11. REINSCH: COLONIAL COMMON LAW 379 tlon. Upon such a verdict the court would give sentence for such offenses as the evidence at the trial might have disclosed." He adds in a note the advice of Lieut. Gov. Stoughton to Governor Hinckly of Plymouth, given in 1681 : " The testimony you mention against the prisoner I think is sufficient to convict him; but, in case your jury be not of that mind, if you hold yourself strictly obliged by the laws of England, no other verdict but ' not guilty ' can be brought in; but, according to our practice in this jurisdic- tion, we should punish him with some grievous punishment according to the demerit of his crime, though not found capital." ^ In 1672, an attempt was made to limit the power of the magistrates in this respect.^ For the controlling authority of the magistrates there is offered as a substitute the archaic method of attainting the jury for giving a verdict contrary to the weight of evidence; and the law allowing the magis- trates to refuse the verdict of the jury is repealed. This is a remarkable instance of the revival of an archaic method which had all but disappeared in England. The jury in such a case was to be tried by a new jury of twenty-four, and the court had no control over the verdict. It seems that many juries were attainted, because in 1684 it was enacted^ on account of the unreasonable trouble caused by numerous attaints, that the cause of attaint shall be given in writing; that if the verdict is confirmed, the person attainting shall be fined 34 pounds; and that the jury may also prosecute him for slander, with other additional penalties. The jury were also at liberty, when they were not clear in their con- science about any case, " in open court to advise with any man they should think fit, to resolve and direct them before they gave their verdict." * In the colonial system of Massachusetts we do find traces of the common law; the less technical parts of its terminol- ogy are in use, forms of contracts and deeds are modeled on
- Massachusetts Historical Society Collections, Series II, Vol. I, p.
XXII.
- Massachusetts Colonial Records, IV, part 2, p. 508.
- Massachusetts Colonial Records, V, 449.
- Colonial Laws of Massachusetts Bay, Ed. 1660, pp. 47, 48.
