Origins of Common Law


The Common law is a body of law based on custom and general principles embodied in case law which serve as precedent and is applied to situations not covered by statute.  In other words, common law includes those principles, usages and rules of action applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature[i].  The Common law applies only to civil cases.

England is the origin of the common law that exists in the U.S..  The English common law originated in the early middle ages in the King’s Court (Curia Regis) and eventually led to the formulation of various viable principles through which it continues to operate.  The common law has its roots in the U.S continent with the first English colonists who claimed the common law system as their birthright.

After the American Revolution, this Common Law was adopted by each of the states as well as the national government of the new nation.  When new states were formed, they also adopted the common law system either by an express provision or by a judicial decision.  However, if states were formed from acquired territory where other systems of law prevail, then the question of which system prevailed was determined by legislative enactment or judicial decision.

However, the U.S courts do not solely depend upon the expositions of the courts of England.  In order to ascertain the principles and rules of the common law, the courts may look to the decisions of other states of the Union, as well as to those of the English courts.  Moreover, the U.S. courts are not required to adhere to the decisions of the English common law courts, regardless of whether they were rendered before or after the American Revolution.  Similarly, the English statutes passed subsequent to the adoption of the common law in the U.S. are not part of common law in the U.S..

The principles of equity are regarded as a part of the common law adopted in the U.S.  The term “common law” includes those doctrines of equity jurisprudence not mentioned in the legislative enactments[ii]. Similarly, a law merchant is recognized as part of the common law.  It is defined as the system of rules and customs and usages generally recognized and adopted by traders as the law for the regulation of their commercial transactions.  However, the law merchant cannot override the local laws and commercial usages of any state[iii].

Christianity is part of the origin of the common law.  Although Christianity is considered part of the origin of the common law, the courts did not regard it as controlling or imposing in nature while discussing a religious duty of any narrow view or things related to morality and decency.  It was observed that even if Christianity is not a part of the law of the land, if it is the popular religion of the country, then an insult to it can disturb the public peace[iv].

Ecclesiastical laws are English laws pertaining to matters concerning the church.  These laws were administered by ecclesiastical courts and are considered a branch of English common law.  There is a difference in opinion about the adoption of Ecclesiastical laws in the U.S.  On one hand, since ecclesiastical courts were not established in the U.S., the code of laws enforced in ecclesiastical courts cannot be considered part of the common law.

On the other hand, the canon and civil laws administered by the ecclesiastical courts come under the unwritten laws of England.  And by custom, these laws are adopted and used in a certain jurisdiction.  It is maintained that such laws must be used in the U.S. if the tribunal has jurisdiction especially if the rule of the ecclesiastical courts is considered to be better law than the one in the common law court.

Therefore, the origin of common law in the U.S. can be traced back to various sources such as the common law principles of England, the equity principles, Christianity and ecclesiastical courts.

[i] Western Union Tel. Co. v. Call Publishing Co., 181 U.S. 92 (U.S. 1901)

[ii] Vidal v. Phila., 43 U.S. 127 (U.S. 1844)

[iii] Donegan & Tabor v. Wood, 49 Ala. 242 (Ala. 1873)

[iv] Zeisweiss v. James, 63 Pa. 465, 471 (Pa. 1870)


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