Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/426

 412 ///. THE COLONIAL PERIOD by its representatives on the justice or injustice of the case involved. The absence of a jurist class, and especially the universal prejudice against lawyers, proves that a popular and not a technical system was being enforced. The tech- nical knowledge of the lawyer was not in demand, and, like Lechford, the lawyers had to turn their hands to semi-pro- fessional or non-professional work, the courts of the colonies at that date having no need of the aid of a trained profes- sion to discover what was the law, as by the custom of the time the law was in so many cases determined by the discre- tion of the court. It seems just to conclude that usually the administration of law was carried on not according to the technical rules of a developed system of jurisprudence but by a popular tribunal according to the general pop- ular sense of right. The original elements In the early colonial laws are great in number and import. They foreshadow and anticipate some of the most far-reaching American law reforms. Pleading is simplified, and the intention is in many places expressed that it shall be possible for any man of ordinary intelligence to plead his own cause before the courts. This innovation supports the same conclusions that we have reached from the facts of the institution of popular courts and the absence of trained jurists. Evidence was in many colonies given in writing, or at least taken down by the clerk and made a part of the record in the action; a prac- tice utterly abhorrent to common law ideas, not so to the popular mind to whom the evidence is the most important part of the case. Various modifications of the jury system have been noted, but in general this venerable and highly popular institution was adopted in the colonies in its Eng- lish form at an early date. The period of prescription was in many of the colonies lowered to five or seven years, a change that was of course eminently consistent with the conditions of an infant colony on a new continent. Execu- tions on land were permitted, and in many cases the funda- mental distinction between real and personal property in the English law was obliterated or ignored. The laws of inheritance and of tenure were, as we have seen, very ma-