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LECTURES ON LAW,
DELIVERED IN THE
COLLEGE OF PHILADELPHIA,
IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY, AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.
OF THE COMMON LAW.
SAPIENTISSIMA res tempus," says the profound Lord Bacon, in one of his aphorisms concerning the augmentation of the sciences-Time is the wisest of things. If the qualities of the parent may, in any instance, be expected in the offspring; the common law, one of the noblest births of time, may be pronounced the wisest of laws.
This law has, at different times, and for different reasons, been denominated by different appellations. It is sometimes called, by way of eminence, the law of the land, "lex terræ." At other times, it is called the law of England. At other times again, it is called the law
a 1. Ld. Bacon. 252. Aph. 32.
and custom of the kingdom. But its most general and best known appellation is, the common law. Various are the reasons, which have been assigned for this appellation: the best seems to be this-that it is the common
municipal law or rule of justice; the law which is described in the code of king Edward the elder, as expressing the same equal right, law, or justice, due to persons of all degrees.c
The term common law is not confined to the law of England: It is not, says Sir Henry Finch, a word new and strange, or barbarous, and proper to ourselves, and the law, which we profess, as some unlearnedly would have it: it is the proper term for other laws also. Euripides mentions the common laws of Greece; and Plato defines common law in this manner: that which, being taken up by the common consent of a country, is called law. In another place, he names it, the golden and sacred rule of reason, which we call common law.
This place, continues the same author, in his discourse of law, is very notable: it opens the original and first beginning of the common law: it shows the antiquity of the name; it teaches common law to be nothing else but common reason-that refined reason, which is generally received by the consent of all,
The antiquity of the common law of England is unquestionably very high. It is worth while to listen to what may be deemed the prejudices-certainly the pardonable ones-of its fond admirers, upon a point so interesting to their partiality.
Hale. Hist. 55.
El Jur. (4to.) 94.
d Finch. 74. 75.