lxxviii PRINCE GEORGES COUNTY

by the court pleaded not guilty and then "put himself upon the Country." This
plea may have been in writing; the notation in the Liber "and Joshua Cecell [clerk
of the indictments] for his Majesty allso", following defendant's plea, indicates
that an issue had to be made up. In no criminal proceeding did a defendant attempt
to "put himself upon the Court." 26

In each of the twelve cases in which a presented person pleaded not guilty, he
was tried by a petty jury; verdicts of guilty were returned in nine cases. To what
extent such defendants were entitled to jury trial is not clear from the laws. The
1692 law punishing theft provided that convictions thereunder (and under the act
punishing hog-stealing) "be upon and by a Verdict of twelve good and lawfull men
of the vicinity or neighbourhood and not otherwise." 27 However, this provision was
exceptional; usually the acts establishing offenses were silent as to method of trial.

Once issue was joined on a plea of not guilty, the court would issue a writ of
venire facias juratores directing the sheriff to return a panel of twelve jurors (in
one case, "twelve good men of his balywick") to try the issue joined. This is usually
indicated in the Liber by a notation that, "It is Commanded the Sheriffe that with-
out delay he cause to come here twelve etc. by whom etc. and who neither etc. to
recognize etc. because as well etc." This is the type of formalized clerical entry
found in English usage denoting the issuance of a venire facias juratores. (Admit-
tedly this entry might conceal the use of a mere award; the several statutory sched-
ules of fees are uninformative.) Whether any property qualifications of the jurors,
presumably freeholders, were set forth in the writ is not clear. 28

It seems likely that the writ was returned by the sheriff with an endorsement as
to execution and a list of jurors noted on the writ or attached thereto. This is in-
dicated by the entry of the names of the jurors, one of whom was designated as fore-
man, in the Liber, sometimes along with that of the sheriff. However, the exact me-
chanics of summoning a petty jury is not evident from the Liber or from the laws.
It may be that the justices sent out a general precept to the sheriff prior to the
court's sitting to prepare the necessary panels. Most likely, individual jurors were
summoned by the sheriff by means of a subpoena. The lack of notations of jurors
failing to appear may be accounted for by adoption of the English practice of re-
turning twice the number of jurors directed by the venire so as to insure the ap-
pearance of twelve. However, the schedule of sheriff's fees (120 pounds of tobacco
for impaneling a jury) makes such adoption appear unlikely. 29

The laws contained no specific provision for challenge of jurors and, as far as
the Liber shows, in no case were any jurors challenged. If a panel of only twelve
jurors was returned, it seems likely that, in the event of a challenge, the court would
have issued a writ of tales or, more likely, have employed tales de circumstantibus
whereby it would order the sheriff to complete the panel from among the by-

26. Cf. in Charles County Court the trial by the court of William Sarjeant, presented for assault,
and James Miller, presented for selling liquor on the Sabbath. CCCR, Liber V, No. 1, 210-11, 212.
See, however, His Majesty v. Johnson, in the March 1700 court in Prince Georges County when the
clerk of the indictments and defendant at their consent and request were permitted to produce
their witnesses for the information of the court "according to the custome of this court here used
and approved." PGCJ, Liber B, 27.

27. 13 MA 477, 479.

28. In a case in which the Provincial Court reversed a sentence of the Somerset County Court
it was alleged as error, inter alia, that it did not appear whether the jurors were of the vicinage.
PCJ, Liber WT, No. 3, 232-38.

29. 2 Hale, The History of the Pleas of the Crown 263 (1736). See also Lewis v. His Majesty and
Lydall where, in seeking reversal by the Provincial Court of a June 1695 Talbot County Court
conviction, it was urged as error, inter alia, that the names of the jurors were not noted, nor whether
a venire facias issued and how the jury was impaneled. PCJ, Liber IL, 119.