282 HISTORY OF LAW 



might prevent dangers to come, as in the roll of Parliament appear- 

 eth. (4 Inst. 3.) The legislator then was a man of courage rather 

 than general training. But the judges were selected from a body 

 of professional men and were experts. No person or body had the 

 right to override or set aside an Act of Parliament (Dicey, Law 

 of the Constitution, p. 38) , unless within the limitation suggested by 

 Lord Coke (Dr. Bonham's Case, 8 Rep. 107a, 118a, 1609), which 

 does not seem to have been acted upon. However, there is apparent 

 the same distrust by judges of popular legislation and reformation 

 of the common law that is seen throughout the reports down to 

 modern times. As Coke frequently said, it is a rule of policy and law 

 that change of the law is to be avoided. (4 Rep. Pref. p. 9.) If 

 Calvin's Case represented the theory of the time, the legislative 

 function of the court practically was quite equivalent to that of Par- 

 liament. Commons had refused to enact a general law, but the 

 judgment in the King's Bench, with the approbation of the King, 

 seemingly accomplished the same result. 



Turning now to the colonists, we find certain reasons why the 

 common law should have continued its course unimpaired, and others 

 that tended to modify it. Whatever may have been the theory in 

 1600 as to the law the colonists took with them to New England, 

 probably the provisions in the Charter of Virginia of 1606 were in- 

 serted as a result of a discussion as to the naturalization of foreign- 

 born subjects, by Lord Coke, who was then Attorney-General, and it 

 is thought drafted the charter. The provision therein whereby James 

 conferred "all liberties, franchises, and immunities within any of 

 our other dominions" upon the colonists, at a later time was claimed 

 to confer the rights of common law on the colonists and their children. 

 The popular antipathy to the common law in most of the colonists in 

 their early history cannot have been a sudden matter, but probably 

 expressed the popular sentiment expressed in debates in Commons 

 and in the statutes in the reigns of Elizabeth and James. For years 

 in the colonies, there was almost uniform prejudice against lawyers. 

 There was a tendency to revert to popular forms in administering 

 justice. The standard was "God's Law," or the " Law of Nature." 

 The jury system for a time was rejected in Connecticut and adopted 

 in a modified form in other colonies. The literature of the civil law 

 was well represented in colonial libraries. As Dr. Reinsch says in his 

 thesis on the English Common Law in the Colonies (Bulletin Univ. 

 of Wis. no. 31, Mad. Wis. 1899): "The process which we may call 

 the reception of the English Common Law by the colonies was not 

 so simple as the legal theory would lead us to assume. While their 

 general legal conceptions were conditioned by and their terminology 

 derived from the common law, the early colonists were far from 

 applying it as a technical system; they often ignored it, or denied its 



