The radical differences in the character of the colonists were reflected in their statutory enactments. The theocracy of Massachusetts found expression in the Body of Liberties (1636) in which the Mosaic Code was adopted. The Connecticut Code (1643) was similar. The early code of Virginia (1612) was exceedingly severe and it was modified soon after the col ony had its own legislative assembly. The commercial spirit of the colony's promoters as serted itself in the laws which aimed at the economic regulation of the colony. While the criminal codes, judged by the standards of the present, seem harsh, yet in comparison with the criminal law of England, they were mild, for while the laws of Connecticut specified 12 crimes for which the death penalty was pro vided, there were more than 200 offenses pun ishable by death under the English law. No other colony introduced a system of codes so all-embracing and modern in spirit as did Penn sylvania, which by its frame of government and fundamental laws embodied the opinions of the most enlightened statesmen of the time with the modifications which experience had found necessary. In Maryland, owing to the continued disagreement between the proprietors and the people, no formal code of laws was in force. The colonists accordingly claimed that they were governed by the common law of England in so far as it was applicable to the local conditions existing. The proprietor op posed this claim as in derogation of his rights and the controversy was not settled until well into the 18th century.
The almost universal adoption of codes which restated legal principles remained to be put in force by the colonial courts. The con stitution of these courts was as various as was that of the colonies. Everywhere the trial courts were presided over by men untrained in the law ; the procedure was of the most in formal kind. Whether, as in Virginia, the County Court consisted of 8 or 10 gentlemen holding commissions from the governor, or as in Rhode Island, where the judges were elected annually by the people, there was little chance for a systematic declaration of the law based upon precedent. It is the universally accepted theory of American jurisprudence that the col onists brought with them such parts of the un written common law of England as was suited mutatis mutandis to the conditions of colonial life. No exact dates, however, can be set for a general reception of the common law. Where the colonial codes were silent the early colonial judges did not consciously draw upon English precedents for their decisions. Knowing little and caring less for the technicalities of the law and having no law books, they decided cases not covered by the codes according to the rules of substantial justice as between man and man, taking as in Massachusetts (1646) the words of eternal righteousness and truth as the rule by which all kingdoms and jurisdictions must render account)) or, as in Virginia (1631) "do ing equal right to poor and to rich after their cunning, wit and power and after the laws and customs of the colony and as near as may be after the laws of England?' While the systems of grand and petit juries were everywhere to be found, their powers differed from their Eng lish originals; the respective provinces of the court and petit jury were not clearly defined.
Contrary to the English practice, evidence was frequently submitted in writing; pleading was according to no rule, and while the terminology of the common law was used, the precise mean ings of legal phrases were overlooked. Pecu liarly English provisions were modified or abro gated. The theory of feudal tenures was abolished save in those colonies, as in Mary land, where the proprietary system prevailed. Primogeniture had no existence in Massachu setts, Connecticut or Delaware and the eldest son was given a double portion in lieu thereof. Appellate procedure was as informal as was that of the trial courts. Usually the method was by appeal to the governor and council, not Upon reserved questions of law, but by a re view of the whole case upon its merits. Ap peals beyond the highest authority in the col ony to the king in council were generally and successfully denied by the colonial governments.
In the founding of separate colonies, dis tinct in character one from another, by re sourceful and self-reliant Englishmen were the beginnings of American jurisprudence. The "wise and salutary neglect") of the mother country did much to make early American law peculiar to itself.
Period of Organization (1700-1776).— During the 18th century and prior to the Revo lution, law and procedure tended toward a common type in all the colonies. The causes of such a change from the variant beginnings of the century previous were not only political, but social and economic. Increase of popula tion by immigration, mostly from England and by natural increase, added wealth, growth of towns and better facilities of inter-communica tion rendered the crude administration of the earlier period insufficient for colonial needs. The revocation of colonial charters and the or ganization of Crown colonies led the way to greater uniformity of administration. Com mon grievances started a national feeling. All of these forces aided in creating a common public sentiment which found its expression in law either directly through legislation or indi rectly from the bench. During this period were laid the foundations of a later constitutional law. Every inhabitant of a charter colony was interested in the legal proceedings in England concerning the charters, in which were in volved definite and fundamental principles of public law. Furthermore, sentiment in these colonies agreed that if a colonial legislature enacted laws not in accordance with the powers granted by charter, the act was void. Familiar ity with colonial charters bred a belief in the wisdom of written constitutions; and the prac tice of declaring void all legislative enactments in conflict with charter powers assisted in build ing up the later theory of constitutional limita tions, State and Federal.