When the American colonies became inde pendent, each was governed by (1) the common law of England, in so far as each had tacitly or expressly adopted it as suited to local needs; (2) those English statutes which were amend atory of the first; (3) the colonial statutes and (4) such customs as were peculiar to Amer ican conditions and incorporated in judicial de cisions. In order to give authority to these earlier laws, nearly all of the original 13 States formally adopted them either by a constitutional provision, as in Delaware (1776) and New York (1777), or by legislative enactment as in Pennsylvania (1777). The method of adopting English statutes was by no means uniform. Vermont recognized the statute laws of Eng land as existing prior to 1760, in so far as they were not repugnant to the constitution and laws of the State. The beginning of the American Revolution (19 April 1775) was the date set in New York, and English statutes locally ap plicable and enacted prior to that time were declared in force. In Pennsylvania only those English statutes which were admittedly valid during the colonial period were continued. The Virginia convention of 1776 adopted the common law and English statutes of a gen eral nature which had been enacted prior to 1607. This action was taken as a prece dent in the first extension of law over ter ritory belonging to the Federal government. The United States adopted the language of Virginia and extended the common law under the same limitations to the Northwest Terri tory. The Ordinance of 1787 was the founda tion of the jurisprudence of the states carved out of Federal territory. In Michigan, while the English statutes were afterward expressly repealed, the substance of them was re-enacted and to prevent any confusion as to what system of law existed, the old Coutume de Paris, once in force when Michigan was a French posses sion, was declared abrogated. In Louisiana a different policy was followed. The Territory of Orleans, afterward the State of Louisiana, formed the most populous portion of the Lou isiana Purchase. French in spirit and tradition, its institutions had been developed according to French ideas modified somewhat by Spanish in fluence. The civil law of France and Spain was continued in force. Thanks largely to the influence of the code prepared by Edward Liv ingston, who had in turn been influenced by Bentham, Louisiana is the only State of the Union whose jurisprudence is not based upon the common law. In the other States of the old Louisiana Purchase, the common law was adopted, as was proper according to the theory of the extension of law over territories hitherto uninhabited. In all the Western States, formed out of territory originally Mexican, the practice was the same and in all of them the common law is presumed to exist. While common-law powers were given to the courts in their en tirety, in no State was there created an equity court having the full and complete jurisdiction which such a court had in England. Chancery courts, when created by legislative enactment, have had their powers conditioned and circum scribed by the law creating them.
The Period of Modern Law and Procedure (1850 to the Present).— The theory of Ameri can government is that the state and the people are one. In nothing has this theory produced more definite results than in law. This is true not only in positive legislative enactments made by the people's representative but in the indirect legislation of the bench, formulated by judges, the servants of the people. While it is the theoretical function of a judge to declare and not to make law, he may be a potent factor in bending old law to new needs. The irresistible tendency toward universal suffrage and the enormous increase in population which char acterized the middle of the 19th century, at once left marks upon law and procedure. The States of the Middle West, which drew a large share of their inhabitants from Europe, entered upon an era of constitution-making. In these new expressions of fundamental rights, the Middle States put aside traditions, according to which their first constitutions had been framed, and built upon a democratic basis. The statutes, which up to that time were of comparatively small bulk, were revised and put into codes. Some States (for example, Ohio, Indiana and Iowa) abolished all common-law offenses and rebuilt their systems of criminal law upon a statutory basis. Impatience was felt at the technical methods which the courts had used and the adoption of the Reformed Procedure was the expression of this dislike.
In 1848 David Dudley Field, an eminent lawyer of New York, succeeded in having the legislature of that State adopt a code of civil procedure which effectually broke away from all tradition and aimed at the simplifying of civil pleading and practice by the abolition of all distinctions between actions at law and in equity. According to the reformed theory, there is but one form of action, based upon a complaint containing a simple statement of the facts constituting the grievance for which re dress is asked in a judgment settling the rights, whether legal or equitable, of all the parties to the action. This theory was well calculated to appeal to the imagination of democratic commonwealths; one after another State adopted the New York plan as a whole or in part, and the Reformed Procedure is now in force in all but a few of the States. This sys tem was, so far as pleading was concerned, an entirely new idea; it was neither a modification of the common-law method nor an adaptation of the various forms of equity pleadings. The Code furnished its own rules for the construc tion of pleadings upon its own peculiar prin ciples. Whether or not the Reformed Procedure as in force in many States has resulted in sim plicity is a question for legitimate difference of opinion. In some jurisdictions the constant tinkering with the laws of practice and proced ure by the legislature has rendered that branch of the law so uncertain that probably more than one-half of the questions of law presented to courts of appeal are upon questions of trial or appellate procedure.
The second half of the 19th century was marked by stupendous development in in dustrial enterprise. Steam and electricity revo lutionized the forces of. production and dis tribution, and necessitated the employment of vast combinations of capital. Substantive law, as expressed in statute and decision, has fol lowed sometimes closely, sometimes lagging behind, this industrial and commercial evolution. Contracts, once a small part of the body of law, now occupy a position once undreamt of. In sistence upon the form of a contract has given way to reasonable interpretation of its matter, viewed according to the changing conditions of commerce and trade. Corporations, once cre ated only by the express favor of a sovereign, were given a new character such as modern society and its industrial enterprises demanded. But 200 private corporations were organized in the United States prior to 1800, and of these a dozen only were designed to engage in manu facturing. Limitations upon the States, declared by the decision in the Dartmouth College Case (1819), were to a large extent overcome by subsequent State constitutional amendments. Capitalistic production with its consequences created anew the purpose and idea of a private corporation. Individuals, none of whom had at command sufficient capital to float a large enter prise, joined their funds and in their associated capacity received as a matter of right a charter from the State. The charter, the powers of which were limited by the law of its authoriza tion, at first special and afterward general, gave the corporation a personality having cer tain rights. As a consideration for these rights, the corporation assumed certain statutory bur dens and regulations. Unless by the express or implied authority of its charter, a corpora tion cannot engage in business outside of the jurisdiction creating it. In other States it is a foreign corporation. As such, the other States may stipulate the conditions under which it may enter to do business. Here the Federal Constitution steps in. Under it Congress has the power to prescribe rules for the regulation of interstate commerce. The organization of rail way systems extending through several States and the increase in production of large manu facturing corporations, selling their output in many States, have given opportunities for na tional legislation. The diverse citizenship of corporations and the large interests represented by them, as well as the limitations placed upon the States by the 14th Amendment, have brought a constantly increasing number of cases into the Federal courts. Thus the American law of corporations, a compound of national and State legislation and of Federal and local de cisions, is of increasing bulk and variety, and no subject of the law has grown into greater, importance.