Common Law Application

When the  Statute Law on a subject is silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.

Common law

The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Case law

The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

With the end of the Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland inherited the throne of England as James I, thereby uniting the two kingdoms in the “union of the crowns.”  At once there was considerable debate concerning the extent of union effected by the succession of the Scottish King to the crown of England.  James, however, considered a regal union alone to be insufficient. Upon his arrival in England, James advocated a closer unity between the laws, institutions, economies, and churches of England and Scotland to protect and strengthen the Stuart dynasty.

In the early years of his reign, James himself led a sizable literary effort advocating a closer union.  Of particular importance were the discussions of naturalization contained in proposals to unite the laws of the two countries, written by both common lawyers and civil lawyers.  Civil lawyers, also known as “civilians,” were a relatively  small group of professionals who studied Roman law–the Corpus Juris Civilis as systematized and interpreted in the twelfth and succeeding centuries by scholars, notably the glossators and, later, the post-glossators or commentators.  Civilians had earned the degree of Doctor of Civil Law at Oxford, Doctor of Laws at Cambridge, or an equivalent degree at a continental university, and their professional practice as lawyers was primarily in the ecclesiastical courts, the High Court of Admiralty, and the High Court of Chivalry. Civil lawyers in the early seventeenth century in England were closely identified with crown interests because they relied on royal patronage for their professional livelihood.

The most pressing question of political debate soon became the legal status of James’s Scottish subjects in England. According to English law, were Scots aliens or were they subjects, capable of possessing and asserting at least some of the rights of English subjects, including holding land and suing in English courts? These political issues were fully debated in Parliament beginning in 1604, but the matter was not settled there.  Instead, the King’s men “determined to settle the point out of Parliament in the regular way, by resorting to the English courts of justice.”

In 1607, two civil suits were initiated in the King’s Bench and Chancery over two estates in England conveyed to a Scottish child, named as Robert “Calvin” in the pleadings, though evidence indicates the child’s true name was Robert “Colville.” Robert was born in Scotland after 1603, the year in which the English throne descended to James. Robert’s guardians, John and William Parkinson, initiated the suits, claiming that Robert had been forcibly dispossessed of both estates. The defendants in the King’s Bench were Nicholas and Robert Smith. Robert Calvin complained that the defendants *82 “unjustly, and without judgment, have disseised him of his freehold in Haggard” (Haggerston, parish of St. Leonard in Shoreditch).  One “Bingley” was the defendant in the Chancery case on a similar writ concerning an estate in Bishopsgate, St. Buttolph’s.  The defendants in both cases responded with a plea “in disability of Robert Calvin’s person” that the writs were inadmissible because Calvin was an alien.  Calvin was an alien, they argued, because he had been born “within [James’s] kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England.”  If Calvin were an alien, he would, according to English law, be unable to be seised of a freehold in England. The defendants’ plea thus made the status of persons born in Scotland after the accession of James I to the throne of England the paramount legal issue.

The two cases were adjourned to the Exchequer Chamber to be heard by all the King’s Bench and Common Pleas justices as well as the Lord Chancellor and barons of the Exchequer. In June 1608, fourteen justices assembled for arguments in the case. Coke reports that “the five judges of the King’s Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than difficulty.”  Serjeants Laurence Hyde and Richard Hutton represented the defendants.James’s own Solicitor General, Francis Bacon, along with Attorney General Henry Hobart, argued the plaintiff’s position on behalf of the crown.  All but two of the justices determined that persons born in Scotland after the accession of James to the throne of England (the postnati, as they were referred to in the case) were to be regarded not as aliens in England but as natural-born subjects, qualified to inherit English land. The postnati as subjects born into the allegiance of James after he became King of England owed their allegiance to the sovereign of England as well as Scotland.  By constrast, the antenati, those born before 1603, were  born into the allegiance of a King with no relation to the English throne. Therefore, unless the antenati were naturalized by statute, these Scottish subjects of James remained aliens as a matter of English law.

In 1605, Sir Thomas Craig, a Scottish lawyer trained in the civil law, wrote about the working of precedent in English customary law. As in Scotland, Craig wrote, judges of English common-law courts “give the first place to the provisions of statutory or Parliament-made law, provided the subject at issue is dealt with, permitted, or prohibited in any statute. . . . If statute law offers nothing to instruct a judicial decision, recourse is had in England to common law.”  This “common” or “customary” law, according to Craig, was the “system of law the English kings at their coronation solemnly promise to respect as unchangeable and inviolable.”  If neither statute nor common law avail “to satisfy the judge,”  then next in order of preference come maxims, local custom, and finally “the precedents set by previous judicial decisions.”  Of these precedents, Craig wrote:

If no guidance can be obtained from custom, general axioms, or prescription, then the precedents set by previous judicial decisions in similar cases, and particularly in the Court of King’s Bench, must be followed, on which fresh cases when they arise must be decided if the circumstances are similar. Against a decision based on precedents there is no effective exception or reply other than proof that the circumstances of the two cases differ; and the smallest detail of difference frequently avails to break down the alleged similarity of fact. . . . If one party to the action can produce a case where the judgment supports his own contention, the other argues with all his might that the circumstances of the case before the court are distinguishable from those of the precedent quoted. It is left to the judge to pronounce which is right, and to state the points of resemblance or difference between the two cases.

Craig based his conclusions on observation only, disclaiming any first-hand experience with the English courts. Nonetheless, Craig confirms the importance of statutes in the English courts, although his view does not fully resonate with Coke’s view that statutes may themselves only embody or evidence the ancient, customary law of England.

Francis Bacon’s Proposal: The Law of Nature

Bacon, as counsel for the plaintiff, disagreed with the proposition that allegiance must be either to the King’s body politic or his body natural. Bacon argued that while the King might have a body politic for some purposes– to resolve questions of the validity of a prince’s acts before ascending the throne as sovereign -the common law of England had always held that the two were inseparable. Bacon quoted from Plowden: “There is in the King not a body natural alone, nor a body politic alone, but a body natural and politic together: Corpus corporatum in corpore naturali, et corpus naturale in corpore corporato.”  (The corporate body subsists in a natural body, and the natural body in a corporate body.) Bacon denied that the cum duo jura maxim held otherwise, and denied that the maxim was applicable to English common law:

It is a rule of the civil law, say they . . . when two rights do meet in one person, there is no confusion of them, but they remain still in the eye of law distinct, as if they were in several persons: and *109 they bring examples of it of one man bishop of two sees . . . .But this rule receiveth no forced or coined but a true and sound distinction or limitation, which is, that it evermore faileth and deceiveth in cases where there is any vigor or operation of the natural person.

Bacon made no further reference to this maxim, nor did he explain on what ground it was inapplicable. Rejecting the idea that allegiance was to the King’s body politic, however, did not avoid the defendants’ additional claim that allegiance was due by the laws of England.  Allegiance might be to the King’s natural body, but if this allegiance were a function of the laws of James’s separate bodies politic, Robert Calvin would still be an alien in England.

Bacon’s answer was that allegiance was due not by the law of either England or Scotland alone but by the law of nature, itself a part of the law of England, as it was part of the laws of all nations:

Law no doubt is the great organ by which the sovereign power doth move, and may be truly compared to the sinews in a natural body . . . . But towards the King himself the law doth a double office or operation: the first is to entitle the king, or design him . . . . The second is . . . to make the ordinary power of the King more definite or regular. . . . But I demand, do these offices or operations of law evacuate or frustrate the original submission, which was natural? Or shall it be said that all allegiance is by law? No more than it can be said, that potestas patria, the power of the father over the child, is by law. And yet no doubt laws do diversely define of that also; the law of some nations having given the fathers power to put their children to death; others, to sell them thrice . . . . Yet no man will affirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, which is corroborated and confirmed by law, but is the work of the law of nature.

In support of the claim that allegiance was due to a sovereign by the law of nature, Bacon offered “divers acts of Parliaments” that titled the King “our natural sovereign and liege lord.”  Further, according to Bacon, “allegiance began before laws”: “The original age of kingdoms was governed by natural equity . . . . Kings were more ancient than lawgivers and the first submissions were simple  . . . .”  Bacon’s arguments are particularly noteworthy because they strongly resonate with Bodin’s writings concerning the source of the obligation of allegiance.  Bacon’s analogy of the source of the duty of allegiance in the law of nature, similar to the operation of natural law within families, also appears in Bodin’s Republique.

An additional step remained. In order to find that the allegiance due by the law of nature to the King’s natural body meant that James’s Scottish and English subjects were mutually naturalized, Bacon argued:

For, my lords, by the law of nature all men in the world are naturalized one towards another. . . . It was civil and national laws that brought in these words, and differences, of civis and exterus, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly . . . . So by the same reason, all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of nature.

Bacon offered no further proof that natural law required this result. Perhaps the paucity of evidence reveals a difficulty in refuting the defendants’ two- body theory of allegiance and overcoming the prevailing notion that the nerves of England’s body politic–an idea favoring a positive law of allegiance– should determine the status of the postnati.

Example of application

The common law is the basis of the jurisprudence of this state. Constitution of West Virginia, article 8, § 21. Its principles are controlling, save as changed by statute. Under the common law, one spouse can not maintain against the other an action for damages for personal injuries arising within the period of the marriage. 30 Corpus Juris, page 954; Madden on Domestic Relations, page 220; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387. That is the law of this state today unless it has been changed by statute. Plaintiff’s contention that there has been such change is sought to be based on Code, 48-3-19. It reads:

“A married woman may sue or be sued alone in any court of law or chancery in this State that may have jurisdiction of the subject matter, the same in all cases as if she were a single woman, and her husband shall not be joined with her in any case unless, for reasons other than the marital relation, it is proper or necessary, because of his interest or liability, to make him a party. In no case need a married woman, because of being such, prosecute or defend by guardian or next friend.”

It is urged that the provision that a married woman may sue or be sued “the same in all cases as if she were a single woman” is of sufficient breadth to include actions between husbands and wives. That result would be possible only if great liberality of construction were proper to be applied. But such would not be the correct manner of approach. There is a fundamental rule that statutes in derogation of the common law are to be strictly construed. Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. A. (N. S.) 1003; State v. Grymes, 65 W. Va. 451, 456, 64 S. E. 728, 17 Ann. Cas. 833; II Sutherland Statutory Construction (2d Ed.) § 454. “Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used.” Bank v. Thomas, 75 W. Va. 321, 83 S. E. 985. A fundamental and time- honored principle of the common law is not to be deemed uprooted by implication.

In changing certain common law provisions in respect of the rights of married women, the legislature has been specific and unequivocal. For example, a married woman may become a business partner with any person “including her husband.” Code, 48-3-18. She shall be liable for her tortious acts, and her husband shall not be liable therefor unless he instigated them. Code, 48-3- 20. These departures from the common law are clear and specific. It is but reasonable to assume that if the legislature had intended to change the common law so that husbands and wives could maintain tort actions against each other, the expression of that intent would have been explicit, as in the two departures instanced. Evidently the purpose of the act was not to authorize damage actions between spouses, but to make it possible for a married woman to sue, or be sued by, a third person, without her husband’s being joined with her as plaintiff or defendant, as was required by the common law.

In Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 112, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921, the Supreme Court of the United States had under consideration a statute pertaining to the District of Columbia very similar to ours (above quoted). By the statute there under attention married women were authorized to sue separately for “the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried.” Code of Laws D. C. 1901, §;1155. In respect thereof the court said: “The limitation upon her right of action imposed in the requirement of the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still unmarried. The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband.”

A radical departure from the common law, such as the authorization of damage actions between spouses, should be given birth only through unequivocal legislative enactment. Thompson v. Thompson, supra. A change like that should not come about through judicial interpretation of a statutory provision, which indicates legislative intent to deal with matters other than those arising between husband and wife. Therefore we consider that the common law rule precluding personal tort actions between husband and wife has not been abrogated in this state.