Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/425

 11. REINSCH: COLONIAL COMMON LAW 411 sylvania, departed in many essentials radically from the principles of the common law, and show that their framers consciously desired to meet the entirely novel conditions of the colonists by new and appropriate legal measures. We may safely say that these codes were in the first decades of the colonies almost the sole source of legal knowledge, of rules for adjudication. As to matters not covered by the law there stated, the good and careful discretion of the popularly elected magistrates or appointed judges was re- lied upon to furnish a just rule satisfactory to the popular sense of right. In some instances we have noticed the use of elementary English treatises on actions, like Dalton's Justice^ but we have also noticed that while the names of the forms of actions were used, the greatest laxity and informality prevailed in their apphcation and in the general practice of the popular courts. Some of the colonies declared the English common law subsidiary in cases not governed by colonial legislation, at a comparatively early date. We have noted this in the case of Maryland, Virginia and the Carolinas. But other col- onies very early made unequivocal declarations establishing the law contained in Scripture as subsidiary law in their system. This is true of Massachusetts, Connecticut, and New Haven and to a certain extent of New Jersey. In both cases, however, in the earlier days before a trained bench and bar had come into existence, a declaration of the existence of a subsidiary law would but little bind the other- wise unfettered discretion of the popular judges; because undoubtedly these judges (like the Chancellor in Marks vs. Morris, 4 Hening and Mumford, 463) would epitomize the common law m the ancient rule of " honeste vivere " and thus apply their own ideas of justice until called to account by a trained bar, which arose later, during the 18th cen- tury. The records that have been examined exhibit everywhere, especially in the popular courts, a great informality in judicial proceedings. The large number of judges in these courts would of itself tend to make the practice informal, to make the trial more like a deliberation of a community