When i speak of common law, i speak of the law common to man as described by Paul Samuel Reinsch in his 1899 book “English Common Law in the early American Colonies”; Reinsch explains how American common law was specifically derived from the Bible.
To Learn More – Read: English Common Law in the early American Colonies – by Paul Samuel Reinsch (1899)
The ideas of the Massachusetts colonists on the matter of law appear very clearly from a resolve of the general court of the year 1636. The government is there entreated to make a draft of laws “agreeable to the word of Gød” to be the fundamental laws of the commonwealth. This draft is to be presented to the next general court. In the meantime, the magistrates are to proceed in the courts to determine all causes according to the laws then established and where there is no law “then as near to the law of God as they can“.
Connecticut and New Haven
In Connecticut and New Haven we find a development similar to that of Massachusetts. The Connecticut code of 1642 was copied from that of Massachusetts. The fundamental order of New Haven provides for the popular election of the magistrate, and for the punishment of criminals “according to the mind of Gød revealed in his word.” The general court is also to proceed according to the Scriptures, the rule of all righteous laws and sentences. In the fundamental agreement all freemen assent the Scriptures hold forth a perfect rule for the direction and government of all men, in all duties. The scriptural laws of inheritance, dividing allotments, and all things of like nature are adopted, thus very clearly founding the entire system of civil and criminal law on the word of Gød.
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 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 technical knowledge of the lawyer was not demanded, and, … lawyers had to turn their hands to semi-professional or non-professional work, the courts of the colonies at that date having no need of the aid of a trained profession to discover what was the law, as the customs of the time the law was in so many cases determined by the discretion of the court. — i.e. the jury
It seems just to conclude that in most cases the administration of law was carried on not by the technical rules of a developed system of jurisprudence, but by a popular tribunal according to the general popular sense of right.
The original element 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.None found.