the rule to be observed in any particular proceeding must be found in some prior decision.

When the period of English colonization in America began, the aborigines were found to be wholly uncivilized and, consequently, without any system of jurisprudence, whatsoever. Upon the theory that the English colonists carried with them the entire system of the English law as it existed at the time of their migration from the fatherland, the colonial courts adopted and acted upon the theory that each colony, at the very moment of its inception, was governed by the legal system of England including the juridical principles administered by the common law courts and by the High Court of Chancery. Thus, law and equity came hand in hand to America and have since been the common law of the former English colonies.

When the thirteen American colonies achieved their independence, the English common law, as it existed with its legal and equitable features in the year 1607, was universally held by the courts to be the common law of each of the thirteen states which constituted the new confederated republic known as the United States of America. As the United States have increased in number, either by the admission of new states to the Union carved out of the original undivided territory, or by the extension of territorial area through purchase or contest, the common law as it existed at the close of the War of the American Revolution has been held to be the common law of such new states with the exception that, in the State of Louisiana, the civil law of Rome, which ruled within the vast area originally called Louisiana, has been maintained, subject only to subsequent legislative modifications. The Dominion of Canada is subject to the common law with the exception of the Province of Quebec and the civil laws of that province are derived from the old customary laws of France, particularly the Custom of Paris, in like manner as the laws of the English-speaking provinces are based upon the common law of England. In process of time, the customary laws have been modified or replaced by enactments of the Imperial and Federal parliament and by those of the provincial parliament; they were finally codified in the year 1866 upon the model of the Code Napoléon. However, the criminal law of the Province of Quebec is founded upon that of England and was to a great extent codified by the federal statute of 1892. Practice and procedure in civil causes are governed by the Code of Civil Procedure of the year 1897.

The common law of England is not the basis of the jurisprudence of Scotland; that country having adhered to the civil law as it existed at the time of the union with England except so far as it has been modified by subsequent legislation. The English common law with the exceptions which have been noted prevails throughout the English-speaking world. Mexico, Central America, and South America, with the exception of an English Colony and a Dutch Colony, remain under the sway of the civil law. The common law of England has been the subject of unstinted eulogy and it is, undoubtedly, one of the most splendid embodiments of human genius. It is a source of profound satisfaction to Catholics that it came into being as a definite system and was nurtured, and to a great extent administered, during the first ten centuries of its existence by the clergy of the Catholic Church.

REEVES, History of the English Law (Philadelphia, 1880); BLACKSTONE, Commentaries on the Laws of England, SHARSWOOD edition (Philadelphia, 1875); POLLOCK AND MAITLAND, The History of English Law (Boston, 1875); KENT, Commentaries upon American Law (12th ed., Boston, 1873).

John Willey Willis.