An Essay on the Background and Development of the Maryland Judiciary 


By Professor Abraham A. Dash 

University of Maryland School of Law

( approximately 1986 ) 


The Beginning 


They padded down the causeways, heavy with plunder, lightly burdened with the weapons of war, those bloody-minded Saxon war bands who engulfed Roman Britain of the Fifth Century. They rejoiced at the pillage and destruction of that higher civilization. Villa after villa, town after town, went up in flames leaving buried ruins and some artifacts to intrigue the tourist of today, and tease the historian. Little is known of Roman England for the Anglo-Saxon scourge was too complete. The remarkable Roman roads and causeways led the war bands quickly and straight as an arrow to the heart of Roman Britain, an irony that the barbarians probably did not appreciate in their zeal to destroy all that was "civilized". [1] In the words of Gildas, [2] the tearful British historian of these disasters, every colony is leveled to the ground the inhabitants are slaughtered while the sword gleamed on every side and the flames crackled around. How horrible to behold in the midst of the streets the stones of high walls, holy altars, mutilated corpses all covered with buried clots of coagulated blood, as if they had been crushed together in some ghastly wine press perhaps too vivid for one writing about 540 A.D., or about one hundred years after the events, but it accurately reflects the complete destruction of Roman culture, institutions, and even their physical presence on the island. The Romans passed away out of the story of Britain, leaving behind only three things as a legacy—the traditional site of London, the Roman Roads and Christianity (at least in Wales), [3] perhaps we can add "Hadrian's Wall," but most of its stones were used to build Saxon and later Danish farms and homes. 


The Common Law 


The destruction of Roman civilization, influence and law made Britain a distinct and separate culture from the remainder of Europe where Roman culture and law prevailed despite the breakdown of the Empire. In Britain the indigenous Celts, mixed with the conquering Saxons, who were followed by the Danes, and finally the last successful invaders, the Normans in the eleventh century, all of which created a culture and system of law unique to Britain. In time, England developed what we call the "Common Law," which has impacted on its history and development, as well as on our own. In the carnage of the Saxon destruction of Roman Britain, though not their intent, the Saxon pirates followed by the Saxon settlements, made possible the replacement of Roman institutions by something much better for all of us, the tradition of the "Common Law," such is the paradox of historic events. What is the "Common Law," that great inheritance of the English speaking nations? Its composition is subject to some historical debate. Does it go back to the Anglo-Saxon-Danish codes and customs, ripened by the Norman Conquest, or is it a product of the Norman Conquest brought to fulfillment during the reigns of Henry II (1154-89) and Edward III (1327-77), as Trevelyan [4] and Maitland insist? However, it is not its composition that is important, but its concept which is unique to English (and American) jurisprudence. Simply put, the Common Law theory is that for most problems that need be resolved there is a solution, custom or law that while not existing as a documented statute, exists as 

part of the rules of the historic English jurisprudence. Therefore, one finds that "Common Law" and applies it. In more practical (and modern terms), it is the use of what is called stare decisis, "let the decision stand." This is a jurisprudential 

approach that seeks previous decisions of judicial bodies, who may have had a similar problem before them, and then use their reasoning and legal rationale to resolve the present problem. [5] 

Naturally, under the Common Law system there are statutes which are passed by a legislative body, but they are interpreted and applied, under the Common Law, by judicial bodies, who may create a new development in the Common Law. One can readily note, under that concept, a constitutional system whereby laws are interpreted within a Constitutional framework, which to a limited extent is done in England today. The "Common Law" system is contrasted from the Roman, or Civil Law, system which is used in most of the non English speaking nations of the world. The Civil Law system is based on Codes of Law. Everything is oriented to these legislative codes. When a problem arises one looks to the Code for an answer. When there is a doubt, legal personnel may check relevant scholarly writings to gain some hint as to the interpretation of the statute as applied to certain facts. But generally, the statute is applied as literally as possible. Previous decisions of a judicial body may have some impact, but they are not considered much as authority. 

The Common Law has many threads of development which we cannot explore here, but it is worth noting the contributions of writers (sometimes noted as Court Reporters) who gathered in the documents and written records of the early Common Law courts in volumes of reports on the Common Law. Notable among those writers are Justice Bracton, who in the thirteenth century wrote "of the laws and customs of England., [6] The great works of Sir Edward Coke such as "Coke on Littleton" (one of his four great commentaries on the Common Law) did much to preserve and further the development of the Common Law. It is also worth noting that Coke was the author of the 1628 "Petition of Rights, [7] which served as a model for our Revolutionary forefathers. However, for our study, it is the rise of the great Common Law Courts that is of most interest. Originally the "courts" of England were simply committees of the King's "Magna Curia," or Council, an integral part of the "executive" or the King's power, and providing the "king's justice. [8] These committee members or, as they were later called, Commissioners of Oyer and Terminer (to hear and decide) travelled the countryside bringing the king' s 

justice to the people. It was during the reign of Henry II (1154-1189) that the 

Common Law courts took their form and organization as judicial bodies, though still appendages of the King's Council. By the issuing of the King's writ (or letter), these judicial bodies were given more and greater power to hear a variety of cases, and it is from these beginnings that our concepts and ideas of a judicial body stem from. In time, the following courts developed into the "Common Law Courts" of England. The Court of Common Pleas, by a series of Writs of the King, became the non-criminal or civil Court of England, which heard civil disputes between citizens. The Court of Kings (Queens) Bench or K. B., became the Criminal Court of England. Kings Bench also developed into an appellate court. By a series of Writs, such as certiorari (which is an order to another court to certify and send up its record for review), Kings Bench was empowered to review the decision of the non-criminal courts. The Court of Exchequer was the third of the Common Law Courts, originally empowered to hear cases involving taxes owed to the King, later its jurisdiction encompassed cases involving debts in general, and other financial matters. The Court of Chancery, while not the last of the Common Law courts, was the last of the Great Common Law Courts. [9] Chancery grew as a court of "equity" empowered with what was called "extraordinary" remedies not available to the 

other Common Law Courts, such as "injunctions" or "specific performance." 

It was with this background that the American Colonies and later the states developed their own judicial system. The Common 

Law permeates our constitutional and judicial system; indeed, the Federal Constitution specifically states in the Seventh Amendment ". . . no fact tried by a jury, shall be otherwise reexamined in any Court of the united states than according to the rules of the Common Law. The Common Law referred to is not the common law of any individual state but it is the Common Law of England, 

the grand reservoir of all our jurisprudence,  so spoke the Supreme Court of the United States, in Capital Traction Co. v.Hof. [10]  


Pre-Revolutionary Courts of Maryland 


Charles I, King of England, granted the Charter of Maryland to Cealius Calvert, second Lord Baltimore, in 1632. Lord Baltimore was given ample power within the charter to II ordain judges, justices, magistrates and officers of what kind, for what cause, and with what power so ever but the Courts, for the province, must recognize that the people of the province were given, ".. all privileges, franchises and liberties of this our kingdom of England " [11] so when the settlers set foot at St. Mary's on March 25, 1634 they brought with them, among the artifacts, supplies and tools of settlement, the Common Law of England. One important aspect of the colonial court system in Maryland, as well as the other colonies, was it duplicated as much as possible the judicial system of England. [12] The separation of governmental functions, so basic to American political thought, from the revolution to the present day did not exist at that time. In England the Courts grew from committees of the Royal Council, or the executive, as indeed did the Houses of Parliament, the legislature--all were intertwined. In England, in fact, the highest Court of the land is Parliament, or the House of Lords. [13] In 1676 the Maryland Proprietary noted to the English Privy Council that the Assembly was the highest court in the colony followed by the Provincial Court. [14] It would be expected that early colonial jurisprudence in Maryland would be crude and un-technical. It seems reasonable to assume that the early colonists would not have "trained lawyers" nor the time for the sophisticated procedures of the Common Law of 

the home country, but apparently that was not the case, as the early judicial records contradict that belief. [15]  Our early forebears took very seriously their judicial heritage from England. In the original Charter of the colony the Lord Proprietor had full power from the King to provide for the administration of justice. [16] He, in turn, by writ, empowered his appointed Governor to act as Chief Justice, and the members of the council were made Associate Justices. So, from 1637 until 1642, a judicial structure developed whereby the legislative council operated as a law court 

called at first the County Court with the governor as chief judge. [17] By 1642, this court became the "Provincial" Court. [18] It was the chief court of the colony regarded as the local equivalent of the great Common Law Court of Kings Bench. As additional counties were established with their separate county courts, the Provincial Court (as England's Kings Bench) added appellate jurisdiction to its trial jurisdiction. Up to 1692, only members of the legislature or Council could be judges on the court, after that year, judges could be appointed even if not members of the Council, and the court developed into a separate institution with "full time" judges. During the Seventeenth century there was judicial confusion, for as part of Lord Baltimore's plan to establish "Manors" such as the county Squires of England, there was a development of small "Manor" courts presided over by the Manor "Lord. [19]They resembled the "Justice of Peace" system of English rural law (and of early Maryland rural law). How long these Manor Courts existed is unknown, but from the fragmentary remnants of their proceedings (1659-1679) there are glimpses of early colonial legal disputes. The Indian King of Chaptico went before the court " for killing a sow and the taking of piggs. "  This case was too difficult for the Manor Court and was referred to the Provincial Court of the Governor. More the Manor Court style was "and he … breaking into the Lord of Manor's Orchard " or for " suffering his horses to destroy a corn field . [20] While again little is known of these Manor Courts, they must have paved the way for the development of local courts or the Justices of Peace as Maryland expanded. The local justices of peace, serving as a local court or judges were of great importance 

in the later colonial period to the end of the eighteenth century. This office had its beginnings in the English Common Law as far back as the twelfth century. [21] Chief Justice Bond notes its importance historically, quoting from Trevelyan's History of 

England, it being one of the most important features of the English Governmental System. In another early development that affected the subsequent structure of the Maryland Judicial System, a method of appeals was evolving. Where the Provincial Court had assumed appellate powers over the growing local courts, appeals from the Provincial Court were being heard in the Upper House of the Assembly. The legislative assembly, which had originated as the Governor's 

council, had developed by 1649 into an upper house, composed of the 

Governor and his counsel, and a lower house  of  representatives or House of Burgesses. Following the English Parliamentary system, where final appeals from the Courts were heard in the House of Lords, the Maryland Upper House in 1664, by use of a "writ of Error" issued by the Governor, accepted appeals from the judgment of the Provincial Court. [22] It is an interesting anomaly that since the Provincial Court was composed of the Governor and his Council, as was the upper house, the appeals were in fact taken to the same persons who had decided the case, in the court below. Perhaps that is why, by 1681, the Upper House discontinued its appellate role, requesting that a law be passed establishing an appellate body. This was done in 1694, when a court (still composed of councillors) of Appeals was established to sit at St. Mary's. [23] It moved to 

Annapolis in 1695. The judicial system from that year until the revolution, remained the same with few changes. The justice of peace and county courts grew in numbers and influence but the system remained with the Provincial Court over the local courts, and the Court of Appeals the high court of the colony. [24] There 

were continuing complaints, throughout the Eighteenth century, by the growing numbers of lawyers who voiced concern that often a council member, who served on the Provincial Court, also was a judge on the Court of Appeals, and that the Governor remained on both courts. This anomaly remained until 1776, and the Revolution.   


The Revolution  


The Revolution of 1776 made little change in the institutions in Maryland. [25] There was, afterwards, still a Governor and council, a General Assembly of two houses, and a Court of Appeals. The name Provincial Court was changed, as Maryland was no longer a Province, to the "General Court." However, the concepts behind our 

government and jurisprudence changed dramatically, as it did with the other former colonies. Americans added three simple, but brilliant and startling additions, to the English Common Law and jurisprudence. The separation of functions of the Government, a written Constitution as the supreme law of the land, and a judiciary as the only interpreter of that Constitution (known as "Judicial Review").  


Separation of Governmental Function 


In England, as we know, all functions of government rested in the King, and to this day (in theory) still does. The executive, or Prime Minister, as all his Cabinet, are members of the legislature or House of Commons. The House of Lords, through its 

"Law Lords" is the "Supreme Court" of England. Indeed, separation of government functions is an alien concept to England. Trevelyan, in his History of England believes that American political thinkers misunderstood the reforms resulting from the civil War (1642-46), the Protectorship of Cromwell, and the restoration of the Monarchy (1660), and erroneously thought English common law development had 

embraced separation of powers. [26] Actually, American political thought was highly developed in the recognition that separation of government powers, and functions is a necessity to protect against tyranny. The Federalist papers discuss in great depth the danger of combining governmental functions as in ". The accumulation 

of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of Tyranny. [27] Separation of powers has been one of the keystones of our developing jurisprudence and of our "Common Law." 


A Written Constitution 


In England, no law is more important than any other. All acts of Parliament are equal. There is no written Constitution within which all laws are tested. However, England, over the centuries, has developed what is called the "unwritten Constitution." This "unwritten Constitution" is based on common law concepts that 

developed during those centuries, and certain principles enunciated in three documents that are particularly important to English jurisprudence. The Magna Carta (Great Charter) of 1215 is one, where the Nobles of England demanded, and received, certain rights from the King. The second document is the Petition of Rights, which was an act of Parliament in 1628, drafted by Sir Edward Coke. [28] This act re-enforced the viability of the Common Law and the power of Parliament to protect all subjects of the land against arbitrary power. The third document (and one rather important to Americans) was the English Bill of Rights of 1689. This particular document was a result of what England calls its "Glorious Revolution," when England deposed the Stuarts (James II) and invited William and Mary to take the throne of England. However, prior to permitting William and Mary to assume the throne, Parliament forced them to agree to a written contract in which certain rights of the people were preserved. This concept of written rights was basic to American constitutional thought, and indeed our "Bill of Rights" mirrors many of the rights listed in that "Contract" of 1689. But under English jurisprudence, while the Monarch cannot, Parliament can theoretically negate or repeal all or any of the rights in their "Unwritten Constitution" as Parliament is the supreme law maker. The brilliant, if simple, concept behind the written Constitution of the United States is that neither Congress nor the President (nor the Several States) can take away any rights in that document, nor can they make laws or take actions that violate the Constitution. Similarly, the Governor and the General Assembly of Maryland cannot violate the State Constitution and its "Declaration of Rights."  


 Judicial Review 


England and the United States share in the common law tradition of stare decisis, as noted above. The courts of both countries look for prior decisions of other courts to find an answer to a legal issue. They must follow the precedent or prior decisions of higher courts in their jurisdiction. However, in England, when a Court reviews an Act of Parliament it does not have the power or authority to overturn the act because it violates the Common Law or the English Constitution. Instead, the English Courts attempt to interpret the statute so as to make it conform with the Common Law, or the right in question, regardless of how tortured the interpretation may be. The judicial theory behind this is that Parliament would not intend to violate the Common Law or the English Constitution. However, the   English Courts cannot overturn the act, so Parliament can reenact the statute to in fact repeal or change the Common Law or Constitution. Basic to the jurisprudence of the United States and the separate states is the power of the Court to interpret the Constitution, and to overturn legislative enactments or of the executive if the Court finds them in violation of the Constitution. Today such a concept seems obvious, but in Eighteenth Century Anglo-American jurisprudence it was mind-boggling. When this idea was raised during the Constitutional debates (1787-89), it was objected to as making the judiciary superior to the legislature. It was further argued that the ". Legislative body are themselves the constitutional judges of their own powers. [29] Alexander Hamilton argued that ". A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to the Courts to ascertain its meaning, as well as the meaning of any particular act. ." and he stated if there is a "variance" the Courts should void the act. [30] Interestingly, the Constitution of the United states (or the Constitution of Maryland) did not address judicial review, indeed, such judicial power is not in the Constitution. It was Chief Justice Marshall of the U.s. Supreme Court who made judicial review a cornerstone of American jurisprudence. In Marbury v. Madison, [31] he said the Constitution is the fundamental law of the land; in cases of conflict between it and a statute". An act of the legislature repugnant to the Constitution is void, moreover, "it is emphatically the province and duty of the judicial department to say what the law is". After the Revolution the jurisprudence of the United States, with the addition of separation of government functions, a written constitution as the supreme law of the land; and judicial review, began its separate and unique development of its "Common Law [32] with this "fleeting glimpse" at the background and development of our jurisprudential system we can approach the present judicial structure in Maryland. 


Growth of Maryland's Present Judicial structure 


The Maryland State Constitution of 1776 established a judicial system patterned on the prior Colonial judicial system which proved unwieldy and awkward. There was instituted a Maryland Court of Appeals, as the high court of the state, whose composition was left composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive, in all cases of appeal. [33]The Provincial Court, now called the "General" court, was retained, and following common law tradition, there was the equitable Court of Chancery, and the Court of Admiralty. [34] At the lower and local level there were justices of peace and county courts. The General Court retained not only its state-wide "trial" court jurisdiction, but also its intermediate appeal jurisdiction very much in the tradition of the English Common Law Court of Kings Bench. Interestingly enough, the General Court had, during its existence, a higher reputation than the Maryland Court of Appeals which was, in fact, the state supreme court. Four members of the General Court, Robert H. Harrison, Thomas Johnson, Samuel Chase, and Gabriel Duvall were actually appointed from that Court to the United States Supreme Court, no members of the Court of Appeals has been so honored. [35] However, the General Court which sat in Annapolis (and on occasion on the Eastern Shore pursuant to Article 56 of the 1776 constitution) was inconvenient as a trial court for the expanding counties of Maryland, and was abolished by constitutional amendment in 1805 by Act 1804, Chapter 55, of the General Assembly [36] By this amendment the General Assembly vested all trial jurisdiction in the County Courts and grouped them into six judicial districts each to be presided over by a Chief Judge and two associate judges. The six chief judges of the districts also constituted the membership of the Court of Appeals - An arrangement reminiscent of the judicial organization of the federal government and of England. This judicial system lasted forty-five years until 1851 where several significant changes were made to the Courts that are relevant to this day. Trial courts were divided into four Districts and eight Circuits, the first usage of the term Circuit Court in Maryland. Justices of the Maryland Court of Appeals would no longer be composed of judges from the trial court, but would be separately chosen from the new judicial districts. [37] Most significant was the change to elected judges. Up to now all judges had been appointed by the Governor, but in the 1851 amendments to the Constitution, judges were to stand for election in the judicial district they would come from. The debate on elective versus appointed judges was a long and bitter one. It is being debated to the present time and recently in 1971, when our "District" court system was enacted the judges are "appointed." The last-but-not-least change in 1851 was to have the Maryland Court of Appeals stay in Annapolis (it had previously been moving around the state as a convenience to the District trial judges who had constituted the Court), where it is today. In 1864, there was a Constitutional Convention and a new state Constitution that, borne of the passions of the civil War, disenfranchised much of the state population, and changed to some extent the judicial system. [38]In 1867, there was another Constitutional Convention to undo the work of the 1864 Convention, and in the Constitution of 1867, reversed much of the 1864 Constitution, leaving the Maryland judicial system pretty much the same as it had been. Interestingly enough, the most bitter debates in both Conventions dealt with appointed vs. elected judges. Elected 

judges were retained. For most of the two hundred years of Maryland's statehood, after the General Court was abolished in 1805, the Court of Appeals was the only appellate court, or the only place where appeals from the trial court could be taken. The national increase in population, and complexity of the growing economy, after World War II, increased the work of the Court of Appeals perhaps ten-fold. The 

revolution in criminal procedure, particularly by the United States Supreme Court during Chief Justice Warren's years (1959-1969), added an even greater caseload on all state appellate courts, of which the Maryland Court of Appeals was no exception. This great caseload increase led to the 1966 amendment to the Maryland Constitution establishing an intermediate appellate court, the Court of Special Appeals. [39] The last significant change made in the Maryland judicial system was the establishment of a system of District Courts of limited jurisdiction which supplanted a hodgepodge of traditional local courts such as Magistrate Courts, Justices of Peace,People's Courts, and the Municipal Court of Baltimore City. [40] However, Maryland has retained one of its older local courts called the "Orphan's Court," which, with the exception of Montgomery and Harford county, exist in all other counties and Baltimore City. This Court deals mainly with probate matters, and is perhaps a historical curiosity in the modern state system. [41]  


The Maryland Courts Today 


Maryland has a four-tiered court system: two trial courts, the District and Circuit Courts and two appellate courts, the Court of Special Appeals and the Maryland Court of Appeals. 


(1)  District Courts 

The District Courts are the lowest courts in the system. Its jurisdiction covers criminal and civil cases. Criminal jurisdiction includes Common Law and statutory misdemeanor crimes (minor crimes). Since the District Court cannot have jury trials, only trials by judge alone, it does not handle criminal cases where punishment could be more than ninety days' imprisonment. The Sixth Amendment to the United States Constitution applies to state criminal trials and require trial by jury, unless waived, for serious offenses. [42] There are some crimes, more serious than misdemeanors, that the District Court can accept jurisdiction, where the defendant waives his right to jury trial.The District Court has original jurisdiction for most violations of the Motor Vehicle Code, with the same caveat as above, that if the violation constitutes a felony (more than 98 days' imprisonment), they lose jurisdiction. [43] In civil actions the District Court has exclusive original jurisdiction when the amount involved is less than $2,500( changed to 10,000 in 1998), which makes it similar to the "Small Claims Courts" of other States, but shares or has concurrent jurisdiction with the Circuit Courts where the amount involved is between $2,500 and $10,000( now 10,000 and 20,000). This Court also deals with most landlord-tenant disputes. 


There are twelve District Courts in the state, with about ninety judges. [44] All District Court judges are appointed by the Governor, and do not stand for election, which is an exception to how other judges are retained in the other courts. As an indication of the volume or caseload of this court (and perhaps a sign of the times) each District Court judge in Baltimore averaged 2,569 criminal cases per year; in Prince George's County 2,449 cases; in Baltimore County 1,691 cases; and in Montgomery County 1,438. In the fiscal year of 1990, over 59,000 criminal cases 

were processed in the Baltimore City District Court alone [45] 


(2) Circuit Courts 

The Circuit Courts are the highest trial courts with original jurisdiction in all common law and statutory criminal and civil matters, with the limited exception of those lesser matters where jurisdiction rests with the District Courts. They are in fact the courts that replaced the old "General" Court of the nineteenth century. These courts combine the powers of most of the old Common Law courts, including the powers of most of the old common law courts, including the power to issue equitable relief once reserved for the equity Courts of Chancery. [46]  An interesting aspect of the courts jurisdiction is its de novo appellate authority over the District Courts, which reflects the old Common Law de nova appeal to the Court of Chancery. De novo means a new trial, where the case starts all over again for a complete second trial. Under the common law, when someone lost his case in the Canon (Church) courts, or in the Court of Common Pleas, they sometimes could get a de novo second trial in the Court of Chancery. [47] When a defendant loses in the District Court, he may under certain circumstances appeal and receive a second trial (de novo) in the Circuit Court. This also applies to certain probate matters in the Orphan's Court, where the Circuit Court can grant an appeal 

and a "de novo" trial. [48]The Circuit Courts also have jurisdiction over juvenile cases;with the exception of Montgomery County, where jurisdiction rests 

with the District Court with appellate review in the Circuit Courts. There are eight circuit courts, one for each county plus one for Baltimore City, and about 110 judges state-wide. [49] Circuit Court judges are appointed by the Governor, but must stand for election in the next general election. Once elected, the term is for fifteen years. 


(3) Court of Special Appeals 

The role of appellate courts is vital to any jurisdiction's jurisprudence that extends beyond seeing that justice is done in each individual case. The institutional roles of appellate courts was described by Judge Shirley Hufstedler as follows: [50] Appellate courts serve two quite different functions: First, appellate courts review the trial record for error in the particular case. We can call this the review for correctness. 

Second, appellate courts use the cases before them as vehicles for stating and applying constitutional principle, for authoritatively interpreting statutes, for formulating and expressing policy on legal issues of system wide concern, for developing the common law, and for supervising each level of the system below them. We can call the second set of tasks the institutional function--the business of Government. 


The Court of Special Appeals is the state's intermediate appellate court. Appeals from the Circuit Court (and Orphans Courts), criminal and civil, are first heard by the Court of Special Appeals. s There are appeals, as a matter of right, meaning that this Court must hear the appeal when made. [51] This Court, located in Annapolis, has thirteen judges. Its normal procedure is to hear an appeal in panels of three judges. In unusual cases or circumstances, the entire Court will hear the appeal. When the entire Court sits for a case it is referred to as an "en banc" hearing. The appellate process is, of course, different from the trial court. Except in very rare circumstances, an appellate court will not hear new evidence. Attorneys, in the form of a written "Brief," will argue their points of law which will be read by the judges assigned to the panel for that case. Subsequently, a time for oral argument will be assigned, where the attorneys will orally argue their case before the panel of judges. The panel will render their written opinion at a later time. The selection of judges for the Court of Special Appeals is rather complex. Judges are initially appointed by the Governor, with Senate approval. [52] Then, they stand for election every ten years. They run unopposed, to be "judged" on their records. The state is divided into six appellate judicial circuits. One judge is elected from each circuit, except two are elected from Baltimore city. The remaining six judges are elected state-wide. 


(4) Court of Appeals 

The Maryland Court of Appeals is the state's supreme court. Its roots go back to the earliest days of the colony when the Governor and his Council issued writs of error to review judgments of the Central Provincial Court. ." [53] and its name "Court of Appeals" dates back to the Maryland Constitution of 1776. [54] Appeals to the Court are "discretionary, meaning that the Court decides what cases it will hear on appeal; [55] and thus can control its docket. It has general jurisdiction over the Court of Special Appeals; and controls the development of the "Common Law" or the decisional law of the state. The Court also will receive cases in the form of "Questions of Law” certified to it by either a federal court or an appellate court of another state under the Uniform Certification of Questions of Law Act. [56]Another important function of the Maryland Court of Appeals is its control over the professional bar of Maryland, a function not well-known to the general public. In order for attorneys to practice in the State of Maryland, they must be admitted to the Bar of the Court of Appeals. They are subject to the Rules of Professional Conduct promulgated by the Court of Appeals. [57] The Court has the authority to discipline the members of the Bar, and, when necessary, disbar an attorney from the practice of law. The Court of Appeals is also empowered to establish rules and regulations to govern the practice and procedure of all the Courts in the state. As the court of last resort, there are no appeals from this Court, except where issues involving the federal Constitution are raised. In those cases, appeals can be taken to the federal courts to be resolved by the U. S . Supreme Court. [58] The main method of obtaining review by the Court of Appeals is by "writ of Certiorari," one of the old common law writs still in use to this day. [59] On the average, the Court accepts for review about 25% of the petitions of certiorari filed each year. The procedure of the Maryland Court of Appeals is similar to the Maryland Court of Special Appeals. Once the writ of certiorari is granted, the attorneys will submit written briefs arguing their issues of law. A time for oral argument is set where the attorney will orally present their case to the Court. However, the entire Court of Appeals will hear each case, as the United States Supreme Court does. The resulting opinion of the Court on each case is written and published, often with dissenting opinions when the Court cannot reach a unanimous opinion. [60] These published opinions are fundamental to Maryland jurisprudence. Part of our common law heritage is the principle of "stare decisis." Therefore, the precedents established in the long line of Maryland Court of Appeals cases--or case law--are controlling unless the Court reverses a previous case, and makes "new law," which it does on occasion. The Court's interpretation of laws passed by the General Assembly can be "reversed" by the Legislature, if it disagrees with the Court's interpretation and passes an amendment. But the Court's interpretation of the federal and state constitution cannot be. Its interpretation of the Common Law, when applicable, can only be changed by the Legislature replacing that Common Law principle with a statute (which could raise constitutional issues that only the Court can resolve). [61] The Maryland Court of Appeals is composed of seven judges. The Governor, with state Senate approval, initially appoints the judges. They must, however, stand for an unopposed election every ten years. There is a judge for each of the six appellate judicial Circuits (two from Baltimore City) ,and the Governor picks one of the seven to be Chief Justice. [62] 




In the Maryland Constitution's Declaration of Rights, Article 5 states: 


That the inhabitants of Maryland are entitled to the Common Law of England, and the trial by jury according to the course of that law, and to the benefit of such of the English statutes as existed on the fourth day of July, seventeen-hundred and seventy-six; and which by experience have been found applicable to their 

local and other circumstances; and have been introduced, used and practiced by the Courts of Law on equity…  



That clear recognition of the heritage of the English Common Law, passed on to us as a matter of right, explains why this essay starts with the "… padding down the causeways … " of the Saxon war bands, almost sixteen hundred years ago. There were a large number of Colonial lawyers who were either trained at the great English "Inns of Court" or were trained by such practitioners, in pre-revolution Maryland. [63] The impact on our institutions by their background is with us today. Naturally, the unique circumstances of Colonial life fashioned an American legal 

tradition which departed from the system of the English Courts, ultimately becoming an American; and a Maryland common law different in many basic concepts from English jurisprudence. However, whenever today we have an officer of our courts open the court day with the cry of "Oyer, Oyer" which many do, this is aresonance going back six hundred years to the Common Law Commissioners of Oyer and Terminer, who brought the King's justice to the local English countryside. It is a fascinating and proud heritage. 




End Notes

1. G. M. Trevelyan, History of England, Vol. 1 (Book One), 

Chapter 3 (1952) [hereinafter cited as Trevelyan]; Myres, "The 

English Settlements," Vol. 1, Oxford History of England (1938) . 

2. Trevelyan, Vol. 1 (Book One), p. 60. 

3. Trevelyan, Vol. 1 (Book One), Chapter 3. 

4. Id. Pollack and Maitland, History of English Law (Introduction 

to Volume 1), 1899. Frederick G. Kemp in , Historical 

Introduction to Anglo-American Law, pp. 6-8, 1973 [hereinafter 

cited as Kempin]. 

5. Kempin, pp. 82-84. 

6. Catherine Drinker Bowen, The Lion and the Throne, Chapter 34 

(1956). Kemp in , pp. 80-81. 

7. Id., pp. 487-503. 

8. Trevelyan, Vol. 1, pp. 212-215, Kempin, pp. 27-29. 

9. Id. 

10 • 174 U. S • 1, 8. (oc.. H) ({ ~ , 2. ) 

11. Bernard C. Steiner, Maryland's First Courts-American 

Historical Association Report (1900) [hereinafter cited as 

Steiner] . 

12. C. Bond, The Court of Appeals of Maryland. A History (1928), 

Chapter 1 [hereinafter cited as Bond, History]. 

13. Coke on Littleton, 109b, 4. 

14. Archives of Maryland, proceedings of Council-1667 (128 and 264) • 

15. C. Bond, Proceedings of the Maryland Court of Appeals. 1695- 1729: Introduction (1933) [hereinafter cited as Bond, Proceedings]. 

16. Bond, History, p. 3. 

17. Steiner, pp. 213-214. 

18. Bond, History, p. 5. 

19. Steiner, p. 221. 

20. Published in 1 J. 11 U. Studies in Historical and Political 

Science-Old Maryland Manors (John Johnson). 

21. Bond, History, p. 9 

22. Bond, History, pp. 6-7 

23. Bond, History, p. 8. See Appeals of Maryland, 37 Md. cited as Reynolds]. 

also, Reynolds, The Courts of L. Rev. I (1977) [hereinafter 

24. Through most of the colonial period there were also a Court of 

Chancery [similar to the English Common Law Court] and a later 

court of admiralty. 

25. Bond, History (Chapter III). 

26. Trevelyan, Vol. II, Book Four, Chapter I. 

27. The Federalist No. 47 (Madison as Pub I ius , Feb. 1, 1788). 

28. Trevelyan, Col. II, Book Four, Chapter I. See also note 6, 


29. The Federalist, No. 78 (1788). 

30. Id. 

31. 1 Cranch 137, 2 L. Ed. 60 (1803). 

32. It is of interest that in the committee of the "Declaration of Rights" at the Constitutional Convention for Maryland "Separation of Government Functions" won by one vote (30 to 29), and was not adopted by most state constitutions at that 

time. See Bond, History, p. 59. 

33. Md. Const. of 1776, Art. 56. 

34. The State Court of Admiralty was abolished when the federal 

courts assumed admiralty jurisdiction pursuant to Art. III, 

Sec. 2, U.S. constitution. 

35. Reynolds, 37 Md. L. Rev. 1, 3 (1977). 

36. Under the Constitution of 1776, Article 59, amendments were 

made by the General Assembly, not the electorate. 

37. Bond, History, pp. 149-151. 

38. Bond, History, pp. 167-177. 

39. Md. Const. Art. IV. section 14A (1966). See also Reynolds, 

37 Md. L. Rev. 3 at note 10. 

40. Md. Const. Art. IV, sections 1 and 41A. See also Thompson v. Giordano, 16 Md. App. 264 (1972). 

41. Md. Const. Art. IV, section 40 (1978). 

42. Duncan v. Louisiana, 391 U.S. 145 (1967); Baldwin v. New York, 

399 U.S. 66 (1969). 

43. Md. cts. & Jud. Proc. Code Ann. §§ 4-101 to 4-105. 

44. Md. cts. & Jud. Proc. Code Ann. §§ 1-602. 

45. Report of the Committee on Drug Crisis and Underfunding of the 

Justice System, Bar Association of Baltimore, 1990, pp. 8-9. 

46. Md. cts. & Jud. Proc. Code Ann. § 1-501. 

47. Trevelyan, Vol. I, Book Two, Chapter 2. 

48. Md. cts. & Jud. Proc. Code Ann. § 12-401. 

49. Report of The Committee on the Drug Crisis and Underfunding of 

the Justice System, Bar Association of Baltimore, 1990, pp. 8-9. 

50. Reynolds, 37 Md. L. Rev. 1, 8, quoting from 44 S. Cal. L. Rev. 

901, 910 (1971). 

51. Md. cts. & Jud. Proc. Code Ann. § 14-401 and Estep v. Estep, 

285 Md. 416 (1979). 

52. Md. cts. & Jud. Proc. Code Ann. § 1-402. 

53. Reynolds, 37 Md. L. 

54. Bond, History, pp 

55. Reynolds, 37 Md. L. 

56. Reynolds, 37 Md. L 

57. Md. R.P. 1230, Md.399 (1982).Rev. 1, 3. 59-60. Rev. 1, 4. Rev. , 1, 4. 

R. P. , BVI et seg. See also, 41 Md. L. Rev. 

58. During the years when Chief Justice Warren was on the United States Supreme Court (1959-69), the Court "incorporated" the Fourth, Fifth, and sixth Amendments (among others) of the Federal Constitution into the "due process clause" of the Fourteenth Amendment, and applied them to the States in the 

same manner as they applied to the Federal Government. This created a revolution in criminal procedure in the states.Even though the Maryland Constitution's "Declaration of Rights" has similar provisions to the Federal Bill of Rights, 

the Maryland Court of Appeals, as all state supreme courts, was obligated to follow the U. S. Supreme Court's interpretation of those federal rights. See Mapp v. Ohio, 367 U.S. 643 (1961), and Duncan v. Louisiana, 391 U.S. 145 (1967). 

59. Reynolds, 37 Md. L. Rev. 1, 4 

60. The Maryland Court of Appeals' opinions are bound published, and are available in most law libraries and The Official Reports are known as the "Maryland Reports" and are cited as Vol. Md. 0 for each case. The Maryland Court 

of special Appeals does not publish all of its opinions, but their reports are also in bound volumes that include the most important cases of that court and also are available at law libraries. 

61. See Reynolds generally. 

62. Md. Const. Art. IV, section 14 (1978). 

63. Evarts B. Green, Foreword to the Proceedings of the Maryland 

Court of Appeals 1695-1729 (1933).