THE PROBLEMS OF TO-DAY 355 



of auxiliary legal remedies, and of legal process in general, the history 

 of mercantile law above mentioned (chiefly commercial paper, mari- 

 time law, and corporations), the history of conflict of laws, of in- 

 solvency laws, of public officers' liability, and of some doctrines of 

 equity. 



(C) The transatlantic or American history of our law falls naturally 

 into four parts: (1) the colonial history, (2) the later judicial devel- 

 opment of the substantive common law as modified by statute in 

 a few parts, (3) the statutory forms of procedure, and (4) the adop- 

 tion of bodies of Spanish law in the Southwest. 



(1) The colonial law remains as yet a rich and untilled field. The 

 doctors of philosophy have sufficiently diagnosed almost all of the 

 political and economic conditions which surrounded it, and the editors 

 have edited many portions of the archives; but the professedly legal 

 historian of the private law has not yet arisen. We know that much 

 law was brought directly over; the Massachusetts Colony sent for 

 Coke's Reports, so that it should not be forgotten. We also know 

 that some colonies discountenanced professional lawyers, so that 

 much inherited law was discarded or mutilated. We know, too, that 

 several of the many sound reforms which the Cromwellian Common- 

 wealth had planned, but the restoration of Charles had defeated, 

 were carried out in some of the colonies, for example, the com- 

 pulsory registration of conveyances of land. But the systematic 

 exhumation of the private law as a whole, so far as it appears on the 

 records, has not been attempted, even for a single colony. Nor would 

 it be, in any part, of merely dead historic interest. Chief Justice 

 Kent decided a great many cases from his English reading, not from 

 local traditions or records; and after the English reports began to 

 multiply rapidly, from 1790 to 1810, they were chiefly relied on 

 even here. But the interesting thing is often seen, when an American 

 rule is found to differ from an English one, that it differs because it 

 had already been different in the tradition before 1800. All this 

 body of prior tradition remains to be systematically expounded. 



(2) The development of substantive law since 1800 is to be found 

 usually described with sufficiency in the treatises on the special 

 topics of the law. In the law of real property, of marriage, and of 

 other subjects, there have been numerous important variations. But 

 these local historical features are not so significant for the general 

 understanding of our present law as the prior history of English law 

 itself, and the time has hardly yet come when a comprehensive survey 

 is either feasible or necessary. It is only to be noticed that the 

 writers of treatises do not usually handle their subject as much in the 

 historical spirit as it now deserves. 



(3) The development of procedural changes has been widespread. 

 For the code system, so-called, its history has been described by 



