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COMMON LAW

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Originally appearing in Volume V06, Page 778 of the 1911 Encyclopedia Britannica.
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See also:

COMMON See also:LAW , like " See also:civil law," a phrase with many shades of meaning, and probably best defined with reference to the various things to which it is opposed. It is contrasted with See also:statute law, as law not promulgated by the See also:sovereign See also:body; with See also:equity, as the law prevailing between See also:man and man, unless when the See also:court of See also:chancery assumed See also:jurisdiction; and with See also:local or customary law, as the See also:general law for the whole See also:realm, tolerating See also:variations in certain districts and under certain conditions. It is also sometimes contrasted with civil, or See also:canon, or See also:international law, which are See also:foreign systems recognized in certain See also:special courts only and within limits defined by the common law. As against all these contrasted kinds of law, it may be described broadly as the universal law of the realm, which applies wherever they have not been introduced, and which is supposed to have a principle for every possible See also:case. Occasionally, it would appear to be used in a sense which would exclude the law See also:developed by at all events the more See also:modern decisions of the courts. See also:Blackstone divides the civil law of See also:England into lex scripta or statute law, ,and lex non scripta or common law. The latter, he says, consists of (1) general customs, which are the common law strictly so called, (2) particular customs prevailing in certain districts, and (3) See also:laws used in particular courts. The first is the law by which " proceedings and determinations in the See also:king's See also:ordinary courts of See also:justice are guided and directed." That the eldest son alone is See also:heir to his ancestor, that a See also:deed is of no validity unless sealed and delivered, that See also:wills shall be construed more favourably and deeds more strictly, are examples of common law doctrines, " not set down in any written statute or See also:ordinance, but depending on immemorial usage for their support." The validity of these usages is to be determined by the judges—" the depositaries of the law, the living oracles who must decide in all cases of doubt, and who are See also:bound by an See also:oath to decide according to the law of the See also:land." Their judgments are preserved as records, and " it is an established See also:rule to abide by former precedents where the same points come again in litigation." The extraordinary deference paid to precedents is the source of the most striking peculiarities of the See also:English common law. There can be little doubt that it was the rigid adherence of the common law courts to established precedent which caused the rise of an See also:independent tribunal administering justice on more equitable principles—the tribunal of the See also:chancellor, the court of chancery. And the old common law courts—the king's See also:bench, common pleas and exchequer—were always, as compared with the court• of chancery, distinguished for a certain narrowness and technicality of reasoning. At the same See also:time the common law was never a fixed or rigid See also:system. In the application of old precedents to the changing circumstances of society, and in the development of new principles to meet new cases, the common law courts displayed an immense amount of subtlety and ingenuity, and a See also:great See also:deal of See also:sound sense.

The continuity of the system was not less remarkable than its See also:

elasticity. Two great defects of See also:form See also:long disfigured the English law. One was the separation of common law and equity. The Judicature See also:Act of 1873 remedied this by merging the jurisdiction of all the courts in one supreme court, and causing equitable principles to prevail over those of the common law where they differ. The other is the overwhelming See also:mass of precedents in which the law is embedded. This can only be removed by some well-conceived See also:scheme of the nature of a See also:code or See also:digest; to. some extent this difficulty has been overcome by such acts as the Bills of See also:Exchange Act 1882, the See also:Partnership Act 1890 and the See also:Sale of Goods Act 1893. The English common law may be described as a pre-eminently See also:national system. Based on Saxon customs, moulded by See also:Norman lawyers, and jealous of foreign systems, it is, as See also:Bacon says, as mixed as the English See also:language and as truly national. And like the language, it has been taken into other English-speaking countries, and is the See also:foundation of the law in the See also:United States.

End of Article: COMMON LAW

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