Introduction to the Legal Procedure.xxiii

     assembly of the Province, and orders for the prorogation of assemblies. As in
     England, these were issued by the Chancellor, as Keeper of the Great Seal,
     and belonged among his records. The examples in this record will explain
     themselves. Commissions of the Peace, that is, commissions to the Justices
     of the Peace, are found included. These, too, were issued by the Lord Chan-
     cellor in. England, and comparison will show a close reproduction in Maryland
     of the elaborate form developed there, and settled finally by a conference of
     the royal judges in 1590. The charters of St. Mary's City were duly enrolled
     in the Chancellor's Office, and were therefore included in his records. Records
     of a number of indentures or deeds were inserted for preservation.
      Pardons under the Great Seal, issued upon criminal convictions, were recorded
     together with the proceedings leading to the convictions, and upon which the
     Governor acted. Recitals in some of these proceedings may need explanation.
     All homicides by persons above infancy, except homicides in execution of
     sentences of courts, or in making arrests of outlaws or manifest thieves, were
     punishable, according to the theory still avowed, but as excuses for innocent,
     chance killings came to be recognized, pardons were given for these, and at
     the time of the making up of this record were always given, as of course.
     It was a roundabout method of admitting defences. Therefore proceedings
     and pardons in a number of cases of homicide by misadventure are found.
      The “benefit of clergy” claimed by Pope Alvey and John Oliver after their
     convictions can be satisfactorily explained only historically. It resulted from
     the right allowed the church in the early middle ages to regulate and punish
     its own members. At first, it was only to those in priestly garb and tonsured
     that the exemption from common law punishment was conceded, but in time
     the test became that of ability to read which was confined almost altogether
     to the clergy; and, as this ability was extended by printing, laymen came
     within the letter of the exemption, and stayed within it. But in England the
     claimants to the benefit of clergy were restricted in some ways. After the
     middle of the fifteenth century a claimant was always required to come into a
     court and plead his exemption there; and a statute of Henry VII (chapter 13),
     compromised on the allowance to laymen by condemning those convicted
     to a burning with a hot iron in the brawn of the left thumb, and by denying
     the exemption after it had once been allowed. So it was that Pope Alvey
     in Maryland, after having once been allowed the benefit of clergy and burnt
     in the hand, was denied it on a second conviction, and put to the necessity of
     obtaining the pardon here recorded.
      Of the judicial entries, a few may seem wrongly included in a Chancery
     record. Cases arising in county courts or in the Provincial Court, on minor
     criminal charges, were by writs of certiorari removed to the Court of Chancery
     for disposition there, presumably because unsatisfactory conditions required
     the removal, but removal before any trial seems to have been unusual in Eng-
     land. At that time however, the power of common law courts to grant new
     trials had fallen into disuse and parties feeling aggrieved by verdicts were
     resorting to the Court of Chancery for reconsideration. Writs of certiorari
     commanded the certification and transmittal of copies of records in cases
     removed.