scaffold, the alliance between the three became more firmly cemented. There is reason to believe that they had resolved to perpetuate their power by establishing a supreme council of three consuls, in which Robespierre would have had the perpetual presidency, with the departments of justice, exterior, and finance; Couthon that of the interior, and St. Just the war department." (Histoire pittoresque de la Convention Nationale, par un Ex-Conventional, 4 vols. 8vo. Paris, 1833.) The means by which these men contrived to maintain their usurped power are shown by Mignet in his History of the French Revolution. Acting in the name of the National Convention, the Committee was in fact master of that assembly, which it compelled to adopt its reports and resolutions; it decreed the proscription of any member who resisted its will; it had at its command the armed multitudes of Paris and the suburbs, whose passions and fears it kept constantly excited by suspicions of royalists and traitors; it was supported by the numerous clubs and revolutionary committees distributed all over the country, the poorer members of which received by a decree of the Convention, extorted from that assembly on the 31st of May by the armed mob, an allowance of forty sols a day; and it sent commissioners to the armies, who impeached every general suspected of disaffection, and easily prevailed on the deluded soldiers to give him up. "It had at its command the law against the suspected passed by the Convention, by which it could arrest any citizen; the revolutionary tribunals which summarily sent the accused to the scaffold; and the decrees of confiscation, forced loans and requisitions, and the maximum upon provisions, by which it disposed of the property of all." This law of the maximum fixed the highest legal price of provisions and other necessaries, both for wholesale and retail dealers, and forbade them to ask more. (Tableau du Maximum de la République Française décreté par la Convention Nationale le 6 Ventose, An II.) The net was so widely spread that it took in all France; and a few obscure men exercised in the name of liberty a tyranny infinitely greater than that of the

most arbitrary king of the old dynasty. In the Convention, from which nominally they derived their power, they were supported by a few bold men, who frightened the rest with the pikes of the mob and with threats of the scaffold. But when these men, Tallien, Barras, and others, discovered that they themselves stood in the way of Robespierre's ambition, and were destined to the common lot of the guillotine, they turned upon him and his friends of the Committee, and the majority of the Convention, which had through fear acquiesced in all their measures, immediately sided with them; the National Guards, weary of useless proscriptions, stood by their representatives, and Robespierre and his few friends found themselves alone, without any military man to support them. Even in the Committee of Public Safety, Collot d'Herbois and Billaud Varennes turned against Robespierre. On the 9th Thermidor, July 28, 1794, Robespierre, Couthon, and St. Just were executed. From that time the moderate party gradually, though slowly, acquired the ascendency in the Convention.

COMMITTEES. [PARLIAMENT.]

COMMODORE (Comendador), in the royal navy, is the officer commanding a small number of ships of war, when detached for any particular service from the fleet. His rank is immediately below that of a rear-admiral, and he is classed with a brigadier-general in the army. His ship is distinguished by a red pendant at the mast-head. The title is sometimes given to the senior captain in a fleet of merchant ships.

In the French service the commander of a detachment of ships is called Chef d'Escadre; and in the time of Louis XIII. the commander-general of the fleet was so called when he had not the rank of admiral.

The highest rank in the navy of the United States of North America is that of commodore, which is given to the commanders of squadrons at the six stations at which a naval force is maintained by the United States government.

COMMON LAW. In its most general signification the expression Common Law denotes the ordinary law of any country:

when used in this sense it is called common, as prevailing generally over a whole country, in contradistinction to particular laws, the operation of which is confined to a limited district or to a peculiar class of inhabitants. In England the Common Law is that body of customs, rules, and maxims which have acquired their binding power and the force of laws in consequence of long usage, recognised by judicial decision, and not by reason of statutes now extant. The common law is therefore called, in early periods of our legal history, the "lex et consuetudo Anglia," and at the present day the appellation is used to denote "lex non scripta," in opposition to "leges scriptæ," or statutes. Sir Matthew Hale, in his History of the Common Law of England,' divides all the laws of England into two kinds, lex scripta, the written law, and lex non scripta, the unwritten law; and he adds, "although all the laws of this kingdom have some monuments or memorials thereof in writing, yet all of them have not their original in writing; for some of these laws have obtained their force by immemorial usage or custom, and such laws are properly called leges non scriptæ, or unwritten laws or customs" (chap. 1). He confines the term leges scripta, or written laws, in which he is followed by Blackstone, to statutes or acts of parliament; but this is not quite correct, for there are other rules, such as rules of court, made by the judges of the common-law courts, and orders in chancery, made by the judges in chancery pursuant to power given to them, which are laws, and "written laws," according to Hale's definition, for the "original" of them is in writing. The term unwritten law also is applicable to a great part of that kind of law called equity, for the original of it does not exist in writing. A large part of the law of equity is founded on judicial decisions made in conformity with some established principles, and therefore it resembles that part of the common law which is recognised as such by the decisions of commonlaw judges. In addition to customs and usages, whose particular origin is unknown, many portions of the common law consist of statutes passed before the time of legal memory, that is, the beginning of

the reign of Richard I., which, though known historically to have been acts of parliament, have no authority as laws in that character, but derive their obligation from immemorial usage, recognised by judicial decision. The provisions of the common law are, however, quite as binding as acts of the legislature, for they have received the character of law by force of judicial decisions. In very early times it is probable that the system of rules which composed the common law was wholly traditional. In course of time the decisions of the king's ordinary courts of justice were recorded, and became the most authoritative evidence of such customs and maxims as formed part of the common law, according to the rule of the civil law, that what the emperor had once judicially determined was to serve as a guide in all like cases for the future. (Cod. 1, tit. 14-12.) In addition to the recorded judgments of courts, technically called precedents, the treatises of Bracton, Fleta, Britton, Staundforde's 'Pleas of the Crown,' and Coke's 'Commentary upon Littleton,' are acknowledged as evidence of what is Common Law. Of the whole system the judges of the superior courts are the expositors; they declare the law by applying certain established rules and principles to cases which come before them for judgment, but they have no power to add to or vary the law in any other way than by their decisions upon particular cases that are brought before them. Law made by judicial decision is called by Bentham judge-made law; a term which, as already intimated, belongs to a part of the law called equity, which is administered in the courts of chancery.

Learned writers have indulged in much speculation respecting the origin of the common law of England, though Sir Matthew Hale says it is "as undiscoverable as the head of the Nile." It seems, however, to be well ascertained that the customs which in ancient times were incorporated with it were of compound origin, and introduced at various times in consequence of the political vicissitudes of the country; some being Saxon, others Danish, and others Norman. It is also evident, from the adoption of the

Roman terms of art and many Roman provisions, that many of the rules and maxims of the common law were derived from the civil law. Bracton's work contains many passages which are taken directly from the 'Digest' and the Institutions' of Justinian. Again, many parts of the common law have gradually arisen from the necessary modification of its ancient doctrines and principles, in order to render them applicable to new states of society, produced by enlarged commerce and advancing civilization. From this cause some branches of our system of jurisprudence have wholly sprung into existence in modern times. Thus almost the whole of the law of evidence, now perhaps the most important part of our practical jurisprudence, has appeared as part of the common law since the time of the Commonwealth. But perhaps the most remarkable instance of the total change in common-law institutions with the progressive improvement of society is the trial by jury, which may be traced through all its gradations, from a rude kind of trial, in which the jury were merely witnesses called from the neighbourhood, in order that they might declare the truth to the judge, to the present system, where the jury themselves decide upon the truth of facts by the testimony of witnesses examined before them. On the other hand, many rules and provisious of the common law have wholly disappeared, having either become obsolete from disuse, or been gradually declared inoperative by decisions of the judges as they became inapplicable to the altered state of society. So great has been the alteration of the common law which these accessions and abstractions have occasioned, that it can scarcely be termed with propriety the same body of law that it was six hundred years ago, unless it be upon the principle upon which Sir M. Hale maintains its identity that the changes have been only partial and successive, whilst the general system has been always the same, "as the Argonauts' ship was the same when it returned home as it was when it went out, though in that long voyage it had successive amendments, and scarce came back with any of its former materials.'

:

(Hale, History of the Common Law; Blackstone, Commentaries, vol. i. p. 63; Reeve, History of English Law, vol. i.; and Hallam, Middle Ages, vol. ii., 'On the Origin of the Common Law.')

COMMON PLEAS, COURT OF, a superior court of record, which has jurisdiction over England and Wales in all common pleas or civil actions commenced by man against man. It is at present composed of five judges, one of whom is chief justice and the other four are puisne justices. All are created by the king's letters patent.

This court has been stationary at Westminster Hall for several centuries. During the existence of the Aula or Curia Regis, established by the Conqueror in the hall of his usual residence, the palace at Westminster, that single tribunal had supreme jurisdiction in all temporal causes, which were adjudicated by the principal officers of the royal household, often assisted by persons learned in the law, called the king's justiciars. In this state of things, the poorer class of suitors in the common civil pleas, or actions between man and man in which neither the king's revenue nor his character of prosecutor of offences on behalf of the public were concerned, laboured under the inconvenience of either attending the frequent and distant progresses of the court, or of losing their remedies altogether. This evil, as well as the jealousy entertained by the crown of the ascendancy of the chief justiciar, who presided over the whole Aula Regis, occasioned the article in Magna Charta, that common pleas should not follow the king's court, but be held in some certain place. This court thereupon became gradually detached from the Aula Regis, and assumed its present separate form. It has ever since continued its sittings daily during the four terms of each year, without removal from the palace of Westminster or its immediate vicinity, except on a few occasions, in time of plague or contagious disease.

Before the passing of the statute of 3 & 4 Will. IV. c. 27, this court had an exclusive jurisdiction in all those actions which, as they concerned freeholds or realty, were called real, including as well those on which the common assurances of

fines and recoveries passed, as the others which were commenced by the king's original writ out of chancery. On this account it was styled by Coke the "lock and key of the common law." Since the abolition of real actions by the abovementioned act (with three exceptions), dower and quare impedit are the only forms of action in which this court has exclusive jurisdiction; for in mixed and personal actions the King's Bench and Exchequer of Pleas have long exercised concurrent power. The Court of Common Pleas is a court of appeal from the decision of the revising barristers in the matter of disputed claims to vote for members of parliament. (6 Vict. c. 18, § 42.)

In the original constitution of this court, and down to the beginning of the reign of William IV., its proceedings in actions between persons not its officers were founded on original writs issued out of the Court of Chancery, though in process of time they did not actually issue except in cases where it became necessary to perfect the record. But now by a statute (2 Will. IV. c. 39) introduced by the late Lord Tenterden, to secure the uniformity of process in personal actions in the three superior courts of law, certain forms of process, called writs of summons and capias, are provided as the only means for commencing personal actions in any of those courts, and they may be issued from any of them.

Before 1830 the appeal from the judgments of this court was by writ of error to the justices of the King's Bench, a vestige of superiority in the Bench as the remnant of that Aula Regis from which this court as well as those of Chancery and Exchequer have been gradually detached. But now by 11 Geo. IV. & 1 Will. IV. c. 70, the judgments of this court can only be reviewed by the judges of the King's Bench and the barons of the Exchequer, who form a court of error in the Exchequer Chamber; the further appeal is by writ of error returnable in the Lords' House of Parliament.

[For an account of the privileges of sergeants-at-law in the Court of Common Pleas, see SERGEANT.]

COMMON, RIGHTS OF, in law, is

the right of taking a profit in the land of another in common with others. It may either be such a right as is enjoyed in common with others to the exclusion of the owner of the land, or it may not exclude the owner of the land. The commoner has no interest in the soil of the land on which he has a right of common.

The profits which may be the subjects of common are the natural produce of land (or water, which is included in the legal signification of land); such as grass and herbage, turf, wood, and fish. The commons relating to these subjects are accordingly called common of pasture, turbary, estovers, and piscary. Other things which cannot be called products of land, but rather part of the land itself, as stones and minerals, may also be the subjects of common right. Rights of way and other accommodations in the land of another, though enjoyed in common by several persons, do not bear that name, but are called Easements.

Of all commons, that of pasture is the most frequent. It is the right of taking grass and herbage by the mouths of grazing animals. It differs from that property which may exist in the vesture or vegetable produce of the land, without any property in the land itself, and which is a corporeal hereditament; whereas all rights of common are incorporeal rights. The same remark applies to other rights of common, the subjects of which-as for instance woods and mines-may belong as corporeal hereditaments to one, while the land generally belongs to another.

These

Common of turbary is the right of taking turf for fuel; and common of estovers is the right of taking wood for fuel, and for the repairs of houses, fences, and implements of husbandry. supplies of wood are called fire bote, house bote (which includes the former), plough bote, and hedge or hay bote. These estovers or botes may also be taken by every tenant for life or years from the land which he himself occupies, but in that case they are not subjects of common rights.

Common of piscary is the right of fishery in rivers not navigable; the right of fishing in the sea and in navigable

rivers is common to all persons in the realm.

The extent of rights of common depends very much upon the title to them. There are four titles on which such rights may be founded; common right (which seems to be nearly the same thing as the common law), prescription, custom, and grant (deed).

The title by common right arose with the creation of manors, when land was granted out in fee to be held of the grantor as lord. As such grants were forbidden by the statute "quia emptores" (18 Edw. I. c. 1), it follows that all commons appendant now existing must have been created before the date of that statute. The law allowed to every such grantee, as common right, common of pasture, turbary, estovers, and piscary in the waste of the lord, or that part of his lands which was neither taken by him into his demesnes or actual occupation, nor granted out by him to others. These implied rights of common, however, were allowed no farther than necessity seemed to require, and rights of common thus originating are still confined nearly within their ancient limits. As they originated in grants of land, they were considered as inseparably appendant to the land, so that they could not be separated from the land without becoming extinct. Accordingly what is called Common Appendant is a right of common which a man enjoys in respect of his title to a piece of land. The right is appendant or attached to the land. The common of pasture was confined to the purpose of maintaining from seed-time to harvest the cattle of the commoner which were used by him in cultivating his land, and which that land would maintain through the winter, or which were, as the law styled it, levant and couchant upon it. Horses, oxen, kine, and sheep, used either for tilling or manuring land, were the commonable cattle. The land to which the common was appendant must have been originally arable, though the subsequent change of arable into meadow, &c. does not extinguish the right, Common of turbary appendant was confined to the purpose of supplying fuel for the domestic use of the tenant; and so strictly must this right be still confined

within its ancient limits, that it must be appendant to an ancient messuage or house, and no more turves can be taken under it than will be spent in the house. Common of estovers appendant gives, as it gave originally, only the right of taking wood for the repair of ancient fences and houses. Common of piscary appendant was only for supplying the tenant's own table with fish, and it must be still limited to this purpose.

Common claimed by prescription (which supposes a grant) may be as various as grants may be. A right of common thus founded may be either annexed to land (when it is said to be appurtenant), or altogether independent of any property in land, when it is said to be in gross. Common in gross must be claimed either by prescription or by deed; and is not appendant or appurte nant to any certain land. If common of pasture, it may be for any kind of animals, whether commonable or not, as swine and geese. The number of animals may be fixed, or absolutely unlimited, and they need not be the commoner's own.

Common appurtenant may be severed from the land to which it was originally annexed, and then it becomes common in gross.

The title to common by custom is peculiar to copyholders and may also give the commoner various modifications of right.

Right of common of pasture may also be claimed because of vicinage, or neighbourhood. This is where two wastes belonging to different lords of manors adjoin each other without being separated by a fence. The cattle lawfully put upon the one common may then stray, or rather are excused for straying, into the other.

The rights of the owner of the soil over which a right of common exists, are all such rights as flow from ownership, and are not inconsistent with the commoner's rights.

Rights of common are conveyed, like all other incorporeal hereditaments, by deed of grant. When they are annexed to land, they will pass with the land by any conveyance which is adapted to transfer the land.