Common law

“ In the Common Law was the spirit of liberty; in that of the Continent the spirit of science. The Common Law has given to the world trial by jury, habeas corpus, parliamentary representation, the rules and orders of debate, and that benign principle which pronounces that its air is too pure for a slave to breathe,—perhaps the five most important political establishments of modern times. From the Continent proceeded the important impulse to the systematic study, arrangement, and development of the law,—also the example of Law Schools and of Codes. ”

“ We may resort to the common law to aid us in interpreting such instruments, and their powers; for that law is the common rule, by which all our legislation is interpreted. It is known, and acted upon, and revered by the people. ”

“ That the common law, as it is called, has adapted itself, upon grounds of public policy, to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced is just as good a condition now as any that was ever inserted in a contract, because a partial restraint, created in that way, with a particular object, is now perfectly legal. ”

“ The nervous language of the Common Law, the impressive forms of our courts and the precision and substantial truth of the legal distinctions, are the contribution of all the sharp-sighted, strong-minded men who have lived in the countries where these laws govern. ”

“ What was the common law before the making of the act ? (b) What was the mischief and defect against which the common law did not provide? (c) What remedy the parliament hath resolved and appointed to cure the disease of the Commonwealth? (d) The true reason of the remedy.” (3) Beneficial or remedial statutes are to be liberally, penal more strictly, construed. (4) Other statutes in pari materia are to be taken into consideration. (5) A statute which treats of persons of inferior rank cannot by general words be extended to those of superior rank. ”

“ By adopting the common law within its exclusive jurisdiction Congress would carry out the principles of our glorious Declaration, and follow the highest precedents in our national history and jurisprudence. ”

“ Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes. ”

“ The whole future will of each individual is concentrated into the one moment when he declares his willingness to participate in the commonwealth; and this extending the present will so as to embrace the whole future, changes the expressed common will into LAW. In so far as the common will determines how far the rights of each person shall extend, the law is called Civil Law; and in so far as it determines the punishment which shall follow a violation of the law, it is called Penal or Criminal Law. ”

“ Speaking of the origin of civil power and the objects of law, he lays down these principles: "The law, strictly speaking, is directed primarily and principally to the common good; and to decree anything for the common benefit belongs either to the whole body of the people, or to some one acting in their place." ”

“ The Common Law, an inheritance from England, enriched with authoritative decisions by our own courts, is the groundwork of the law in all the States, and its principles are binding in the absence of express statutes. ”

“ The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. ”

“ Common law and special law.—In yet a third sense common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special law, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved. ”

“ Common-law rights are described in the ordinance of 1787 as 'fundamental principles of civil and religious liberty,' and the amendments embodying common-law rights were demanded, as the preamble of the act of Congress proposing them declares, 'in order to prevent misconstruction or abuse' of the powers of the general government. ”

“ We do not mean that the present interpretation of the common law does not sometimes show a more liberal estimate than the law itself, but rather that the existence of this law, unrepealed, unchristianized, is a forcible restraint upon the progress of society. ”

“ COMMON LAW.—The common law had its roots in the customary law of the Germanic peoples of western Europe, and was developed by the English courts from the thirteenth to the nineteenth centuries. Like the Roman law, it has spread all over the world wherever English-speaking peoples have settled, and founded colonies. ”

“ That shows, therefore, that the rule which the learned judge, whose opinion is now before the House, thought depended upon some rule of common law, regardless of policy, was founded upon public policy, and has been restrained and limited and qualified up to this very hour, and beneficially so, by that very policy which it is supposed had no bearing at all upon the foundation of the rule. ”

“ If a majority are capable of preferring their own private interests, or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the constitution in favour of justice, to compel all to respect the common right, the public good, the universal law in preference to all private and partial considerations. ”

“ As suggested earlier, development of the common law entails a simultaneously creative and declaratory function in which the court perfects a process of incremental legal development that the Constitution has already ordained. Once the court concludes that the Bill of Rights requires that the common law be developed, it is not engaging in a legislative process. ”

“ The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. ”

“ It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. ”

“ After the beginning of independent national life the English common law as a whole in its various branches was retained as a part of the law of the land, unless superseded by constitutional or statutory legislation. ”

“ What is government? The reverend gentleman who occupied this platform asserts that governments are divine, when all history teems with their sacrilegious proceedings. Or does he mean simply that this government is divine? If so, where is its sign-manual? The proper function of law as applied to society, is the protection of the rights of the individual. When it fails in this it is no longer binding on the conscience, according to the authority of one of the brightest lights in jurisprudence, whence this nation borrowed its common law. ”

“ Certainly, if the common law be so hard to be understood, it is far from being very common; but if the lord Coke in his Institutes be of any consideration, he tells us, That Common-law is common right, and that Common Right is the Great Charter-Privileges * * *. ”

“ Decided cases of the highest authority, affirm that doctrine, and it must, doubtless, be deemed correct in most or all jurisdictions where the rules of the common law prevail, as understood in the parent country. ”

“ The preemptory common-law writs are among the most potent weapons in the judicial arsenal. 'As extraordinary remedies, they are reserved for really extraordinary causes.' Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately. ”

“ The duty of using one's goods for the benefit of one's neighbours was a fit matter for enforcement by the State, provided that the burdens imposed by legislation were equitable. 'Laws are said to be just, both from the end, when, to wit, they are ordained to the common good—and from their author, that is to say, when the law that is made does not exceed the power of the law-giver—and from their form, when, to wit, burdens are laid on the subjects according to an equality of proportion and with a view to the common good. ”

“ Those who formed the Constitution struck out anew free of previous shackles in an effort to obtain a better order of government more congenial to human liberty and welfare. It cannot be seriously claimed that they intended to adopt the common law wholesale. ”

“ And the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others ”

“ In primitive society legislation as a source of law had little or no place, custom and usage supplying whatever rules were found to be necessary for the regulation of the common affairs of the community. ”

“ The peopel were content to commit to their representatives the enactment of reasonable and wholesome laws, being satisfied with the protection afforded by a representative and free government and by the general principles of the common law protecting the inalienable rights of life, liberty, and property. ”

“ But, perhaps, if there was less Law, there might be more Justice, than in some other Courts; for, if the civil Law be a Law of universal Reason, judging of the Rectitude, or Obliquity of Mens Actions, every Man of common Sense is endued with a Portion of it, at least sufficient to make him distinguish Right from Wrong, or what the Civilians call, Malum in se. ”

“ The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago. ”

“ If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. ”

“ It is simply taking an old principle of law recognized for centuries, and applying it to new conditions. This is what we mean when we say that the principles of common law are capable of indefinite expansion; that the common law is always growing, or, as Mr. ”

“ In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. ”

“ Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated. ”

“ General laws are meant to regulate our conduct to each other, within certain rules; that the confidence necessary for the social union may be maintained. A principle laid down by the law, is promulgated as a general rule; and in the confidence that this rule will be respected by all; or that if violated, society will punish the violator, it is recognised as a general principle of action. ”

“ The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. But how are they to regulate them? Is it to be by common agreement, by a sudden inspiration? ”

“ It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general 'conditions of civil association' which the associates impose on themselves. ”

“ The people of this Commonwealth, in their declaration of rights, have recorded their own opinion, that the Legislature ought frequently to assemble for the redress of grievances, correcting, strengthening and confirming the Laws, and making new Laws, as the common good may require.—The Laws of the Commonwealth are intended to secure to each and all the Citizens, their own rights and liberties, and the property which they honestly possess. ”