Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/399

 11. REINSCH: COLONIAL COMMON LAW 385 18th century the old popular law was still largely admin- istered in derogation of the more highly developed rules of the common law. It is stated that after the change in t)e appointment of judges, practice became very captious arid sharp. In 1712, the first professional lawyer, Lyncje, be- came Chief Justice, and after this we find that English 'books and authors are frequently cited.-' Yet Massachusetts juris- prudence exhibited for a long time thereafter the marks of its early informality. Jefferson says in a letter to Attorney General Rodney, September 25, 1810,^ speaking of Lincoln, of Massachusetts, as a possible successor to Gushing 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 little attended to. Lincoln is one of the ablest in their system." How strongly the old view of law which we have noticed maintained itself in Massachusetts,. we see from John Adams' statement in the Novanglus : ^ not from Parliament, not from the common 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. They 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 sub- sidiary system, the law of God there taking its place. In- deed, it colored and influenced the legal notions of the col- onists, but they always resisted the assertion of its binding force. The absence of lawyers made the administration of a highly developed system impossible. We have a layman law, a popular, equitable system, which lacks the elements and Hobart. • Jefferson's Complete Works, V, 546. » 1774, John Adams, Works, IV, 122.
 * ' How then do we New Englanders derive our laws. I say
 * Arguments of Valentine, in Matson vs. Thomas, 1720, citing Coke