Proceedings of the Council of Maryland, 1694 97. 439

    The Lawyers Opinions in the aforegoing Queries return'd Lib. H. D.

   are as follows, Vizt

   Mr Carrolls In Obedience to your Exncies Ordr to me for giving

   Opinion     . .

   about At. my Opinion in three severall Quaeries put by your

   taints &ca Exncy I humbly offer that as to the first where your

    puts the Quaere Whether Attaints may be brought

   against Juries in this Countrey, and if to be done, by what

   Rule they may be brought.

    I am of Opinion that in as much as We have no particular

   Law of our own Countrey relating to such a matter and hav

   ing a generall Law whereby it is Enacted that in whatsoever

   Case our own Law is silent, that in such Case the Law of

   England must be pursued, that therefore Attaints may be

   brought against Juries here, and that the Rule they must be

   brought by, is the same Rule whereby they are brought in

   England, which Rule is plainly set down in our Books, &

   would be too tedious to insert here, there having sev

   erall Alterations been made therein by severall Statutes.

   As to the second where the Quaere is, when any Error in ifact

   is Assigned vpon an Appeal or Writ of Error brought to a

   Superiour Court, before whom such ifact is not cognoscible,

   what course shall be taken to trye that matter of fact. I am

   of Opinion in the first place that an Error in ifact may very

   well be Assigned as appears clearly in our Books, and that

   such Error is not to be tryed by the Judges before whom it is

   Assigned, quia ad questionem facti non respondent Judices, but

   p pais that is a Jury of the Neighbourhood where such fact

   did Arise, for the impannelling whereof there must issue a

   Venire facias to the Sherriff of the County, and if the ifact

   assigned be found by the Jury, the Judges before whom the

   Writ of Error was brought are to give their Judgmt vpon the

   Law that arises out of the sd ffact Quia ex facto Jus Oritur p. 352

   et ad questionem Juris non respondent Juratores sed Judices,

   and if the ifact so found be an Erronious ifact, the Judges

   ought to Reverse the Judgmt; And I am further of Opinion

   (though it be some what beside the Quaere) that in this

   Countrey there ought to be a greater latitude allowed in

   assigning of Lrrors, and the merits of the Lause to be more

   inquired into by the Judges before whom an Appeal or Writ

   of Error is brought, than in England; Because some of our

   Judges & some of our Juryes (which for want of knowing, and

   more consciencious Men must of necessity be made vse off)

   do oftentimes Judge according to the Affection or disaffection

   they have for the person plaintiffe or Defendant, and not

   according to the Merit of the Cause or the Law that Arises

   vpon the pleadings thereof; This I should not have the confi