1446. COMMON LAW, Origin of.—
The term “common law,” although it has more
than one meaning, is perfectly definite, secundum
subjectam materiem. Its most probable
origin was on the conquest of the Heptarchy
by Alfred, and the amalgamation of their several
codes of law into one, which became common
to them all. The authentic text of these
enactments has not been preserved; but their
substance has been committed to many ancient
books and writings, so faithfully as to have
been deemed genuine from generation to generation,
and obeyed as such by all. We have
some fragments of them collected by Lambard,
Wilkins and others, but abounding with
proofs of their spurious authenticity. Magna
Charta is the earliest statute, the text of
which has come down to us in an authentic
form, and thence downward we have them
entire. We do not know exactly when the
common law and statute law, the lex scripta
et non scripta, began to be contra-distinguished,
so as to give a second acceptation
to the former term; whether before, or after
Prisot's day, at which time we know that
nearly two centuries and a half of statutes
were in preservation. In later times, on the
introduction of the chancery branch of law,
the term common law began to be used in a
third sense as the correlative of chancery law.—
To Edward Everett. Washington ed. vii, 382.
(M.
1824)
