"Common Law"

"Common Law" has been defined in Black's Law Dictionary as: "comprising the body of those principles and rules of action, relating to government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgements and decrees of the courts recognizing, affirming, and enforcing such usages and customs." (1 Kent, Comm. 492; Western Union Tel. Co. v. Call Pub. Co., 21 S.ct 561, 181 U.S. 92, 45 L.Ed. 765; Barry v. Port Jervis, 72 N.Y.S. 104, 64 App. Div. 268; U.S. v. Miller, D.C.Wash. 236F 798, 800.)

Stated Justice Brewer in State of Kansas v. State of Colorado, 206 U.S. 46 (1907):

"It has been said that there is no common law of the United States as distinguished from the common law of the several states. This contention was made in Western U. Teleg. Co. v. Call Pub. Co. 181 U.S. 92, 45 L. ed. 765, 21 Sup. Ct. Rep. 561, in which it was asserted that, as Congress, having sole jurisdiction over interstate commerce, had prescribed no rates for interstate telegraphic communications, there was no limit on the power of a telegraph company in respect thereto. After referring to the general contention, we paid (pp. 101, 102, L. ed. pp. 770, 771, Sup. Ct. Rep. pp. 564, 565):

'Properly understood, no exceptions can be taken to declarations of this kind. There is no body of Federal common law separate and distinct from the common law existing in the several states in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several states. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. . . . Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment.'

"What is the common law? Kent says (vol. 1, p. 471):

'The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature.'

"As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes."