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 20
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except the brick walls, and destroyed also the tablet. Of this tablet the Virginia Gazette, on April 20, 1739, about two years after Sir John Randolph's death, says: "A beautiful Monument of curious Work- manship, in Marble, was lately erected in the Chapel of the College of William and Mary, to the memory of Sir John Randolph1, who was interred there, and which has the following inscription upon it." Then follows the inscription.
In 1903 a new tablet was erected (in place of the one destroyed in 1859) with much ceremony and with a notable gathering of distinguished people, and in- cluding many of the descendants of Sir John Ran- dolph.2 The original inscription was renewed upon the tablet of 1859 and is as follows: -
Hoc juxta Marmor S.E. JOHANNES RANDOLPH, Eques. Hujus Collegii dulce ornamentum alumnus; Insigne praesidium gubernator, Grande columen senator, Gulielmum patrem generosum, Mariam ex Ishamorum stirpe In agro Northamptoniensi matrem, Praeclaris dotibus honestavit, Filius natu sextus, Literis humanioribus Artibusque ingenuis fideliter instructus; (Illi quippe fuerat tum eruditionis, Tum doctrinae sitis nunquam explenda) Hospitium Graiense concessit, Quo in domicilio Studiis unice deditus, Statim inter legum peritos excelluit, Togamque induit; Causis validissimus agendis, In Patriam Quam semper habuit clarissimam reversus, Causidici, Senatus primum clerici, deinde prolocutoris, Thesaurarii, Legati ad Anglos semel atque iterum missi, Glocestriae demum curiae judicis primarii, Vices arduas honestasque sustinuit Perite, graviter, integre; Quibus in muniis, Vix parem habuit, Superiorem certe neminem.
'Virginia Magazine. Vol. III, 267.
*William and Mary Quarterly. Vol. XII, 67.
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Hos omnes quos optime meruit honores, Cum ingenua totius corporis pulchritudo, Et quidam senatorius decor, Tum eximium ingenii acumen Egregie illustrarunt. At æquitas summi juris expers, Clientum fidele omnium Pauperiorum sine mercede patrocinium Hospitium sine luxu splendidum, Veritas sine fuco, Sine fastu charitas, Ceteris animi virtutibus Facile praeluxerunt. Tandem Laboribus vigiliis que fractus, Morboque lentissimo confectus, Cum sibi satis, sed amicis, sed Reip: parum vixisset, Susannam, Petri Beverley Armigeri Filiam natu minimam, Conjugem delectissimam, (Ex qua tres filios filiam que unicam susceperat) Sui magno languentem desiderio Reliquit Sexto Non: Mar: Anno Dom: 1736-7 Ætat: 44.
The original Tablet was destroyed by the fire which consumed the college building on February 8, 1859. Restored in 1903 by Sir John Randolph's great, great, great grand-daughter and her children, and children's children.
From page 68, Vol. XII, of the William and Mary Quarterly, I take what is there declared to be " a free translation of the inscription:"
" Near this marble lie the remains of Sir John Ran- dolph."
" As an alumnus of the college he was one of its bright- est ornaments. As a member of the Board of Visitors he was a noble champion of its rights. And as a member of the Council of State he was a perfect tower of strength.
"He was the sixth son of William Randolph, Gentle- man, and of Mary Isham, of Northamptonshire, in England, upon whom his brilliant talents shed much honor.
"He early exhibited an insatiable eagerness for learn- ing and acquired a thorough knowledge of the arts and sciences.
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"He then attended Gray's Inn, in London, where he was an earnest student of legal lore, and from the very start excelled in his studies.
"After graduating as barrister at law, he returned to his dear native country of Virginia, where he almost at once attained the first position at the bar.
"He filled successively the offices of Clerk of the Coun- cil of Virginia, Speaker of the House of Burgesses, Treasurer of the Colony, agent for the Colony at the Court of the Mother Country, and presiding magistrate of the Court of Gloucester County, Virginia.
"In these offices he was distinguished as a hard and conscientious worker, and had few equals and nosuperior in the way he discharged his duties.
"He not only deserved his honors, but lent dignity to them, as well by his handsome person as by the stateliness of his bearing and brilliant powers of mind.
"He was especially distinguished for many high qualities, for his learning in the law, which was ex- traordinary, for his unbounded generosity to his indigent clients, his simple, but elegant hospitality, his truthfulness without a suspicion of deceit, and his kindliness unaffected by the slightest assumption.
"At length incessant labor, to the great sorrow of his friends, proved too much for his health, and after a lingering sickness he died on the 6th of March 1737, aged forty-four years.
"By his wife, Susanna, the youngest daughter of Hon. Peter Beverly, of Gloucester County, he had three sons and one daughter."
The prominence of Sir John Randolph's family, its large connections and extensive influence in the colony, as well as the distinction attained by Sir John in his own short life, have caused to be preserved these particulars of him, so that the task of thus presenting
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this sketch has been but the easy one of a copyist. Not so easy nor near so interesting is the duty of pre- senting to the reader some idea of the reports which he wrote out, and the publication of which at this time is the occasion of this personal introduction of Sir John Randolph.
The cases, the record of which is preserved, with evidence or indicia sufficient for a reasonable assurance of their authenticity, are forty in number, and with the exception of a few isolated words and about two full pages more, which in the manuscript had become illegible, and with also a few scattered words, about the interpretation of which there is a doubt, are correctly copied and printed in this work. A glance at them shows that they conform to the old style of English reports, and are very different from those with the convenient use of which the members of the bar of this generation are familiar. Dyer's, Hobart's and others of the old reports were the precedents for these manuscript reporters, and, like them, these contain no synopses, but only the titles of the cases at their heads. As the General Court delivered no written opinions, and generally gave no reasons at all for their conclusions, there was nothing of a case to be reported except the statement of it, and the arguments of counsel. The reports of the cases are therefore chiefly the briefs of counsel, but even here there was a limit. In the cases reported by Ran- dolph he gives his own arguments in full, and only occasionally a statement of the points made by his adversary. So in Barradall's manuscript he gives his own arguments very fully, but is a little more liberal to his adversary than Sir John was.
Although Randolph was eleven years older than Barradall, and died six years before him, they were
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pitted against each other in most of the cases which they reported respectively. But as, except in a very few instances, they did not report the same cases, we get from the manuscripts in each case, as a rule, only the argument of the reporter. Both were evidently men of ability and learning. Ran- dolph's style, however, is much to be preferred. There is in his arguments not the same manifestation, or perhaps ostentation, of learning, but a simpler, stronger and clearer presentation from reason and fairness, and by illustration. At the same time, if there was any chance to trip his adversary by resort to technical objection, it was availed of with equal avidity by both.
It is hard to read these arguments of often intricate and abstruse points of law and rules of practice, ad- dressed to a body of country gentlemen, educated in everything except in the art of special pleading, and understand how they could patiently listen to them or in any wise profit by them. And yet they did listen, and sometimes decided cases upon purely technical questions. And the records show that they had opinions on these subjects, for the court was frequently divided on them.
In the reports of Randolph many of the cases are either actions of ejectment or bills in chancery calling for the construction of wills or deeds re- lating to land, and there are some actions of trespass reported, involving also questions of owner- ship of real estate. In many instances the case turns upon the character of the estate, whether the instrument (deed or will) created an entail or a fee simple title.
There are a few actions for slander in which the court had to determine, what was much more difficult
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then than now, whether the words spoken or written were actionable at common law.
A number of cases relate to the ownership of or right to the service of slaves, generally arising in actions of detinue. In many of these cases seemingly inextricable difficulties arose over the repeated (often at amazingly short intervals) marriages of widows, often to widowers.
As the property of the deceased husband frequently came by devise to his widow, sometimes absolutely and sometimes for life, and her ownership, derived from a previous husband, passed by her subsequent marriages to a subsequent husband, repeated several times, with their several intermittent rights of property, and often accompanied by some disposition of it, or its seizure under execution or other liability for their debts, and as sometimes happened, the original devise of the negroes was for life only, and there came increase of them, sometimes between the dates of the original will and the death of the testator, and sometimes dur- ing one or more of the repeated marriages, it can readily be understood what complications arose and why the practice of the law in those colonial times was quite a profitable business, at least during the eighteenth century, when there were large estates to be affected.
Sometimes these marriages, especially when there were sets of children already existing on each side, and more came with each repetition, brought about conditions as intricate as a picture puzzle. A few examples will suffice.
In Gadden vs. Morris, Randolph manuscript 188, the plaintiff's father died intestate, leaving a small estate consisting in part of three negroes, a man and his wife and child, in all appraised at fifty pounds, and
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was indebted at the time of his death. The widow qualified as executrix, and according to the custom of the day, very soon married,-this time to a man named Stannup. A creditor of Gadden thereupon sued and obtained judgment against the bride and groom for the late husband's debt, and levied exe- cution upon the negro woman and child. Stan- nup paid the judgment and took the two negroes, thinking that he thereby acquired a right to them. Later he made up an account for his debt, interest and trouble, for an amount more than nine pounds in excess of the appraised value of the three negroes. The woman had more children, in all amounting to seven, and then Stannup died, disposing of the negroes by his will, and making his widow his executrix. Thereupon, in due course, the widow, now such for the second time, married a man named Morris. Some of the negroes were retained by Morris and his wife, and some of them were given to Stannup's daughter, who had married a man named Allen.
The bill in chancery states all this, and also avers a fraudulent combination between the original creditor of Gaddin and Stannup, the second husband, to vest the property in the slaves in Stannup, and both Morris and Allen are sought to be held liable for the value of the slaves. Randolph was for the plaintiff, and his argument is worth the reading, to show the character of the questions that this court of country gentlemen had to hear argued and to decide.
The case of Meekins vs. Burwell, Randolph manu- script 126, was an action of ejectment upon a lease, and the plea was, "not guilty," with a special verdict, which was very often resorted to in these colonial cases. The verdict was that Meekins, seized in fee of certain lands, died leaving four children,-three sons
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and a daughter. To each son he gave a parcel of land and a legacy besides, and to the daughter a legacy. But there is this clause in the will " If it shall happen that any of my said children die without issue, then that share shall equally be divided among those that survive. But if all my children die without issue, then my lands shall fall to my heirs in England." At their father's death the three sons entered into their posses- sions. One of them, William by name, died in a few years, without issue. Thomas, apparently after Wil- liam's death, conveyed his part of the estate to Hum- phrey Browning, but William Brown, in the right of the other son, Roger, entered upon the land conveyed to Browning. Thereupon Browning sued Brown in eject- ment, and recovered,-the General Court holding that Thomas had a fee in William's part. Then Browning " enfeoffs Lewis Burwell." Roger, the third son, by several deeds of lease and release, also conveyed his part of the real estate to Lewis Burwell. Lewis Bur- well died and devised these lands to his son James,
from whom they descended to Baron Burwell. Then Thomas Meekins, the oldest of the three sons, con- veyed a part of his land to Robert Martin in fee. Martin conveyed to Alexander Walker, from whom the lands descended to another Walker, and to the wife of one Holdeross, who was a Walker. Thomas Meekins died leaving issue. Roger Meekins died with- out issue, and the daughter, Mary, who had married one Vadin, died leaving one son.
Now upon the special verdict in this action of eject- ment the rights of the parties litigant relate back to the will of the older Meekins, and Randolph thus states the question:
"In the first part of the will of Thomas Meekins the three sons took an estate in fee simple in the
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several Parcels of Land Devised to them which shall not be restrained by an Estate Tail, unless the Testa- tors meaning in the subsequent words appear to be so. If they be dark and doubtful the Fee Simple Estate stands uncontrovertible. Polf, 426. So the question will be whether the latter clause be so clear as to show the Testators Intent That instead of a fee simple they shou'd have an Estate Tail in the several parts or what his Interest was."
Then follow four pages of argument, with a de- cision against Randolph, who seems to have at last prevailed upon a technical exception to the declara- tion.
The case of Martin vs. Parrish, Randolph No. 145, was an action of detinue, the question being as to who was entitled to the increase of a certain negro woman, the subject being greatly com- plicated by three marriages of the widow in rapid succession.
In the case of Swiney vs. Dandridge, Randolph manuscript 216, it appears that one Roccow left quite an estate to his widow, and one hundred pounds to his young godson. But the widow married the boy, who died before he was twenty-one years of age, and there- fore, claiming the legacy in her right as his widow, she sued the first husband's estate for it, but the record says she was denied her claim "by a great majority of the Court."
These also are among the purely technical questions upon which the court had to decide cases submitted to them. Whether in an action of trespass ownership had to be distinctly averred or might be implied, as when the plaintiff averring ownership of the land, that averment necessarily implied ownership of a house on the land. Whether a declaration in assumpsit was
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faulty for not averring that the defendant "assumed." If upon the plea of a former judgment the record was a good defense where it said, "The judgment of the Court in this case is that the Plffs suit is dismissed," instead of saying, "The Plff takes nothing by his bill;" the com- ment of the reporter being, "So we see how the people of the Country suffer by the Ignorance of the Clarke." In another case, if an averment "being under 16 years of age " was as good as " was under 16 years of age." And in one of the cases reported by Barradall there is a very thorough and complete discussion of the question of where the action of trover and where detinue would lie; it being insisted in the case, that a declaration, filed in the action of detinue for a chest of medicines, was not good because it did not specify each particular medicine, and that the verdict which used the words " did detain," should have said " doth detain," and was therefore faulty.
Besides these mere technical questions the court was called on to determine some points, which at the time must have been very novel, such as the effect of the statute of limitations, in force when pleaded but repealed before trial; the right to the in- crease of slaves held under a conditional estate that failed; and whether special words in an act of the General Assembly should restrain subsequent general words.
The tone of all the arguments is moderate and courteous, but once Randolph does say of his adversary Hopkins' argument, that it "was very Trifling and incoherent," and there is a note to a case, written out with a degree of frankness only equalled by the diary of Samuel Pepys, in which Randolph's client got the worst of it, wherein at the end of the report he says: " But the Lawyers on both sides the next morning
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met in the Secretary's office to direct the Clerk in drawing the Decree according to the Opinion above ment'd. But the Lawyers for the Deft telling the Clerk the moiety of the 1100 acres was to be divided by Parmels will between his children, and that the Plts were entitled to the other moiety under Arthur Proner, and that the Deft R. B. to one half of the 1100 acres and the Plts the other half. So the decree was drawn, and being for my clients advantage I did not gainsay it."
As before observed, the prominence of the family of Sir John Randolph during his life and ever since, the many official positions held by them, their wealth, and their large and distinguished family connections, made it natural that their family history, and especially what related to so important a member of it as Sir John, should have been preserved. It was not hard, therefore, to find material from which to produce this sketch of him.
But it was very different with Edward Barradall. He was, it is true, "armiger,"1 and therefore of the same social set with the Randolphs, and that counted for much in those days. But his family connection was small, and as he died without children and neither of his two brothers nor his two sisters appear to have married, the family name perished with him. It was, indeed, quite difficult to ascertain his parentage. The mention by Bishop Meade of Edward Barradale (sic) and Edward Barradale, Jr.,2 among the vestrymen of Bruton Parish between 1674 and 1769, and the further mention in " Bruton Church " of a Mrs. Barradall as having held five slaves, baptized in 1754, seemed to
'Entitled to armorial bearings, or, better translated, " Gentleman."
*Old Churches, Ministers, etc. Vol. 1, 178. In "Bruton Church," page 119, two " Edward Barradall, Jr.'s," are mentioned.
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make it probable that there were two Edward Barra- dalls, and that among these above mentioned were the father and mother of the reporter. It is still considered most probable that this Mrs. Barradall, still living in 1754, was his mother. As his wife died a few months after his death, and they had no children, and neither of his brothers appear to have married, this Mrs. Barradall might well have been his mother, al- though in 1754 she would have been about eighty years of age. But it is very evident that his father was not named Edward, and the mention of two of the name as vestrymen by Bishop Meade is most probably a mis- take. The reason for this conclusion is found in the discovery, by Mr. W. G. Stanard,1 in the calendar of "Faculty Office Marriage Licenses," issued by the English Record Society, of an entry of the marriage license of Henry Barradall and Cathe- rine Blumfield, dated June 6, 1696. As Edward Barradall was born in 1704, and had two brothers whose names were Henry and Blumfield, the infer- ence is very strong that the Henry and Catherine who were married June 6, 1696, were his father and mother.2
In a corner of the churchyard of Bruton Church at Williamsburg, in a conspicuous place, is a very large and handsome tombstone, which Bishop Meade3 says was erected by Elizabeth and Frances, two sisters of Edward Barradall and of Henry and Blumfield Barra- dall, who are buried near by, and whose names, he says, are also cut upon the stone. I give the inscrip- tion on the tomb, with such translation as can be most intelligently made of it:
'The accomplished secretary of the Virginia Historical Society.
"Whether they ever came to America, is not known, but the presence in this country of the three sons and the two daughters make it most probable.
3Old Churches, Ministers, etc. Vol. I, 199.
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(Arms)1 H. S. E.2 EDWARDUS BARRADALL Armiger. Qui In legum studiis feliciter versatus Attorni Generalis et Admiralitatis Judicis Amplicissimus Partes merito obtinuit Fideliter obivit Collegium Gulielmi et Mariae Cum Gubernator Tum in Conventu Generali Senator Propugnavit Saram Viri Honora bilis GUIL FITZHUGH Armigeri Serenissimae Reginae Annae in Virginia a Conciliis Filiam Natu minimam Tam Mortis quam Vitae Sociam Uxorem habuit Obierunt XXXIX
Ille XIII Cal JUNII A D MDCCXLIII AE
Illa Non Oct.
XXX
Hic iuxta situs est HENRICUS BARRADALL E B supra dicti Frater Qui Obiit XVIII Cal Octob AD MDCCXXXVII Ætat XXVII BLUMFIELD BARRADALL tantum Frater3
A free, but I believe an accurate, translation of this epitaph is as follows: -
Here lies Edward Barradall, Gentleman (or, strictly translated, entitled to armorial bearings) and who being well versed in the study of the law, and of ex- cellent attainments, deservedly won the places of Attorney General and of Judge of the Vice Admiralty Court, where he served faithfully.
At one time, on behalf of the President of William
1" From a rough drawing in the possession of the editor, the arms of Barradall (tincture not given) a bend, three pheons, an annulet for difference, are impaled with Fitzhugh. Az: three chevrons braced in bars of escutcheon, or a chief of the last. William Fitzhugh, lawyer, planter, merchant and shipper, the ancestor of the well-known family of the name, was born in Bedford, England, January 9, 1651, settled in that portion of Stafford, now comprising Prince George County: died at his seat, Bedford, Virginia, in October, 1701."
$ Hic Situs Est. For this epitaph see Virginia Historical Collections. Vol. XI, 75. Bruton Church, 102.
3After this there is a space that seems once to have contained several more lines, which have been wholly obliterated by the wearing away of the stone from the action of the elements. They probably contained the date of Blumfield Barra- dall's death, and perhaps the names of the sister who erected the tomb, as men- tioned by Bishop Meade. Old Churches, etc. Vol. II, 199.
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and Mary College, he was a member of the General Assembly.
He had for his wife, his partner in life and in death, Sarah, youngest daughter of the Hon. Wm. Fitzhugh, Gentleman, a member of the Council from Virginia of her Majesty Queen Anne. They died, he on the 19th day of June, 1743, aged 39, and she on the 7th day of October, 1743, aged 30.
Near by lie the bodies of Henry Barradall, the brother of the above named Edward Barradall, who died on the 14th day of September, 1739, aged twenty- seven years, and of Blumfield Barradall, also his , brother. . . .
Of the family name, Bishop Meade says it was an ancient and most respectable one. " It is another name for one learned in the law - a name which for a long time was a terror to the young applicant for a license to practise law, and before which even a Pendleton trembled at his examination."1
Hayden's "Virginia Genealogies"2 contains the fol- lowing:
" The list of families in the colony who, in vested right, used coat armor, as attested in examples of such use on tombstones, preserved bookplates, and impres- sions of seals, is more than one hundred and fifty. The virtue of such investment by royal favor may ap- pear somewhat in the fact that the Virginia rebels, Claiborne, Bacon, Washington and Lee, were all armigers, and among others were the Amblers, ... Barradalls, ... and so on throughout the alphabet in swelling numbers and comprehensive example of ability and worth."
Where Edward Barradall was born is not known,
1Old Churches, Ministers, etc. Vol. I, page 198.
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