Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/382

 368 ///. THE COLONIAL PERIOD value of the common law is openly and bitterly attacked. Then comes the great reforming and codifying movement of this century, in which New York is the leading state. Uncon- scious development of custom, reversal to simpler forms, adaptation and modification of a technical system brought from abroad, conscious reform, and, finally, the effort to cast all legal relations into a simple and lucid system, — all these phenomena can be traced in our law, and nowhere can the interaction of popular consciousness of right with legal institutions be more fully and clearly ascer- tained. The first question that confronts the investigator con- cerns the influence upon our system of the English common law, that complex body of principles and rules, contained, at our early colonial period, in the Year Books, Reports, and the standard law treatises of quasi- judicial authority. Stat- utory law-making had been but sparingly used up to this time in England, and the law of property and personal security, criminal law, and procedure, found their norms in a long series of judicial precedents. The transfer of this system to the colonies, its amalgamation with new forms there originated, its adaptation to novel conditions, consti- tutes a subject of rare interest. The accepted legal theory of this transfer is well known. It is clearly stated by Story in Van Ness v. Packard, 2 Peters, 144: "The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth-right; but they brought with them and adopted only that portion which was applicable to their condition." This theory is universally adopted by our courts, and it has given them the important power of judging of the applica- bility of the principles of the common law to American con- ditions. According to this view, the common law was from the first looked upon by the colonists as a system of positive and subsidiary law, appl3ang where not replaced by colonial enactments or by special custom suited to the new condi- tions. While this legal theory has obtained acceptance as a satis-