11. REINSCH: COLONIAL COMMON LAW 401 to the former precedents. In defect of such law, usage, or precedent, the case shall be determined according to equity and good conscience " not neglecting (so far as the judge shall be informed thereof and shall find no inconvenience in the application to this province) the rules by which right and justice useth and ought to be determined in England." The common law of England seems here rather to be looked upon as a system useful for illustration and guidance than a sub- sidiary law ; equity and good conscience was considered to afford proper rules to fill the omissions of the positive law. ^ The rules for trial were in many respects unusual. The judge is allowed to administer an oath to either party in a civil cause, and on the refusal of the party to testify may proceed as if the matter asked had been confessed. ^ The power of the judge in controlling the jury is very great. If he thinks a verdict unjust he may return the jury or charge another. If he find the jury evidently partial or willful, he may charge another jury, and if their verdict is contrary the first jurors may be fined. Among these provisions we also find one of the earliest exemption laws. Tobacco, neces- sary clothing, bedding, utensils, and tools are exempt from execution.^ The fettered legislative powers of this colony, the unlimited discretion allowed the governor and his council in administra- tion, by the charter, and the somewhat heterogeneous char- acter of the population, led the colonists later more strenu- ously to insist upon the observance of the principles of the common law as a subsidiary system. Therefore we find that in 1662 an act was passed declaring that when the laws of the province are silent, justice is to be administered according to the laws and statutes of England ; and that " all courts shall judge of the right pleading and the inconsistency of the said laws with the good of the province according to the best of their judgment."* This act was in force for only a short time, and the rule of judicature was therefore not long estab- » Archives of Maryland, Proceedings of General Assembly, 147.
- Ibid., p. 150. This practice is perhaps taken from the canon law.
- Ibid., p. 152.
- Maryland Archives, Proceedings of Assembly, p. 436.
