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 15
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31
At all times careful revisals of the laws have been the greatest aids to a proper and economical (in point of time) means of understanding them. They were made then at the expense of more labor than now, and with a correspondingly less opportunity for general circu- lation. But nevertheless, revisals were made. They
'I, Hening. Preface, v.
*Post page 190. "Volume I. Preface, vi.
167
THE LAW AND THE LAWYERS
began with the year 1632 (printed about 1684-1687), and after that in the following years of the colonial period - 1642-43; 1657-58 (the commonwealth or interregnum period); 1661-62; 1705; 1722; 1737; 1752, and 1769.1
At a meeting of the council held at the capitol at Williamsburg on May 5, 1741, the president reported the wish of the Lords of Trade to have copies of all the laws then in force in the colony. Thereupon, the council declared that a copy of all the laws having been lately collected and printed here,2 and the work ex- amined and corrected by the clerk of the House of Burgesses, a printed copy would fully answer the de- mand of their Lordships. It is said3 that there were earlier revisals, but that the one first printed was that of 1661-62 prepared by Francis Monyson, and long referred to as the " Printed Laws."
Thus it appears how little opportunity the public had to know and understand the current legislation of the lawmaking bodies, and how small a part the people generally had in making or in influencing the making of their own laws. But there were two prolific subjects of legislation made so conspicuous that it is hardly possible that they did not attract much interest, at least among the educated portion of the people. These were the church and the lawyers.
Although ecclesiastical jurisdiction over what was known as spiritual causes, was fully maintained in - England, and matters matrimonial and testamentary were there tried by the Spiritual Court, and while at the same time the commissary of the Bishop of London
'I, Hening V. Virginia Magazine. Vol. IX, 273. Address of J. Stewart Bryan before Virginia Bar Association, 1898.
$Probably referring to Mercer's Abridgment (1737), and the continuation printed in 1739. Virginia Magazine. Vol. XV, 122.
3Virginia Magazine. Vol. IX, 273.
-
. 168
VIRGINIA COLONIAL DECISIONS
.
held his ecclesiastical court in the colony, yet his jurisdiction was only over the immoralities of the clergy, with power of deprivation of and suspension from office; and the whole subject of spiritual causes was with a profane indifference to such fine distinctions, administered by the regular secular courts in Virginia along with, and with the same form of procedure, as any mere secular matter.1 No absolute divorces, however, were granted in the colonial period, but divorces a mensa et thoro were granted both by the General and the County Courts; and marriages could be annulled by the General Court if the parties were within the levitical degrees being prohibited by the laws of England and Virginia.2
Among the earliest of the colonial laws3 was one covering the whole scheme for erecting churches, for requiring attendance at church services under penalties, for uniformity in doctrine and discipline, church holidays, the conduct of ministers, their pay, and " protection from disparaigement."
By a later act4 ministers were prohibited from in- dulging in excesses of drinking, card-playing, etc .; were to perform marriage ceremonies, " but only be- tween the hours of eight and twelve in the forenoon;" to preach one sermon every Sunday in the year; to catechise the youth, ignorant persons and also fathers, mothers, servants, etc .; to visit the sick; to keep the parochial records, and administer the sacrament.
During the commonwealth period the whole matter of the vestries, agreements with ministers, church-
'Justice in Colonial Virginia, 7.
'Id .. 71. A copy of a petition for a divorce, by a next friend, is printed in Vol. I, page 40, of the Virginia Magazine, and on page 175 of Vol. VIII is a copy of an order of the County Court of Lancaster, Virginia, for a divorce between John Smith and Mary his wife.
3I, Hening, 158. 1631-32.
'Id.
------
169
THE LAW AND THE LAWYERS
wardens, the poor, etc., was discreetly " referred to their owne ordering and disposeing from time to time as they shall think fitt," thus avoiding any embarrassing attention to church affairs from the "Roundheads " at home. The purchasing of glebes was provided for out of the levies.1 Church ornaments and books were purchased2 and chapels were built, 3 and while " Quakers or other recusants " were excepted from the require- ment of constant attendance upon the church services, they were, with curious inconsistency, made liable for the payment of much severer fines for absence from the services than the orthodox were, and were forbidden, besides, from "assembling in unlawful assembleys and conventicles," and the more able were required to pay the fines of the insolvents.4
Although these laws enacting penalties for not keep- ing holy the Sabbath day, prescribing severe punish- ments for those who did not hold, whether they could or couldn't, the orthodox faith of those who made the laws; for cursing, swearing, getting drunk, gamb- ling, traveling on Sunday, working on Sunday, prac- ticing immoralities, 5were enacted and re-enacted with endless persistency through all the colonial time, there yet came at a fairly early periode the adoption of the Toleration Act of England, whereby Protes- tants dissenting from the Church of England were exempted from the obligation to attend the services of the Church, provided they should meet at their own places of religious worship once in every two months. This act, although known as the Toleration Act, was soon denounced as quite intolerant, but considering
1I, Hening, 158.
'II, Hening, 29. 1660-61. $Id., 52. ^Id., 48. 1661-62. BIII, Hening, 360. 6Id., 171. 1699.
170
VIRGINIA COLONIAL DECISIONS
the utterly dogmatic and intolerant spirit of that age in all religious matters, it seems to have been a fairly good start in the right direction. Of course, the only effectual cure for unfair and troublesome conditions between the different religious bodies was the remedy later applied, that is, a complete divorce of Church from State, and the protection of absolutely free religious worship and opinion. But it was then much too early to have expected such a complete change from condi- tions so long maintained. This was only to come after, when an even more radical change had occurred in the political relations of the colony with the mother country.
While the church and the clergy did not escape the sometimes unwelcome fostering care of the lawmakers, the same inconvenient paternalism was manifested towards the lawyers.
The enactment of such laws was, of course, a fairly good indication of the need of them in the first half of the seventeenth century. There was but little business then for lawyers, of a legitimate character, and they lived more by their practices than upon their practice. "The legal profession," says Mr. Fiske,1 " was at first held in somewhat low repute, being sometimes recruited by freed men whose careers of rascality as attorneys in England had suddenly ended in penal servitude." Their capacities for mis- chief were only limited by their opportunities, and the exercise of their talents in this direction made them the subject for many years of most drastic legislation. This was by no means a uniform condition, and after the middle of the seventeenth century, and especially in the first half of the eighteenth century, the profession grew rapidly in importance and improved in character.2
-
1Old Virginia and Her Neighbors. Vol. II, 266.
'Id.
171
THE LAW AND THE LAWYERS
Professor John B. Minor1 thought that the adverse legislation of 1642 and subsequently, was due to jealously between the aristocracy of birth represented by the Assembly and the aristocracy of merit repre- sented by the lawyers. But Mr. Chitwood,2 who quotes Mr. Minor's views, thought it "more probable that this unfriendly attitude of the ruling class towards the legal fraternity, was caused by the lack of ability and character of the early lawyers." The last is doubtless the real reason, but lawyers as a class, in spite of the great political, religious and social influence of the profession, have never been popular with the masses, and consequently proportionately unpopular with the elected representatives.
By the planters, who mainly made up the member- ship of the General Assembly during the earlier years, it is not to be wondered that the whole race of lawyers should be regarded with some degree of con- tempt, even at their best, but the crowd of mere mercenary adventurers who by stirring up litigation for the profit which might be in it, destroyed the peace and good feeling of the country neigh- borhoods, naturally provoked the utmost efforts for their extermination by whatever means the law could afford.
Beginning in 1642-43,3 with the very proper re- quirements that lawyers should be licensed, their fees regulated, and every lawyer compelled to appear when retained, unless employed on the other side, it was only about three years later4 that all " mercenary attorneys " were wholly expelled from their offices as such, because, as the act says, they " more intended
'Minor's Institute. Vol. IV, Part 1, pp. 163, 168.
*Justice in Colonial Virginia, 118.
SI, Hening, 275.
'November, 1645.
N
172
VIRGINIA COLONIAL DECISIONS
their own profit and their inordinate lucre than the good and benefit of their clients." This act was soon after re-enacted, and at the same time the act pro- viding for licensing attorneys was repealed.
It followed before very long, quite naturally, that "It is thought fitt that vnto the act forbidding mer- cenary attorneys,1 It be added that they shall not take any recompense, either directly or indirectly,"2 and the parties themselves, or by some other person, by special appointment of the court, might appear in their causes, in which case only could “satisfaction re- quisite " be allowed.
But with a degree of vacillation which indicates the inadequacy of previous remedies, in December, 1656,3 all the acts against mercenary attorneys were repealed, and the governor and council for the " Quarter Courts " and the commissioners for the County Courts, were permitted to " appoint and allow such as they shall find fitt and able to be attornies."
The act provides that the attorney shall take an oath, which, however, was not included in the manuscript copy of the law, probably because in March, 1657-58,4 but a few months after the passage of the act, the former legislation against "mercenary attornies" was revised and re-enacted with full force, and it was forbidden that " either lawyers or any other shall pleade in any courte of judicature within this colloney or give councill in any cause or controversie whatsoever, either directly or indirectly " under a heavy penalty, and every one
'The persons referred to as "attorneys " were not always lawyers, but were sometimes mere agents acting under powers of attorney. Justice in Colonial Virginia, 116.
"A lawyer's bill of fees of that period was as minute and detailed as a plumber's bill of the present day is, and was doubtless quite as aggravating. 15s. was ordi- narily charged for a suit and 10s. for writing a letter or other paper. Virginia Magazine. Vol. VII, 210.
3I, Hening, 419.
^Id., 482.
173
THE LAW AND THE LAWYERS
appearing for another in any cause was compelled to make oath that he was not "a breaker of the act aforesaid."
The declared occasion for the act of December, 1656, repealing the laws against "mercenary attornies " was the " findeing many inconveniences in the act," which I suppose means from suitors representing themselves, or being represented by ignorant, incapable or dishonest persons before the court.
The reason given for re-enacting the prohibitory laws now was, that " there doth much charge and trouble arise by the admittance of attorneys and lawyers through pleading of causes thereby to maintain suites in law, to the greate prejudice and charge of the in- habitants of the colloney for prevention thereof." So the poor legislators in their endeavors to find a remedy were between the devil and the deep sea, and so they remained for many years to come, indeed until conditions had begun to better themselves, but not by reason of any of their acts; for, untaught by their experience of the inadequateness of the legislative remedies, they continued to enact and re-enact them from session to session, mending here and there a weak spot and making another, still hoping, no doubt, that they would at last find some plaster that would draw. Finally, apparently as a radical resort, it was, on March 26, 1658,1 by the Assembly "proposed whether a regulation or a totall ejection of lawyers?" On the vote the burgesses said, "An ejection." But the Governor and council answered that they would consent to this proposition "so farr as it shall be agreeable to Magna Charta."2
1I, Hening, 495.
2The matter, upon being referred to a committee, was, however, reported on as follows: " We have considered Magna Charta and do not discover any pro- hibition contained therein." Virginia Carolorum, 264. On another occasion the same point was made before the burgesses. Justice in Colonial Virginia, 117.
174
VIRGINIA COLONIAL DECISIONS
Thus, in spite of the General Assembly's several times repeated declaration that no court could ever revise or pass upon any enactment of the General Assembly, one branch of their body seemed to have a lurking suspicion that somewhere there was some sort of power that protected the natural rights of men against the imposition of the penalty of expulsion without either trial or conviction, and for an offense, too, which of itself could hardly be called a crime. After all it was not such a far cry from this answer of the council that legislation must be limited by the terms of Magna Charta, to John Marshall's judicial declaration that in a conflict between the evanescent laws and the permanent constitution, the latter pre- vailed.
By June 8, 1680,1 matters had come to such a pass that the courts were "many times hindered and troubled in their judiciall proceedings by the imperti- nent discourses of many busy and ignorant men who will pretend to assist their friend in his business and to clear the matter more plainly to the court although never desired or requested thereunto by the person whom they pretend to assist, and many tymes to the destruction of his cause, and the greate trouble and hindrance of the court."
So the much perplexed legislators who could neither eject the bad lawyers nor yet make them good, again called in the regular members of the profession and resolutely shut out all the "busy and ignorant " laymen; requiring that every one who should appear either before the General or the County Court shall have been licensed. In such case the attorney could receive for his services the amount of compensation fixed by the act. At the same time a penalty was
1II, Hening, 478.
175
THE LAW AND THE LAWYERS
imposed upon any licensed attorney who should refuse to plead any cause when his fee should be paid, but the suitor, if he chose, was still at liberty to manage his own case. But this quite reasonable act did not seem to work right, and in November, 1682,1 it was enacted that the act of June 8, 1680, "and every clause thereof from henceforth be repealed and made voyd."
So, there being no law for or against practising for compensation, and, on the other hand, their right to do so being incidentally recognized by the act of 1718,2 which allowed "one attorney's fee in the bill of costs, if he imploy'd any in his suit," the lawyers appear to have proceeded to business, but by this time a far better class of men had come to the bar, and the reasons for drastic legislation were beginning to disappear. But as to the provision for taxing an attorney's fee in the costs, it was still provided that if the court should find that the defendant did unjustly and vexatiously delay the plaintiff it might allow him one attorney's fee in the bill of costs, if he had one employed.
Other acts followed, more particularly for regulating the amount of the lawyers' compensation, but the un- regulated right of any individual to practice law was not to be tolerated long in a society which regarded a law as the proper remedy for every evil condition; so by an act of May, 1732,3 which was during the time of the active professional life of our reporters, it was declared that "the number of unskilled attorneys practising at the County Courts is become a great grievance to the country in respect to their neglect and mismanagement of their clients causes, and other fowl practices."
So the General Assembly reinstated the license law
'II, Hening, 498. 'IV, Hening, 59. $Id., 360.
.
176
VIRGINIA COLONIAL DECISIONS
for those who should desire to practise in the county and inferior courts, and as a sort of preventative to further evils of the "fowl practice" kind, provided for those offering to practise in the county and inferior courts the following quite suggestive oath:
" You shall do no falsehood, nor consent to any to be done in the court; and if you know of any to be done you shall give notice thereof to the justice of the court, that it may be reformed; you shall delay no man for lucre or malice, nor take any unreasonable fees; you shall not wittingly or willfully sue, or procure to be sued, any false suit, nor give aid nor consent to the same upon pain of being disabled to practise as an attorney for ever. And furthermore you shall use yourself in the office of an attorney within the court, according to your learning and discretion."1
At this date a distinction seems to have been clearly recognized between the class of men, in lower Virginia at least, who practised in the County Courts alone, and those who appeared in the General Court, for the act we have been considering provides that it "shall not be construed to extend to any attorney, who at the time of passing thereof, is a practitioner in the General Court, or to any counsellor or barrister at law, whatsoever."
But it would be tedious, probably already has been, to follow further the vacillating and often futile course of legislation on this subject. It is enough to say that it was kept up, in a somewhat modified form, according to the old fashion, until by the act of October, 1748,2 very reasonable provisions were made for licensing lawyers to practise, and this oath prescribed:
'The colony of New Hampshire in 1686 prescribed an oath so very similar to this that it can hardly be doubted that the Virginia Oath was copied from it. IV, Hening, 360.
*VI, Hening, 140.
----------
177
THE LAW AND THE LAWYERS
"I-A. B. - do swear that I will truly and honestly demean myself in the practice of an attorney, according to the best of my knowledge and ability, - So help me God."
But even after this time, and on up to the revolu- tionary period, acts were passed regulating the conduct and rights of attorneys, but no change appears to have been made in the oath required by the act of 1748 until, in May, 1776, there was inserted in the form of the oath, a promise " to be faithful and true to the Commonwealth of Virginia," and the form as thus amended has, without substantial change, continued in use ever since.1
Meanwhile, there had been laws enacted from a very early period, and changed from time to time, with re- gard to the sessions of the General Assembly, and the terms of court, their jurisdiction, rules of procedure in them, pleadings, fixing the causes for hearing, the conduct, control and pay of the officers of the County and General Courts, the right of appeal from the County to the General Court, appeals from judg- ments of justices of the peace to the County Courts, and the details of trials before each of the courts, including the selection of the juries, the summoning of witnesses, etc., of all of which things the present practice is but a reasonable modification or en- largement.
And now having said so much for the laws of those early days, a few words about the lawyers who prac- tised about the time that Barradall and Randolph wrote their reports, and who probably did not differ very much from their immediate predecessors and successors, may add interest to this narrative as giving us a clearer idea of the environment within which
'IX, Hening, 121.
,
178
VIRGINIA COLONIAL DECISIONS
these reports were written, and of how the cases then reported were tried.
Sketches of Sir John Randolph and of Edward Barradall are reserved for a later chapter, so that we may know them better in connection with their work as reporters. But it is proper to add here that although both of these men died long before they reached middle age, yet they had become among the most prominent and able lawyers of their generation.
In colonial times there was no law school in Virginia, but many who were able to do so went to England and studied law there in the Inner Temple or in Gray's Inn. The majority, however, had to be content with reading law in the offices of the older lawyers, and this practice, indeed, was kept up very generally in Virginia even up to the time of the civil war.
The student of the earlier times was put to read his Coke, for that was before the day of Blackstone, some work on pleading, evidence, the law of contracts, and then a general survey of the statutes in force at the time. He was expected, meanwhile, to do some of the office work, and, incidentally, opportunity was afforded him to familiarize himself with the pro- cedure in the clerk's office, and with the courts so far as listening to the trials of cases afforded it. As a rule, payment was not exacted for this sort of educa- tion, and the student was apt to be put to study with the lawyer who was his father's friend and counsel.
While the law required licenses to be gotten by those who proposed to practise, the applicant had to submit to an examination conducted under the direction of the court. But as neither the justices who held the County Courts nor the members of the council were lawyers, this examination was submitted to a committee of lawyers, of which the orders show that the attorney-
-
179
THE LAW AND THE LAWYERS
general of the time was usually one. This committee would submit its report to the council, which would pass upon the application.1 Their examinations were no doubt often, as later they generally became, matters of form; but with some of the attorney-gen- erals it meant a real test, and students were sometimes put to it to win their certificates. Equipped with the license, however, and having duly taken the oath before the court, and being enrolled in the list of practising attorneys, the new member of the bar would open his office in the Court-house village, or not in- frequently at his home on the farm, and sit down to wait for practice. This generally came slowly and sometimes not at all. Nor was it uncommon for a lawyer of that day to engage also in some other pursuit while still a seeker for and even after attain- ing to a fair practice.2
William Fitzhugh, who was the grandfather of Edward Barradall's wife, and who died at Bedford, his seat, in October, 1701, in his fifty-first year, was born in England, January 9, 1651, and educated there as a lawyer. He was a son of a member of the English bar3 and came to Virginia in 1670, settled in West-
1By act of 1745 (Hening, Vol. V, 345) the councilors themselves were required to make the examinations.
2Mr. Lodge (English Colonies in America, 53) speaks of the earlier lawyers as being " for the most part pettifoggers and sharpers, broken adventurers from London, and indented servants, who having been convicted, chose on their release the profession which, in a rude state of society, gave them the best opportunity of fleecing the community." He declares that William Fitzhugh was the only man who appears to have attained an honorable eminence, simply as a lawyer, in the seventeenth century. In 1734, he states there were two lawyers, whose names he does not give, although he evidently refers to Holloway and Hopkins (of whom hereafter), who had displayed ability and achieved success in their profession, but one of them was " a broken down London practitioner." But of Sir John Ran- dolph, he says, he " was a conspicuous and learned advocate." See also on the subject of the early lawyers, Virginia Carolorum, 191.
Under some of the acts of the General Assembly the distinction was made, that lawyers practising in the General Courts were forbidden to appear in the County Courts, but exceptions were made as to certain counties and as to the Court of Hustings of Williamsburg. VI, Hening, 143.
· Virginia Magazine. Vol. I, 17. Bruton Church, 102.
1
. 180
VIRGINIA COLONIAL DECISIONS
moreland County, and married there a Miss Sarah Tucker. Col. Fitzhugh was a very rich man and left a great estate to his eldest son William, whose daughter Sarah, named, doubtless, for her grandmother, became the wife of Barradall.1 This son, William, was ap- pointed a councilor in 1711, and died about January, 1713-14. As his daughter, Mrs. Barradall, died in October, 1743, at the age of thirty, she was a posthu- mous child. Her only brother, Henry Fitzhugh, of " Eagle's Nest," was quite prominent in the colony, and was the great-grandfather of Bishop Meade,2 of whose writings much use has been made in this intro- duction. He was also the ancestor of the wife of Gen. Robert E. Lee.3
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.