USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 14
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But now came a great calamity to the college. Fire broke out in the building about ten o'clock at night on October 29, 1705, and while the Governor and all the people of the town and many visitors, for it was said to be " a public time," looked on helpless to pre- vent it, the building, put up at so much expense and trouble, burned down.
But Dr. Blair had fought more foes than fire, al- though such in another sense was supposed to be his chief vocation in life, so with characteristic energy he set about securing funds to rebuild. He procured more taxes from the burgesses, gave up his own salary of one hundred and fifty pounds as president, got a
1Virginia Historical Magazine. Vol. VIII, 47.
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gift of one thousand pounds from Queen Anne, and Governor Spotswood coming into office about that time and being of the kind that made things move, it was not long before the walls went up again and the college building was in better shape than before.
This all happened about the year 1711, and after that there was greater progress and more usefulness in the college than there had been before the fire. By degrees the buildings were added to, all being of brick. It soon had a small library which gradually was increased until there were more than four thousand volumes.
In the years to come the college had its ups and downs, but prospered in the main, and besides the academic department there were established schools of divinity and of law. As has been noted before,1 Dr. Blair died on April 18, 1743, and was buried at Jamestown, where fragments of the tombstones of himself and his wife, placed there in 1752, may still be seen.2 Governor Gooch, writing to the Bishop of London of Dr. Blair's death, says that he "lived ten days after the doctor had declared that he could not live ten hours."3
Many distinguished Virginians were educated or studied law at this college and among those of national reputation were Jefferson, Monroe, Marshall, Edmund Randolph, Gen. Winfield Scott, John J. Crittenden and John Tyler. Judge George Wythe was for some years the professor of law, only leaving there for Richmond in 1791, and John Marshall was his most distinguished student.
'Ante page 98. *Williamsburg, 142. 3Id.
CHAPTER VIII THE LAW AND THE LAWYERS
In an earlier part of this Introduction we have seen that with the first ships that brought the settlers to Jamestown in 1607, came the charter requirements and instructions that the colony was to be governed according to the laws of England; and while almost absolute powers in other respects were given to the council, it was denied jurisdiction in matters affecting life or limb. In the chapter on government,1 also, we have considered, so far as the subject is appropriate to this writing, the charter of 1606 and the instructions to the adventurers of 1607, which were to govern them in the far away land to which they were going. The powers given to the council to make laws and to rule with or without them, and its oligarchical character both in theory and in practice, with the one important reservation of the right of English liberty to the ad- venturers and their children and to all future dwellers in the new land, the change of the law-making power to the Governor alone, and then the abolition of this possibly necessary but altogether despotic system and its exchange for a partly representative govern- ment with its growth and adaptation to the wants of the people, and the relations of Governor, council and elected burgesses to each other, have all been fully considered. And we have discussed, too, not merely the legislative but the judicial functions of the council and the General Assembly, of which latter the council was an important part, far enough to give us a fair outline of the structure of the government of the
1Chapter IV.
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colony on the plan of which, with sundry changes caused principally by the transmission from a monarchi- cal to a republican condition, our government of today was formed.
Then, too, we have noted the disappearance of the intervening authority of the London Company, and the establishment of direct relations between Virginia government and King and Parliament, intended by the managers of the plan to be almost entirely a relation to the King, but which, by a series of happy accidents, without much personal responsibility upon any one of the conflicting interests, fell out at last to the real advantage of the colonists, and to the increase and firmer planting of local self-government in the people along the banks of the four great rivers.
These things are recalled to the reader just now because by having them in mind he will better appreciate the laws made under such changing con- ditions, and of which it is intended in this chapter to give history enough to serve the purpose to which this introduction is devoted.
As has been mentioned, the office of Governor was made by the Charter of 1609, and Sir Thomas Gates, in the absence of Lord De La Warre, whom we shall hereafter call Delaware, who was to be the real governor, became for the time the Governor under a commission especially appointing him to that place. Delayed by shipwreck off the coast of the Bermudas, for they still followed the longer southern route, Gates did not reach Virginia until the spring of 1610. He came as the first lawgiver, and he published his enactments by writing them out " fair," and setting them up on a post in the church, so that all could see them, and those who were able to read could read them.1
'The First Republic in America, 126.
!
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Draco had, many years before, performed a similar service for the Athenians, although it is said of him as of a certain Roman lawmaker,1 that he purposely posted them so high that the people could not read them. Each of these lawmakers, Draco and Gates, had the distinction of being the author of the first written laws for their respective countries, but with different results to the individuals themselves. Draco, because of his laws, was after some years exiled by his countrymen. Gates, as he had told the people would probably happen, a few days after the publica- tion of his code, in rather a dramatic way for such surroundings, embarked with all his countrymen and their effects upon three ships, and sailed away, leaving the land and the laws he had prescribed for its govern- ment, all to themselves.
But the retreating expedition had not proceeded far, when at Mulberry Island near the mouth of the river, they met the messengers of Delaware, who with ships, people and supplies, had just arrived off Cape Henry; and upon being joined by the new Governor and his little fleet, they all sailed back to Jamestown and resumed where they had left off a few days before. It was a narrow escape from complete abandonment, for if Gates had been but a day sooner he might have reached the open waters of the ocean, with the pro- babilities much against meeting the expedition of Lord Delaware.2
The laws of Gates had probably been left posted in the church. At any rate, Delaware read and ap-
'Caligula. "He both posted them high and wrote them fine." Lives of the Cæsars. Suetonius. Chapter XLI.
'Cooke speaks of the return to Jamestown as being on Sunday, June 10, 1610 (History of Virginia, 83), but Brown (First Republic in America, 125) says that Delaware cast anchor at night, on June 16, at Cape Henry; reached " Cape Com- fort " the next night; sent a messenger to Gates, June 17; met him at Mulberry Island, June 18, and reached Jamestown Sunday, June 20.
1
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proved them, and directed that they should remain in full force and virtue over the much enlarged body of citizens which his three ships added to the company of Gates which had been arrested in its flight.
So the laws remained, and, no doubt, continued to be read after and before and perhaps at or between the times of service, which were many, on the post in the church, though probably some more convenient place was found for them while Delaware was having the pretty pews and pulpit and the broad windows put in the building, now known to exact historians as the third church.1
Now comes again the comparison of these laws of Gates and Dale, who came after, with those of Draco, who had played the same role with the Athenian people. History has set up the Draconian code as the severest set of laws ever imposed on any body of the human race, but it is doubtful if they exceeded either in cruelty, or apparently in folly, the laws under which this band of English born people existed from 1610 to 1619.
Death by this code was the customary, and less than that the unusual, punishment for a long list of crimes, defined with much particularity,-from stealing grapes to staying away from church three times in succession.2 It is a travesty to speak of this as law, unless that be law which in time of peace is administered at the drum's head. Captains and lieutenants were the judges, and armed soldiers were the officers of court, while the provost marshal was the " gaoler," if ever a jail was needed for the very short time that elapsed between conviction and execution.
Whichever of the Sir Thomases, Gates or Dale,
1Bruton Church Restored, 36.
'Justice in Colonial Virginia, 14.
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deserved it most, Dale got the larger part of the bad reputation for it all; but the truth indeed is that milder manners would have lost the day. There were des- perate characters enough in the small body of men, women and children huddled together at the little town to have taken the rule from weaker hands and played havoc with these embryo planters of free gov- ernment, if Dale had been content with simply posting his laws in the church or elsewhere, and had failed to give them the needed force with the point of his sword. Had he not been the forceful man he was, he too, like Gates, would soon have been obliged to take to his ships.
So after all, with his strange mixture of zeal for the saving of souls and the cruel infliction of punishment of bodies, his capacity for intrigue and conscientious regard for duty, his harsh and pitiless sternness and mild and courteous manners, in spite of his so-called laws, Dale has come down the centuries with the judgment of history,1 that he understood human nature and the way to govern it, and was, on the whole, a wise, as he was, under the adverse circumstances, a quite successful ruler.
But now comes a great change, and one would think a rather daring experiment, which, indeed, resulted largely from the plan of politics in England.
In 1619 came the new charter, the real beginning of constitutional law in America, with an assembly to be elected by the people and the beneficent Yeardley as Governor, to put the new plan in force and to start it in working order. And here begins the actual reign of law, though order under Dale had preceded it, and it becomes interesting to know what now was the real support and force by which this new system was successfully
1Cooke's History of Virginia, 107.
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planted and maintained. For in spite of the early admonition to that end, the colony surely had not during the twelve years of its existence, and especially since 1610, been governed according to the laws and institutions of England.
We have already seen that the courts for the adminis- tration of justice were (after a time) the justices, the County Court, and the General Court, but none of them at first, under those names. Later we shall read more particularly of the respective jurisdictions of these tribunals, but now we are concerned in knowing under what sort of laws these courts had to see to the doing of justice, and by what sort of rule it had to be measured.
The laws and institutions of England were to be also those of the colony. But in the very nature of things they could not be so without much variance, and the common sense of the people on both sides of the ocean recognized and approved this in the applica- tion of the rule.
The Common Law and the principles of Equity, as they prevailed in England, were equally the rule in the colony. The King and Parliament were paramount in Virginia as well as in England, and therefore, Acts of Parliament intended for the colony were the law of the colony, acts of its General Assembly to the con- trary notwithstanding.
William Fitzhugh,1 though a merchant, planter and shipper, was also a lawyer by profession, born and educated as a lawyer in England, and actively prac- ticing his profession in Virginia; and he was reckoned there a good lawyer. In a very elaborate argument? on the subject of the authority of English law in Vir-
1He was the grandfather of Barradall's wife.
'Virginia Magazine. Vol. I, 260.
:
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ginia in cases of conflict, among the numerous reasons which he gives for holding that " the laws and statutes of England are binding here," he cites the fact that the " preamble to the body of our printed Acts doth declare that what laws we make must not be repugnant to the laws of England." He refers also to " his Ma- jestie's instructions from time to time," the first of which, drawn up by James I in 1606, directs that the laws of the colony " be in substance consistent with the laws of England or the equity hereof."1 But Col. Fitzhugh disputes the contention "that the Laws and Statutes of England were not binding to us here, . except such statutes wherein we are particularly named."
The opinion, however, of Sir William Jones, attorney- general for Virginia, and which bears the date of September 22, 1681, ("7ber2 22d 1681 ") says:3 " For though I do agree, that an act of Parliament made in England doth bind Virginia or any other of the English Plantations when they are expressly named, yet I do conceive a new Law or Statute made in Eng- land, not naming Virginia or any other Plantation, shall not take effect in Virginia or the other Plantations, till received by the General Assembly or others who have the Legislative Power in Virginia or such other Plantation, and this upon a double Reason. - 1st, Because the Parliament of England when they make a law without naming more Places than England as the Extent to which it shall relate, are not to be presumed to have Consideration of the particular Circumstances and Condition of the Plantations, especially considering no member came from thence to the Parliament of England. 2ndly, Because the
'I, Hening, 74. *Septem(7)ber - a queer conceit.
'Barradall's manuscript. R. 1.
: J
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Plantations have their own Representatives, and though the, Parliament of England hath a superior Power when they think fit in express words, to execute it; yet it shall not be presumed, that they execute that extraordinary Power, where they do not in express words declare it. And as this hath been anciently resolved in many Cases with Relation to Ireland, So I think the same Reasons hold with Relation to the Plantations, and if it should be otherwise then great inconveniency amongst others would follow, That a Law made in England (which relates, if no time be expressed, to the first Day of the Parliament, and where a Time is set it shall take effect, it is commonly so short a Time as no notice can arrive to the Plantation before it begins to take effect) should bind the Planta- tions, who have not any ready means to know it for a long Time after it is passed and so then should be bound by Law of which they are, or may be reasonably supposed necessarily & invariably ignorant."
A note to this opinion states that it was shown "to all the then judges of England, who declared the same to be the Law."
The case in which this opinion was given was of a will made in Virginia, devising lands in England, but with only two witnesses, whereas the act of Parliament of 1677 required three witnesses, and it is presumed, although it is not so distinctly stated, that the English act changing the number of witnesses to a will to three had not yet been officially published or filed in Virginia, where the will was executed, and therefore the opinion of the attorney-general sustained the validity of the will.
This opinion is based also upon the generally enter- tained and accepted view that while Virginia was bound by the laws, customs and institutions of England
i
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in a general way, yet that these in their application to the affairs of the colonial people had necessarily to be modified to suit the very different conditions existing in the colony from those in the motherland, and hence, to use the language of a facile writer,1 " they had to return to their infancy, and in some instances to pass through stages of growth in the new world similar to those through which they had already gone in the old. . . Only those parts of the old condi- tions that were suited to the new conditions survived and became a permanent part of the colonial system of government."
The Common Law prevailed in Virginia, although it was not formally adopted here until the revisal of 1660-61,2 just as it did in England, except so far as it was changed by acts of the General Assembly, and all the ancient forms of procedure in actions at law were followed with a degree of technical exactness and precision which the writer thinks has not prevailed here, within at least the last fifty years, independent of statutory changes.
The writ of habeas corpus, however, as we have already seen,3 did not exist in Virginia until the time of Spotswood, in the year 1710. The principles of equity too, as they prevailed in the English courts, likewise governed the courts of the colony, and the forms of proceedings in chancery as they were known to the English lawyers, were followed by the members of the Virginia bar, except that in the Monthly-after- wards called the County-Courts there was but little form of any kind either in the pleadings or in the orders of the courts, as, indeed, was true of that court through its whole history until, in its declining days, its whole
'Chitwood. Justice in Colonial Virginia, 1.
*II, Hening, IV.
3Ante page 102.
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1
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object and purposes (a necessary sacrifice in Virginia1) were perverted by changing the ancient system of a court presided over by justices of the peace, for persons required to be " learned in the law."
Primogeniture with entails, very constantly docked on application by the General Assembly, and the laws of descent generally, of England, were followed in the colony. The seating of lands by patents issued on condition of building, cultivating, etc., was provided by law and was never abused in practice.2 The forms and legal requirements of wills were, for the most part, those of the old country, but the places of probate, which for many years was confined to James- town, were in 16453 fixed " at the County Courts where such person or persons did reside or inhabit," and orders for the administration of estates were to be made by the same courts.4
The differences between the legislation of the present day and that of colonial times consist in the change of subjects which have come into existence or have so much changed their natures since that day, the extremely paternalistic character and primitive and informal expressions of legislation, especially of the earlier colonial period, and the necessary differences between laws enacted under a monarchy and those enacted by the same people under a republican form of government. Then, of course, the intolerant spirit of that age and the seeming thought that sin and every other evil could be cured or prevented by law, gave a different tone to legislation from that of more modern times. Beyond these differences the course of legisla- tion in the seventeenth and eighteenth centuries did
'By reason of negro and other ignorant and general suffrage.
"The Writings of William Byrd. Bassel, 180.
3I, Hening, 302.
*Id., 446. .
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not vary much from that in the nineteenth and twentieth.
But these points of dissimilarity were not chiefly due to the people, the place, or to their colonial con- ditions. Severity, intolerance, and the theory of this legislative panacea, were as much characteristic of Old and New England as they were of Virginia, and there seems to be even less of the influence of super- stition in the last named, than in the two former com- munities.
Severe laws fixing the penalties for the commission of crimes long outlived the time of Gates and Dale. Murder, rape, arson and violent robbery were punished with death; while the pillory, stocks, the whipping post and the ducking stool were kept in readiness, and plentifully used, for minor offences.1
In civil legislation, statutes of limitation,-the regu- lation of domestic service, provisions for preserving what even in that time were regarded as "ancient records," laws affecting the sessions of the courts, the right of appeal, the modes of procedure, attach- ments, costs, grand juries, petit juries, returns of process, set-off to debts, confessions of judgments, fraudulent conveyances, executions, pleas in the courts, liens upon property, the rules of practice, the compe- tency of witnesses, the fees of court officers, the appro- priation of the public revenues, the laws of suffrage, acts affecting insolvent debtors, the celebration of marriages (even to the hour of the day), the militia, the control of negroes, slaves, (under certain con- ditions making them a part of the real estate,) parishes and their expenses, taxes, prisoners, representation in the General Assembly, sheep, silk, regulating tavern fees, the exportation of skins, hides and furs, hog
1Old Virginia and Her Neighbors. Vol. II, 265.
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stealing, the legal tender for debts, surveys of land, swearing oaths, estrays, tobacco, mills, wolves, the exportation of wool, bastards, the registration of voters, coins and coinage, the making of contracts, rum, salt, warrants of justices of the peace, trespasses, weights and measures, tolls, slanders, tippling houses, patents, orphans, mulberry trees, pilots, naturaliza- tion laws, ordinances, manufactures, law books, navigation laws, highways, the cultivation of flax, making iron, Indians, the induction of ministers, courthouses, the manufacture of linen, woman suffrage, customs, waifs, whipping posts, stocks, Quakers, physicians, mulattoes, lawyers, hunting, felonies, liquors, lands, fences, escheats, deer, convicts, burials,-were of the many and variant subjects, taken at random from the statutes, which occupied the time and thoughts of the members of the General Assembly.1
In 1694 there was prepared, and subsequently found among the "Ludwell Papers,"2 and now published in the Virginia Magazine, commencing on page 273 of Vol. IX and continued in that and subsequent volumes, a manuscript of one hundred and twelve pages, en- titled "An Alphabetical Abridgment of the Laws of Virginia." . " God Save Ye Queen." This gives, first, a list of the acts repealed, "expired or disused," up to the date of 1694. It then gives alphabetically, commencing with " Accounts," a list of the subjects of laws in force, and under each head various subdivi- sions of the subjects, which to a lawyer of that day and later must have been of very great value. Such a tabulation of the laws, could it have been printed, would have been all the more useful because of the defective character of the collections of the statutes,
1See the various volumes of Hening's Statutes at Large.
*Prepared, no doubt, by Philip Ladwell.
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printed in the latter part of the seventeenth and the beginning of the eighteenth centuries, and for the reason that not until the year 17331 was an edition of the laws of Virginia printed in the colony. There was an edition printed in London, it is supposed between 1684 and 1687,2 for no date is give on the title page; but in the early years of the colony it had been the practice when a law required amend- ment, to re-enact it with the amendment introduced into the body of it. Then at each new session of the General Assembly, it would repeal all the former laws and re-enact such of them as were needed, either as they stood, or with such amendments as the General Assembly might see fit.
So, says Hening,3 "while they existed only in manuscript, and were promulgated by being publicly read, this mode was attended with peculiar advantages; for the people at once heard the whole law on a subject, without being compelled to ask the advice of counsel, or to resort to the clerk's office for a reference to the only copy extant in the country." This supposed ad- vantage presupposes, however, a disposition to listen and heed, and, further, a capacity to understand from merely hearing them read, without the aid of counsel or clerk, the whole series of enactments of a legisla- tive session, which would not be generally true then or now.
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