Page:American History Told by Contemporaries, v2.djvu/231

No. 74] be maintained by courts of King's Bench, &c. and how far the revenues by courts of Exchequer, and how far the crown and subject may have relief by courts of equity. If in this view we consider the defects which must be found in Provincial courts, those point out the necessity of the establishment of a remedial general court of Appeal ; but if we view the only mode of appeal, which at present exists, we shall see how inapplicable, how inadequate that court is. I cannot, in one view, better describe the defects of the provincial courts in these infant governments, than by that very description which my Lord Chief Justice Hales gives of our county courts, in the infancy of our own government, wherein he mentions,

"First, The ignorance of the judges, who were the freeholders of the county.

"Secondly, That these various courts bred variety of law, especially in the several counties, for the decisions or judgments being made by divers courts, and several independent judges and judicatories, who had no common interest amongst them in their several judicatories, thereby in process of time, every several county would have several laws, customs, rules, and forms of proceedings. "Thirdly, That all the business of any moment was carried by parties and factions, and that those of great power and interest in the county did easily overbear others in their own causes, or in such wherein they were interested, either by relation of kindred, tenure, service, depend ence, or application." Upon the first article of this parallel, it will be no dishonour to many gentlemen sitting on the benches of the courts of law in the colonies, to say, that they are not, and cannot be expected to be lawyers, or learned in the law. And on the second article it is certain, that although it be a fundamental maxim of colony administration, that the colonies shall have no laws contrary to the laws of Great Britain, yet, from the fluctuation of resolutions, and confusion in the construction and practice of the law in the divers and several colonies, it is certain, that the practice of their courts, and their common law, must be not only different from each other, but in the consequence different also from that of Great Britain. In all the colonies the common law is received as the foundation and main body of their law ; but each colony being vested with a legislative power, the common law is thereby continually altered ; so that (as a great lawyer of the colonies has said) "by reason of the diversity of the resolutions, in their respective superior courts, and of the several