By this term in English jurisprudence is sometimes designated that part of the law of England which has grown up from usage, as distinguished from acts of parliament; the former being also classified as leges non scriptae, the latter as leges scriptae. This last classification is, however, far from accurate; for, as we shall have occasion to show more particularly in another part of this article, the laws were at an early period repeatedly collected and promulgated by royal authority, and in later times have been contained in reported decisions of the courts and treatises of writers upon law; and again, many ancient statutes, the records of which are now lost, were incorporated into the common law, many others of which we have the record being merely declaratory of the common law as it was claimed to have existed before. Such was the Magna Charta, as confirmed by parliament, 9 Henry III., the oldest of the statutes of which an original record is now extant; so the statute 25 Edward III., relating to treason, the petition of right, which was passed in 1628, and various other statutes of more modern date, purporting merely to declare the existing law, and not to enact any new provision.
The definition of common law above given includes not merely the indigenous customs of the English people, but also so much of the Roman and canon laws as have been introduced in the admiralty and ecclesiastical courts, as well as the rules or maxims which were borrowed by English judges and writers from either of those systems. The term is also sometimes used to express the whole law, statutory or customary, as administered in the most ancient or what was termed common law courts, in distinction from the system of equity as developed in the court of chancery, the latter being of more recent growth, and intended for relief in cases where there was no adequate remedy by the strict rules of the common law. In a still larger sense, it is the common appellation of the entire English law, including even the foreign elements intermingled with it, in distinction from the civil law generally received among European nations, and from the canon law, except so far as adopted in the ecclesiastical courts of England. It is in the last sense that it is commonly understood in the United States, yet with some modifications, growing out of its limited application under our peculiar political organization.
In all the states except Louisiana the common law has been received, but this has been understood not to include statutes, except so far as they had by their antiquity become merged in the common law, or had been recognized by colonial legislation or by general usage. The general course has been to reenact the English statutes which it was deemed important to retain. In some of the states, however, many of the statutes have been admitted as having acquired legal validity without such reenact-ment. The ecclesiastical administration of law is also excluded, but this has been chiefly by a statutory establishment of courts in which the ecclesiastical has been united with civil jurisdiction. The principles of the canon law, with that exception, have remained in force in this country so far as they had become part of the common law. - In the exposition of the subject it will be proper to consider it in a twofold aspect, viz.: the development of the common law from its primary sources, and the peculiar principles by which it is distinguishable from other systems of law. The first branch of our inquiry is deeply interesting, as containing the true history of the English people, and thus illustrating the chief element of our own nationality.
No other modern European nation has produced for itself an entire system of law. The Roman is the basis of all continental jurisprudence, and in some countries, as Italy and some of the German states, is still in full force as an original authority, modified only by political changes and local usages, which, however, have a similar relation and as limited a proportion to the original as the statutory has to the common law in England. In other countries, as Spain, it has been digested in common with the modern additions, but this does not supersede a reference to the original source for the resolution of any difficult questions; and lastly, in other countries, as France, Prussia, and Austria, it has been reconstructed into the form of a code, though it still furnishes the elementary principles, legal language, modes of reasoning, and in general the forms of proceedings of all these compilations. On the other hand, whatever foreign element may have been intermingled with the English law has been assimilated by a process that may be compared to chylification in the animal system.
The primitive constituent of this law may be safely assumed to be the Saxon. Nothing can be traced from the Britons, either of local usages or of the Roman law as administered while they were subject to the imperial government. Whatever has been derived from the latter source was introduced long afterward, and chiefly through the Normans. The very language which we may suppose to have been spoken by the common people when Britain was a Roman province was lost, or is to be traced only in Wales and Brittany. Sir John Fortescue, who wrote in the reign of Henry VI., in his zeal to magnify the common above the civil law, maintained that the former was the more ancient, for that the customs upon which it was founded had existed from the earliest period, without interruption by the Roman, Saxon, Danish, and Norman conquests; and Selden, in his notes upon Fortescue, does not dispute the assertion, further than that he says customs were also introduced by the Saxons, Danes, etc. Coke also asserts that the common laws of England were of greater antiquity than any other human laws (Pref. 2d Reports), and quotes the opinion of Fortescue at full length (Pref. 6th Rep.). This extravagant hypothesis is worthy of mention only as an illustration of the singular partiality of the English mind for whatever was of native origin, and the prejudice existing at every period against whatever was of foreign growth.
In estimating the proportion that Saxon usages contributed in the formation of English law, it would be too limited a view if we should take into account only the records now extant of particular laws and forms of proceedings. These records are imperfect, and even if we had the entire body of laws so far as they were ever reduced to writing, it would furnish but a part of what then existed and was perpetuated, and again it would be leaving out the self-developing power inherent in the habits of the people. The nation continued to be essentially Saxon even after the Norman conquest. The tenure of real estate was indeed radically changed by the introduction of the feudal laws, yet with steady perseverance the middle class gradually obtained amelioration of that system, and ingrafted upon it many peculiar rules and forms congenial with the national character. So the Norman sovereigns undertook to revolutionize the whole judicial administration. The aula regis, consisting of the king and council, sought to convoke to itself the judicial business, which had before been chiefly transacted in the Saxon county courts, presided over by a sheriff and bishop.
The Norman language was introduced as the law language at least of the aula regis, and of the superior courts into which that tribunal was subsequently resolved, and Norman lawyers and judges sought to introduce the forms of practice and even rules of decision to which they had been accustomed. Yet in spite of these disadvantages, Saxon customs still maintained their hold of the people. Terms were invented in Norman phraseology to express many of the judicial proceedings. The pleadings were indeed in Latin, but trials were conducted and decisions reported in the Norman. But underlying these exterior forms can be seen the same principles of right which constitute the earlier law of the country, and the administration of justice was still in fact practically in accordance with Saxon usages. This may be attributed in a considerable degree to the large amount of business which continued to be transacted in the county courts, where the Saxon language and usages were strictly adhered to. The appointment of itinerant justices to go into the several counties of the kingdom for the trial of civil and criminal causes, which became a fixed custom in the reign of Henry II., must have also contributed largely to the perpetuation of provincial forms.
Hence it may be justly said that the laws continued to be formed as new cases arose, by the same habit of mind after the conquest as before, and that the common law continued to be developed from the Saxon original even under the Norman sovereigns. Of the collections of Saxon laws there are mentioned: 1. The Bom Bok or Liber Judicialis of Alfred the Great, which was designed as a code for the government of the whole kingdom, and is supposed to have consisted of the local customs of different parts of the country, viz.: a, the Mercian laws, which prevailed in the counties bordering on Wales, and which may have retained some of the old British customs; 5, the "West Saxon, which appertained to the southern and southwestern counties; c, the Danish, which had been introduced on the eastern coast, where the Danes had settled. It appears that some laws were taken from the Old Testament, and it is likely that Alfred may have taken some liberty with existing regulations, particularly with the penal laws, as by a new enactment making murder a capital offence. But whatever was not in accordance with the spirit of the people came very little into use, and the whole was much interfered with by wars and consequent civil disorders.
It has been said by some writers (Blackstone and others) that this code was extant as late as the reign of Edward IV., but it is now lost. Hallam, however, questions the authenticity of the work referred to. 2. The compilation of Edward the Confessor, the basis of which was the previous code of Alfred, and was intended to be a complete collection of laws both customary and statute. This obtained great celebrity, being the system which was in force immediately prior to the conquest, and consequently identified by the Saxons with their nationality. When therefore they often demanded of the Norman kings confirmation of the laws of the confessor, they meant only the guarantee of the laws by which they had been formerly governed. This compilation is also lost. In some old writers there is a reference to a compilation begun by King Edgar, grandfather of the confessor, but this is supposed to be the same that was afterward completed by the latter. 3. A collection of ancient Saxon laws, canons, decrees of councils, and other public acts, was made by Lambard in the reign of Elizabeth, under the title of she de Priscis Anglorum Legibus. These laws are in Anglo-Saxon, and among them are some of Ethelbert, king of Kent (about 560). To this collection additions have been since made by Dr. Wilkins. - The extent of the change of the laws made by the Normans has been the subject of much debate. It was chiefly in the tenure of real estate and the incidents resulting therefrom. On the one hand, it has been maintained by Coke, Selden, and others, that the feudal tenure existed among the Saxons before the conquest, but by Hale, and especially by Sir Martin Wright, that it was first introduced by the Normans. Without entering upon that discussion, it will be sufficient here to say that principles relating to real estate are apparent soon after the conquest, radically differing from those recognized by the Saxons before that time. Among these may be specified, that landed property according to the Saxon laws was hereditary, that, with some exceptions, it descended to all the sons, and that it could be aliened, mortgaged, or devised at the pleasure of the owner; whereas, not long after the accession of the Norman sovereigns, we find the descent of lands to the heir depending, at least in theory, upon the consent of the superior lord, as shown by the exaction of a compensation, called a relief, which the heir was compelled to pay; that the land descended to the eldest son, in exclusion of the others, and during the infancy of the heir the seignior or lord had the custody of his person and the care of his estate; the land could not be aliened nor mortgaged, nor devised without the consent of the lord, nor sold under judgment for the payment of debts.
Some of these restraints were relaxed in no long period afterward, as by a law of Henry I., which allowed a man to alien lands he had himself acquired, and which had not come to him by descent; this was modified in the reign of Henry II. by allowing alienation of purchased lands if he had other lands by descent sufficient to provide for his children, and if he had not, then he could only alien a part. So likewise in the reign of Henry II. alienation of a part of the inheritance was allowed upon the same conditions. But disposal of lands by devise was never allowed until the reign of Henry VIII., when the statute relating to wills was passed. In the system of judicature, among other changes was one which at the time was perhaps not designed to affect the mode of administering the laws, but which became the occasion of a vast extension of the jurisdiction of ecclesiastical courts and the bringing in of a foreign canonical law. This was an ordinance of William the Conqueror, by which the bishop, who had formerly sat in the county courts with the sheriff (the two together disposing of all causes, civil and ecclesiastical), was directed to hold a separate court for the trial of ecclesiastical cases.
The bishops, being thus made independent of the secular courts, proceeded to appropriate to their separate jurisdiction a large number of cases, under pretence of their involving something of a spiritual nature, as tithes and benefices. So they claimed exclusive cognizance of all questions relating to marriage, on the ground that it was a spiritual contract, and this claim involved not merely the power of annulling marriages and granting divorces, but also of determining questions of legitimacy and bastardy. The probate of testaments, it appears, had previously belonged to them, and this carried with it the cognizance of legacies. Thus, for a considerable time, any questions relating to either, when incidentally involved in a civil court, were referred to the ecclesiastical court for an answer to the particular question, when the civil court proceeded with the determination of the case. Jurisdiction of the estates (that is to say, the personal effects) of persons dying intestate was obtained under a custom which is spoken of in a law of Henry I., that such effects were to be disposed of pro anima sua. This custom must have grown up after the conquest, for by the Saxon laws both real and personal estate descended in the same manner in case of intestacy.
What would be most for the benefit of the soul of the intestate, it was maintained, the bishops were most competent to decide. In King John's charter (the original Magna Charta) it was expressly provided that the chattels of an intestate should be disposed of by the next of kin per visum ecclesim. This clause, though it is said to have been also contained in the charter of Henry III., was left out in the exemplification on the roll, 25 Edward I., from which the Magna Charta was copied in the statute books. Under this it became an admitted right of the ecclesiastical courts to issue letters of administration in Cases of intestacy. The law to which ecclesiastical courts had been formerly subject had been first established by a national synod held in 670, and was called the codex canonum vetus ecclesiae Romance. Various laws were passed after that time for the regulation of ecclesiastical matters, all of which, together with the original code, were reviewed by William the Conqueror with the assent of his great council. There was, therefore, a national canon law which had been prescribed or sanctioned by the legislature, and which did not depend upon pontifical authority.
Under the new constitution of ecclesiastical courts, the clergy now, however, sought to introduce the entire canon law as promulgated at Rome. A compilation by Ivo de Chartres, in the reign of Henry I., contained many innovations upon the ancient law; but after the digest of the whole pontifical canon law by Gratian had been adopted at Rome, it became a favorite object with the English clergy to procure its recognition as the basis of their ecclesiastical law. As this compilation was derived chiefly from the Roman or civil law, the latter was also regarded with much favor by ecclesiastics, and they introduced public instruction at Oxford upon both the canon and civil law. Such, however, was the national jealousy, that in 1152 the king prohibited the reading of books of canon law, referring, it may be presumed, to the two compilations by Ivo de Chartres and Gratian. The doctrines of this foreign canon law being in many respects subversive of the authority previously exercised by the civil government over the ecclesiastical courts, a struggle took place in which the whole pontifical power was brought to bear in their favor.
The constitutions of Clarendon, which were enacted by Henry II. with the assent of the great council, in 1164, and confirmed at a council held at Northampton in 1176, were intended as a final settlement of the disputed points. By these it was determined that questions concerning benefices (that is to say, the right of presentation) should be tried by the king's secular courts; that ecclesiastics should be bound to come into the king's courts to answer to any matters cognizable there; that there should be no appeal from the archbishop's court except to the king in person; questions in relation to benefices, when the matter involved was whether the benefice were lay or eleemosynary, were to be determined in the king's court by a recognition of 12 men (a jury); lastly, the ecclesiastical courts were excluded from jurisdiction of pleas of debt, which they had lately assumed upon pretence that they were due fide interposita. In consequence of the king's remorse for the murder of Becket, these constitutions were not strictly executed during the rest of his reign, but they were not repealed. - It would exceed our limits to trace further the history of the ecclesiastical laws of England. It will be sufficient to say that by various legatine and provincial constitutions, the former being enacted by national synods, the latter by provincial synods, held either by the archbishop of Canterbury or of York, the canon law has been settled with sole reference to the exigencies of the church and kingdom of England, and its authority now rests upon a statute of Henry VIII., by which it was declared that all canons, constitutions, etc, then existing, and which were not repugnant to the law of the land or the king's prerogative, should remain in use.
An incidental effect of the enlargement of ecclesiastical jurisdiction was that the civil law was referred to for the decision of many questions, and the rules thus adopted were of course recognized by other courts; but in addition to this, the law of England relating to personal property, which was comparatively deficient, received a large accession from the civil law, with which the judges had now become somewhat acquainted. The rules of consanguinity and therefore of descent, except the law of primogeniture, were taken wholly from the canon law, which in this particular differed from the civil. And even as to primogeniture, there was for a time an alternation between the feudal principle, which gave to the eldest son the entire inheritance, and the Jewish or canonical rule, which allowed a double portion to the eldest, but gave to the others also a share of the estate. Thus in the reign of Henry I. it appears that the eldest son took only the primum patris fcedum (the principal manor), the rest being left to descend to the other sons; but this rule was of short duration, for in the reign of Henry II. the eldest son was considered the sole heir of the whole inheritance.
This related to lands held by military tenure or knight's service; socage lands (which were held by other services, and finally for a mere pecuniary compensation), even as late as the reign of Henry II., descended to all the sons, but the eldest was entitled to the capital messuage. This was not, however, universal. The doctrine of representation was not entirely settled, and Glanville (who wrote in that reign) says that it was a question, when a man left a younger son, and a grandson by an elder son, which should succeed; and he expresses the opinion that if the elder son had been provided for by an appointment of land during his life, the grandson should have no claim against the uncle for the remainder, though perhaps the eldest son might himself have done so had he survived. Gradually, however, all lands became subject to the strict feudal rule of primogeniture, except in certain places, where, by special custom which had been unbroken, it was otherwise. - As to personal property and contracts, how extensively the rules of the civil law were adopted may be seen in the treatise of Bracton, De Legibus et Consuetudinibus Anglice, which was published in the reign of Henry III. The arrangement of the subject is similar to that of Justinian's Institutes, and many principles are extracted from the Pandects, sometimes in the very language of the original.
But Bracton was no servile copyist. He had a great legal mind, and he selected and applied the rules of law, from whatever sources derived, with much discrimination, and defined and explained them with precision. Such was his adaptation of legal principles to the peculiar circumstances and habits of the English people, that it was not understood by his contemporaries how largely he had drawn upon the civil law. During a long period, down even to the time of Coke, he held much the same relation to the common law that in later times Pothier had to the French law, with only this difference, that Bracton was also profoundly versed in the practice of the courts and forms of proceeding. - As our object is simply to develop the primitive sources of the common law, and the general principle or process of its formation, it will be unnecessary to trace minutely the successive changes, from its earlier form to the later and more complicated system. It will be sufficient to refer summarily to some of the important,incidents. 1. The relaxation of the feudal principle of non-alienation, until all restriction was removed by the statute Quia emptores, 18 Edward I., and other acts; then the introduction of conditional fees, or estates tail, which, by the statute De Bonis, 13 Edward I., were restricted from alienation, and the evasion of the statute by new forms of conveyance, viz., fines and common recoveries. 2. The prohibition of conveyances to religious houses and persons.
This was first by the Magna Charta of Henry III., which was construed to relate to religious houses only; and in consequence the act De Religiosis, 7 Edward I., commonly called the statute of mortmain, was passed, by which the prohibition was extended to all persons holding for similar purposes; and in the statute Quia emptores, above referred to, which gave general liberty of alienating lands, a proviso was inserted that this should not authorize any kind of alienation in mortmain. Common recoveries were resorted to by the ecclesiastics to avoid the effect of these disabling statutes; but this device was checked by statute 13 Edward I., which provided that the fiction should be disregarded, and the real right should be tried, and if not found in the religious corporation, the land should be forfeited. Next the ingenuity of the clergy devised a form of conveyance, by which, instead of the fee, the use only was given to the religious beneficiary, while the seisin remained in a nominal feoffee; and courts of equity, which were then under the direction of the clergy, held that the feoffee was bound in conscience to account to the cestuy que use for the profits of the estate.
This device was, however, defeated by the act 15 Richard II., which enacted that uses should be subject to the statutes of mortmain as well as the lands. When the statute relating to wills, 32 Henry VIII., was passed, devises to corporations were excluded. By a subsequent act, 43 Elizabeth, a devise to a corporation for a charitable use was allowed, and this is now the sole right which religious corporations have for the acquisition of real estate either by deed or will. 3. The introduction of uses, as before mentioned, gave rise to a complicated part of the English law of real property. Great landed proprietors, for the purpose of perpetuating estates in their families, and to prevent alienation, resorted to the expedient which had been invented by the clergy, of conveying the use instead of the fee, and in the court of chancery such conveyance was held binding for any length of time. This gave rise to the statute of uses, 27 Henry VIII., by which the use was transferred into possession, or in other words, the estate vested in the cestuy que use.
By a narrow construction of the act, its operation was to a great extent evaded by the substitution of trusts for uses, and under that denomination conveyances have been introduced which are enforced in chancery, but with some important modifications in regard to their legal effect. (See Bargain and Sale.) 4. The various provisions of law in relation to personal liberty and rights. This is perhaps the most important part of the common law, but it would greatly exceed our limits to attempt to give even a summary of its history. A multitude of statutes were passed, at various periods, declaratory of the common law, or in aid of what was claimed as constitutional rights, the most important of which were the Magna Charta of King John, confirmed by Henry III.; the petition of right, passed in the reign of Charles I.; the habeas corpus act, in that of Charles II.; the bill of rights, in that of William and Mary; and the act of settlement under William III. - Three subjects remain to be considered, viz.: chancery, admiralty, and the modern commercial law. As to the equity law as administered in the court of chancery, see Chancery. The courts of admiralty have jurisdiction of maritime causes, which were considered to be out of the reach of the ordinary courts of justice.
It was a peculiarity of the common law that every action was considered local, and was triable in a particular county. Hence causes of action which arose at sea, or in foreign ports, whether upon contracts or for injuries, could have no venue in any county in England. The objection in cases of contracts or injuries in foreign places has been obviated in later times by a fiction which represents the transaction to have taken place in an English county, and the common law courts have taken jurisdiction of that class of cases, with the exception only of what are purely maritime in their nature, which have been left exclusively to the admiralty. The proceedings in these courts are analogous to those of the civil law, yet not directly or entirely derived therefrom. The maritime laws of other countries are referred to, as well in respect to rules of decision as to the mode of proceeding, yet not as binding authority; for the law of England recognizes no foreign law as such. Common usage limited by divers acts of parliament has, however, admitted to a certain extent the principles contained in maritime codes, especially the Rhodian laws and laws of Oleron. The modern English commercial law has grown up chiefly within the last 200 years, and has attained its present complete state by the mere development of principles recognized by the common law.
It is a memorable instance of the expansive power of law from natural resources. Statutes have had but little to do with it. The civil law, and the modern codes or systems founded thereon, have been no otherwise availed of by English judges than to aid their own reasoning. Lord Mansfield and other eminent judges were familiar with foreign jurisprudence, but they were able to decide commercial questions by a process of reasoning entirely congenial with the common law. - The second inquiry which was proposed at the beginning of this article was a summary of the peculiar principles by which the common law is distinguishable from other systems of law. 1. Security for life, liberty, and property. We have already referred to the declaratory statutes by which personal rights are guaranteed. But it would be a mistake to suppose that these statutory provisions have constituted the real defence of English liberty. They are in fact but the expression of the stern, indomitable spirit of independence which has been the honorable distinction of the national character, and without which no charter or statutes could have availed anything against arbitrary power.
The statutes themselves at an early period were in fact too general in their terms to have furnished any sure protection against corrupt judicial construction by subservient courts, had it not been for the constantly renewed exhibition of persistent public feeling which could not be safely trifled with. The famous clause in the Magna Charta, which has been often called the foundation of civil freedom in England, was in these words: Nullus liber homo capiatur vel imprisonetur, aut disseisiatur de libero tenemento suo, vel libertatibus vel liberis consuetudinibus suis, aut utlagetur aut exulet, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae. Nulli vendemus, nulli negabimas. aut differe-mus rectum vel justitiam. (No free man shall be arrested, or imprisoned, or disseised of his freehold, or disfranchised of his liberties or customary rights, nor be outlawed or expelled from the country, or in any other manner destroyed, except by the judgment of his peers or by the law of the land.
We will sell justice to no one, nor deny it to any, nor delay its due administration.) These are energetic expressions, yet of what avail would they have been against a tyrannical Henry VIIL, who would have held, as he did in some instances, that his own will was the law of the land, or a faithless Charles I., who could assent to the petition of right and evade its effect by falsifying the record, if the liberties of the commoners had depended upon a mere charter? Some of the later statutes are more specific in their provisions. The petition of right required the cause of arrest to be specified in the warrant under which any man was imprisoned. The habeas corpus act further provided for a determination, of the sufficiency of the cause of arrest, and a discharge if such arrest should be found to be illegal. Other acts provided against the exaction of bail for an excessive amount, in cases where the arrest was lawful. It is to be remembered that all these and many similar statutes purported only to guard against encroachments upon rights claimed to exist by common law.
It has always been customary in the United States to incorporate in the constitutions of the several states, or to declare by statutes, some of the most important of the personal rights which have been the subject of controversy in England. There is, however, but little occasion for such reenactment. The privileges thus declared are inherent in the very structure of our society, and recognized by our common legislation. Our danger does not lie in that direction, but rather in too unchecked license. The Athenian state would, perhaps, furnish us a more apt precedent of the evils to which we are exposed, and the appropriate counteraction. 2. Trial by jury has been the most noticed of common law rights, because it belongs exclusively to the English, having been admitted in no other country until within a very recent period. It has been attended with doubtful success in France and some other states where the French code has been introduced either as law or precedent. Sir John Fortescue insisted that this mode of trial had not been introduced in other countries because a class of men could not be found there fitted to serve on juries. "For though there be in them men of great power and of great riches and possessions, yet they dwell not nigh one to another, as such great men do in England; neither so many inheritors and possessors of land are elsewhere as in England." (Fortes. De Laud. Ang., c. 29.) The meaning of this is, that in his time there was no middle class of men between the nobility and the impoverished peasantry; and it was undoubtedly true that no country in Europe then had a common people as well provided and intelligent as the English. But although at the present time there may not be the same difference that then there was, between England and other countries, in the comforts of the commonalty, yet it is equally true in our time that there is a comparative deficiency of qualification still existing in continental countries for that office.
It requires a training for many successive generations to fit men for judicial functions; it requires above all an individual independence, which has been peculiarly the characteristic of the English people. Possession of a competence is also important. It is related by the old writers that during a considerable period after the conquest, when the common people were oppressed and impoverished, it was difficult to maintain the Saxon administration of justice in the county courts, by reason of the lapsed integrity of the freeholders, who were usually assembled in those courts as jurymen. This led to a proceeding called an attaint, by which a jury was put upon trial for a false verdict, and a severe penalty followed conviction. The English character afterward improved, however, and the trial by jury has always been maintained in a great degree of purity. 3. The mode of proof in trials. The English law of evidence is an extensive branch of the law, and has been founded upon good sense. In criminal cases, the accused parties are not compelled to testify against themselves; and although, upon preliminary examination before magistrates, the accusetl is permitted to make his statement, he is not compelled to do so.
Much less was it ever permitted in England, except for a short period under the Tudors and the first Stuart, to put a man to torture to extort his confession. This is mentioned by Fortescue as one superiority of the English laws, from which it may be inferred that the practice did not then exist, though the introduction of the rack is referred by Coke to the duke of Exeter, in the reign of Henry VI. It was not used in England after the reign of James I. 4. The rules of the common law relative to husband and wife cannot challenge the merit of superiority to the corresponding law in other countries. The personal property of the wife became the husband's so far as he could get possession; and it was with extreme difficulty, and only by the aid of the court of chancery, that she could formerly be protected in the enjoyment of any part of her property. The law has within a recent period, and especially in the United States, been ameliorated in favor of the wife, but this change has been by statute and not by any self-amelioration of the common law. Marriage can be dissolved only for one offence committed after the marriage, viz., adultery.
For some preexisting causes, as impotence, fraud, etc, the contract may be declared null; but no subsequent cause but the one above mentioned is a ground of divorce. Under the same head we may mention the steady persistence in the ancient doctrine that a child born before the marriage is illegitimate. There has always been a special prejudice against any change of the law in this respect, perhaps at an early period, owing to the general opposition to the canon law. Nchimus leges Angliae mutari gum hucusque usitatae sunt et approbate, said the barons when it was proposed in the reign of Henry III. to legitimate children born before marriage. Fortescue praises the good sense of the rule of the common law, and Black-stone maintains the same view. It is enough for our present purpose to say that in that respect it differs from the laws of most other countries. 5. The English law of descent, including primogeniture, is another peculiarity which has been already sufficiently noticed. 6. Passing over many other points of lesser consideration, the last and principal circumstance distinguishing the common law is the mode in which it has been promulgated. This has been by the decisions of courts. Treatises of writers have no authority, except as sustained by decisions.
It was thought as early as the time of Bacon that the decisions had become so numerous that they needed to be digested, and digests were in fact prepared, though not by public authority. Still the cases have gone on accumulating; abridgments and digests have followed; the older books are no longer cited, but the rules and reasons have been reproduced in other forms. The law seems to be still in growth, while the richness of our legal learning is the detritus from ancient tributaries, the sources of which we can no longer trace with distinctness.