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 4
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Assuming that the copies from which Mr. Jefferson made his extracts were the originals, which is almost necessarily to be inferred, those now claimed to be such must answer to Mr. Jefferson's description, in order to establish their identity. The two manuscripts offered for this competition are the volumes in the possession of the Library of Congress and of the Virginia Historical Society. A manuscript spoken of by Mr. William Green as the "Myers' copy " may be either of these, but is probably not a fifth manuscript. Nothing is known of the origin of either of these manuscripts.
Mr. Green, in a note in the Virginia Historical Society copy, to the case of Smith vs. Brown, the first of the Randolph cases, and on page 114 of that copy, says: " S. C. (same case) in manuscript Virg. Rep. in Congr. Library supposed to have come from Mr. Jefferson's Library."
Mr. H. H. B. Myers, the chief bibliographer of the
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Library of Congress, makes this note about this manu- script in answer to an inquiry for information from the Library as to matter relating to Barradall. " While this book was in the possession of Thomas Jefferson, a selected few of the cases, from 1730 to 1740, were published by him, with some cases of his own re- porting."
But Mr. Jefferson's own note shows that at that time the original three volumes were in the possession of John Randolph, and only for the time in his; nor did Mr. Myers mean to say that there was any proof extant that the manuscript now in the Congressional Library was the same that Mr. Jefferson copied from.
At my examination of this manuscript I found it in the part of the Library devoted to early Virginia law books, Acts of the Colonial General Assembly, etc., and among them were some books that came from Mr. Jefferson's library, for the latter bore in one way or another the evidence of his ownership. There is, however, nothing whatever in this manuscript to indicate that it was ever owned by Mr. Jefferson. The company it happened to be in, as I found it, was of but little significance, as it had then already been adjudged to be out of place, and an order was about to be made transferring it to the manuscript depart- ment of the Library. But this manuscript bears on its face evidence of not having been that from which Mr. Jefferson made his copy. It is one continuous book in one handwriting, of the Barradall and Ran- dolph and some Hopkins cases, paged continuously from beginning to end, and with an index of all the cases (Barradall, Randolph and Hopkins) alpha- betically arranged, and otherwise without discrimina- tion. The index, also, is in the same handwriting as the text, and, so far as I could judge, the figures of the
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paging and of the index were written by the same hand.
The only apparent remains of an original Hopkins manuscript consist of four pages, fastened between the fly leaves and the back of the binding of the Con- gressional Library copy, in a wholly different hand from the rest of the text - a fragment of some case without heading or beginning or end, and, indeed, with nothing better than conjecture to determine what it is.
The Barradall cases in this manuscript commence on page 1 with the case of Corbin vs. Chew's Admr., which is also reported on page 1461 of the Robinson2 manuscript, and continue through to page 159, where, at the end of the case of Knight vs. Triplett, are these words: " Here follows an abridgment of cases re- ported by Mr. Hopkins, extracted from his note- books."3
Then follow twenty-three cases, most of them con- sisting of the name of the case and a few lines stating the subject, of which the case of Custis vs. Fitzhugh is one, and it is a fair sample of the others.4
Of these twenty-three cases six are also reported by Barradall, and as such are printed in this book from the copy of Mr. Conway Robinson presented by him to and now in the Virginia State Law Library. The last of the twenty-three cases is that of Anderson vs. Ligan, which ends on page 200 of the Congressional Library manuscript.
On page 200 of the Barradall part of this manuscript, without regard to the previous announcement on page 159 as to the abridgment from Mr. Hopkins' note-
'The same case also reported in different language on page 223
2Printed in this book.
3Which seems to indicate that the notebook was the original, so far as Mr Hopkins' reporting is concerned.
4See Jefferson's Virginia Reports, page 72.
BA Barradall case also, and on manuscript page 142 of this book.
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books, which follows that page, is the further announce- ment in large, ornamental black-letter writing: “ Here end the arguments of Edward Barradall, Esq."
Over the leaf on page 201, in similar writing, are the words: " And next comes the Reports of Sir John Randolph of cases adjudged in the General Court." These, in the original, were evidently intended for one continuous statement, being plainly so written in the Virginia Historical Society copy.
It must be borne in mind that all the cases of Barra- dall printed in this book are taken from the Robinson manuscript, and all the cases of Sir John Randolph are taken from the Virginia Historical Society manu- script. But continuing to confine our attention, for the present, to the manuscript of the Library of Congress, we observe that the first Randolph case there reported has the title of Smith vs. Brown, was decided at the October Term, 1729, of the General Court, and is on page 201 of the manuscript. This same case is also the first reported in the Virginia Historical Society manuscript, and is on page 114 of that copy, the Barradall reports ending over the leaf, on page 113.
The last case reported in the Library of Congress manuscript is Waddy vs. Sturman, and is on pages 239-241, and is the sixteenth and last of the Randolph cases in that copy.
Eight of these sixteen cases occur in the same order also in the Virginia Historical copy, but while the ninth case in order in the Library of Congress copy is the case of Marston vs. Parish, the ninth in the first named copy is Churchill vs. Blackburn, and Marston vs. Parish is the twelfth case in order in the Virginia Historical Society copy.
The remaining seven Randolph cases, in the Library
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of Congress copy, are Edmunds vs. Hughes, Tucker vs. Sweney, Powell vs. Thurmor, Thurston vs. Prat, Waughop vs. Tate, Waughn vs. Bagg, and Waddy vs. Sturman.1 All of these cases are also in the copy of the Virginia Historical Society; not in this order, but with cases intervening that are not in the Con- gressional Library copy.
As there are forty Randolph cases reported in the Virginia Historical Society manuscript and only sixteen in the Library of Congress copy, it remains that there are twenty-four Randolph cases in the former manu- script which are not in the latter.
But now applying the test for originality adopted in this examination, we find that Mr. Jefferson extracted from the manuscript of Sir John Randolph's Reports, owned by his son John Randolph, four cases, i.e., Marston vs. Parish, Edmunds vs. Hughes, Tucker vs. Sweney, and Waddy vs. Sturman. All of these are in both the Virginia Historical Society and the Library of Congress copies. Nothing, therefore, is proved by this fact. But there are twenty-six Barra- dall cases also extracted by Mr. Jefferson from the original Barradall manuscript.
An examination of the Virginia Historical Society copy of the Barradall manuscript shows that two of these cases, i.e., Anderson vs. Winston (24 Jeff.) and Spicer vs. Pope (43 Jeff.)2 are neither in the text nor in the index of that manuscript.
The case of Anderson vs. Winston is in the Library of Congress copy, but Spicer vs. Pope is not, nor are the cases of The King vs. Mcclanahan, Darby vs.
'These titles were very difficult to decipher, and different readers may well be excused for giving them different interpretations. The index, however, was a great help in spelling them out.
"Both cases are in the Green-Harvard manuscript of Barradall cases, on page 163, and in the Robinson copy, on page 216.
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Stringer, Tute vs. Freeman, or Webb vs. Elligood, of those abstracted by Mr. Jefferson, in that manu- script.1
If, therefore, the case of Anderson vs. Winston is not in the Virginia Historical Society manuscript and the other cases named are not in the Library of Congress manuscript or the Virginia Historical Society manu- script they could not have been extracted by Mr. Jefferson from either of these manuscripts, and there- fore, determined by this test, neither of them is an original, written by the hands of Barradall or Ran- dolph, respectively.
Naturally, it will be inquired why the test of hand- writing also was not applied. This was, in fact, done, although it proved difficult to find a specimen of Barradall's handwriting. Happily a friend2 knew of the existence of a letter of his, and informed the writer of it. It was found in the possession of the Virginia State Library, and the use of it for comparison kindly permitted.3
Laid beside the manuscript in the possession of the Virginia Historical Society, the similarity of the two handwritings was so great as at first to convince the three examiners present that the whole manuscript was in the handwriting of Edward Barradall. The writer's first inference was that the part that con- tained the reports of Barradall was autograph, and as he had survived Sir John Randolph six years and had appreciated the value of his reports, it was
1All are in both the Green-Harvard and the Robinson copies
2Rev. W. A. R. Goodwin, A.M., of Williamsburg, Virginia.
3It is addressed to Lord Fairfax, and, as it shows, concerns his property in the Northern Neck. Lord Fairfax answered this letter in person from "West- moreland," signing it "F". There is a further reply of the same date, with this ending: "I am, with unalterable esteem, W. F." This was probably Sir William Fairfax, who attended largely to the landed interests of Lord Fairfax. The writings of Col. Wm. Byrd, page 401, speak of Barradall as the agent of Lord Fairfax.
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inferred that he had, after Randolph's death, or possibly in his life-time, made a copy of them for his own use. But when the further test of comparison with the handwriting of Sir John Randolph was made, there came the strange discovery that their letters, although evidently genuine, were so much alike, and, therefore, the two manuscripts also, being apparently in the same handwriting, it was impossible to say whether Barradall or Randolph wrote them. Indeed, in spite of the similarity of handwriting, it is also impossible to say that either of them wrote them.
When the photographic copy of Barradall's letter was compared with the handwriting of the manuscript in the Library of Congress, the same striking similarity was observed, but a close examination discovered a few radical differences in the way of making some of the letters that is consistently practised throughout the letter and the manuscript, respectively. There was nothing, therefore, to be concluded from this test, which, indeed, is seldom absolutely reliable.
But if it be true that when Mr. Jefferson made his extracts these manuscripts were in three volumes, written at intervals of some years apart, by different men not in anywise acting together, it cannot be believed that a manuscript copy of both Barradall's and Randolph's reports, all in the same handwriting, paged throughout as if it was one volume, indexed alphabetically and without discrimination, and an- nouncing the ending of Barradall's Reports on one side of a page and commencing the Randolph reports on the other side of the same page, with only the inter- vening announcement1 at the top of the page, under the date of " October, 1729," when none of the Barradall
'In the Congressional Library manuscript two sentences are made of this announcement.
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cases were reported or even decided prior to 1733, in a continuous sentence,-" Here ends the arguments of Edward Barradall, Esq., and next comes the Re- ports of Sir John Randolph of Cases Adjudged in the General Court,"-could have been the originals; nor does the announcement on page 119 that the succeed- ing cases are abridgments from Mr. Hopkins' note- books, help the claim to being originals.
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But if neither of these manuscripts be originals, yet they -especially the Virginia Historical Society manuscript - are very old, and there are points of interest about them that warrant a closer description, and, coming from the sources that they do, it may be felt with confidence that all of the cases contained in both of them are genuine copies from the original reports.
The Virginia Historical Society manuscript at one time contained as many as 251 pages of text, that being the number of the last page, and this is immediately followed by the index, which covers two pages and a small part of a third. It is evident that the pages which are missing were lost or destroyed before the manuscript was bound.1 This is shown both by the way in which the leaves are inserted in the binding, and by the fact that some of the marginal notes of Mr. William Green are caught in the back of the book, and therefore could not have been written after the binding.
The number of the first existing page has faded beyond recognition, but on that page near the top begins the case of Giles vs. Mallacote, and this, the
"There are only thirty-seven out of one hundred and fourteen pages originally in the text remaining of the Barradall (including Mr. Hopkins' abridgments) Reports in the first part of the manuscript, but there are one hundred and seven pages of the Randolph cases, and then twenty-seven more pages of the Barradall cases.
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index shows, belongs to page 33. This is the first of the Barradall cases, the text of which is still preserved in this manuscript. Then follow four pages to page 36, after which the pages are missing on to page 41. From page 41 they continue up to and including page 56, after which there is a gap to 97. From this page to page 113 the pages are preserved, but at this point the Barradall cases end with Anderson vs. Ligan, which is on page 142 of the Robinson copy, and on page 83 of the Congressional Library copy; being, as in the Virginia Historical Society copy, the last of the Barradall cases there reported.
The Hopkins' abridgments commencing, as in the Congressional Library copy, with the case of Chew vs. McFarland, appear by the index to have begun on page 81, and been continued between that page and page 97, where appears the case of Tinson vs. Scar- brough, which was also a Barradall case.
On page 114, as already stated, is the announcement in one continuous sentence,-" Here ends the arguments of Edward Barradall, Esq., and now comes the Reports of Sir John Randolph of Cases Adjudged in the General Court,"-written in black-letter, with quite a successful attempt at ornamentation.
From page 114 to page 221 there is no missing leaf, the last case reported being McCarty vs. Fitzhugh, which, of course, is not one of the sixteen Randolph cases reported in the manuscript of the Library of Congress.
On page 221, in the handwriting of Mr. William Green, occurs this sentence " [End, as I conjecture, of Sir John Randolph's Reports, which begin page 114 ante.]"
Page 222 is blank, but on page 223 begins again a report of Barradall cases, commencing with Myhill vs.
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Myhill, which is on page 152 of the Robinson copy, and on page 12 of the Congressional Library copy.
The further reports of Barradall cases are six in number, to page 251, the last case being " Rose Exor Bagg vs. Cooke," which is reported both on pages 179 and 213 of the Robinson copy, and is on page 44 of the Congressional Library manuscript.
On page 252 commences the index, which occupies also page 253 and a small part of page 254. This index, arranged alphabetically, contains the titles of one hundred and twenty-three cases of Barra- dall, Hopkins, and Randolph, without discrimination, of which forty-two are Randolph and eighty-one are Barradall and Hopkins cases.
But because of the loss of sheets in the Barradall and Hopkins parts of the manuscript there are only seventeen of these cases in the text, and of several of these only a part remains.
Mr. William Green has industriously noted on the margin of this manuscript which of the Barradall cases, still preserved, are also in his manuscript, now owned by Harvard College, which are in the Reports of Mr. Jefferson, and all of the Barradall cases are noted as being in his copy.
On the margin of the Randolph cases he notes which of them are also in the manuscript of the Congressional Library, and of the forty-two cases only sixteen have this note, which is, as before stated, the whole number of Randolph cases there reported.
Mr. Green in noting which of these cases were re- ported by Mr. Jefferson, as to six of them, reports that they were also reported by Barradall, and are in the Harvard copy.
This copy of the Virginia Historical Society manu- script has all the appearance of a very ancient docu-
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ment. A good deal of the writing has disappeared, not apparently by the fading of the ink, but by the gradual wasting away of the paper. In many places the pages are perforated with holes from the same wasting process.
The chirography is fine, and much labor must have been spent upon the construction of the titles at the heads of the cases, and only in a single case is the title given in the plain writing in which the body of the case is recorded.
The manuscript in the Congressional Library is strikingly like that of the Virginia Historical Society; apparently the same handwriting, with the same black-letter titles, the same continuation of Barradall, Hopkins, and Randolph cases, with the announcement of the ending of the Barradall and the beginning of the Randolph cases, and the same kind of index at the end of each.
But the color of the ink in this copy is, and looks as if it was originally, lighter than that in the other copy. It is written more loosely, with greater spaces between the lines, wider margins, and, consequently, more pages for the same number of words. The abbre- viations are not the same in each copy, although the same kinds of abbreviations appear about equally in both. The order of the report of cases is different, and not all the same cases are in each copy. The Congressional Library manuscript has no marginal notes by Mr. Green, and only two by any other hand. But, as we have seen, the arrangement of the cases differs, and there are in the Congressional Library manuscript only sixteen of the Randolph cases.
So nearly wasted away are some of the pages of the Virginia Historical Society manuscript that occasion- ally the writing had become too obscure to be legible,
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and about a page and a half of the text was so per- forated with small holes that the ink marks had become obliterated on one side of the page, although plainly decipherable on the other.
Because of the total loss of many pages of this manuscript but a few of the Barradall cases (of which there were originally sixty-four as shown by their names in the index, the total number of titles indexed being one hundred and twenty-three, of which forty- two were Randolph cases) are still preserved in this manuscript.
The paging of the Congressional Library copy is continuous from 1 to 241, the first 200 pages being devoted to Barradall and Hopkins cases, and forty- one pages to Randolph's Reports.
The fragment of four pages, of what may possibly be a part of a case as originally reported by Hopkins, completes this copy of the manuscript.
This ends the description of this manuscript, and such of the history as could be discovered of these rather unique and interesting documents. More, however, will be said of the cases themselves, and of the Reporters who took the trouble to preserve them, hardly thinking when they wrote them down in the interesting little capital of the Colony, so many years ago, that they would come to light in printed form near the end of the first decade of the twentieth century.
The writer agreed with the publisher, whose zeal as a book maker, and patriotic public spirit, are re- sponsible for this production, that the Reporters and their work would be much better appreciated if they were set to the reader in the midst of their own en- vironment; if some short narrative (in somewhat lighter vein than these rather heavy and dry exposi- tions) of the times and conditions under which they
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wrote,-of the country, the people, the social life, the laws that governed them, and what led to their making; the occupations of the people, their property, and the conditions which helped its acquirement and fixed the character of its tenure and transmission; their religion and politics, their courts, and the lawyers; their legislatures and the character of their legislation; all this having for its motive an exposition of the reason for the things that happened, and that found their way into the cases decided by those courts of so long ago, and set down by able and industrious writers among a people then more than a century old, but who, to us, as we look back so far, seem as if they must have appeared to be very new and primitive, which in point of fact they did not, to the rest of the world which happened to know about them,-should precede the reported cases themselves, and serve as an introduction to them. Some of this I have attempted to do in the nine chapters which succeed this opening one, with no effort at writing a new history, or of discovering much that was not known already, nor with the wish, with subtle or profound analysis, to uncover things not exposed before, but only aspiring to a simple narrative, in which it is hoped that the reader will find something to interest him, to serve as a little sauce for the heavier dish that comes after, and of which some may desire to taste.
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CHAPTER II THE LAND
The effort to make a permanent lodgment upon the central part of the Atlantic Coast had been like that of a drowning man in rough waters trying to climb a bank. Some dire mishap, like the crumbling soil to the swimmer, seemed to befall each venture, as if, indeed, their fearful imaginings of witches hovering in the air over their heads, or of some land god or devil from the dark recesses of the wooded shore, pushed off the palefaces lest they should take hold of the land. But it was not to be wondered that, after their weary voyages across the sea, the tall red cedars that gently bent in the breeze, the wild grape vines borne down with the weight of their inviting clusters, and the deer and turkeys and other game, much of it new to them and in wonderful abundance,1 seemed to continue to beckon them on, and to be the beginning of the realization of their dreams of a land where gold was more plentiful than copper, and of cities where the street chains, the fetters of the prisoners, and even the dripping-pans of the people, were all of pure gold.
Far away to the south the white man was no stranger, and was, indeed, becoming master. The land birds which passed over the little vessels of Columbus, directing their flight to the southwest, for lack of any other guide, had brought those bold adventurers at early dawn on October 12, 1492, in sight of the naked people who lined the shore and gazed with wondering eyes at the strange creatures with great white wings, which floated on the sea.
1Cooke's History of the People of Virginia, 2
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Thus from the beginning of things the track was to the south, and those who afterwards followed their example of adventure, followed also this route: Cabot five years after Columbus, to the mainland; Cortes, in 1519, to the capital of Montezuma; Pizarro, four years earlier, to Panama on the Pacific side of the isthmus, and fifteen years later to plunder the peaceful inhabitants of Peru; Ponce de Leon, in 1512, landing at St. Augustine, in Florida; Americus Vespucius, and de Soto, were all far to the south.
On the other side, to the north, Cartier was on Labrador as early as 1534, and the next year sailed his French ships up the magnificent St. Lawrence, thinking himself still at sea and on the track of a short passage to the Indian Ocean. Cabot, too, had adven- tured as far north as the 56th or even the 58th degree of north latitude, and some say that he had even sailed up under the pole, and southward, also, as far as the present limits of Virginia.1 But with all his sailing, in those early years of 1495 to 1498, along the New England and Virginia Coast, he only looked at the land from the sea. In all this time, and for many years more, no white man's foot had pressed the land that lay behind the Atlantic Coast between Mt. Desert and the Florida Settlements, the land which now, par excellence, is called America by all the world.2
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