Page:American Historical Review vol. 6.djvu/595

Reinsch : Common Lazv in American Colonics 585 garded as binding, and in which indeed it was sometimes consciously rejected ; (3) even in the other colonies there existed at first a rude, un- technical, popular law — -the child of American conditions, departing widely from the English common law in fact and indifferent to it in theory; (4) it was at a later date, toward the end of the seventeenth century, that the growth of trained lawyers and the pressure from the mother-country brought about the recognition of the English system — which continued, however, to be affected vitally by the earlier American popular law. These positions are justified by an examination into the legal ideas and practice of the early settlers, colony by colony, from north to south. ' The criticism is sound ; and historians and jurists alike are under ob- ligations to Dr. Reinsch for emphasizing it. It is the more a matter of regret that the monograph is marred by many blemishes. Only a few can be noted here. The author tends to exaggerate his points. There is much repetition within small compass, where greater detail instead would be ac- ceptable. The geographical order of investigation fails to justify itself. There is a curious determination to find "reversions" (on pages 5, 8, i9> 33' 37> 46) ^"d 55, out of fifty-five pages of text) : none of these are very clear, and many clearly are not reversions. Thus the union of powers in colonial councils (p. 33) is certainly not an American reversion ; the courts of justices in Virginia (p. 46) were not a " reversion to the very archaic type of Doomsmen of the Anglo-Saxon courts," but a remarkably good copy of an existing English institution ; the practice of attainting juries (pp. 19 and 56) was not a " reversion " to an "archaic " custom, but a natural continuance in America of a practice just dying out in England. Other misstatements abound. The idea that unification of legal prin- ciples (p. 9) was in any way due to a growth of national feeling before the Revolution seems an unjustifiable assumption. That magistrates heard cases involving small sums without a jury (p. 13) and that men were fined for "seditious" speech (p. 15) are rather illustrations of the influence of contemporary English practice- than the contrary. The Massachusetts Body of Liberties (of 1641) could hardly have " re-enacted " (p. 13) a clause of the " fundamentals " (?) of 1646. It is hardly fair to assure us twice that the men of Massachusetts regarded Magna Charta as the " em- bodiment of the common law " (p. 21) on the authority of a document which has only nine references to Magna Charta and twenty-nine to other "Common Lawes of England." It is impossible to close without regret- ting the author's frequent dependence upon secondary authorities in a treatise which has for its express purpose to combat vague views accepted on just such a basis. The close following of Campbell's History (p. 46) on the Virginian courts is particularly unfortunate — especially in the state- ment that the "General Court" grew up by custom, seeing that this court was instituted by the earliest charters, and that its appellate juris- diction (probably the matter in question) was expressly reserved when the county courts were originally established. W. M. West.