Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/428

 414 ///. THE COLONIAL PERIOD most rudimentary and incomplete kind. Ignorance of the system is often most frankly confessed, and when a com- parison is instituted between the colonial laws and the com- mon law, Magna Charta is often taken as a complete embodi- ment and expression of the latter. This is true not only in the Puritan colony of Massachusetts, but also in Virginia where, when it was to be decided whether an act was contrary to the common law, the committee thought it sufficient to examine Magna Charta. Among the early colonists we therefore find a very clear perception of their destiny to work out a new legal system, to establish rules dictated by their special polity or by the conditions of primitive and simple life in which they found themselves. Respect is often expressed for the common law, the resolution is in some cases even formed of using it as a model, but it is only in a few cases clearly established as the rule of judicature and in still fewer instances followed with precision in the ordinary administration of the law. The colonial codes cover the more essential parts of the law, leaving cases therein not anticipated to be decided by the discretion of the magistrates. The theory of the transfer of the common law as subsidiary law at the beginning of the colonies is therefore, in its unmodified form, not a true statement of colonial legal relations. We cannot under- stand the history of our law, nor justly value the character- istic development of our jurisprudence, unless we note the actual attitude of the earliest colonists towards the common law, an attitude sometimes of apathy, of lack of under- standing, sometimes of resistance or ignorement, sometimes, as in the case of Maryland, of admiration and adherence from the first. It has been said that the colonists imported the general principles, the general system of reasoning of the common law. This is either self-evident or too indefinite to be of any historical value. It is certainly true that ideas of right and positive law develop side by side mutually influencing and reacting upon each other ; and in this sense the English colonists, in their general ideas of justice and right, brought with them the fruits of the " struggle for law " in England.