2. English Statutes, 277 a. In General, 277. b. Statutes Enacted Prior to 4 Fac. 1, 278. c. Statutes Enacted Prior to July 4, 1776, 279. 3. Effect of English Decisions, 279. a. Rendered Prior to the American Revolution, 279. b. Rendered Subsequent to the American Revolution, 279. V. PRESUMPTION AS TO EXISTENCE, 280. 1. In General, 280. 2. Exceptions, 280. a. Louisiana, 280. b. Texas, 281. c. Indian Territory, 281. 3. In the Original Colonies, 281. 4. In Sister States, 282. a. Generally, 282. b. Presumed to Be the Same as in State of Forum, 284. 5. In Foreign Country, 284. 6. National Common Law, 285. VI. EXTENT OF ADOPTION, 286. In General, 286. a. Only as Suited to Changed Conditions of Colonists, 286. 2. By State Constitutions, 288. For other matters of SUBSTANTIVE LAW and EVIDENCE related to this subject, see the titles CONFLICT OF LAWS; CONSTITUTIONAL LAW; CRIMINAL LAW; EVIDENCE; FOREIGN LAWS; JUDICIAL NOTICE; PRESUMPTIONS; STATES; UNITED STATES COURTS; USAGES AND CUSTOMS. I. SCOPE OF TITLE. The treatment of this subject is intended to include only a discussion of the general and fundamental principles of the common law as it exists in England and the United States; and no attempt has been made to incorporate into the article the effect of that law upon specific subjects which may be investigated under their proper titles in this work. II. DEFINITION AND USE OF TERM-1. Definition. By the common law are meant those maxims, principles, and forms of judicial proceeding which have no written law to prescribe or warrant them, but which, founded on the laws of nature and the dictates of reason, have, by usage and custom, become interwoven with the written laws, and by such incorporation form a part of the municipal code of each state or nation which has emerged from the loose and erratic habits of savage life to civilization, order, and a government of law.1 2. How the Term Is Used a. GENERALLY. - The term "common law" is. to be understood to mean the common law of England, and not of any particular state.2 It is well established that b. IN THE UNITED STATES CONSTITUTION. the framers of the Constitution of the United Sattes, in providing that the right of trial by jury should be observed in suits at "common law," contemplated not merely suits which the common law recognized among its old and settled proceedings, but those suits in which legal rights were to be ascertained and determined in contradistinction to equity and admiralty jurisprudence.3 1. State v. Lafferty, Tappan (Ohio) 113. Other Definitions. Common law is that system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the Roman or civil law. Bouv. Law Dict. 348. The common law, in its broadest and most general signification, means those rules or precepts of law in any country, or that body of its jurisprudence, which is of equal application in all places, as distinguished from local laws and rules. Abb. Law Dict. 253. The common law is reason dealing by the Common law, in the widest sense of the word, is that part of the law of England which before the Judicature Acts was administered by the common-law tribunals, as opposed to equity, or that part of the law of England which was administered by the Court of Chancery. Sweet s Law Dict. 173. 2. Parsons v. Bedford, 3 Pet. (U. S.) 446. 3. Trial by Jury "in Suits at Common Law" Seventh Amendment United States Constitution. - Parsons v. Bedford, 3 Pet. (U. S.) 433; Fenn v. Holme, 21 How. (U. S.) 481; Klever v. Sewall, 65 Fed. Rep. 395; Scott v. Billgerry, 40 Miss. 119; Creighton v. Hershfield, 1 Mont. 639; Chumasero v. Potts, 2 Mont. 242; Reubens v. Joel, 13 N. Y. 488; Barlow v. Daniels, 25 W. Va. 512; In re Booth, 3 Wis. 13. The Term Used in Treaty with Foreign Nation. In Forbes v. Scannell, 13 Cal. 243, it is said that the phrase "common law," as used in the act of Congress consummating the treaty with China, and applied to the arbitrament of controversies between citizens of the United States, means that general body of law which is constituted by those general principles and those general usages which are to be found, not in the legislative acts of any particular state, but that generally recognized and long established law which forms the substratum of the laws of every state; and that we may look to American as well as English jurists to ascertain what this law is, for neither the opinions nor The term "common law" here alluded to is likewise to be taken to mean that system as it prevails in the mother country, and not as it exists in any individual state. In the Judiciary Act of 1887 the same meaning is to be attached to the term.3 3. Its Influence upon Statutes. - Statutes are to be expounded with reference to the principles of the common law, and the legislative intent is not presumed to have been to make any innovation upon that law, farther than necessity required.3 Legislative Intent to Govern. When a legislative intent, however, is unmistakably to legislate upon a subject of common-law jurisdiction, the latter will be abrogated by legal intendment; 4 but statutes having this purpose in view must be strictly construed.5 Repeal of Statute. But upon the repeal of such abrogating statute the common law is thereby restored to its former state. 6 Cumulative Remedies. And where a remedy is provided by statute, one having existed at common law, such remedies thereby become cumulative, and the plaintiff may elect between them." Where a Purely Statutory Right Is Asserted and there exists no specific statutory remedy, the courts will employ analogous common-law remedies to attain the ends of justice. Where the Common Law Gives No Right of Action, the court is unable to interpose and supply such defect by furnishing a remedy.9 III. ORIGIN AND GROWTH-1. In England. — The English common law is precedents of judges can be said, with strict propriety, to be the law they are only evidence of law. See also 7 Opinions of Attorneys-General 504; Executive Docts., Ist session, 33d Congress. Constitution is Based upon the Common Law. In Murray v. Chicago, etc., R. Co., 62 Fed. Rep. 24, Shiras, J., said: "The adoption of the Constitution did not deprive the people of the several colonies of the protection and advantages of the common law. The Constitution itself recognizes the fact of the continued existence of the common law, and indeed it is based upon the principles thereof, and its correct interpretation requires that its provisions shall be read and construed in the light thereof." Unexplained Terms Used in Constitution or Statutes. - In Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116, Smith, J., said: It is a general rule that where terms used in the common law are contained in a statute, or the Constitution, without an explanation of the sense in which they are there employed, they should receive that construction which has been affixed to them by the former." 1. U. S. v. Wonson, I Gall. (U. S.) 5. 2. Brisenden v. Chamberlain, 53 Fed. Rep. 307. 3. Cadwallader v. Harris, 76 Ill. 370; Goodwin v. Thompson, 2 Greene (Iowa) 329; Hooper v. Baltimore, 12 Md. 464; Keech 7. Baltimore, etc., R. Co., 17 Md. 32. 4. State v. McGrew, 11 Iowa 112. 5. Statutes in Derogation of Common Law Construed Strictly. Wilbur v. Crane, 13 Pick. (Mass.) 284; Gibson v. Jenney, 15 Mass. 205; Sibley v. Smith, 2 Mich. 486; Esterey's Appeal, 54 Pa. St. 192; Hearn v. Ewin, 3 Coldw. (Tenn.) 399. Contra. The rule of the common law that the statutes in derogation thereof are to be construed strictly does not apply in the following states: Arkansas, California, Colorado, Dakota, Idaho, Iowa, Kansas, Kentucky, Nebraska, New York, Ohio, Oregon, South Carolina, Utak, Washington, Wyoming. I Stimson's Am. Stat. Law 137. 6. Com. v. Churchill, 2 Met. (Mass.) 118; Virginia Valley Ins. Co. v. Barley, 16 Gratt. (Va.) 363. 7. People v. Craycroft, 2 Cal. 243, 56 Am. Dec. 331; Candee v. Hayward, 37 N. Y. 653. 8. Hightower v. Fitzpatrick, 42 Ala. 597. When a Case Arises Which Is Not Affected by Any Statute, the facts therein being fully estab lished, the question first to be considered is, Does there exist any clear and well-defined principle of the common law which directly and immediately controls it, and determines the rights and obligations of the parties? If no such principle be found to exist, the question next presents itself, Is there any principle of the common law which, by analogy, should govern it? If both of these sources fail in furnishing a determinate solution of the controversy, resort must next be had to the principles of natural justice, which form the basis of a great portion of the common law; and should these principles be discovered to apply in a full and determinate manner to all the circumstances of the case, they are adopted and determine the rights of the parties. But should these sources prove inadequate, the case is regarded as without redress at the common law, and relief can only be sought through new legislation by statute, to decide future questions of a similar nature. Pierce 7. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667. 9. Osborn 7. Gillett, L. R. 8 Exch. 88, 42 L. J. Exch. 53, 28 L. T. N. S. 197. derived from immemorial usage and custom, originating from the acts of Parliament not recorded, or which have been destroyed or lost. It is a system of jurisprudence founded on the principles of justice, and denominated by Blackstone "the perfection of reason." The evidences of its existence are the treatises of men learned in the law and the judicial records of the courts of justice of England.1 2. In the United States.-The common law of the United States is composed partly of the common law of England and partly of the usages which have grown up in, and are indigenous to, the United States. When the ancestors of the people of the United States emigrated from the mother country, they brought with them such principles only as they deemed expedient for the situation in which they were about to place themselves, together with 1. Chase, C. J., in State v. Buchanan, 5 Har. & J. (Md.) 317, 9 Am. Dec. 534. Inception and Progress of Common Law in England. — The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws that are by custom observed only in certain courts and jurisdictions; these customs are as old as the primitive Britons, and continued down through the several mutations and governments of inhabitants to the present time, unchanged and unadulterated. In the time of Alfred the local customs of the several provinces of the kingdom had grown so various that he found it expedient to compile his Dome-Book, or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant as late as the reign of Edward IV., but is now lost. It probably contained the principal maxims of the common law, the penalties for misdemeanors, and forms of judicial proceedings. By the influx of the Danes into England this code of Alfred in many of the provinces fell into disuse, or was mixed and debased with other laws of a coarser alloy, principal among which were, first, the Mercian Laws; second, West-Saxon Laws; and, third, the Danish Law. These are the laws which gave rise to that collection of maxims and customs which is now known by the name of the Common Law;" a name either given to it in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as the law common to all the realm. And these maxims and customs are of higher antiquity than memory or history can reach, nothing being more difficult than to ascertain the precise beginning and the first spring of an ancient and longestablished custom. The common law is distinguishable into three kinds: 1. General customs; 2. Particular customs; and 3. Particular laws. The authority of the maxims and rules of the common law rests upon general reception and usage, and the only method of proving that this or that maxim is a rule of the common law is by showing that it has always been the custom to observe it. These customs and maxims are to be known, and their validity to be determined, by the judges in the several courts of justice; they are the depositories of the laws; the living oracles who must decide in all cases of doubt, and who are bound by oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study, and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. The doctrine of the law, then, is this: that precedents and rules must be followed, unless flatly absurd or unjust. 1 Blackstone 64-83. * * * The Common Law is "not the product of the wisdom of some one man, or society of men, in any one age, but of the wisdom, counsel, experience, and observation of many ages of wise and observing men. Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us that new and unthought-of emergencies often happen that necessarily require new supplements, abatements, or explanations. But the body of laws that concern the common justice applicable to a great kingdom is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the productions of much wisdom, time, and experience." Sir Matthew Hale, in Preface to Rolle's Abridgment. Some of Its Principles Arose from the Feudal System. - In Key v. Vattier, 1 Ohio 132, Burnet, J., said: "Some of the finest principles and rules of the common law took their rise under the same [feudal] system, and grew out of a state of things that has ceased to exist, and some of them from circumstances that have long been forgotten; but this is no argument against their policy or their obligatory effect." 2. Guardians of Poor v. Greene, 5 Binn. (Pa.) 554. Constituent Parts of American Common Law. In Browning v. Browning, 3 N. Mex. 371, Brinker, J., in considering what constitutes the common law as recognized in the United States, said: "First, in those states which were a part of the original colonies, and which have not by legislation adopted statutes passed prior to a particular date, the unwritten law, and such general British statutes, applicable to their condition, as were in force at the time of such English statutes as were amendatory of the common law as it existed at the time of their emigration.1 The Flexibility of the Common Law Consists, not in a change of great and general truths, but in the application of old principles to new cases, and in the modification of rules flowing from them, to such cases as they arise; thus enabling it to be adapted to the ever-varying conditions and emergencies of human society.2 Principles of the Common Law Invariable. But while the rules of the common law and the result of the application of its principles will vary with the facts to which it is applied or the condition under which such application is made, the fundamental principles of the law remain immutable.3 the formation of the colonial governments, and such as were afterwards adopted, expressly or tacitly, constituted the common law; second, in those states which have adopted the common law, and the British statutes passed and in force prior to the date fixed in the act of adoption, and were of a general nature, and suitable to their situation, such common law and statutes constitute their common law; and, third, in those states and territories which were not of the original colonies, and which have not in terms adopted any English statutes, but have adopted the common law, the unwritten or common law of England, and the acts of Parliament of a general nature, not local to Great Britain, which had been passed and were in force at the date of the war of the Revolution, and not in conflict with the Constitution or laws of the United States, nor of the state or territory, and which were suitable to the wants and condition of the people, are the common law of such states and territories." Judicial Notice Taken of Common Law of England. In Owen v. Boyle, 15 Me. 147, 32 Am. Dec. 143, Shepley, J., said: "We are in the habit of taking notice of the common law of England without proof; not, however, because it is the common law of a foreign country, but because that common law has become a law to us, and we look to it without proof, as to our own law." Equity a Part of Our Common Law. In Pennock's Estate, 20 Pa. St. 268, 59 Am. Dec. 718, Lowrie, J., said: Certainly, the principles of equity are part of our common law. It is the very essence of common or customary law that it consists of those principles and forms which grow out of the customs and habits of the people. It is therefore involved in its very nature that only so much of the English law as is adapted to our circumstances and customs is properly recognized as part of our common law. 1. See infra, English Statutes - In General. 2. Hurtado 7. California, 110 U. S. 516; Hightower v. Fitzpatrick, 42 Ala. 597; Hill v. Smith, 27 Cal. 476; Penny v. Little, 4 Ill. 301; Woodman v. Pitman, 79 Me. 456, 1 Am. St. Rep. 342; Hale, etc., Gold, etc., Min. Co. v. Storey County, 1 Nev. 104; Rensselaer Glass Factory v. Reid, Cow. (N. Y.) 587; Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Bell v. State, I Swan (Tenn.) 42; Jacob v. State, 3 Humph. (Tenn.) 514. Common Law Not Exclusively Applicable to One Country. - In People v. Randolph, 2 Park. Cr. Rep. (N. Y. Supreme Ct.) 174, it is said that The principles of the common law * ** are not exclusively applicable or suited to one country or condition of society, but on the contrary by reason of their properties of expansibility and flexibility, their application to many is practicable. The adoption of that law in the most general terms, by the government of any country, would not necessarily require or admit of an unqualified application of all its rules without regard to local circumstances, however well settled and generally received those rules might be. Its rules are modified upon its own principles, and not in violation of them. Those rules being founded in reason, one of its oldest maxims is that where the reason of the rule ceases the rule also ceases." In Woodman v. Pitman, 79 Me. 456, I Am. St. Rep. 342, Peters, C. J., said: “The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions, which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it; not by subverting, but by forming new combinations and making new applications out of its already established principles, the result produced being only the new corn that cometh out of the old fields.' 3. People v. Randolph, 2 Park. Cr. Rep. (N. Y. Supreme Ct.) 174. Common Law Flexible and Adaptive. In Jacob v. State, 3 Humph. (Tenn.) 493, Turley, J., says: The common law has been aptly called the lex non scripta, because it is a rule prescribed by the common consent and agreement of the community, as one applicable to its different relations, and capable of preserv ing the peace, good order, and harmony of society, and rendering unto every one that which of right belongs to him. Its sources are to be found in the usages, habits, manners, and customs of a people; its seat in the breast of the judges who are its expositors and expounders. Every nation must of necessity have its common law, let it be called by what name it may, and it will be simple or complicated in its details, as society is simple or complicated in its relations. A few plain and practical rules will do for a wandering horde of savages, but they must and will be much more extensively ramified when civilization has polished, and commerce and arts and agriculture enriched, a nation. The common law of a country will, therefore, never be entirely stationary, but will be modified and extended by analogy, construction, and custom, so as to embrace new relations springing up from time to time from an amelioration or change of |