Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/403

 11. REINSCH: COLONIAL COMMON LAW 389 vanced nature. Murder and man-slaughter are distin- guished on the principle of malice aforethought. Theft committed by a child or for hunger is declared to be only petty larceny. Promises and contracts, especially for large amounts, are to be drawn up in writing. The conveyance of land must also be made in this form. This provision by many years antedates the celebrated Statute of Frauds of English law. Imprisonment of debtors is forbidden, " none shall lie languishing for no man's advantage." Lands are made liable to execution. In general, the statement of the code is concise and clear; English statutes are frequently cited, but in spirit the code is thoroughly original though in parts archaic. That it was considered a sufficient statement of law is shown by the enactment that " In all other matters not forbidden by the code all men may walk as their con- science persuades them." A modified form of jury trial is instituted by a later enactment.^ The province of judge and jury is there defined. As in Massachusetts, attaint is made the remedy for a false verdict. Bellomont sent the laws of Rhode Island to the Council in 1699,^ when he gives it as his opinion that the world never saw such a parcel of fustian. He also says : " Their pro- ceedings are very unmethodical, no wise agreeable to the course and practice of the courts of England, and many times very arbitrary and contrary to the laws of the place; as is affirmed by the attorneys at law that have sometimes practiced in their courts." ..." They give no directions to the jury nor sum up the evidences to them, pointing out the issue which they are to try." Later, however, in 1708, Governor Cranston writes to the Lords of Trade : " The laws of England are approved of and pleaded to all intents and purposes, without it be in particular acts for the prudential affairs of the colony." ^ Up to the time of the Revolution, judges were elected annually from the people. The Newport court records show us the extent of the discretion of magistrates. In an action
 * Rhode Island Colonial Records, I, 198.
 * Documents Relative to Colonial History of New York, IV, 600.
 * Durfee, Gleanings frori} the Judicial History of Rhode Island, p. 78.