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 16
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John Holloway4 and William Hopkins5 were lawyers of distinction and contemporaries of Sir John Randolph and Edward Barradall.
A sketch of each of these men, written by Sir John Randolph, is to be found in a small quarto volume of manuscripts presented to the Virginia Historical Society by John Page, Esq., of Williamsburg, January 3, 1834. This little volume belonged to Chancellor Wythe and is altogether in his handwriting, except that part headed, "Taken from Sir John Randolph's Brevait Book." This part is the sketch referred to, and it seems not to be in Chancellor Wythe's handwriting. This sketch was printed in Virginia Historical Register, Vol. I, page 119, (Maxwell's Register, Vol. I, page 119) but it could hardly have been expected by Randolph that it would be made public. Nor was it published
'See his will. Virginia Magazine, Vol. II, 276. He made large bequests also to his sons Henry, Thomas, George and John, and left a fair property besides to his widow.
'See chapter V, The Church.
3Virginia Magazine. Vol. II, 279.
"He who built a private gallery in Bruton Church.
"He also reported in manuscript a few cases, of which only a fragment of one remains.
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for more than a hundred years after it was written, and then, as "valuable not only as giving us the charac- ters of two prominent lawyers of that early period but as being written by a third who was himself the attorney- general at the time." Randolph, in this sketch, admits the high reputation of Mr. Holloway1 and says that he was much sought after by clients and was singularly successful in winning cases; that he had great diligence and industry "and practised with much artifice2 and cunning being thoroughly skilled in attorneyship." But he thought he reasoned poorly and was a tedious speaker, " for learning I never thought he had any, nor shld it be expected he should; He had served a Clerkship; went a youth afterwards into the Army in Ireland in the Beginning of King Wms Reign; after that betook himself to Business having got to be one of the Attorneys of the Marshalsea Court; but not being contented with his income from that, turned projector and ruined himself, which brought him first into Maryland and afterwards hither."
After reciting instances in support of his criticisms, Randolph says: " However his reputation was such that he was universally courted and most People thought themselves obliged to win if he would engage of their side upon any Terms; and he really thought so himself. This gave him great opportunities of exacting excessive Fees which I have heard he always did, where the value of the thing in question would allow it; and covered great Blemishes in one Part of his private Life - besides many imperfections of his mind which any Body might observe who Knew anything of him. He was of a haughty insolent nature; passionate and peevish to the last Degree. He had a
'As to Mr. Lodge's reference to these men see ante page 179.
'Meaning skill.
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Stiffness in his Carriage which was ridiculous and often offensive; and was an utter Stranger to Hospitality. He was sincere in his Friendships when he professed any, but not constant, apt to change upon small pro- vocations, and to contract new Friendships upon very slight Grounds, in which he would be very warm and ready to do all good offices. One of his greatest defects was that he would always bring his Opinion and his Friendship to agree. But what he wanted in Virtue and Learning to recommend him was abundantly sup- plied by fortunate Accidents. He was 14 years Speaker of the House of Burgesses and 11 years Public Treas- urer. But in these he acted with little Applause and less Abilities, though he was three times chosen and once unanimously. His management of the Treasury contributed to his Ruin and brought him to his Grave with much Disgrace. I was always his Friend1 and had a great Deal of Reason to believe him mine, yet it was impossible to be blind to some Imperfections. He died little lamented in the 69th year of his age."
Holloway and Hopkins are both mentioned by Dr. Tyler2 as among the great lawyers resident in Williams- burg, John Clayton and Sir John Randolph being the others named. Holloway was also the first mayor of the town.3
William Hopkins died in 1734 in London, within a few days after the death of Holloway, having prac- ticed law twelve years in the courts at Williamsburg. Of Hopkins, Randolph speaks with a much more qualified degree of condemnation than he does of
'But if Holloway could have read it, he would probably have preferred that some enemy had written his obituary notice.
*Williamsburg, 24. Spotswood said that Holloway, while acting as judge of the Vice Admiralty Court, accepted fees from a pirate for services as counsel, and was only prevented by a protest from the other judges of the court, from sitting at his trial. For this he was forced to resign. Spotswood's Letters. Vol. II, 356.
'Williamsburg, 26.
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Holloway. "By hard Study and Observation," he says, Hopkins "made a surprising Progress; became a very ingenious Lawyer and a good Pleader, tho at his first coming he was raw and much despised. But he had a carelessness in his Nature, which preserved him from being discouraged, and carried him on till he came to be admired. He had a good foundation in School learning, understood Latin and French well, had a strong Memory, a good Judgment; a Quickness that was very visible, and a handsome Person - all mighty Advantages. But his manner was awkward, his Temper sower, if it was to be judged by the Action of his Muscles, and was given, was too much given, to laugh at his own Discourses. When he had brought himself into good Business, he almost totally neglected it, which I believe was owing to a Desire of Dipping into all kinds of Knowledge where he had a good Deal of vanity, and preventing his Digesting what he had, so well as he would have done otherwise. He had many good Qualities in his Practice; was moderate in his Fees; Ingenuous and Earnest, never disputed plain Points, but was a candid fair Arguer. Yet he had a failing which brought him to a Quarrel with me. It was an odd sort of Pride that would not suffer him to keep an Equilibrium in his own conceits - He could not see himself admired without thinking it an injury to him to stand upon a Line with any other. And therefore tho I was always his Friend, had done him many kindnesses, and he himself thought himself obliged to me, He came into so ill a Temper as not to allow me either Learning or Honesty, which broke our acquaintance, and after that I thought I discovered some seeds of Malice in him. He died in the flower of his Age, and may be justly reckoned a Loss to this poor Country
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which is not likely to abound (at present at Least) in great geniuses."
So frank a discussion of the merits and demerits of two friends, written down apparently shortly after the death of both of them, could hardly have been expected ever to reach the public eye. For that reason it must be taken to have been the dispassionate judg- ment of the writer upon each of the subjects of his criticism. In the main it was no doubt a true picture, drawn as fairly as could well be by a contemporary and competitor in professional business, but not to be read without keeping in mind those conditions which disqualify for absolutely just judgment.
But the value of this little memoir is all the greater because while Randolph wrote of Holloway and Hop- kins he held up also a mirror unscreened to his own personality. If Holloway and Hopkins had small jealousies and resentments, little vanities that men do not often tell about themselves, surely Randolph has unwittingly written these down of himself. But we of a hundred and seventy-five years later are the gainers, for the picture thus given of these two men is much the picture of the lawyers generally of their class and time.
Hopkins, like Randolph and Barradall, was also a reporter. Mr. Jefferson speaks of Hopkins' as being one of the three volumes of manuscripts reports, in the possession of John Randolph, son of Sir John Randolph, when he, Jefferson, was practising in the General Court. One of Hopkins' reported cases1 is included by Mr. Jefferson with his own reports, but of the manuscript reports of Hopkins there now re- mains but a fragment - four pages, apparently auto-
'Curtis vs. Fitzhugh, Jeffn. 72. The date of 1768 is given as the time that Mr. Jefferson prepared these reports.
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graph-of another case than the one included in Jeffer- son's reports.
John Clayton, another contemporary of Randolph and Barradall, was at the time of his death attorney- general of Virginia, and was a lawyer of high standing. He was born in 1665 and died November 18, 1737, in his 72nd year, and was succeeded in his offices of attorney-general, judge of the Court of Admiralty, and of member of the House of Burgesses, by Edward Barradall. He was educated at one of the universities of England, probably Cambridge; was admitted to the Inner Temple, June 6, 1682; came to Virginia in 1705; appointed attorney-general of the colony in 1714, and held that office continuously up to his death, and was also, meanwhile, frequently a member of the House of Burgesses; and besides all these numerous offices he was presiding justice of the County Court of James City County, and recorder of Williamsburg.
Clayton came of a good English family, being the son of Sir John Clayton of London, grandson of Sir Jasper Clayton of St. Edmunds, Lombard Street, London, and brother of General Sir Jasper Clayton of the British Army.1 His mother, Alice, was a daughter of Sir William Bowyer, and his son John Clayton, was a distinguished botanist and author of "Flora Virginica." He was for fifty years the clerk of the County Court of Gloucester County, Virginia, and lived at "Windsor " on the Pianketank, where he had a botanical garden.
The attorney-generals of Virginia whose opinions are reported by Barradall2 are Sir William Jones, 1681, Sir Edward Northey, 1713, and S. Thompson, Esq., 1713, but these cannot be accounted for as contem- poraries.
'Virginia Magazine. Vol. IV, 163. There is also a sketch of him among the sketches of the attorney-generals in William and Mary Quarterly.
'Manuscript, p. 26.
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There were other lawyers practising in the General Court and at Williamsburg in the time of these reports, but none of sufficient note to have left any public record of themselves.1 Among them is the name of Harry Barradall, a brother of Edward Barradall, who died at his brother's house September 16, 1737. His name appears on the family tombstone in Bruton churchyard as "Qui obiit XVIII Cal, Octob A.D. MDCCXXXVII. Ætat XXVII." Dying thus at his brother's house at the age of twenty-seven, and no mention being made of his posterity, or, indeed, of any posterity of the Barradall name, Harry was prob- ably a bachelor, and had not been long enough at the bar to have made any reputation.
In the list of the public officers of Virginia in the year 1680,2 appear the names of thirty-three lawyers, all of that profession in the colony at that time. They appeared in the list because they were regarded and treated as public officers by virtue of their profession. Except the name of William Fitzhugh ("ffitzhugh "), none of the names of lawyers of any note appear in the list. The names also of Benjamin Needler, Thomas Reeve and "Mr. Frances" appear in the manuscripts . as having been counsel in some of the cases reported by Barradall. None of these names appear in the list of 1680 and, except that of Needler, I have been able to find no other mention of them anywhere.
Benjamin Needler was at one time clerk of the council. His death occurred in 1740-41 and at a session of the General Court held April 23, 1741, John Blair was sworn as clerk in his stead.
'Sterling, Clark and John Palmer were admitted to the bar in 1740, and for the last named Barradall certified. Virginia Magazine. Vol. XVII, 266. Clark was probably the son of Rev. James Clark of Ware Parish, Gloucester County. He was at one time the clerk of the County Court of Brunswick County. Virginia Magazine. Vol. VIII, 60.
*Virginia Magazine. Vol. I, 252.
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At the same session, Edmund Pendleton and John Wayles petitioned for licenses to practise as attorneys in the County Court, and these applications were referred to the attorney-general or to Mr. Francis.1 Edmund Pendleton was a distinguished lawyer of a little later period, and the first president of the Virginia Supreme Court of Appeals.2
John Wayles of " The Forest," Charles City County, was born in Lancaster, England, in 1715. He was. King's attorney for the county in 1756, and was a prominent lawyer and acquired a large estate. He died in 1771. His daughter Martha married, first, Balthurst Skelton, and secondly, Thomas Jefferson.3
John Blair, who was appointed to succeed Benjamin Needler as clerk of the council, was a nephew of Com- missary James Blair. It was his son John Blair, born in Williamsburg in 1732, and educated at the Temple, London, who became a prominent lawyer of the pre- ¿ revolutionary period, and took an active part in the events of 1776-1783. He was judge of the Court of Appeals of Virginia and of the Chancery Court, and in 1789 was appointed by Washington a judge of the Supreme Court of the United States.
Among the lawyers of note who were boys or young men during the active professional lives of Randolph and Barradall, and were the well-known lawyers of the generation next to theirs, were Robert Carter Nicholas, 1715-1780; Edmund Pendleton 1721-1830; George Wythe, the Chancellor, 1725-1806; Patrick Henry,
'Virginia Magazine. Vol. XV, 12.
'He was one of the truly great men of his time, was president of the Conven- tion of 1726, defeating Patrick Henry for that position; wrote the opinion in the church case which came to naught by his death; and was the first president of the Court of Appeals. Jefferson said of him, that he was the wisest man he ever knew.
3Virginia Magazine. Vol. XV, 12. She was a childless widow of twenty-two years, and married Jefferson, January 1, 1772. She was very beautiful and at her father's death became very rich. She died September 6, 1782, aged thirty-four' leaving two children,. Martha and Mary
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1736-1799; Peyton Randolph, 1721-1775, and John Randolph, 1727-1784. The two last were sons of Sir John Randolph and were lawyers of ability. Both were conspicuous in the affairs of the colony, and Peyton Randolph in the events which led up to the Revolution. He presided over the Virginia Conven- tion of August 1, 1774, and was the first president of the Continental Congress. He died, however, on October 22, 1775, very early in the beginning of the Revolution.
John Randolph, being the attorney-general of Vir- ginia and the adviser of Governor Dunmore, regarded himself as in honor bound to the British side. He therefore at the beginning of the Revolution went to England, and died there in 1784. His body was brought back and buried in the chapel of William and Mary College. He was the last colonial attorney- general of Virginia and his distinguished son, Edmund I. Randolph, was the first attorney-general of Vir- ginia under the new and republican constitution.1
All the lawyers thus far mentioned were from the eastern and old part of Virginia. But few had settled beyond the mountains, and there is only one of any distinction who was at the bar at a time near enough to the period under consideration to call for mention here. That one was Gabriel Jones, a character so striking as not to have needed the rivalry of con- temporaries to make him a very conspicuous personage. He was born near Williamsburg, May 17, 1724, was carried to England while an infant, educated there at the Blue Coat School, and studied law with Mr. John Houghton, a Solicitor in Chancery in Middlesex, and died in 1806. He returned to America before he was nineteen years of age, went to the Shenandoah
1He died in Clarke County, Virginia, September 13, 1813.
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Valley of Virginia to live, was made King's Attorney of Frederick County at the age of nineteen, and of Augusta County at the age of twenty-one. He was many times a member of the House of Burgesses from both Augusta and Frederick Counties, being of those who adjourned to the Raleigh Tavern in 1775; was a member of the Continental Congress, and appointed judge of the General Court as it was reorganized after the Revolution, but declined to serve. He was also a member of the Virginia Convention of 1788.
A graphic description is given of Mr. Jones by Hugh Blair Grigsby,1 who represents him as remarkable for his ability in his profession, his success in amassing a great fortune, and his high standard of right. His great weakness was his combustible nature, and many anecdotes are told of his exhibitions of uncontrollable temper. But he was, withal, a man of great benevo- lence, and the accounts of his charities have come out in curious ways, for he was a man who never let his right hand write down anything for his left hand to find out. Mr. Grigsby says of him: "He had no con- cealments, in public or in private. He was never worse than he appeared to be. In the relations of private life he was punctual, liberal and honorable. The man never lived who doubted his integrity."2
What tools these lawyers used in their work is an interesting subject of inquiry. This chapter, although already prolonged beyond expectation, would not be complete without some account of them. Naturally, the object of their greatest and first need
1Virginia Historical Collections. Vol. X. Virginia Convention. Vol. II, 16 See also sketches of Gabriel Jones, his portrait and coat of arms, West Virginia Magazine, April, 1902, page 19, and Annals of Augusta County, Virginia. Jos. A Waddel, 31, 166, and Supplement, 1888, page 392.
'Godfrey Pole of Northampton County, was conspicuous among the successful country lawyers. Virginia Magazine. Vol. XVII, 147.
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was ready access to the statute laws of the land. The colonial lawyers were always badly off in this respect. Up to 1684, the Acts of the General Assembly existed only in manuscript, and the public only had access to the single copy which was sent to each clerk's office.1 The officers of the government, of course, had copies, and the lawyers generally were provided with them, but these perishable and inconveniently handled manuscripts were most unsatisfactory methods of consulting the law, for which the lawyers in active practice had almost daily need.
Between 1684 and 1687,2 however, there was printed in London a collection of the acts from 1661-62 up to that period. Its title was, "A Complete Collection of the Laws of Virginia," which was printed in large letters across the tops of every two pages of the book. At the commencement of the acts for each particular session the sentence constituting the title was ex- tended by the words (run down the page) "at a General Assembly held at James City 23 March 1666 " or whatever the particular date was.3 A man named Purvis4 was the author, or rather the editor of the collection, and deserved great credit for such an enterprise. But, withal, the work was very defec- tive. The acts are not printed in the order of their passage, but instead, some attempt is made to
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'Hening. Vols. I and VI.
"The publication gave no date of its issue.
3In I, Hening, 123, is printed from a manuscript, what is entitled " The first Laws made by the Assembly in Virginia, Anno MDCXXIII." The manuscript bears this inscription in the handwriting of Mr. Jefferson: " This was found among the manuscript of Sir John Randolph, and by the Honorable Peyton Randolph, Esq., his son, was given to Thomas Jefferson."
"In the copy which I examined, the name " Pervis " (Purvis was the proper spelling) is written at the top of the title page, indicating, as was true, that this was the name by which the book should be called. On the right hand margin of the title page, in ink so pale that a magnifying glass has to be used to decypher it. in the handwriting of Mr. Jefferson and over his initial " Th. J." is written: " This book was given to me by John Page of Rosewell, the grandfather of Mathew Page of Rosewell."
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classify them under titles of different subjects, as " Church," "Courts," etc .; but this is very inade- quately done. Nor, except the years, are the dates of the acts given at all, although the date of the begin- ning of each session is given. There were many errors in the copy examined, which had been corrected with a pen, but at the back of the book there was a fairly good index and a set of forms called " Precedents." Henning says1 that this collection was "so grossly inaccurate, that but little use will be made of it in the present edition.2 On comparing it with the manuscripts embracing the same period, and which are of undoubted authority and accuracy, it has been discovered that not only entire sentences, but whole acts are omitted, besides innumerable typographical errors, which totally vary the sense."
Still, this first effort at printed codification must have been received as a boon to the actless lawyer, and those lawyers showed their appreciation of it by the constant use they made of it, discarding its elabor- ate title and calling it and citing it only as " Purvis," or " Purv," as if that was a pet name for it.
There came later from London a quite well printed and bound copy of the " Laws of Virginia " from 1662- 1715, and one as of the date of June 20, 1720,3 by Col. William Beverly entitled "Beverly's Abridgment," containing the acts from 1642-1720.
One edition of " Mercer's Abridgment " came out in 1737, with a "continuation " in 1739 and a second edition in 1758. The first edition contained the acts from 1661-1736, but they were printed with no regard to the order of their passage. This edition had what
IVol. I. Preface, v.
"Of the Statutes at Large.
3A rare instance of the date of the publication being given.
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were called " Tables " -1, 2 and 3; they are really fairly good indexes, and there is at the end of the book a set of forms called " Precedents."
When the acts came to be printed regularly as they were passed, which was commenced at Williamsburg about 1733, they came out in different sizes. One copy, which I measured roughly, I found to be ten by seven inches, but there were differences of an inch or more in the lengths, the size aimed at in all being apparently folio. The acts of each session have been bound, long after they were printed, and are attrac- tively slim in their proportions.
The text books and reports used are gathered princi- pally from their citation in the manuscript reports, from inventories of the estates of the owners, and from letters of some of the lawyers discussing legal propositions.
Coke on Littleton was, of course, a favorite, for it was then too early for Blackstone. Dalton on the " Office of Sheriff " is cited, and there is still preserved, in good condition, in the office of a Williamsburg lawyer, a folio volume which must have been a great aid to the lawyers of 1737 and subsequently. It bears the unusually brief title, " A Treatise of Equity."1
The inventory of the estate of a lawyer,2 of a time enough later than that of Randolph and Barradall to have in it a copy of Blackstone's Commentaries, but which also contains the earlier books, names Bacon's Abridgment, Peere Williams' Report, Coke's3 Reports, Strange's Reports, Grounds of Law, Jacob's Law Dictionary and Vattel's Law of Nations. Among
1" In the Savoy. Printed by E. and R. Natt and R. Gooling (assigns of Edward Sayer, Esq.) for D. Browne at the Black Swan without Temple Bar, and I. Shuck- lough, at the Sun, next the Inner Temple in Fleet street. MDCCXXXVII."
'Virginia Magazine. Vol. II, 225.
3Sometimes spelled "Cook."
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the reports cited are Dyer's, Hobart's, Salkeld's and Keliway's. There arequotations, too, from Bracton, Britton and Fleta, from the writings of Noy and Winch, and the British statutes are, of course, frequently referred to.1
Compared with the present day, reports of decided cases and text books were very few in number, and consequently there were no great digests such as now are essential to the use of the reports. But as there was so little case reading there was a propor- tionably greater resort to primary principles. The arguments of counsel, therefore, make up the greater part of the cases reported in these manuscripts, and they are generally too long to make their reading agreeable to the greater number of the later day lawyers. But those both of Barradall and Randolph show ability and learning and as much research as the material available afforded.
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