LAW, COMMON. The common law is that which derives¹ its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, wbich is the criterion by which it is distinguished² from the statute³ law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely⁴ by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial⁵ adjudications of our courts.

2. The common law is derived⁶ from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain⁷ what part of the English common law is valid⁸ and binding⁹. To run the line of distinction, is a subject of embarrassment¹⁰ to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded¹¹ by the constitution of the United States, or of the several states, or by their legislative¹² enactments¹³, or varied¹⁴ by custom, and where it is founded in reason and consonant¹⁵ to the genius and manners of the people.

3. The phrase "common law" occurs in the seventh article of the amendments¹⁶ of the constitution of the United States. "In suits at common law, where the value in controversy¹⁷ shall not exceed twenty dollar says that article, "the right of trial by jury shall be preserved. The "common law" here mentioned is the common law of England, and not of any particular state. 1 Gallis. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The term is used in contradistinction to equity¹⁸, admiralty, and maritime¹⁹ law. 3 Pet. 446; 1 Bald. 554.

4. The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill & John. 62; Sampson's Discourse²⁰ before the Historical Society of New York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628; 2 Stew²¹. R. 362.