Introduction. xv

(post, 14, 46, 97, 182, 189, 211). When one of the parties to a suit put himself
upon the country and the other party also, the next step was the command to
the sheriff of St. Mary's that "he cause to come here twelve &c by whom &c
and who neither &c To recognize &c because as well &c." The sheriff got a
hundred and twenty pounds of tobacco for summonsing a jury (Archives II,
532; post, 39-40). In addition to trial juries there were other kinds. When
the Court awarded damages to one party but did not know how great those
damages ought to be, it ordered the sheriff to "cause to come here ..... twelve
good and lawfull men of his county diligently to enquire what damages" the
party who gained the verdict had sustained (post, 74, 76, 137, 139, 152,
202-203). Invariably the Court considered that the damages should be the
amount the jury recommended. Sometimes a jury would be summonsed to
decide the partition of a tract of land, but there were no cases like that at this
time.

Though there is little to be said now about the quality of the jurymen, there
is no reason to believe that in one year it rose substantially. Richard Hodgson
served on a jury eight times, so that he must have been satisfactory. Yet,
when the sheriff of Charles County went to arrest Hodgson at the suit of
John Addison, he reported "that the Defend^t is not to be taken by reason he
keepes himselfe upon his Guard, swearing the death of any person that shall
attempt to come in upon him" (post, 147). That did not deter the plaintiff
and his attorney: they got an attachment against his goods and chattels. As to
the ability of the jurors to read and write, nothing is known: there are no
marksmen, but then there are no documents to be signed. Generally the same
men served again and again on juries: the clerk even entered their names in
the same order. Richard Boughton and the brothers Doxey served on ten
juries in the course of this one year. In several cases, though, the jury contained
not one man who had served on another jury (post, 202). Was this a blue-
ribbon jury?

Even more than in earlier years, most of the cases heard were original. There
are no criminal cases, although one man sued another for damages following
an assault and battery (post, 197-198). There were only five cases on writ of
error, and three on appeal. There was a difference between appeals and writs
of error. On a writ of error, only questions of law can be examined, and the
court will not go into the matter of possible errors on points of fact. On appeal,
the upper court will consider matters of fact as well as matters of law, and may
examine the case as if it had not been tried before. That is the theory, and in
most courts it is the practice as well. Here, though, the Assembly, by an act
passed in 1678, substantially wiped out the difference between the two (Archives
VII, 71-73). All appeals "shall from hence forth by the Provinciall Court of
this Province be admitted and allowed of in nature of a writt of Error." For

the future there was to be no new trial tinder an appeal, even though both

processes were used. At this time there was one trial on writ of error, and
several which had come in to the Court were continued or imparled. In the
case of Ralph Fishborne v. Humphrey Davenport, Davenport, a chirurgeon,
sued Fishborne for medical care, and the Talbot County court ordered that