20 court of appeals of maryland

the records of trial with assignments of error,
or "reasons", without any formal writ of error to
begin with. The older practice was in pursuance
of the original theory that the reviewing tribunal
had no power to take action upon errors below un-
less and until it should be commissioned to do so
by a writ in each case,⁴² and when the review came
in time to be a matter of course, the special com-
mission or writ had no logical place; but its career
was not ended yet, even in Maryland where it was
so early made optional. As will be seen, the right
to adopt this simpler method was later extended
to higher appeals, those from the Provincial
Court to the Governor and Council, and the statu-
tory provision of 1678, repeated in continuing acts,
was the origin of the practice now prevailing in
Maryland. The practice did not altogether pre-
vail, however, until the nineteenth century; law-
yers for a long time clung to the old ways. From
the beginning, in 1678, the proceeding by the new
method was called an "appeal", as distinguished
from the proceeding on writ of error.

The law applied in the seventeenth century
courts was fundamentally, of course, the law of
England; but it was the law of England with a
difference. There was some special adaptation,
and throughout the provincial period there was
uncertainty and contention on the application of
English statutes.⁴³ An instance of the difficulties
to be dealt with is afforded by the report of a case

42. Holdsworth, I, 370, 371.

43. Reinsch, The English Common Law in Early American Colonies,
Select Essays on Anglo-American Legal History, I, 400. Sioussat,
The Theory of the Extension of English Statutes in the Plantations,
Ibid, 416. Mereness, 261. Chalmers, Political Annals, 677.