What is common law?
Common law is a system of law developed as a result of Norman conquest of England beginning in 1066. The Normans defeated the Anglo-Saxons, but did not wipe out their social system, and engrafted a legal system based on deciding one case the way similar cases were decided in the past without a formal list of legal principles ever being written down in the beginning. Under this system, the law evolves the way sedimentary rock forms, slowly over time.

Statutory law modifies the common law. It did so all throughout all relevant times. For example in 1290 Edward I promulgated Statute Quia Emptores which is the foundation of the ability to sell land in English law. In 1570, Henry VIII promulgated the Statute of Uses which is the foundation of trust law. The trust is a development of English law and is not known in the legal systems developed in continental Europe (or its later colonies).

The Statute of Uses provided that if A deeded property to B for the use of C that C could enforce his beneficial ownership of the property in a court of equity. B (the trustee) has legal title of the property, while C has equitable title. The divorce of legal and equitable title is the hallmark of the English trust concept. The splitting of legal and equitable title was accomplished by statute and not at common law.

The American colonies engrafted more or less the whole body of English law to this hemisphere with some local exceptions. Statute Quia Emptores and the Statute of Uses (along with the noted Statute of Frauds of 1677) are thought of in America to be part of our common law, but they were statutes. All of the original states adopted state constitutions which generally ratified the continued use of common law, and defined it as English law as of a certain date, typically 1776. Ultimately American common law is grounded in each state's constitution. Constitutions are more like statutes than like common law.

What's the point of all of this? This discussion should make you suspicious of anyone who claims that there is one common law, because common law, while having broad overall similarities, has very real decisive differences within different jurisductions. And this is nothing new. Its as old as the United States (or the united States if you prefer). The purveyors of the pure trust theory harp on the fact that their trusts are "common law" trusts as opposed to civil trusts. This distinction appears to be gibberish. Someone out there, please let me know of any authoritative legal scholar of the 18th, 19th or 20th century who ever discussed such a distinction. OK, in a bind, I'll also accept 17th century sources and before. This is a learning experience.

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