We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. It may be objected that this is a merely external and superficial view of the matter. General law, it may be argued, is so called because it is common to the whole realm and to all persons in it, while special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth, but it falls short of a logical analysis of the distinction in question. It is true that the general law is usually wider in its application than special law. It is chiefly for this reason, indeed, that the former is, while the latter is not, deemed worthy of judicial notice. But we have here no logical basis for a division of the legal system into two parts. Much of the general law itself applies to particular classes of persons only. The law of solicitors, of auctioneers, or of pawnbrokers, is of very restricted application; yet it is just as truly part of the ordinary law of the land as is the law of theft, homicide, or libel, which applies to all mankind. The law of the royal prerogative is not special law, by reason of the fact that it applies only to a single individual; it is a constituent part of the general law. On the other hand, mercantile usage is dependent for its legal validity on its generality; it must be the custom of the realm, not that of any particular part of it; yet until, by judicial proof and recognition, it becomes entitled for the future to judicial notice, it is the special law merchant, standing outside the ordinary law of the land. The law of bills of exchange is no more general in its application now, than it ever was; yet it has now ceased to be special, and has become incorporated into the general law. The element of truth involved in the argument now under consideration is no more than this, that the comparative generality of their application is one of the most important matters to be taken into consideration in determining whether judicial notice shall or shall not be granted to rules of law.
§ 12. Common Law.
The term common law is used by English lawyers with unfortunate diversities of meaning. It is one of the contrasted terms in at least three different divisions of the legal system:
1. Common law and statute law.—By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation. It is the unenacted law that is produced by custom or precedent, as opposed to the enacted law made by Parliament or subordinate legislative authorities.
2. Common law and equity.—In another sense common law means the whole of the law (enacted or unenacted) except that portion which was developed and administered exclusively by the old Court of Chancery, and which is distinguished as equity.[[20]] It is in this sense, for example, that we speak of the Court of King’s Bench or Exchequer as being a court of common law.
3. Common law and special law.—In yet a third sense common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special law, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved.
The expression common law (jus commune) was adopted by English lawyers from the canonists, who used it to denote the general law of the Church as opposed to those divergent usages (consuetudines) which prevailed in different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom.[[21]] This canonical usage must have been familiar to the ecclesiastical judges of the English law courts of the twelfth and thirteenth centuries, and was adopted by them. We find the distinction between common law and special law (commune ley and especial ley) well established in the earliest Year Books.[[22]] The common law is the ordinary system administered by the ordinary royal courts, and is contrasted with two other forms of law. It is opposed, in the first place, to that which is not administered in the ordinary royal courts at all, but by special tribunals governed by different systems. Thus we have the common law in the Court of King’s Bench, but the canon law in the Ecclesiastical Courts, the civil law in the Court of Admiralty, and, at a later date, the law which was called equity in the Court of Chancery.
In the second place the common law was contrasted with those various forms of special law which were recognised even in the King’s ordinary courts in derogation of the general law of the land. Thus it is opposed to local custom (la commune ley and le usage del pays);[[23]] to the law merchant (la commune ley and la ley merchaunde);[[24]] to statute law;[[25]] and to conventional law (specialis conventio contra jus commune).[[26]] The opposition of common and statute law is noteworthy. Statute law is conceived originally as special law, derogating from the ordinary law of the King’s courts. It was contra jus commune, just as contracts and local customs and the law merchant were contra jus commune. Such a point of view, indeed, is not logically defensible. A public and general statute does not bear the same relation to the rest of the law as a local or mercantile custom bears to it. Logically or not, however, statutes were classed side by side with the various forms of special law which derogated from the jus commune. Hence the modern usage by which the common law in one of its senses means unwritten or unenacted law, as opposed to all law which has its origin in legislation.
§ 13. Law and Equity.
Until the year 1873 England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or merely as law and equity (using the term law in a narrow sense as including one only of the two systems). The common law was the older, being coeval with the rise of royal justice in England, and it was administered in the older Courts, namely the King’s Bench, the Court of Common Pleas, and the Exchequer. Equity was the more modern body of legal doctrine, developed and administered by the Chancellor in the Court of Chancery as supplementary to, and corrective of, the older law. To a large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that equity follows the law (Aequitas sequitur legem); that is to say, the rules already established in the older courts were adopted by the Chancellors and incorporated into the system of equity, unless there was some sufficient reason for their rejection or modification. In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. The same case would be decided in one way, if brought before the Court of King’s Bench, and in another, if adjudged in Chancery. The Judicature Act, 1873, put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity, and by the consequent fusion of the two systems into a single and self-consistent body of law.