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Picts, the Saxons, the Danes, and the Normans, "thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries." At about the beginning of the eleventh century there seem to have been three different systems in vogue in the kingdom: (a) The Mercian laws; (2) the West Saxon laws; and (3) the Danish laws, - each having its distinct territory where it was observed. is said that out of these three systems King Edward the Confessor extracted a uniform system which was thereafter observed throughout the whole kingdom. To this system, because it was of such general scope, the name common law was applied.




The most important source of the common law lies in those customs which, growing up in a community, and becoming crystallized by time, are regarded as of legal force in the absence of more authoritative rules. By the common-law doctrines, a rule of law, whether based upon custom or not, when once recognized by the courts and applied to a case, forms a precedent, and should be followed in all similar cases thereafter, unless flatly absurd or unjust, or unless repealed by legislation. This is called the "doctrine of stare decisis."

In legal theory, a custom, to be entitled to recognition as law, must have been: (a) In existence for time immemorial. It must, in the quaint words of Blackstone, "have been used so long that the memory of man runneth not to the contrary." (b) It must have been continued; that is, it must have been constantly observed whenever an occasion for its observance arose. It must not have given place to other customs inconsistent with it. (c) It must have been peaceable; that is, it must have been acquiesced in without dispute. (d) It must be reasonable; that is, it must not be inconsistent with the general spirit of the law. (e) It must be certain; in other words, it must not be vague or indefinite in its character. (f) It must have been compulsory; that is, it must have been regarded as binding upon all persons to whom it applies. (g) It must be consistent with all other customs.

Whenever the written law failed to provide a rule to govern a case, the common-law judges were expected to take the necessary rule from the customs of the community. The recognition of the legal force of custom is a practical recognition of the right of the people to be consulted in the making of the laws. Such recognition is very infrequent, except in those countries where the people have attained more or less practical freedom. It is in itself a step toward liberty.

Early in the history of the common law the courts began to preserve records of their decisions, and it became habitual, when the unwritten law was to be resorted to, for the judge to examine

the reports of previous cases to see if the same matter had not already been considered judicially. It was much easier to do this than to go through the process of determining what the custom was directly. This habit of the judges itself grew into a custom, and finally it became a rule with the courts that the decisions in previous cases should govern whenever they were applicable to the case in hand. This rule gave greater certainty to the law. The people might know, from what had already been decided, the rule which would govern their own actions. The reported decisions have become so numerous that at the present time original customs are resorted to so infrequently that modern lawyers often forget that they are the basis of the common law. It may be said that the common law is embodied in the cases, and, when a state of facts arises for which there is not a precedent, there is usually some general principle running through the law from which a rule may be deduced, or a case from which a rule may be extracted by analogy. Evidence of a custom which has not already been judicially recognized is seldom resorted to. The authority of adjudicated cases tends more and more to exclude all other sources of authority as time goes on.


31. Development of the Common Law-Fictions Equity. The development of the common law has been materially aided by the use of legal fictions, and by the system known as equity." A legal fiction is the assumption by a court that certain things are true which are in reality either partially or wholly false. Equity is a supplementary legal system, which, by reason of the elasticity of its rules, serves to correct the tendency toward undue harshness resulting from the inflexibility of common-law principles. Whenever rules become fixed, growth ceases. But it is desirable that a system of law should keep pace with the growth and civilization of the race which it governs. In the history of the common law there have been many times when principles have been outgrown, as it were, by the people to whom they applied. The courts recognized this, yet the rules were so firmly rooted in the law that it would be well-nigh revolutionary to uproot them. Legal fictions were resorted to. For example, at the common law, there was a form of action called "trover," which lay for the recovery of damages against a person who, having found the goods of the plaintiff, refused to give them up when asked to do so. But cases would come up in which the defendant had the goods of the plaintiff, and refused to give them up, but in which the defendant had not found the goods, but had become possessed of them in some other way. The essence of the action of trover was the finding of the goods. Should the judges turn the suitor away because it happened that the defendant had perhaps stolen the

goods instead of finding them? No; the judges said that they would assume that he found them, whatever the real facts were, and would give the plaintiff damages if he could prove that the defendant had wrongfully converted the goods, and would not deliver them to the rightful owner. And to this day an action of trover proceeds upon the fiction that the goods were originally found. The rationale of fictions is this: The law first becomes so fixed that its modification is impracticable, although extremely desirable. The judges note the desirability of certain changes, and, by assuming a state of facts which does not in fact exist, bring those changes about. While the dry, hard shell remains the same, the spirit within is changed to meet the demands of the times.

The existence of an equity system in England is also due to a realization of the inflexibility which is characteristic of a rule of law when it once takes upon itself a permanent form. A similar system was developed in Rome, and we may regard it as necessary to the attainment of the fullest justice that some equitable rules exist in any collection of laws. The name "equity" implies that the design of the system is justice; but it is not every man's idea of justice that will be administered under the system. It is rather the technical justice of the courts, which is governed by rules nearly as rigid as those of the common law proper. The equity system will be discussed at length in subsequent sections.*

§ 32. The Law Merchant. The "law merchant" is the name applied to a collection of customs which were observed by merchants and other business men in their dealings with each other. They are now regarded as fully adopted into the common law. They consist chiefly of the law in relation to commercial paper.

It is a principle of the common law that particular usages are frequently to be recognized and enforced, although they may even be contrary to the ordinary legal rule. This principle sometimes goes so far as to lead the courts to change the ordinary meaning of words to conform with a certain usage. These usages may be local- that is, confined to a certain locality or they may apply to a particular class of persons. The law merchant was of the last-mentioned class. It was a system of customs which were often contradictory to the regular common-law rules, and which, nevertheless, the courts would enforce in controversies between merchants who were in the habit of observing them. As time advanced, however, they became gradually grafted into the common-law system, until to-day they are as much a part of the common law as are any of that system's principles. The adoption of these customs into the common law is a fair example of the way custom

4. See infra, § 35 et seq.

develops into law; first perhaps as a mere particular usage, then becoming general in its character, and finally receiving recognition as law from the legal tribunals.

§ 33. The Canon Law. The canon law was that part of the Roman law system which governed ecclesiastical affairs. It is used by the English ecclesiastical courts in the administration of their judicial functions, and may in a sense, therefore, be regarded as having been adopted into the common law. In its original form, as a part of the Roman law, the canon law was in the main a written system. But it is hardly necessary to say that it does not derive its authority in England by virtue of its promulgation by a foreign power. It is administered in the English courts in the same manner as ordinary unwritten law, its Roman law form being regarded as merely furnishing evidence of what the law is. As the law merchant is a collection of customs previously existing which have been adopted bodily into the common law, so the canon law is a system of laws which have been adopted in toto by the English courts.

34. Common or Unwritten Law in the United States. The English common law is adopted, so far as suited to American institutions, as the unwritten law of all of the States of the United States except Louisiana. In that State, except in criminal matters, the Roman law prevails. In their character of English colonies, those States which afterward organized the United States government were subject to the English common law. Many of the colonists were emigrants from England, and were therefore accustomed to that system even before they came under its control in America, so that at the time of the Revolution the people of the colonies knew no laws except those which came to them as a birthright from their fatherland. It was but natural that they should continue the same system to which they had been accustomed, for a change in a system of laws is a far more serious matter, more difficult to accomplish, and more grave in its results, than even a change of governmental forms. Therefore, when America was settled by the English colonists they brought with them the English common or unwritten law, except in so far as it was inapplicable to their new surroundings and conditions. This exception is very important. The courts have frequently had occasion to hold that particular rules of the common law were not a part of our law, simply because our new conditions rendered them inapplicable. The colonists also brought with them such existing English statutes as were applicable to our new conditions and even adopted some other English statutes as they were subse

5. See 8 Cyc. 366 et seq.

6. See 8 Cyc. 377.

quently enacted. Thus the law of England, common and statute, in force prior to the Revolution, so far as it was applicable to our conditions, but no further, became the common law of the American colonies and was adopted by the several States of the Union after the Revolution, either by general consent or by express constitutional or statutory provision. This body of the law is still in force in the several States except in so far as it has been abrogated or changed by statute; and it has also been adopted by the new States as from time to time they have been admitted into the Union.8

In like manner the law merchant, which, as we have seen, was recognized as a part of the English common law, became by adoption, so far as applicable, a part of our common law.10

In Louisiana, that State having been a French province up to the time of its admission into the Union, and therefore having been subject to the Roman law in its French form, the same reasons which led the other States to adopt the common law induced the people to adopt the Roman system as the basis of their laws. In criminal matters, however, the common law has been expressly adopted in that State. Traces of Roman law influence are also apparent in Florida, Texas, California, and other southern and western States.

Owing to the total separation of church and State in this country, the canon law,12 as a system, is of no legal force in the United States, although some of its principles have been adopted into our common law. For example, the law forbidding adultery has been adopted from the canon law, as administered by the English ecclesiastical courts, into the common law of many of the States.18

With Respect to the Federal Government.— The federal government does not possess a complete unwritten legal system. There is no common law of the United States as distinguished from the individual States. The federal government is composed of inde pendent States, each of which has its local usages, customs, common law, constitution and statutes, but there is no principle which pervades the Union and has the authority of law that is not embodied in the constitution of the United States or in an act of congress passed in pursuance thereof. But a court of the United States, when it has jurisdiction of a cause under the constitution. and acts of congress, enforces the common law of the State in which it is sitting; and it will also construe the constitution and acts of congress in the light of the common law.14

7. See 8 Cyc. 370.

8. See 8 Cyc. 377-383.
9. See supra, § 32.
10. See 8 Cyc. 372.

11. See supra, § 29.

12. See supra, § 33.

13. See 1 Cyc. 952; 19 Cyc. 1435.

14. See 8 Cyc. 385.

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