INTRODUCTION xxxi

It was prefaced with a remark that the writs of error were not legally
brought before the house according to the manner of bringing writs of error
in Parliament, that there was no law in the province as yet fixing the pro-
cedure, no provincial statute of jeofails to provide for the correcting or ig-
noring of defects in procedure, and that the English statute was not sufficient
for the province. Pending cases were heard by agreement; but notwith-
standing the order of 1681 there were new writs issued and the cases were
heard by the governor and council.¹ This appears more fully in records
as yet unpublished.

The proceeding on writ of error, from the beginning of the jurisdiction
in the province, closely followed that of the English courts. It had origi-
nated in the conception that it was a new proceeding, and steps were taken
as in an independent suit. There was, first, the original writ sued out of
chancery, with an assignment of errors sought to be corrected; the judicial
writ of scire facias ad audiendum errores, frequently given the Latin title,
or an abbreviation of it, but also a title translated in part: scire facias, or
sci. fa. to hear errors, directing the proper sheriff to notify the defendant in
error of the issue of the writ and of his opportunity to hear the errors as-
signed; the general plea by the defendant that there had been no error:
in nulla est erratum; the hearing and the judgment. As has been seen, the
common-law appeal differed only in the name and the absence of the original
writ to begin with. The present book will, of course, furnish many illustra-
tions of the procedure, for there was no change in the period it covers except
in the growth of a tendency to use the general and perfunctory assignment of
errors which later became customary. All writs were, in Maryland, issued in
English translations; the original Latin appears never to have been used,
although in England, except for a short time during the Commonwealth, the
Latin forms were continued until i73i.²

Something indigenous in the Maryland translations may arouse curios-
ity. The established form of writ of error began with a recital that in the
trial of the cause between the parties named, manifest error had intervened
to the damage of the plaintiff in error, sicut ex querela sua accepimus, as by
his complaint we have been informed. But this accepimus was not within
the understanding of the provincial Latinists, and shortly after the middle
of the seventeenth century they rendered it sometimes "accepted," and
sometimes " received "; and sometimes they omitted that portion of the writ.
" We have received " was the form which ultimately prevailed, meaningless
though it was, and it was continued in use for two hundred years.

While the revival of the appellate jurisdiction of the governor and coun-
cil occurred upon a revolution, it was not within the objects of that revolu-
tion, but rather one of the consequences of the general questioning of institu-

1 Archives, XX, iz, 22.

2 Stat. 4 Geo. II, ch. 26.