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<!DOCTYPE html> <html lang="en"> <head> <title>CATHOLIC ENCYCLOPEDIA: Common Law</title><script src="https://dtyry4ejybx0.cloudfront.net/js/cmp/cleanmediacmp.js?ver=0104" async="true"></script><script defer data-domain="newadvent.org" src="https://plausible.io/js/script.js"></script><link rel="canonical" href="https://www.newadvent.org/cathen/09068a.htm"> <meta name="viewport" content="width=device-width, initial-scale=1"> <meta name="description" content="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"> <meta http-equiv="Content-Type" content="text/html; charset=utf-8"><link rel="alternate" type="application/rss+xml" title="RSS" href="http://feeds.newadvent.org/bestoftheweb?format=xml"><link rel="icon" href="../images/icon1.ico" type="image/x-icon"><link rel="shortcut icon" href="../images/icon1.ico" type="image/x-icon"><meta name="robots" content="noodp"><link type="text/css" rel="stylesheet" href="../utility/screen6.css" media="screen"></head> <body class="cathen" id="09068a.htm">  <br/> <div id="capitalcity"><table summary="Logo" cellpadding=0 cellspacing=0 width="100%"><tr valign="bottom"><td align="left"><a href="../"><img height=36 width=153 border="0" alt="New Advent" src="../images/logo.gif"></a></td><td align="right"> <form id="searchbox_000299817191393086628:ifmbhlr-8x0" action="../utility/search.htm">  <input type="hidden" name="safe" value="active"> <input type="hidden" name="cx" value="000299817191393086628:ifmbhlr-8x0"/> <input type="hidden" name="cof" value="FORID:9"/>  <label for="searchQuery" id="searchQueryLabel">Search:</label> <input id="searchQuery" name="q" type="text" size="25" aria-labelledby="searchQueryLabel"/>  <label for="submitButton" id="submitButtonLabel" class="visually-hidden">Submit Search</label> <input id="submitButton" type="submit" name="sa" value="Search" aria-labelledby="submitButtonLabel"/> </form> <table summary="Spacer" cellpadding=0 cellspacing=0><tr><td height="2"></td></tr></table> <table summary="Tabs" cellpadding=0 cellspacing=0><tr> <td bgcolor="#ffffff"></td> <td class="tab"><a class="tab_color_on_beige" href="../"> Home </a></td> <td class="tab"><a class="tab_white_on_color" href="../cathen/index.html"> Encyclopedia </a></td> <td class="tab"><a class="tab_color_on_beige" href="../summa/index.html"> Summa </a></td> <td class="tab"><a class="tab_color_on_beige" href="../fathers/index.html"> Fathers </a></td> <td class="tab"><a class="tab_color_on_beige" href="../bible/gen001.htm"> Bible </a></td> <td class="tab"><a class="tab_color_on_beige" href="../library/index.html"> Library </a></td> </tr></table> </td> </tr></table><table summary="Alphabetical index" width="100%" cellpadding=0 cellspacing=0><tr><td class="bar_white_on_color"> <a href="../cathen/a.htm"> A </a><a href="../cathen/b.htm"> B </a><a href="../cathen/c.htm"> C </a><a href="../cathen/d.htm"> D </a><a href="../cathen/e.htm"> E </a><a href="../cathen/f.htm"> F </a><a href="../cathen/g.htm"> G </a><a href="../cathen/h.htm"> H </a><a href="../cathen/i.htm"> I </a><a href="../cathen/j.htm"> J </a><a href="../cathen/k.htm"> K </a><a href="../cathen/l.htm"> L </a><a href="../cathen/m.htm"> M </a><a href="../cathen/n.htm"> N </a><a href="../cathen/o.htm"> O </a><a href="../cathen/p.htm"> P </a><a href="../cathen/q.htm"> Q </a><a href="../cathen/r.htm"> R </a><a href="../cathen/s.htm"> S </a><a href="../cathen/t.htm"> T </a><a href="../cathen/u.htm"> U </a><a href="../cathen/v.htm"> V </a><a href="../cathen/w.htm"> W </a><a href="../cathen/x.htm"> X </a><a href="../cathen/y.htm"> Y </a><a href="../cathen/z.htm"> Z </a> </td></tr></table></div> <div id="mobilecity" style="text-align: center; "><a href="../"><img height=24 width=102 border="0" alt="New Advent" src="../images/logo.gif"></a></div>  <div id="mi5"><span class="breadcrumbs"><a href="../">Home</a> > <a href="../cathen">Catholic Encyclopedia</a> > <a href="../cathen/l.htm">L</a> > Common Law</span></div> <div id="springfield2"> <div class='catholicadnet-728x90' id='cathen-728x90-top' style='display: flex; height: 100px; align-items: center; justify-content: center; '></div> <h1>Common Law</h1> <p><em><a href="https://gumroad.com/l/na2"><strong>Please help support the mission of New Advent</strong> and get the full contents of this website as an instant download. Includes the Catholic Encyclopedia, Church Fathers, Summa, Bible and more  all for only $19.99...</a></em></p> <p>(Latin <em>communis</em>, general, of general application; <em>lex</em>, law)</p> <p>The term is of English origin and is used to describe the juridical principles and general rules regulating the possession, use and inheritance of <a href="../cathen/12462a.htm">property</a> and the conduct of <a href="../cathen/07762a.htm">individuals</a>, 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 <a href="../cathen/09053a.htm">law</a> courts as distinct from the <em>lex scripta;</em> 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 <a href="../cathen/05445a.htm">England</a>" that the common law consists of rules properly called <em>leges non script&oelig;</em>, 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 <a href="../cathen/09053a.htm">laws</a> 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 <em>Jus non scriptum</em> 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).</p> <div class="CMtag_300x250" style="display: flex; height: 300px; align-items: center; justify-content: center; "></div> <p>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 <a href="../cathen/12462a.htm">property</a> 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 <a href="../cathen/01309d.htm">Alfred the Great</a> in his famous "Dome-book" or "Liber Judicialis", published by him for the general use of the whole kingdom. That famous depository of <a href="../cathen/09053a.htm">laws</a> 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 <a href="../cathen/06147a.htm">courageously</a>).</p> <p>In modern times the existence of the "Liber Judicialis" was the subject of great <a href="../cathen/05141a.htm">doubt</a>, and such <a href="../cathen/05141a.htm">doubt</a> was expressed by many writers upon the constitutional history of <a href="../cathen/05445a.htm">England</a>, including both Hallam and Turner. After their day the <a href="../cathen/09614b.htm">manuscript</a> of the work was brought to light and was published both in Saxon and English by the Record Commissioners of <a href="../cathen/05445a.htm">England</a> in the first volume of the books published by them under the title, "The Ancient Laws and Institutes of <a href="../cathen/05445a.htm">England</a>". The profound religious spirit which governed <a href="../cathen/01309d.htm">King Alfred</a> and his times clearly appears from the fact that the "Liber Judicialis" began with the <a href="../cathen/04153a.htm">Ten Commandments</a>, followed by many of the <a href="../cathen/10596a.htm">Mosaic</a> <a href="../cathen/12372b.htm">precepts</a>, added to which is the express solemn sanction given to them by <a href="../cathen/08374c.htm">Christ</a> in the Gospel: "Do not think that I am come to destroy the <a href="../cathen/09053a.htm">law</a>, or the <a href="../cathen/12477a.htm">prophets</a>; I am not come to destroy but to fulfil." After quoting the canons of the Apostolic Council at <a href="../cathen/08344a.htm">Jerusalem</a>, 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 <a href="../cathen/04722c.htm">Danish</a> invasion, and from other causes, so that when the eleventh century began the common law of <a href="../cathen/05445a.htm">England</a> was not uniform but consisted of observances of different nature prevailing in various districts, viz: Mercen Lage, or Mercian <a href="../cathen/09053a.htm">laws</a> governing many of the midland counties of <a href="../cathen/05445a.htm">England</a> and those bordering upon <a href="../cathen/15532a.htm">Wales</a>, the country to which the ancient Britons had retreated at the time of the Anglo-Saxon invasion. These <a href="../cathen/09053a.htm">laws</a> 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 <a href="../cathen/05445a.htm">England</a> 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 <a href="../cathen/04722c.htm">Danish</a> conquest is shown by the fact that the Dane Lage, or <a href="../cathen/04722c.htm">Danish</a> 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 <a href="../cathen/12454b.htm">promulgated</a> throughout the entire kingdom and was universally observed. Alfred is designated by early historians as <em>Legum Anglicanarum Conditor;</em> Edward the Confessor as <em>Legum Anglicanarum Restitutor</em>.</p> <div class="CMtag_300x250" style="display: flex; height: 300px; align-items: center; justify-content: center; "></div> <p>In the days of the Anglo-Saxon kings the courts of <a href="../cathen/08571c.htm">justice</a> consisted principally of the county courts. These county courts were presided over by the <a href="../cathen/02581b.htm">bishop</a> of the <a href="../cathen/05001a.htm">diocese</a> and the ealdorman or sheriff, sitting <em>en banc</em> and exercising both <a href="../cathen/03744a.htm">ecclesiastical</a> and <a href="../cathen/02137c.htm">civil jurisdiction</a>. 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 <a href="../cathen/05445a.htm">England</a> 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 <a href="../cathen/06058c.htm">feudal</a> system but not accompanied by all its hardships. Penalties for crime were moderate; few capital punishments being inflicted and <a href="../cathen/11726a.htm">persons</a> 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 <a href="../cathen/05445a.htm">England</a>, was common to all the realm and was designated as "Jus commune" or Folk-right.</p> <p>In contradistinction to <a href="../cathen/05445a.htm">English</a> <a href="../cathen/09053a.htm">jurisprudence</a> the Civil Law of <a href="../cathen/13164a.htm">Rome</a> prevailed throughout the Continent. William the Conqueror brought with him into <a href="../cathen/05445a.htm">England</a> jurists and <a href="../cathen/04049b.htm">clerics</a> thoroughly imbued with the spirit of the <a href="../cathen/09066a.htm">civil law</a> and distinctly adverse to the English system. However, the ancient <a href="../cathen/09053a.htm">laws</a> and customs of <a href="../cathen/05445a.htm">England</a> 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 <a href="../cathen/05445a.htm">England</a> after the Conquest was the Aula Regis or King's Court wherein the king either personally or constructively administered <a href="../cathen/08571c.htm">justice</a> 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 <a href="../cathen/08567a.htm">jurisdiction</a> over ordinary civil actions, while the Court of Exchequer was restricted in its <a href="../cathen/08567a.htm">jurisdiction</a> to causes affecting the royal revenues. Besides these courts the canon law was administered by the <a href="../cathen/03449a.htm">Catholic</a> <a href="../cathen/04049b.htm">clergy</a> of <a href="../cathen/05445a.htm">England</a> in certain <a href="../cathen/04447a.htm">ecclesiastical courts</a> called "Curiæ Christianitatis" or Courts Christian. These courts were presided over by the <a href="../cathen/01691a.htm">archbishop</a> and <a href="../cathen/02581b.htm">bishops</a> and their derivative officers. The canon law at an early <a href="../cathen/04636c.htm">date</a> laid down the rule that "Sacerdotes a regibus honorandi sunt, non judicandi," i.e. the <a href="../cathen/04049b.htm">clergy</a> are to be <a href="../cathen/07462a.htm">honoured</a> by kings, but not to be judged by them, based on the tradition that when some petitions were brought to the <a href="../cathen/04295c.htm">Emperor Constantine</a>, imploring the aid of his authority against certain of his <a href="../cathen/02581b.htm">bishops</a> accused of oppression and <a href="../cathen/08010c.htm">injustice</a>, 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).</p> <p>The <a href="../cathen/04447a.htm">ecclesiastical courts</a> of <a href="../cathen/05445a.htm">England</a> were:</p> <div class="bulletlist"><ol><li>The Archdeacon's Court which was the lowest in point of <a href="../cathen/08567a.htm">jurisdiction</a> in the whole <a href="../cathen/03744a.htm">ecclesiastical</a> polity. It was held by the <a href="../cathen/01693a.htm">archdeacon</a> or, in his absence, before a judge appointed by him and called his <em>official</em>. Its <a href="../cathen/08567a.htm">jurisdiction</a> was sometimes in concurrence with and sometimes in exclusion of the Bishop's Court of the <a href="../cathen/05001a.htm">diocese</a>, and the statute 24 Henr. VIII, c. XII, provided for an appeal to the court presided over by the <a href="../cathen/02581b.htm">bishop</a>.</li><li>The Consistory Court of the <a href="../cathen/05001a.htm">diocesan</a> <a href="../cathen/02581b.htm">bishop</a> which held its sessions at the <a href="../cathen/02581b.htm">bishop's</a> see for the trial of all <a href="../cathen/03744a.htm">ecclesiastical</a> causes arising within the diocese. The <a href="../cathen/02581b.htm">bishop's</a> chancellor, or his commissary, was the ordinary judge; and from his adjudication an appeal lay to the <a href="../cathen/01691a.htm">archbishop</a> of the province.</li><li>The <a href="../cathen/01695a.htm">Court of Arches</a> was a court of appeal belonging to the <a href="../cathen/01691a.htm">Archbishop</a> of <a href="../cathen/03299b.htm">Canterbury</a>, and the judge of such court was called the Dean of the <a href="../cathen/01695a.htm">Arches</a> because in ancient times he held court in the <a href="../cathen/03041a.htm">church</a> of St. Mary le bow (Sancta Maria de arcubus), one of the churches of <a href="../cathen/09341a.htm">London</a>.</li><li>The Court of Peculiars was a branch of and annexed to the <a href="../cathen/01695a.htm">Court of Arches</a>. It had <a href="../cathen/08567a.htm">jurisdiction</a> over all those <a href="../cathen/11499b.htm">parishes</a> dispersed throughout the Province of <a href="../cathen/03299b.htm">Canterbury</a> in the midst of other <a href="../cathen/05001a.htm">dioceses</a>, which were exempt from the ordinary's <a href="../cathen/08567a.htm">jurisdiction</a> and subject to the <a href="../cathen/10244c.htm">metropolitan</a> only. All <a href="../cathen/03744a.htm">ecclesiastical</a> causes arising within these peculiar or exempt jurisdictions were, originally, cognizable by this court. From its decisions an appeal lay, formerly, to the <a href="../cathen/12260a.htm">pope</a>, but during the reign of <a href="../cathen/07222a.htm">Henry VIII</a> this right of appeal was abolished by statute and therefor was substituted an appeal to the king in Chancery.</li><li>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 <a href="../cathen/05001a.htm">dioceses</a>. In that case, the probate of wills belonged to the <a href="../cathen/01691a.htm">archbishop</a> of the province, by way of special prerogative, and all causes relating to the wills, administrations or legacies of such <a href="../cathen/11726a.htm">persons</a> were, originally, cognizable therein before a judge appointed by the <a href="../cathen/01691a.htm">archbishop</a> and called the Judge of the Prerogative Court. From this court an appeal lay (until 25 Henr. VIII, c. XIX) to the <a href="../cathen/12260a.htm">pope</a>; and after that to the king in Chancery.</li></ol></div> <p>These were the ancient courts. After the <a href="../cathen/12700b.htm">religious revolution</a> had been inaugurated in <a href="../cathen/05445a.htm">England</a> by <a href="../cathen/07222a.htm">Henry VIII</a>, a sixth <a href="../cathen/04447a.htm">ecclesiastical court</a> was created by that monarch and designated the Court of Delegates (<em>judices delegati</em>), and such delegates were appointed by the king's commission under his great seal, issuing out of chancery, to represent his royal <a href="../cathen/11726a.htm">person</a> and to hear ordinary <a href="../cathen/03744a.htm">ecclesiastical</a> 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 <a href="../cathen/15598a.htm">Westminster</a> 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 <a href="../cathen/12260a.htm">pope's</a> appellate <a href="../cathen/08567a.htm">jurisdiction</a> in regard to causes appertaining to the reformation, ordering and correcting of the <a href="../cathen/04049b.htm">ecclesiastical state</a> and of <a href="../cathen/11727a.htm">ecclesiastical persons</a> "and all manner of <a href="../cathen/05525a.htm">errors</a>, <a href="../cathen/07256b.htm">heresies</a>, <a href="../cathen/13529a.htm">schisms</a>, 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.</p> <div class="CMtag_300x250" style="display: flex; height: 300px; align-items: center; justify-content: center; "></div> <p>The <a href="../cathen/03744a.htm">Church</a> of <a href="../cathen/05445a.htm">England</a> was the name given to that portion of the <a href="../cathen/08748a.htm">laity</a> and <a href="../cathen/04049b.htm">clergy</a> of the <a href="../cathen/03449a.htm">Catholic</a> <a href="../cathen/03744a.htm">Church</a> resident in <a href="../cathen/05445a.htm">England</a> during the days of the Anglo-Saxon monarchy and during the history of <a href="../cathen/05445a.htm">England</a> under William the Conqueror and his successors down to the time when <a href="../cathen/07222a.htm">Henry VIII</a> assumed unto himself the position of spiritual and temporal head of the English Church. Prior to the time of <a href="../cathen/07222a.htm">Henry VIII</a>, the <a href="../cathen/03744a.htm">Church</a> of <a href="../cathen/05445a.htm">England</a> was distinctly and avowedly a part of the <a href="../cathen/03744a.htm">Church</a> universal. Its prerogatives and its constitution were wrought into the fibre of the common law. Its <a href="../cathen/04447a.htm">ecclesiastical courts</a> were recognized by the common law — the <em>jus publicum</em> of the kingdom — and clear recognition was accorded to the right of appeal to the <a href="../cathen/12260a.htm">sovereign pontiff</a>; thus practically making the pontiff the supreme judge for <a href="../cathen/05445a.htm">England</a> as he was for the remainder of <a href="../cathen/03699b.htm">Christendom</a> in all <a href="../cathen/03744a.htm">ecclesiastical</a> causes. The civil courts rarely sought to trench upon the domain of <a href="../cathen/03744a.htm">ecclesiastical</a> 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 <a href="../cathen/03699b.htm">Christendom</a>. 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.</p> <p>The <a href="../cathen/07630a.htm">idea</a> of a juridical restoration of conditions which had been disturbed by wrongful act as well as the <a href="../cathen/07630a.htm">idea</a> of enforcing the specific performance of contracts had never matured into either legislation or judicial proceedings. Such deficiencies in the <a href="../cathen/09053a.htm">jurisprudence</a> 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 <a href="../cathen/14726a.htm">time</a>, 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 <a href="../cathen/09053a.htm">jurisprudence</a>. 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 <a href="../cathen/12454c.htm">proof</a>, 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 <a href="../cathen/08571c.htm">justice</a>. Among the most eminent of the Chancellors of <a href="../cathen/05445a.htm">England</a> was <a href="../cathen/14689c.htm">Sir Thomas More</a> who laid down his life rather than surrender the <a href="../cathen/03449a.htm">Catholic</a> <a href="../cathen/05752c.htm">Faith</a>, and <a href="../cathen/02192a.htm">Lord Bacon</a> 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 <a href="../cathen/09053a.htm">law</a> itself. For this reason the observance of precedents is a marked feature in <a href="../cathen/05445a.htm">English</a> <a href="../cathen/09053a.htm">jurisprudence</a> and prevails to a much greater extent than under other systems. As the <a href="../cathen/09053a.htm">law</a> 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.</p> <p>When the period of English colonization in America began, the aborigines were found to be wholly uncivilized and, consequently, without any system of <a href="../cathen/09053a.htm">jurisprudence</a>, 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 <a href="../cathen/05445a.htm">England</a> 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.</p> <p>When the thirteen American colonies achieved their independence, the <a href="../cathen/05445a.htm">English</a> 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 <a href="../cathen/15156a.htm">United States of America</a>. As the <a href="../cathen/15156a.htm">United States</a> 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 <a href="../cathen/09378a.htm">State of Louisiana</a>, the <a href="../cathen/09066a.htm">civil law</a> of <a href="../cathen/13164a.htm">Rome</a>, which ruled within the vast area originally called Louisiana, has been maintained, subject only to subsequent legislative modifications. The <a href="../cathen/03227a.htm">Dominion of Canada</a> is subject to the common law with the exception of the <a href="../cathen/12598a.htm">Province of Quebec</a> and the civil <a href="../cathen/09053a.htm">laws</a> of that province are derived from the old customary <a href="../cathen/09053a.htm">laws</a> of <a href="../cathen/06166a.htm">France</a>, particularly the Custom of <a href="../cathen/11480c.htm">Paris</a>, in like manner as the <a href="../cathen/09053a.htm">laws</a> of the English-speaking provinces are based upon the common law of <a href="../cathen/05445a.htm">England</a>. In process of time, the customary <a href="../cathen/09053a.htm">laws</a> 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 <a href="../cathen/12598a.htm">Province of Quebec</a> is founded upon that of <a href="../cathen/05445a.htm">England</a> 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.</p> <p>The common law of <a href="../cathen/05445a.htm">England</a> is not the basis of the <a href="../cathen/09053a.htm">jurisprudence</a> of <a href="../cathen/13613a.htm">Scotland</a>; that country having adhered to the <a href="../cathen/09066a.htm">civil law</a> as it existed at the time of the union with <a href="../cathen/05445a.htm">England</a> except so far as it has been modified by subsequent legislation. The <a href="../cathen/05445a.htm">English</a> 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 <a href="../cathen/10759a.htm">Dutch</a> Colony, remain under the sway of the <a href="../cathen/09066a.htm">civil law</a>. The common law of <a href="../cathen/05445a.htm">England</a> 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 <a href="../cathen/03449a.htm">Catholics</a> 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 <a href="../cathen/04049b.htm">clergy</a> of the <a href="../cathen/03449a.htm">Catholic</a> <a href="../cathen/03744a.htm">Church</a>.</p> <div class='catholicadnet-728x90' id='cathen-728x90-bottom' style='display: flex; height: 100px; align-items: center; justify-content: center; '></div> <div class="cenotes"><h2>Sources</h2><p class="cenotes">REEVES, <em>History of the English Law</em> (Philadelphia, 1880); BLACKSTONE, <em>Commentaries on the Laws of England</em>, SHARSWOOD edition (Philadelphia, 1875); POLLOCK AND MAITLAND, <em>The History of English Law</em> (Boston, 1875); KENT, <em>Commentaries upon American Law</em> (12th ed., Boston, 1873).</p></div> <div class="pub"><h2>About this page</h2><p id="apa"><strong>APA citation.</strong> <span id="apaauthor">Willis, J.</span> <span id="apayear">(1910).</span> <span id="apaarticle">Common Law.</span> In <span id="apawork">The Catholic Encyclopedia.</span> <span id="apapublisher">New York: Robert Appleton Company.</span> <span id="apaurl">http://www.newadvent.org/cathen/09068a.htm</span></p><p id="mla"><strong>MLA citation.</strong> <span id="mlaauthor">Willis, John.</span> <span id="mlaarticle">"Common Law."</span> <span id="mlawork">The Catholic Encyclopedia.</span> <span id="mlavolume">Vol. 9.</span> <span id="mlapublisher">New York: Robert Appleton Company,</span> <span id="mlayear">1910.</span> <span id="mlaurl"><http://www.newadvent.org/cathen/09068a.htm>.</span></p><p id="transcription"><strong>Transcription.</strong> <span id="transcriber">This article was transcribed for New Advent by Douglas J. Potter.</span> <span id="dedication">Dedicated to the Sacred Heart of Jesus Christ.</span></p><p id="approbation"><strong>Ecclesiastical approbation.</strong> <span id="nihil"><em>Nihil Obstat.</em> October 1, 1910. Remy Lafort, Censor.</span> <span id="imprimatur"><em>Imprimatur.</em> +John M. Farley, Archbishop of New York.</span></p><p id="contactus"><strong>Contact information.</strong> The editor of New Advent is Kevin Knight. My email address is webmaster <em>at</em> newadvent.org. Regrettably, I can't reply to every letter, but I greatly appreciate your feedback — especially notifications about typographical errors and inappropriate ads.</p></div> </div> <div id="ogdenville"><table summary="Bottom bar" width="100%" cellpadding=0 cellspacing=0><tr><td class="bar_white_on_color"><center><strong>Copyright © 2023 by <a href="../utility/contactus.htm">New Advent LLC</a>. 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