settlements in this country, when the common law was introduced here, cattle were taken from place to place in droves, or very rarely were transported in ships. Railroads had not been invented. The railroad company interposed the defense that there was under these circumstances no rule of the common law applicable to the case. In overruling this contention, Justice Valentine said:

At common law no person was a common carrier of any article unless he chose to be, and unless he held himself out as such; and he was a common carrier of just such articles as he chose to be, and no others. If he held himself out as a common carrier of silk and laces, the common law would not compel him to be a common carrier of agricultural instruments such as plows, harrows, etc. . . . And it seems to us clear, beyond all doubt, that if a person had, in England, prior to the year 1607, held himself out as a common carrier of cattle and live stock by land, the common law would have made him such. If so, where is the valid distinction that is attempted to be made between the carrying of live stock and the carrying of any other kind of personal property? . . . At common law, any person could be a common carrier of all kinds, of any kind, or of just such kinds, of personal property as he chose; no more, no less. Of course, it is well known that at the time when our common law had its origin, that is, prior to the year 1607, railroads had no existence. But when they came into existence it must be admitted that they would be governed by the same rules so far as applicable which govern other carriers of property. . . . In this state, it must be presumed that they were created for the purpose of carrying all kinds of personal property. . . . Railroads are undoubtedly created for the purpose of carrying all kinds of property, which the common law would have permitted to be carried by common carriers in any mode, either by

land or water. . . . Our decision, then, upon this question is that whenever a railroad company receive cattle or live stock to be transported over their road from one place to another, such company assume all the responsibilities of a common carrier, except so far as such responsibilities may be modified by special contract.

Marriage is a Contract.

According to the common law, a marriage is a contract or agreement to live together made by a man and woman of proper age, not too nearly related by blood or otherwise incapacitated, and made effective by their living together as husband and wife. Though usually made by a religious ceremony, a marriage contract made by agreement by word of mouth and consummated by the parties by living as husband and wife, is valid unless there is some statute which prescribes a particular way and manner for making it.

In the case of Port v. Port,' decided by the Supreme Court of Illinois in 1873, Justice Scholfield said:

We are inclined to the opinion, supported as it is by the statements of many of the most eminent text writers, as well as by the decisions of courts of the highest respectability, that, inasmuch as our statute does not prohibit or make void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutory regulations, if made according to the common law, will still be a valid marriage, and that, by the common law, if the contract be made per verba de presenti, it is sufficient evidence of a marriage.

A Marriage Contract may be Annulled.

Under the rules of the common law, a marriage contract may be annulled and set aside by a divorce, I 70 Illinois Rep., 484, 486.

though in its nature it is intended to be permanent. The power so to annul marriage is vested in courts of justice. At the time of the colonizing of this country, it was exercised in England by the ecclesiastical courts. In this country, originally by custom and usage and later on by the authority of statutes of legislatures, it has been exercised by common law courts or equity tribunals.

I

In the case of Le Barron v. Le Barron, decided in 1862 by the Supreme Court of Vermont, Chief Justice Poland said:

The legal power to annul marriages has been recognized as existing in England from a very early period, but its administration, instead of being committed to the common law courts, was exercised by their spiritual or ecclesiastical courts. Under the administration of those courts, for a long period of time, the principles and practice governing this head of their jurisdiction, ripened into a settled course and body of jurisprudence, like that of the courts of chancery and admiralty, and constituted, with those systems, a part of the general law of the realm, and in the broad and enlarged use of the term, a part of the common law of the land, and was so held by the courts of that country.

This country having been settled by colonies from that, under the general authority of its government, and remaining for many years a part of its dominion, became and remained subject and entitled to the general laws of the government, and they became equally the laws of this country, except so far as they were inapplicable to the new relation and condition of things. This we understand to be well settled, both by judicial decision and the authority of eminent law writers. But if this were not so, the adoption of the common law of England, by the legislature of 135 Vermont Rep., 365.

the state, was an adoption of the whole body of the law of that country (aside from their parliamentary legislation), and included those principles of law administered by the courts of chancery and admiralty, and the ecclesiastical

courts.

CHAPTER XII

COMMON LAW CASES

Actions at Common Law.

Nearly all of the acts that are now forbidden by statute law and are punished as crimes, are also punishable under the rules of the common law. The common law likewise enables the supreme power in the community to maintain order and protect the people from acts not specifically prohibited by statute. In like manner, the rights of property of individuals are protected by processes that have long existed under the unwritten law, though now superseded by forms of procedure ordained by statutes. These common law actions are either criminal or civil according to the objects for which they are used.

Criminal Actions.

All actions at the common law that are brought to enforce penalties for acts which endanger the safety of members of the community are criminal actions. Such actions at common law exist solely under the laws of the States. There are no crimes under the laws of the United States except those which are denounced by written laws. In the case of Ames v. Kansas,' decided in 1884 by the U. S. Supreme Court, Chief Justice 111 U. S. Rep., 449, 460.