tions and institutions must necessarily be circumstanced and colored by their former experience. Thus, of course, the more simple, popular, general parts of the English common law were from the first of great influence on colonial legal relations. This is, however, very far from declaring the common law of England a subsidiary system in actual force from the beginning of colonization. On the contrary, we find from the very first, originality in legal conceptions, departing widely from the most settled theories of the common law, and even a total denial of the subsidiary character of English jurisprudence. The first problem

to be determined is therefore this: What was the attitude of the earliest colonists towards the common law as a subsidiary system? To the solution of this question this thesis addresses itself.

The earliest settlers in many of the colonies made bodies of law, which, from every indication, they considered a complete statement of the needful legal regulations. Their civilization being primitive, a brief code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the AngloSaxon kings, would be sufficient. Not only did these codes innovate upon, and depart from the models of common law, but, in matters not fixed by such codes, there was in the earliest times no reference to that system. They were left to the discretion of the magistrates.

In many cases the colonists expressed an adhesion to the common law, but, when we investigate the actual administration of justice, we find that usually it was of a rude, popular, summary kind, in which the refined distinctions, the artificial developments of the older system have no place. A technical system

can, of course, be administered only with the aid of trained lawyers. And these were generally not found in the colonies during the 17th century, and even far down into the 18th we shall find that the legal administration was in the hands of laymen in many of the provinces. Only as the lawyers grow more numerous and receive a better training do we find a general re

1. The more refined theories of the common law. tha with increased training the courts and to the great reservoir of legal expefor guidance and information; the for the theory of the adoption ed their importance, virtually for the colonies. The foreThe of New England, where or sczmon law was plainly denied; (Volksrecht) grew up; and,

place of a secondary system.

1 zote a clear reversion to an earlier Lain passing through the very exnang sa fore-fathers in developing their legal samples of this we might mention the union As the petitioning against the exercise

etion by the council in ordinary cases, to the time of Edward III; archaic conthe system of petty popular courts which solete, or only maintained a precarious exang and.

ry of the transfer has its established place in rudence; but, historically, it should be modified ut the fact that we had a period of rude, untech`aw, followed, as lawyers became numerous and aw prominent, by the gradual reception of most of the English common law. In this way only tand, from the first, the very characteristic and g departures from older legal ideas which are found New World; while, at the same time, its full importance s to the influence of English jurisprudence in mouldegal thought. The theory of the courts is an incomOne-sided statement needing historical modification. en the courts come to analyze the nature of the law actually rought over by the colonists they find it a method of reason

1

ing, "a system of legal logic, rather than a code of rules;" the rule, "live honestly, hurt nobody, and render to every man his due." Such a very indefinite conception of the matter is without value historically; on the basis of this indefinite notion there has been claimed for the courts an almost unlimited power, under the guise of selecting the applicable principles of the common law, of fixing really new and unprecedented rules and, by their adjudications, legislating in the fullest sense of the word. On the other hand, a historical study will reveal a most interesting organic growth, and, after the records have been more fully published, no system will offer more of interest to inquiring students than that developed on American soil. The study of the documents reveals great diversities in the early systems of colonial laws. Then with the growth of national feeling there comes also a growth of unification of legal principles, for which the English common law affords the ideal or criterion. And, though during the decade immediately preceding Independence, the English common law was generally praised and apparently most readily received by the larger part of American courts, still the marks of the old popular law remain strong and most of the original departures in American jurisprudence can be traced back to the earliest times.

The object of this thesis is to present the attitude of the colonists during the 17th century, and in some cases during the 18th, towards the common law of England. The manner of treatment will be by colonies; the purpose is to discuss first the colonies of New England in which the departure from common law ideas is most clearly marked, followed by the Middle and Southern colonies, many of which adhered more closely to the Old World model.

Neither does the scope of this thesis include, nor the extent of the hitherto published sources permit, a complete presentation of the varying systems of private law in use in the colo

1Morgan vs. King, 30 Barbour, 13.

Marks vs. Morris, 4 Hening and Mumford, 463.

nies. Very few of the colonial court records have been published; in some cases, as in Virginia after the Richmond fire of 1865, most of them are unhappily lost forever. A publication of characteristic records of this kind is a desideratum not only for legal history, but for the study of the general economic and social development. However, sufficient material is extant in accessible form to show the general attitude of the colonists and colonial courts towards the common law as a technical system, and it is this only on which the thesis hopes to throw some light.

CHAPTER I.

NEW ENGLAND.

Massachusetts.

The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court1 of the year 1636. The government is there entreated to make a draft of laws "agreeable to the word of God" to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the meantime, the magistrates are to proceed in the courts to determine all causes according to the laws then established (the early laws of the general court), and where there is no law "then as near the law of God as they can.' The council is also empowered to make orders for the general conduct of business which is not yet covered by any law, and herein to apply its best discretion according to the rule of God's word. There is here absolutely no reference to the common law of England. As a subsidiary law the word of God is appealed to, as interpreted by the best discretion of the magistrates. This led to the administration of a rude equity, according to the idea of justice held by the magistrate, influenced by popular ideas and customs. With a homogeneous population holding the same general views on morals and polity, a true popular system of law could thus be produced, unrefined by juristic reasonings, untrammeled by technical precedents, satisfying, in general, the sense of right in the community. Should, however, alien elements intrude, they would find such a system exceedingly uncongenial and oppressive.

We find that in the early years of the colony the magistrates

1 Massachusetts Colonial Records, I, 174.