Common Law

Common Law The law of England or the rule of civil conduct prescribed to its inhabitants consists of two principal divisions, viz. the lex non scripta, the unwritten or common law, and the lex scripta, the written or statute law. It must not be understood, however, that the unwritten or common law is at present merely "oral," or communicated to us from former ages to the present solely by word of mouth. It is true, indeed, that in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. Thus, the British as well as the Gallic Druids committed all their laws as well as learning to memory, and it is said of the primitive Saxons here as well as their brethren on the Continent that leges sola memoria et usu retinebant. But with us at present the monuments and evidences of our legal customs are contained in the records of the several courts, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from times of great antiquity. And these parts of our law are termed leges non scriptae, because their original institution and authority are not set down in writing as Acts of Parliament are, but they receive their binding power and the force of law by long and immemorial usage, and by their universal reception throughout the kingdom. Our unwritten or common law is distinguishable into : (1) General Customs, which are the universal rule of the whole kingdom; (2) Particular Customs, which affect only the inhabitants of particular districts.

1. As to General Customs, or the common law properly so called, this is that law by which proceedings and determinations in the courts of justice are principally guided and directed; this for the most part settles the course in which lands descend by inheritance, the manner and form of acquiring and transferring property, the solemnities and obligations of contracts, the rules of expounding wills, deeds and Acts of Parliament, the respective remedies for civil injuries, and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that the elder son alone is heir to his ancestor; that a deed is of no validity unless sealed and delivered; that wills shall be construed more favourably, and deeds more strictly. These and many others which might be instanced are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is upon common law, for their support.

2. Particular or Special Customs affecting only the inhabitants of particular districts; a custom of this kind it is usual to designate by the word "custom" simply, which sufficiently distinguishes it from the general customs above-mentioned.

These particular customs are mostly the remains of local customs prevailing in different parts of the country while it was broken into distinct kingdoms, and before the common law was collected and made applicable to the realm at large. Such, for instance, is the custom of Gavelkind in Kent, and some other parts of the kingdom; also Borough English, and many others, particularly the customs within the City of London as regards trade, apprentices, widows, orphans, and a variety of other matters. All these are more or less contrary to the genera] law, and are good only by special usage, though in many cases the customs have been confirmed or preserved by Act of Parliament.