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 19
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The arguments, therefore, which make up the chief part of the cases reported in this book, show a degree of learning in these respects seldom equaled by the lawyers of the present day. As the courts gave no written opinions, except occasional very brief notes, they never referred to the principles and rules of practice so elaborately argued before them. Being not learned in these matters, although they were generally highly educated men, after reading one of the elaborate arguments of Barradall or Randolph one can but wonder what impressions these learned dissertations upon technical rules of pleading and evidence made upon those councilors; whether they did not as much weary in listening to them as the writer confesses he did in reading them, and if, after all, they carried any clearer ideas to the minds of King Carter, Commissary Blair, Councilors Ludwell, Byrd, Harri- son, etc., than if they had been addressed to them in the language of the Mandarins.
These two courts, the County and the General Court,
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were the great tribunals of the country, and the latter, after the General Assembly lost its judicial functions, was the highest and last resort in the colony, and subject only to appeals to England. Besides these courts there were three others of limited jurisdiction, the Hustings Court of Williamsburg, the Court of Oyer and Terminer, and the Vice Admiralty Court. To complete the narrative these need brief notice.
In anticipation of the establishment of Hustings Courts the General Assembly, by an act passed in October, 1705,1 declared that whenever any such court should be established in any of the burghs, to be con- stituted under that act, no inhabitant of such burghs should thereafter " be held to plead or go to court for any summons or law business without the burgh, except in local actions, when the cause shall arise without the jurisdiction of such town, or when the thing in demand shall exceed thirty pounds sterling, or in the generall court or to bear evidence in some court as the laws of this country direct neither shall they be forced to serve on a jury in any court without such burgh, except in the generall court."2
The letter patent from the King which bore the date of July 28, 1722,3 which incorporated the city,4 con- stituted the "maior," recorder and aldermen, of whom there were six, and their successors, or any four or more of them-" of which the said maior, recorder, or the last preceding maior shall be one "-a Court of Hustings to sit once a month in the city. This court was given jurisdiction in cases of trespass and ejectment, writs of dower, and all other actions
'III, Hening, 407.
'The title of this act was, "An act for establishing ports and towns," and this provision for a court was one of the encouragements offered for the promotion of such towns.
3IV, Hening, 139.
‘Williamsburg.
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" personal and mixt " arising within the city. It could give judgment and award execution according to the laws and statutes of England and the colony, for a maximum sum of twenty pounds current money, or four thousand pounds of tobacco.
The right to grant licenses to, and to control ordi- naries and public houses, was given to this court, with jurisdiction also to hear and determine all com- plaints of masters, servants and apprentices in the city, in the same manner as the courts of York and James City Counties, the lines of which counties ran through the middle of the town.
Both these counties were obliged1 to pay the ex- penses of the sergeant of the city, the clerk of the Court of Hustings, and the constable of the city, in connection with the arrest and maintenance of prisoners in the parts of the town which lay in their counties respectively. When by the act of August, 1736,2 a Court of Hustings was also established for the burgh of Norfolk, and its jurisdiction defined, the jurisdiction of the Williamsburg Court was by the same act ex- tended so as to be equal to that of any County Court, and the power and authority given to justices of the peace were conferred upon the mayor, recorder and aldermen of the city of Williamsburg.
Courts of Oyer and Terminer, on special commission, had been held in Virginia before the permanent estab- lishment of this court, and Fiske3 gives an interesting account of the case of one Talbot brought by force from Maryland for trial in Virginia on account of a murder committed in the first named colony. A dis- pute as to the jurisdiction naturally arose, and being
'IV, Hening. 447. 'Id., 541.
3Old Virginia and Her Neighbors. Vol. II,158.
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referred to England it was there ordered that a special commission of Oyer and Terminer be sent to Virginia for this trial. But while the decision tarried, Talbot's wife and two of his trusty followers availed themselves of the delay and of the cover of a dark winter night to get him out of jail and take him back to Maryland. " For the sake of appearances," says Mr. Fiske, " his friends in the Maryland Council thought it necessary to proclaim the hue and cry after him, and there is a local tradition that he was for a while obliged to hide in a cave, where a couple of his trained hawks kept him alive by fetching him game,- canvasback ducks, perhaps, and terrapin - from the river." But he was brought back to Virginia, tried there before the General Court acting under a special commission of Oyer and Terminer, and sentenced to death.1 His sentence, however, was commuted to five years banishment.
Special commissions, however, did not satisfactorily meet the evil of long delays in the trials of accused persons, so when Spotswood became the Lieutenant Governor in 1710, Queen Anne instructed him to require courts of Oyer and Terminer to be held twice a year, for which she got much praise from the colonists. To this order of the Queen, however, the council, somewhat jealous of its prerogative, at first objected, but afterwards approved, and the time set for the first meeting of the court was in December, 1710. Here trouble arose again between the Governor and council, because the former claimed the right to appoint persons other than the councilors to hold the court. But, though objecting, they sat with the outside appointees, so long as there were no criminals to try.2
1Justice in Colonial Virginia, 58.
*This account is taken, for the most part, from Justice in Colonial Virginia, page 59 et seq.
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The Governor, however, referred the dispute to the Lords of Trade, who, in 1717, sustained the Governor, and thereupon he named for the court five councilors and four other prominent men, but the councilors were not satisfied with this and refused to sit in the court, eight of them agreeing that they would not act so long as any outsider was appointed to sit with them. Of course Commissary Blair, as usual, led in the fight, ready as he always was for either battle or boycott. Col. William Byrd sent in the remonstrance to the Lords Commissioners of Trade and Plantations with an able argument, to which Spotswood replied, and the matter having grown so large as to involve a constitutional question, the attorney-general of England was called in to give his opinion. He was of the opinion that the Governor had the right to appoint the outsiders, but suggested that he be restrained from convening the court except on extraordinary emergencies. And so the Lords of Trade ordered. But nobody was satisfied with this, and the General Assembly now took a hand and sent in a petition in favor of the councilors being the sole judges of the court. This the Lords of Trade refused to heed and the council gave up the fight.1
But if the court was really needed, as seemed to be thought, the result might have been had, because the Governor was now excused from convening it twice a year, and directed only to do so on extraordinary emergencies. But Spotswood was a good politician, and had had hot water enough with the commissary. So while maintaining his right to appoint the judges of the Oyer and Terminer Court, he really only ap- pointed members of the council to be judges and his successors did the same. This satisfied the councilors and they soon agreed that the court should be held
'As to all of this see Spotswood's Letters. Vol. I, 8, 24. Vol. II, 54.
------
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regularly twice a year, they holding it. So whatever the Governor got of form, the commissary and his friends, as usual, got the substance.
After that the court was held in June and December of each year, and criminals were tried then by juries of twelve men from the county where the crime had been committed, the places of those successfully challenged or who failed to appear, being filled from the bystanders. But later,1 because summoning a jury from the county where the crime was committed proved burdensome and expensive, and for other reasons given in detail in the act, it was enacted that in capital cases, where, as was the case of most felonious and other capital offenses, the accused had formerly been convicted of crime in Great Britain or Ireland and sentenced to transportation, such a person was required to be tried by a jury of the bystanders in the General Court, or Court of Oyer and Terminer.
In answer to an enquiry from England addressed to Governor Spotswood2 as to whether he was putting foreigners into the courts of judicature in the colony, contrary to the Act of Parliament, he replies in the negative as to each of the courts respectively, saying of the Court of Vice Admiralty that the judges of this court "are Gentlemen of English Birth and bred up at the Inns of Chancery, in the profession of the Law." This court which the governors continued constantly, determined matters relating to the Acts of Trade, and questions con- cerning the right to goods taken from "Pyrates, "3 of whom there seemed to be a good many in Spotswood's time.4
1Act of October, 1748. V. Hening, 545.
"Spotswood's Letters. Vol. II, 192.
$Id., Vol. II, 324.
4Spotswood forced Holloway to resign the office of judge of the Vice Admiralty Court under charges that he had taken fees from a pirate for professional services while he was the judge of the court that was to try the pirate. (Spotswood's Letters. Vol. II, 353.) See Sir John Randolph's sketches of Holloway. Ante Chapter VIII, page 180.
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The first order for the erection of this court was in 1690, which, not being complied with, was renewed to Governor Andros in 1697, and the order was then complied with, the jurisdiction embracing Virginia and North Carolina. The judge at first was appointed by the Governor, but later by the High Court of Admiralty of Great Britain; the other officers, the advocate, the marshal and the register, were chosen by the Governor.1
As constituted in 1736, the court was composed of not less than seven judges, one of whom was always. either the Governor or the Lieutenant Governor, and merchants, planters and officers of ships were equally eligible to seats in this court.2 The sessions of the court, however, were not regular, but were called only when there were cases to try.
Fiske says3 that from 1650 to about 1720 was the golden age of pirates, and that buccaneering was mighty and defiant along the Atlantic coast when the first English settlements south of Virginia were made.4 Their favorite haunts were along the coast of North Carolina, about the year 1700, and this condition called especially for the establishment of the Court of Vice Admiralty. So bad had the crime of piracy become, that the severe English methods of trying and punishing it were adopted by the colonial courts; and special courts of Oyer and Terminer, with the judge of the Court of Vice Admiralty, and such other persons as the Governor should see fit to appoint to sit with him, were frequently held.5
1Justice in Colonial Virginia, 72. But the Governor was in the habit of filling vacancies and then reporting the appointments to the King, by whom they seem usually to have been confirmed in office.
$Justice in Colonial Virginia, 72.
3Old Virginia and Her Neighbors. Vol. II, 338.
4Id., 361.
"Justice in Colonial Virginia, 73.
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Thus the number and importance of the courts grew as the necessity and demand for them increased, but it is to be remarked that in none of them except in the case of one of the judges of the Vice Admiralty Court, was a man learned in the law allowed member- ship.
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CHAPTER X THE REPORTERS AND THEIR REPORTS
Of the two reporters, Sir John Randolph was the elder. He was born in 1693, and died on the 6th day of March, 1737, while Edward Barradall was born in 1704, and died on the 19th day of June, 1743.1 Thus Randolph was forty-four years of age at the time of his death, and Barradall only thirty-nine. They died young, neither having more than reached his prime, or lived beyond the border of that period which should have been the time of his highest intellectual develop- ment and greatest usefulness, that meadowland which lies between the hills of youth and age. But this was characteristic of the public men of the colonial time. Those who read the history of that period are struck with the fact that very few of the men who figured conspicuously in that day, lived beyond middle age; most of them dying some years short of it. To this, in some measure, is to be attributed that other fact, before referred to, the frequent repetition of marriages, when there were so many comparatively young widows, and, as was natural in a new and sparsely settled country, a decided majority of males. The period of widow- or widower-hood too, was cor- respondingly brief, and the maidens married at a far earlier age than is customary now.
Sir John Randolph was the sixth of nine children of William Randolph of Turkey Island, an estate on the James River about twenty miles below Richmond, where John Randolph2 was born in 1693. Of the
'The time is reckoned according to the present style.
"John Randolph of Roanoke, of the same stock, but of a later day, must not be confounded with this John Randolph.
18
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nine children seven were sons and two daughters,- William, Thomas, Isham, Richard, Elizabeth, Mary, Edward, John, and Henry. The father, William, was the immigrant or colonist, coming to Virginia in 1674 from Morton Morrell, in Warwickshire, England, where he was born in 1650. He married Mary Isham, 1 the daughter of Henry Isham of Bermuda Hundred, and died at Turkey Island, April 15, 1711.
William Randolph came of an old family in England2 but his happiest claim to good breeding is more of à prospective character, in that he enjoys the singular felicity of having been the common ancestor of Thomas Jefferson,3 John Marshall,4 and Robert E. Lee.5
It can hardly be doubted that had William Randolph of Turkey Island known that in the generations to come his stock would give to his country three such sons, he would have thought he had in that prospect a far juster cause for pride than he felt because of his long line of English ancestry.
But William Randolph's claim to merit does not rest merely upon heredity, retrospective or prospective. He was himself a man of high character and good sense, and deservedly exercised much influence in public matters in the colony, holding several important offices. He had large wealth, much of which was in- vested in real estate, and his house at Turkey Island was a handsome mansion, built, it is said, of brick
1See Virginia Magazine. Vol. IV, 123. " Of the Antient & Eminent family of Northamptonshire." Virginia Magazine. Vol. III, 262.
"Cyclopedia of American Biography, 174. Virginia Magazine. Vol. III, 262. 3Jane, daughter of Isham, son of William of Turkey Island, married Peter Jefferson, father of Thomas Jefferson.
"Thomas Marshall of Oak Hill, father of John, married Mary Isham Randolph, daughter of Rev. James Keith and Mary Isham Randolph, who was the daughter of Thomas Randolph of Tuckahoe, son of William of Turkey Island.
5Elizabeth, daughter of William Randolph of Turkey Island (and sister of Sir John), married Richard Bland. Their daughter Mary married Henry Lee. Henry, son of this marriage, married Lucy Grymes, of whom see ante page 211. Henry (Lighthouse Harry), son of Henry Lee and Lucy Grymes Lee, married Anne Hill Carter, and Robert E. Lee was a son of this marriage.
:
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which he brought from England on his own ship.1 His sixth son, John, after receiving an academic education at William and Mary College, studied law at Gray's Inn and at the Temple in London. After completing his legal studies he returned to Virginia and practised law at Williar sburg, although he had estates in Gloucester, where he was at one time county lieutenant. His home at Williamsburg, which he called Tazewell Hall, was at the south end of England street, and only a small part of it still stands;2 but his pew in Bruton Church, of which he was a vestryman in 1727, is still marked as No. 25,3 the second from the front at the right-hand side of the main aisle as you enter.
Randolph married Susanna Beverly,4 whose hand- some portrait hangs by his in the chapel of William and Mary College. Their children were John, who was attorney-general of Virginia (the last by royal appoint- ment), Peyton, the first president of Congress, Beverly, and Mary, who married Philip Grymes of Brandon, Middlesex.5
He was attorney-general for the colony, member of the House of Burgesses as a representative for William and Mary College, speaker of the House of Burgesses, treasurer of the colony and the first recorder of the new borough of Norfolk.
In 1730, while visiting England on behalf of William and Mary College, he was knighted, a tribute, it was said, to his diplomatic talent shown on that visit, as well as to his high standing at the bar in Virginia. He had prepared some notes with a view to giving an historical account of the constitution and govern-
1See a full account of the official positions held by him, and of his English ancestry, in Virginia Magazine. Vol. III, 261 et seq.
' Williamsburg, 253.
3Bruton Parish Church Restored, 134.
^Daughter of Hon. Peter Beverly.
Virginia Magazine. Vol. III, 268.
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ment of Virginia, but his many public and private engagements prevented his carrying out his purpose. Such notes as he had prepared were used by his nephew William Stith, in the preparation of his history of Virginia.1
That he was an able lawyer comes down as the testi- mony of all of his contemporaries, and is fully sustained by a review of his arguments in the many important cases he was engaged in, as they are set forth in his own reports and those of his professional rival, Edward Barradall, printed in this book.
He died March 9, 1737, at the early age of forty-four, and on March 11th there appeared in the Virginia Gazette2 an obituary notice of him which, besides its attractive quaintness, gives so full a sketch of him that I insert it here:
" On Monday last, the Hon. Sir John Randolph, Knt., Speaker of the House of Burgesses, Treasurer of this colony, and Representative of William and Mary College, was interred in the chapel of the said college. He was (according to his own directions) carried from his House to the Place of Interment, by six honest, industrious, poor House-keepers of Bruton Parrish, who are to have Twenty Pounds divided among them: and the Rev. Mr. Dawson, one of the Professors of that College, pronounced a Funeral Oration in Latin. His Corps was attended by a very numerous assembly of Gentlemen and others, who paid the last Honours to him, with great Solemnity, Decency and respect. He was in the 44th year of his Age.
"He was a Gentleman of one of the best Families in this Country. Altho what Livy says of the Romans,
'Virginia Magazine. Vol. III, 265.
"The Virginia Gazette, March 11, 1736-37. Virginia Magazine, Vol. I, 265.
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soon after the Foundation of their City, be very applic- able to us here (in novo populo, ubi omnis repertina nobilitas fit) yet his family was of no mean Figure in England before it was transplanted hither. Sir Thomas Randolph was of a Collateral Branch, which had the Honour, in several important Embassies, to serve Q Elizabeth, one of the wisest Princes that ever sat on an English Throne, very nice and difficult, and happy, even to a Proverb, in the choice of her ministers.
"Among these Sir Thomas made no inconsiderable Figure, and is acknowledged to have been a Man of great Parts and Ability and every Way equal to the Emploiments which he bore. Mr. Thomas Randolph, the poet, was great Uncle to Sir John. An immature Death put a stop to his rising Genius and Fame; but he had gained such a reputation among the wits of his age, that he was exceedingly lamented; and Ben Johnson always expressed his Love and Esteem for him, calling him by no other Title, but that of Son. The family were high Loyalists in the Civil wars, and being entirely broken and dispersed, Sir John's father resolved (as many other Cavileers did) to take his Fortune in this part of the World.
"By his mother's side he was related to the Ishams of Northamptonshire an ancient and eminent Family of that county.
"Sir John discovered, from his earliest Childhood, a great Propensity to Letters. To improve which, he was first put under the Care of a Protestant Clergyman, who came over among the French Refugees. But after- wards he received a fuller and more complete Educa- tion in William and Mary College, for which Place (with a Gratitude usual to Persons who make a proper use of the Advantages to be reached in such Seminaries) he always expressed the greatest Love and Respect,
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not only in words, but by doing real and substantial Services. He finished his Studies, in the Law, in Gray's Inn, and the Temple, and having put on his Barrister's Gown, returned to his Native Country; where from his very first appearance at the Bar, he was ranked among the Practitioners of the First Figure and Dis- tinction.
"His Parts were bright and strong, his learning ex- tensive and useful. If he was liable to any censure in this Respect, it was for too great a Luxuriancy and Abundance; and what Quinctilian says of Ovid, may with great Propriety, be applied to him: Quantam vir ille præstare potuarit, si ingenio suo temperare quam indulgere moluisset.
"In the several Relations of a Husband, a Father, a Friend, he was a most extraordinary Example; being a Kind and affectionate Husband without Fondness or Ostentation; a tender and indulgent Parent, with- out Weakness or Folly; a sincere and hearty Friend, without Profession or Flatery. Sincerity indeed, ran through the whole Course of his Life with an even, an uninterrupted current; and added no small Beauty and Lustre to his Character, both in Private and Publick.
"As he received a noble Income, for Services in his Profession and Employments, so he, in some Measure, made a Return, by a most generous, open and elegant Table. But the Plenty, Conduct, and Hospitality which appeared there, reflect an equal Praise on himself and his Lady.
"Altho he was an excellent Father of a Family, and careful enough in his own private concerns, yet he was ever more attentive to what regarded the Interests of the Publick. His Sufficiency and Integrity, his strict Justice and Impartiality in the Discharge of
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his Offices, are above Commendation, and beyond all reasonable Contradiction. Many of us may deplore a private Friend; but what I think all ought to lament is the loss of a Publick Friend; an Assertor of the Just Rights and natural Liberties of Mankind; an enemy to Oppression; a Supporter to the Distressed; and a protector of the Poor and indigent, whose cause he willingly undertook, and whose Fees he constantly remitted, when he thought the Paiment of them would be grievous to themselves or Families. In short, he always pursued the Public Good, as far as his judg- ment would carry him; which, as it was not infallible, so it may, without Disparagement to any, be placed among the best that have ever been concerned in the Administration of the Affairs of this Colony.
"The following Particular may perhaps be thought trifling. However, I cannot help observing that all these accomplishments received an additional Grace and Ornament from his Person, which was of the finest Turn imaginable. He had to an eminent Degree that ingenuo totius corporis pulchritudo & quidam senatorius decor which Pliny mentions, and which is somewhere not unhappily translated 'The Air of a Man of Quality.' For there was something very Great and Noble in his Presence and Deportment, which at first Sight bespoke, and highly became, that Dignity and Eminence, which his Merit had obtained him in this Country."
But as if to prove that neither measure of eulogy, nor the resources of the Latin tongue had yet been exhausted in singing the praises of Sir John, the theme was carried some stages further by the erection to him in the chapel of William and Mary College of a tablet, which remained unimpaired by time or accident until the fire of 1859, which destroyed all of the college
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