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COMMON rORMS. 217 COMMON LAW. any facts ■n-hicli in law would entitle him to the ciuittel and disregard the tictiou of finding. These forms of pleading originated in the feudal period in England, and they arose- out of the practice of granting a writ for trying the justice of some complaint for the redress of which there was no other provision in the law. The follow- ing forms of action were in general xise: assump- sit, covenant, debt, detinue, replevin, trespass, trespass on the case, and trover (qq.v.). These forms were generally adopted in the L'nited States, but the Civil Codes of many States have abolished them. They have also been abolished in England by the Judicature Acts. See Com- mon Count; Pleading. COMMON LAW. The great body of English unwritten law (from which also is, in the main, derived the common law of the English colonies and of the United States), as distinguished from written oi> statutory law. from the Roman civil law, from international law, and from the sys- tems of law administered by courts of equity and admiralty courts. Blaekstone divides the civil law of England into the lex scripta, or statute law, and Icj^ non scripla, or common law, and defines the latter as consisting of general cus- toms, of particular customs prevailing in certain districts, and of certain laws used in particular courts. Common law is based primarily on cus- toms growing out of the united wisdom and ex- perience of mankind; these customs in time be- come recognized as reasonable, consistent, and established, are sanctioned by the courts, and are interpreted and made binding by the decisions of the final courts of appeal. While Continental countries generally follow the carefully classi- fied and codified system of the Roman civil law, the common law of England was a growth, gradual and in its origin complex — derived from the customs and precedents of Anglo-Saxons, of Xormans, of the imited England which followed the Xorman rule, and including also some prin- ciples and practices derived through one of these sources from the Roman law itself. It must be remembered that even at the time of the Norman Conquest, England had a definitely established, though, of course, crude, legal system, and on that system much of the common law, though perhaps not the greater part, rests. From its nature, the common law cannot be sought in any one book or digest : its principles are discussed in the treatises of innumerable writers of text-books and commentaries, and in the records of the decisions of the courts. Com- mentators cannot make law, but they may dis- cuss and record it. The real oracle of the com- mon law is the judge, who considers and weighs precedents, measures them by the standard of reason and public policy, and sets fmnlly the seal of authority upon them by his decision. Great importance, therefore, is attached to precedent in ascertaining the principles of the common law: it was, it is conceded, because too much importance was attached to precedent that, side by side with the system of common law, grew up, to correct and supplement it. a system of equity law. (See Equity.) On the other hand, the greatest jurists of the English bench have most widely recognized the fact that precedent must be tempered by reason. Lord JIansfield, more than any other one judge, enlarged in this way the interpretation and application of com- mon-law principles, and was accused, indeed, of assuming legislative rather than judicial powers, r.ut there can be no question that his view, car- ried out with unswerving devotion to natural justice, to the necessities of growing and chang- ing mercantile and legal conditions, and to the true fundamental principle of ])recedents, did much to make the administration of law in England pliable and efficient. We may illustrate the manner in which conunon custom became common law by citing the recognition by courts of the already long-established principle of primo- geniture; of the similar recognitiim of the fact that the validity of a deed depends on its being sealed and delivered; of the recognition of the principle that wills should be less strictly con- strued than deeds; of the sanctioning the al- ready existing mercantile custom that three days of grace should be given in payment of notes and bills. In all these cases tlie law did not make llie custom or principle, Init found it ready made to hand, recognized its convenience and useful- ness, and sanctioned it by judicial authority. Though based so firmly on custom and prece- dents, the common law is not totally inelastic. The continual growth of modern civilization, the progress of invention and manufactures, and the increased complexity of Inisiness — all have demanded from the common law recognition and an adaptation of the law to the conditions of the time. The rule generally followed as to precedents is that the courts will always "abide by former precedents where the same points come again into litigation." But the decision of one of two courts of concurrent jurisdiction does not necessarily bind the other, nor will a new decision by a court of appeal always be support- ed by that very court in subsequent cases. It follows, therefore, that often precedents almost equal in number and authority may be quoted on both sides of a given question, and in such a case the power and authority of the court ap- pealed to are called upon to decide as is con- sonant with justice and reason. In the United States, as each State has a final court of ap- jieal, and as theoretically they are of equal au- thority, such a contradiction of precedents and decisions is frequent. The United States, considered as one body politic, has no common law; Federal courts, when acting as common-law courts, follow the common law as it stands in the particular State where the action arises. As for the States them- selves, the common law of England, as it existed at the time of the Revolution, together with such of its statutes as reasonably applied to the Colo- nies, became at that time the common law of the States. In the United States, as in England, of course, the body of the common law has devel- oped with growing industrial conditions, and has, on the other hand, been from time to time restricted by statutes of the States or of the United States. What we have said in regard to the common law of the Stiites has on? excep- tion — Louisiana, which, when ceded to this coun- try, retained in the main the system of Roman civil law already existing. The common law on a given point is always superseded by a statute covering that point. Thus, in the United States the order of authority of law is: The Federal Constitution: the treaties and acts of Congress; (he Constitution of the State; the statutes of the State; and finally the common law. When a statute is rescinded, the common law on that