Civilization in the United States: An inquiry by thirty Americans
General
Civilization in the United States: An inquiry by thirty Americans
United States -- Civilization
the miners ignored the water-law of the Atlantic seaboard which gave
each person bordering on a stream some share of the water, and adopted
instead the custom better suited to a new country of first come, first
served. Almost the earliest task of the founders of a Colony was the
regulation of the disputes which arise in a primitive civilization by
a brief legislative code concerning crimes, torts, and the simplest
contracts, in many ways like the dooms of the Anglo-Saxon kings.
Gaps in these codes were not filled from the Common Law, as would be
the case to-day, but by the discretion of the magistrate, or in some
Colonies, in the early days, from the Bible. Land laws and conveyances
were simple,--the underlying English principle of primogeniture was
abolished outright by several Colonial charters, and disputes of title
were lessened by the admirable system of registering deeds. Such
law did not require lawyers, and it is not surprising that even the
magistrates were usually laymen. The chief justice of Rhode Island as
late as 1818 was a blacksmith. Oftentimes a controversy was taken away
from the court by the legislature and settled by a special statute.
Thus, instead of the English and modern American judge-made law, the
Colonists received for the most part executive and legislative justice,
and lived under a protoplasmic popular law, with the Common Law only
one of its many ingredients.
The training of the few Colonists who did become lawyers may be judged
from that of an early attorney general of Rhode Island:
“When he made up his mind to study law, he went into the garden
to exercise his talents in addressing the court and jury. He then
selected five cabbages in one row for judges, and twelve in another
row for jurors. After trying his hand there a while, he went boldly
into court and took upon himself the duties of an advocate, and a
little observation and experience there convinced him that the same
cabbages were in the court house which he thought he had left in the
garden,--five in one row and twelve in another.”
The natural alienation of such attorneys from the intricacies of
English law was increased by occasional conflicts between that
system and Colonial statutes or conceptions of justice. An excellent
Connecticut act for the disposal of a decedent’s land was declared void
by the Privy Council in London as contrary to the laws of England,
and the attempt of the New York governor and judges to enforce the
obnoxious English law of libel in the prosecution of Peter Zenger in
order to throttle the criticism of public officials by the press, would
have succeeded if the jury had not deliberately rejected the legal
definitions given by the court.
Public-domain text, read in full here on John Shaqi.
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