USA > Maryland > Chronicles of colonial Maryland, with illustrations > Part 12
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AFFEIRORS Wm Watts Jnº Bullock Sworne.
1 "Old Maryland Manors", from which most of the data relating to Manorial Courts was obtained.
For an account of the manorial system in Maryland, see chapter, "The Land Tenure of Colonial Maryland.
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THE JUDICIAL SYSTEM
the probate of wills and granting of letters of administration within the whole province", and with full power to adjudge and decree upon all matters and causes incidental thereto.1 The Clerk of the Secretary of the Province was at the same time directed to deliver to the Commissary General, all records and papers relating to the testamentary business within the Province, which was accordingly done, and, in April, 1673, the Prerogative Court was formally opened.
It was a prototype of the old English court of that name, over which the Archbishop presided, it being his "prerogative" to take charge of all matters testamentary.
The Commissary General was required to hold court once in two months, or oftener, if necessary; to conduct the pro- ceedings "according to the laws of England, where no law of the Province prevailed", and he was invested with the same powers to enforce his orders and decrees as was possessed by the High Court of Chancery .?
It was also incumbent upon him to appoint a Deputy Commissary for each county who could probate wills, grant letters of administration in their respective counties, and pass accounts not exceeding £50 in money,3 which, in 1763, was extended to £150 currency, ' though, by special commission from the Commissary General, they could pass accounts with- out limitation as to amount.5 They could not, however, decide any question in controversy, either as to the right of adminis- tration or the passing of accounts, all of which had to be sub- mitted to the decision of the Commissary General.º
The Deputy Commissaries were required by rule of court, to make their returns to the Commissary General every two months, with a list of every paper filed within that period, and to transmit annually, a full list of all administrations granted, wills probated, and accounts passed, in their respective offices, as well, also, a "list of alienations of land", consisting of an
1 Archives (Cl. Pro. 1673) p. 24. 2 Act, 1715, C. 39. 3 Ibid.
* Act, 1763, C. 18. 5 Ibid. 6 Act, 1715, C. 39.
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COLONIAL MARYLAND
abstract of each of said wills, giving the name, quantity, and location of the lands devised, and the name of the devisees.1
It was the practice, also, for the Deputies, after recording the wills probated in their respective counties, to transmit them, together with inventories, accounts, and distributions appertaining to the settlement of each estate, to the Commis- sary General, who placed them on record in the general office. As a result of this practice, owing to the destruction of the testamentary and other records in so many of the counties, the records of the Prerogative Court are among the most valuable in the Archives of the State.
The Commissary General was in turn required to transmit, within three months after final distribution, a copy thereof to the County Court of the county in which the estate was lo- cated, in order that such part of it as belonged to orphans could be under supervision of that court.2
The Court held six terms a year, commencing on the sec- ond Tuesday of January, March, May, July, September, and November, and it was supported by the fees of the office.4
From the decisions of this Court, an appeal could be taken within thirty days, to a Court of Delegates, appointed especially for the purpose, and whose decree was final.5
The Prerogative Court did not survive the Revolution, one of the earliest acts of the infant republic being to declare that under "the form of government assented to by the free- men of this State", it was intended that the Prerogative Court should be abolished. This was accordingly done, and an Orphans' Court, with a Register of Wills for each county, was instituted in its stead.6
The High Court of Chancery was not organized until 1661,' prior to which time the Governor and Council had exercised jurisdiction over all matters in equity. The Court was presided over by one judge, denominated Chancellor, who
1 Deputy Commissaries Guide, pp. 154, 155.
2 Act, 1715, C. 39. 3 Dep. Com. Guide, p. 154.
‘ Act, 1763, C. 18. 5 Act, 1726, C. 9.
€ Act, 1777, C. 8. 7 Archives (Cl. Pro. 1661) p. 439.
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was appointed by the Proprietary.1 Two associates, called Masters in Chancery, were appointed, as in England, to sit with him, until 1721, when that feature was abolished, after which the office of Master appears to have merged into that now known as Examiner.2 The clerk of the court, called the Register, was appointed by the Secretary of the Province.3
The Chancellor was made keeper of the Great Seal, and, as such, sealed all patents, commissions, writs, and other public instruments.4 The emoluments of the office consisted of fees for each and all of his official acts, and which rendered it one of the most lucrative in the Province.5
In its earlier history, the Court held only four terms a year, but after 1719, it was, like the High Court of Chancery in England, presumed to be always open.®
The Court of Chancery had exclusive jurisdiction over all matters in Chancery, where the amount involved exceeded I200 1bs. of tobacco, or £5 in money,' and was co-extensive with the Province, but, after 1763, the County Courts had concurrent jurisdiction where the amount did not exceed £20 sterling, or 5,000 1bs. of tobacco.8 It also had exclusive juris- diction over trust estates, and was the only tribunal through which alimony was recoverable, though not until a late period did it have authority to decree divorce.10
Decrees of the High Court of Chancery were subject to the same stay of execution for six months as judgments of the Courts of Common Law, when superseded in the same manner.11
While the Court of Chancery was established in Maryland from an early date, it was a long time before any provision was made looking to an appeal from its decisions, during which time its decrees, like those of the High Court of Chan- cery in England, originally, were final and conclusive.
Acts of Assembly were passed, from time to time, regu-
1 Ibid, 1673, p. 12.
2 Bland, 2, pp. 54-60.
3 Archives (C1. Pro. 1673) p. 24. 4 Ibid, 1677, p. 161 ; Act, 1763, C. 18.
5 Act, 1763, C. 18. 6 Bland, I, p. 624; Ibid, 2, p. 59.
7 Act, 1715, C. 41. 8 Act, 1763, C. 22. º Act, 1773, C. 7.
10 Bland, 2, p. 566; Maryland Ch., 4, p. 293. 11 Act, 1721, C. 4.
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COLONIAL MARYLAND
lating appeals from the Courts of Common Law, but they were confined to appeals from those courts, and it was not until 1721, that provisions were made for an appeal from the Court of Chancery.1 This Act restricted the right to appeal from "any decree of the Chancery Court", and did not ex- tend to appeals from orders or decisions,? a right, indeed, which did not exist by virtue of any legislative enactment, until after the Revolution.3
Appeals from the Court of Chancery were to the Court of Appeals,4 and were subject to the same rules and limitations applicable to the Courts of Common Law, under which no appeal would lie to the Court of Appeals, unless the amount involved exceeded £50 sterling, or 10,000 lbs. of tobacco."
It was a remarkable fact, that none of the Acts of Assembly, regulating appeals in Chancery, prescribed any method for staying execution pending the appeal, the terms upon which the appeals might be granted, or the manner of making up the record, as to all of which, before the revolution, the Court seems to have been governed by the rules and practice of the High Court of Chancery in England," which in every particular it closely resembled.
Upon the adoption of the State Government, in 1777, the Court of Chancery was given constitutional recognition,8 and under which, also, the Chancellor continued to be the keeper of the Great Seal of Maryland.º
A Court of Admiralty was erected in Maryland, in 1684. The order directing it, provided that it should consist of not less than four Judges, appointed by the Governor, and who were invested with full power, to try and condemn all ships or vessels found within the Province "transgressing against his Majestie's laws of navigation, and other laws relating to customs." The Court appointed its own clerk, and it was also authorized to appoint appraisers and summon juries.10 It also
Act, 1721, C. 14. "Ibid; Cl. Pro. P. L. p. 595.
8 Act, 1785, C. 72.
* Act, 1721, C. 14.
5 Act, 1729, C. 3.
6 Act, 1713, C. 4.
7 I Bland, p. 15.
8 Constitution, Sec. 40.
9 Ibid, 36.
10 Archives (Cl. Pro. 1684) p. 360.
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had a Marshal, who, with the Judges and all other officials of the Court, were paid by fees.1 The Court of Admiralty was continued after the Revolution, but it consisted of one Judge only, a Register and Marshal, and sat at such places as the Court deemed most convenient for the trial of the cases before it.'
As early as 1732, Courts of Oyer, Terminer, and Gaol delivery, or as more commonly known, Courts of Assize, were established for the several counties of the Province, for the trial of crimes and offenses,3 but in 1766, these were superseded by two Courts of Assize for the entire Province, one for the eastern and one for the western shore; these Courts were each presided over by a Justice appointed by the Governor, from the Judges of the Provincial Court; one being appointed from each side of the Chesapeake Bay, and sat twice a year, in every county within their respective districts, for the trial of causes arising in said county.4 The Justices were directed to make all necessary rules of Court and to enforce them by reasonable fines. The Sheriff of the county in which the court was being held was its executive officer. Fifty free- holders were summoned, ten days before the court met, to serve as grand and petit jurors, who were subject to the same rules as those respecting jurors in the Provincial Court.
The jurisdiction of the Assize Courts was concurrent with the criminal jurisdiction of the Provincial Court, and extended to all crimes and offenses not recognizable in the County Courts, and to such, also, as were removed from the County Courts, a right specially given in criminal cases.5 From their decisions an appeal would lie to the Provincial Court, upon bill of ex- ceptions, which latter, unlike appeals in criminal cases, from other courts, was expressly granted in appeals from the Court of Assize.ª
1 Act, 1763, C. 18. 2 Hanson, Act, 1781, C. 29.
3 Ist H. & McH. Maryland Reports, p. 83.
‘ Act, 1766, C. 5.
6 Ibid; Ist H. & McH., Maryland Reports, p. 83.
5 Ibid.
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The Judges in the Assize Court each received 7,000 lbs. of tobacco for their compensation.'
The law under which these Courts were organized, was allowed to expire, in 1769,2 and does not appear to have been revived before the Revolution.
1 Act, 1766, C. 5.
2 Hanson.
CHAPTER IX The Judicial System of Colonial Maryland
T HE Provincial Court of Maryland was, from the time of its organization to the American Revolution, the chief nisi prius court, and, for a long time, the chief appellate tribu- nal of the Province, and possessed all the powers of the high- est English common law courts. It did not owe its origin to legislative enactment, but to commission from the Proprietary, by which the judges, in its earlier history, were appointed and its jurisdiction defined.1 But the commission did not bestow upon it the name, nor did any Act of Assembly do so. The Court was simply established, and it was apparently called the Provincial Court, because its jurisdiction was co-extensive with the Province, and in distinction to the County Court, which was limited to a single county. The General Assembly indeed, thus referred to it, and so called it as early as 1642.ª A plaus- ible suggestion has been made, that, as it was at first, the Su- preme Court of the Province; courtesy and common parlance bestowed upon it the name of the Provincial Court.3
The Justices of the Provincial Court, at first, were the Governor and the Council of the Province-the former being Chief Justice, and in his absence, the member of the Council, who stood next in commission to the Governor, presided." It sometimes happened that, the Lord Proprietary was himself present, and on such occasions acted as Chief Judge of the court.5
1 Archives (Cl. Pro. 1637) p. 49.
2 Archives (Ass. Pro. 1642) pp. 147 to 152.
3 Bozman II, p. 304, note. 4 Archives (Cl. Pro. 1637) p. 53.
5 4th, H. & McH. Maryland Reports, p. 477.
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Under the earliest commission, of which there is any record, the Governor, in most cases, could sit alone, it being necessary to have the council associated only in causes which involved a freehold, and in crimes which extended to life or member,1 but after 1642, the Council constituted a part of the Court, in all cases, civil and criminal.2 A quorum consisted of three Judges, including the Chief Judge,3 or the one next in commission, though the records show that the attendance of the members of the council was usually large, due perhaps, in part, to the fact of their compensation being a per diem.
In 1692, the Provincial Court was organized as a distinct tribunal from the Governo and Council, and a Chief Judge with eight associates, constitu ted the bench. The first Judges under the new organization were commissioned by the Crown," but subsequently they were appointed by the Governor, and held their office during good beh vior, though nominally, its tenure was at will.5 At a later period, it was strongly urged, that the bench of the Provincial Court, be reduced to a Chief Judge and four associates, and also that they be appointed, exclusively, from those learned in the la v, but this was not carried out, the reason assigned for the latter being, that "gentlemen of the law", could not be induced to serve, owing to the meagreness of the compensation attached to the office." While, however, not always learned in the law, the bench of the Provincial Court uniformly, had on it the best available talent within the Province, and steadily maintainer a distin- guished rank for dignity, character and sound administration of justice. Among the noted justices who were long associated with it, may be mentioned the names of Chief Justices Calvert, Brice and Hayward, and associates Addison, Brooke, Tench, Courts, Goldsborough, Henry, Mason, Darnall, Hall, Hooper, Weems, Bordley, Jennifer, Hands, Hepburn and Leeds.
1 Archives (Cl. Pro. 1637) p. 53.
2 Archives (Ass. Pro. 1642) p. 147.
3 Archives (Cl. Pro. 1637) p. 53.
Archives (Cl. Pro. 1692) p. 307.
5 Archives, Sharpe's Cor. pp. 7, II.
6 Ibid.
" Ibid, p. 334.
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The Provincial Court commonly sat at Saint Mary's while it was the seat of government though, as a matter of public convenience, sessions of the court were sometimes held in other parts of the Province, but in 1699, Annapolis was made the seat of the court and the place also, where all of its writs and processes were returnable.2 The Court was convened by the beat of a drum, until 1681, when a bell was procured for that purpose, and for convening the General Assembly.' The Clerk of the Provincial Court was appointed by the Secretary of the Province,8 and the Sheriff of the County was its executive officer, both of whom, together with the Crier and Bailiff of the court, were paid by fees." The justices of the Provincial Court were required to make all necessary rules for the proper government of the court, and to purchase for its use, the Statutes of England and Dalton's Justice.6
The jury for the Progincial Court was taken from the whole Province, every county being required to furnish two grand and three petit jurors, for each term of the court, who were selected and summoned by the sheriffs of their respective counties, and who were entitled to twenty days' notice.5 In all other respects, the manner of selecting the jury of the Provincial Court, as well as the questions of disqualification and exemption from jury service, were determined by the same rule as those which prevailed in the County Courts, except that the penalty for failure to serve was larger- being 1,000 lbs.' of tobacco as was, also, their compensa- tion, which, in the case of the grand jury, while within the dis- cretion of the Court, might have been as much as 3,000 1bs.8 of tobacco a piece, per term, subsequently increased to 6,000 lbs.º and 48 lbs. a piece for itinerant charges.10 The petit jury received the same itinerant charges,11 and 30 Ibs. of tobacco a
1 Act, 1699, C. 19.
2 Archives, Act, 1681, p. 144.
8 Archives, Cl. Pro. 1671, pp. 23-136.
‘ Act, 1763, C. 18.
Act, 1715, C. 4I.
® Act, 1715, C. 37.
7 Ibid. 8 Ibid.
" Act, 1760, C. 16. 10 Ibid. 11 Ibid.
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piece, for each day of attendance,1 subsequently increased to 48 ibs.,2 besides the 120 lbs. allowed to the panel in each case in which they were sworn, but later reduced to 96 lbs.,4 all of which was paid out of the public levy," except the allowance to the panels of petit juries, which, as in the County Courts, was taxed as a part of the costs of the case.6
The law relating to witnesses before the Provincial Court, was the same as that applicable to them in the County Courts ; except that their compensation was larger, being 40 lbs. of tobacco per diem, and itinerant charges, collectable as witness fees in the County Courts," except also, that before they could be amerced for failure to attend, their reasonable charges had to be tendered,8 but fees of witnesses whom the Court deemed unnecessary, could not be taxed as a part of the costs of the case, and in no instance could fees be taxed of more than three witnesses upon any one question of fact.º The Justices of the Provincial Court were also paid a per diem, their compensation being 140 lbs. of tobacco and itinerant charges for each day of attendance, which was paid out of the public levy of the Province.1º The terms of Court were probably prescribed by rule of court, as no Act of Assembly or order of the Proprietary appears to have been passed for that purpose. Its terms were April, May, July, September, and October.11
Under the acts regulating practice in the Courts of the Province, continuances could not be allowed, unless stayed by injunction, beyond the fourth term after the appearance term, and should the case not be disposed of by that term, if through default of the plaintiff, it was to be dismissed with costs; if through default of the defendant, judgment was to be awarded to the plaintiff, and if through the counsel on either side, the attorney in default was subject to a forfeiture of 5,000 1bs.
1 Act, 1715, C. 37. 2 Act, 1760, C. 16.
3 Act, 1719, C. 3. + Act, 1760, C. 16.
5 Act, 1715, C. 37. 6 Ibid; Act, 1719, C. 3; Act, 1760, C. 16.
7 Act, 1715, C. 37. Act, 1692, C. 16.
9 Act, 1760, C. 16. 10 Act, 1716, C. II.
11 Ist H. & McH. Maryland Reports; 4th Ibid Appendix.
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of tobacco and the costs of the suit,1 but later this time was extended, when the court was sitting as an appellate tribunal, to the period of two years from the end of the appearance term.2 Where the plaintiff was desirous of a more speedy trial, and had a copy of the declaration and writ served upon the defendant twenty days before the appearance term, the court was required to compel the defendant to proceed to trial at that term, and upon failure to do so without sufficient cause, to enter judgment for the plaintiff.3
Causes were to be determined according to the "very right of the cause," and without regard to such omissions and errors as are usually taken advantage of by special demurrer, but this did not apply to the writ or declaration in civil, or to the in- dictment and other process in criminal causes.
Attorney's fees were also regulated by the judicature Acts of the Province, the maximum fees for prosecuting cases in the Provincial Court, being 400 lbs. of tobacco; in the Court of Appeals, Admiralty Court, and Court of Chancery, 600 Ibs., and in the County Courts, 100 Ibs., unless the judgment re- covered exceeded 2,000 lbs. of tobacco, in which case the sum of 200 1bs. of tobacco could be charged." The penalty for de- manding or receiving larger fees than those prescribed by law, was disbarment.5
1 Act, 1721, C. 14.
2 Act, 1730, C. 16.
* Act, 1715, C. 14.
3 Act, 1763, C. 23. 5 Ibid.
No Attorney could practice before the Provincial Court or the Court of Chancery, prior to 1715, except those who were "admitted, nominated and sworn," by the Governor of the Province. They could, however, practice before the County Courts upon being admitted by. the Judges thereof. After 1715, the right to admit to practice in the higher courts was no longer limited to the Governor, but was vested in the Judges of the several courts. The Courts were very exacting in requir- ing Attorneys to be regular and punctual in their attendance, and the records furnish repeated instances in which they were fined for failure in either respect. Under an order of the High Court of Chancery, any Attorney who failed to be in "Court by 8 of ye clock in Summer and 9 in Winter," was subject to a fine of ten shillings sterling for the first default ; twenty, for the second, and disbarment for the third. (Archives
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If a plaintiff was defeated, or discontinued the action, he was subject to amerciament of 50 lbs. of tobacco, if in the Provincial Court, to be applied as the Governor and Council saw fit, and 30 ibs. of tobacco, if in the County Courts, to be ap- plied to county charges. A like penalty was imposed upon every defeated defendant after imparlance (demanding time to plead), but this did not apply to defendants where the judgment was rendered at the appearance term, nor did it apply to execu- tors, administrators, and minors, whether plaintiff or defendant.1 Judgments obtained in the Provincial Courts, like judgments of the other Courts of the Province, were subject to a stay of execution for six months, provided the debtor furnished two sufficient suretors, who confessed judgment for the debt and costs.2
The Provincial Court was invested with both an original and appellate common law jurisdiction, and, until 1661, when the Court of Chancery was erected, it had jurisdiction, also, over the equity business of the Province. In its earlier history, it had original jurisdiction in all matters criminal and civil, and which was co-extensive with the Province. This was enter- tained concurrently with the County Courts and the Assize Courts (as long as the latter continued to be a part of the judi- cial system) to the extent of the jurisdiction of those respective courts ; but, after 1692, the Provincial Court could only hold plea cases in which the amount involved exceeded 1,500 Ibs.
Ass. Pro. 1674, p. 467; Act, 1715, C. 48; Chancery Records, May 24th, 1697, p. 355.) The State's Attorneys, or his "Lordships Attorneys," as they were called, were appointed by the Attorney General of the Province, subject to confirmation by the Council, and frequently rep- resented more than one county. Those appointed by Attorney General Robert Carville, in 1688, were, William Dent, for Saint Mary's, Charles, and Calvert; George Parker, for Anne Arundel; John Meriton, for Baltimore; Robert Smith, for Kent and Talbot; William Nowell, for Cecil; Thomas Pattison, for Dorchester, and James Sangster, for Som- erset .- Archives (Cl. Pro. 1688) p. 18, 30.
1 Act, 1722, C. 12. 2 Acts, 1715, C. 33; 1721, C. 4.
3 Archives (Cl. Pro. 1637) p. 49.
* Ibid, 1661, p. 22; Act, 1766, C. 5.
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of tobacco,1 and, in 1714, this limit was extended to £20 sterling, or 5,000 1bs. of tobacco.2
In all other common law civil cases, its original jurisdiction was exclusive. Thus it stood, until 1773, when its original jurisdiction was still further curtailed by being limited to cases involving not less than £100 sterling, or 30,000 lbs. of tobacco, and the County Courts, at the same time, were invested with a general concurrent jurisdiction in all cases, civil and crimi- na1.ª The County Courts being so much more accessible, this Act, in effect, resulted largely in making them the Courts of first instance throughout the Province, except in cases of greater magnitude or of deeper gravity, and in correspondingly increasing the volume of business before the Provincial Court as an appellate tribunal. It was in its latter aspect that it stood out most conspicuously as the great central figure in Mary- land's early judicial system.
For more than half a century the Provincial Court was the sole and exclusive appellate tribunal of the Province, except for appeals from Justices of the Peace and the Prerogative Court, and indeed, throughout its entire history, the records of its judicial work show that a large volume of business, for that period, was before it in its appellate capacity.
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