FOREWORD

The common interest of jurists and historians in the study of American
legal history has long been neglected; but during the past few years there has
come a fuller appreciation of what may and should be accomplished through
the cooperation of these two groups of scholars. Even from a practical point
of view, there is much to be learned in a study of the processes through which
American legal institutions developed out of, and were gradually differenti-
ated from, the English law.

The early colonial assemblies and courts were in theory bound to follow,
so far as local conditions permitted, the legal tradition of the mother country.
Actually, however, the seventeenth-century colonists, faced with many prob-
lems quite different from those of an older society, departed widely and at
many points from the English law, gradually developing a common law of
their own, which varied more or less from one colony to another. In the
second century of the colonial era, British control of colonial practice became
more effective — through royal instructions to the governors, the appoint-
ment of professionally trained judges and attorneys-general, the royal dis-
allowance of provincial legislation, and the judicial review of American
decisions by the Privy Council. There was also an increasing number of
colonial lawyers who, whether in the English Inns of Court or under the
guidance of older practitioners, were brought under similar conservative
influence. The resultant of these forces — the transplanted English law and
the practical requirements of a new society — was the development even
before the Revolution, of an American legal tradition, which, with many
local variations, departed significantly from the system of the English com-
mon-law courts.

Unfortunately the judicial records and collateral material, without
which this evolution cannot be accurately traced, have for the most part
remained inaccessible and the decisions of our nineteenth-century courts
often show serious misunderstanding of early American practice. The first
step to the correction of such misunderstanding must be to rescue from the
obscurity of state archives and other depositories the manuscript records of
the more important colonial courts, especially those of last resort. Some of
this material has already been lost, but much of it can still be saved and
permanently insured against future loss by publication. In recent years,
local agencies have done something to supply this deficiency through the
publication of provincial and county court records, more particularly for the