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 18
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The system died with the justices, and its resurrec- tion, even if desirable under any system of popular election, is made impossible where that element of Virginia voters imposed upon the state by the man- dates of the Fifteenth Amendment of the Federal Con- stitution, can take an influential part.
It is not much to be wondered that some, animated by the memory of such an institution and its effect upon the people under earlier existing conditions, should dream of and even advocate the restoration of the County Court as it once existed. But the thing itself, as it was, could never be again, without its then environment. That condition can no more be replaced than the vanished hours of yesterday can be restored, or
'At one time every court-house was required by law to have around it a certain large space, covered with grass and shaded by trees.
*Virginia State Bar Association R. Vol. IV, 147.
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the dead revived. The County Court system, as it was, can live only as a happy memory, in honor of which it must ever delight the children of Virginia to erect such monuments as now exist in the classic addresses from which I have quoted.
The chief colonial court, however, was the General Court, for it had all the original jurisdiction in civil cases that belonged to the County Court; more than that, jurisdiction in criminal matters; and was given, besides, appellate jurisdiction from the decisions of the County Court; and, indeed, after that right was taken from the General Assembly, it was the only Court of Appeals under the Colonial system1. And like the County Court, it, too, had no lawyers on its bench.2
We have already seen that the first governmental agency in the colony was the council, and that this body had also judicial functions.3 Out of this, after governors also were provided for, grew the Quarter Court, composed of the Governor and council, and the name of which was changed to " General Court " after it ceased to hold quarterly sessions.4
The act of the General Assembly which changed the name, fixed also the times for the sessions of the court, March 20th, if not Saturday or Sunday, and if so the Monday following, and September and November 20th, subject to the same exceptions. The March term was to continue eighteen days, not counting Sundays, and the September and November term twelve days each. By the same act the order of pro- cedure was prescribed and forms given for the manner of opening the court, for commanding silence by the
'Not meaning, of course, to include the right of appeal to England, from the General Court itself. Ante page 64.
'This was all changed after the Revolution.
3Ante, Chapter IV.
‘II, Hening, 58.
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crier, for summoning suitors to appear, and for calling respectively the plaintiff and defendant.1 But all this was long after the beginning of this important court, which for thirty years before this time had been called the Quarter Court,2 as the name had, from the commencement, been given to the four general sessions of the London Company.3
At the session of the General Assembly which began on April 16, 1684,4 the terms of the court were reduced to two, to commence April 15 and October 15 in each year, unless those days should happen to fall on Sunday, in which event the session was to begin on the day fol- lowing. There was a time, however, after the expiration of the first or oligarchical council, when the Governor alone exercised judicial functions, and the exact date at which the Governor and council first sat as a court seems not to be definitely fixed,5 for there was also a time when they sat at different times as a Court of Justice and as a Council of State.6 The place of session, we have seen, was at first at Jamestown, after that at Williamsburg during the remainder of the colonial period, and after that the newly con- stituted court held its sessions at Richmond.
The number of members of the General Court varied, at first thirteen, and then as many as nineteen, and at one time nine, but in 1671 the number was reduced to sixteen, and in 1680 to fifteen. And by the act of 17057 it was provided that the court should " consist
'II, Hening, 59.
'I, Hening, 174, 187.
3Address of F. H. McGuire. Virginia State Bar Association R. Vol. VIII, 197
^III, Hening, 289. The length of the sessions had by former acts been ex- tended to a maximum of twenty days, but this limit was not strictly regarded by the court. Justice in Colonial Virginia, 36.
5Justice in Colonial Virginia, 33. 6Id.
III, Hening, 288. Address of F. H. McGuire. Virginia State Bar Associa- tion R. Vol VIII, 199.
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of her Magisty's governor, or commander in chief, and the council for the time being, any five of them to be a quorum."
During the times of the cases reported by Randolph and Barradall the number of councilors, so far as they are there stated, sitting at the hearings varied from seven to eleven, the average number being about eight. The councilors constituting the court in 17141 were Robert Carter,2 James Blair,3 Philip Ludwell,4 John Smith, John Lewis,5 William Byrd,6 William Cocke,7
`Virginia Magazine. Vol. II, 2.
?Son of the second son of Col. John Carter, and from his extensive landed possessions, and somewhat dogmatic disposition, was known as "King Carter " (Virginia Magazine. Vol. IV, 364). Being the president of the council he became, on the death of Governor Drysdale, on July 22, 1726, the acting Governor, and so continued until between August 17th and October, 1727, when Sir Wm. Gooch was made Governor. (Spotswood's Letters. Vol. II, 45.) He was the father of Col. Robert Carter of " Nomini," who himself became a councilor, and of whom, and of his family, we have had attractive pictures from the diary of Philip Vickers Fithian. (Ante Chapter X, page 80.) John Carter, the eldest son of "King Carter," married the daughter of a lady who had had six husbands. Apropos of the disposition of people in colonial times to marry frequently and at short inter- vals, it is noted by one of the commentators that it was not an unusual thing for the new husband to submit for probate the will of his predecessor, so freshly cooked were the funeral baked meats.
3He was the famous commissary, and held his place as councilor by virtue of his office of Deputy Bishop.
'He was the son of that Col. Philip Ludwell (all councilors were colonels, holding that rank as ex-officio commanders of the militia) who figured so con- spicuously in public affairs in connection with Governor Berkeley, and who after- wards married his pretty widow. But this Philip Ludwell's mother was the first wife, who had herself been twice a widow before she married Col. Philip Ludwell. This councilor of 1714 was born on February 4, 1672, and died January 11, 1726-27, and has appeared already in this narrative in connection with the advowson quarrel between Governor Francis Nicholson and the Vestry of Bruton Parish. (Ante Chapter V, page 93.)
"He was of " Warner Hall " Gloucester County, was born in 1669 and died in 1725. He married Elizabeth Warner, by whom he acquired the estate so named. Virginia Magazine. Vol. IV, 367.
6The second of the name, of Westover, and was the owner of a library of three thousand six hundred and twenty-five volumes of books, and was a man of much literary culture. He differed with Governor Spotswood on the subject of collecting the public revenues, and the Governor wrote lengthy " observations " in reply, and in turn preferred charges against Col. Byrd who was the auditor of the colony. (Spotswood's Letters. Vol. II, 176 et seq.) Their relations seem, how- ever, to have remained friendly, as appears from the visit of Col. Byrd to the Spots- wood family at Germania, of which he wrote such an interesting account. (Ante Chapter V, page 103 ) Col. Byrd was born at Westover, March 16, 1674, and died there August 26, 1744. As to the quarrel between Col. Byrd and Governor Spctswood see the introduction to the Writings of Col. William Byrd-Bassett.
"He was doctor and secretary of the colony, as well as a councilor. He died suddenly October 22, 1720, of apoplexy, while on the bench of the General Court
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Nathaniel Harrison,1 Mathew Page2 and Robert Por- teus.3 The councilors sitting from time to time in the cases reported by Randolph and Barradall, so far as their names appear, as they only do in cases where the court was divided in opinion, were Thomas Lee,4 John Tayloe,5 Philip Lightfoot,6 John Custis,7 Cole Diggs, 8 (Spotswood's Letters. Vol. II, 345.) His elaborate epitaph is on a tablet in Bruton Church, Williamsburg. ("Bruton Church," 89.) Some part of his family history is given in a note to pages 8, 9, Vol. II, Spotswood's Letters, where it is also mentioned that his widow married "Col. John Holloway, an eminent lawyer of Williamsburg."
1He was also auditor of the colony and died about 1737. He seems to have been a brother of the Benjamin Harrison who was the father of the Benjamin who was one of the signers of the Declaration of Independence, and among whose descendants have been two presidents of the United States.
"The three last named of the councilors in the list of 1714, were all appointed at the same time. (Spotswood's Letters. Vol. II, 54.) Mann Page was a son of Mathew, and grandson of John Page of Middlesex, England, who was the " immi- grant." He was born in 1691, and died January 24, 1730; was the builder of " Rosewell," and his second wife was Judith, daughter of " King Carter," whom he married in 1718. Governor John Page was among the issue of this marriage. (Spotswood's Letters. Vol. II, 54. Virginia Magazine. Vol. IV, 365.)
3He was a native of Gloucester County, but went to England and died there. In Ripon Cathedral, on the wall of the south aisle of the choir, is an inscription which recites that his remains are buried near by: tells of his public services in Virginia, that he removed to England and resided first at York and then at Ripon, where he died, August 8, 1758, aged seventy-nine years. He is said to have been the father of the learned Porteus, Bishop of London, and whose niece, Lucy Grymes, was the grandmother of General Robert E. Lee. (Spotswood's Letters. Vol. II, 54.) While these three last named members of the council were judges of the General Court, John Holloway was judge of the Vice Admiralty Court, and John Clayton, afterwards attorney-general, and at whose death Edward Barradall succeeded to that office, was advocate.
"He was the third son of Richard Lee the " immigrant," and was the builder of Stratford, the birthplace of Gen. Robert E. Lee; was for many years president of the council, and just before his death in 1750 was appointed Royal Governor of Virginia. He was the father of Richard Henry Lee and Francis Lightfoot Lee, whose mother was Harriet, daughter of Col. Philip Ludwell of Green Spring (Berke- ley's old place), near Williamsburg.
5Of "Mt. Airy," married the daughter of David Guyn, and his daughter, Ann Corbin, married Mann Page, who was the son of Mann and Judith (Carter) Page. She was his second wife and the mother of Mann Page of " Mannsfield," who was a member of the Continental Congress. (Virginia Magazine. Vol. V, 417.)
6Of " Teadington " Middlesex County; son of Philip Lightfoot the "immi- grant," and married Alice, daughter of Henry Corbin.
"Son of John Custis of " Arlington," an estate on the eastern shore of Vir- ginia. He moved to Williamsburg and married the daughter of Col. Daniel Parke, and was the father of the first husband of Mrs. George Washington. (Spotswood's Letters. Vol. I, 80.) His father was appointed a member of the council in 1704, and died in 1713. (Spotswood's Letters. Vol. II, 58.)
8Son of Edward Diggs who had been president of the council and acting Governor in 1655-56. Cole Diggs was appointed to the council in 1724. (Spotswood's Letters. Vol. I, 63.) His daughter married Nathaniel Harrison, who was also a councilor. He became president of the council, and his son Edward also filled the same office. Col. William Byrd wrote a flattering tribute to him. (Spotswood's Letters. Vol. II, 304.)
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William Robinson,1 Robert Carter,2 John Grymes3 William Byrd,4 James Blair,5 William Randolph,6 and William Dandridge.7
The councilors after the time of the London Com- pany, were appointed by the King and were chosen for their intelligence and standing in the community, 8 and vacancies occuring in their number are said by Mr. Chitwood9 to have been usually filled in the follow- ing manner: "The Governor would select such men as he deemed suitable for the office and would send
1He is said to have been sheriff of Richmond County in 1708, and County Lieutenant in 1715. (Virginia Magazine. Vol. IV, 359.) He married Agatha Beverly, February 17, 1737. (Virginia Magazine. Vol. IV, 198.)
"He was son of Robert (" King ") Carter and president of the council and acting Governor. (Virginia Magazine. Vol. III, 355.) He was the father of Robert Carter of "Nomini Hall," of whom much has been said in connection with the diary of Fithian. He (Robert of " Nomini ") also became a councilor in 1758, and after the Revolution moved to Baltimore, and died there March 4, 1804. (Vir- ginia Magazine. Vol. IX, 358.) See a sketch of his family, Virginia Magazine. Vol. VI, 88.
.3Of " Brandon" Middlesex; was also receiver-general, and married a daughter of Philip Ludwell.
"He has been noticed in the list of councilors of 1714, and being one of the few men in public life, in colonial times, who reached a moderately old age, he was for many years a member of the General Court.
5He was the commissary, and lived until 1743.
6Eldest son of William Randolph of Turkey Island, and brother of Sir John Randolph, the writer of the reports. He was also the treasurer of the colony in 1737, the councilors never being diffident about holding two or more offices at the same time.
Brother of John Dandridge, the father of Mrs. Washington. He was also one of the commissioners, with Col. William Byrd and Richard Fitzwilliams, who in 1728 finally determined the eastern portion of the boundary line between Virginia and North Carolina.
These are all the judges mentioned in the Barradall and Randolph reports as being members of the General Court, and as sitting in the cases reported in this book. None of them were lawyers, but all of them were men of education and character, and they sustained the high standing of the court, perhaps better adapted to the conditions of that time than a bench of learned lawyers would have been. Still it seems strange that the great amount of legal learning and purely technical arguments that appear in the speeches of counsel engaged in the trial of these cases, should have been so persistently addressed to such a body of men, or that they should, with uncomplaining patience, have listened to much that was said which could have conveyed no more ideas to them than if it had been spoken in an unknown tongue.
Col. William Byrd, though never admitted to the bar, and who was quite caustic in his comments upon lawyers generally, studied law during his long stay in Eng- land. Many of the councilors had in their libraries some law books, but to them their superficial acquirements in the science of the law could only have been the little learning which is a dangerous thing.
8Life of Patrick Henry. Vol. I, 35.
·Justice in Colonial Virginia, 38.
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in their names, together with an account of their qualifications, to the intermediate board; when the list recommended had received the sanction of this board, it was passed on to the King, whose formal ap- proval was necessary to make the appointment legal. Councilors were not chosen for any definite period, but were commissioned whenever a new Governor was sent to the colony, or a new King came to the throne. The old councilors, however, were usually continued in office by the new commissions, and in practice, therefore, it resulted that the judges of the General Court held office for life." To prevent the delay, however, which would necessarily result from this red tape system, it was the practice, when- ever vacancies occurred, to send in the names of persons to fill them, and at the same time for the governors to appoint them temporarily to the posi- tion. These appointments, when confirmed by the King would become permanent. The Governor had also the right to suspend councilors for just cause, but had to report to England the reasons for doing so, with proof of his charges.1
This power in the Governor's hands seems not, as it well might have done, to have given him despotic control over the council. Indeed, as we have seen, especially in the contests between Commissary Blair and several of the governors, the Governor had more reason to fear the councilors than they him, and this condition continued up to the time of the Revolution being a most valuable factor in the cause of independence.2
But during the commonwealth, or interregnum period, as we have seen,3 governors and councilors
'Justice in Colonial Virginia, 39.
*Writings of William Byrd, LIII.
3Ante Chapter IV, page 69.
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were elected by the House of Burgesses. At first the councilors received no pay for their services, but in 16401 a certain exemption from taxes and dues was allowed.
By the act of March 31, 1658,2 a former allowance, the date of which is not given, of two hundred pounds for " accommodation at quarter courts and Assemblyes " was rescinded; but later salaries were allowed, and in 1755 " the service of the councilors were rewarded with more than twelve hundred pounds a year,"3 and with other emoluments, such as buying at a low price all the quit rents due the King, and, if that could be called an " emolument," they usually commanded the militia of their respective counties, with the rank of colonel.4
The Quarter Courts in their early days seem in their proceedings to have followed the instructions given by King James to his first adventurers,5 which were that the judicial proceedings " shall be made and done summarily, and verbally without writing, until it comes to the judgment or sentence, and yet, neverthe- less, our will and pleasure is that every judgment and sentence hereafter to be given in any of the causes aforesaid, or in any other of the said several presidents and councells, or in the greater number of them, within their several limits and precincts, shall be briefly and summarily registered into a book, to be kept for that purpose, together with the cause for which the said judgment or sentence was given; and that the said judgment and sentence so registered and written shall be subscribed with the hands or names of the
'I, Hening, 228, 445. 'Id., 498.
3Justice in Colonial Virginia, 44. "Id. ĐI, Hening, 71.
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said president and councel, or such of them as gave the judgment or sentence."
But after many years trial of this informal mode of procedure it was, in June, 1642,1 declared by the General Assembly that " for want of due forms not before sett downe, for issuing of writs and returns thereof for the proceedings of the quarter Courts of the colloney, in case of defalts of Sheriffs and non- appearance of plts and defts, which occasioned much trouble to the government, and great charge of inhabi- tants of the collony," quite strict requirements were exacted as to the issuing and return of writs, their forms, the time to appear for appeals from the Monthly to the Quarter Courts, etc. These provisions affecting the forms of procedure were also changed and generally improved from time to time,2 until, as we have seen, in 1661-62 the courts were required to be conducted with much ceremony.3
By the same act the answer or plea to a declaration was required to be filed in writing; the judgment, if for the plaintiff, to be entered on the declaration, or if for the defendant, on the answer, and the evidence to be filed together with the other papers, and carefully preserved by the clerk.
By a further act of the same session the number of sessions for each day was fixed, the court was re- quired to sit from eight o'clock to eleven in the fore- noon, and from one to three in the afternoon, and to avoid errors in the entering of orders by the clerk it was required that "all orders of the day be by the Clerk drawne up against next morning, and then read in open court (in presence of the plaintiff
'I, Hening, 270.
'Act of 1657-58. I, Hening, 461
'The form of opening the court - "Oyes, Oyes, Oyes, silence is commanded," etc., as at present used, was first required by the act of 1661-62. II, Hening, 59.
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or defendant if they will be present) where rule will be given by the court for amendment of errors, if any be, before they be entered upon record, and the plaintiff or defendant if they have any new matter of plea, shall then have liberty to plead it in arrest of judgment. And the orders thus publickly read and confirmed shall be signed by the secretary which shall remaine upon file in his office for the full justification of the Clerke who is to enter them in the books of records."
This revision, or, as it is called, "the body of the law now digested into one body,"1 covers eighty-nine pages of the statutes at large, and containing as it did many new provisions and rules of procedure, and the collection of many scattered acts into one fairly compact code, must have been of very great value to the lawyers of that time and of the succeed- ing years, and have contributed greatly to the order and regularity of the court proceedings. And these rules of procedure, thus reduced to a fairly well ordered system of practice, continued sub- stantially in force during the whole life of the court in the colonial period.
The destruction by fire on April 3, 1865, at the time of the Confederate evacuation of Richmond, of the Virginia General Courthouse with all its valuable contents, was an irreparable loss to lovers of anti- quarian research. Fortunately the indefatigable indus- try of Mr. Conway Robinson in having, previously to the fire, extracted from the book marked "No. I, 1639- 1642," a number of the entries in the order book of the court between those dates, affords us an opportunity of understanding the character of business conducted by the council at that period of its existence, and the style and form in which the records of its proceedings
1II, Hening, 147
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were made.1 But these proceedings were of the council before it attained its separate and distinct function of a court, and, interesting as they are, they are much more of an executive than of a judicial character.
The jurisdiction of the court was original and appel- late, at common law and in chancery, civil and criminal; and trials were had before it with and without juries, although the right of trial by jury was given by the statute, when demanded. The penalties im- posed by the court in criminal cases were very much the same as those inflicted by the County Courts, of which we have already said something.
Of the general character of the decisions of this court, composed as it was only of laymen, this comment by Mr. Chitwood2 seems to be a very just description: " While the General Court doubtless tried to conform its decisions to the laws of England, yet it was im- possible to fit the judicial business of the colony into exactly the same mold into which that of the mother country had been cast. A certain amount of elasticity had to be given to the laws of England before they could be adapted to the differing conditions in Virginia. Besides, a legal education was not a requisite qualifi- cation for membership in the council, and so cases must sometimes have arisen in which the judges did not know how to apply the common law. Then, too, during the greater part of the seventeenth century, the legal profession maintained with difficulty its existence in the face of the opposition which it en- countered from the assembly, and therefore, the judges for most of those times were without legal advice from professional attorneys as to the proper interpretation
'These are printed on pages 361-368, Vol. V, and on pages 277-283, Vol. XI, Virginia Magazine. Other extracts from the proceedings of this council (1626-1628, 1641-1682) are to be found in Vols. IV and IX of the Virginia Magazine.
2. Justice in Colonial Virginia, 51.
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of laws and precedents. The Virginia statutes did not, of course, cover all the offenses of which the court took cognizance, consequently, and especially in the early years, it had to rely mainly on its own originality in rendering decisions."
But during the early part of the eighteenth century very different conditions prevailed. Most of the lawyers who practised in the first half of that century had been educated in England, were taught in the Temple and at Gray's Inn, and even when (as some of them did) they only studied in the offices of lawyers in the country of England, they were taught the common law and the principles of equity, and were especially well grounded in the rules of practice and of special pleading.
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