Black's Law Dictionary,
Sixth Edition, p. 276:
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."
[Black's Law Dictionary,
Sixth Edition, p. 276]
U.C.C 1-103.6 Anderson Uniform Commercial Code, Third Edition (1981), Lawyers’ Cooperative Publishing Company
“The Code is complimentary to the Common Law, which remains in force, except where displaced by the code. A statute should be construed in harmony with the Common Law, unless there is a clear legislative intent to abrogate the Common Law.”
[U.C.C. 1-103.6 Anderson Uniform Commercial Code, Third Edition (1981), Lawyers’ Cooperative Publishing Company]
"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)]
"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes." "There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." 124 U.S. 478.
[United States v. Wong Kim Ark, 169 U.S. 649 ( 1898)]
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)]
Sloan Estate (1935), 7 C.A.2d.
319, 46 P.2d 1007
"It is not presumed that common law
is repealed by statutory or constitutional provision unless language
naturally leads to the conclusion."
[Sloan Estate (1935), 7 C.A.2d 319,
46 P.2d 1007]
Gray v. Sutherland (1954),
124 C.A.2d 280, 268 P.2d. 754
"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]
Apple Estate (1885), 66
Cal. 432, 6 P. 7.
"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]
Willis v. Wozencraft (1863),
22 Cal. 607
"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.]
People v. Folsom (1855),
5 C. 373.
"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]
Van Maren v. Johnson (1860),
15 C. 308
"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]
Sears v. Majors (1930), 104 Ca. 60, 285 P. 321
"Our statutes are presumed to state common
law rule unless they expressly otherwise declare."
[Sears v. Majors (1930), 104 Ca. 60, 285 P. 321]
Bryan v. Banks (1929), 98
C.A. 748, 277 P. 1075.
"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]
People v. Richardson (1934),
138 C.A.. 404, 32 P.2d 433
"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]
Sahlender Estate (1948),
89 C.A.2d. 329, 339, 201 P.2d 69
"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]
Renton Estate (1892), 3
Cof. 519
"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]
Johnson v. Fall (1856),
6 C. 359, 65 Am.Dec. 518
"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]
Burlingame v. Traeger (1929),
101 C.A. 365, 281 P. 1051.
"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]
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