COMMON CARRIERS. COMMON LAW. 



an apoplexy, the senate declared him an enemy of 

 the state, ordered his statues to be broken to pieces, 

 and his name to be erased from all public inscriptions. 

 He perished at the age of thirty-one years and nine 

 months, after a reign of twelve and a half years. 

 Rome was indebted to him for her handsomest baths 

 the thermal Antoniniana:. He established, also, 

 an African fleet, in addition to the Egyptian one, for 

 the purpose of supplying the city with corn. 



COMMON CARRIERS. See Carriers. 



COMMON, RIGHTS OF. There are various kinds 

 of rights of common recognized by the common law, 

 namely, of pasture, of piscary or fishing, of estovers 

 or fuel, and of turbary or of digging turf. But the 

 phrase usually means the right of pasturing cattle, 

 horses, &c., in a certain field, or within a certain ter- 

 ritory. And this again is of different kinds ; as com- 

 mon in gross, when the grantee is not in the occupa- 

 tion of lands with which this right of pasturage is 

 connected ; and appendanf, where a person, occupy- 

 ing a certain piece of arable land (or appurtenant, 

 where he occupies such land or a house), has the 

 right of pasturage hi a certain other piece of land ; 

 and also a right of common par cause de vicinage, or 

 by reason of vicinity, the right which the tenants 

 of a lord in one town had of pasturing their cattle 

 with those of the tenants of another lord in another 

 town. These rights, in England, have been mostly 

 determined by prescription or immemorial usage ; by 

 which also was regulated, in most instances, the kind 

 of animals which might be turned upon the land 

 (which were usually horses, oxen, cows, and sheep, 

 but not goats, hogs, or geese), and the number, and 

 the time of 'the year when they might be turned in. 

 In the United States of America, there are not want- 

 ing instances of right of common, appurtenant and 

 in gross ; but the regulation of this species of rights 

 does not occupy a great space in the laws. A law 

 of the province of Massachusetts, of 1693, regulates 

 the rights of common belonging to the freeholders of 

 a town or village, by prescribing the number of cat- 

 tle that each commoner might put upon the common ; 

 and there are rights of common appurtenant in New 

 York, but these are most commonly rights in gross, 

 and the grant from one commoner to another gene- 

 rally specifies the number and kind of beasts to be 

 pastured upon the common field, as "one cow right," 

 or a right for a certain number of sheep, and the 

 like. Besides the articles on this subject in the 

 abridgments, digests, and general treatises, an elabo- 

 rate work on rights of common was published in 1824, 

 by Mr Woolrych of London. 



COMMON LAW. The phrase, " the common 

 law," is a very familiar expression in English juris- 

 prudence, and has various significations, or rather, is 

 used sometimes in a limited and sometimes hi a more 

 enlarged sense. In a large sense, it comprehends 

 the whole body of English law, as well the statutes 

 passed by parliament as the general customary law 

 of the realm. In this manner, it is used in contradis- 

 tinction to the Roman, or, as we call it, the civil law. 

 In a more limited sense, " the common law" expres- 

 ses that portion of English jurisprudence which is 

 unwritten (lex non scripta), in contradistinction to 

 the parliamentary statutes, which are the positive 

 written code (lex scripta). For instance, we say that 

 a particular remedy for a wrong is given by the com- 

 mon law, and that another remedy, by way of pen- 

 alty, is provided by statute ; meaning, that the latter 

 depends upon some known act of the legislature ; 

 but the former rests altogether upon immemorial 

 usage or general principles, which cannot be traced 

 back, to any such act. There is yet a still more limit- 

 ed sense, in which the expression is used to designate 

 that portion of the English common law, which is 



strictly the custom of the realm, and local and muni- 

 cipal in its origin, in contradistinction to the law of 

 nations, and the maritime and commercial law, which 

 are drawn from the general usages and principles re- 

 cognized among civilized nations. Correctly speak- 

 ing, the common law now comprehends the law of 

 nations and the law merchant. But these are of much 

 later introduction into English jurisprudence, than 

 the other general customs of the realm, of which we 

 have been speaking. They have been borrowed, for 

 the most part, from the general usages of merchants, 

 in the commercial nations, which, upon the revival of 

 commerce and letters, inhabited the shores of the Me- 

 diterranean. For instance, the law of foreign bills 

 of exchange, of insurance, and of general average, 

 is of comparatively recent adoption hi England, and 

 cannot be traced back far in her annals. The law of 

 insurance has almost entirely grown up since the 

 time when lord Mansfield became the chief-justice of 

 England (1756). The name of the common law, 

 which is thus given to this collection of maxims and 

 customs in England, Blackstone (1 Bl. Comm. 67) 

 says, was either given to it in contradistinction to 

 other laws, as the statute law, the civil law, the law 

 merchant, and the like ; or, more probably, as a law 

 common to the realm (jus commune, or folk-right), 

 mentioned by king Edward the Elder, after the abol i- 

 tion of the several provincial customs and particular 

 laws by king Alfred and his successors. But though 

 it is called the lex non scripta (or unwritten law), we 

 are not to imagine that it is, at present, merely oral, 

 and transmitted, from age to age, by word of mouth. 

 In the dark ages, indeed, amidst the general igno- 

 rance of the times, few laws were reduced to writing ; 

 and still fewer of these maxims and customs were to 

 be found in books or manuscripts. But (as Black- 

 stone has observed, 1 Bl. Comm. 63) with us, at pre- 

 sent, the monuments and evidences of our legal cus- 

 toms are contained in the records of the several 

 courts of justice, in books of reports and judicial de- 

 cisions, and in the treatises of learned sages of the 

 profession, preserved and handed down to us from 

 times of the highest antiquity. They are, however, 

 still styled the unwritten law, because they are not 

 set down in a code, as acts of parliament are, in writ- 

 ing, but they derive their authority from long and 

 immemorial usage, and the universal recognition of 

 them throughout the realm. The origin of this 

 common law is now lost in remote antiquity. It 

 probably began in the early customs of the aborigi- 

 nal Britons, and was successively augmented, in dif- 

 ferent ages, by the admixture of some of the laws 

 and usages of the Romans, the Picts, the Saxons, the 

 Danes, and the Normans, who spread themselves over 

 the country. It was feeble and narrow at first ; but, 

 expanding with the exigencies of society and with 

 the progress of knowledge and refinement, it has now 

 become a very complex and intricate system, and pre- 

 sents a singular combination of the strict principles of 

 the old feudal law, with the elegant reasoning of pul>- 

 licand commercial jurisprudence, which are so much 

 admired for their general equity. Of such a gradual 

 formation and expansion is, doubtless, the law of most 

 civilized countries. The Roman or civil law is made 

 up, not merely of the positive legislation of the sen- 

 ate and the people, and the edicts of the emperors, but 

 also of the decrees of courts of justice, of the opinions 

 of learned jurists, and of the silent but irresistible usa- 

 ges of the people in the arrangements of their busines" 

 and domestic policy. These usages, at first voluntary 

 and arbitrary, generally acquired the force of custom ; 

 and tradition made them operate as laws to regulate 

 like concerns in other ages ; and, as they were ge- 

 nerally founded in public convenience, they were 

 adhered to, first from habit, and at last from an 



