Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/407

 11. REINSCH: COLONIAL COMMON LAW 393 cised.^ In one of these cases the judgment is said to be given according to law and good conscience.^ Immediately upon the occupation by the English, the jury came into use in New York. Jury trials are, however, at first, very informal, more after the manner of a simple arbi- tration, and verdicts are often given in the alternative. ^ In the form of testamentary disposition the Roman Dutch law of the New Netherlands left abiding traces. The method of making wills by oral declaration before a notary, or by a written and sealed instrument deposited with that official, was used long after the first English occupation. ^ We find that in these early days the functions of the court were not only judicial but administrative, much like those of the earliest itinerant judges in England. Thus the judges are directed to make inquiries into town training, the bearing of arms, the price of com, wages, and escheats.^ As another reversion to older practice, we may note the concentration of various functions, judicial, administrative, and legislative, in the hands of the colonial council of the earliest time. A still closer analogy to mediaeval English history in this respect we shall find in the case of Pennsyl- vania. In the year 1700, a professional English lawyer, Attwood, became chief justice of New York. It was his avowed pur- pose to introduce the common law and practice of the Eng- lish courts into the colony. He was, however, too asserta- tive, and favored strong government too much, so that he in some cases perverted the law to his own uses, as when he declared that whatever was treason before 25 Edward III. was still treason at common law ; ^ or when he held that a grand jury was only an inquest of office and that eleven could indict.^ He complained in a letter to the Lords of Trade ^ that " several here cannot well bear with the exe- 589, 600, 629. law, see Judge Daly's prefatory note in 1 E. D. Smitb (N. Y.).
 * Documents Relative to Colonial History of New York, XIV, 570,
 * Underbill vs. Hempstead, Ibid., 589.
 * Fernow, Records of New Amsterdam, V. 267flF.
 * Fernow, Calendar of Wills, p. IV. For otber traces of tbe Dutch
 * Documents Relative to Colonial History of New York, XIV, 637.
 * Ibid., IV, 974. ' Ibid., 1010. • Ibid., 923.