INTRODUCTION lxxxi

course of law, should pay his own fees to the sheriff or goaler, as set by act of As-
sembly, either out of his estate or by servitude or otherwise. A 1699 act extended
these provisions to the offices of clerk and cryer, although it seems likely that a de-
fendant in a criminal proceeding was already liable for payment of fees of the clerk
and cryer by earlier enactment. 36 The fees paid by a defendant might amount to
a sizable sum. The sheriff was entitled to 35 pounds of tobacco for serving any writ
or warrant; 20 pounds per day for attending upon any prisoner in custody more
than 24 hours; and 120 pounds for impaneling a jury. A cryer in a county court
was entitled to 72 pounds of tobacco for swearing a jury; 6 pounds for swearing each
witness; 72 for every good behavior ordered in court; and 40 pounds for clearing
every prisoner by order of court and proclamation. The clerk received fees for
such items as for a venire facias (12 pounds), for entering defendant's appearance
(6 pounds), for filing every plea (4 pounds), for a subpoena (10 or 16 pounds, de-
pending on the number of names), for making the issue if joined (8 pounds), for
entering the panel (4 pounds), for every oath (6 pounds) and for entering judgment
(16 pounds). The clerk of the indictments received 200 pounds in most cases in
which the accused put himself upon a jury. 37

As to execution of afflictive sanctions it appears that normally the defendant was
in the custody of the sheriff and an open pronouncement of sentence or judgment
was the only necessary direction for execution. No indication of the use of a writ
or warrant appears in the Liber or in the several schedules of fees of officers of the
court. In the cases of fines it was not customary for the court to order the defendant
to stand committed until the fine was paid. The fines being small in amount were
probably paid immediately; however, there are no notations that fines were paid
in court and that defendants were discharged, unless marginal notations "Fined"
have such meaning. Of course, as noted above, in many cases defendants were com-
mitted to the custody of the sheriff until security was given for good behavior and
appearance at the next court or until all officers' fees were paid. In one case the
entry stated that defendant was to give sufficient caution to the sheriff to pay a fine.
In contrast, in the one instance in which an information was employed, noted
above, the court ordered that defendant, found guilty and fined 400 pounds of
tobacco or twenty shillings, remain in the custody of the sheriff until he gave good
security to pay the fine and all officers' fees. 38

Scattered through the Liber are various cases in which the justices administered
the law without any presentment or trial by a petty jury. A number of these, as
already noted, came within the area of contempt of court. In several cases, as we
have seen, offenders complained against were ordered to enter into recognizances
for their good behavior and appearance at the next court, but were never presented
or tried. 39

Transfer and Review

Little provision was made for the transfer of causes from the county courts to
the Provincial Court. As noted earlier, the several commissions provided that the
justices were not to proceed to take life or members but in every such case to send
the prisoners "with their Indictments and the whole matter depending" to the

36. 13 MA 550; 22 id. 527.

37. 13 id. 506, 512; 22 id. 570 (containing a separate list of fees to the clerk of the county court
"For Criminalls," p. 579); 38 id. 113; 22 id. 502 (excluded were prosecutions under 13 id. 479 and
22 id. 553).

38. Supra p. Ivi. As to offenses within view of the justices see infra 60.

39. Supra pp. li-lii, liv, Ivii.