INTRODUCTION lxxvii

to give security for his good behavior and appearance at the next court. However,
in one case before the Provincial Court, not arising in Prince Georges County, it
was claimed to be error to accept a presentment and proceed to judgment on the
same day without the issuance of a venire facias. Of course, if an offender sum-
moned by venire facias failed to appear, a warrant might issue to the sheriff to take
the offender into custody and have him at the next court. Why, following present-
ment of an "Orphan Court" matter, a subpoena issued to complainant con-
stituted process, is not apparent. 23

Trial following presentment commenced with arraignment—the defendant came
in the custody of the sheriff to the bar of the court, the presentment was read to him
(although this does not clearly appear from Liber entries) and he was asked how
"he would Acquitt himself"—whether he were guilty or not guilty.

Whether a defendant who appeared on a venire facias or a recognizance was re-
garded as entitled to traverse the presentment and in effect imparl to the next
court does not appear; no such attempt is found in the Liber. In a few cases when
no person appeared to prosecute or sufficient proof of the charge was lacking, a
nolle prosequi was ordered entered at the instance of the clerk of the indictments.
In the case of a presentment against Matthew Mockeboy the venire facias was
marked "Quasht" in the criminal docket but the reason for the action and when
and how the objection to the presentment was raised does not appear. 24 In several
instances the court ordered that the defendant go without day. Apparently it was
not customary to discharge by proclamation under these circumstances. 25

A substantial number of defendants pleaded guilty and confessed the indictment
or impliedly confessed by submitting to the judgment of the court. The wording
of these pleas as entered in the Liber varies and the difference between a plea of
cognovit and of non vult is not always clear. These pleas were apparently made
orally and by the defendant in his own person. In one case a defendant refused
the court's offer to assign counsel to plead for him and submitted to the judgment
of the court. In no case did an accused stand mute. Presumably a plea of guilty was
endorsed on the indictment and the court proceeded to sentence.

In some cases defendant in his own person or by an attorney specially admitted

23. In March 1697/8 the Council recommended that the House consider whether the practice
of sending out venire facias against servants and others having bastards might not be "too Charga-
ble and dilatory Way of proceeding" and whether there was a more expeditious way to hear and
determine such matters. 22 MA 20, 101. C/. the proposed restrictions on clerks of the indictments.
22 id. 23-24. For the Provincial Court case, see PCJ, Liber IL, 119. One of the grounds urged for
reversal by the Provincial Court of a Somerset County Court sentence was that process on the
indictment was returned by the under-sheriff rather than the sheriff. PCJ, Liber WT, No. 3, 232-
38. For the "Orphans Court" matter involving David Small as complainant see infra 183-84, 212.

24. See the cases discussed in Section VI supra. In Lewis v. His Majesty and Lydall, in urging
reversal by the Provincial Court of a June 1695 sentence of the Talbot County Court for the
felonious taking of two hogsheads of tobacco, it was claimed defendant should have been allowed
to traverse the indictment and show that he had a property in the tobacco and not forced ore
tenus to plead the general issue non culp. PCJ, Liber IL, 119. In His Majesty v. Gates, in March
1700 in Prince Georges County Court, defendant demurred to the indictment but the court, over-
ruling the demurrer, then proceeded to sentence. PGCJ, Liber B, 29.

25. Compare the discharge by proclamation in Charles County Court (CCCR, Liber X, No. 1,
273) as follows: "Mary Jones being Presented for Stealing of Severall Goods of William Seargeant
Late of Charles County Planter against the Peace of our Sovereign Lord the King etc.: And the
Justices here have Inquired Thereof And no such Thing Can Finde And Because itt is Averred
here in Court that the Said Mary Jones is of Good Fame Proclamation is made for our Sovereign
Lord the King as uses that if there by any one that will Informe the Justices here or the Attorney
of our Sovereign Lord the King of any Trespass Contempt or Misdemeanor Committed against
his Majesties peace by the Said Mary Jones or Will Prosecute against the Said Mary Jones for any
Trespass Contempt or Misdemeanor Committed by the Said Mary against his Majesties Peace
he Shee or they might Come and Should be heard and none Came etc."