Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/391

 11. REINSCH: COLONIAL COMMON LAW 377 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 resolve 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. He 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 colonial and 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 natural law philosophy, and it is, per- haps, the earliest American instance where the power is claimed for the courts to control legislative action when opposed to fundamental law. ^ The case, moreover, shows very clearly in what light the common law was regarded by the New England colonists ; not at all binding per se, but in as far as expressive of the law of God to be used for purposes of illustration and guidance. Popular courts of jurisdiction in petty cases, which had long fallen into disuse in England, were established in most of the 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 estab- lished.^ Petty civil cases in the towns were tried by courts of one judge, or commissions of three freemen.^ 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 in- formal, and there was little regard paid to forms of action.* » Ibid., 239.
 * Cf. Cok^g opinion in Bonham's Case, 8 Rep., 118a.
 * Massachusetts Colonial Records, I, 169.
 * Washburn, Judicial History, 48.