Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/385

 11. REINSCH: COLONIAL COMMON LAW 371 of the common law, to establish virtually new and unprec- edented legal rules. On the other hand, a historical study will reveal a most interesting organic growth, and, after the records have been more fully pubHshed, 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 com- mon 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 thfe marks of the old popular law remain strong and most of the original features in American jurisprudence can be traced back to the earliest times. The objecf of this essay 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 essay include, nor the extent of the hitherto published sources permit, a complete presen- tation of the varying systems of private law in use in the colonies. 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 desider- atum not only for legal history, but for the study of the general economic and social development. However, suffi- cient 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.