Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/398

 384 ///. THE COLONIAL PERIOD ernor and council were appointed a court of record to try civil and criminal cases, their proceedings and judgment to be consonant and agreeable to the laws and statutes of Eng- land. ^ 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 Eng- lish 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 succeed- ing 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 rights of contract and property and the ordinary pro- ceedings in court. By the charter of 1692, the appointment of judges and justices of the peace was given to the governor and the council. Their tenure was practically during good beha^ vior;^ 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 Mas- sachusetts. Chief Justice Attwood visited Boston in 1700, and in his report to the Lords of Trade ^ he states that he had " pub- licly exposed the argument of one of the Boston clergy, that they were not bound in conscience to obey the laws of Eng- land." 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 Eng- land 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 temptation 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
 * Documents Relative to Colonial History of New York, III, 539.
 * Washburn, Judicial History, p. 138.
 * Documents Relative to Colonial History of New York, IV, 929