338 HISTORY OF COMMON LAW 



laws which were common to all the inhabitants of a country, irre- 

 spective of their particular nationality. 1 Subsequently the canonists 

 employed it, and also lex communis, to denote those rules of the 

 church universal which were generally in force, as distinguished 

 from special privileges given by popes, or local rules and customs 

 of a particular church or ecclesiastical establishment. 2 



During the Dark Ages the term lex communis is found in the Frank- 

 ish codes. The first instance of which I am aware dates back to about 

 the beginning of the ninth century. 



Charlemagne had made laws, as king of both Franks and Lombards, 

 most of which bound his subjects of all nationalities. 3 Pepin, not long 

 afterwards, in his statutes as King of Italy, after providing on certain 

 subjects different rules for Romans and Lombards, declared that 

 " De ceteris vero causis communi lege vivant, quam Dominus Karolus, 

 excellentissimus Rex Francorum atque Langobardorum in edictum ad- 

 junxit." * The term was used in the same sense by one of the older 

 English writers, who referring to the unification of the laws of Eng- 

 land by Edward the Confessor, in the eleventh century, to replace the 

 different laws of the Angles, Danes, and Mercians, says: "Ex tribus 

 his legib'us S. Edwardus tertius (ante conquestum) unam legem com- 

 munam edidit." 5 



While, therefore, the thought which is expressed in the modern 

 mind by "common law" is that of universality, and territoriality, 

 as the law of the land, 8 originally it was rather that of the general 

 law of the church universal, or of a personal law common to several 

 peoples subject to the same sovereign. 



What force attaches to such a common law of the land? 



Rome, in the later stages of her institutional development, made 

 this depend largely on whether it had acquired some kind of govern- 

 mental sanction. When, said Ulpian, one relies on a custom of a city 

 or a province, the first thing to be done is to ask if it has ever been 

 confirmed by some judgment in a contested lawsuit. 7 Romans loved 

 form and formal expression. A judgment gave this, although not as 

 fully as an act of legislation. 



France, from an early period, required legislative approval. Her 

 common law, it may be said, as respects the French provinces subject 

 to the droit non ecrit, differed radically from that of England in two 

 points. It was not fully recognized by the courts until it had been 



1 Cod. Theodos., n, I, De Jurisdictione et ubi quis Conveniri Debeat, 10; xiv, 

 v, de Haereticis, 23. 



Pollock & Maitland, History of the Law of the English People, i, 115, 176. 



Some were confined to the Lombards. See Heinneccius, Corpus Juris Ger- 

 manici, 1153, 1166. 



Ibid. 1188. 



Spellman, Glossary, Lex. 



Hale, History of the Common Law, chap. 3, p. 55. 



Dig. i. 3, De Legibus, Senatusque Considtis et Longa Consuetudine, 34. 



