Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/401

 11. REINSCH: COLONIAL COMMON LAW 387 exercised a broad discretion. That Connecticut was inde- pendent of the home country in legal matters is noted by Quary in his report to the Lords of Trade in 1707.^ If* possible, these colonies departed even further from the com- mon law than Massachusetts in their system of popular courts, absence or radical modification of the jury trial, discretion of the magistrates, and in the case of New Haven, the clear and unequivocal assertion of the binding force of divine law as a common law in all temporal matters, as a guiding rule in civil and criminal jurisdictions. New Hampshire The settlers of New Hampshire and Vermont were in many cases malcontents who had left the Puritan colonies. They were not so homogeneous a society, and therefore the asser- tion of the binding force of the common law could be more successfully made. The commission of 1680 orders pro- ceedings in the courts to be consonant to the laws and stat- utes of England, regard, however, being had to the con- dition of the colonists. ^ The General Assembly, meeting at Portsmouth in March, 1679-80, passed a body of general laws in which they claimed the liberties belonging to free Englishmen. They, however, refused to admit the binding force of any code, imposition, law, or ordinance not made by the General Assembly and approved by the president and council. The code itself is very simple, but in place of biblical references English statutes are cited. ^ As a matter of fact it may be questioned whether this apparent sub- mission to English law was more than formal. The gen- eral court petitioned against appeals to England in 1680.* The settlers were so impatient of control that all questions of law and fact were decided by juries. The judges had a term of one year only and none of the influence of the ' Documents Relative to Colonial History of New York, V, 31. and Records, I, 382.
 * Poore, Constitutions, Charters and Documents, p. 1276.
 * Belknap's New Hampshire, p. 454; New Hampshire Documents
 * Cited in Belknap's New Hampshire, p. 457.