Common error makes law.
Communis error or common error, is another name for “communis opinio,” or common opinion, and this common opinion is expressed by Littleton, in French, thus : “ Il est communement dit ; : ' which in English is, it is commonly said. So, if we search a little the chronicle of human events, we discover the origin of fine names, and that the law of the wisdom of past ages is no other than barbarous common sense.
If we are to consider common error as common opinion, then, to that extent, it is law ; for it cannot be said that common opinion is not law, nor, to come within the words of the maxim, can it be said that common error does not make law. Law is, in this respect, as a language ; it is the common voice of the people, and that which is common to all must govern each. There is not any of the laws of this country which has not for its origin common opinion. The right of the possessor or occupier of land to hold it against the true owner, which under the Statutes of Limitation he may do, has for its origin the common error or common opinion that the occupier is the owner. So of a debt barred by the Statute of Limitations ; before the passing of the statute it was considered reasonable to presume that the debt had been paid after the lapse of a certain period, whether it had been so paid or not. So of personal chattels which are said to pass by delivery ; the possessor of them is presumed in law to be the owner, which presumption, however, is common opinion only, and may be common error notwithstanding.
Again, to say that common error is law, is merely to say that what is called universal opinion may be, and is frequently, universal error, though until the error is discovered it is law.
The following case given by Lord Coke will serve to illustrate the maxim. By stat. 34 Hen. 8, it was enacted that there should be holden sessions twice every year in every of twelve shires in Wales there mentioned, which sessions should be called “the King's great sessions of “Wales.” A fine was levied of lands in the county of Carmarthen, and the writ of covenant was ” Coram justiciariis nostris magnae Assizae in Com. Carmarthen ;” and because all judicial precedents had been in that form ever since the passing of the statute, it was adjudged good, for “ Communis error facit jus.”
The correctness of the proposition stated in the maxim is shown, also, by the yearly passing of indemnity Acts to relieve persons from the consequence of their having acted in error, and Acts to confirm proceedings taken by parties in ignorance of the law upon a commonly received notion ; as, to confirm ministerial or judicial acts done in error contrary to, or not having the sanction of, law. Custom has at all times been the law-maker for the people, and custom is the consent of the people to a particular course of conduct, whether right or wrong ; and the question whether right or wrong depends upon the religious and moral state of the particular community ; and the custom, which is the law of that community, may be founded in truth or in error, according to such religious and moral state.
In considering this maxim, however, it must not be forgotten that a law having for its foundation common error, opinion, or custom, is good only so long as it is not opposed to any positive law to the contrary ; and though it is capable of other qualifications, it is not considered necessary here to state them.
4 Inst. 240 ; Shepp. Touch. 40 ; Noy Max. 37 ; Co. Litt. 186 o, 364 b ; Hob. 147 ; Wing. Max. 758 ; Hotley v. Scott, Lofft's Rep. 316 ; Isherwood v. Oldknow, 3 M. & S. 382-396 ; Garland v. Carlisle, 2 Cr. & M. 95 •, New River Company v. Hertford L. C„ 2 H. & N. 129 ; Hart v. Frame, 6 CI. & Fin. 193 ; Rex v. Inhabitants of Eriswell, 3 T. R. 707 ; Stevenson v. Rowand, 2 Dow. & Clark, 104.