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TWO CENTURIES' GROWTH OF

AMERICAN LAW

1701-1901

TWO CENTURIES' GROWTH OF AMERICAN LAW

1701-1901

I

INTRODUCTION

BY SIMEON E. BALDWIN, M.A., LL.D.

THERE are some principles and rules of jurisprudence which are common to all civilized nations. There are others peculiar to those which belong to the same race, or have been in political association. Two such nations are England and the United States, and it is upon English foundations that our law has been mainly built.

Nor are we indebted merely to the England of our colonial days. For a quarter of a century at least after the Revolution, whatever progress we made in advancing our system of judicial administration was largely affected by the course of decision in the mother country. This was so, notwithstanding strong efforts to withstand such influences. In one State (New Jersey), a law was even passed, in 1799, that no decisions made or treatises published in Great Britain after the fourth of July, 1776, should be quoted in any court.1 But neither lawyers nor Judges could be thus forced to shut their eyes to what there was of value in the opinions of Lord Mansfield and his associates on the English bench. Statutes cannot resist national tendencies.

It is not the purpose of this volume to describe in any detail what in American law is common to both peoples or

1 Statutes of New Jersey, ed. 1800, p. 436.

to all peoples. It is the differences between nations which especially interest the student of sociology, of history, of government, or of law; and these pages will be read by no one else.

These considerations may serve to explain the selection of particular topics for extended discussion in the following chapters, and the total omission, or brief mention, of others, which might seem of equal or greater importance. To take but a single instance, the general principles of contract are the same for England and the United States, except so far as American law gives them a somewhat wider scope and greater force, by virtue of constitutional guaranties.

Two centuries are but a brief period in the history of the human race. During the two, however, to the work of which this volume is confined, Man has come to know, if not himself, at least his power over his surroundings, better than ever before. As they have been crowded with new discoveries in science, so have they been marked by the development of new relations between the people and the government. Nowhere has this re-adjustment of social forces been more marked than in America.

Mr. Lecky has said that popular beliefs often change in course of time, not by force of reason so much as because of their incongruity with the spirit of the age. "The general intellectual tendencies pervading the literature of a country profoundly modify the character of the public mind. They form a new tone and habit of thought. They alter the measure of probability. They create new attractions and new antipathies, and they eventually cause as absolute a rejection of certain old opinions as could be produced by the most cogent and definite arguments."

In this way American law has from time to time taken. color from its surroundings; but it is to the lasting credit of those who laid its first foundations that not a little of their work still stands firm.

This was partly due to their taking a broader view of the relations of the State to the people than that common to

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the Englishmen of their day. They had suffered from too strong a government. They had been oppressed by antiquated statutes, passed in the interest of classes to which few of them belonged. Some of them had lived for years in countries adhering to the principles of Roman law, and had found that justice could be worked out under them, in some points, quite as well as under those of the common law of England. The clergy, also, were peculiarly influential in early American politics and legislation. They comprehended most of the men of education, and of inherited social position. They knew something of the canon law, and, especially in those colonies where the church and the town were one, made some of its processes and lines of thought familiar to the community.

Under these influences the American law of the seventeenth century had been shaped. It is the purpose of this volume to show how it has grown and expanded during the two hundred years that have since elapsed.

They have been years of immense material growth. They have woven for the world a new order of civilization. They have tended, on the whole, to enlarge the rights both of the State against the individual, and of each individual against every other, thus widening the domain both of public and of private law.

There are two reasons for this.

The State, so far as most civilized nations are concerned, has come to be essentially the people, and the whole people. There is therefore less jealousy and apprehension on the part of the majority of men as to what it may do.

It has been found that orderly co-operation is the law of social life, and that government can be trusted to enforce it in many ways once not contemplated. Public schools and libraries and parks and hospitals rest on this foundation. The mails, the railroads built by seizing land for public use, the lines of telegraph and telephone, all illustrate it.

Huxley, in defending the tendency to extend the police power of the modern State against the limitations of "Admin

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