Joseph Henry Smith , with an Introductory Essay by Julius

Dilettante speculation has given currency to the notion that the English common law was not received by our several states until after the Revolution. According to this notion, there prevailed during the colonial period "a layman law, a popular, equitable system," 1 fostered by frontier conditions.2 Such views have infected even serious legal scholars, who have asserted that the common law in the colonial period "remained a subsidiary, supplementary law," 3 or who have attributed the advent of the common law to the publication of Blackstone's Commentaries or to the genius of James Kent. Thus, it has been stated that at the time of the Revolution America was expectantly awaiting the introduction of a legal system and that Blackstone's work "appeared with no rival to dispute its claims; Blackstone mounted a waiting and empty throne." 4 A similar point of view has frequently been adopted by judges, with the result that rules and doctrines have been siphoned out of the English reports without reference to the colonial practice or aberrance which may have been made applicable by constitutional reception provisions. Encysted in the tissue of judicial precedent, such views have ceased to provoke further investigation or analysis. Lack of familiarity with legal fonds d'archives, and an unwillingness on the part of historians to explore beyond the conventionalized boundaries of their fields of specialization, have in the main been responsible for the notions outlined above and account in large measure for their persistence. In generalizing about colonial legal development, historians have not only misprized the rich resources of legal records but they have ignored or misunderstood the effects of the conditions of settlement, of economic growth and change, and of the particularism prevailing in the several colonies. Moreover, the effect on colonial law of English administrative policies has hardly received the attention which it merits. So accustomed are historians to think of our institutions as grown from the good seed of democracy that they tend to ignore what is owed to the strain of the royal prerogative. Only in recent years have a handful of legal scholars been able to begin to clarify the nature of American law in the colonial period, and so far the results of their work seem hardly to have percolated into standard historical texts. Close study of the records of the colonial courts has brought out that even at the enterprise stage of settlement much of the law was imitative of