A treaty may divest rights which have accrued under an existing law, and the nation may be obliged to give effect to this treaty divesting the individual rights (6). The recent proposed California anti-alien laws which caused the President to interfere illustrate this principle. § 171. The Common Law. The Common Law is a term which has, with us, a double significance. In the United States, when we speak of the common law, the mind of the lawyer naturally reverts to the system of English jurisprudence, an indefinite and undescribed portion of which was said to be the birthright of the colonists (7), and has been expressly adopted in most of the states as a portion of our jurisprudence. By the common law a great many of our most important transactions are governed. In view of the common law every statute enacted by a state legislature is construed, and every statute is said to be either in derogation of the common law or declaratory of it, unless the subject is one that was uncertain at common law. The common law, when predicated of the English system by an Englishman, has a meaning somewhat different from that just spoken of. In that connection it would have the same meaning in any country. The common law of England meant all of those universal rules, not the enactment of parliament, which governed the English people. Long established usages or customs, especially the cus • United States v. Schooner Peggy, 1 Cranch, 103. See also Tennessee v. Davis, 100 U. S. 266; Martin v. Hunter, 1 Wheat, 373. "I Wilson's Works, p. 170. tom of merchants, became a part of the common law, and so after the Conquest, and during the period of the struggle for English liberty, there is a constant insistence upon the ancient customs of the realm. A statute of 25 Henry VIII., chapter 21, section 1, declared that "this realm is free from subjection to any man's laws, but only to such as have been devised, made and obtained within this realm, for the wealth of the same, or to such as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, with their own consent to be used amongst them and have bound themselves by long usage and custom" (8). If, however, we reflect upon this subject and consider carefully the facts and conditions, it becomes apparent the term "common law" is one of great indefiniteness, meaning one thing in one context and another thing in a different connection. The common law of England had and still has the two great branches, one relating to political relations or the constitution and the other to private affairs. Of the former, most if not all of the great fundamental rules and principles are embodied in our constitution and prized as a sacred part of our liberty. The common law of England governing property and private affairs was in a very crude and developing state -the commercial law just beginning to take form under the masterful hand of Holt and his successor, the great 8 "Custom: a species of legislation by the people themselves which in this country and England is the foundation of the common law itself, or, in other words, general customs obtaining by common consent." Gibson, J., in Lyle v. Richards, 9 S. & R. 323-39. Mansfield. The law of land was so closely interwoven with the political institution of sovereignty as to be wholly unsuited to our condition except in the branch wherein all systems must closely resemble each other, viz., the rules of conveyancing or the acquisition of title involving rules of interpretation. If the subjects treated by Blackstone are examined in detail it will be found that but a small portion of the book survives in our law. This may be summarized as follows: Volume I. The part devoted to the organization of the state is inapplicable. A body of rules limiting the sovereignty and securing personal liberty was found to be applicable notwithstanding the change in form of government. This portion is of priceless value. Volume II. The law of ancient and modern tenure is wholly obsolete. The treatment of commercial law involving contracts is so brief as to be almost useless except as showing how crude and undeveloped the law was at that time. Domestic relations have been subject to sweeping changes. Volume III. This book is composed of the law of actions or procedure and still has more than mere antiquarian value, but its matter is almost wholly obsolete. Vol IV. Treats of the crude, cruel and obsolete law relating to crimes and aside from its definitions has little in it which remains. From this it will be seen how little of this common law is either valuable or applicable to our conditions, and yet lawyers and judges still talk about the common law as though it were the base line of our system. § 172. Unwritten or customary law. The dignity and importance of customs was made apparant when we mentioned that the constitution of one of the states, Connecticut, for many years after the adoption of the federal constitution was merely the customs of the people (9). The common law is said to be an unwritten law. It was classed by Blackstone as the lex non scripta, and by him said to include not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom, and likewise those particular laws that are by custom observed in certain districts (10). One need but turn to the examination of the common law given by the learned commentator to appreciate that Calder v. Bull, 3 Dall. 386. 101 Cooley's Blackstone (4th ed.), 63. General and particular customs must be distinguished. Judge Story says: "Those usages which, from their general prevalence and long-continued recognition among merchants, have been received and incorporated into the law as the custom of merchants, must not be confounded with the particular usages of trade. The custom of merchants is applied to that collection of rules and principles of law which the courts received originally from the merchants, but of which they now take notice judicially, and which are binding throughout the realm. These customs, having been judicially established, are no longer in the power of the merchants, and can no more be altered or superseded by the acts or agreements of parties than the other rules of law. But wherever, in any course of business, a particular usage obtains, which is general, uniform, notorious, reasonable, and consistent with the rules of law, such usage will be presumed to have entered into the contemplation of all parties contracting in reference to the subject matter as to which it prevails unless the contrary is shown. This principle, although most frequently applied in mercantile transactions, is not restricted to them, but extends to contracts in all departments of business, mechanical, agricultural and professional, upon the principle that, wherever the knowledge of any usage or custom is necessary to the right understanding of an agreement, it would be unreasonable to deny to the reader the right enjoyed by the writer." Rogers v. Mech. Ins. Co., 1 Story (U. S. Ct.), 608. by far the largest portion in bulk of the English law consisted in this unwritten or common law of the realm (11). The evidence of the unwritten law may sometimes, in the first instance, be obtained by the testimony of witnesses, or, as was formerly the case, by the examination of the merchants of a particular locality or guild (12). The final evidence, however, of the common law, which can be said of all the law, is mainly to be found in the decisions of the courts of England, or the particular country of which the common law is said to be a part. Those decisions, for the first time adopting and announcing a rule, were said to be a species of judicial legislation, but they are distinguished from those judicial edicts which change established rules (13). Thus, Spence says, in his Equitable Jurisprudence, the "jus civile is distinguished from jus praetorium, which, in Bracton's sense, is the law formed by the decisions of the judges. This jus praetorium has been continually enlarged by the common-law judges, so as to form a very considerable portion of the common law of England" (14). § 173. Development of the Common Law. The manner in which the common law has developed is simple and easily understood. Take, for example, a case arising for the first time in a jurisdiction. In the absence of precedent, reason and justice are said to be the sole spirit of 111 Cooley (4th ed.), 67, 68 and notes. 12 Whitehead v. Walker, 9 M. & W. 514; Renner v. Bank, 9 Wheat, 582. 18 See post, Judge-made Law. 14 Eq. Juris., *124. |