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51 Growth and Development of Law

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51. GROWTH AND DEVELOPMENT OF LAW. The history of law, or the rela tions of members of society to one another and of all to the State, is a history of organic growth. Upon it various phases of political, social and economic activities of a people have left indelible traces. The history of American law is from the beginning somewhat complex, hut it represents the development of legal prin ciples in the feeble and scattered colonies of the 17th century into the diversified yet systematic body of law in force to-day in a nation whose inhabitants differ in their various needs as widely as they are distributed geographically. The heterogeneous character of administration in the various colonies, the organic change from British colonies to independent states, the welding of the separate States into a na tional union, the taking-over of certain legal powers and duties by the Federal government under the Constitution and the consequent growth of a Federal jurispru dence, partly opposed and partly complemen tal to that of the States, the addition of new Territories by conquest and purchase, each in turn becoming States under the Constitution, — all these have been factors in producing the differentiated body known as American juris prudence. In order to understand the develop ment of American law, its history may be divided roughly into four periods: (1) The period of settlement, extending through the 17th century; (2) The period of organization, covering the 18th century to the Revolution; (3) The period of extension, from the Revolu tion to about 1850, and (4) The period of mod ern law and procedure from about 1850 to the present time, The Period of Settlement The year of the settlement at Jamestown, Va., was also the year of Calvin's Case (7 Coke's Reports, 17), which upon a state of facts quite disconnected from colonial matters laid down the theory of the English courts as to the posi tion of dependencies. This was that English statutes did not bind dependencies, as parcels of the realm in tenure, unless they were specially named. At a later time in the cases of Blankard v. Galdy (2 Salk. 411) and Campbell v. Hall (1 Cowper, 204) this principle was more elaborately developed, and Blackstone lent to it the weight of his authority. That English subjects going to a new and uninhabited country carried with them, as their birthright, the laws of England existing at the time of colonization, was a sup plemental corollary of the former principle.

While such was the theory accepted by English courts, it does not follow that during the colo nial period it was adopted in its entirety by the colonists themselves.

The English settlements in America varied so much in their origin and spirit that at first no general legal principles were con sciously adopted. The early London Company which exploited Virginia had few purposes in common with the Puritans who aimed at a theocratic form of government in Massa chusetts. Their different aims were apparent in the laws adopted for the regulation of the colonies. Nowhere were trained lawyers to be found among the early settlers, and the pro fession of law was not only held in no esteem, but the lawyer was for a long time denied the privilege of practising for hire. This distrust of the legal profession was under the cir cumstances not unnatural. Lawyers were a recognized caste in England. The common law of England in the early 17th century had become harsh in its methods, rigorous in its procedure, and technical in its practice. It was founded upoq precedents which grew out of old social and religious conditions with which the emigrants not only had little sympathy but from which they had also sought to escape. The settlement of hitherto unoccupied ter ritories made necessary a new order of things in which were erected new institutions fitted to a scattered population, a rude society, and a simple economic system. All of the colonists had, however, as a part of their English birth right and inheritance, certain deeply-rooted traditions which included knowledge of and reverence for the great principles of the Eng lish common law, which assured the fun damental rights of person and property, which are the landmarks of English constitutional liberty. Familiar with representative gov ernment, they brought with them belief in the adequacy of statutes as a means of bringing law into conformity with the needs of society. Moreover, some notion of the orderly arrange ment of statutes into codes was not wanting to the settlers. At the beginning, therefore, de pendence was placed upon statute law fo the exclusion of judge-made law. Such dependence is to be explained by the new conditions in which the colonists were placed, their distance from the mother-country, and the absence of trained lawyers.

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