The American Judiciary | Page 4

it was generally declared that it should be exercised in
conformity, so far as might be practicable, with the laws of England.
The proviso to this effect in the roving patent given by Queen Elizabeth
to Sir Walter Raleigh may be taken as a type: "so always as the said
statutes, lawes, and ordinances may be, as neere as conveniently may
be, agreeable to the forme of the lawes, statutes, government, or
pollicie of England."[Footnote: Poore, "Charters and Constitutions," II,
1381.]
In the Southern New England colonies, when first settled, the common
law of England was disowned. They made the little law which they
needed for themselves, and as cases which this might not provide for
arose, they were to be decided by such rules as the magistrates might
think right and warranted by the precepts found in the Bible.
Connecticut continued to insist on this view, with general consistency,
until the days of the Stamp Act, when it became the interest of her
people to claim the benefit of the principles of the English constitution
and of the common law, on which it was built up.[Footnote: Colonial
Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. Cf.
citations by D. Davenport, arguendo, in Flynn v. Morgan, 55
Connecticut Reports, 132-134, from MSS. in the State archives.]
In early Massachusetts the written pleadings often referred to the Bible,

quoting a text from it as an authority, just as citations now might be
made in a lawyer's brief from a legal treatise or reported case.[Footnote:
Publications of the Colonial Society of Mass., III, 324.]
As was anticipated in the Raleigh patent, it was found from the first and
everywhere that if the common law was to be applied to the rough
conditions of colonial life some modifications were necessary. These
the colonists were, in the main, left free to make at their pleasure. Much
of this work came to be done by their legislative assemblies; more by
their courts. The assemblies sat but for a few days in the year: the
courts were always open to suitors, and sessions of the inferior ones
were frequent.
The assemblies, however, were themselves courts. At first they kept in
their own hands a large share of judicial power. They acted as the early
parliaments of England had acted, both as a legislature and a judicial
tribunal. In several colonies they long kept to themselves the right of
deciding private controversies on equitable principles. They sat as a
court of review, to grant new trials or review judgments. They passed
acts of attainder. They settled insolvent estates.[Footnote: Wheeler's
Appeal, 45 Connecticut Reports, 306, 314.]
This mingling of judicial with legislative functions is a thing to be
tolerated only while the foundations of a government are being laid. As
the Roman plebeian, in the days before the Twelve Tables, clamored
for a known and certain law, so the common people of the early
colonies insisted that from a similar want they held their rights too
much at the will of their rulers. In the colony of New Haven a code was
early framed; but there they built on a written law--the Bible.[Footnote:
New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In
Massachusetts, where they were more anxious to avoid conflict with
the common law, the problem was a serious one.
Winthrop, writing in 1639, describes it with his usual clearness and
discrimination thus:
"The people had long desired a body of laws, and thought their
condition very unsafe while so much power rested in the discretion of

magistrates.... Two great reasons there were, which caused most of the
magistrates and some of the elders not to be very forward in this matter.
One was want of sufficient experience of the nature and disposition of
the people, considered with the condition of the country and other
circumstances, which made them conceive that such laws would be
fittest for us which should arise pro re nata upon occasions, etc., and so
the laws of England and other states grew, and therefore the
fundamental laws of England are called customs, consuetudines. 2. For
that it would professedly transgress the limits of our charter, which
provide we shall make no laws repugnant to the laws of England, and
that we were assured we must do. But to raise up laws by practice and
custom had been no transgression."[Footnote: Winthrop, "History of
New England," I, 322.]
The tendency toward partial codification proved too strong to be
resisted, and all the colonies soon had a substantial body of written law
published in official form.
The exercise of judicial power by colonial legislatures was steadily
contracting throughout the century preceding the Revolution. Where
there were Governors appointed by the crown, they discouraged it. The
courts were correspondingly strengthened. Law became