CHAPTER X ESTABLISHMENT OF UNENACTED LAW IN THE UNITED STATES Evolution of the Common Law. In the case of Jacob v. State,' decided in 1842 by the Supreme Court of Tennessee, Justice Turley said: The common law has been aptly called the "lex non scripta," because it is a rule prescribed by the common consent and agreement of the community, as one applicable to its different relations, and capable of preserving the peace, good order, and harmony of society, and rendering unto everyone, that which of right belongs to him. Its sources are found in the usages, habits, manners and customs of a people. Its seat is in .the breast of the judges who are its expositors and expounders. Every nation must of necessity have its common law, let it be called by what name it may, and it will be simple or complicated in its details, as society is simple or complicated in its relations. A few plain and practical rules will do for a wandering horde of savages, but they must and will be much more extensively ramified when civilization has polished, and commerce, and arts and agriculture enriched a nation. The common law of a country will, therefore, never be entirely stationary, but will be modified, and extended by analogy, construction and custom, so as to embrace new relations, springing up from time to time, from an amelioration or change of society. 13 Humphrey (Tenn.) Rep., 493, 514. The present common law of England is as dissimilar from that of Edward the 3d, as is the present state of society. And we apprehend that no one could be found to contend that hundreds of principles, which have in more modern times, been examined, argued and determined by the judges, are not principles of the common law because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their repositories, because the occasion that called for their exposition, had not arisen. The common law, then, is not like the statute law, fixed, and immutable but by positive enactment, except where a principle has been adjudged as the rule of action. Chancellor Kent says in his Commentaries:1 The common law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received, from time to time, the sanction of our courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the common law of England is not the product of some one man, or society of men, in any one age, but of the wisdom, counsel, experience, and observation of many ages of wise and observing men. In the case of People v. Randolph,' decided by the Supreme Court of New York in 1855, Justice Greene said: 12 Kent Comm., 471. 22 Farker (N. Y.) Crim. Rep., 174. The common law consists of those principles and maxims, usages, and rules of action which observation and experience of the nature of man, the constitution of society, and the affairs of life have commended to enlightened reason, as best calculated for the government and security of persons and property. Its principles are developed by judicial decisions as necessities arise from time to time demanding the application of those principles to particular cases in the administration of justice. The authority of its rules does not depend upon positive legislative enactment, but upon the principles which they are designed to enforce, the nature of the subject to which they are to be applied, and their tendency to accomplish the ends of justice. It follows that these rules are not arbitrary in their nature nor invariable in their application, but, from their nature as well as the necessities in which they originate, they are and must be susceptible of a modified application suited to the circumstances under which that application is to be made. The principles of the common law, as its theory assumes and its history proves, are not exclusively applicable or suited to one country or condition of society, but on the contrary, by reason of their properties of expansibility and flexibility their application to many is practicable. In the case of Sayward v. Carlson,' decided in 1890 by the Supreme Court of the State of Washington, Justice Stiles described the evolution of the common law in England and in America as follows: The common law grew with society, not ahead of it. As society became more complex, and new demands were made upon the law by reason of new circumstances, the courts originally, in England, out of the storehouse of reason and good sense, declared the "common law." But since courts have had an existence in America they have never hesitated I Washington Rep., 29, 40. I |