AT st. mary's 19

And now it seems clear that the practice of trying
criminal cases without juries has been continuous
from near the founding of the province. A pro-
vincial statute passed in 1638 allowed trial by
jury, "by twelve freemen at the least," only in
cases of crimes affecting life or member;³⁷ and in
1642, the right was extended to all cases, civil or
criminal, upon the condition that if only one party
desired the jury he should give security to pay the
cost of it, except in criminal cases affecting life or
member.³⁸ Trials of criminal cases without juries
were, therefore, held in the Provincial Court,³⁹
the county court records of the seventeenth and eigh-
teenth centuries show a common practice of try-
ing minor charges without juries, and the modern
practice of non-jury criminal trials in Maryland
is clearly traceable to this eighteenth century
practice; and as there were no further statutes on
the subject passed in the seventeenth century, it
seems reasonably certain that the present practice
originated as early as 1638. Mereness⁴⁰ describes
the practice in all trial courts during the provin-
cial period as it was defined in the statutes of 1638
and 1642.

A third innovation on English procedure, more

to the point here, was in an early practice, sanc-
tioned by statute in Maryland in 1678,⁴¹ of effect-
ing appeals in cases at law by informal prayer and
order, and then merely filing transcripts of

37. Archives, Proc. Assembly, 1637-1664, 83.

38. Act 1642, c. 4. Archives, Proc. Assembly, 1637-1664, 151

39. Archives, Provincial Court, 1637 to 1650, Court and Testament-
ary Business, 165.

40. Page 246.

41. Chapter 8, Archives, Proc. Assembly, 1678 to 1683, 71.