Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/402

 388 ///. THE COLONIAL PERIOD Massachusetts magistrates.'^ Under this regime, the admin- istration of the rules of the common law would of course be impossible. The early judges and chief justices were all business men, seamen, or farmers ; only in 1726 did a man of liberal education, Judge Jaffray, a graduate of Harvard in 1702, appear on the bench. ^ And it was only in 1754 that a lawyer, Theodore Atkinson, also a graduate of Har- vard, became chief justice. Samuel Livermore, chief jus- tice in 1782, though trained in the law, refused to be bound by precedents, holding, " that every tub should stand on its own bottom;" he looked upon the adjudications of Eng- lish tribunals as only illustrations.^ It may be said that no real jurist, no man acknowledging a regular develop- ment of the law by precedents and finding an authoritative guidance in the adjudications of the common law judges, held judicial power in New Hampshire during the entire 18th century. Rhode Island This colony was consciously founded on a democratic basis. * The charter is made the basis of government, by which legislative action is to be restricted. In order to escape the imputation of anarchy, and to preserve every man safe in his person and estate, the common law is to be taken as a model for legislation in as far as the nature and con- stitution of the colony will permit. The code itself shows a very archaic conception of law. In its classification it espe- cially reminds us of the Anglo-Saxon dooms in the prom- inence it accords to crimes and torts. It classifies law under five general heads: (1) murthering fathers and mothers; (2) man slayers; (3) sexual immoralities; (4) men- stealers; (5) liars, under which heading are comprised per- jury, breach of covenant, slander, and other torts. On the other hand, however, it contains some provisions of an ad- ' Bell, Bench and Bar, p. 37. History of Rhode Island, 1, SOS, et seq.; Rhode Island Colonial Rec- ords, 1, 156.
 * Danl. Chipman, Vermont Reports, pp. 11, 19, 21.
 * C. H. Bell, Bench and Bar of New Hampshire, 13.
 * Code of Civil and Criminal Law of 1647; cited in full in Arnold's