xvi                  Introduction.

               Whatever the nature of the jury, the quality of the jurymen was no higher
             than it had been. Many could not write their own names, yet they were chosen
             again and again to serve. John Tenison (or Tennison) made his mark to sign
             a jury verdict in September 1677, and he served on two more juries after that
             (post, pp. 63, 324, 417). Of a jury summoned in May 1677 to partition
             land, nine of the twelve were marksman (post, p. 104). To be sure, none of
             the persons summoned or jury service were drunk or in jail when they should
             have been serving (Archives LXV, pp. 50, 225). Yet the marksmen doing
             jury service were not below the average of the population. In cases where
             women had to sign documents, most of them made their marks, and the signa
             tures of men who wrote their names make it probable that they could write
             very little more. Illiteracy was no bar to office-holding. “Edward [Turner]
             being an illiterate person” but nonetheless “constituted Constable of the said
             Hundred [of St. Clements]”, was fined 500 pounds of tobacco for not setting
             up in the St. Mary's County court house a fair list of all the tithables of his
             hundred according to act of Assembly (Archives II, 538-539. Edward peti
             tioned the Governor and council for a remission of his fine because he was
             wholly ignorant of the law, and he had delivered a list to the sheriff. Ignorance
             of the law does not excuse anyone from what he is presumed to know, but the
             Governor was willing to presume that Constable Turner did not need to know,
             He had the Provincial Court order the justices of St. Mary's to stop trying to
             collect the fine, but there was no effort to remove Turner. For the future,
             though, the person swearing in a constable was to tell him about the law, and
             so leave him without Turner's excuse (post, p. 90).
               Although most of the cases heard now, as in the past, were original, a hand
             ful did come up on appeal or on writ of error and supersedeas. Strictly, on an
             appeal, the higher court examined both the law and the facts, and tried the case
             as if it had not been tried before; on writ of error the court did not go into
             the facts at all, and concerned itself with the law only. In the late seventeenth
             century in the Province of Maryland at least, the Provincial Court was not at
             all nice in observing this difference. February 23, 1677/8 the case of Clayland
             v. Barnes came up in the higher court “upon an Appeale from Talbot County
             Court, & the plaintiffe not appearing to prosecute upon the Writt of Error &
             Supersedeas, a procedendo is awarded (post, p. 206). The same thing hap
             pened and the same words were used in the case of John Thompson v. John
             Atkey (post, p. 178). In this case there is a careless mistake that must be
             blamed on the clerk of the Provincial Court, Nicholas Painter. Atkey it was
             who got the writ of error and supersedeas, and therefore, though he had been
             defendant in the county court, he was now plaintiff in error, and he should
             have been so designated in the Provincial Court record. Instead, here is Pain
             ter's entry:
                                  This cause being upon an Appeale from the
                          County Court of Calvert County And the
                   John Thompson                             . .
                      defend appeareing by Robert Carvile his At

                    torney And the said John Atkey not appearing
                      Atkey to prosecute his writt of Error & Supersedeas
                                  a Procedendo is granted”.