366 



COMMON L A W COM M U N IT Y . 



anxious desire, natural in all governments, to profit 

 by the experience of the past, ami to fix rights by 

 some certain rules coinciding with the existing state 

 of the people. 



The conunon law is usually divided into three 

 kinds: 1. General customs, which are the universal 

 rule of the whole kingdom, and form the common law 

 in its more usual signification ; 2. Particular cus- 

 toms, which, for the most part, affect only the inha- 

 bitants of particular districts ; 3. Certain particular 

 laws, which, by custom, are adopted and used by 

 some particular courts of pretty general and exten- 

 sive jurisdiction, (I Bl. Comm. 67.) The first em- 

 braces the general maxims and principles of English 

 jurisprudence, such as the regulation of the descent 

 ;>f estates, the exposition of contracts and wills, the 

 remedies for civil injuries, and the definition and 

 punishment of crimes, &c. The second embraces the 

 jurisprudence of a peculiar nature existing in certain 

 local districts, such as the custom of gavelkirul, in 

 Kent county, where all the sons inherit the estate of 

 their parent and not (as is the general law of Eng- 

 land) die eldest son ; so the custom of Borough Eng- 

 lish, where the youngest son inherits the estate ; such, 

 also, are the peculiar customs of the city of London. 

 The third embraces those portions of the civil law 

 and the canon law which are of force in the eccle- 

 siastical and admiralty and other courts, and have 

 long constituted the system which regulates the rights 

 and remedies administered in those courts. This 

 subject will be found discussed at large in 1 Bl. 

 Comm. from p. 63 to p. 92, and in Lord Hale's His- 

 tory of the Common law. A further discussion here 

 would occupy too much space. 



The common law of England constitutes the ge- 

 neral basis of the jurisprudence of all the United 

 States of America, except only Louisiana, where the 

 civil law prevails. This common law consists only 

 of the first and third kinds of customary law above 

 mentioned, there being no local or provincial law 

 existing in any particular county or district of any 

 state, as contradistinguished from that which prevails 

 in the state at large. When we say that the common 

 !aw constitutes the basis of American jurisprudence, 

 we do not mean that the whole common law, as it 

 exists in England, is adopted here. The general doc- 

 trine is, that such portions of the common law only 

 as were adapted to the situation of the colonies at 

 their first settlement, and were thenceafterwards used 

 and recognized, are now of force in the states. But 

 many portions were never in force at all in America. 

 For instance,' the ecclesiastical establishment, and 

 much of tlie law growing out of it, was never intro- 

 duced or recognized here. We, too, consider tliat 

 all die statutes made in England before the emigra- 

 tion of our ancestors, which were in amendment of 

 the law, and in melioration of it, constitute a part of 

 our common law, and, as such, were brought hither 

 by our ancestors, at their emigration. But statutes 

 since enacted have no force at all here, unless they 

 have been sanctioned by the legislature, or have been 

 adopted into our local practice, by general usage, as 

 amendments of die law. And, indeed, many of the 

 fundamental principles of the common law have been 

 altered, repealed, or modified by positive legislation 

 of die various states, as well while they were colonies 

 as since their independence ; so that, though the 

 general basis is die same, there are almost infinite 

 shades of difference in the actual jurisprudence of the 

 different states. 



There is anodier sense in which we speak of die 

 common law, in contradistinction to what is called 

 *ptity jurisprudence. The administration of a distinct 

 system of jurisprudence by distinct tribunals of this 

 nature seems peculiar to Britain and the colonies 



which derive their origin from her. BlacKslone (8 

 III. Comm. 50) has well observed, that the distinction 

 lietwecn law and equity, as administered in different 

 courts, is not at present kno\\n. nor scem< ever to 

 have been known in any other country at liny other 

 time; ai.d yet die difference of one from the other, 

 when administered by the same tribunal, wa> j in- 

 fect ly familiar to the Romans; tliejtts prcctoritim, or 

 discretion of die praetor, being distinct from tin- 

 or standing laws. It would occupy too much sjim 

 to enter into a full development of this distinction in 

 die actual administration of justice in England. In 

 general, courts of equity administer remedies eat aqno 

 et bono only in cases where die courts of common law 

 cannot administer an adequate remedy. Hem e ;i 

 very familiar expression is, tliat a right is an equitable 

 right, or an equity; by which we mean, that it i- a 

 right recognized only in courts of equity, and for 

 which the common law, in its ordinary tribunals 

 affords no remedy, and of which it takes no notice. 

 See Courts and Equity. 



COMMON PLEAS. See Courts. 



COMMON SCHOOLS. See Schools. 



COMMONERS. See Colleges. 



COMMONS. The commons of Great Britain, in 

 a general sense, consist of all such men of property 

 in the kingdom as have not seats in the house of 

 lords, every one of whom has a voice in Parliament, 

 either personally, or by Iiis representatives. Com- 

 mons, in parliament, are the lower house, consisting 

 of knights elected by die counties, and of citizens and 

 burgesses by the cities and borough towns. In these 

 elections, anciently, all die people had votes ; but in 

 the 8th and 10th of king Henry VI., for avoiding 

 tumults, laws were enacted, that none should vote 

 for knights but such as were freeholders, did reside 

 in the county, and had 40 shillings yearly revenue, 

 equivalent to nearly 20 a-year of the present 

 money ; the persons elected for counties to be milites 

 notabiles, at least esquires, or gentlemen fit for 

 knighdiood ; native Englishmen, at least naturalized ; 

 and twenty-one years of r.ge; no judge, sheriff, or 

 ecclesiastical person to sit in the house for county, 

 city, or borough. The house of commons, in For- 

 tescue's time, who wrote during the reign of Henry 

 VI., consisted of upwards of 300 members: in Sir 

 Edward Coke's time, their number amounted to 493. 

 At the time of the union with Scotland, in 1707, there 

 were 513 members for England and Wales, to which 

 45 representatives for Scotland were added ; so dial 

 the whole number of members amounted to 558. In 

 consequence of the union widi Ireland, in 1801, 100 

 members were added for that country ; and the whole 

 house of commons therefore consisted of 658 mem- 

 bers. By the reform bill of 1832, die number of 

 members was altered as follows: 500 for England 

 and Wales, 53 for Scotland, and 105 for Ireland. 

 See the article Britain, subdivision Parliament. 



COMMONS, DOCTORS'. See College of Civi- 

 lians. 



COMMUNION. See Lord's Supper. 



COMMUNITY. The two chief parties into which, 

 theoretical politicians of modern times are divided , 

 approach each other in no point more nearly than in 

 dieir opinion upon die organization of communities. 

 For those who think dial' the state should insure an 

 equality of rights to all its members, and those who 

 believe that the common good of die whole is most 

 safely attained by means of an unequal distribution of 

 civil rights and privileges, both agree in this truth, 

 that communities come next in order to private fa- 

 milies, in the formation of the great bond by which 

 mankind are united in church and state. They differ, 

 indeed, in their views upon the formation of commu- 

 nities, and their relation to the general government, 



