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What is the Common Law? Historically, the Common Law came from the
Anglo-Saxon Common Law in England. It existed, and controlled and
ruled the land of England previous to the reign of William the Conqueror
[1066], when the Normans conquered Anglo-Saxon England. In it was
the Golden Rule that in the negative form reads: "Do not unto
others as you would not have others do unto you."
Where did this law come from, this Anglo-Saxon Common Law? Did it
come from Christianity's introduction to England? Apparently not.
. . It is on record in the Vatican --- The early Christian missionaries
reported that the people of Northern Germany "already have
the law". It is suspect that early Hebrew tin traders taught
these people the law many years before Christ.
So what has happened? The English people had this simple and pure
Common Law of rights and property rights. But there also existed
along side of it, even in those days, the law of commerce, which
is maritime-admiralty law.
"That which derives its force and authority from the universal consent and immemorial practice of the people." Bouvier's Law Dictionary, 1856
1.It has never received the sanction of
the parliament, by an express act, which is the criterion
by which it is distinguished from the statute law. It has never
been reduced to writing, codification or enactments by this expression,
however, it is not meant that all those laws are at present merely
oral, or communicated from former ages to the present solely by
word of mouth, but that the evidence of our common law is contained
in our books of Reports, and depends on the general practice and
judicial adjudications of common law courts.
2. The common law is derived from two sources,
the common law of England, [Canada is a Anglo-Saxon Common Law country,
where the people are sovereign] and the practice and decision of
common law courts. In some states the English common law has said
to been adopted by statute. There is no general rule to ascertain
what part of the English common law is valid and binding. To run
the line of distinction, is a subject of embarrassment to courts,
and the want of it a great perplexity to the student. It may, however,
be observed generally, that it is binding as it has not
been superseded in Canada, or by any parliament enactments, or varied
by custom, and where it is founded in reason and consonant to the
genius and manners of the people.
3. The “common law” here mentioned
is the common law of England, and not of any particular province;
such is in contradistinction to equity, admiralty, and maritime
law.
In every province with the exception of Quebec, the common law of the people has been preserved. The common law distinguishes itself from the equity, admiralty, and maritime law, as it has never been codified or enacted.
The common law is derived from the people themselves, and the precedents - stare decisis - -of the common law juries under authority of common law. Common law has two tenets for all to observe, do no harm and honor all contracts. There have been attempts to codify the common law via statutes but the glaring error is that a statute is the will of the parliament and not the people. We, the people had no part nor parcel in creating statute law therefore law such as this belongs to its creators. It is only applicable to the people under the authority of common law, IF it is accepted, and IF it passed by parliament, received a royal assent and was published in the Canada Gazette. The oxymoron is that few statute laws go though this process, for example the Canadian Criminal Code and the Income Tax Act are not the will of parliament as they have never went through this process, plus they are copywritten.
The Canadian Bill of Rights is one exception as it was lawfully passed by Parliament, assented to 10th August 1960 and published in the Canada Gazette. It is one of the few examples of statute law that is the express will of the parliament.
STATUTE.
The written will of the parliament solemnly
expressed according to the forms prescribed in the constitution;
an act of the parliament.e.g.Canadian Bill of Rights. This
word is used in contradistinction to the common law.
Statutes acquire their force from the time of their passage unless
otherwise provided. It is a general rule that when the provision
of a statute is general, everything necessary to make such provision
effectual is supplied by the common law; and when
a power is given by statute, everything necessary
for making it effectual is given by implication.
[to involve or connect , consent of the people]
The Bill of Rights is the hall-mark of freedom is a recognition
of the sacred personality of man. Legislation cannot do
everything, but I am sure that few Canadians will deny that this
is not only a first step in the right direction, but a very important
first step and one that will take its place among the outstanding
achievements for the maintenance and preservation of human liberty
in Canada. Of even the great Magna
Charta one of the most illustrious historians, Professor George
M. Trevelyan, has said: "It was a very short step, but it was
the first, and it is the first step that counts .... It was the
abstract and general character of the event at Runnymede
that made it a great influence in history."
What will a Canadian Bill of Rights do? It will
declare that the following rights and freedoms are in existence
and that no Act of the Parliament of Canada in the past or in the
future (subject to the security demands of war)
shall be permitted to interfere with them:
(a) The right of the individual to life, liberty, security of person
and enjoyment of property and the right not to be deprived thereof
except by due process of law
(b) The right of the individual to protection of the law without
discrimination by reason of race, national origin, colour, religion
or sex;
(c) Freedom of religion;
(d) Freedom of speech;
(e) Freedom of the press.
It will be a contract between the individuals of Canada
and the Government of Canada. It will assert the right
of the individual and the right of a minority to be protected in
the exercise of its rights against the majority. It will, above
all, assure that each of us will have a legal right to be heard
in the courts of this country. It will make Parliament freedom-conscious.
It will make Parliament realize that rights are to be preserved.
It will make Parliament more cautious in passing laws that would
have the effect of interfering with freedom. It will act as a landmark
by means of which Canadians through Parliament will have re-declared
those spiritual things which have made Canada great.
A Common law maxim is an established principle.
A principle of common law universally admitted, as being just and
consonant with common sense and reason. They are principles and
authorities, and part of the general customs or common law
of the land; and are of the same strength as acts of parliament.
Maxims of the common law are holden for common law, and all other
cases that may be applied to them shall be taken for granted
One who exercises jurisdiction out of his territory is not obeyed with impunity.
An act done by me against my will, is not my act.
Out of fraud no action arises.
No right of action can have its origin in fraud.
It is a fraud to conceal a fraud.
Fraud is odious and not to be presumed.
Fraud and deceit should excuse no man.
Fraud and justice never agree together.
Fraud lies hid in general expressions.
Fraud deserves fraud.
The agreement of the parties makes the law of the
contract.
A contract founded on a base and unlawful consideration, or against
good morals, is null.
The agreement of the parties overcomes or prevails against the law.
Consent makes the law. A contract is a law between
the parties, which can acquire force only by consent.
.
Consent removes or obviates a mistake.
There should be no departure from common observance or usage.
No one is bound to do what is impossible.
From the words of the law there must be no departure.
The absence of him who is employed in the service of the state,
ought not to be burdensome to him nor to others.
An absolute unqualified sentence or proposition, needs no expositor.
Abundant caution does no harm.
An accessary follows the nature of his principal.
.
The accessory does not lead, but follow its principal.
No one ought to accuse himself, unless before God.
External actions show internal secrets.
An action is not given to him who has received no damages.
A personal action dies with the person. This must be understood
of an action for a tort only.
He ought not to be heard who advances a proposition contrary to
the rules of law.
The plaintiff must follow the forum of the thing in dispute.
When the plaintiff does not prove his case, the defendant is absolved.
The act of God does no injury; that is, no one is responsible for
inevitable accidents.
An act already begun, the completion of which depends upon the will
of the parties, may be recalled; but if it depend on the consent
of a third person, or of a contingency, it cannot be recalled.
An act does not make a person guilty, unless the intention be also
guilty. This maxim applies only to criminal cases; in civil matters
it is otherwise.
Acts required by law to be done, admit of no qualification.
The act of the law does no one an injury.
The antecedent bears relation to what follows next, unless it destroys
the meaning of the sentence.
The judges do not answer to questions of fact; the jury do not answer
to questions of law.
The estimation of a crime committed never increased from a subsequent
fact.
A hidden ambiguity of the words is supplied by the verification,
for whatever ambiguity arises concerning the deed itself is removed
by the verification of the deed.
.
The water yields or accompanies the soil. The grant of the soil
or land carries the water.
Water runs and ought to run.
What is good and equal, is the law of laws.
The proof lies upon him who affirms, not on him who denies.
To conceal is one thing, to be silent another.
An alternate petition is not to be heard.
It is to the intention that all law applies.
The intention of the party is the soul of the instrument.
Points of law are not laws.
An award is a judgment.
An argument from the greater to the less is of no force negatively;
conversely it is.
An argument arising from a division is most powerful in law.
An argument drawn from what is inconvenient is good in law, because
the law will not permit any inconvenience.
An argument deduced from authority great avails in law.
An argument drawn from authority is the strongest in law.
An argument drawn from a similar case, or analogy, avails in law.
.
A twisting of language is unworthy of a judge.
Natural equity or good faith do no allow us to demand twice the
payment of the same thing.
It is the duty of a good judge to remove the cause of litigation.
The good of a defendant arises from a perfect case, his harm from
some defect.
Necessary good is not good beyond the bounds of necessity.
A fortuitous event is not to be foreseen, and no person is held
bound to divine it.
A case omitted and given to oblivion is left to the disposal of
the common law.
Chattels justly possessed cannot be lost.
Chattels are considered in law among the minor things.
The immediate, and not the remote cause, is to be considered.
Caveat emptor.Let the purchaser beware.
The cause ceasing, the effect must cease.
It is the crime which causes the shame, and not the scaffold.
A charter or deed of a thing not in being, is not valid.
A deed or bond found with the debtor is presumed to be paid.
Circuity is to be avoided.
Unusual clauses always induce a suspicion.
A clause in a law which precludes its abrogation, is invalid from
the beginning.
A useless clause or disposition is not supported by a remote presumption,
or by a cause arising afterwards.
No one is punished for merely thinking of a crime.
No man ought to derive any benefit of his own wrong.
A common error makes law. What was at first illegal, being repeated
many times, is presumed to have acquired the force of usage, and
then it would be wrong to depart from it. The converse of this maxim
is communis error no facit just. A common error does not make law.
A confession made in court is of greater effect than any proof.
No one can confirm before the right accrues to him.
A confirmation is null where the preceding gift is invalid.
The union of a man and a woman is of the law of nature.
Consent, not lying together, constitutes marriage.
Those consenting and those perpetrating are embraced in the same
punishment.
A consequence ought not to be drawn from another
consequence.
Advice, unless fraudulent, does not create an obligation.
A custom introduced against reason ought rather to be calledan usurpation
than a custom.
The construction of law works not an injury.
A custom ought to be certain.
Custom is the best expounder of the law.
Custom is another law.
The custom of the place is to be observed.
A prescriptive and legitimate custom overcomes the law.
Custom once disallowed cannot again be produced.
Custom leads the willing, law, law compels or draws the unwilling.
.
An issue requires terms of contradiction; that is, there can be
no issue without an affirmative on one side and a negative on the
other.
A contemporaneous exposition is the best and most powerful in the
law.
There is no disputing against or denying principles.
No prescription runs against a person unable to act.
The law never suffers anything contrary to truth.
.
But sometimes it allows a conclusive presumption in opposition to
truth.
Coupling words together shows that they ought to be understood in
the same sense.
A personal injury does no receive satisfaction from a future course
of proceeding.
Every one should be believed skillful in how own art.
He who receives the benefit should also bear the disadvantage.
He who has a right to give, has the right to dispose of the gift.
Whoever pays by mistake what he does not owe, may recover it back;
but he who pays, knowing he owes nothing; is presumed to give.
He who owns the soil, owns up to the sky.
Which ever of two parties has the division, the other has the choice.
The principal part of everything is the beginning.
A fault finds its own.
It is a fault to meddle with what does not belong to or does not
concern you.
Let the punishment be proportioned to the crime.
A concealed fault is equal to a deceit.
He to whom the people is father, has not a father.
One making a voluntary confession, is to be dealt with more mercifully.
When two things repugnant to each other are found in a will, the
last is to be confirmed.
Children born under a legitimate marriage follow the condition of
the father.
When the proofs of facts are present, what need is there of words.
A curious and captious interpretation in the law is to be reproved.
Time runs against the slothful and those who neglect their rights.
The practice of the court is the law of the court.
Of the credit and duty of a judge, no question can arise; but it
is otherwise respecting his knowledge, whether he be mistaken as
to the law or fact.
The judges answer to the law, the jury to the facts.
The law does not notice or care for trifling matters.
When the death of a human being may be the consequence, no delay
is long.
When the question is on the life or death of a man, no delay
is too long to admit of inquiring into facts.
The reason is the same respecting things which do not appear, and
those which do not exist.
From similars to similars, we are to proceed by the same rule.
Concerning similars the judgment is the same.
There ought to be an end of law suits.
Every one ought to be subject to the law of the place where he offends.
Where there is a weak foundation, the work falls.
Debts follow the person of the debtor.
A debtor is not presumed to make a gift.
Debt and contract are of no particular place.
A delegated authority cannot be again delegated.
A delegate or deputy cannot appoint another.
The power which is derived cannot be greater than that from which
it is derived.
To derogate from a law is to enact something contrary to it; to
abrogate a law, is to abolish it entirely.
The appointment or designation of one is the exclusion of another;
and that expressed makes that which is implied cease.
Sunday is not a day in law.
The day of undertaking or commencement of the business is held as
complete.
A day uncertain is held as a condition.
Delays in law are odious.
Unequal things ought not to be joined.
A dispensation is a wound which wounds a common right.
Of dissimilars the rule is dissimilar.
It is a guess not interpretation which altogether departs from the
letter.
A deceiver deals in generals.
The fraud of a possessor does not prejudice the successor.
Fraud is not purged by circity.
Every man’s house is his castle.
The habitation of each one is an inviolable asylum for him.
A gift is rendered complete by the possession of the receiver.
A gift is not presumed.
He that gives never ceases to possess until he that receives begins
to possess.
The laws sometimes sleep, but never die.
Dower ought not to be sought from dower.
It is not lawful to have two wives at one time.Two cannot possess
one thing each in entirety.
It is not allowed to double a possibility.
That interpretation is to be received, which will not intend a wrong.
The burden of the proof lies upon him who affirms, not he who denies.
To whom nothing is base, nothing is sufficient.
He who may consent tacitly, may consent expressly.
He who has the risk has the dominion or advantage.
When there is concurrence of means, he who has chosen one cannot
have recourse to another.
Election once made, and plea witnessed, suffers not a recall.
Elections should be made in due form and freely, without any interruption.
Enumeration affirms the rule in cases not enumerated.
Equality is equity.
Equity suffers not a right without a remedy.
Equity looks upon that as done, which ought to be done.
Error artfully colored is in many things more probable than naked
truth; and frequently error conquers truth and reasoning.
Error of law is injurious.
An error not resisted is approved.
An error made by a clerk ought not to injure; a clerical error may
be corrected.
To refer errors to their origin is to refute them.
Violence may also put on the mask of law.
The best interpretation is made from antecedents and consequents.
From length of time, all things are presumed to have been done in
due form.
Law arises out of fact; that is, its application must be to facts.
A contract cannot arise out of an act radically wrong and illegal.
From the great number of signs true identity may be ascertained.
.
No actions arises on a naked contract without a consideration.
The construction or resolution should arise out of the whole subject
matter.
No action arises out of an immoral consideration.
No action arises on an immoral contract.
From one thing you can discern all.
A wrong in capital cases is excused or palliated which would not
be so in civil matters.
There can be no plea of that thing of which the dissolution is sought.
A false plea is the basest of all things.
The exception affirms the rule in contrary cases.
The exception affirms the rule in cases not excepted.
There can be no plea against an action which entirely destroys the
plea.
An exception proves the rule concerning things not excepted.
The exception also declares the rule.
An exception is always to be put last.
An execution is the end and the first fruit of the law.
The execution of the law causes no injury.
Examples illustrate and do not restrict the law.
It is for the public good that there be an end of litigation.
Things expressed may be prejudicial; things not expressed are not.
The expression of those things which are tacitly implied operates
nothing.
The expression of one thing is the exclusion of another.
What is expressed renders what is implied silent.
One out of the pale of the law, (an outlaw,) is civilly dead.
Facts are more powerful than words.
An act of a judge which does not relate to his office, is of no
force.
Negative facts are not proof.
It cannot be called a deed which does not hold out or persevere.
The deed of one should not hurt the other.
The faculty or right of offering proof is not to be narrowed.
A false or mistaken description does not vitiate.
False spelling or false grammar do not vitiate a grant.
False in one thing, false in everything.
Let justice be done, though the heavens should fall.
Felony is included or implied in every treason.
The hurrying of justice is the stepmother of misfortune.
Let it be done as formerly, let nothing be done rashly.
.
Fiction is against the truth, but it is to have truth.
The end of a thing is to be attended to.
The end puts an end to litigation.
The end of one day is the beginning of another.
The disposition of law is firmer and more powerful than the will
of man.
Rivers and ports are public, therefore the right of fishing there
is common to all.
A forestaller is an oppressor of the poor, and a public enemy to
the whole community and the country.
The custody of the law is stronger than that of man.
The disposition of the law is stronger and more powerful than that
of man.
Hanging fruits make part of the land.
Gathered fruits do not make a part of the house.
The power which never comes to be exercised is vain.
Laws are made to no purpose unless for those who are subject and
obedient.
Vainly does he who offends against the law, seek the help of the
law.
Vainly you ask that which you will immediately be compelled to restore
to another.
It is vain to prove that which if proved would not aid the matter
in question.
The insane is compared to the absent.
A madman is punished by his madness alone.
It is not theft where the commencement of the detentionarises through
the owner of the thing.