Colonial Period - English Common Law

The legal system most familiar to seventeenth century colonists was English common law. English common law had been in use for several centuries in England before the New World's settlement. Common law provides a set of rules "commonly" used to solve problems. It is built on a history of judges' decisions rather than relying on lawmaking codes, or laws. In England the decisions that contributed to a common law tradition were written down and compiled annually in legal volumes available for judges to study. Common law developed a reputation for fairness in the courts as well as the protection of individual rights and private property.

Common law distinguished two basic types of crimes, the very serious called felonies and the less serious called misdemeanors. For the more serious crimes, evidence concerning the crime was first heard by a grand jury consisting of citizens from the community. The grand jury decided whether enough evidence existed. If so, an indictment (official charges) was issued charging the person with a crime and leading to a court trial before a regular jury. The judge and jury would then hear the arguments presented by both sides and offer a verdict.

Early English common law had some distinctive qualities. Unlike modern law, no district attorneys or public prosecutors brought court cases against the accused. It was up to the victim of the crime to bring the case to the court and pay for it. As a result, only people of means (having money or property) could pursue prosecutions. Under such a system, many citizens could not afford to press charges against someone who victimized them.