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 17
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1Cook's Reports, Dalton's Justice, Herne's Pleader, Swinbourne on Wills Compleat Clarke, Curson's Office of Executor, Law of Infants, Compleat Con- veyances, Noyes' Law of Tenures, and other such books, are in the inventory of the estate of Godfrey Pole. Virginia Magazine. Vol. XVII, 148.
CHAPTER IX THE COURTS
After population had spread far enough away from James City to make it inconvenient for the people to attend court there, and in order that justice might, as nearly as possible, be brought to every man's door, it was by act1 of the General Assembly provided, that courts should be "kept once a month in the corpora- tions of Charles City and Elizabeth Citty for the de- cyding of suits and controversies not exceeding the value of one hundred pounds of tobacco and for pun- ishing of petty offences."
This was the first step taken by law for the establish- ment of the Monthly Courts which were afterwards given the English name of County Courts. The peculiarity of this first organization, however, was that the judges of this court were " the Commanders of the places and such others as the governor and council shall appoint by Commission;" for the com- mander was a military personage, having high authority over the plantations, although, as there was no such thing as a separate army organization in the colony, in spite of his function of imposing penalties for such breaches of discipline as swearing and drunkenness, his duty to provide a sufficiency of powder and am- munition, to levy forces to repel the Indians, to exer- cise the men under his command, and to take an exact muster of the men, women and children on "holy dayes,"2 he had duties sufficiently of a civil nature not to incapacitate him from acting as judge of these monthly courts; yet still the form of commission
'March, 1623-24. I, Hening, 125.
'I, Hening, 126, 127, 140, 175.
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issued had quite a military phraseology, the appointee being authorized " to command and govern the several plantations and inhabitants within the same," and of the first appointments made under the act for holding the "Elizabeth Citty " Court, four of the eight persons named were captains and lieutenants, and while any three of the eight could constitute a court, it was necessary for "Capt. Thomas Purfury or Lieut. Edward Waters to be alwaies one." In the first commission1 issued for holding the court, the appointees are styled "Commissioners to hold the monthly courts," and this title they kept until by the act of February, 1631-32,2 the commissioners were given the authority " to doe and execute whatever a Justice of peace, or two or more Justices of peace, may doe."
Henceforth they are called justices of the peace, and after the name of the court was changed3 from Monthly to County Courts, and additional counties had been created and courts organized for them, and the courts had correspondingly grown in dignity and importance, it was provided,4 as seems already to have been the practice,5 that the court should consist of " eight of the most able, honest and judicious persons of the County." This number did not always so remain, varying at different times and in different counties, but usually ranged from about eight to eighteen.6
Nor did the method of choosing these justices con- tinue the same. At first appointed by the Governor and council and then for a time elected by the House of Burgesses, it was at length provided that the
'I, Hening, 132.
*Id., 169.
$Act, March, 1642-43. I, Hening, 272.
4March, 1661-62. II, Hening, 69.
"Justice in Colonial Virginia, 75.
SId., 77.
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justices of the County Courts were to be chosen by the Governor and council on the recommendation of the County Courts. This practically came to mean a self- perpetuating body, with less of democracy but much more of efficiency, and, for a court, perhaps the ideal method of perpetuating the best and most independent membership.
So this system continued in Virginia until many years after the Revolution, and until an overgrown suffrage demanded and secured the sacrifice of this wise plan of selection, to the Moloch of a licentious freedom.1 Nor in the experiment did it result that this became any more, but rather the less, what it was intended to be, a people's court.
At one time in its history it became difficult to secure the necessary number to hold the court, of which at the beginning only three were required to constitute a quorum. Various methods were tried to overcome this trouble, but without any great success. Then the earlier method adopted in Virginia, which had long prevailed in England, of appointing certain of the justices to be of the quorum, was again revived in the colony, and with it a prescribed number to constitute a full court.
The object of this was not, primarily, to secure a full attendance, although it tended to produce that result, for those chosen for the quorum took pride in their selection, and were, moreover, men with a high sense of duty; but the chief reason for this plan was to se- cure from the whole number of justices those best fitted to perform the duties of the court. So long as the court practically filled its own vacancies this same object was best accomplished, but, naturally, when all came to be elected by a miscellaneous crowd of voters
' Ante 73.
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for almost any other reason than peculiar fitness, there was not much choice between the chosen. The real wonder is that the result was not much worse than it actually became.
The County Court through most of its history was held monthly at the courthouse of the county, but after a while four of its terms were set aside for jury trials, and called quarterly terms.
The County Court was the counterpart of the quarter sessions in England,1 and through all its history, so long as it was held by justices of the peace, was the " folkmote, the General Assembly of the people of the County."2 Its jurisdiction was not simply judicial, for it had legislative, and to some extent, executive functions. It was moreover the fiscal agent of the county, and levied and directed the disbursements of the local taxes. It superintended the construction and main- tenance of roads, built and repaired bridges,3 and cared for the public buildings, the courthouses, jails, etc. It had the power of appointment of some of the minor officers, such as constables, and, at one time, of the sheriff. The justices could act as coroners, and small suits could be tried by a single justice.4
Among the numerous duties of the court was the licensing of taverns and tippling places; the auditing, and allowance of the payment of claims against the county; and even dues against the colonial government were examined by it, and its conclusions certified to the General Assembly.5
These courts had, moreover, jurisdiction for the trial of both criminal and civil cases, the latter both
'Old Virginia and Her Neighbors. Vol. II, 38.
*Address of Holmes Conrad. Virginia State Bar Association R. 1908. Vol. XXI, 328.
3Old Virginia and Her Neighbors. Vol. II, 39.
'Id. Justice in Colonial Virginia, 81.
&Id., 92.
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at law and in equity. The act of March, 1623-24, which established the monthly courts, gave them the right to decide controversies not exceeding the value of one hundred pounds of tobacco, and to punish petty offenses, but with the right of appeal to the Governor and council. Within ten years the maximum was increased to five pounds sterling, then to ten, and then to sixteen pounds sterling; and in 1642-43, by the same act which changed the name from Monthly to County Courts, the maximum of jurisdiction was put at twenty pounds sterling or two hundred pounds of tobacco. Finally there ceased to be a maximum limit, and the courts had jurisdiction of any civil cause wherein the matter involved was of a value of as much as twenty shillings.1
The Common Law procedure prevailed in the County Courts, and so of the forms of chancery pleadings, for in 16452 it was " thought fit and accordingly enacted, that all causes of what value soever between party and party shall be tryed in the countie court by verdict of a jurie, if either party shall desire it, which jurors shall be chosen of the most able men of the county who shall, of course, be empannelled by the Sheriff for that purpose; but if the defendant before the hearing of the cause shall desire releife in equity, and to be heard in way of chancery, then the pro- ceedings by way of jury at common law shall be stayed vntil the other party have answered the particulars of his petition vpon oath and the cause heard accordingly; vpon which hearing, The Commissioners shall either proceed to make a final end or decree in the said cause, or else, finding no such cause of releife in equitie as was pretended,
'III, Hening, 507.
*I, Hening, 303.
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then to remit the cause back again to be tryed by a jury as aforesaid."
But in the nature of things, such a court could not be expected to know or to decide intricate points of special pleading, or to require very much formality in proceedings in equity. And they did this neither of the pleadings nor of the orders which they entered declaring their decisions. Indeed, it came about that complaint was made of the looseness and extreme lack of formality in the court, so that, in the time of Governor Nicholson, instructions1 came from England that he was " to take care that no court of judicature be adjourned but upon good grounds, and, whereas, complaint has been made that the orders of court are entered in the absence of the magistrates, and some times pend in private at the Magistrates' house, you are to take care to prevent the said abuses, and par- ticularly that no order of any court of judicature be entered or allowed, which shall not be first read and approved by the magistrates in open court."2
The presiding justice announced the rulings and decisions of the court, which, as in the General Court, were reached by a majority vote of the justices present.3
Petit juries were selected at one time from the by- standers, and arbitrarily without a panel, but later were regularly chosen from those qualified4 and sum- moned by the sheriff. As has been noticed, the law of 1642 gave the right of trial by jury in criminal cases, and the same law required them "to keep from
'Virginia Magazine. Vol. IV, 51.
"This same Governor Nicholson finding that the justices were neglectful about attending the courts, and that this caused much inconvenient and expensive delay, by a proclamation, issued in 1711, prodded them sharply. Virginia Magazine. Vol. VIII, 193.
3Justice in Colonial Virginia, 83
"They must have possessed property of the value of fifty pounds III, Hening 176, 370.
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food and releife till they have agreed vpon their verdict."
After some vacillation in the law, the grand jury became a fixed institution and was required to attend at two of the terms of court annually.1
The criminal jurisdiction of the County Courts was, except for a short interval, limited to cases not involv- ing life or limb; and the law required all cases " that concern life or member "2 to be sent to the General Court. But this still left to the County Court the exercise of much ingenuity in the selection of punish- ments. Fines, stripes, ducking, the stocks, the pillory, lying neck and heels together at the church door, doing penance by making confession while standing on stools in the church with white sheets over them,- these and like devices made up to the courts the power denied them over life and limb.3
Over negroes and runaway and incorrigible slaves a large power was given to the County Courts, and in such cases, later confined to rape of white women, the penalty of castration could be inflicted.4
In the very early times the Governor had the right to appoint the clerks of the County Courts,5 but later6 this power was given to the County Courts themselves, provided, however, that they should not remove, "without manifest cause proved against him," any clerk holding office at the time of the act.
They had previously been appointed by the secretary of state and were regarded as his deputies, so when the appointing power was changed, their fees, which had
1Justice in Colonial Virginia, 85. English Colonies in America, 49.
'I, Hening, 398, 477.
3Justice in Colonial Virginia, 89.
^Id., 98.
5I, Hening, 305.
$Id., 448.
,
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been fixed by acts of the assembly,1 remained charged with the amounts which they had formerly been com- pelled to pay to the secretary.2 But the rule of appoint- ment was again changed and given back to the secretary, who continued to have this right, in spite of efforts to take it from him, during the rest of the colonial period.3
It was an office of much importance and very con- siderable revenue was derived from it.4 The appointees were usually men of high character and standing in the community, and "upon no official in the entire county was imposed the performance of more important functions, of whom was required the exercise of so many virtues, or who were more distinguished for the endowments of mind and heart than was the Virginia clerk, then called Clarke.'5
Nor was this characteristic of the county clerk con- fined to the very early times and only while they were appointed to the office. The reputation of the old clerks gave character to the office long after it became the sport of popular elections, and much the same class of men were chosen for many years after the new system was adopted. Once chosen they remained in office all their lives,6 and in many cases public opinion seemed to regard the place as hereditary, for it was not uncommon for a worthy son to succeed his worthy sire.
The lawyers, too, who confined their practice to the County Courts, after the period when the class of pettifoggers who had disgraced the earlier annals of
1I, Hening, 266. Changed later. Id., 464. Sheriffs' fees fixed by the same · acts.
'I, Hening, 449.
3Justice in Colonial Virginia, 114.
^Id., 114.
$Address of Judge Waller R. Staples. Virginia Bar Association, 1894. Vol. VII, 144.
"And holding the office seemed conducive to longevity. Judge W. R. Staples' address. Virginia Bar Association R. Vol. VII, 145.
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the court had ceased to be, became themselves an interesting feature in the history of the court. Most of them had never been college students, and but few of them had ever heard a law lecture. Their knowledge of the law had been obtained from reading for a year or two in the office of some old lawyer, and in seeing the practical application of their reading in the County Courts. They studied principles, men, and human nature more than cases, and their personal acquaintance was the population of the county. But yet they were ready for discussions of politics, religion, and philosophy, and their homes being as open as their offices to their clients, the necessary business having been transacted, the place for further talk became the lawyer's fireside, where all the family could take part in the discussions. The home and the office, with such absences as were required by the part often taken in public affairs, made up the lives of the County Court lawyer. 1
This sketch, from the pen of a distinguished Virginia writer,1 makes a very attractive picture of this class of practitioners:
" He learned to accept Lord Coke's dictum, 'Melior est petere fontes, quam sectari rivulos;' to look to the sources rather than to tap the streams; he fed upon the strong meat of the institutes and the com- mentaries with the great leading cases which stand now as principles; he received by absorption the tra- ditions of the profession. On these, like a healthy child, he grew strong without taking note. Thus in due time when his work came he was fully equipped. His old tutor had not only taught him law, he had taught him that the law was a science and a great, if not the greatest, science. ... He married early and for
'Thomas Nelson Page. Virginia Bar Association R. Vol. IV, 213.
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love the daughter of a gentleman, very likely the old lawyer with whom he had read law, perhaps a beauty and a belle who, with many suitors, chose the young lawyer whom older men were beginning to speak of, and younger men were already following: . . and who could cope with her father or disdainfully destroy a younger disputant. He took her to live on some poor plantation, in an old house which stood amid great oaks and hickories, with scanty furniture and a few luxuries, yet which, under their joint influence, became an old Virginia home, and a centre of hospitality and refinement. Here he lived, not merely had his being, a machine or part of a machine, but lived, and what a life it was. The body fed and kept in health; the soul free from vice and debasement, dwelling in constant intercourse with a beautiful being; in com- munion, if not with God, at least with his two chief ministers - nature, and a gracious, gentle and pure woman; the intellect nourished by association with a pure spirit, by contact with the best thoughts of ancient and modern times, and by constant and philosophic reflection. The world prospered; friends surrounded him; young children with their mother's eyes came and played about his feet, with joyous voices making his heart content. Thus he grew, his circle ever widening as the circle of our horizon widens as we climb towards Heaven. These were some of the in- fluences which created him. . . . His professional life once begun, went on. The law is an enlistment for life, and the battle is ever in array. No client who appeared with the requisite certificate of clientage was ever refused. There was no picking and choosing. The old lawyer was a sworn officer of the court, a constituent element of the great judicial system of the country. Whoever wanted legal advice, and applied to him
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for it, was entitled to and received it. From that moment the relation of counsel and client began. It was a sacred relation. His clients were his 'Clients ' in the good old original sense of the term. They were not merely persons who came into an office and bought and paid for so much professional service; they were his clients, who confided in his protection, and received it. ... Every power and every resource were devoted to his service. No time was too precious to be spent, no labor too arduous to be endured in his behalf. Body, mind and soul, his counsel had flung himself into his cause; guided by his professional instinct, spurred by his professional pride, he identified himself with his client's cause, ready to live for it, fight for it, and, if necessary, even die for it. Public opinion had nothing to do with his undertaking a case. He thought but of his profession. He would, if applied to, defend a client whom, if not applied to, he would willingly have hung. Once in a case, he never gave up; if possible he carried it on to success, or if he were de- feated he expended every intellectual resource in trying to recover; he was ready to move for new trials, to appeal, to apply for rehearings, and if at end he were still unsuccessful, he went down damning every one opposed to him, - counsel, client and bench, as a parcel of fools, who did not know the law when he put it under their very noses. No wonder that the clients regarded their counsel with such veneration."1
1It must not be supposed that this fine old class of lawyers, known specifically as the County Court Lawyers, alone practised there. Judge W. R. Staples in his address already quoted from, says: " The alert lawyers of the state attended the County Court. There the retainers were obtained, and there preparation was made for the trial of cases in the Circuit Courts; for after those Courts were established, in the progress of time, most of the important litigation was carried on in those forums. I do not hesitate to say, from all that I have seen and heard, that some of the finest displays ever made before any judicial tribunal in Virginia have been made in the County Courts. No rigid rules were enforced, or technicalities ob- served, and there were frequent opportunities afforded for the display of all the arts of the advocate, as well as the powers of the logician."
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Nor is it to be wondered that a combination of justices so selected from the best material among the people, although not learned in the law, of clerks whose ability and character gave tone and dignity to the court, and of lawyers of such zeal and unselfish devotion to the causes of their clients, made of the County Court the remarkable institution that it was. Its assemblage each month, and more especially at the quarterly sessions, when jury trials were to be had, and at the one term set apart each year for a round-up of the fiscal affairs of the county, when the whole bench of magistrates sat in council,-was the sign for the gathering of the people from every part of the county. To that day the conclusions of bargains previously begun were set to be finished; sales of land, effected between the terms, were perfected by deed and pay- ments, or much more usually by bonds secured on the land; payments of debts long past due were made, as the end of forbearance was promised to be reached on "next Court day;" horse trading was lively and interesting; public sales of land or personalty took place according to advertisement, "in front of the Court House," and the voice of the crier announced all the day, the amount of the last and highest bid. One who himself1 in his younger days saw the County Court day at its full tide, almost as it had come down from colonial times, gives this vivid de- scription of it:
" At a very early period, as far back as tradition or historical sketch carries us, County Court Day has been a day of interest to the people of Virginia. Generally it brought forth all classes and conditions of society. The farmer came to exchange his commodities for the goods of the merchant, to settle his taxes, and to
'Judge Waller R. Staples. Virginia State Bar Association R. Vol. VII, 148.
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hear discussed the current topics of the day. The rich and aristocratic planter was on hand, mingling freely with his less pretentious neighbors. There was to be seen the Jew, with his pack of cheap jewelry carried about on horse-back; and there, too, was the ubiquitous Yankee pedlar, with his clocks and showy goods spread out in gorgeous array on temporary counters in the court-yard.
"Ever present when an office was in view was the smiling and indefatigable candidate, proud and happy to grasp the hand of the bone and sinew of the land- the horny-handed sons of toil. It was a great day in most of the mountain counties for the county bully to exhibit himself to his admirers, eager for the fray which was to settle the question of county championship. I can recall many an afternoon of County Court Day when the younger members of the profession collected on the tavern porches to witness the battle of the giants, tall, athletic fellows, who stood up and beat each other on the face and on the breast with resounding blows to the great delight of the spectators. A ring was generally formed around the combatants. A screaming, shouting multitude of angry men surged to and fro, and cheered on their respective champions, who were never parted or interfered with until one of them acknowledged defeat. No foul playing was allowed, no weapons used except what God and nature had furnished. As a general rule the victor had him- self but little to boast of, as was apparent from his bloody and bruised face and his torn and tattered garments, when led forth in triumph by his followers. But the glory of the County Court was when the court-house was converted into a political arena for the contest of the party champions .... "
In spite of some of the objectionable features of the
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County Court, both in the court and on the green,1 it is not to be wondered that when in the Constitutional Convention of 1829-30 an effort was made to abolish it, it was defeated by the influence of such men as Chief Justice Marshall, Benjamin Watkins Leigh, John Randolph of Roanoke, Philip B. Barbour, Chapman Johnson, and others of their class.
But a sickening blow was given the system by the Convention of 1849, when the justices who composed the court were required to be chosen by popular elec- tion, and as Judge Waller R. Staples says,2 "it finally passed out of existence under the operation of the Constitution of 1869," for although a court by the same name continued until the Convention of 1904, yet after 1869 it ceased to be held by justices of the peace and was in every one of the hundred counties of the state presided over by a poorly paid judge, "learned in the law."
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