Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/384

 370 ///. THE COLONIAL PERIOD 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 reception and use of the more refined theories of the common law. It is but natural that, with increased training, the courts and practitioners should turn to the great reservoir of legal experience in their own lan- guage for guidance and information ; the courts would be more ready to favor the theory of the adoption of the com- mon law, as it increased their importance, virtually giving them legislative power. The foregoing statements are espe- cially true of New England, where the subsidiary force of the common law was plainly denied; where a system of popular law (Volksrecht) grew up; and, where the*aw of God took the place of a secondary system. J^ The legal theory of the transfer has its established place in American jurisprudence; but, historically, it should be modified so as to bring out the fact that we had a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of the English common law. In this way only shall we understand, from the first, the very characteristic and far-reaching departures from older legal ideas which are found in the New World ; while, at the same time, its full importance is assigned to the influence of Eng- lish jurisprudence in moulding our legal thought. The theory of the courts is an incomplete, one-sided statement needing historical modification. When the courts come to analyze the nature of the law actually brought over by the colonists they find it a method of reasoning,^ " a system of legal logic, rather than a code of rules ; " or 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 'Marks vs. Morris, 4 Hening and Mumford, 463.
 * Morgan vs. King, 30 Barbour, 13.