Common law refers to the rules expounded by the decisions of common law courts of England, which are those that set precedent. There are three popular theories on how common law was received in the American colonies. The first theory, and most popular one, is that common law was enforced from the time of settlement, and it has been explicitly referenced by Justice Joseph Story in Van Ness v. Pacard (1829) and Chief Justice Lemuel Shaw in Commonwealth v. Chapman (1847). 

The second theory, created by Professor Paul S. Reinsch, is that the colonies created and enforced their own laws before common law was adopted. Research by Dean Charles J. Hilkey suggests that law in Massachusetts Bay was influenced primarily by the Bible and an indigenous local element and not just common law, offering some support to this theory. The third theory, created by Professor Julius Goebel, is that the colonies adopted laws from borough and manor courts rather than common law courts since they would be more familiar with them. His study on the Plymouth Colony suggests that their laws were similar to those of local courts, offering some evidence. 

Historically, most governments in the colonies started with a royal charter with a proviso stating that laws should align with the laws of England and not contradict them. However, in practice, recognition of common law varied across the colonies. For example, prior to the expansion of the court system in the 1630’s and adoption of the Body of Liberties of 1641, which had evidence of Biblical and common law influences, Massachusetts leaders made legal decisions as they saw fit while Virginia, which was the first royal colony, was loyal to English common law until Bacon’s Rebellion in 1676. In addition, during the 17th century, there were few to no English-trained lawyers in the colonies that practiced law. However, most legal documents were treaties and manuals for legal officials, suggesting that the basic principles of common law were known at least at the appellate level of court. 

While the British demonstrated little interest in how the colonies were prior to the 18th century, on May 19, 1646, the first parliamentary legislation that addressed the colonies declared that they were to be governed by Parliament though it was later repealed. In 1664, “Duke’s Laws” were enforced in New York, and a four-man royal commission failed to form a royal court that would have set precedent that colony courts would have to follow in Boston. In 1692, the British government annulled the charters in Massachusetts and Maryland and appointed a royal governor, who, in turn, appointed judges and justices of peace. Parliament passed the Navigation Act of 1969 which created a system of six colonial vice-admiralty districts and courts essentially under British control that soon became symbols of oppression. 

During the 18th century, there was an increase in English-trained lawyers, most coming from England to the colonies. Henry Jowles became the first trained lawyer to become an appellate court judge in 1697, and William Attwood became the first trained lawyer to become a chief justice in 1701. Citations of English cases in the colonies can be dated to the early 1700’s, such as in Tanner v. Freeland. In 1712, South Carolina formally adopted the English common law, in addition to 126 English statues selected by Chief Justice Nicholas Trott (including one with strict requirements for lawyer admission, making South Carolina have the highest educated bar in the colonies), with North Carolina following in 1715 and Pennsylvania in 1718. The use of English common law in the colonies was made regular by the formal adoption of English common law in the colonies in addition to increasing attempts to control the colonies by the British government.