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 COMMON LAW 147 ecclesiastical courts of England. It is in the last sense that it is commonly understood in the United States, yet with some modifications, growing out of its limited application under our peculiar political organization. In all the states except Louisiana the common law has been received, hut this has been understood not to include statutes, except so far as they had by their antiquity become merged in the common law, or had been recognized by colo- nial legislation or by general usage. The gene- ral course has been to re&nact the English statutes which it was deemed important to re- tain. In some of the states, however, many of the statutes have been admitted as having acquired legal validity without such reenact- ment. The ecclesiastical administration of law is also excluded, but this has been chiefly by a statutory establishment of courts in which the ecclesiastical has been united with civil jurisdiction. The principles of the canon law, with that exception, have remained in force in this country so far as they had become part of the common law. In the exposition of the subject it will be proper to consider it in a two- fold aspect, viz. : the development of the com- mon law from its primary sources, and the pecu- liar principles by which it is distinguishable from other systems of law. The first branch of our inquiry is deeply interesting, as con- taining the true history of the English people, and thus illustrating the chief element of our own nationality. No other modern European nation has produced for itself an entire system of law. The Roman is the basis of all con- tinental jurisprudence, and in some countries, as Italy and some of the German states, is still in full force as an original authority, modified only by political changes and local usages, which, however, have a similar relation and as limited a proportion to the original as the statutory has to the common law in England. In other countries, as Spain, it has been digest- ed in common with the modern additions, but this does not supersede a reference to the original source for the resolution of any diffi- cult questions ; and lastly, in other countries, as France, Prussia, and Austria, it has been reconstructed into the form of a code, though it still furnishes the elementary principles, legal language, modes of reasoning, and in general the forms of proceedings of all these compilations. On the other hand, whatever foreign element may have been intermingled with the English law has been assimilated by a process that may be compared to chylification in the animal system. The primitive constitu- ent of this law may be safely assumed to be the Saxon. Nothing can be traced from the Brit- ons, either of local usages or of the Roman law as administered while they were subject to the imperial government. Whatever has been de- rived from the latter source was introduced long afterward, and chiefly through the Nor- mans. The very language which we may sup- pose to have been spoken by the common peo- ple when Britain was a Roman province was lost, or is to be traced only in Wales and Brit- tany. Sir John Fortescue, who wrote in the reign of Henry VI., in his zeal to magnify the common above the civil law, maintained that the former was the more ancient, for that the customs upon which it was founded had exist- ed from the earliest period, without interrup- tion by the Roman, Saxon, Danish, and Nor- man conquests ; and Selden, in his notes upon Fortescue, does not dispute the assertion, further than that he says customs were also introduced by the Saxons, Danes, &c. Coke also asserts that the common laws of England were of greater antiquity than any other human laws (Pref. 2d Reports), and quotes the opinion of Fortescue at full length (Pref. 6th Rep.). This extravagant hypothesis is worthy of mention only as an illustration of the singular partiality of the English mind for whatever was of na- tive origin, and the prejudice existing at every period against whatever was of foreign growth. In estimating the proportion that Saxon usages contributed in the formation of English law, it would be too limited a view if we should take into account only the records now extant of particular laws and forms of proceedings. These records are imperfect, and even if we had the entire body of laws so far as they were ever reduced to writing, it would furnish but a part of what then existed and was perpetuated, and again it would be leaving out the self- developing power inherent in the habits of the people. The nation continued to be essentially Saxon even after the Norman conquest. The tenure of real estate was indeed radically changed by the introduction of the feudal laws, yet with steady perseverance the middle class gradually obtained amelioration of that system, and ingrafted upon it many peculiar rules and forms congenial with the national character. So the Norman sovereigns under- took to revolutionize the whole judicial ad- ministration. The aula regis, consisting of the king and council, sought to convoke to itself the judicial business, which had before been chiefly transacted in the Saxon county courts, presided over by a sheriff and bishop. The Norman language was introduced as the law language at least of the aula regis, and of the superior courts into which that tri- bunal was subsequently resolved, and Nor- man lawyers and judges sought to introduce the forms of practice and even rules of de- cision to which they had been accustomed. Yet in spite of these disadvantages, Saxon cus- toms still maintained their hold of the people. Terms were invented in Norman phraseology to express many of the judicial proceedings. The pleadings were indeed in Latin, but trials were conducted and decisions reported in the Norman. But underlying these exterior forms can be seen the same principles of right which constitute the earlier law of the country, and the administration of justice was still in fact practically in accordance with Saxon