974-4 RBT
Beinsch, P.S.
How in the curly
Awais colonies.
University of Michigan
B 353179
;
+
GENERAL LIBRARY
OF
UNIVERSITY OF MICHIGAN
PRESENTED BY
7 2
1
1900
Full R
ENGLISH COMMON LAW IN THE EARLY AMERICAN
COLONIES
BY
PAUL SAMUEL REINSCH, A. B., LL. B. .
A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY,
UNIVERSITY OF WISCONSIN, 1898.
MADISON, WISCONSIN
OCTOBER, 1899
ENGLISH COMMON LAW IN THE EARLY AMERICAN
COLONIES
87547
BY
PAUL SAMUEL REINSCH, A. B., LL. B.
A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY,
UNIVERSITY OF WISCONSIN, 1898.
MADISON, WISCONSIN
OCTOBER, 1899
CONTENTS.
INTRODUCTION..
CHAPTER I.-New England....
CHAPTER II.-The Middle Colonies ..
CHAPTER III.-The Southern Colonies..
CHAPTER IV.-Conclusion
BIBLIOGRAPHY..
PAGE.
5
11
30
45
53
60
1
THE ENGLISH COMMON LAW IN THE EARLY
AMERICAN COLONIES.
INTRODUCTION.
When American legal history comes to be studied more thor-
oughly, it will perhaps be found that no country presents, in
the short space of three centuries, such a variety of interesting
phenomena. An old nation, marked for a sturdy sense of
right, sends colonies into a wilderness; they form rude institu-
tions, often suggesting early European experience, to govern
their simple social relations. As society grows more intricate,
more highly organized, the legal institutions of the mother
country are gradually received and applied, until a large portion
of the common law is transferred to the actual practice of the
colonies. Their law, however, always retains the impress of
the earlier originality, when new conditions brought forth new
institutions and new legal ideas. The struggles with the mother
country tend to cause a wide spread of legal knowledge, and
the common law is revered as a muniment of personal liberties.
Blackstone is outdone by American lawyers in extravagant pan-
egyrics. It is only when the rationalizing tendencies of French
democracy become triumphant in America, that the value of the
common law is openly and bitterly attacked. Then comes the
great reforming and codifying movement of this century, in
which New York is the leading state. Unconscious develop-
ment of custom, reversal to simpler forms, adaptation and modi-
fication of a technical system brought from abroad, conscious
reform, and, finally, the effort to cast all legal relations into a
simple and lucid system,-all these phenomena can be traced
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6
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
in our law, and nowhere can the interaction of popular conscious-
ness of right with legal institutions be more fully and clearly as-
certained.
The first question that confronts the investigator concerns the
influence upon our system of the English common law, that
complex body of principles and rules, contained, at the early
colonial period, in the Year Books, Reports, and the standard
law treatises of quasi-judicial authority. Statutory law-making
had been but sparingly used up to this time in England, and
the law of property and personal security, criminal law, and
procedure, found their norms in a long series of judicial prece-
dents. The transfer of this system to the colonies, its amalga-
mation with new forms there originated, its adaptation to novel
conditions, constitutes a subject of rare interest.
The accepted legal theory of this transfer is well known. It
is clearly stated by Story in Van Ness v. Packard, 2 Peters, 144:
"The common law of England is not to be taken in all respects
to be that of America. Our ancestors brought with them its
general principles, and claimed it as their birth-right; but they
brought with them and adopted only that portion which was
applicable to their condition." This theory is universally
adopted by our courts, and it has given them the important
power of judging of the applicability of the principles of the
common law to American conditions. According to this view,
the common law was from the first looked upon by the colonists
as a system of positive and subsidiary law, applying where not
replaced by colonial enactments or by special custom suited to
new conditions.
While this legal theory is adopted as an eminently satisfac-
tory explanation of the jurisprudence of today, it is not complete
enough to afford an adequate synthesis of colonial legal facts
for the historian. It contains, of course, the great truth that
men cannot all at once cut themselves loose from a system of
thought or action under which they have lived; that, though
they transfer themselves entirely to new conditions, their no-
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES.
7
tions and institutions must necessarily be circumstanced and col-
ored by their former experience. Thus, of course, the more
simple, popular, general parts of the English common law were
from the first of great influence on colonial legal relations. This
is, however, very far from declaring the common law of England
a subsidiary system in actual force from the beginning of colo-
nization. On the contrary, we find from the very first, original-
ity in legal conceptions, departing widely from the most settled
theories of the common law, and even a total denial of the sub-
sidiary character of English jurisprudence. The first problem
to be determined is therefore this: What was the attitude of
the earliest colonists towards the common law as a subsidiary
system? To the solution of this question this thesis addresses
itself.
The earliest settlers in many of the colonies made bodies of
law, which, from every indication, they considered a complete
statement of the needful legal regulations. Their civilization
being primitive, a brief code concerning crimes, torts, and the
simplest contracts, in many ways like the dooms of the Anglo-
Saxon kings, would be sufficient. Not only did these codes in-
novate upon, and depart from the models of common law, but,
in matters not fixed by such codes, there was in the earliest times
no reference to that system. They were left to the discretion
of the magistrates.
In many cases the colonists expressed an adhesion to the com-
mon law, but, when we investigate the actual administration of
justice, we find that usually it was of a rude, popular, summary
kind, in which the refined distinctions, the artificial develop- L
ments of the older system have no place. A technical system
can, of course, be administered only with the aid of trained law-
yers. And these were generally not found in the colonies dur-
ing the 17th century, and even far down into the 18th we shall
find that the legal administration was in the hands of laymen
in many of the provinces. Only as the lawyers grow more nu-
merous and receive a better training do we find a general re-
(399)
8
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
ception and use of the more refined theories of the common law.
It is but natural, that with increased training the courts and
practitioners should turn to the great reservoir of legal expe-
rience in their own language for guidance and information; the
courts would be more ready to favor the theory of the adoption
of the common law as it increased their importance, virtually
giving them the power to legislate for the colonies. The fore-
going statements are especially true of New England, where
the subsidiary force of the common law was plainly denied;
where a system of popular law (Volksrecht) grew up; and,
where the law of God took the place of a secondary system.
In many instances we also note a clear reversion to an earlier
type of law; the colonists again passing through the very ex-
periences of their English fore-fathers in developing their legal
institutions. As examples of this we might mention the union
of powers in the councils; the petitioning against the exercise
of extraordinary jurisdiction by the council in ordinary cases,
which carries us back to the time of Edward III; archaic con-
ceptions of the jury; the system of petty popular courts which
had long become obsolete, or only maintained a precarious ex-
istence, in old England.
The legal theory of the transfer has its established place in
American jurisprudence; but, historically, it should be modified
so as to bring out the fact that we had a period of rude, untech-
nical popular law, followed, as lawyers became numerous and
the study of law prominent, by the gradual reception of most
of the rules of the English common law. In this way only
shall we understand, from the first, the very characteristic and
far-reaching departures from older legal ideas which are found
in the New World; while, at the same time, its full importance
is assigned to the influence of English jurisprudence in mould-
ing our legal thought. The theory of the courts is an incom-
plete, one-sided statement needing historical modification.
When the courts come to analyze the nature of the law actually
brought over by the colonists they find it a method of reason-
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES.
9
ing,¹ "a system of legal logic, rather than a code of rules;" the
rule, "live honestly, hurt nobody, and render to every man his
due."2
Such a very indefinite conception of the matter is with-
out value historically; on the basis of this indefinite notion there
has been claimed for the courts an almost unlimited power, un-
der the guise of selecting the applicable principles of the com-
mon law, of fixing really new and unprecedented rules and, by
their adjudications, legislating in the fullest sense of the word.
On the other hand, a historical study will reveal a most inter-
esting organic growth, and, after the records have been more
fully published, no system will offer more of interest to inquiring
students than that developed on American soil. The study of
the documents reveals great diversities in the early systems of
colonial laws. Then with the growth of national feeling there
comes also a growth of unification of legal principles, for which
the English common law affords the ideal or criterion. And,
though during the decade immediately preceding Independence,
the English common law was generally praised and apparently
most readily received by the larger part of American courts,
still the marks of the old popular law remain strong and most
of the original departures in American jurisprudence can be
traced back to the earliest times.
The object of this thesis is to present the attitude of the colo-
nists during the 17th century, and in some cases during the
18th, towards the common law of England. The manner of treat-
ment will be by colonies; the purpose is to discuss first the colo-
nies of New England in which the departure from common law
ideas is most clearly marked, followed by the Middle and South-
ern colonies, many of which adhered more closely to the Old
World model.
Neither does the scope of this thesis include, nor the extent
of the hitherto published sources permit, a complete presenta-
tion of the varying systems of private law in use in the colo-
¹ Morgan vs. King, 30 Barbour, 13.
Marks vs. Morris, 4 Hening and Mumford, 463.
(401)
10
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
nies. Very few of the colonial court records have been pub-
lished; in some cases, as in Virginia after the Richmond fire of
1865, most of them are unhappily lost forever. A publication
of characteristic records of this kind is a desideratum not only
for legal history, but for the study of the general economic and
social development. However, sufficient material is extant in
accessible form to show the general attitude of the colonists and
colonial courts towards the common law as a technical system,
and it is this only on which the thesis hopes to throw some light.
(402)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 11
CHAPTER I.
NEW ENGLAND.
Massachusetts.
""
The ideas of the Massachusetts colonists on the matter of
law appear very clearly from a resolve of the general court¹ of
the year 1636. The government is there entreated to make a
draft of laws "agreeable to the word of God" to be the fundamen-
tal laws of the commonwealth. This draft is to be presented to
the next general court. In the meantime, the magistrates are to
proceed in the courts to determine all causes according to the laws
then established (the early laws of the general court), and where
there is no law "then as near the law of God as they can.
The council is also empowered to make orders for the general
conduct of business which is not yet covered by any law, and
herein to apply its best discretion according to the rule of God's
word. There is here absolutely no reference to the common
law of England. As a subsidiary law the word of God is ap-
pealed to, as interpreted by the best discretion of the magis-
trates. This led to the administration of a rude equity, accord-
ing to the idea of justice held by the magistrate, influenced by
popular ideas and customs. With a homogeneous population
holding the same general views on morals and polity, a true
popular system of law could thus be produced, unrefined by ju-
ristic reasonings, untrammeled by technical precedents, satisfy-
ing, in general, the sense of right in the community. Should,
however, alien elements intrude, they would find such a system
exceedingly uncongenial and oppressive.
We find that in the early years of the colony the magistrates
¹ Massachusetts Colonial Records, I, 174.
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12
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
and persons in authority were intensely reluctant to have any
written laws made, because by these their discretion would be
restrained. The reason assigned by Winthrop² for this reluc-
tance was the desire to have laws grow up by custom, so as
to have them adapted to the nature and disposition of the peo-
ple, which could not be sufficiently known to the magistrates
properly to legislate for them. A second reason was that the
charter provided that the colonists should make no laws repug-
nant to the laws of England. This they held to refer to positive
legislation. The growth of law by custom, though the product
might be radically opposed to English principles, they believed
no infringement of the charter. Notwithstanding these rea-
sons of the magistrates, the general court insisted upon having
a comprehensive body of laws made. The controversy had none
of the acrimony of the similar struggle for written laws in
Rome before the Twelve Tables; but we can note the same prin-
ciples at work; the magistracy, in whose discretion the admin-
istration of the laws has so far been founded, are reluctant to
give up a part of this power, and therefore resist a codification
of law. The outcome of this agitation was the passage of the
celebrated Body of Liberties,³ in 1641. To evade one of the
objections noted by the magistrates, this code was not really
enacted as law, but the general court did "with one consent
fully authorize and earnestly entreat all that are and shall be
in authority to consider them as laws." The laws had been pre-
pared by Nathaniel Ward, a minister with some legal train-
ing. They had been revised by the general court and sent into
every town for further consideration. Upon the suggestions
thus gathered they were again revised and then established as
above mentioned. A more careful process of legislation is per-
haps nowhere recorded. The laws may therefore be looked
upon as a full expression of the popular sense of what the legal
relations in the colony should be.
2 John Winthrop's History of New England, 322.
* Winthrop's Journal, Ed. 1790, p. 237.
(404)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 13
4
Ward, in a letter to Governor Winthrop, December 22, 1639,
questions the advisability of submitting the laws to the different
towns for consideration by the freemen thereof, and fears
that the spirits of the people might rise too high. They should
not be denied their proper and lawful liberties, but he questions
"whether it be of God to interest the inferior sort in that which
should be reserved ‘inter optimates penes quos est sancire leges.'
5
Turning now to the Body of Liberties itself, we find that
the doctrine stated in 1636 is again announced, that no man's
life shall be taken away unless by virtue of some express law
established by the general court, or, in case of the defect of the
law in any particular case, by the word of God. This provision
re-enacts the rule of the Massachusetts fundamentals. "In all
criminal offenses where the law hath prescribed no certain pen-
alty, the judges have power to inflict penalties according to the
rule of God's word.”
The provisions of the Body of Liberties also show the theo-
cratic nature of the Puritan colony. It contains, moreover,
many provisions originated by the colonists in response to their
special needs. The criminal law is founded on the code of
Moses, though the breaking of the Sabbath and the striking of
parents are not made capital offenses. In the laws of 1658, how-
ever, the latter offense, as well as rebellious conduct against
parents is made capital. The law of inheritance is taken from
the Scriptures.
Imprisonment for debt, except when property is concealed,
is not in use. Any debt due in bill or specialty may be assigned,
and the assignee may sue upon the same. Cases involving an
amount not over forty shillings are to be heard by magistrates
or a commission of three freemen without a jury. A suit is
commenced by summons or attachment. Testimony may be
taken in writing by any magistrate or authorized commissioner
* Massachusetts Historical Collections, Series IV, vol. VII, 26.
Body of Liberties, p. 1.
• Hutchinson, State Papers, 205:
Book of General Lawes and Liberties, 1660, p. 8 and following.
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14
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
to be used in criminal or civil cases. If the party cast has any
new evidence or matter to plead he can obtain a new trial on
bill of review. Free tenure of lands is adopted and all feudal
incidents are abolished. Conveyances are to be by deed in writ-
ing. The period of prescription for title by possession is fixed at
five years.
Civil marriage is instituted.
The code of Ward was not the only one prepared for Massa-
chusetts. John Cotton also submitted to the general court a
body of laws, founded throughout on the Scriptures, with ref-
erences thereto. This code, though published in England and
there reputed to be in force in the colony, was never enacted
at all by the general court. The conception of law current
among the Puritans is well illustrated by the remark of Cotton
that he should not "call them laws because God alone has the
power to make law, but conventions between men." This
theory of law as the command of God, the medieval conception
uncolored by the modern views of sovereignty, seems to have
been firmly held by the Puritans of New, as of Old, England.⁹
The same view in addition to the reasons cited above may have
prompted the general court not to call the Body of Liberties laws,
but to pass them in the form of recommendations.
Turning now to the practice of magistrates and courts in the
actual conduct of cases we shall find the same principles univer-
sally acknowledged. Everywhere, the divine law, interpreted
by the best discretion of the magistrates, is looked upon as the
binding subsidiary law; while the common law is at most re-
ferred to for the sake of illustration.
In 1641, the court had under consideration the case of the
rape of a small child. There was a great question as to what
kind of sin it was, and the court "sought to know the mind
of God by the help of all the elders of the country." On the
authority of Deuteronomy XVII, 12, it was held in another case
that presumptuous sins were not capital unless committed in open
8 Hutchinson Papers, vol. I, 160.
Figgis, Divine Right of Kings, p. 223.
(406)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 15
contempt of authority; and, in connection with this, Winthrop
remarks that the "only reason that saved their lives was that
the sin was not capital by any express law of God, nor was it
made capital by any law of our own." In the same connection,
Winthrop discusses the exaction of a confession from a delin-
quent in capital cases. It was decided that where one witness
and strong presumption point at the offender, the judge might
examine him strictly; but if there is only slight suspicion the
judge is not to press him to answer.10 After the trial in the
Hingham matter 11 the Deputy Governor stated in a public
speech: "The great questions that have troubled the country
are about the authority of the magistrates and the liberty of the
people. The covenant between you and us is that we shall judge
you and
your causes by the rules of God's law and our own.
On the trial of Mr. Hubbard12 the court told the pris-
oner that he was to be tried by the law of God, which the magis-
trates were to judge by in case of the defect of the express law.
Hubbard complained that the law of God admitted of various
interpretations, and after being fined and bound to his good be-
havior he asked to know what good behavior was. The jury
in this case found him guilty of uttering diverse speeches "tend-
ing to sedition and contempt of said government and contrary
to the law of God and the peace and welfare of the country.
The form of punishment was largely in the discretion of the
magistrates.14 Although the English names of actions were
used, the practice was exceedingly lax, and the action on the
case was constantly used for the recovery of land; thus disre-
garding the fundamental distinction between real and personal
property and real and personal actions in the English law.15
The distinctions between common law and admiralty procedure
were totally disregarded.¹
16
10 Winthrop's History of New England, II, 56, 250.
11 Ibid., II, 221, 228.
12 Ibid., 255.
13 Massachusetts Historical Society Collections, II, vol. IV, 110.
14 Lewis, History of Lynn, pp. 73, 81.
18 Washburn, Judicial History of Massachusetts, p. 61.
"13
16 Case of Lady Latour vs. Bailey, Winthrop's History of New England, II, 192.
(407)
16
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
In the Hutchinson Papers 17 there is preserved a very inter-
esting account of a case before Symonds, magistrate. To judge
from his letters, Symonds was a careful student and great ad-
mirer of the English common law.18 The case under considera-
tion, Giddings vs. Brown, brought up some very interesting
questions as to the nature of law and the power of the courts.
A dwelling had been voted by a town to its minister; the plain-
tiff had resisted the collection of the tax that had been levied
to pay for this dwelling, and his goods were accordingly dis-
trained. Symonds, in giving judgment for the plaintiff, says
that "the fundamental law which God and nature has given
to the people cannot be infringed. The right of property is
such a fundamental right. In this case the goods of one man
were given to another without the former's consent. This re-
solve of the town being against the fundamental law is therefore
void, and the taking was not justifiable." Symonds refers with
respect to the English law and quotes Finch and Dalton.
uses it, however, merely for illustration, and says "let us not
despise the rules of the learned in the laws of England who have
every experience." The precedents on which he relies are colo-
nial, their binding force is recognized. The substance of the
judgment is that property cannot be taken by public vote for
private use. The opinion is interesting as an expression of nat-
ural law philosophy, and it is, perhaps, the earliest American
instance where the power is claimed for the courts to control
legislative action when opposed to fundamental law.¹ The
case, moreover, shows very clearly in what light the common
law was regarded by the New England colonists; not at all bind-
ing per se, but in as far as expressive of the law of God to be
used for purposes of illustration and guidance.
19
He
Popular courts of jurisdiction in petty cases, which had long
fallen into disuse in England, were established in most of the
17 Hutchinson Papers, Vol. II, p. 1.
18 Letters of Symonds to Gov. Winthrop, Massachusetts Historical Society Col
lections, IV, vol. VII, pp. 124, 132.
19 Cf. Coke's opinion in Bonham's Case, 8 Rep., 118a.
(408)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 17
colonies. In Massachusetts inferior courts consisting of five
judges, one of whom was an assistant, and having jurisdiction
in lesser civil and criminal cases, were early established.20
Petty civil cases in the towns were tried by courts of one judge,
or commissions of three freemen.21 A system of appeals was
instituted, ascending from the town court to the inferior or
county court, thence to the assistants, thence to the general
court. Appeal to England was not allowed and claims for it
were always strenuously resisted.
The pleadings in these courts were very concise and informal,
and there was little regard paid to forms of action.22 Up to
1647, the pleadings seem to have been oral. By a law of that
date23 it was enacted that the declaration should be drawn up
in writing and should be filed with the clerk of the court three
days before the term.
Contrary to the English custom, a record of evidence given
in the courts seems to have been kept from the earliest times.
In 1650, it was enacted24 that on account of the inconvenience
of taking verbal testimony in court, the clerk not being able
to make a perfect record thereof and prevent all mistakes, the
evidence should be presented in writing to the court, either at-
tested before a magistrate or in court upon oath.
This pro-
vision, thoroughly at variance with the common law, excited
the adverse comment of professional lawyers.25
Coming now to the trial by jury, we find that this ancient and
popular institution was in early use in Massachusetts, a jury
having been empanelled a few months after Winthrop's ar-
rival.26 The system was, however, by no means unquestion-
ably accepted, and seems to have had a very insecure tenure
for a time. In 1642, a commission was appointed to consider
20 Massachusetts Colonial Records, I, 169.
21 Ibid., 239.
22 Washburn, Judicial History, 48.
23 Massachusetts Colonial Records, II, 219.
24 Ibid., II, 211.
25 Documents Relative to the Colonial History of New York, IV, 929.
26 Massachusetts Colonial Records, I, 77–78.
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18
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
whether to retain or dismiss juries in the trial of causes;27 and
it appears that juries were for a time abolished, for, in 1652,
we find the following resolve "the law about juries is repealed
and juries are in force again."28
The mode of trial exhibits many interesting peculiarities.
The province of judge and jury is quite correctly defined in
an act of 1642, where the finding of matters of fact by the
jury, instructions in law by the court, and the decision of mat-
ters of equity by the latter is provided for.29 In 1657, the
jury was permitted to present a special verdict.30 But it seems
that for a time the magistrates acquired a very considerable
power of controlling the jury. Hutchinson says: "The jury
sometimes gave their verdict, that there were strong grounds
of suspicion, but not sufficient for conviction. Upon such a
verdict the court would give sentence for such offenses as the
evidence at the trial might have disclosed." He adds in a note
the advice of Lieut. Gov. Stoughton to Governor Hinckly of
Plymouth, given in 1681: "The testimony you mention against
the prisoner I think is sufficient to convict him; but, in case
your jury be not of that mind, if you hold yourself strictly
obliged by the laws of England, no other verdict but 'not guilty'
can be brought in; but, according to our practice in this juris-
diction, we should punish him with some grievous punishment
according to the demerit of his crime, though not found
capital.”31
In 1672, an attempt was made to limit the power of the magis-
trates in this respect. 32 For the controlling authority of the
magistrates there is offered as a substitute the archaic method
of attainting the jury for giving a verdict contrary to the weight
of evidence; and the law allowing the magistrates to refuse the
verdict of the jury is repealed. This is a remarkable instance
27 Massachusetts Colonial Records, II, 28.
28 Ibid., IV, 107.
29 Ibid., II, 21.
30 Ibid., III, 425.
31 Massachusetts Historical Society Collections, Series II, Vol. I, p. XXII.
32 Massachusetts Colonial Records, IV, part 2, p. 508.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 19
of reversion to an archaic method. The jury in such a case was
to be tried by a new jury of twenty-four, and the court had no
control over the verdict. It seems that many juries were at-
tainted, because in 1684 it was enacted33 on account of the un-
reasonable trouble caused by numerous attaints, that the cause
of attaint shall be given in writing; that if the verdict is con-
firmed, the person attainting shall be fined 34 pounds; and that
the jury may also prosecute him for slander, with other addi-
tional penalties. The jury were also at liberty, when they were
not clear in their conscience about any case, "in open court to
advise with any man they should think fit, to resolve and di-
rect them before they gave their verdict."34
In the colonial system of Massachusetts we find traces of the
common law; the less technical parts of its terminology are in
use, forms of contracts and deeds are modeled on English prece-
dents, although for the latter acknowledgment and recording
is essential to validity.35 But the authority of the common law
as a subsidiary system is nowhere admitted, its principles are rad-
ically departed from and its rules used only for purposes of il-
lustration.
The magistrates administered a rude system of popular law
and equity, on the basis of the Scriptures and their own ideas
of right, generally to the satisfaction of the homogeneous Puri-
tan communities; though there are some struggles recorded, such
as that for written laws and for the control of the juries. Capt.
Bredon writes to the Council of Colonies, speaking of the printed
laws of Massachusetts: "What laws are not mentioned in this
book are in the magistrates' breasts to be understood."36 The
elements dissatisfied with this regime generally left for Rhode
Island, the Connecticut river settlements, Maine or New Hamp-
shire, where society was less autocratic; but still we find a num-
33 Massachusetts Colonial Records, V, 449.
34 Colonial Laws of Massachusetts Bay, Ed. 1660, pp. 47, 48.
35 Massachusetts Colonial Records, I, 116; and Suffolk County Deeds.
36 Documents Relative to the Colonial History of New York, III, 39.
(411)
20
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
ber of protests recorded against the manner of administering
the law by persons remaining in the colony.
The complaint that no one could have justice but members
of the church³7 is very common on the part of outsiders. In
1646, there was a very important controversy, in which a party
of men led by Robert Child demanded the establishment of
English law. In their remonstrances38 they say that they can-
not discern a settled form of government according to the laws
of England; nor do they perceive any laws so established as
to give security of life, liberty, or estate. They object to dis-
cretionary judgments as opposed to the unbowed rule of law,
and petition for the establishment of the wholesome laws of
England, which are the result of long experience and are best
agreeable to English tempers; that there should be a settled rule
of adjudicature from which the magistrates cannot swerve.
Those laws of England, they say, are now by some termed for-
eign, and the colony termed a free state.
In the answer by the general court39 the petitioners are held
up to ridicule for their own ignorance of what English laws they
really wanted. It is then asserted that the laws of England
are binding only on those who live in the English country, for
neither do the laws of Parliament nor the King's writ go any
farther. "The laws of the colony," they say in substance, "are
not diametrically opposed to the laws of England, for then they
must be contrary to the laws of God, on which the common
law, so far as it is law, is also founded. Anything that is other-
wise established is not law but an error, as it cannot be accord-
ing to the intent of the law-makers to establish injustice."
This is the true Puritan idea of law as the command of God;
the general court asserts that the common law, so far as it is
law, must embody divine justice. For their part the Puritans
prefer to go to the original source of law, the Scriptures.
37 Massachusetts Historical Society Collections, Series IV, vol. VII, p. 370.
38 Hutchinson Papers, Prince Society, I, 189.
39 Winthrop, History of New England, II, star p. 284.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 21
In connection with this matter the general court also made
a declaration which was evidently intended for the general pub-
lic and the home government.40 They there assert that the
government is framed according to the charter and the funda-
mental and common laws of England. They add in brackets,
"taking the words of eternal righteousness and truth with them
as the rule by which all kingdoms and jurisdictions must render
account." Then they make a comparison between the funda-
mental and common laws of England and the laws of the col-
ony, taking Magna Charta as the embodiment of English com-
mon law; and they state that, as the positive laws of England
are constantly being varied to answer different conditions, they
should consider it right to change and vary their legislation
according to circumstances. They confess an insufficient knowl-
edge of the laws of England, and say, "If we had able lawyers
amongst us we might have been more exact." Their comparison
of the laws shows the rudimentary character of their knowledge.
Finding some discretion allowed English judges in criminal
cases they take this as a precedent for the Massachusetts method
of inflicting penalties according to the rule of God's word.
They conclude by instancing the extraordinary jurisdictions in
England, the chancery, the court of requests, the admiralty and
ecclesiastical courts, and say that experience shows that Eng-
lishmen may live comfortably and securely under some other
laws than the common and statutory laws of England.
The methods of Massachusetts colonial justice are described
by Letchford in his book, Plaine Dealing. He was a lawyer
who had been employed in doing minor editorial work on the
Body of Liberties. Owing to the prejudice against lawyers,
general in the colonies but especially strong here, he was not
permitted to practise his profession, and therefore was perhaps
an unreasonably severe critic of the system under which he suf-
fered. As his views are, however, corroborated by the state-
ments of other witnesses, their truth so far as the proceedings
40 Hutchinson Papers, 1, 197.
3
(413)
22
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
41
of the courts are concerned may perhaps be accepted. He says
among other things that the governor in charging the grand
jury uses the heads of the ten commandments. That in jury
trials matters of law and fact are not distinguished.42 The rec-
ords of the courts are not kept in due form of law, in most cases
the verdict only being entered. Hence the disposition to slight
all former laws and precedents, "but go hammer out new upon
the pretense that the word of God is sufficient to rule us." He
advises his brethren to "despise not learning nor the learned
lawyers of either gown.'
""
In his narrative to the council43 Edward Randolph states that
"the laws and ordinances of Massachusetts are no longer ob-
served than they stand in their convenience; and in all cases,
regarding more the quality and affections of the persons to their
government than the nature of their offense." He states that it
was regarded as a breach of the privilege of the colony to urge
the observation of the laws of England, and notes some of the
provisions repugnant to the common law, such as obtaining
prescriptive title to land by possession for five years, and the
use of the word of God as a rule in criminal cases. In another
report in 1678 he states that the laws of England are neither
in the whole nor in any part of them valid or pleadable in the
colonial courts until received by the General Assembly.**
The colony always resisted claims of a right of appeal to Eng-
land; this was one of the most important points of controversy
between the colonial court and the home government after 1660.
In that year the colonists instructed Captain John Leveritt as
their agent in England to resist any claims or assertions of ap-
pellate jurisdiction, because that would render government and
authority in the colony ineffectual and bring the court into con-
tempt with all sorts of people.
In 1677, the Privy council made specific objection to the
41 Plaine Dealing, Trumbull's edition, p. 26.
42 Ibid., p. 27.
48 Hutchinson Papers, II, p. 210.
"Edward Randolph, Prince Society Publications, II, 311.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES.
23
The
In
laws of Massachusetts repugnant to the laws of England.
Attorney General submitted a catalogue of such laws.45
answer to these objections the general court made several amend-
ments in 1681;46 the law concerning rebellious sons, concern-
ing Quakers, and the law against keeping Christmas were left.
out; but no alteration was made in the law of marriage and
Sunday legislation. In connection with this controversy the
general court again asserted the independence of the colony
from English laws.47 They speak of the laws of England as
bounded within four seas and not reaching to America.
American subjects not being represented in Parliament should
not be impeded in their trade by Parliament. Before this time
legal proceedings had been carried on in the name of the colony.
One of the results of the controversy was that the general court
yielded in this respect, and process was hereafter issued in the
name of the king.
The
After the charter had been annulled, there followed a strong
and continued effort to introduce the common law. By the
commission of Sir Edmund Andros, in 1688 the governor and
council were appointed a court of record to try civil and crimi-
nal cases, their proceedings and judgment to be consonant and
agreeable to the laws and statutes of England.48 The arbitrary
government of Andros, however, did perhaps more to introduce
a knowledge of the common law, than this provision, because
against his despotic rule the colonists now began to assert rights
protected by the English law, such as the right of Habeas Corpus.
Thus when we hereafter find expressions of admiration for or
adherence to the common law, such as are very common in the
succeeding century and especially at the beginning of the Revo-
lutionary War, they refer rather to the general principles of
personal liberty than to the vast body of rules regulating the
Palfrey, quoting from Phillip's collection of manuscripts, History of New
England, III, 309.
46 Massachusetts Colonial Records, V, 321.
47 Ibid., V, 198 200.
48 Documents Relative to Colonial History of New York, III, 539.
(415)
24
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
rights of contract and property and the ordinary proceedings in
court.
By the charter of 1692, the appointment of judges and jus-
tices of the peace was given to the governor and the council.
Their tenure was practically during good behavior;49 but though
the direct popular nature of the courts was thus destroyed, it
was a considerable time before trained jurists came to control
the administration of law in Massachusetts.
Chief Justice Attwood visited Boston in 1700, and in his re-
port to the Lords of Trade5º he states that he had “publicly ex-
posed the argument of one of the Boston clergy, that they were
not bound in conscience to obey the laws of England." He
complains of various insults offered him while sitting as judge
in the admiralty court. He attended the session of the Superior
court at Boston, and there observed that their "methods were
abhorrent from the laws of England and all other nations." He
especially notes the ease with which new trials are obtained and
the fact that evidence is offered in writing, which is a tempta-
tion to perjury, new proofs being admitted at the later trials.
This criticism shows that there was no sudden breach in the
development of Massachusetts law, and that at the beginning
of the 18th century the old popular law was still largely ad-
ministered in derogation of the more highly developed rules of
the common law. It is stated that after the change in the ap-
pointment of judges, practice became very captious and sharp.
In 1712, the first professional lawyer, Lynde, became Chief
Justice, and after this we find that English books and authors
are frequently cited.51 But the early character of Massachu-
setts law has never ceased profoundly to influence the system
of that state, the originality of whose jurisprudence has always
been recognized. Jefferson says in a letter to Attorney General
Rodney, September 25, 1810,52 speaking of Lincoln, of Massa-
40 Washburn, Judicial History, p. 138.
BO Documents Relative to Colonial History of New York, IV, 929.
"Arguments of Valentine, in Matson vs. Thomas, 1720, citing Coke and
Hobart.
82 Jefferson's Complete Works, V, 546.
(416)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES.
25
""
They
chusetts, as a possible successor to Cushing as Chief Justice:
"He is thought not to be an able common lawyer, but there is
not and never was an able one in the New England states.
Their system is sui generis in which the common law is lit-
tle attended to. Lincoln is one of the ablest in their system."
How strongly the old view of law which we have noticed main-
tained itself in Massachusetts, we see from John Adams' state-
ment in the Novanglus:53 "How then do we New Englanders
derive our laws. I say not from Parliament, not from the com-
mon law, but from the law of nature and the compact made with
the king in our charter. Our ancestors were entitled to the
common law of England when they emigrated; that is to say,
to as much of it as they pleased to adopt and no more.
were not bound or obliged to submit to it unless they chose."
In Massachusetts, during the 17th century we find a con-
tinued, conscious, and determined departure from the lines of
the common law. It is not accepted as a binding subsidiary
system, the law of God there taking its place. Indeed, it col-
ored and influenced the legal notions of the colonists, but they
always resisted the assertion of its binding force. The absence
of lawyers made the administration of a highly developed sys-
tem impossible. We have a layman law, a popular, equitable
system which lacks the elements of rigor, of clear cut principles,
of unswerving application, but which forms a basis on which
with the advent of legal training a strong original system could
be reared.
Connecticut and New Haven.
In Connecticut and New Haven we find a development simi-
lar to that of Massachusetts. The Connecticut code of 1642
was copied from that of Massachusetts.54 The fundamental
order of New Haven55 provides for the popular election of the
1774, John Adams, Works, IV, 122.
54 Connecticut Records, I, 77.
♫ New Haven Records, I, 73.
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26
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
magistrates, and for the punishment of criminals "according to
the mind of God revealed in his word." The general court is
also to proceed according to the Scriptures, the rule of all right-
eous laws and sentences. In the fundamental agreement56 all
freemen assent that the Scriptures hold forth a perfect rule for
the direction and government of all men in all duties. The
Scriptural laws of inheritance, dividing allotments, and all
things of like nature are adopted, thus very clearly founding the
entire system of civil and criminal law on the word of God.
This principle is re-enacted in similar language in 1644.57
In Connecticut the trial by jury was put into practice from
the first, the use of the grand jury coming in somewhat later.58
It is, however, provided that upon continued failure to agree,
a majority of the jury could decide the issue, and in case of
equal division, the magistrate had a casting vote.59 In New
Haven the institution of jury trial was not at first adopted.6º
It is stated that this was so settled upon some reasons urged by
Mr. Eaton.
As already indicated, the system of popular courts was
adopted in both colonies. In 1699, the practice of commission-
ing justices for stated periods was tried, but it was continued
for only three years. 61 The judges of these courts exercised a
broad discretion. That Connecticut was independent of the home
country in legal matters is noted by Quary in his report to the
Lords of Trade in 1707.62 If possible, these colonies departed
even further from the common law than Massachusetts in their
system of popular courts, absence or radical modification of the
jury trial, discretion of the magistrates, and, in the case of New
Haven, the clear and unequivocal assertion of the binding force
of divine law as a common law in all temporal matters, as a guid-
ing rule in civil and criminal jurisdictions.
56 New Haven Records, I, 1.
57 Ibid., I, 130.
59 Connecticut Records, I, 9, 91.
59 Ibid., 84.
6º Massachusetts Historical Society Collections, series II, vol. VI, 320.
61 Ibid., series VI, vol. III, 44.
62 Documents Relative to Colonial History of New York, V, 31.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 27
New Hampshire.
64
The settlers of New Hampshire and Vermont were in many
cases malcontents who had left the Puritan colonies. They
were not so homogeneous a society, and therefore the assertion
of the binding force of the common law could be more success-
fully made. The commission of 1680 orders proceedings in
the courts to be consonant to the laws and statutes of England,
regard, however, being had to the condition of the colonists.63
The General Assembly, meeting at Portsmouth in March, 1679–
80, passed a body of general laws in which they claimed the
liberties belonging to free Englishmen. They, however, re-
fused to admit the binding force of any code, imposition, law,
or ordinance not made by the General Assembly and approved
by the president and council. The code itself is very simple,
but in place of biblical references English statutes are cited.
As a matter of fact it may be questioned whether this submis-
sion to English law, if any there was, was more than formal.
The general court petitioned against appeals to England in
1680.65 The settlers were so impatient of control that all ques-
tions of law and fact were decided by juries. The judges had
a term of one year only and none of the influence of the Massa-
chusetts magistrates. 66 Under this regime, the administration
of the rules of the common law would of course be impossible.
The early judges and chief justices were all business men, sea-
men, or farmers; only in 1726 did a man of liberal education,
Judge Jaffray, graduate of Harvard in 1702, appear on the
bench.67
And it was only in 1754 that a lawyer, Theodore
Atkinson, also a graduate of Harvard, became chief justice.
Samuel Livermore, chief justice in 1782, though trained in the
law, refused to be bound by precedents, holding, “that every
€3 Poore, Constitutions, Charters and Documents, p. 1276.
64 Belknap's New Hampshire, p. 454; New Hampshire Documents and Records,
I, 382.
65 Cited in Belknap's New Hampshire, p. 457.
GG Danl. Chipman, Vermont Reports, pp. 11, 19, 21.
67 C. H. Bell, Bench and Bar of New Hampshire, 13.
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28
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
tub should stand on its own bottom;" and looking upon the ad-
judications of English tribunals only as illustrations.68 It may
be said that no real jurist, no man acknowledging a regular de-
velopment of the law by precedents and finding an authoritative
guidance in the adjudications of the common law judges, held
judicial power in New Hampshire during the entire 18th cen-
tury.
Rhode Island.
69
This colony was consciously founded on a democratic basis.
The charter is made the basis of government, by which legis-
lative action is to be restricted. In order to escape the impu-
tation of anarchy, and to preserve every man safe in his per-
son and estate, the common law is to be taken as a model for
legislation in as far as the nature and constitution of the place
will permit. The code itself shows a very archaic conception
of law. In its classification it especially reminds us of the
Anglo-Saxon dooms in the prominence it accords to crimes and
torts. It classifies law under five general heads: (1) murther-
ing fathers and mothers; (2) man slayers; (3) sexual immorali-
ties; (4) men-stealers; (5) liars, under which heading are com-
prised perjury, breach of covenant, slander, and other torts.
the other hand, however, it contains some provisions of an ad-
vanced nature. Murder and man-slaughter are distinguished
on the principle of malice aforethought. Theft committed by
a child or for hunger is declared to be only petty larceny.
Promises and contracts, especially for large amounts, are to be
drawn up in writing. The conveyance of land must be made
in this form. This provision by many years antedates the cele-
brated Statute of Frauds of English law. Imprisonment of
debtors is forbidden; "none shall lie languishing for no man's
advantage." Lands are made liable to execution. In general,
the statement of the code is concise and clear; English statutes
are frequently cited, but in spirit the code is thoroughly origi
es Bell, Bench and Bar, p. 37.
On
09 Code of Civil and Criminal Law of 1647; cited in full in Arnold's History
of Rhode Island, I, 205, et seq.; Rhode Island Colonial Records, 1, 156.
(420)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 29
nal though in parts archaic. That it was considered a suffi
cient statement of law is shown by the enactment that "In all
other matters not forbidden by the code all men may walk as
their conscience persuades them." A modified form of jury
trial is instituted by a later enactment.70 The province of judge
and jury is there defined. As in Massachusetts attaint is made
a remedy for a false verdict.
Bellomont sent the laws of Rhode Island to the Council in
1699, 71 when he gives it as his opinion that the world never
saw such a parcel of fustian. He also says: "Their proceedings
are very unmethodical, no wise agreeable to the course and prac-
tice of the courts of England, and many times very arbitrary
and contrary to the laws of the place; as is affirmed by the
attorneys at law that have sometimes practiced in their courts."
* * * "They give no directions to the jury nor sum up the
evidences to them, pointing out the issue which they are to
try." Later, however, in 1708, Governor Cranston writes to
the Lords of Trade: "The laws of England are approved of and
pleaded to all intents and purposes, without it be in particular
acts for the prudential affairs of the colony."72
Up to the time of the Revolution, judges were elected an-
nually from the people. The Newport court records show us
the extent of the discretion of magistrates. In an action for
debt the court, considering the defendant's poverty, ordered him
to work for the plaintiff at carpentry until the debt were ex-
tinguished. Meanwhile other creditors were forbidden to sue
him. Even after a verdict of not guilty, the court often im-
posed costs or ordered the accused to leave the colony. 73 The
attitude of Rhode Island towards lawyers is shown by the fact
that by an act of the general assembly in 1729 they were for-
bidden to be deputies, their presence being found to be of ill
consequence.74
70 Rhode Island Colonial Records, I, 198.
71 Documents Relative to Colonial History of New York, IV, 600.
72 Durfee, Gleanings from the Judicial History of Rhode Island, p. 78.
73 Ibid., p. 127–137.
7 Arnold's History of Rhode Island, II, 98.
(421)
30
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
CHAPTER II.
THE MIDDLE COLONIES.
New York.
the
In this colony the common law received early recognition and
an approach was made to complete and intelligent enforcement.
The population of New York was exceedingly heterogeneous ;
original Dutch settlers, the early English settlers of various
character from the different colonies and the mother country.
The close knit social relations found in Massachusetts and Con-
necticut are here absent, and popular law cannot therefore
be so readily developed. There is a demand for a system of
common law by which the relations and interests of these va-
rious elements may be regulated. The colony being under
royal authority almost from the beginning, its rulers soon ac-
customed it to the principles of the English common law. Thus
when the growing feeling of unity and nationalism called for
a unification and harmonizing of American law, New York
state, which had most successfully adapted the common law to
American conditions, became the leader in juristic development.
Its judges, like Kent, became the authoritative expounders of
the American form of the common law. But, on the other
hand, many of the original American ideas in jurisprudence,
such as the reform of the law of real property and the law of
pleading, which we find in germ in the early history of the other
colonies, were carried to completion and given their lasting form
in the state of New York, whose jurists had profited from a
longer training in a regular system of jurisprudence.
We must, however, by no means conclude that the common
law was administered in New York from the very beginning of
(422)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 31
English occupation as a complete subsidiary system. The
feeling that for a new colony a new body of laws is necessary
led to the compilation of what is known as the Duke of York's
laws, which were promulgated at an informal assembly at
Hampstead in 1665.¹ The first New York legislature met in
1683, and, among other acts, passed bills regulating the judi-
cial proceedings, and for preventing perjuries and frauds.2 Gov-
ernor Nichols, before courts had been created, took upon him-
self the decision of controversies and pronounced judgment after
a summary hearing.3 In writing to Clarendon, July 30, 1665,
he says: "The very name of the Duke's power has drawn well-
affected men hither from other colonies, hearing that the new
laws are not contrived so democratically as the rest.”4 At this
time laws are confirmed, reviewed, and amended by the general
assizes composed of the governor, the general council and the
judges upon the bench. A year later, April 7, 1666, Nichols
writes to Clarendon remitting a copy of the laws collected
from the laws of the other colonies with such alterations as would
tend to revive the memory of old England; he says that "the
very name of Justice of the Peace is held an abomination, so
strong a hold has Democracy taken in these parts." He com-
plains of the refractory disposition of the people, and describes
his efforts to introduce English statutes and authority. It is
apparent from this correspondence that it was considered neces-
sary to restate the law in a codified form for the use of the colo-
nists; and an informal transfer of the common law in its original
"unwritten" character was evidently not considered sufficient
or suitable to the circumstances by the men in authority.
5
6
Governor Dongan in his report to the Committee on Trade,
February 22, 1687, gives a list of the courts of justice established
at that time: (1) a court of chancery composed of the governor
¹Documents Relative to Colonial History of New York, 111, 260, 416; IV, 1154.
2 Ibid., III, 355.
³ Smith's History of New York, 55.
4 New York Historical Society Collections, 1869, 75.
Ibid., p. 118, 119.
• Documentary History of New York, I, 147.
(423)
32
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
and council, which is the supreme court of appeals; (2) the
courts of oyer and terminer held yearly in each county; (3) the
court of the mayor and aldermen in New York; (4) the courts
of session (justices of the peace); (5) court commissioners for
petty cases; (6) a court of adjudicature, a special court estab-
lished to hear land cases. These courts had none of the popular
elements which we have noted in the Puritan colonies. Gov-
ernor Dongan also states that the laws in force were the laws
of the Duke of York and the acts of the general assembly, not
mentioning the common law in this connection. In a similar
report, Governor Nichols' states that "all causes are tried by
juries, and that there are no laws contrary to the laws of Eng-
land,” while he ascribes full law-making power to the court of
assizes (1669). Governor Andros reports that, "He keeps good
correspondence with his neighbors as to civil, legal and judicial
proceedings." Bellomont, in 1699, sending a copy of the
printed laws to the council, asks for a careful perusal and crit-
icism of them by some able lawyer in England; which would
indicate the absence of trained jurists in the colony at that
time.8 In a report on the methods of proceedings in court,
William Smith writes to Bellomont in 1700:9 "The rules and
methods we are governed by in all trials is the common law of
England, and the several statutes declarative thereof according
to the manner and methods of the courts at Westminster." In
the earlier days of the colony, confused notions of law and equity
seem to have prevailed; and in a number of reported cases
tried on Long Island after verdict of the jury there was an
appeal to equity, most generally successful. No settled rules
were here regarded, but a discretion similar to that of the New
England magistrates was exercised. 10 In one of these cases the
judgment is said to be given according to law and good con-
science.11
'Documentary History of New York, I, 87.
•Documents Relative to Colonial History of New York, IV, 520.
Ibid., VIII. 28.
10 Documents Relative to Colonial History of New York, XIV, 570, 589, 600,
629.
11 Underhill vs. Hempstead, Ibid., 589.
(424)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES.
33
Immediately upon the occupation by the English, the jury
came into use in New York. Jury trials are, however, at first,
very informal, more after the manner of a simple arbitration,
and verdicts are often given in the alternative.¹
12
In the form of testamentary disposition the Roman Dutch law
of the New Netherlands left abiding traces. The method of
making wills by oral declaration before a notary, or by a written
and sealed instrument deposited with that official, was used long
after the first English occupation.13
We find that in these early days the functions of the court
were not only judicial but administrative, much like those of
the earliest itinerant judges in England. Thus the judges are
directed to make inquiries into town training, the bearing of
arms, the price of corn, wages, and escheats.14 As another re-
version to older practice, we may note the concentration of va-
rious functions, judicial, administrative, and legislative, in the
hands of the colonial council of the earliest time. A still closer
analogy to mediæval English history in this respect we shall
find in the case of Pennsylvania.
In the year 1700, a professional English lawyer, Attwood, be
came chief justice of New York. It was his avowed purpose
to introduce the common law and practice of the English courts
into the colony. He was, however, too assertative, and favored
strong government too much, so that he in some cases perverted
the law to his own uses, as when he declared that whatever was
treason before 25 Edward III was still treason at common law;15
or when he held that a grand jury was only an inquest of of-
fice and that eleven could indict.16 He complained in a let-
ter to the Lords of Trade17 that "several here cannot well bear
with the execution of the laws of England." His methods
soon led to his unpopularity and his final disgrace.
12 Fernow, Records of New Amsterdam, V, 2671.
13 Fernow, Calendar of Wills, p. IV.
14 Documents Relative to Colonial History of New York, XIV, 637.
10 Ibid., IV, 974.
16
10 Ibid., 1010.
17 Ibid., 923.
(425)
34
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
As we
As in other colonies, lawyers were unpopular in the early days
of New York. "The general cry of the people both in town
and country was, 'No lawyer in the Assembly!" "18
have seen, the early governors exercised what was called an
equity jurisdiction, but no regular court of equity was estab-
lished. In 1711, Governor Hunter addressed the Lords of
Trade in this matter. He speaks of the necessity of giving
equitable relief in many cases, and instances the case of a mer-
chant, who inadvertently confessed judgment for 4,000 pounds,
the real debt being 400 pounds, and who then languished in
prison. He says that the House declared that the trust of the
seal constitutes him the Chancellor, but having already too much
business and being ignorant in law matters he asks the Lords
of Trade for advice.19 They simply answer20 that he is author-
ized to establish, with the consent of the council, any court that
may be necessary. A court of chancery was accordingly estab-
lished, but in 1727 the assembly resolved that the creation of
this court without its consent was illegal. Its fees were re-
duced and its jurisdiction languished for a time.21 Colden as-
cribes these resolves to the vindictive intrigues of the speaker,
who had been defeated in a chancery suit.22
The complete doctrine of the binding force of the common
law in New York was not stated before 1761, but a most thor-
oughgoing statement is found in Governor Tryon's report,23
where he declares that "the common law of England is the fun-
damental law of the province, and it is a received doctrine that
all the statutes enacted before the province had a legislature
are binding upon the colony;" also that in the court of chan-
cery the English practice is followed. Some years before, in
1762, Chief Justice Pratt, in a memorial to the Lords of Trade,
18 Gov. Colden to Hillsboro; Documents Relative to Colonial History of New
York, VIII, 61.
19 Documents Relative to Colonial History of New York, V, 208.
20 Ibid., 252.
1Smith's History of New York, 270.
22 New York Historical Society Collections, XVIII, 211.
231774; Documentary History of New York, I, 752.
(426)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 35
He
complains of the insufficient influence of the judiciary.
says that "All the colonies being vested with legislative power,
their systems of laws are gradually varying from the common
law. If the judgments of the supreme courts are only vague
and desultory decisions of ignorant judges the mischief is aug-
mented, and a more influential and better paid judiciary is
called for."
New Jersey.
The two parts of New Jersey, East and West Jersey, had a
different social complexion, and we may therefore look for di-
vergent views on the subject of law. West Jersey was a pure
Quaker commonwealth, where the influence of Penn was very
strong; while in East Jersey conditions similar to those in New
York prevailed. We find, however, in both parts of New Jer-
sey a system of popular courts. In East Jersey 24 the court sys-
tem was established by the legislature in 1675. A monthly
court for the trial of small causes was held in each town of the
province by two or three persons chosen by the people. County
courts were held twice yearly in each county; from these there
was an appeal to the court of chancery. Proceedings in these
courts were of the utmost simplicity. It was provided that any
person might plead for himself; that no money was to be taken
for pleading or advice.25 In West Jersey a similar system of
courts prevailed; justices of the peace, county courts, and a
supreme court of appeals; the latter was instituted in 1693 and
a final appeal from it to the general assembly was authorized
in 1699. The term, court of chancery, is not used in West
Jersey. The power of the jury was exaggerated, the three
judges having no authority to control the verdict of the twelve
men "in whom only the judgment resides." In case the judges
should refuse to pronounce judgment, any one of the twelve by
consent of the rest may do so.26 Capital punishment was not
24 Grants and Concessions, p. 96.
23 Ibid., p. 128.
26 Ibid., p. 396.
(427)
36
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
fixed by the law. It was enacted27 that "All persons guilty of
murder or treason shall be sentenced by the general assembly,
as they in the wisdom of the Lord shall judge meet and expedi-
ent." This would indicate a view of law similar to that held
by the colonists of Massachusetts and New Haven.
The early laws of East Jersey were founded largely on script-
ural authority.28 Thus the law of trespasses and injuries by
cattle, of injury by fire, of negligence, and the criminal law, are
in agreement with the laws of the Exodus. In 1675 impris-
onment for debt was prohibited except in cases of fraud. In
1698 the privileges of the English common law were assured to
every one. In Delaware no professionally trained judge held
office before the Revolution.29
Pennsylvania.
The colony of Pennsylvania was fitted out with the most
complete system of colonial codes. There was (1) the frame
of government, which was unchangeable without the consent
of the governor and six-sevenths of the freemen in council and
assembly, all freemen at that time being members of the assem-
bly; (2) there were the laws agreed upon in England in 1682,
which had the same provisions as to alteration; (3) the Great
Law or body of laws enacted at Chester in 1682, containing
sixty-one chapters and called the written laws to distinguish
them from the foregoing two, called printed laws; (4) the act
of settlement passed in Philadelphia in 1683; (5) the laws made
at an assembly in Philadelphia in 1683, consisting of 80 chap-
ters; (6) the frame of government of 1683; (7) the frame of
government of 1696; and, finally, (8) the laws of October,
1701.30 These laws are of great interest to the student of legisla-
tion, containing the opinions of enlightened and thoughtful
statesmen embodied in enactments and gradually modified by
27 Grants and Concessions, p. 404.
28 Whitehead, East Jersey under the Proprietors, p. 239.
20 Grubb, Judiciary of Delaware, p. 9.
* See the collection called The Duke of York's Laws and Pennsylvania Colonial
Laws, which will be cited simply as The Duke of York's Laws.
(428)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 37
practical experience in colonial affairs. They show clearly how
very necessary a complete and full statement and codification of
the law that should prevail was held by the founders of Pennsyl-
vania; that they did not rely on an informal transfer of the ap-
plicable parts of the common law; but that they, with great
painstaking, stated in entirely original form the provisions con-
sidered necessary for colonial society.
These laws contain many new and far-reaching reforms.
Thus, in the laws agreed upon in England in 1682 there are the
following provisions concerning procedure in the courts. Per-
sons may appear in their own way and according to their own
manner and personally plead their cause; the complaint shall
be filed in court fourteen days before trial; a copy of the com-
plaint is to be delivered to the defendant at his dwelling house;
the complaint must be attested by the oath of the plaintiff;31 all
pleadings and processes and reports in court shall be short and
in English and in ordinary and plain character, that they may
be understood and justice speedily administered.32 This pro-
vision antedates by almost two centuries the celebrated New
York code-pleading reform, and this clause very clearly and
simply states the object this reform sought to bring about. The
period of prescription for the acquisition of title to land is fixed
at seven years. The lands and goods of felons shall be lia-
ble to make satisfaction to the party wronged.34 This is a re-
turn to an older idea of law, which at that time did not prevail
in the English law; for a felony only the king enforced a for-
feiture, the injured party could not obtain any satisfaction. In
the laws made at Philadelphia in 1683, there is contained a
chapter enumerating the fundamental provisions which are to
be changed only by the consent of six-sevenths of the coun-
cil and assembly; this early attempt to separate the fundamental
from the secondary provisions of the law is of great interest to
33
31 The Duke of York's Laws, Laws of 1682, Chap. 6.
32 Ibid., Chap. 7.
33 Ibid., Chap. 16.
34 Ibid., Chap. 24.
4
(429)
38
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
students of American constitutional development. The sub-
jects referred to as fundamental are the following: Liberty of
conscience, naturalization, election of representatives, taxes,
open courts and freedom of pleading, giving evidence, return
of inquest and judgment by inquest (jury), bail and liberty of
person, registry, marriage, speedy justice, the use of the English
language in laws and proceedings.
The proceedings of the earliest courts were quite informal.
We have some accounts of trials, before the coming of Penn,
under the Duke's laws which provided for a jury of six or seven.
The major part of this jury could give in a verdict. An in-
formal statement of the matter at issue was made, and though
the names of actions were used, there was no sharp discrimi-
nation and not even the distinctions between civil and criminal
cases were clearly drawn. The administration of justice was
rather founded upon the ideas of the magistrates than on any
rules of positive law.35 Lord Petersboro, during his visit to
Pennsylvania, was astonished at the simplicity and fewness of
laws, the absence of lawyers and the informality of judicial pro-
ceedings.36
County courts were instituted in the territory later called
Pennsylvania in 1673. The procedure was informal, juries of
six or seven were in use.37 Under the new regime, the juris-
diction of courts was defined by the laws of 1683, Chap. 70,
and in 1684, courts were given jurisdiction in equity as well
as in law.88 The same court even reversed in equity its own
judgment in law.39 Against this method the assembly com-
plained.40 In a number of the courts, the names of English
actions were used, but case was often substituted for eject-
35 See Pennsylvania Archives, vol. VII, pp. 725-730; The Duke's Laws, 462;
Memoirs of the Historical Society of Pennsylvania, vol. VII; Dr. Geo. Smith's
History of Delaware County.
36 I Spencer's Anecdotes, 155, quoted in Pennsylvania Bar Association Reports,
I, 229.
37 Duke's Laws, 414.
38 Ibid., 167.
39 Hastings vs. Yarrall, Records Chester County Court, 1686.
40 Votes of the Assembly, I, 76.
(430)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 39
The
ment. 41
The practice was very much like modern code prac-
tice; the complaint was filed fourteen days before trial; ten days
before, the defendant had to be summoned, arrested or his
goods attached. In court, he might answer in writing; the
pleadings were to be in the English language; any defense, legal
or equitable, might be interposed.42 Thus from the first legal
and equitable relief was administered by the same courts in
Pennsylvania. By the laws of 1683, Chap. 71, an informal
body of arbitrators, called peace-makers, was instituted.
appellate court was called the provincial court, but the council
also had appellate jurisdiction; and in connection with this it
had a jurisdiction, like that of the permanent council of the
mediæval English kings and of the Star Chamber, to punish
maladministration and malfeasance on the part of powerful of-
ficials. 43
As the English Parliament of the time of Edward
III, so the Pennsylvania assembly petitioned against this ex-
traordinary jurisdiction. In 1701, it requested that "no person
shall be liable to answer any complaint whatsoever relating to
property before the governor or his council or in any other place
but the ordinary courts of justice."44
Pennsylvania at this early period effected the union of equity
and law in jurisdiction and in practice, a method that has
always characterized the jurisprudence of that state. The vol-
uminous legislation in the case of Pennsylvania may be due to
the fact that the charter granted by Charles II. declared that
the laws of property and of crimes in the province should be
the same as they were in the kingdom of England, until altered
by the proprietor. The legislation of Pennsylvania covering
virtually the whole field of property law may be called the first
complete codification of law made in America.
Penn himself was anxious to secure the services of trained
41 Sussex County Records, 1682, quoted in Pennsylvania Bar Association Re-
ports, I, 362.
42 Laws of 1683, Chap. 66; Laws of 1684, Chap. 167.
49 Pennsylvania Colonial Records, I, 20, 79, 95, 96.
44
Ibid., II, 37.
(431)
40
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
lawyers. In a letter to Logan45 he says that he has granted
Roger Mompesson the commission of chief justice and he ad-
vises the people to lay hold of such an opportunity as no gov-
ernment in America ever had of procuring the services of an
English lawyer. Mompesson, however, did not remain in Penn-
sylvania long; he went to New York where he became chief
justice, being appointed by Cornbury. The first lawyer who
became chief justice of Pennsylvania was Guest, in 1701.46
The early law of Pennsylvania is very original and contains
the germs of many developments that specially characterize
American jurisprudence. There was, in this colony, from the
first a desire for settled legal relations, which finds expression in
a discussion in the colonial council in 1689. When it was there
proposed that in doubtful cases the magistrates might apply the
colonial laws or the common law at their discretion, this was held
too uncertain, and the sole validity of the laws of Penn was up-
held. On the question of substituting affirmation for oath, nu-
merous English law precedents were, however, cited by the as-
sembly to the governor.48 The law of manslaughter is left to be
determined by the law of England, in 1705.1
47
Maryland.
49
By the charter of Maryland, full powers of government were
given to the proprietor. He might establish laws, and was not
required to submit them for the approval of the Crown. He
could establish courts, and process ran in his own name, and
he was empowered to grant titles of nobility. He stood in the
position of a count palatine.50 In 1635, the first legislative
assembly met, passing a body of laws which was rejected by
the proprietor. In 1637, the proprietor and the assembly mu-
tually rejected laws proposed by each other. This caused a
15 Quoted in Field's Courts of New Jersey, 58.
48 Penn and Logan Correspondence, I, 19, 48.
47 Pennsylvania Colonial Records, I, 291.
48 Ibid., II, 627.
49 Ibid., 210.
50 Brown, Civil Liberty in Maryland, Maryland Historical Society Papers, 1850.
(432)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 41
serious dead-lock, and it seemed impossible to create a code of
laws such as had been found necessary in all the other colonies.
The colonists, accordingly, in the absence of a code of positive
laws claimed that they were governed by the common law of
England so far as applicable to their situation. The proprietor
opposed this claim on account of the interference with his rights,
and the controversy thus arising was not finally settled until
1732.51
The rule of judicature was first fixed by the laws of 1642, in
which it was ordered that civil causes should be tried according
to the law and usage of the province, having regard to the for-
mer precedents. In defect of such law, usage, or precedent,
the case shall be determined according to equity and good
conscience “not neglecting (so far as the judge shall be informed
thereof and shall find no inconvenience in the application to
this province) the rules by which right and justice useth and
ought to be determined in England." The common law of Eng-
land seems here rather to be looked upon as a system useful
for illustration and guidance than a subsidiary law; equity and
good conscience was considered to afford proper rules to fill the
omissions of the positive law.
52
The rules for trial were in many respects novel.
The judge
is allowed to administer an oath to either party in a civil cause,
and on the refusal of the party to testify may proceed as if the
matter asked had been confessed.5 53 The power of the judge
in controlling the jury is very great. If he thinks a verdict un-
just he may return the jury or charge another. If he find the
jury evidently partial or willful, he may charge another jury,
and if their verdict is contrary the first jurors may be fined.
Among these provisions we also find one of the earliest exemp-
tion laws. Tobacco, necessary clothing, bedding, utensils, and
tools are exempt from execution.54
51 McMahon's History of Maryland, Chap. III.
52 Archives of Maryland, Proceedings of General Assembly, 147.
5зIbid., p. 150.
54Ibid., p. 152.
(433)
42
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
The fettered legislative powers of this colony, the unlimited
discretion allowed the governor and his council in administra-
tion, by the charter, and the somewhat heterogeneous character
of the population, led the colonists later more strenuously to
insist upon the observance of the principles of the common law
as a subsidiary system. Therefore we find that in 1662 an
act was passed declaring that when the laws of the province
are silent, justice is to be administered according to the laws
and statutes of England; and that "all courts shall judge of the
right pleading and the inconsistency of the said laws with the
good of the province according to the best of their judgment."55
This act was in force for only a short time, and the rule of
judicature was therefore not long established by express law.
It is, however, the first definite recognition in America of the
power of the courts to apply the common law of England to
colonial conditions, and to reject provisions deemed unsuitable.
The rule stated in the act of 1662 was also contained in the
commission of judges, and thus the proprietor seems to have
sanctioned this adoption of the common law; the later contro-
versy turned more on the question of the adoption of the stat-
ute law of England.
In 1674, an attempt was made to determine by law what Eng-
lish criminal statutes were in force in Maryland. The lower
house insisted on the adoption of the whole English statute law,
saving all laws of the province not repugnant to the laws of
England.56
The council argued with the lower house, asking
them to consider the dangerous consequences of an adoption of
the entire English criminal law. They referred to the volume
of the English laws and to the difficulty of ascertaining what
statutes are at present in force. On account of this uncertainty
the lower house is requested to designate certain statutes which
are to be re-enacted and thus be a guide to the judges.
In 1678, we find that it is ordered to purchase Keeble's
55 Maryland Archives, Proceedings of Assembly, p. 436.
58 Maryland Archives, Assembly Proceedings, 1666--1676, p. 374.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 43
Abridgment of the English Statutes and Dalton's Justice for
the use of the various county courts.57
The struggle between the proprietor and the people concern-
ing English laws revived in 1722. The people claimed that the
lord proprietor had already allowed them the benefit of the
common law as their right according to the common opinions
of the best lawyers, and that the controversy now was only
concerning the applicability of the English statutes.58 Lord
Baltimore resisted the introduction of the English statutes "in
a lump," as he expressed it, as doing away with his veto power;
while the lower house insisted upon a complete adoption. By
the act of 1732 the controversy was settled by the following
somewhat equivocal statement that "when the acts and usages
of the province are silent the rule of adjudicature is to be ac-
cording to the laws and statutes and reasonable customs of Eng-
land, as used and practised within the province. However,
the power of the courts to apply any English law, customary
or statutory, which they found suitable to American conditions
was no longer disputed.
7759
The opposition to lawyers common in the colonies we also
find in Maryland.60 The great influence which the theory of
the adoption of the common law gave to the courts was recog-
nized in a resolve of 1684, which stated "that it left too much
to discretion and is an open gap to corruption."61
At this time,
however, the lord proprietor insisted that if the English laws
were to be used the governor and chief justice must be allowed
to decide when they ought to be applied. Only on this basis
would he consent to a re-enactment of the judicature act.62 The
attitude of the people toward the proprietor is further illus-
trated by the fact that an appeal to the king in legal proceed-
ings was asked for.63
57 Maryland Archives, Proceedings of Assembly, 1678--83, p. 70.
58 See citations in McMahon's History of Maryland, Ch. III.
59 McMahon's History of Maryland, p. 127.
60 Proceedings of Assembly, II, 168.
61 Maryland Archives, Proceedings of Assembly, 1684--1692, p. 71.
62 Maryland Archives, Lower House Journal, 1676--1702, q. 107.
63 Maryland Archives, Proceedings of Council, II, 140.
(435)
44
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
Although, even in the earlier practice of Maryland, the terms
of English law were used, its principles were often entirely neg-
lected, and matters settled according to a rough equity.64 Thus,
in a case of homicide, the jury brought in a verdict finding ac-
cidental killing and no negligence; the court, however, fined the
person who had handled the weapon that caused the accident.
In another criminal proceeding the accused is arraigned and
pleads guilty before the grand jury passes on the indictment and
finds it billa vera. 65
**Maryland Archives, Provincial Court.
Ibid., p. 183.
(436)
REINSCH-ENGLISII COMMON LAW IN AMERICAN COLONIES. 45
CHAPTER III.
THE SOUTHERN COLONIES.
Virginia.
The prevailing belief that codes of law are necessary for new
colonies is evidenced by Crashaw's sermon preached before the
London Company in February, 1609-10. Crashaw says: "Be
well advised in making laws, but being made let them be obeyed,
and let none stand for scare-crows, for that is the way at last
to make all to be contemned."1
The instruction for the government of the colonies² fixed
general rules for the descent of lands, criminal law, jury trials,
and placed civil jurisdiction in the hands of the governor and
council. The first code intended for the colonies, printed at
London in 1612, and entitled Laws Divine, Moral and Martial,³
was exceedingly severe, and Sir Thomas Smith, the governor,
was later much abused for having introduced it into Virginia.
On account of the character of the population a strict rule was,
however, absolutely necessary. In 1620, an attempt was made
by the London company to compile a more adequate and hu-
mane code.
Sir Edwin Sandys proposed the appointment of
several committees for the following purposes: (1) compiling
the laws of England suitable for the plantation; (2) collecting
the orders and constitutions already in existence; (3) revising the
laws passed by the Assembly. These committees were finally
to meet and harmonize the entire body of laws which was then
to be submitted to the king. Among the commissioners was
1 Brown, Genesis of the United States, p. 371.
2 Ibid., pp. 368–71.
3 Ibid., p. 528.
(437)
46
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
John Selden.*
4 These committees, however, did not report and
Governor Yeardley asked for authority to make a collection of
suitable laws.5
The first legislative assembly of Virginia met in 1619. It
passed a number of laws and petitioned the council that they
would "not take it in ill part if these laws passed current and
be of force until we know their further pleasure out of England,
for otherwise this people would in a short time grow too inso-
lent." There is here so far no claim of the immediate validity
of English laws in the colony, and all parties concerned seem to
think the formation of a new code adapted to the circumstances
of the settlers necessary.
In 1631, the oath of commissioner
of monthly courts was fixed as follows: "You shall do equal
right to poor and to rich after your cunning, wit and power
and after the laws and customs of this colony, and as near as
may be after the laws of the realm of England." There was
not in Virginia, as we have noted in many of the other colo-
nies, a system of courts whose magistrates were elected by the
people. The county courts were presided over by eight or ten
gentlemen receiving their commission from the governor. Not-
withstanding the source of their appointment, these men, not
being educated in the law, would perhaps not be governed by con-
siderations much different from those obtaining in the popular
courts of Massachusetts and Connecticut. The large number of
the members of the court is of itself a reversion to the very archaic
type of Doomsmen of the Anglo-Saxon courts, who there de-
clared the custom and fixed the mode of trial. Appeal lay from
these courts to the general court, composed of governor and
council. Their jurisdiction grew up by custom and the forms
of proceedings were quite irregular. They also exercised a
general chancery jurisdiction."
* Proceedings of the Virginia Company of London. Virginia Historical Collec-
tions, vol. VII, p. 55.
'Ibid., p. 55.
Hening, Statutes at Large, vol. I, p. 169.
"Campbell, History of Virginia, p. 352.
(438)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 47
""
By the statutes of 1661-1662 procedure in the courts was
regulated. At the time of the Restoration Virginia seems to
have been especially anxious to show herself loyal to England,
and these enactments breathe a deep respect for the common law.
In the preamble it is stated that the legislature has endeavored
in all things to adhere to these "excellent and refined laws of
England to which we profess to acknowledge all due obedience
and reverence.' As a reason for enacting laws at all they as-
sign the vast volume of the English law from which courts
would be unable to collect the necessary principles without the
aid of such codification.8 The former laws are repealed and
a new code is enacted. As some former laws restrained the
trial by jury quite contrary to the laws of England, the law
of juries is restated with special carefulness and precision.
is interesting to note in this connection that the colonists ex-
press their regret that they are unable to comply with the re-
quirement of the English jury system that the jurors shall come
from the immediate neighborhood of the place where the fact
was committed; but they state that they desire to approach
as near as possible to compliance by enacting that six men of
the ablest and nearest of the inhabitants of the county shall be
on the jury.9 This reminds us of Sir John Fortescue's con-
tention that France could not have the jury system, because
there no neighborhood could produce twelve intelligent and sub-
stantial jurors. In this code the period of prescription for land
is limited to five years.10
It
The system of itinerant judges existed in Virginia for some
time, but was abolished in 1662 on account of the great charge
to the country. 11 The nature of the procedure in the county
courts is seen from the provision that the bill or complaint must
be filed the day before court, that the answer and judgment
as well as evidence in the case is also to be filed, that the judg-
8 Hening, Statutes at Large, vol. II, 43.
'Ibid., II, 63.
10 Ibid., 97.
11 Ibid., II, 179.
(439)
48
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
ment is to be endorsed on the complaint if for the plaintiff, on
the answer if for the defendant. 12
The administration of law in Virginia was in the hands of
the country gentlemen who looked down upon the legal pro-
fession, and in no state do we find more hostile legislation con-
cerning lawyers than in the Old Dominion. In 1645 an act
was passed expelling the mercenary attorneys. 13 In November,
1647, it is enacted that none shall plead for recompense,
That in case the courts shall perceive that "either party by
his weakness shall be like to lose his cause, they themselves
may open the cause or may appoint some fit man out of the peo-
ple to plead the cause, but shall not allow any other attorneys."
In 1656 the hostile acts were repealed, but only a year later
there was again proposed in the house "a regulation or total
ejection of lawyers," whereupon the decision was "by the first
vote an ejection."14 A new act was therefore passed 15 forbid-
ding any person to plead or give advice in any case for reward.
The governor and council rather opposed this enactment, but
promised to consent to the proposition "so far as it shall be
agreeable to Magna Charta." A committee was appointed,
who upon considering Magna Charta, reported that they did not
discover any prohibition contained therein. 16 In 1728, in a
paper on the state of the colonies in America, Keith gives a
very unfavorable account of the administration of law in Vir-
ginia. In order to unify and settle the law he favors the ap-
pointment of circuit judges from England. 17 Governor Gooch,
in his answer to Keith's criticisms, says that the practice of
courts is exactly suited to the circumstances of the respective
governments and as near as possibly can be conformable to the
laws and customs of England, and that the judges are of com-
12 Hening, II, 71.
13 Hening. I, 482.
14 Hening, I, 495.
15 Ibid., p. 482.
16Neill's Virginia Carolorum, p. 264.
17 Byrd Manuscripts, 1728, p. 222.
(440)
REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 49
petent knowledge in the laws, though not all of them profound
lawyers. 18
The Carolinas.
In the case of the Carolina colonies the enforcement of a
very complete code, the celebrated Fundamental Constitutions,
was attempted by the proprietors. These Constitutions were re-
actionary in the extreme, and attempted to introduce an intri-
cate feudal system into the new colony. The redeeming fea-
ture of the act lies in its very liberal provisions concerning re-
ligious affairs, giving any body of believers the right to wor-
ship according to the dictates of their conscience. It is very
doubtful if aside from these provisions concerning religion the
Fundamental Constitutions had any permanent influence in
molding the jurisprudence of the Carolinas. They were first
promulgated in 1668, and were reissued in modified forms re-
peatedly until their final abandonment in 1698. The purpose
of this code was to "establish the interest of the proprietor with
equality and without confusion that the erecting of a numer-
ous democracy may be avoided."19
We have no satisfactory information about the actual admin-
istration of justice in the early days of Carolina. The differ-
ent colonies in the Carolinas had originally, however, very lit-
tle in common, being settled by various elements. And it is
highly probable that each of these colonies developed at first
its own customary and popular methods of dealing with legal
controversies. 20 The Carolinas were among the earliest colo-
nies to adopt the English common law as a rule of adjudicature.
This was done in South Carolina by the act of December,
1712.21
Before, in 1692, the assembly in an address to Governor Lud-
well had complained, because "the Palatine Court assumed to
18 Ibid., p. 237.
19 Fox Bourne, John Locke, p. 238; and Hawks, History of North Carolina, p.
182.
20 Chalmer's Political Annals, p. 521.
21 See Robt. Mills, Statistics of South Carolina, p. 196.
(441)
50
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
put in force such English laws as they deemed adapted to the
province; but the assembly conceived that either such laws were
valid of their own force, or could only be made so by an act
of assembly."22 The proprietors assumed that all laws of Eng-
land applied to the colonies, but in 1712 they receded from their
position by approving the act adopting the common law and
such statutes of England as had been selected by Chief Justice
Trott as applicable to the condition of the colony. 23 The act
of 1712 puts in force all English statutes declaring the rights
and liberties of subjects, as well as the common law, except
where it may be found inconsistent with the customs and laws
of the province. The law concerning military tenures and ec-
clesiastical matters is especially excepted. The courts are here,
as in Maryland, given the power to apply the principles of the
common law. In North Carolina the same object was accom-
plished by the act of 1715, entitled "An act for the better ob-
serving of the queen's peace," which declares the colony to be
"a member of the crown of England," and provides that the com-
mon law shall be in force in this government "so far as shall
be compatible with our way of living and trade." The practice
of issuing writs is specially excepted. Certain enumerated stat-
utes, such as the statute confirming the privileges of the people
and security of trade, the statute of limitations, and the statute
of frauds, are also adopted by this act.
From the scanty records of the early days of the colonies
we can glean that the proceedings were often very informal.
The discretion of the magistrates in inflicting punishment was
very wide, as is apparent from the cases cited by Hawks in his
history. 24
A court of chancery was established as early as 1697, in which
the English chancery practice is in the main adhered to.25 At
a very early date trained lawyers were in these colonies among
22 Rivers, Historical Sketch of South Carolina, p. 433.
23 Statutes of South Carolina, II, 401.
24 Hawks, History of North Carolina, II, 122, 218.
25 5Ibid., p. 134.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 51
the judges; in the year 1729 we find that on the question of
the effect of a general pardon an English case26 is cited and
followed in the adjudication, one of the earliest instances where
such a use of English authorities can be ascertained.
In South Carolina, the city of Charleston was for almost a
hundred years the seat of the colonial court, the source and
center of judicial proceedings. This of course was favorable
to an earlier reception of the English common law, as a cen-
tralized system of judicial administration always leads to a more
highly developed form of juristic conceptions. On the other
hand this concentration of jurisdiction had the effect of leav-
ing large tracts of the colony virtually without regular admin-
istration of the law, so that in the remoter parts of South Caro-
lina associations of regulators had to be formed to deal out a
rough popular justice. 27
Anthony Stokes, Chief Justice of Georgia, in his View of
the Constitution of the British colonies of North America and
the West Indies, London, 1783, gives a very interesting dis-
cussion of the state of legal administration in the southern colo-
nies. He states that the colonies where the system of county
courts prevailed, where there were a large number of judges
in general unacquainted with the law, little decorum was ob-
served in the courts; but the colonies where the judges of the
superior court went on circuit had a more impartial adminis-
tration of justice. A system of circuit courts, however, was
not established in the colonies in the 17th century, except for
a short time in Virginia. And the lack of a harmonious, uni-
fied, and consistent rule of adjudication may be inferred from
the one fact of the absence of a unified judiciary.
Of course
a system of appeal would tend to unify the law, but in these
early days an appeal to a central court was by no means an
easy matter, and, in the ordinary administration of justice the
citizens undoubtedly took their law from the popularly elected
262 Croke, 148.
27 Ramsay's History of South Carolina, p. 120.
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52
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
magistrates who had no pretensions to a knowledge of technical
jurisprudence.
Stokes also discusses the question as to what part of the Eng-
lish common law the colonists had brought along with them. 28
His answer illustrates the vagueness and the unhistorical char-
acter of the legal theory. He says that the general rules of
inheritance and personal injuries were brought along; not, how-
ever, the artificial distinctions and refinements of property law,
the laws of police and revenue, etc. Now we have seen that the
law of personal injuries was usually fixed by the codes which
the colonists established at an early date, the rule of inheritance
too was in most colonies varied from that of the common law;
and certainly an adoption of any system which would leave out
property law could be styled an adoption only in a very modified
sense of the term.
28 Stokes, View of the Constitution of the British Colonies, pp. 9, 10.
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 53
CHAPTER IV.
CONCLUSION.
When we come to consider from a more general point of view
the attitude of the early settlers toward the common law, we
find that certain views of law pervaded all the colonies; that in
other matters the various colonies followed their own bent and
were influenced by their special conditions or the special pur-
poses of their polities. A general trait of early colonial law
is codification. It seems to have been universally considered
necessary to state the essential elements of law for the guidance
of the colonists who had taken up their abode in a wilderness
without books or facilities for legal study, who therefore in the
nature of things could not use a system which, like the common
law even of that date, necessitated a vast apparatus of technical
treatises, of reports, and of statute books. In all the colonies
except Maryland we find an early codification of the essential
elements of the law. In Maryland, as we have seen, this was
prevented by the controversy between the people and the pro-
prietor, but even there considerable legislation was produced
at an early date. Some of the codes, like those of Massachu-
setts and Pennsylvania, departed in many essentials radically
from the principles of the common law, and show that their
framers consciously desired to meet the entirely novel conditions
of the colonists by new and appropriate legal measures. We
may safely say that these codes were in the first decades of
the colonies almost the sole source of legal knowledge, of rules
for adjudication. As to matters not covered by the law here
stated, the good and careful discretion of the popularly elected
magistrates or appointed judges was relied upon to furnish a
just rule satisfactory to the popular sense of right. In some in-
5
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54
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
stances we have noticed the use of elementary English treatises
on actions, like Dalton's Justice, but we have also noticed that
while the names of the forms of actions were used, the greatest
laxity and informality prevailed in their application and in the
general practice of the popular courts.
Some of the colonies declared the English common law sub-
sidiary in cases not governed by colonial legislation at a com-
paratively early date. We have noted this in the case of Mary-
land, Virginia and the Carolinas. But other colonies very early
made unequivocal declarations of looking upon the law contained
in Scripture as subsidiary law in their system. This is true of
Massachusetts, Connecticut, and New Haven and to a certain
extent of New Jersey. In both cases, however, in the earlier
days before a trained bench and bar had come into existence,
a declaration of the existence of a subsidiary law would but lit-
tle bind the otherwise unfettered discretion of the popular
judges; because undoubtedly these judges (like the Chancellor
in Marks vs. Morris, 4 Hening and Mumford, 463) would epito-
mize the common law in the ancient rule of "honeste vivere”
and thus apply their own ideas of justice until called to account
by a trained bar, which arose later, during the 18th century.
The records that have been examined exhibit everywhere, es-
pecially in the popular courts, a great informality in judicial
proceedings. The large number of judges in these courts would
of itself tend to make the practice informal, to make the trial
more like a deliberation of a community by its representatives
on the justice or injustice of the case involved. The absence
of a jurist class, and especially the universal prejudice against
lawyers, proves that a popular and not a technical system was
being enforced. The technical knowledge of the lawyer was
not demanded, and, like Lechford, the lawyers had to turn their
hands to semi-professional or non-professional work, the courts
of the colonies at that date having no need of the aid of a trained
profession to discover what was the law, as by the custom of
the time the law was in so many cases determined by the dis-
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 55
cretion of the court. It seems just to conclude that in most
cases the administration of law was carried on not according to
the technical rules of a developed system of jurisprudence but
by a popular tribunal according to the general popular sense of
right.
The original elements in the early colonial laws are great
in number and import. They foreshadow and anticipate some
of the most far-reaching American law reforms. Pleading is
simplified, and the intention is in many places expressed that
it shall be possible for any man of ordinary intelligence to plead
his own cause before the courts. This innovation supports the
same conclusions that we have reached from the facts of the
institution of popular courts and the absence of trained jurists.
Evidence was in many colonies given in writing, or at least
taken down by the clerk and made a part of the record in the
action; a practice utterly abhorrent to common law ideas, not
so to the popular mind to whom the evidence is the most impor
tant part of the case. Various modifications of the jury system
have been noted, but in general this venerable and highly popu-
lar institution was finally adopted in the colonies in its English
form at an early date. The period of prescription was in many
of the colonies lowered to five or seven years, a change that was
of course eminently consistent with the conditions of an infant
colony on a new continent. Executions on land were permitted,
and in many cases the fundamental distinction between real and
personal property in the English law was obliterated or ignored.
The laws of inheritance and of tenure were, as we have seen,
very materially modified, very often leading to the adoption of
a system totally unlike the common law at that period.
The historian will be interested in the reversion to the more
ancient customs of the common law which we have ascertained
in a number of cases. Such are the bestowal of judicial func-
tions in law and in equity on the councils, protests against the
extraordinary jurisdiction of which recall the history of the
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56
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
i
jurisdiction of the Great Council and Chancellor in England in
the 13th and 14th centuries. We have seen how archaic ideas
of the jury were revived; Georgia, even after the period of in-
dependence, using a system of controlling the jury that was
modelled on the old method of attaint. We have also seen how
the idea of tort liability for crimes was revived, an idea that has
been in the last decades again enforced with new emphasis by
our legislatures. But the most important and interesting re-
vival of older institutions is found in the popular courts com-
posed of a comparatively large number of judges, recalling the
twelve thanes of early English law, who declared law and cus-
tom in a simple, straightforward manner. Men here appear to
plead their own causes, unassisted save by the unremunerated
help of a friend or by the court itself. The court is not a
trained judge, drawing his knowledge from, and supporting his
judgment upon the accumulated wisdom of ages of legal devel-
opment, but a popular committee representative of the people
and enforcing the general popular custom and sense of justice.
We have also noted the prevailing views on the nature of law.
The analytical theory of Hobbes, making positive law indepen-
dent of moral considerations and basing it on a sovereign will,
was not accepted at that time. The law of God, the law of na-
ture, was looked upon as the true law, and all temporal legisla-
tion was considered to be binding only in so far as it was an
expression of this natural law. With such a view of the nature
of legal obligations, it does not seem strange that the magistrates
should look for the true law in their own sense of right and jus-
tice, or, in the Puritan colonies, in the word of God.
The views of the common law when expressed are of the
most rudimentary and incomplete kind. Ignorance of the sys-
tem is often most frankly confessed, and when a comparison is
instituted between the colonial laws and the common law, Magna
Charta is taken as a sufficient embodiment and expression of
the latter. This is true not only in the Puritan colony of Massa-
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 57
chusetts, but also in Virginia where, when it was to be decided
whether an act was contrary to the common law, the committee
thought it sufficient to examine Magna Charta.
Among the early colonists we therefore find a very clear per-
ception of their destiny to work out a new legal system, to es-
tablish rules dictated by their special polity or by the condi-
tions of primitive and simple life in which they found themselves.
Respect is often expressed for the common law, the resolution
is in some cases even formed of using it as a model, but it is
only in a few cases clearly established as the rule of judicature
and in still fewer instances followed with precision in the ordi-
nary administration of the law. A restatement of the law for
the use of courts and people, in the form of brief codes, is
everywhere considered necessary. These codes cover the more
essential parts of the law, leaving cases therein not anticipated
to be decided by the discretion of the magistrates. The theory
of the transfer of the common law as subsidiary law at the be-
ginning of the colonies is therefore, in its unmodified form, not
a true statement of colonial legal relations. We cannot un-
derstand the history of our law, nor justly value the character-
istic development of our jurisprudence, unless we note the actual
attitude of the earliest colonists towards the common law, an
attitude sometimes of apathy, of lack of understanding, some-
times of resistance or ignorement, sometimes, as in the case of
Maryland, of admiration and adherence from the first.
It has been said that the colonists imported the general prin-
ciples, the general system of reasoning of the common law.
This is either self-evident or too indefinite to be of any historical
value. It is certainly true that ideas of right and positive law
develop side by side mutually influencing and reacting upon
each other; and in this sense the English colonists, in their
general ideas of justice and right, brought with them the fruits
of the "struggle for law" in England. But when the expound-
ers of the theory attempt to descend to particular statements of
these general principles, they use colorless phrases that might
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58
BULLETIN OF THE UNIVERSITY OF WISCONSIN.
as well be applied to any other system of civilized jurisprudence
as to the common law. And when we apply the theory to the
facts, we find that it is not a true and complete statement of
the basis of jural relations in the early colonies.
Most of the colonies made their earliest appeals to the com-
mon law in its character of a muniment of English liberty, that
is considering more its public than its private law elements. In
the 18th century, with a more jealous supervision of colonial de-
velopment by the mother country, the introduction of law books,
and the growth of a trained bench and bar, a more general re-
ception of the private law principles of England is brought
about.
Careful study of the early peculiarities of our system is nec-
essary for an understanding of the juristic history of our various
commonwealths and of the nation as a whole; a knowledge of
the facts revealed by the documents will enable us to see the
true nature of the adoption of the common law of England as
a subsidiary system. It will permit us to recognize from the
first in our history an originality of legal development which
the accepted juristic theory tends to obscure.
To state the final conclusion arrived at: The process which
we may call the reception of the English common law by the
colonies was not so simple as the legal theory would lead us
to assume. While their general legal conceptions were condi-
tioned by, and their terminology derived from, the common law,
the early colonists were far from applying it as a technical sys-
tem, they often ignored it or denied its subsidiary force, and they
consciously departed from many of its most essential princi-
ples. This is but natural; the common law was a technical sys-
tem adapted to a settled community; it took the colonies some
time to reach the stage of social organization which the com-
mon law expressed; then gradually more and more of its tech-
nical rules were received.
The object of this thesis has been to show the points of de-
parture; it remains to trace the history of the gradual adoption
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REINSCH-ENGLISH COMMON LAW IN AMERICAN COLONIES. 59
of the common law in practice and its amalgamation with the
original elements of American colonial law. American juris-
prudence has three sources: (1) original institutions and legal
ideas developed by the colonists in response to the demands of
their novel situation; (2) principles and institutions derived
from and modelled upon Scriptural authority, (3) the princi-
ples of the older English law; the former are not sufficiently
phasized by the accepted legal theory. From the first our law
had a large element of originality and gave evidence of creative
power.
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60
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