INTRODUCTION xxi

them of the common law." ¹ It must be borne in mind that the members
of the House of Lords were in the main laymen, and that until the nine-
teenth century the lay members participated in judicial decisions. In the
state of New York, until 1846, the members of the state senate sat with the
judges on appeals. In Maryland, lawyers were not by law required on any
courts until I'j'jG,² none were required on the county courts until 1790,"
when a professional chief judge was required, and the courts of first instance
in matters of probate and the administration of the estates of deceased own-
ers have never been made subject to the requirement. Dependence upon
participation of non-professional judges was for centuries a conspicuous
characteristic of justice throughout the English countryside.

8. THE ATTORNEYS

With respect to the attorneys practicing before the early Maryland
courts, the references in the records have left some obscurity and caused some
confusion, chiefly because of a common practice of parties to litigation,
especially in the first two or three decades after the settlement, to appoint
agents or attorneys in fact to attend court for them, and to take measures for
the protection of their interests.⁴ In a statement of grievances drawn up by
the lower house in 1669 ⁵ it was explained that the aged and impotent not
able to travel, and litigants absent beyond seas, must have attorneys; but
disability and distance seem not to have furnished the only explanations.
In 1714, petitions to the upper house on behalf of merchants protested that
distribution of the business of the central provincial court among the twelve
county courts necessitated the employment of twelve agents, one in each
county, to collect debts.⁸ These agents were customarily referred to as
attorneys, and the parties represented were noted as appearing and acting
by attorneys, when only attorneys in fact were meant; and this has led to
statements that there was a large number of attorneys at law in the province
in its earliest years, including among them the first woman attorney at law
in America. Survivals of the practice are found in records of the late
eighteenth century.⁷ Before acting, these attorneys presented credentials
from their principals, and the form used sometimes included an authoriza-

1 Hale, Original Institutions, Power and Jurisdiction of Parliaments (London, 1707),
p. 51; Blackstone, Comm., Ill, 56.

2 Constitution and Form of Government of Maryland (1776), sec. Ixi. But under the
original charters of St. Mary's (1667) and Annapolis (1708) the recorders were required to
be lawyers.

³ Act 1790, ch. 33.

* Archives, IV, 7, 9, 39; ibid., XLI, 233; ibid., XLIX, xvi, 44, 45, 47, 54, 59, 63, zoo. Com-
pare recitals in the bond of Macnemara, post, p. 607.
» Ibid., II, 175.
6 Mereness, op. cil., p. 240.
? Calvert v. Eden, s Harris & McHenry, 365.