Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/383

 r 11. REINSCH: COLONIAL COMMON LAW 369 factory explanation of the jurisprudence of to-day, it is not complete enough to afford an adequate synthesis of colonial legal facts for the historian. It contains, of course, the great truth that men cannot all at once cut themselves loose from a system of thought or action under which they have lived; that, though they transfer themselves entirely to new conditions, their notions and institutions must neces- sarily be circumstanced and colored by their former experi- ence. 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 com- plete statement of the needful legal regulations. Their civil- ization being primitive, a brief code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon 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 magis- trates. In many cases the colonists expressed an adhesion to the common law, but, when we investigate the actual administra- tion 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. But these were generally not found in the