Common law.  As distinguished form statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs and, in this sense, particularly the ancient unwritten law of England.  In general, it is a body of law that develops and derives through judicial decisions, as distinguished form legislative enactments.  The "common law" is all the statutory and case law background of England and the American colonies before the American revolution.  People v. Rehman, 253 C.A.2d 119, 61 Cal.Rptr. 65, 85.  It consists of those principles, usage and rules of action applicable to 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.  Bishop v. U.S., D.C.Tex., 334 F.Supp. 415, 418.

Calif. Civil Code, Section 22.2, provides that the "common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."

In a broad sense, "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs.

For federal common law, see that title.

As a compound adjective "common-law" is understood as contrasted with or opposed to "statutory," and sometimes also to "equitable" or to "criminal."

Answers.com:  Federal Common Law

Erie Railroad v. Tompkins, 304 U.S. 64 (1938)

"There is no Federal Common Law, and Congress has no power to declare substantive rules of Common Law applicable in a state.  Whether they be local or general in their nature, be they commercial law or a part of the Law of Torts"
[Erie Railroad v. Tompkins, 304 U.S. 64 (1938)]

New York v. United States, 505 U.S. 144 (1992)

The Constitution gives this Court the power to resolve controversies between the States. Long before Congress [505 U.S. 144, 212]   enacted pollution control legislation, this Court crafted a body of "`interstate common law,'" Illinois v. City of Milwaukee, 406 U.S. 91, 106 (1972), to govern disputes between States involving interstate waters. See Arkansas v. Oklahoma, 503 U.S. 91, 98 -99 (1992). In such contexts, we have not hesitated to direct States to undertake specific actions. For example, we have "impose[d] on States an affirmative duty to take reasonable steps to conserve and augment the water supply of an interstate stream." Colorado v. New Mexico, 459 U.S. 176, 185 (1982) (citing Wyoming v. Colorado, 259 U.S. 419 (1922)). Thus, we unquestionably have the power to command an upstate stream that is polluting the waters of a downstream State to adopt appropriate regulations to implement a federal statutory command.

With respect to the problem presented by the case at hand, if litigation should develop between States that have joined a compact, we would surely have the power to grant relief in the form of specific enforcement of the take-title provision. 3 Indeed, even if the statute had never been passed, if one State's radioactive waste created a nuisance that harmed its neighbors, it seems clear that we would have had the power [505 U.S. 144, 213]   to command the offending State to take remedial action. Cf. Illinois v. City of Milwaukee, supra. If this Court has such authority, surely Congress has similar authority.

[New York v. United States, 505 U.S. 144 (1992)]

Background on Federal Common Law

US Supreme Court:  United States v. Hudson & Goodwin 

7 Cranch (11 U.S.) 32 (1812), submitted without oral argument, decided 13 Feb. or 14 Mar. 1812 by unknown vote. In this case the Supreme Court put an end to a decade long dispute between Republicans and Federalists by denying the existence of a federal common law of crimes. That ruling remains good law today.

Barzillai Hudson and his codefendant George Goodwin were indicted in federal court in 1806 and 1807 for common law seditious libel, for publishing a report that President Thomas Jefferson had conspired with Napoleon Bonaparte. Federal courts had for some time been upholding common law convictions, but Republicans—who had won both the Congress and the presidency for the first time in 1800—had long insisted that federal courts had no constitutional power to create or enforce common law crimes. The dispute over the common law of crimes had its roots in the most fundamental disagreement between Republicans and Federalists: Republicans generally denied that any branch of the federal government had any power not explicitly granted by the Constitution.

By 1812, when the Hudson case reached the Supreme Court, Republican appointees comprised a majority. The Court dismissed the indictments, holding that no federal court could exercise common law jurisdiction in criminal cases. The majority opinion, authored by Justice William Johnson, rested on the Republican principle that federal courts derive their powers solely from the Constitution and the Congress and have no residual jurisdiction. No dissents are recorded, but it is probable that Chief Justice John Marshall and Justices Bushrod Washington and Joseph Story dissented.

See also Federal Common Law.

Tennessee v. Davis, 100 U.S. 257, 1879 WL 16560 U.S. (1879):

"[Footnote 18] Federal courts have no common-law jurisdiction in criminal cases, nor can such courts proceed to try or punish any offender, except when authorized by an act of Congress, passed in pursuance of the Constitution. State of Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 563; United States v. Worral , 2 Dall. 384, 393; Cooley, Const. Lim. (4th ed.) 26; Ex parte Bollman, 4 Cranch, 75, 98."

[Tennessee v. Davis, 100 U.S. 257, 1879 WL 16560 U.S. (1879)]

"Common law is not repealed by a statute by implication or otherwise if there is not repugnance between it and statute and if it does not appear that Legislature intended to cover whole subject." Gray v. Sutherland (1954), 124 C.A.2d 280, 268 P.2d 754.

"Provisions of CC [CVC] respecting subjects to which it relates are controlling; but where code is silent, common law governs." Apple Estate (1885), 66 Cal. 432, 6 P. 7.

"Whenever right claimed under the rules of common law is denied, governed, or controlled by principles administered by courts of equity, latter will prevail over the former." Willis v. Wozencraft (1863), 22 Cal. 607.

"There is no common law of United States as contradistinguished from individual states; and courts of the United States, instead of administering common law or any particular system, conform to law of states where they are situated." People v. Folsom (1855), 5 C. 373.

"Common law constitutes basis of our jurisprudence, and rights and liabilities must be determined in accordance with its principles, except so far as they are modified by statute." Van Maren v. Johnson (1860), 15 C. 308.

"Our statutes are presumed to state common law rule unless they expressly otherwise declare." Sears v. Majors (1930), 104 Ca. 60, 285 P. 321.

"Common law is still law of this State, except where expressly modified by statute." Bryan v. Banks (1929), 98 C.A. 748, 277 P. 1075.

"Common law at time state constitution was adopted included whole body of common law of England as it stood at that time, influenced by statute." People v. Richardson (1934), 138 C.A.. 404, 32 P.2d 433.

"In 1850, legislature made rule of common law "rule of decision" in this state except where such common law was "repugnant" or inconsistent with law of this State." Sahlender Estate (1948), 89 C.A.2d. 329, 339, 201 P.2d 69.

"Jurisprudence of California rests exclusively upon common law, which was made rule of decision at time of formation of state government in all cases where not abrogated or modified by statute." Renton Estate (1892), 3 Cof. 519.

"Common law having been adopted as rule of decision in this state, it is duty of courts to enforce it, leaving all questions of its policy for consideration of legislature." Johnson v. Fall (1856), 6 C. 359, 65 Am.Dec. 518.

"Codes of this state were intended to establish law of state respecting subjects to which they relate, so that it is only when code and other statutes are silent that common law governs, under Pol. C. §4468." Burlingame v. Traeger (1929), 101 C.A. 365, 281 P. 1051.

Copyright Family Guardian Fellowship