Justice in colonial Virginia

JUSTICE IN COLONIAL VIRGINIA

SERIES XXIII Nos. 7-8

JOHNS HOPKINS UNIVERSITY STUDIES

IN

HISTORICAL AND POLITICAL SCIENCE

(Edited by H. B. Adams, 1882-1901)

J. M. VINCENT

J. H. HOLLANDER W. W. WILLOUGHBY

Editors

JUSTICE IN COLONIAL VIRGINIA

BY

OLIVER PERRY CHITWOOD

BALTIMORE
THE JOHNS HOPKINS PRESS

PUBLISHED MONTHLY

July- August, 1905

Copyright, 1905, by

THE JOHNS HOPKINS PRESS

6c .Sorb Q$afttmort (prte0

THB FRIBDENWALD COMPANY
BALTIMORE. MD.

CONTENTS

CHAPTER PAGE

INTRODUCTION: PRELIMINARY STEPS IN THE ORGANIZA-
TION OF THE JUDICIARY ( 1607-1619) 9

Local Government of the Colony 10

Judicial Powers of the Local Council 10

Character of the Justice Administered by the Council. .

Lord De La Warr Chosen Governor 12

The Martial Laws Enforced by Dale 13

I. JUDICIAL POWERS OF THE ASSEMBLY 19

Organization of the Assembly 19

Jurisdiction of the Assembly. 19

Highest Judicial Authority 19

Power to Pass Bills of Attainder 20

Jurisdiction in Criminal Causes 21

Jurisdiction in Civil Causes 21

Method of Procedure 23

Character of the Justice Administered by the Assembly 24

Appeals to the Assembly Stopped 24

Appeals to England 28

II. THE SUPERIOR COURTS 33

The Quarter or General Court 33

The Evolution of the Quarter Court 33

Time of Meeting of the Court 34

Place of Meeting 37

Appointment of Judges of the Court 38

Number of Judges 42

Attendance of Judges at Courts 42

Compensation of Judges 43

Method of Procedure 44

udicial Powers of the Governor 44

urisdiction of the Court in Civil Causes 45

urisdiction in Chancery Causes 48

urisdiction in Criminal Causes 48

resentments by Churchwardens 49

Character of Justice Administered by the Court 50

Elements of Weakness in the Constitution of the

Court S3

Courts of Oyer and Terminer 57

Special Courts of Oyer and Terminer 58

Struggle over the Formation of the Regular Court

of Oyer and Terminer 59

Terms of the Court 66

Juries in the Oyer and Terminer Courts and the

General Court 66

Benefit of Clergy 68

The Ecclesiastical Court 70

Admiralty Courts 71

6 Contents. [404

CHAPTER PAGE

III. THE INFERIOR COURTS 74

Monthly, or County Courts 74

Monthly Courts Established 74

Personnel of the Court 75

Method of Appointing Judges 76

Number and Attendance of the Judges 77

Time and Place of Meeting of the Court 79

Jurisdiction 80

Method of Procedure 83

Juries 84

Character of Justice Administered 88 •

Extra-judicial Duties of the Court 91

Relation of the Court to other Branches of the

Government 92

Weakness and Strength of the County Court System.. 93

The County Courts an Agency for Education 94

Circuit Courts 95

Courts of Examination 96

Slave Courts 97

Courts of Hustings 101

Coroners' Courts 104

Courts-Martial 105

Courts-leet and Courts-baron 107

IV. COURT OFFICIALS AND LAWYERS 108

Sheriffs 108

Constables 113

County Clerks 114

Officers of the General Court 115

Lawyers 115

CONCLUSIONS 122

PREFACE

Considerable attention has been devoted to the study of
executive and legislative institutions in the American colo-
nies, but so far the judicial institutions have been com-
paratively neglected. It is for this reason that this inquiry
into the origin, history, and growth of the Virginia colonial
judiciary has been undertaken. The purpose of this mono-
graph is to describe the judicial machinery, give the stages
of evolution through which it has passed, and show the
character of the justice administered by the courts. Some
attention is also devoted to the part played by the judiciary
in the history of the colony. The aim is to present such
facts as will be of value to the historian rather than those
that will be of interest to the lawyer. Therefore, a detailed
account of legal procedure is not attempted.

I wish gratefully to acknowledge my obligations to Dr.
J. C. Ballagh, of Johns Hopkins University, at whose sug-
gestion this work was undertaken, and whose advice and
criticism have been of great value in its preparation. My
thanks are also due to Professors J. M. Vincent, W. W.
Willoughby, and B. C. Steiner, of Johns Hopkins Univer-
sity, and J. A. C. Chandler, of Richmond College, who have
made valuable suggestions and corrections; and to Mr. W.
G. Stanard, of the Virginia Historical Society, whose advice
was very helpful to me in the use of the historical sources
that are in the libraries of Richmond, Virginia.

JUSTICE IN COLONIAL VIRGINIA

INTRODUCTION.

PRELIMINARY STEPS IN THE ORGANIZATION OF THE JUDI-
CIARY (1607-1619).

When Virginia was settled, English institutions came with
the settlers; but these institutions had, in many cases, to
undergo changes before they were prepared to enter the
new environment into which they were carried by coloniza-
tion. They had to return to their infancy and in some in-
stances to pass through stages of growth in the new world
similar to those through which they had already gone in the
old. This second evolution was more rapid than the first;
and America in one century reached a stage in institutional
progress which it had taken Europe more than a millennium
to attain. Only those parts of the old constitution that were
suited to the new conditions survived and became a perma-
nent part of the colonial system of government. For the
first decade of its existence, Virginia's constitution, there-
fore, presented few points of similarity to its great proto-
type, and, in fact, it was not until 1619 that the likeness of
the colonial government to that of the mother country be-
came plainly discernible.

The constitutional history of Virginia begins on April 10,
1606, when King James I. granted to the Virginia Company
letters-patent for the establishment of two colonies in Amer-
ica. By this charter, the local government of the southern
colony was to be entrusted to a resident council composed of
thirteen members.1 In accordance with the instructions
given by the King to the Company, the general council in Eng-
land (which was to exercise a supervising control over both

1 Stith, History of Virginia, Appendix, 3.

io Justice in Colonial Virginia. [408

the southern and northern colonies) appointed seven men to
be of the Council of Virginia. Their names were put in a
sealed box, which was not opened until April 26, 1607, after
their arrival at Cape Henry.2

The local council was to govern the colony according to
the laws of England, and was not allowed to pass ordinances
affecting life or limb. But with the exception of these two
restrictions, its powers were almost absolute. In this
council were vested all the functions of government, legis-
lative, judicial, and executive. The opinion of the majority
was to prevail in all decisions, and the president could cast
two votes in case of a tie. The council was a self-per-
petuating body ; it had power to fill vacancies and remove
members for just cause, and also to elect its president, who
was to be chosen annually. The crown reserved to itself the
power to punish all persons living in the colony who should
at any time " rob or spoil, by sea or land, or do any act
of unjust and unlawful hostility " to the citizens of friendly
states.

But the council, acting in its judicial capacity, was to try all
other offenders, except those who should attempt to seduce
any of the colonists from their allegiance to the King and
the established religion. Such of these as could not be
brought to repentance by imprisonment were to be sent to
England for trial. By the instructions given by the King, cer-
tain offenses, as " tumults, rebellion, conspiracies, mutiny,
and seditions in those parts which may be dangerous to the
states there, together with murther, manslaughter, incest,
rapes, and adulteries," were made punishable by death, and
except for manslaughter, the benefit of clergy was not to be
allowed for any of them. In every arraignment for these

'Neill, Virginia Company, 5-6. Brown, Genesis of the United
States, 56, 57. Purchas, His Pilgrimmes, IV, 1705. The members
of the first council were Bartholomew Gosnold, Edward Maria
Wingfield, Christopher Newport, John Smith, John Martin, John
Ratcliffe, and George Kendall. Why thirteen were not appointed, in
accordance with the provisions of the charter, does not appear from
the documents.

409] Introduction. 1 1

crimes, the accused was to be tried by a jury of twelve men
unless he confessed his crime or stood mute, in which case
judgment was to be passed by the president and council, or
" the major part thereof." For minor breaches of its ordi-
nances, the council, by a majority vote, could, without calling
in a jury, inflict such penalties as fines, imprisonment, and
reasonable corporal punishment. The judicial proceedings
were to be conducted orally ; but a record was to be made of
all cases decided by the court. Persons convicted of capital
charges could be reprieved by the council, but only by the
King could they be pardoned.8

Thus the government of Virginia began as an oligarchy.
Gosnold wielded a great influence in the council, and as long
as he lived affairs in the colony moved on with comparative
smoothness. But after his death the spirit of strife, no
longer controlled by his commanding presence, broke out
among the rulers, and Wingfield and Kendall were de-
posed.4 The majority of the council were not unmindful of
their power to expel offending members from their body,
but did not show an equal willingness to comply with that
part of their instructions which required them to fill vacan-
cies. Consequently, after the expulsion of Kendall and
Wingfield, Newport having1 returned to England, the num-
ber of councillors was reduced to three, Ratcliffe being
president.

Inimical relations continued to exist between the council-
lors, and dissentions never ceased to rise until another form
of government had been adopted by the colony. Several
other members were added to the council, but, by the spring
of 1609, the number had been so reduced by deaths and
removals that Smith was left sole councillor.5

During the period of Ratcliffe's presidency, judicial deci-

8 Brown, Genesis of the United States, 67-71, 73, 74; Wingfield,
Discourse in Arber, Works of Captain John Smith, p. LXXX.

4 Percy's Discourse, published in Brown's Gen., 167, 168; Wing-
field's Discourse, published in Arber's Smith, LXXVI, 95.

8 Arber, Works of Smith, 95, 404, 432, 435, 466.

12 Justice in Colonial Virginia. [410

sions were not characterized by the fairness becoming a
tribunal of justice. Private spite influenced the councillors
to pass unjust sentence against those who had incurred their
dislike.* However, during Smith's administration, justice
seems to have been evenly meted out to all. Offenders were
punished, but not undeservedly. Some of the penalties that
Smith inflicted for the correction of evil-doers were whip-
ping and " laying by the heels." He made threats of hang-
ing, sent some offenders to England, and ordered certain
men to slay the treacherous Dutchmen who were plotting
against his life with the Powhatan. As a remedy for the
sin of swearing, he employed the water cure in a unique
way.7

A very important change was made in the government of
the colony by the second charter, which was granted to the
Company in 1609. A governor was appointed by the Com-
pany to supersede the local council and was given almost
absolute power in the government of the colony.8 Lord De
La Warr, who was chosen for this responsible place, did not
go to Virginia until next year; but in the meantime Sir
Thomas Gates had been sent over with a commission to act as
governor. He was shipwrecked off the coast of the
Bermudas and detained on those islands for nine months,
and, therefore, did not reach Virginia until the spring of

* A blacksmith by the name of Reade was sentenced to death for
"giving bad language" to President Ratcliffe and threatening to
strike him with some of his tools. Reade bought his pardon by be-
traying a conspiracy headed by Kendall, who was tried and shot.

When Smith returned from his Indian captivity, some of his ene-
mies united with Ratcliffe in an attempt to have him put to death.
They charged him with complicity in the murder of his two com-
panions, who had been killed by the Indians, and claimed that ac-
cording to the Mosiac law he was responsible for their death. But
Captain Newport arrived from England just at this time and kept
them from carrying out their murderous designs. Arber, Works of
Smith, 12, 13, 22, 23, 401.

7 Every oath that the men uttered during the day was registered,
and at night a can of cold water for each was poured down the
sleeve of the blasphemer to wash away his sin. Arber, Works of
Smith, 126, 168, 169, 401, 473, 480, 481, 483.

' Brown, Genesis of the United States, 208, 233, 234, 375-38o.

4i i ] Introduction. 13

1610, just in time to drop the curtain on the closing scene of
the " Starving Time." The council, into whose hands the
reins of government had fallen on Smith's departure, now
surrendered their authority to Gates, the lieutenant-gov-
ernor. Prior to this time, a few provisions in the King's
instructions were the only rules that had been given to the
councillors to guide them in the performance of their judi-
cial duties. But Gates now initiated a system of justice by
which judicial decisions were to be rendered in accordance
with laws made to suit the peculiar conditions that then
obtained in the colony. He wrote out certain rules and
ordinances by which the settlers were to be governed during
his short rule in the colony and posted them in the church
at Jamestown. He thus proclaimed the first legal code
ever put in practice in English-speaking America."

In June, Gates was superseded by Lord De La "War r,
who, on his arrival in Virginia, selected six men to consti-
tute his council. They were to act only as an advisory body,
and did not in any way limit his authority. He had power
to remove any of them whenever he saw cause for so doing.
Just what part the council played in the administration of
justice for the next nine years cannot be determined ; but it
may be safely inferred from Lord De La Warr's commission
and other documents, that during this period the councillors
acted only as advisors to the governor in the trial of
causes.10

The laws proclaimed by Gates were " approved and
exemplified " by Lord De La Warr. They were afterwards
enlarged by Sir Thomas Dale by the addition of certain
articles taken from the martial code of Holland. In this
amended form they were sent to Sir Thomas Smith, the
Treasurer of the Company, who approved of them and had

9 Strachey, A True Repertory of the Wracke and Redemption of
Sir Thomas Gates, Knight, printed by Purchas, 1748-1749.

10 Strachey, A True Repertory, etc., printed in Purchas, IV, 1754.
Brown, Genesis of the United States, 380. Proceedings of the Vir-
ginia Company, I, 187. Neill's Va. Company, 42, 43.

14 Justice in Colonial Virginia. [412

them printed for the use of the colony." From 1611 until
1619, the colony was governed according to these stern and
cruel laws (though the severity of them was afterward
toned down considerably), which were known as "Articles,
Lawes and Orders, Divine, Politique, Martiall." These
laws (which Dale perhaps considered divine in their pur-
pose) made stealing grapes or ears of corn from the public
or private gardens an offense punishable by death. Soldiers
who should cowardly run away from battle without attempt-
ing to fight, and all persons giving to masters of ships com-
modities to be taken out of the country for their own private
use, were to receive the death penalty. Blasphemy, for the
second offense, was to be punished by having the offending
tongue thrust through with a bodkin. Absence for the
third time from any one of the two Sunday church services
was a capital crime. Some other punishments mentioned
were whipping, cutting off ears, and tying neck and heels
together. Sometimes the unfortunate culprit had to lie in
this position for forty-eight hours. Any one who violated
a certain article of these laws had to lie feet and head to-
gether every night for a month.

The colony being under martial law, the captains and
lieutenants had the power to punish the soldiers of their
companies for certain misdeeds. The officers subordinate
to them reported disorders to their superiors, and in their
absence punished minor offenses. But the most important
cases, both civil and military, were referred to the court
martial for trial. In this tribunal sat the captains of the
companies, and when any of them were absent, their places
in the court were filled by their lieutenants. Offenders who
were to be arraigned for trial were kept in the custody of
the provost marshal."

It is difficult to say how much severity Dale and his suc-

11 Proceedings of Virginia Company, II, 187. Colonial Records
of Va., 74.

"Articles, Lawes, and Orders, Divine, etc., printed in Force's
Tracts, Vol. Ill, 10, 14, 16-18, 21-26, 38, 40, 46-48, 52, 56. Works
of John Smith, ed. by Arber, 507, 508.

413] Introduction. 15

cessors put into their execution of these laws. If we are
to trust entirely an account of their rule which was given by
the party of opposition in Virginia in a memorial sent to
England in 1624, we cannot but believe that the rigor of
these laws was increased rather than diminished in the
execution. According to the statement of the " ancient
planters " — as the authors of this document styled them-
selves— the colonists were kept in a state of " slavery " by
their rulers. Cruel and inhuman punishments were inflicted
without trial by jury and sometimes for trivial offenses.
Among the penalties to which the settlers were subjected,
they mentioned hanging, burning, and breaking on the
wheel. Some of the colonists were hanged for " stealing to
satisfy their hunger." One case is given in which a law-
breaker " had a bodkin thrust through his tongue and was
chained to a tree until he perished." Many of the settlers,
they said, found the government intolerable; some of them
committed suicide, while others hid themselves away in
holes dug in the ground in order to escape its horrors."

However, it would not be just to Dale and the court party
in the Company to accept without question this severe in-
dictment brought against their colonial policy by their ene-
mies. Sir Thomas Smith said that some of these laws were
promulgated with no intention of being carried out, but only
for the purpose of terrorizing the settlers into obedience to
the government regulations.

Furthermore, the Rev. Alexander Whittaker, one of the
ministers who lived in the colony during this period, did not
consider that Dale's rule was unjustly harsh. In speaking of
it, he said : " I marvel much that any men of honest life should
fear the sword of the magistrate which is unsheathed only
in their defence." J Another prominent settler, Ralph
Hamor, declared that such severity as that practiced by

"Colonial Records of Virginia 74 et seq. Stith, History of Va.,
305-
M Purchas, IV, 1771.

16 Justice in Colonial Virginia. [414

Dale was at that time necessary to keep the colony from
ruin."

We must also not forget that many of the settlers that
Dale and his successors had to deal with were a class of men
who would not work except when driven to it by the task-
master. This was proved by the fact that when the pres-
sure on them was somewhat relieved they relapsed into
habits of idleness. When Dale first came to Virginia shortly
after Lord De La Warr's departure, he found the colonists
playing at bowls in the streets of Jamestown to the utter
neglect of their crops." So we see that the ills of the colony
were such as could not be remedied except by heroic treat-
ment. But even after discounting fully the ex parte evidence
against Dale and his successors and making due allowance
for the character of the settlers under their control, we are
bound to admit that they erred greatly on the side of
severity in subjecting the settlers to such a merciless system
of government.

The first twelve years of the colony's history was a period
of discipline and suspension of constitutional rights. This
abridgment of the personal rights of the colonists was due
partly to the character of the settlers and the difficulties
which a parent state always encounters in founding distant
colonies, and partly to the mistaken policy of the faction
controlling the London Company. But by 1619, when
Yeardley became governor," the colony was established on
so firm a basis that the need for military rule ceased, and
the Virginians began to enjoy the rights of other English-
men. When, however, the old military tyranny gave place
to the new regime, after the victory of the Sandys party in
the government of the Company, some of the old govern-
mental machinery remained to be employed by Yeardley and
his successors. Thus we find that the provost marshal con-

19 Smith's Works (Arber ed.), 508.

19 Smith's Works, 507.

"Yeardley was commissioned governor in 1618, but he did not
arrive in Virginia until the spring of 1619. Hening, I, 3. Colonial
Records of Virgnia, 81.

415] Introduction. 17

tinned for some time to perform a part at least of his old
duties, and that the commander of the hundred was, in his
judicial capacity, transferred from the court martial to the
monthly court."

In 1619, the Virginia constitution began to crystallize into
its permanent form. Soon the executive, legislative and
judicial functions of the government began to be distin-
guished and assigned to three departments, though the sepa-
ration in the beginning was only partial and never
approached completeness during the entire colonial period.
The institutional growth of the colony had not gone far
before three channels of administration were found for
justice, the assembly, the Quarter Court, and the monthly
courts. For a good many years, these were the only courts
of justice in Virginia.

The assembly was the supreme court in the colony until
about 1682, at which time it was deprived of its authority to
try appeals. Its jurisdiction was both original and appellate
and extended to both civil and criminal causes. Next to the
assembly in the order of jurisdiction came the Quarter or
General Court, which was composed of the governor and
his council. It, too, had jurisdiction in both civil and
criminal cases ; but, as a rule, the causes of which it took
cognizance were more important than those that were
usually determined by the lower courts. It was the most
important criminal court in Virginia, and for about three
decades after appeals to the assembly were discontinued, it
was the only regular tribunal that could try freemen charged
with offenses punishable by loss of life or member. In the
first quarter of the eighteenth century, a regular court of
oyer and terminer was established, and from that time until
the Revolution it shared with the General Court the author-
ity to try the more important criminal offenses. These were
the only superior courts in the colony. The monthly or

"Colonial Records of Virgnia, 20. Accomac County Court Rec-
ords, 1632-40, 10, 20. Robinson MS., 58. Hening, Statutes at
Large, I, 125. See pp. 75-io8.

i8 Justice in Colonial Virginia. [416

county court was the most important inferior court, and
during the greater part of the seventeenth century it was the
only one in Virginia. The first monthly courts were organ-
ized as early as 1624; and when the colony was divided into
shires, a separate court was appointed for each. In 1643,
the name county court was substituted for that of monthly
court. In 1662, circuit courts were established, which were
to try appeals from the county courts. But these courts
were expensive, and for this reason were abolished by an act
of assembly passed in December of this same year. Out of
the county court there had developed in each county, prob-
ably by the end of the seventeenth century, and certainly by
the beginning of the eighteenth century (1705), a special
court for the examination of criminals charged with grave
offenses. In 1692, provision was made for the organization
in each county of a special court for the trial of slaves
accused of capital crimes. Two courts of Hustings were
established in the first half of the eighteenth century, one
at Williamsburg in 1722, and the other at Norfolk in 1736.
Courts martial were held once a year or oftener in each
county, by which militiamen were tried for delinquencies
and insubordination at musters. These were the inferior
courts. Appeals were allowed from the inferior courts to
the General Court and from it to the assembly. Appeals
were also allowed to England, even from a very early period.
In addition to the courts already mentioned, there was a
court of Vice- Admiralty, which was established in 1698, and
the Court of the Commissary of the Bishop of London.
Strictly speaking, the last two should not be classed either
with the superior or inferior courts ; but for the sake of con-
venience, they are treated in the chapter on superior
courts.

These classes of courts will now be treated in the order of
their jurisdiction.

CHAPTER I.
JUDICIAL POWERS OF THE ASSEMBLY.

On July 3Oth, 1619, there assembled in the church at
Jamestown the first representative legislative body that ever
convened in English America. This assembly was composed
of two representatives from each of the eleven * plantations
in the colony, who had been chosen in obedience to an order
of Governor Yeardley. The governor, sitting in the midst
of his council, who were ranged on his right and left, wel-
comed the Burgesses, as the deputies were called, in the
choir of the church. After the opening prayer, the Bur-
gesses went to the body of the church, and the meeting
entered upon its work. The assembly thus organized de-
veloped into a bicameral legislature like the English Parlia-
ment, the governor and council were the upper house, and
the Burgesses, corresponding to the Commons in England,
constituted the lower house.2

Though the duties of the assembly were mainly legisla-
tive, yet from the beginning until the latter part of the
seventeenth century, it also acted as a court of justice, being
the highest judicial tribunal in the colony. It was not,
however, the intention of the legislature to compete with the
courts for an equal share in the administration of justice.
Even at their first session, the Burgesses, by referring two
cases to the governor and council for trial, showed a dis-
position to leave the settling of disputes to a tribunal better

'The two delegates representing Captain Martin's plantation were
not allowed to take their seats because Captain Martin would not
surrender the rights of his patent, by which it seems that he was
freed from the authority of the Virginia government. This left only
twenty representatives, and in a few days one of the deputies died,
which reduced the number to nineteen. Colonial Records of Vir-
ginia, 9-12, 18, 20 et seq.

'Hartwell, Blair, and Chilton, 32.

2O Justice in Colonial Virginia. [418

qualified to decide suits than a parliamentary body.1 They
must have realized that they could not weigh evidence so
carefully or mete out justice so evenly as a smaller court
composed of experienced judges. Besides, as the country
developed, the legislative demands on the assembly grew
apace, and left it less and less time for other business.
Then, too, as the court system grew in efficiency, the need
for calling on the legislature to decide causes correspond-
ingly diminished.4

The assembly was the fountain head of justice, and ex-
ercised a supervisory control over the courts. By a statute
of 1662, the first day of every session of the assembly was
to be set aside for hearing indictments made by grand juries
and for inquiring into the methods employed by the courts
and abuses practiced by judges and juries.5 The legislature
never conceded to the judiciary the right to pass upon the
constitutionality of any of its laws, but plainly declared by
enactments made at different times that no order of court
should contravene an act of assembly."

The assembly, like the Parliament of England, had au-
thority to pass bills of attainder against notorious offenders,
and this privilege was not abrogated by the King's order
which deprived it of its authority to try appeals. But this
power was not the source of any great and lasting injustice
to the people, as it was very rarely called into use. Only two
instances have been found in which bills of attainder were
passed. The assembly that convened in February, 1677,
immediately after Bacon's Rebellion, declared Nathaniel
Bacon and certain of his followers to be guilty of treason
and ordered their goods to be forfeited to the crown. This
act of attainder was in large measure reversed in June, 1680,
when a bill of pardon covering the offenses of most of those

8 Colonial Records of Virginia, 24, 25.

'Hartwell, Blair, and Chilton, Present State of Virginia, 25, 26.
Sainsbury MSS., 1679-1682, 151.
°Hening, Statutes at Large, II, 108.
•Ibid, I, 264, 447; II, 108.

419] Judicial Powers of the Assembly. 21

included in the first act was brought over by Governor
Culpeper and unanimously agreed to by the assembly/ In
1701 the occasion for another act of attainder arose, the
victim this time being, not a political offender, but an out-
lying slave. A certain negro had for several years been
" lying out and lurking in obscure places," during which
time he had been destroying crops, robbing houses and
committing other injuries to the people. To put a stop to
these annoyances, the assembly voted a sentence of death
against him and offered a reward of one thousand pounds
to any one who would apprehend or kill him.8

The jurisdiction of the assembly was, for some years at
least, both original and appellate and extended to both civil
and criminal cases. From certain statutes enacted in the
latter part of the Commonwealth period, we learn that its
criminal jurisdiction at that time was concurrent with
that of the Quarter Court. Criminal causes which were
punishable by loss of life or member were tried in the as-
sembly, or Quarter Court, whichever should first convene
after the offender had been apprehended.8 Just how long
criminal causes were determined originally by the assembly
does not appear from the records. Its civil jurisdiction was,
as early as 1641, limited mainly to appellate cases, as is
shown by an order of the Quarter Court made in that year.
At that time many petty suits were coming before the
legislature to the exclusion of more important business. In

T Another act of 1677 prescribed penalties to be inflicted on those
that had played a minor part in the rebellion. Some of these were
ordered to appear before the governor and council and afterwards
before their respective county courts and there to acknowledge their
fault with ropes around their necks. The justices of Rappahannock
seem to have been unwilling to subject the offenders of their county
to such a degradation and allowed certain ones to appear in court
with tape-lines, instead of ropes, about their necks. This failure to
execute properly the orders of the assembly was deemed an act of
contempt too flagrant to be passed over unnoticed, and so the Gen-
eral Court ordered the offending magistrates to appear before the
assembly to answer for this high contempt of its authority. Hen-
ing, Statutes at Large, II, 370-380, 458-464, 557-

8Hening, Statutes at Large, III, 210.

8 Ibid., I, 398, 476.

22 Justice in Colonial Virginia. [420

order to relieve this state of congestion, the governor and
council issued a proclamation declaring that for the future
no private causes " should be admitted to the court [assem-
bly] except such as are at this [Quarter] court referred to
a fixed day or such as should [shall] concern as a party
some member of this grand assembly." ' While it is prob-
able that the judicial activity of the assembly in civil cases
was from this time on generally limited to the determination
of causes coming up by appeal from the Quarter Court, still
its doors were not completely closed against all other suits.
A few years later a law was passed which recognized
the right of the county commissioners to refer to the assem-
bly any case in which there was no known law or precedent
to guide them in their decisions. Besides, there was to be
admitted to the assembly for trial any cause that had had a
hearing in any court, provided an act of injustice had been
committed by the award of the lower tribunal.11

For some years there were no minimum restrictions on
appeals with respect to the amount involved, and the most
trivial suits could be brought before the Quarter Court or
the assembly for trial. But these bodies did not mean to
consume the greater part of their time in considering unim-
portant causes, and so threw very effective barriers against
the stream of judicial business which would otherwise have
flowed into them. These obstructions took the form of
heavy damages to be paid by the appellant when the higher
court affirmed the decision of the lower one. By a statute
of 1643, which confirmed a law made the previous year, it
was ordered that appellants from the Quarter Court to the
assembly should pay treble damages when cast in their suits.
But these regulations made the way to the Supreme Court
too narrow, and it was deemed expedient, some years later, to
lighten the burdens borne by appeals to the assembly, and

10 Robinson MS., 236.

"Hening, Statutes at Large, I, 272, 304, 345, 375, 519; ibid., II
65. Robinson MS., 235. Virginia Magazine of History and Biog-
raphy, VIII, 395. Records of General Court, 1670-1676, 76, 166,
183, 189, 191.

421 ] Judicial Powers of the Assembly. 23

the damages attached to them were reduced to fifty per cent
of the original award of the court.12

It was not until near the end of the Commonwealth period
that an attempt was made to limit appeals from the Quarter
Court to the assembly so as to exclude causes in which small
amounts were involved. The heavy damages with which
appeals were weighted did not prevent " many litigous
suites of inconsiderable valewes " from leaving the Quarter
Court and going into the assembly. In this way other
important business was crowded out of the legislature " to
the hindrance of publique affairs." The assembly, there-
fore (1659), deemed it necessary to limit appeals to it from
the governor and council to suits in which the amounts in
controversy exceeded 2500 pounds of tobacco. But this
discrimination against suits of minor importance proved in-
convenient, and next year it was enacted that appeals should
thereafter be allowed in all cases from the county courts
(the court of Northampton excepted) to the Quarter Court
and from there to the assembly.13

The assembly transacted its judicial business through a
committee of justice composed of members of both houses
of the legislature. Causes that were brought before the
assembly for trial were referred to this committee, which
investigated them and decided what action should be taken
regarding them. The decisions of the committee were not
binding until they had been confirmed by the whole assem-
bly. In 1682, three-fourths of those who sat in this joint
committee were Burgesses. This, of course, gave the lower
house a preponderating influence in the committee and,
consequently, a controlling voice in the determination of all

"The assembly restricted its judicial authority still farther by
ordering in 1647 that the decisions of the Quarter Court were to be
final for all causes coming up to it by appeal from the county courts.
However, this restriction was afterwards set aside. Hening, Stat-
utes at Large, I, 272, 334, 345, 398, 54* ; H, 65, 66, 266.

13 This exception against Northampton County was afterwards re-
pealed. Hening, Statutes at Large, I, 519, 520, 541, 575; II, 66, 362,
397. Virginia Magazine of History and Biography, VIII, 395.

24 Justice in Colonial Virginia. [422

causes referred to the assembly for trial. As the Burgesses
were chosen by the people, in practice, therefore, it resulted
that the highest court of appeal in the colony was an elect-
ive body, directly responsible to the people."

The character of the justice meted out by the assembly
seems to have been in keeping with the spirit of the times.
Apparently it was neither milder nor severer than that
administered by the courts. The penalties inflicted for
criminal offenses were similar to those prescribed by the
Quarter and county courts. Fines were imposed and re-
sort was had to the lash. Offenders were also punished by
suspension from office and disqualification for places of
profit or honor. The assembly, like the courts, sometimes
tried to coerce transgressors into repentance by requiring
them to ask forgiveness of the persons injured by them."

Appeals to the assembly continued to be allowed until
about 1682, when they were stopped by order of the King.
At that time a dispute arose in the committee of justice be-
tween those of its members who were Burgesses and those
that were councillors, the Burgesses contending that the

"By the term "people," is not meant the whole adult male popu-
lation, but only the voters. As a rule, the right to vote was allowed
to all freemen before 1670 and to freeholders only after that time.
But there were two exceptions to this rule: from 1655 to 1656 only
"housekeepers" were allowed to vote, and during Bacon's rebellion
this privilege was allowed to all freemen. Chandler, Hist, of
Suffrage in Va., J. H. U. Studies, XIX, 279-283. Hartwell, Blair,
and Chilton, Present State of Virgnia, 25, 26. Hening, II, 157.

"One case is reported (1662) which affords an instance of a dis-
regard on the part of the assembly of the rules of evidence which
would now be considered quite reprehensible. It seems that one
Anne Price had been tried in the county court of Elizabeth City,
and that a new hearing before the assembly had been granted. The
committee of justice in their report on the case declared that there
was not sufficient evidence to warrant a conviction according to law.
Nevertheless, the assembly ordered the court of Elizabeth City to
" rehear the cause and according as the presumptions of the offence
shall appear determine some means of punishment" not exceeding
two years of service. The reason given for this decision was that
the assembly considered that an example ought to be made of the
accused and feared that an acquittal might encourage some inso-
lence. Hening, I, 157; II, 15, 33, 156-157, 162, 458-463. Sainsbury
MSS., 1660-1676, 196, 197. Ibid., 1677-1679, 106. Randolph MSS.,
252.

423] Judicial Powers of the Assembly. 25

councillors, having already given their decisions in the Gen-
eral Court, should not again sit on the same cases in the
committee of the assembly. It was very unfortunate that
the legislature was divided at a time when the executive was
anxious to enlarge its authority. Lord Culpeper, who was
then governor of the colony, welcomed this opportunity to
enhance his own power at the expense of the assembly.
He, accordingly, reported the disagreement to England and
procured an order abolishing appeals to the assembly.1*
The records that have been examined do not state whether
this act discontinuing appeals to the assembly also deprived
this body of its power to determine causes originally. But
there is evidence of a negative character which goes to show
that the assembly ceased to be a court of justice after this
event. With the possible exception of one act of attainder,
no mention has been found of the assembly's trying cases
after this time. In an account of the judiciary given in
Beverley's history of Virginia, published in 1705, all the
courts of justice in the colony are alluded to; but nothing
is said of the judicial powers of the assembly, which leads
us to infer that it had no such powers at that time." In-
deed, it is not improbable that prior to 1682, the assembly
had in practice limited its judicial activity to appellate causes ;
and in that case, the stoppage of appeals, of course, deprived
it entirely of its privilege to act as a court of justice.

The assembly was loath to part with its judicial authority,
and in 1691 wrote to the agent of the colony in England
urging him to use his endeavors towards gaining the King's
consent to a renewal of appeals.18 This attempt to regain a
lost privilege was apparently unsuccessful, and from this
time on the judicial activity of the assembly seems to have
been confined mainly to docking entails and granting per-

"Hartwell, Blair, and Chilton, Present State of Virginia, 25, 26.
Sainsbury MSS., 1679-1682, 151.
" Beverley, History of Virginia. Book IV, pp. 20-26.
18 Sainsbury MSS., 1640-1691, 387.

26 Justice in Colonial Virginia. [424

missions to alienate entailed estates, if indeed even these may
be termed judicial functions.19

The royal order that discontinued appeals to the assem-
bly eliminated the only element of democracy that had lin-
gered in the judiciary since the Restoration. Henceforth
the people were to exercise no influence, except an indirect
and moral one, on the decisions of the courts. It is true
that prior to this time the people had had no voice (except
in the Commonwealth period) either directly or indirectly
in the choice of the judges of the county and General
courts ; but if an act of injustice were committed in the
lower courts, it could be corrected by an appeal to the assem-
bly. As the latter was the highest court of appeal in the
colony, and could set aside the decisions of the other tribu-
nals, it was natural that the courts would try to conform to
the precedents set by the assembly in the determination of
the causes brought before them. For this reason, the in-
fluence exerted on the judiciary by the assembly, was in all
probability out of all proportion to the amount of judicial
business transacted by it. Of the two branches of the
legislature, the lower house, the representatives of the peo-
ple, was much stronger numerically than the upper,20 and, as
we have already seen, took the leading part in the trial of
appeals. Up until 1682, therefore, the Virginia judiciary
was aristocratic at the bottom and democratic at the top ;
but the element of democracy introduced at the top must
have found its way, as an influence, into all the branches of
the judicial system. But now the only link that connected
the judiciary with direct responsibility to the people was
severed, and the judiciary was from this time on thoroughly
aristocratic in all its branches.

This curtailment of the power of the assembly made it
possible for the governor to exert an undue influence on the
judges of the General Court in their administration of jus-

"Hening, IV, 36, 50, 240, 307, 451-53, 534~37; V, 214-16, 277-84,
392-95-
20 Hening, I, 288, 289.

425] Judicial Powers of the Assembly. 27

tice. The General Court, which was composed of the gov-
ernor and his council, was now the highest judicial authority
in the colony.21 The councillors were appointed by the
King, and were in no sense responsible to the people. Be-
sides it was to their interest to render such decisions as
would be acceptable to the governor. There were a good
many important offices at his disposal, and practically all of
these were held by the members of the council. These
places could easily be distributed in such a way as to reward
his friends and punish his enemies. Therefore, dissent
from the opinion of the governor might entail self-denial,
while conformity with his views might mean reward.23
But the power of the governor to influence judicial decisions
could be curbed so long as appeals were allowed to the
assembly. For if the governor by corrupt means should
procure an unjust order from the General Court, it could be
set aside by the assembly. But this check was removed
when the judicial powers of the assembly were destroyed,
and as a premium was put upon subservience to the wishes
of the governor, it could hardly be expected that the
Supreme Court would be entirely free from abuses.

According to an account of Virginia written about the
end of the seventeenth century, the General Court fell into
abuses immediately after appeals to the assembly were
stopped. The authors of this account, Messrs. Hartwell,
Blair, and Chilton, say that after appeals to the assembly
were discontinued, the governor was usually able to get
from the General Court such decisions as he desired, and
that the people were, in consequence, sorely oppressed. But
this book betrays strong prejudices and decided hostility to
the governor, and, therefore, it is quite likely that what is
said about the despotism of the governor is an exaggerated

a It is true that in important cases, appeals to the King were still
allowed, but the inconvenience of prosecuting suits in England ren-
dered this privilege of no great practical value.

"Hartwell, Blair, and Chilton, 22-24.

28 Justice in Colonial Virginia. [426

statement, to say the least." But even if it is a correct repre-
sentation of conditions as they were at that time, it does not
follow that the General Court, from this time on, usually
obeyed the dictates of the governor in its administration of
justice. While it must be admitted that the stoppage of
appeals to the assembly left unchecked a dangerous power
in the hands of the governor, yet this power could not avail
him much so long as a majority of the councillors were men
of integrity and stamina. That the council was frequently,
if not generally, composed principally of such men, we have
every reason to believe. It cannot be said that their attitude
towards the governor was, as a rule, one of tame acquies-
cence in the policies advocated by him ; for we sometimes
find them vigorously resisting the measures proposed by
him/4 It may, therefore, be safely inferred that the picture
of the General Court that was drawn at the end of the
seventeenth century was not a true likeness of this tribunal
ars it generally appeared in the eighteenth century.

Still, this does not alter the fact that there was always
present in the judicial sysem a latent weakness which might
develop into a dangerous abuse whenever the conditions
were favorable. If a strong and unprincipled governor
should at any time be joined with a weak or dishonest
council, the General Court would be liable to develop symp-
toms of corruption. That the people suffered no greater
injustice than they did is to be ascribed to the circumstance
that this unfortunate union did not often take place, rather
than to be attributed to any safeguards with which the Vir-
ginia constitution was provided.

APPEALS TO ENGLAND.

The assembly, even prior to 1682, was not the highest
court to which the Virginians had access. The right to

^Hartwell, Blair, and Chilton, 26. We know, however, from
other sources that abuses crept into the General Court about this
time, but it does not appear that they were in any way connected
with the influence wielded by the governor over the court See p. 56.

u See pp. 40, 60-62.

427] Judicial Powers of the Assembly. 29

appeal to England in important cases was one of the priv-
ileges enjoyed by them from the earliest period. Problems
of justice sometimes arose in the colony for which the home
judiciary offered no satisfactory solution, and so from time
to time the mother country was called upon to assist in the
administration of justice in Virginia. Before the Com-
pany was deprived of its governmental rights, it sometimes
took part in the administration of justice in the colony.
The appeals to the Company were usually in the form of
complaints made by the colonists against acts of alleged
injustice on the part of the governor, or of petitions from
persons living in England, who claimed to have been
wronged in their possessions in Virginia. The Company
could set aside a decision given in Virginia if it were unjust
and had not been rendered in accordance with their general
instructions. It also sometimes ordered the governor and
council to inquire into the alleged grievances of petitioners
and to right the wrongs complained of."

It is hardly safe to make any generalization regarding the
methods employed by the Company in the performance of
its judicial duties, owing to the fact that not many trials are
recorded in its proceedings. It seems, however, from the
few cases that are given, that the complaints of petitioners
were referred to the Council of the Company for a prelimi-
nary hearing or for final determination. One instance is
given in which the whole Company, assembled in a great
Quarter Court, was called upon to decide an important case
which had been brought up by appeal from Virginia. The
Council brought in a report favoring a reversal of the
decision given in Virginia, which was adopted by the Com-
pany almost unanimously.28

25 Records of the Virginia Company, I, 48, 129; II, 11, 29, 39, 45,
46, 145-

28 This case is of interest not only because it gives us an insight
into the methods employed by the Company in the transaction of
its judicial business, but also because it shows what was, at that
time, the Company's opinion regarding the constitutionality of the
military rule of Dale and Argoll.

30 Justice in Colonial Virginia. [428

The Company had no authority to try criminals that
escaped from Virginia and returned to England.27 But if
any persons that had been sent from Virginia for criminal
offenses or had come away by stealth, should circulate slan-
derous reports about the colony with the intent to bring it
into disrepute, or should show any insolence to the Council,
any two of the Council (the treasurer to be one) could have
such evil-doers apprehended and brought before them for
examination. If it should be proved that they were guilty
of these misdemeanors, these Councillors could require them
to give security for their good behavior, or could send them
back to Virginia for trial.28 The power to punish the colo-
nial governors for malfeasance in office was not one of the
privileges granted to the Company. Removal from office
was the greatest penalty that it could inflict for the misrule
of these governors. In 1621, John Smith favored inserting
in a new patent for which the Company was going to ask a
clause empowering the Company to punish the Virginia
governors for their acts of injustice. This proposal was
objected to on the ground that it would cause the new
patent to be defeated in Parliament.2*

In 1624, the charter of the Company was annulled, and
Virginia was brought under the authority of the crown.

The history of the case begins in October, 1618, when a certain
settler was sentenced to death in Virginia by a court martial. Gov-
ernor Argoll was persuaded by some of the court not to execute the
death sentence, and the accused was released on condition that he
would leave the colony never to return, and would never speak
disparagingly of Lord De La Warr, Argoll, or the plantation. An
appeal was taken from this decision to the Council and Company in
England. The Council (of the Company) sent to Yeardley (who
was then governor of the colony) and the Virginia council this
appeal and Argoll's answer, together with a letter from the Com-
pany, and ordered them to investigate the case and report their
findings back to England. Finally (1620), the whole question was
brought before the Company assembled in a Quarter Court. The
Company, in giving its decision, declared that a trial by court
martial was illegal. Records of Virginia Company, I, 48; II, 29,
30, 39-44, 45-

"Ibid., II, 159.

28 Sainsbury MSS., 1573-1618, 160, 161.

28 Proceedings of the Virginia Company, I, 113.

429] Judicial Powers of the Assembly. 31

The King, the same year, appointed fifty-five commissioners
and turned over to them the general management of the
colony.80 This board was probably too large for the
proper supervision of colonial affairs, and in 1634, a smaller
one, composed of thirteen members, was entrusted with the
governmental control of the English colonies. This com-
mittee of thirteen was given power to remove governors,
appoint judges, and establish courts, and was instructed to
" hear and determine all manner of complaints from the
colonies." ! It was one of several intermediary boards
which in turn looked after the affairs of the colonies. The
most important of these intermediary bodies was the Board
of Trade, which was organized in 1696™

After 1624, appeals to England were made to the King
and the Privy Council ; but appeals as well as petitions and
complaints, were, in the seventeenth century at least,
frequently, if not generally, referred to the intermediary
boards, which examined them and advised the action that
should be taken on them by the King and the Privy Council.
Appeals to the Privy Council were allowed in both civil and
criminal cases, and complaints were sometimes made by
citizens of England against acts of alleged injustice which
had not been inquired into by the colonial courts." How-

30Rymer, Foedera, XVII, 611-13.

81 Sainsbury MSS., 1631-1637-8, 65.

82 Brodhead, Documents Relating to the Colonial History of New
York, Vol. Ill, Introduction, XIII-XIX.

88 Va. Mag. of Hist, and Biography, XII, 12. William and Mary
College Quarterly, IX, 98-100, 165. Hening, V, 292. Sainsbury
MSS., 1624-1631, 230; ibid., 1631-1637, 54, 199; ibid., 1637-8-1649,
26, 27, 77, 82, 83; ibid.. 1640-1691, 89, 292; ibid., 1660-1676, 138; ibid.,
1677-1679, 86, 202; ibid., 1679-1682. 104, 155, 162, 188, 189, 213; ibid.,
1682-1686. 221, 223; ibid., 1691-1697, 250.

It will be noticed that these references are mostly to the seven-
teenth century records. It was the custom for appeals to England
to be tried by a committee of the Privy Council, known as the
Lords of Appeals. Whether this committee in the eighteenth cen-
tury really gave its own decisions or only confirmed the dicisions that
had already been recommended by the intermediary board, I am un-
able to say ; but it seems to have continued the old practice of requir-
ing the opinion of the intermediary board on complaints coming
before it from the colonies. Beverley, History of Va., Book IV, p. 21.
Calendar Va. State Papers, I, 195.

32 Justice in Colonial Virginia. [430

ever, it seems that appeals to the Privy Council were not
often allowed in criminal cases, as few of them are mentioned
in the documents that have been examined. Beverley, the
historian, whose work was published in 1705, said that he
was not sure that appeals in criminal cases were ever
allowed to the King and the Privy Council ; but the records
show that persons charged with penal offenses were some-
times sent to England for trial.34 It was not intended that
the intermediary boards should erect themselves into courts
of justice for the trial of unimportant causes. They were
to exercise only a general supervision over the administra-
tion of justice in the colonies. Besides, the best interests of
the colonists demanded that disputes arising among them-
selves should be settled by the home judiciary, as suits
could not be prosecuted in England except at considerable
expense and inconvenience. But these natural restrictions
were not the only limitations on appeals to the King. Be-
fore the end of the seventeenth century, appeals in civil cases
had become limited to those suits in which the amounts in-
volved exceeded three hundred pounds sterling.88

84 Beverley, History of Va., Book IV, Chap. VI, p. 21. Sainsbury
MSS., 1706-1714, 380. McDonald Papers, II, 166.

"Chalmers, Political Annals, 356. Dinwiddie Papers, I, 383, 384.
In 1682, the limit was one hundred instead of three hundred pounds
sterling. Sainsbury MSS., 1679-1682, 151.

CHAPTER II.
THE SUPERIOR COURTS.

THE QUARTER OR GENERAL COURT.

Next to the assembly in the order of jurisdiction came
the Quarter Court, which was afterwards known as the
General Court. This tribunal was the successor of the
council court, which administered justice in the colony
during the first few years of its existence. As the local
council and its president were the judges of the Council
Court, so the governor and his council constituted the
Quarter or General Court. An exact date for the origin of
the Quarter Court cannot be given. We know, however,
that the governor and his council performed judicial duties
as early as 1619? and it is not improbable that Lord De La
Warr and the military rulers who succeeded him advised
with their councils in the administration of justice.

Not only is it difficult to say just when the councillors be-
gan to share with the governor the responsibilities of meting
out justice, but it is also equally difficult to determine the
precise date at which their executive and judicial duties
began to be performed in separate sessions. In Governor
Wyatt's instructions, given in 1621, there is an intimation
that the governor and his council sat at different times as a
court of justice and as a council of state. In these same
instructions, the governor and council are ordered to
" appoint proper times for the administration of justice "
From this, therefore, it would seem that as early as 1621
the governor and his council, as a rule, discharged their
judicial duties while sitting as a court of justice and agreed
on their executive measures while sitting as a council of

1 Colonial Records of Virginia, 24, 28.
"Hening, I, 116, 117.

34 Justice in Colonial Virginia. [432

state. But if there was a line of cleavage separating the
judicial from the other business transacted by the council,
it could not, at first, have been a clearly defined one ; for in
the early proceedings of the council we find judicial, execu-
tive, and legislative measures all recorded together.* Nor
can it be said that the executive and judicial sessions of the
council were held at different times of the year. The
councillors could not come together without considerable
inconvenience owing to the distance at which they lived
from each other,4 and when they assembled, in all prob-
ability, they did not adjourn until they had despatched all
the business of every kind that was before them. Certain
days, or parts of days, were perhaps set apart for deciding
suits and others for performing executive duties.

During the first years of which we have any record of
them, the meetings of the council for the trial of causes
were held at irregular intervals.5 It was not many years,
however, before a system of regular quarterly terms had
been evolved. When that stage was reached by the court,
the name Quarter Court could be properly used, and its
development in the direction of independence of the execu-
tive was practically complete, or rather about as nearly
complete as it was at any time during the colonial period.
But we are unable to say just when the court arrived at this
point in its development. A step towards quarter sessions
was taken in 1621, when the council was ordered by the
Company to assemble four times a year and remain in
session one week each time. These meetings were to be
devoted to " state affairs and law suits." This order came
in response to a complaint made by Governor Yeardley to
the effect that the councillors did not come together as often
as the public interests demanded. The reasons assigned by him
for this indifferent attendance were that they were few in

8 Robinson MSS., 54, 59, 60, 63, 66, 67, 70, 73.

4 See page 35-

'Virginia Court Book, 1622-1626.

433] The Superior Courts. 35

number, lived at considerable distances from each other and
received no compensation for their services in the colony.'
By 1626 the term Quarter Court had come into use, being
applied to the quarterly meetings of the councillors. But
meetings of the council were also held in the intervals
between the quarter terms, and at these, as well as at the
quarter sessions, judicial duties were performed. Just how
long before the judicial sessions of the council were con-
fined to the quarter terms, cannot be determined, but it was
probably not later than 1642. 7 By 1632 the Quarter Court
had gone far enough in its development to receive statutory
recognition. At that time a law was passed providing that
the " foure quarter corts shall be held at James City yearlie,
as followeth, vizt., uppon the first day of September, the first
day of December, the first of March, and the first day of
June." '

After this changes were made from time to time in the
dates at which the courts convened.9 In 1659, the June court
was abolished because it was found inconvenient to hold it
at that time. The reason given for this inconvenience was
that " the shipps are (were) then out of the country, time of
payment past, and the crop then chiefly in hand." The ses-
sions of the Quarter Court were by this change reduced to
three a year.10 The term Quarter Court had now become a
misnomer, and in a few years that of General Court was
substituted for it.11 It was afterwards considered unneces-
sary for the court to convene as often as three times a year,
and in 1684, the sessions were made semi-annual. From
that time on the court met regularly in April and October."

The act of 1632 made no provision regarding the length

"Collingwood MSS., I, 236.

7 Virginia Court Book, 1623-1626. Robinson MSS., 57, 62, 63,
65-67. Hening, I, 270. McDonald Papers, I, 377.

'Hening, I, 174.

'Ibid., I, 187, 270, 461, 524; II, 227; III, 289; V, 319, 320.

"Hening, I, 524.

11 Ibid., II, 58.

"Hugh Jones, Present State of Virginia, 29. Dinwiddie Papers,
I, 383- Hening, III, 10, 289; V, 319, 320; VI, 328.

36 Justice in Colonial Virginia. [434

of the terms of the court. In the instructions given by the
King in 1639 to Governor Wyatt, the Quarter Courts were
required to remain in session one week or longer if neces-
sary.18 About four years later, it was enacted by the assem-
bly that the four courts (which at that time were appointed
to be held in March, June, October, and November) should
continue, the first and last for eighteen days each, and the
second and third, for ten days each. There was also a pro-
vision requiring the assignment of a definite number of
causes instituted by writs for each day of every term.1* In
imposing these minute regulations on the court, the assem-
bly acted as if the amount of judicial business to be dis-
patched by the governor and council each year was a con-
stant quantity which could be measured in advance with
mathematical accuracy. After this the length of the terms
was changed from time to time, but was finally fixed at
twenty-four days exclusive of Sundays, though the court
was not required to remain in session so long if it could
clear its docket in a shorter time than that prescribed.15

It is not to be supposed that these inelastic regulations of
the assembly could be closely fitted to the conditions with
which the General Court had to deal. The assembly, of
course, could not gauge beforehand the exact volume of the
judicial business that would come before the court, and the
attempts to limit it as to the number of causes it should try
each day, or the number of days it should sit, must have
been futile. We are not surprised, therefore, to find that
during the periods for which we have a record of its pro-
ceedings, the General Court did not conform strictly to the
statutory regulations regarding the times for meeting."

13 Sainsbury MSS. 1637-1649, 44.

"Hening, I, 270, 271.

"Hening, III, 289; V, 319, 320; VI, 328. Webb's Justice, 106.

"During the years 1674 and 1675, the meetings of the General
Court were held on the following dates: 1674 — April 2, 3, 4, 6, 7,
8, 9; Sept. 22, 23, 24, 25, 26, 28, 29; Oct. i, 2, 5, 8; Nov. 16, 17, 19,
20, 21. 1675— March I, 3, 4, 5, 6; June 15, 16, 17, 18, 19; Oct. 4, 5,
6, 7, 8, 9, ii, 12.

At this time the statutes provided that three courts should be held

435] The Superior Courts. 37

The General Court usually held its sessions at the capital
of the colony, that is, at Jamestown during the seventeenth
century, and at Williamsburg during the remainder of the
colonial period.17 In the early years there seems to have
been no state-house in Virginia, and the business of govern-
ment was transacted at the house of the governor. The
governor was also put to great expense in entertaining coun-
cillors and Burgesses during the terms of the Quarter
Court and the assembly, and he was authorized by the King
to recoup himself by appropriating to his own use all the
fines imposed by the court. But the incomes from the fines
apparently fell far short of the outgo occasioned by the hos-
pitality which was dispensed at public times. For we find
Governor Harvey writing to England in a despairing tone
saying that if some relief were not soon afforded him the
expense of council meetings and assemblies would, as he
phrased it, cause both his heart and his credit to break, and
that he should be called the host, rather than the Governor
of Virginia." In 1639, Governor Wyatt was instructed by
the King to have a state-house built," but this order was
either not carried out, or, if it was, the building erected was
destroyed by fire. For in 1663, the sessions of the General
Court and the assembly were being held in ale-houses.
High rents had to be paid for the use of these places ; and,
besides, it was considered beneath the dignity of the colony

every year. According to laws enacted in 1662 and 1666, the terms
of these courts were to begin April 15, September 20, and November
20, unless those dates fell on Saturday or Sunday, in which case
they were to begin the following Monday. The length of the first
term was to be eighteen days, that of the other two, twelve days
each. This contrast between the regularity found in the legal pro-
visions and the irregularity found in the court practices, goes to
show that the assembly did not succeed in its efforts to place the
General Court in a strait- jacket. Records of the General Court,
1670-1676; see dates given above. Robinson MSS., 68-74. Records
of York Co., 1633-1694, 20, 54, 101. Hening, II, 58, 59, 227.

"Records General Court, 1670-1676, 154. Robinson MSS., 51, 59,
69, 74. Hugh Jones, Present State of Virginia, 25. Hening, III,
200.

"MacDonald Papers, II, 23. Sainsbury MSS., 1631-1636, 35.

18 Sainsbury MSS., 1637-8-1649, 46".

38 Justice in Colonial Virginia. [436

for its laws to be made and its justice administered in
houses where drinks were vended. For these reasons, the
assembly in this same year passed a law providing for the
erection of a building in which the affairs of the colony
could be conducted.10 After Williamsburg became the colo-
nial capital, a costly state-house was built, the finest, it is
said, that could then be seen in the British posessions in
North America. One side of the capitol was given over to
the use of the General Court and its officers, and the other to
the assembly and its officers.21

As we have already seen, the General Court was composed
of the governor and his council. Councillors were appoint-
ed by the Company before its charter was annulled and after
that time by the King on the recommendation of the inter-
mediary boards. Vacancies in the council were usually filled
in the following manner: — the governor would select such
men as he deemed suitable for the office and would send in
their names, together with an account of their qualifications,
to the intermediary board ; * when the list recommended
had received the sanction of this board, it was passed on to
the King, whose formal approval was necessary to make the
appointments legal. Councillors were not chosen for any
definite period, but were recommissioned whenever a new
governor was sent to the colony or a new King came to the
throne. The old councillors, however, were usually con-
tinued in office by the new commissions, and, in practice,
therefore, it resulted that the judges of the General Court
held office for life.28

30 Hening, I, 425; II, 204.

"Sainsbury MSS., 1625-1705, 74. Hening, III, 419, 421. Hugh
Jones, Present State of Virginia, 25, 29. It took some time to com-
plete the new capitol, and during the period of waiting the assembly,
and probably the General Court, held their sessions in the College
of William and Mary. Hening, III, 189, 197, 200, 204, 218, 224, 227,
419. Calendar of Virginia State Papers, I, 72, 73.

** These nominations were sometimes, if not generally, made with
the advice and consent of the Council. Sainsbury MSS., 1637-1649,
40. Spottswood's Letters, I, 7.

* Sainsbury MSS., 1606-1740, 104; ibid., 1624-1631, 138; ibid.,
1625-1705, 94, 118; ibid., 1625-1715, 373; ibid., 1631-1637, 183; ibid.,

437] The Superior Courts. 39

By this method of appointment, the nominations made by
the governor could not receive final confirmation until after
a considerable period of time had elapsed. But it was im-
portant that the vacancies should not remain open during
the period of waiting, and so the practice arose of allowing
the governors to bridge over these intervals by making
temporary appointments. Whenever the membership of the
council was reduced by deaths or removals so as to be less
than nine, the governor was to name as councillors as many
prominent men as would be necessary to bring it back to that
number. These temporary appointments became permanent
after they had been confirmed by the King. The governor
could also suspend councillors for just cause, but whenever
he exercised this power, he had to report to England the
reasons for his actions and support with proofs his charges
against the excluded member.24

One would think that this power to suspend judges was
liable to be abused by an unscrupulous governor. It would
seem that by temporarily removing from the council those

1637-1649, 38, 40-42; ibid., 1679-1682, 125, 127, 135; ibid., 1691-1697,
176, 234; ibid., 1705-1707, 314, 524; ibid., 1706-1714, 334, 341- Va.
Mag. of Hist, and Biog., II, 396. Proceedings of Va. Company, I,
76. Stith, Hist, of Va., Appendix, 32, 33. Randolph MS., 193, 200,
201, 406, 461-62, 482. De Jarnette Papers, II, 436, 535. Council
Journal, 1721-1734, 32, 76, 91, 249, 252.

24Sainsbury MSS., 1640-1691, 318, 333, 396; ibid., 1682-3-1686, 28;
ibid., 1686-1688, 30, 31; ibid., 1691-1697, 152; ibid., 1706-1714, 48;
ibid., 1715-1720, 732, 788. Randolph MSS., 406. Calendar of Vir-
ginia State Papers, I, 1652-1681, 21. Spottswood's Letters, II, 54,
55. McDonald Papers, VI, 227.

According to accounts of Virginia written by Beverley and by Hart-
well, Blair, and Chilton (published in 1705 and 1727, respectively),
the power to suspend councillors was not conferred on the governors
until after Bacon's Rebellion. As a reason for thus increasing the
authority of the governor, it was contended that this power would
enable him the better to put down an incipient rebellion. The re-
bellion of 1676, it was claimed, could have been nipped in the bud
if Governor Berkeley had had the authority to suspend Bacon from
the council. But instances are recorded in which councillors were
suspended before Bacon's rebellion. Even Governor Berkeley him-
self exercised this power, for we find that in May, 1676, he issued
a proclamation suspending Bacon from the council. Sainsbury MSS.,
1624-1631, in, 112, 216; ibid., 1660-1676, 244; ibid., 1677-1679, 19.
Hartwell, Blair, and Chilton, 23, 56. Beverley, Hist, of Va., Book
IV, Chap. I, p. 2.

4O Justice in Colonial Virginia. [438

members that opposed his schemes he might frequently pro-
cure unjust sentences from the court. But the council was
in a position to restrain him from an arbitrary use of this
power. The councillors were generally men of means and
influence, for none but those who were possessed of con-
siderable estates were eligible to this high office." One of
their number, usually the oldest in commission, succeeded
temporarily to the governor's chair when it became vacant
by the death or removal of the governor." Many of them,
therefore, must have had considerable influence with the
governing authorities in England. An unjust removal was
always liable to bring on a quarrel between the injured
party and the governor, and in disputes of this kind the
governor was not always sustained by the King.17 Besides,
the council, owing to the prominence of its members and
their family connections with other prominent men, had
great influence in the colony and was able to make its power
felt in the government." Nor were the councillors slow in
asserting their rights. Their cavalier sentiments did not
prevent their antagonizing the King's representative when
they considered that their privileges had been infringed.
Consequently, they often took an attitude of strenuous oppo-
sition to the measures proposed by the governor. Indeed,
in the contests between the Virginia council and the King's
representative, the history of the struggles of the ancient
English kings with their barons was, in a small way, repeat-
ing itself. Sometimes these barons of Virginia and their
allies carried their opposition to the governor to the point of
procuring his dismissal.29 We can, therefore, readily see

"Sainsbury MSS., 1640-1691, 438; ibid., 1691-1697, 152; ibid.,
1625-1715, 77. Spottswood's Letters, II, 39, 41, 55. McDonald
Papers, VI, 26.

^Sainsbury MSS., 1624-1631, 166, 216; ibid., 1637-1649, 38; ibid.,
1691-1697, 161 ; ibid., 1720-1730, 212. Randolph MSS., 413, 513.

"Sainsbury MSS., 1691-1697, 236. Hartwell, Blair, and Chilton,
36. Calendar of Virginia State Papers, I, 195.

"Sainsbury MSS., 1715-1720, 709.

29 In the quarrel between Governor Harvey and his council, the
opposition verged upon rebellion. This dispute seems to have arisen

439] The Superior Courts. 41

that the governor, even though he were unscrupulous,
would, as far as he could, avoid every occasion to arouse the
opposition of his council and would be very chary in the
exercise of his power to suspend judges of the General
Court.

During the Commonwealth period the method of choos-
ing councillors was different from that employed at other
times. While the colony was under the rule of Cromwell,
the members of the council were appointed by the Burgesses,
the representatives of the people. As the governor was
also elected by the lower house, the Quarter Court enjoyed
complete independence of the mother country during this
time.*0 The effect of this change was to give to the people,
indirectly through the House of Burgesses, power over the
Quarter Court. It was a step towards democracy. The
reforms in Virginia which gave the people a stronger voice
in their government was a faint echo of the Puritan Revo-
lution. But this impress of democracy which was dimly

out of a false conception on the part of the governor as to the
relative powers of the chief executive officer and his cabinet, though
Matthews, one of the opposing party, represents him as a tyrant
who tried to lord it over the council. It is not unlikely that Har-
vey's support of the claims of the Maryland colony to Kent Island
against those of Clayborne was also one of the causes of the rup-
ture between him and his council. According to Matthews, Harvey
claimed that the council had only the power to advise the governor,
who could accept or reject its counsel as he saw fit. Harvey, on
the other hand, declared that the council wanted to deprive him of
his right to vote in the council except in case of a tie. There was
no attorney-general in Virginia to decide the disputed question, and
Harvey wrote to England for a legal opinion regarding the respective
powers of the governor and council. The councillors believed their
quarrel just, and, being supported by the Burgesses, deposed the
governor and sent him to England to answer certain charges which
they had brought againt him. The King, of course, did not counte-
nance such an attack, though indirect, on his royal prerogative, and
sent Harvey back to Virginia as governor, and summoned some of
the councillors who lead the opposition to England to "answer an
information at the King's suit " in the Court of Star Chamber. No
record has been found of any sentence being pronounced against
them by this court, but two of them were detained in England a
long time and were thus put to great inconvenience. Sainsbury
MSS., 1631-1637, i, 2, 111-116, 122-124, 126-130, 207, 210; ibid., 1640-
1691, 2.
"Hening, I, 371, 372, 408, 422, 431, 504, 5*5, 5*7, 53*.

42 Justice in Colonial Virginia. [440

stamped on the Virginia judiciary was soon effaced by the
royalist reaction. With the Restoration there came a return
to the old regime, and from that time until our own Revo-
lution the people took no part either directly or indirectly in
the appointment of the judges of their most important
court.

A full council was usually composed of twelve or thirteen
members, though the number was sometimes greater and
sometimes less than this. During the early years, there
seems to have been no minimum limit below which the num-
ber could not be reduced by deaths and removals." But
later there was a provision that the governor was to keep the
number up to nine by making temporary appointmets. The
attendance of the judges at the meetings of the General
Court was usually poor, considering their number, and
during the periods for which we have records of its pro-
ceedings, the court was generally attended only by about
one-half of the councillors." But a certain number of judges

"Under the rule of Governor Pott, the number of councillors at
one time ( 1630) fell to two, but this was an exceptional case. Sains-
bury MSS., 1624-1631, 129, 223; ibid., 1677-1679, 102; ibid., 1705-
1707, 314, 524. De Jarnette Papers, II, 436, 535. Winder MSS., I,
205. Randolph MSS., 193, 200, 201. Blair, Hartwell, and Chilton, 34,
35. Hening, II, 511. Beverley, Hist of Va., Book IV, Chap. I,

P- 5-

"The only records now extant of the proceedings of the General
Court, except occasional notices, are the following: (i) A manu-
script now in the Congressional Libary, known as the " Virginia
Court Book." It covers the period from March, 1623, to 1630 (?),
but only the first part of it is at present in a condition to be used.
(2) The General Court Records (1670-1676) in the library of the
Virginia Historical Society, Richmond. (3) The Robinson MSS.
(1626-1670), also in the library of the Virginia Historical Society.
These consist of notes made by Mr. Conway Robinson from the
original records of the council, probably from the MSS. now in the
Congressional Library. In addition to these there is given in one
volume of the Ludwell MSS. (in the library of the Virginia Historical
Society), a list of the cases tried in the General Court during a
brief period (1724-1726).

From these records, I find that the average attendance of council-
lors at courts, not including the governor, who was usually present,
was about six for the year beginning with May, 1624, and ending
with May, 1625, and a little below six for the period extending from
October, 1673, to March, 1676. Robinson MSS., 51-74. General
Court Records, 1670-1676, 154-261. Virginia Court Book, 1623-
1626, 20-95.

441] The Superior Courts. 43

had to be present at every court before any case could be
tried. No council could transact any business unless at
least three of its members were present, and except on extra-
ordinary occasions, no court could be held with a smaller
quorum than five.83 The failure on the part of the judges to
attend the court sessions regularly was doubtless due mainly
to the distance at which they lived from the seat of govern-
ment and to the lack of travelling facilities.84 In the early
years the Quarter Court tried to coerce its judges into a bet-
ter attendance by imposing fines on absentees, but appar-
ently with little success.85

The councillors at first received no allowance for looking
after the affairs of the colony, and, as we have seen, this
was, according to Governor Yeardley, partly the cause of
the poor attendance at the council meetings complained of
by him.39 The Company must have acted favorably on
Yeardley 's hint, for in 1625 we find the councillors receiving
pay for their services.37 A little later (1640) each one was
granted exemption for himself and ten servants from all
general taxes except ministers' dues and contributions for
building churches or towns and for carrying on defensive
wars.38 To this privilege was afterwards added a salary of
250 pounds sterling, which was to be apportioned among
the councillors according to their attendance at Quarter
Courts and assemblies. By Bacon's laws the exemption
from taxation was done away with, and one hundred pounds
was added to the allowance that had hitherto been made to
them. Other increases in salary were afterwards made, and

33 Sainsbury MSS., 1625-1715, 77. Winder MSS., I, 205. Randolph
MSS., 406, 435, 489. Dinwiddie Papers, I, 383.

34 Collingwood MSS., I, 236.

35 On one occasion the court was anxious that all the judges should
be present at the next session, as an important case would then come
up for trial, and in order to insure a full attendance, it ordered
that every one that should be absent without a lawful excuse, should
pay a fine of £40. Robinson MSS., 76, 186.

39 Proceedings of Virginia Company, I, 126.

"Virginia Court Book, 1623-1626, 77.

38 McDonald Papers, I, 379. Hening, I, 228, 445, 279.

44 Justice in Colonial Virginia. [442

in 1755, the services of the councillors were rewarded with
more than twelve hundred pounds a year.88

In addition to the salary, there were other emoluments
that went with the place of councillor. The councillors had
almost an entire monoply of the principal places of honor
and profit in the colony. They usually commanded the
militia of their respective counties with the rank of colonel.40
According to Hartwell, Blair, and Chilton, another source
of profit to the members of the council was the privilege —
shared also by the governor and the auditor — of buying at a
low price all the quit-rents due to the King, which were paid
in tobacco. The whole colony was divided among them,
each commissioner taking the county or counties most con-
venient to him.41

The governor presided over the General Court and passed
sentence on convicted criminals.*2 Causes were decided by a
majority vote of the judges present, and when the councillors
were equally divided, the deciding vote was cast by the gov-
ernor.48 There were also certain judicial duties that the
governor could perform out of court. He could remit fines
and forfeitures and grant pardons for all offenses except
wilful murder and treason. Persons convicted of these
crimes could be pardoned only by the King, but could be
reprieved by the governor.*4 But these, as well as other

"Robinson MSS., 227, 228. Hening, I, 523; II, 32, 84, 85, 359, 391,
392; III, 348; V, 227. Sainsbury MSS., 1637-1649, 45; ibid., 1691-
1697, 331- Dinwiddie Papers, I, 390. Beverley, Hist, and Present
State of Va., Book IV, p. 6.

40 Winder MSS., I, 206. Hartwell, Blair, and Chilton, 32, 33, 63.

" The quit-rents were an annual tax of one shilling on every fifty
acres of land that had been patented. Hartwell, Blair, and Chilton,
33. 56, 57. Sainsbury MSS., 1691-1697, 342.

"Hartwell, Blair, and Chilton, 20, 21. General Court Records,
1670-1676, 53.

43 Sainsbury MSS., 1624-1631, 134. Randolph MSS., 163, 207. Mc-
Donald Papers, I, 377. Spottswood's Letters, II, 14.

44 It is true that Governor Pott pardoned wilful murder, but in
doing so he exceeded his authority. In 1690 Governor Lord How-
ard was ordered not to remit fines above the amount of ;£io with-
out special permission from the King. Sainsbury MSS., 1624-1631,
216, 224, 225; ibid., 1640-1691, 320; ibid., 1682-1686, 3; ibid., 1720-1730,

443] The Superior Courts. 45

judicial acts, seem usually to have been done with the
advice of the council. Another power exercised by the
governor was that of signing orders for the administration
of estates and the execution of wills.45 By an abuse of this
privilege, Governor Howard was able to extort a tax from
the people for his own private use. A high fee was charged
every time the seal was affixed to letters of administration
and probates of wills. He claimed that the fees complained
of were charged in all the colonies and that the revenue ac-
cruing from them was one of the perquisites of his office.
The tax was such a burden that the Virginians sent Philip
Ludwell to England to make complaints against the gover-
nor, but he did not succeed in procuring his dismissal.48

The Quarter or General Court took cognizance of both
civil and criminal causes, and its jurisdiction was both origi-
nal and appellate. At first the governor and council decided
causes of all kinds, but they were relieved of much of the
judicial business of the colony after the county courts had
grown into importance. It was some years, however, after
the formation of the lower courts before we find any provi-
sions restricting either the original or appellate jurisdiction
of the Quarter Court with respect to suits of minor impor-

347, 392, 418, 465. Dinwiddie Papers, I, 384, 385. Randolph MSS.,
138, 408, 416, 464. Council Journal, 1721-1734, 220, 221, 251, 267,
280, 283, 341, 412, 413, 494, 495.

48 Certificates for granting letters of administration were given both
by the General Court and by the county courts. When an adminis-
trator or executor had obtained such a certificate from a court, it
was presented to the governor, who thereupon signed an order em-
powering him to administer the estate mentioned in the certificate.
For a while the justices of the county courts had the power to sign
letters of administration. A law was passed in 1676, which was re-
enacted next year, authorizing any two justices of the quorum to
sign probates and letters of administration. General Court Rec-
ords, 1670-1676, 185, 213. Henrico County Court Records, 1737-
1746, 15, 34, 135, 249, 359, 412; ibid., 1719-1724, 28, 88, 294, 335. Rap-
pahannock County Court Records, 1686-1692, 15, 24, 74, 156, 230.
Essex County Court Records, 1695-1699, 49, 95, 100, 122. Henrico
County Court Records, 1677-1692, 16, 17. Blair, Hartwell, and Chil-
ton, 47, 48. Hening, II, 359, 391. Beverley, Hist, of Va., Book IV,
p. 29.

46 Beverley, Book I, pp. 89-90. McDonald Papers, VII, 154, 155.

46 Justice in Colonial Virginia. [444

tance. But the judicial work to be performed could not be
properly apportioned between the higher and lower tribunals
without narrowing the jurisdiction of the former. So, be-
fore the middle of the century was reached, the original
jurisdiction of the Quarter Court began to be restricted so as
to exclude all unimportant civil causes. The laws imposing
this limitation varied from time to time, but always provided
that only suits involving certain amounts could originate
in the higher court. The civil causes which these regula-
tions allowed to be brought directly into the General Court
were those in which the amounts involved equalled or ex-
ceeded ten, fifteen, sixteen, or twenty pounds sterling —
these were the different limits at different times.*7

When the monthly courts were first organized there were no
restrictions on appeals from them to the Quarter Court, and
any one who was not satisfied with the award of the monthly
court could bring his case by appeal before the governor and
council for a hearing.48 It was not many years, however,
before the appellate, like the original, jurisdiction of the
Quarter Court began to be narrowed down to the more im-
portant cases. By a law of 1647, tne appellate jurisdiction
of the governor and council was limited to controversies in-
volving amounts not less than sixteen hundred pounds of
tobacco, or ten pounds sterling, but appeals from North-
ampton, a county east of Chesapeake Bay, were not to be
allowed on account of its remoteness from James City, except
in causes of double that amount.48 But this restriction was
found impracticable, and some years later it was repealed,

47 Hening, I, 125, 346, 477 ; III, 143, 144, 289 ; V, 469 ; VI, 327. Din-
widdie Papers, I, 383. Beverley, Book VI, p. 24.

"Hening, I, 125.

" So far as I have been able to find, there was no law thus re-
stricting appeals before 1647; but a limitation had existed in the
practice of the courts for a few years prior to this time. In 1642,
Governor Berkeley, in his commission to the justices of Lower Nor-
folk County, instructed them to allow no appeals to the governor
and council for amounts not exceeding 600 pounds of tobacco or ten
pounds sterling. Lower Norfolk County Records, 1637-1643, 160.
Hening I, 345, 398, 520.

445] The Superior Courts. 47

except that part of it that applied to Northampton county.6*
One of the reforms instituted by the legislaure of 1676 was
the removal of this discrimination against the trans-Chesa-
peake counties.61 In the eighteenth century appeals to the
Quarter Court were again limited so as to exclude unim-
portant cases, and this restriction continued in force until
the end of the colonial period.82

The appellate jurisdiction of the General Court was also
limited in another way. The appellant always had to pay
heavy damages when the governor and council affirmed the
decision of the lower court. At first the law provided that
all persons appealing from the monthly courts to the gover-
nor and council should pay double damages when cast in
their suits.53 But a proper administration of justice de-
manded that the principal tribunal should not be walled in
too closely against suits originating in the lower courts, and
so it was afterwards found necessary to lower the barriers
by which they were kept out. By a statute of 1647, the
burdens borne by appeals to the Quarter Court were reduced
to fifty per cent additional damages.154 But even this law
left the General Court too much hampered in the exercise of
its appellate jurisdiction, and before the end of the century,
the damages on appeals had become fixed at fifteen per cent
of the amount originally awarded by the lower court.65

50 Hening, I, 541; II, 66. Hartwell, Blair, and Chilton, 46. Gen-
eral Court Records, 1670-1676, 33, 71.

"Hening, II, 362, 397. The legislature that met in June, 1676,
was under the influence of Bacon, and the laws passed by it are
known as Bacon's Laws. All these were repealed the next year, but
many of them were re-enacted. Hening, II, 341.

B2Hening, III, 300; IV, 188; V, 481; VI, 339. Mercer, Va. Laws,
8,9- M Hening, I, 125. "Ibid., I, 345-

55 From this time on the damages to be paid by the defendant
when an appeal was decided against him was fifteen per cent of the
amount first awarded in all personal and mixed actions. In the
early part of the eighteenth century, the damages in real actions
were fixed at 2000 pounds of tobacco for every case appealed. Dur-
ing the last years of the colonial period, a difference as to the amount
of damages charged was made between the appeals of the plaintiff
and those of the defendant. The former had to pay fifty shillings,
or 500 pounds of tobacco, whenever the appellate decision was against
him. Hening, III, 143, 301, 514; V, 480; VI, 340. Mercer, Vir-
ginia Laws, 10.

48 Justice in Colonial Virginia. [446

There were never any separate chancery courts in Vir-
ginia during the colonial period, but both the General Court
and the lower tribunals sat on chancery cases. If any one
were wronged by a decision at common law, he could be
granted a new hearing in chancery ; but his cause would be
tried by the same judges sitting as a court of chancery." This
was the usual practice, but when Lord Howard was governor
an attempt was made to introduce a more imposing method
of deciding chancery suits. It was his aim to establish an in-
dependent court for the trial of chancery cases, over which
the governor was to preside as Lord Chancellor. The coun-
cillors sat with him, but were expected to give advice only, as
the governor reserved to himself the sole power of render-
ing decisions. In order that this chancery court might
appear the more independent of the General Court, the gov-
ernor convened it, not in the state-house where the sessions
of the latter were held, but in the dining-room of a private
house. But this high court of chancery was short-lived.
After Lord Howard ceased to be governor, the General
Court resumed its old practice of deciding chancery causes."

During the greater part of the seventeenth century, the
General Court and the assembly were the only courts in the
colony that could punish important criminal offenses, those
affecting life or member.63 The criminal jurisdiction of the
Quarter Court also extended to minor offenses, though these
were also cognizable in the county courts. Indeed, neither
law nor custom recognized any sharp dividing line between
the jurisdiction of the higher and lower tribunals in crim-
inal cases. In the early records of the Quarter Court, we

86 Blair, Hartwell, and Chilton, 43. Ludwell Papers, Vol. III.
Records of Henrico County, 1719-1724, 47, 109, 129, 148, 370; ibid.,
1710-1714, 74, 252, 306. Mercer, Virginia Laws, 9, 156.

"Beverley, History of Va., Book I, pp. 90-91. Hartwell, Blair,
and Chilton, 20. Sainsbury MSS., 1691-1697, 335.

"The county courts were for a while permitted to try important
criminal cases, but they were deprived of this power in 1656. Hen-
ing, I, 397, 398.

447] The Superior Courts. 49

meet with many of the same class of law-breakers that
appear in the order-books of the county courts.89

In the Quarter Court, even at an early period, persons
charged with grave offenses were tried by a petit jury after
they had been indicted by a grand jury.80 It could not be
expected, however, that information of all the crimes com-
mitted in the colony would reach the grand jury without the
aid of some intermediary agency. Besides, it was impossi-
ble for the sheriff that attended the General Court to make
arrests in distant counties. Therefore, the judicial machin-
ery of the counties had to be employed in bringing criminals
before the governor and council for trial. Arrests for
crimes were made by the sheriffs of the counties in which
they were committed, and criminal offenses were first in-
quired into by the justices of the peace, who decided which
cases should be tried by the county courts, and which ones
should have a hearing before the governor and council.61

In the early years, certain offenses, chiefly breaches of the
moral code, could also be brought before the governor and
council by the churchwardens. These officers were to re-
port all those who had been guilty during the year, of drunk-
enness, adultery, swearing, absence from church, Sabbath-
breaking, and other sins of like character, as well as minis-
ters who had failed to preach one sermon every Sunday,
and " such maysters and mistresses as had been (shall be)
delinquent in the catechising the youth and ignorant per-
sons." But the practice of receiving presentments made by
churchwardens seems to have been discontinued by the
court before the middle of the seventeenth century."

"General Court Records, 1670-1676, 155, 156, 187, 211, 222. Rec-
ords of Lower Norfolk County, 1637-1643, 2, 5, 15, 52, 62, 103, 177,
218. Records of Accomac County, 1640-1645, 49, 69, 88, 97, 168, 200.
Robinson MS., 8, n, 30, 76, 78. Records of Rappahannock County,
1686-1692, 55, in, 114, 147, 158.

60 Robinson MSS., 75, 76, 83. For an account of jury trials in the
General Court and the oyer and terminer courts, see pp. 66-68.

"Records of Accomac County, 1632-1640, 43, 47; ibid., 1640-1645,
270. Hening, I, 304; III, 225, 389-301. Records of Rappahannock
County, 1686-1692, 162, 163. See p. 96.

83 Hening, I, 125, 155, 156, 180. Robinson MSS., 220.

5O Justice in Colonial Virginia. [448

The Virginia courts were governed in their decisions by
the common law of England and by the Parliamentary stat-
utes that were enacted before the colony was settled, but not
by any that were enacted after that event except those that
made mention of the plantations." The first act of assembly
that has been found in which the common law of England
is recognized as being in force in Virginia was passed in
1662 ; ** but in all probability the common law was to some
extent observed by the courts during the entire colonial
period with the exception of the time during which the
colony was under military rule. One would naturally ex-
pect the early judges to decide cases according to the laws
under which they had lived in England, in so far as they
knew them, even if they were not required to do so. Be-
sides, prior to 1662 orders were issued from England from
time to time directing the authorities in Virginia to follow
the laws of England, as far as was practicable, in their gov-
ernment of the colony. Such an instruction was given to
the King's council of Virginia in 1606, and a similar pro-
vision is found in commissions to governors that were issued
before 1662. As early as 1621, Governor Wyatt was in-
structed to " do justice after the form of the laws of Eng-
land."' The benefit of the writ of habeas corpus was not
formally extended to Virginia until 1710, when this privilege
was brought over to the colonists by Lieutenant-Governor
Spottswood." But this privilege was enjoyed in Virginia be-
fore this formal recognition of it was made by the crown ;

88 Byrd MSS., ed. 1866, II, 237. Records Lower Norfolk County,
1637-1643, 160. Accomac County Records, 1640-1645, 149.

In 1711, a woman was brought before the General Court for vio-
lating a penal law passed by Parliament in the twenty-first year of
the reign of James I. The case was dismissed on the ground that
the law did not apply to Virginia, as it was passed after the colony
was settled and the plantations were not mentioned in it. Spotts-
wood's Letters, II, 57, 58.

"Hening, II, 43.

* Brown, Genesis of the United States, 66. McDonald Papers, I,
376. Sainsbury MSS., 1637-1649, 44. Hening, I, 44.

96 Spottswood's Letters, II, 13. Henrico County Court Records,
1710-1714, 28. Journal of the Assembly, 1697-1720, 36-37.

449] The Superior Courts. 51

for a writ of habeas corpus was granted to Major Robert
Beverley in 1682."

While the General Court doubtless tried to conform its
decisions to the laws of England, yet it was impos-
sible 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.68 Besides, a legal
education was not a requisite qualification 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 encountered
from the assembly, and, therefore, the judges for most of
this time were without legal advice from professional attor-
neys as to the proper interpretation of laws and pre-
cedents.88 The Virginia statutes did not, of course, cover all
the offenses of which the court took cognizance, conse-
quently, and especially in the early years, it had to rely
mainly on its own originality in rendering decisions.

The Quarter Court did not believe in half measures when
it came to dealing out punishment to those who had incurred
its censure, and the severity of some of its early sentences
leaves the impression that the spirit of Dale was at that time
still lingering in the Virginia judiciary. Some of the in-
human penalties inflicted by the High Marshal are recorded
in the early proceedings of the Quarter Court. Offenders

"Hening, III, 547. Campbell says that his privilege had been
denied the Virginians prior to this time. He probably overlooked
the case cited above. Campbell, History of Virginia, 379.

wHening, II, 43.

98 See pp. 116-118. However, the court was not entirely without
legal advice, for there was an attorney-general in the colony as
early as 1643. Virginia Magazine of History and Biography, VIII,

52 Justice in Colonial Virginia. [450

were made to lie neck and heels together,70 or were made to
stand in the pillory, sometimes with their ears nailed to it.n
The death penalty usually took the form of hanging, but one
case is mentioned in which the criminal was ordered to be
drawn and hanged." One way in which fornication had to
be atoned for was for the sinner to do penance in church
during divine worship by standing before the congregation
wrapped in a white sheet.73 Particularly severe was the pun-
ishment inflicted on those who spoke disrespectfully of the
government authorities. That the early councillors were
not inclined to tolerate seditious utterances on the part of
the people and were not troubled with nice scruples regard-
ing the freedom of speech, can be seen from the manner in
which they disposed of the following case, which came be-
fore them in 1624. A man who had used abusive language
in speaking about Governor Wyatt was arraigned before the
council in the absence of the governor, who refrained from
taking part in the proceedings. In punishing this insult to
its president the court ordered that the tongue of the
offender should be bored through with an awl, and that He
should also "pass through a guard of forty men, should

70 One case is recorded in which the culprit had to lie in this
position for twelve hours. Robinson MS., 65, 76.

"This ignominious punishment was not confined to servants and
criminals of the baser sort, but those that were high in authority
might be subjected to it. In 1624, we find the governor and coun-
cil prescribing this penalty for their secretary, who had violated the
oath of secrecy that had to be taken by all who attended the coun-
cil meetings by giving the King copies of their proceedings. As a
punishment for this betrayal of their secrets, the governor and coun-
cil ordered that the secretary should stand in the pillory at James
City with both his ears nailed to it and then have them cut off.
The rigor of this sentence, however, was somewhat abated in the
execution, and the offending clerk escaped by losing only a piece of
one of his ears. Sainsbury MSS., 1624-1631, 112. Virginia Court
Book, 1623-1626, May, 1624. Robinson MSS., 28, 61.

"Robinson MSS., 75, 76.

78 The Quarter Court, as well as the county courts, sometimes em-
ployed original methods of punishment. On one occasion a woman
was sentenced to be dragged at the stern of a boat to the Margaret
and John, a vessel anchored in James River. Another woman was
to be towed around the same vesel and then ducked three times.
Robinson MSS., 30, 53, 62, 65.

The Superior Courts.

53

(shall) be butted by every one of them, at the head of the
troop kicked and footed out of the fort; that he shall be
banished out of James City and the Plantation, that he shall
not be capable of any priviledge or freedome of the
country," &c.74

There were certain inherent weaknesses in the constitution
of the General Court which were liable to breed abuse. Its
close connection with the legislature and the executive was
not favorable to an impartial administration of justice. The
councillors, as members of the upper house of the assembly,
took part in the enactment of the laws ; as judges of the Gen-
eral Court they interpreted them; and as advisers of the
governor assisted in the execution of them. Such a union
of separate and distinct powers in one body of men deprived
the judiciary of that independence which, according to mod-
ern views, is so essential to good government. Moreover,
the executive and legislative duties of the councillors, to-
gether with those of the many offices held by them, must
have consumed a good deal of their time and left them
without sufficient leisure to acquire that legal knowledge
which they needed in the discharge of their judicial duties.

There was also the danger that the councillors might in
certain contingencies be brought into an in judicial frame of
mind by the performance of their military duties. Imme-
diately after Bacon's rebellion, this potential evil developed
into an abuse in actual practice. Some of the councillors,
if not most of them, were opposed to the insurrectionary
movement led by Bacon, and one of them, Ludwell, took the

"Robinson MSS., 28, 29. Virginia Court Book, 1623-1626, May,
1624.

In thus giving examples of penalties prescribed by the Quarter
Court, no attempt is made to enumerate all the methods of punish-
ment used by it. One other mode of correction employed by it
might be mentioned ; namely, that of binding offenders to service for
certain lengths of time. The court in the early years could order a
freeman to serve the colony for a term of years for violating certain
regulations of the government. A runaway servant could be pun-
ished by lengthening his term of service and branding him with the
letter " R." Robinson MSS., II, 12, 76.

54 Justice in Colonial Virginia. [452

leading part in the war against the rebels.™ After the rebel-
lion was over, some of Bacon's followers were brought be-
fore the councillors, their enemies, for trial. The judges,
or some of them at least, went into court with their war-
spirit unabated, and were, therefore, not in a humor to deal
fairly by their antagonists.78

And yet Bacon's followers would have fared much better
than they did if all of them had been tried by the General
Court, although its judges were their enemies. For if jus-
tice had been allowed to take its ordinary course, no death
sentences would have been passed until after a jury had de-
cided as to the guilt or innocence of the accused. But it
was not the intention of the governor to allow juries to come
between him and his revenge, and so he ordered the rebels
to be tried by court martial without a jury.77 By this means
he was able to get many sentences of death against those who
had taken part in the rebellion. According to the report of
the King's commissioners, all who were tried by the court
martial were sentenced to death and hanged, and so the
accused were willing to accept any compromise rather than
go to trial. When a person was brought before the court
martial, he was asked whether he wished to be tried or to
be fined at the discretion of the court without a trial, and the
latter alternative was always preferred. A fine was then
imposed upon him without the aid of a jury.7' Berkeley's
high-handed tyranny was not checked until the three com-
missioners appointed by the King to investigate conditions
in the colony arrived in Virginia. On the arrival of these

75 Neill, Virginia Carolorum, 360, 363, 364. Burk, History of Vir-
ginia, II, 180. General Court Records, 1670-1676, 247, 257.

"The commissioners sent over by the King to investigate condi-
tions in Virginia reported that when they sat with the council on
the trial of rebels, some of the loyalist party who sat with them
were so unmindful of their position as judges that they railed at the
prisoners from the bar as if they were the chief witnesses for the
prosecution. Randolph MSS., 366. General Court Records, 1670-
1676, 266, 267.

^Sainsbury MSS., 1676-1677, 118. Randolph MSS., 365. General
Court Records, 1670-1676, 264-265.

Ti Randolph MSS., 366.

453] The Superior Courts. 55

commissioners, trials by court martial ceased, and the Gen-
eral Court resumed its jurisdiction over criminal cases.
After this no sentences of death were given against the
rebels until after they had been indicted by a grand jury and
tried by a petit jury.™

These acts of injustice committed against Bacon's fol-
lowers were the greatest series of wrongs ever perpetrated
in the name of the Virginia judiciary since the colony was
freed from the military rule of Dale and Argoll. But the
acquiescence of the court martial in the blood-thirsty de-
mands of Berkeley is not to be taken as a proof that the
governor's power was usually supreme in the administration
of justice. Berkeley was, by a combination of unfortunate
circumstances, raised to an eminence of power that the
average governor never attained. The party of opposition
had just been crushed, and was not able to make an
effective protest against the arbitrary acts of the victor. Be-
sides, many of the councillors were also opposed to the
insurgent movement, and so there was in effect a union
between the aristocracy and the King's representative against
the conquered rebels. If the council, on this occasion, had
stood out in manly opposition to the governor, as it
frequently did at other times, this great stain on the ermine
of Virginia would never have been made. We are glad to
know, however, that the voice of protest was raised by the
assembly against the atrocities practiced by the governor.10

Another flaw in the judicial system of Virginia was the
entire exemption of the General Court from both direct and
indirect responsibility to the people. As we have already
seen, the people were not given a voice in the appointment
or removal of councillors, and so to a greater extent than

"Randolph MSS., 365. General Court Records, 1670-76, 266, 267.
In justice to Governor Berkeley, it ought to be said that an apologist
for him claims that the death sentences passed by the court martial
were all given in the heat of the rebellion at a time when he had no
secure place in which to confine prisoners and no safe guard to keep
them. Ibid., 372.

"Randolph MSS., 366.

56 Justice in Colonial Virginia. [454

was proper, the judges were relieved of the fear that they
would lose their places if they gave decisions that the people
considered unjust. But the absence of this restraint on the
court left a dangerous power in the hands of the judges,
which they could employ towards the furtherance of their
own private ends. There must ever have been before them
the temptation to give unfair decisions in those suits in which
they themselves or their friends were interested.81 Nor were
the councillors always strong enough to withstand this temp-
tation. In the last quarter of the seventeenth century, the
General Court fell into a practice by which each judge was
practically exempted from liability to all actions except those
that were brought with his own consent. This abuse was
revealed to the Commissioners for Trade and Plantations by
an investigation which came in response to complaints of
certain English creditors made against the General Court
for withholding justice from them. It was charged in these
complaints that a debt due them in Virginia could not be col-
lected owing to the failure of the General Court to decide
suits brought against councillors.62

When the Commissioners inquired (1696) into the alleged
grievances, it discovered, to its great astonishment, that the

81 It seems to have been the usual custom for a judge to leave
the bench whenever a suit to which he or his relatives were parties
came before the court for a hearing. But still it was to the inter-
est of the judges to render a decision favorable to an absent col-
league, as they might want him to return the favor when they were
placed in the same situation. Spottswood's Letters, II, 60.

"However, these acts of injustice to foreigners did not of them-
selves mean necessarily that the court had fallen into extremely cor-
rupt practices. The sense of public honor was not so high among
the Virginians of the seventeenth century as it is at present. This
is shown by the fact that during a considerable part of the seven-
teenth century the laws provided that the debts due to foreigners
by Virginians, except those contracted for imported goods, were not
recoverable in the Virginia courts. Nor was Virginia the only
colony that held lax views regarding obligations to foreigners. For
in 1731 we find British merchants making complaints against other
English colonies, saying that debts could not be collected in them.
We must, therefore, use the moral standards of the time in gauging
the degree of corruption involved in this discrimination against
foreigners. Hening, II, 189. Sainsbury MSS., 1606-1740, 108, 113,
115, 116; ibid., 1691-1697, 250.

455] The Superior Courts. 57

General Court had a rule according to which an action could
not be brought against any councillor without his consent.
The practice of the court which had been in vogue for about
sixteen years, was as follows: — When a suit was brought
against a councillor, a notice of it was sent to him with the
request that he appear before the court. If he failed to do
so, the request was repeated, but no attachment was issued
against his person or property to compel his attendance. By
ignoring these notices, a councillor could postpone indefi-
nitely the hearing of any suit against him. This indefinite
postponement of cases was more unjust to the complainants
than unfair decisions would have been because it deprived
them of the privilege of appealing to the King. It was,
therefore, left entirely optional with the councillors whether
an action should ever be brought against them in the General
Court.83 This grievance, however, could be easily remedied,
since all that was needed was a law providing that attach-
ments be issued against the property of a councillor when he
refused to appear in court to answer suits brought against
him. Such a law was passed in 1705, and after this no
mention of the abuse is found.84

It must not be inferred from this discussion of its weak-
nesses that the General Court was generally given to cor-
rupt practices. In the documents that have been examined,
only a few abuses are recorded, and this negative evidence
goes far to show that the court usually gave the people a
fair administration of justice.

COURTS OF OVER AND TERMINER.

After the sessions of the General Court were reduced to
two a year, criminals were sometimes necessarily kept in
prison six months before they could be tried. It
was not long before the need for a more speedy administra-
tion of justice began to be felt, and this need led to the
formation of a new criminal tribunal, the Court of Oyer and

MSainsbury MSS., 1691-1697, 258, 259, 288, 331.
"Hening, III, 291, 292.

58 Justice in Colonial Virginia. [456

Terminer. The permanent establishment of this new court
dates from the first quarter of the eighteenth century, but
before this time special courts of oyer and terminer were
occasionally held in the colony. In the latter part of the
seventeenth century we find that the King sometimes sent
over special commissioners of oyer and terminer in which
certain persons were named as judges for the trial of par-
ticular cases." But the King's order for convening these

"Sainsbury MSS., 1686-1688, 12; ibid., 1691-1697, 260; ibid., 1715-
1720, 698. Calendar of Virginia State Papers, I, 192.

One of the most interesting and important cases that were tried
by special courts of oyer and terminer was that in which George
Talbot, a prominent citizen of Maryland, was arraigned for killing
Christopher Rousby, the King's collector of customs. The act was
committed on board The Quaker, a revenue vessel, which at that
time was lying in the harbor at the mouth of Patuxent Bay in
Maryland. The captain of the vessel was unwilling to deliver Talbot
up to the Maryland authorities, as he feared that they would not
punish him as he deserved. He, therefore, sailed to Virginia with
his captive and gave him over to Lord Howard, the governor. Lord
Howard thought that his commission as vice-admiral gave him au-
thority to punish offenses of this class, and so Talbot was confined
in the jail of Gloucester County. The Maryland council wrote to
Governor Howard asking him to send Talbot back to Maryland for
trial, claiming that no other colony had jurisdiction in the case.
At a meeting of the Virginia council, which was called to consider
the matter, it was decided that all depositions should be sent to the
King for his opinion as to whether Talbot should be tried in Vir-
ginia according to the rules of admiralty or be sent to Maryland to
be tried according to common law. The Committee of Trade and
Plantations at first recommended that Talbot be sent to England for
trial, but afterwards decided that a special commission of oyer and
terminer should be sent to the council of Virginia for his trial.
The King also sent instructions to Lord Howard authorizing him to
suspend the execution of the sentence against Talbot if he should
be found guilty. But before this special court convened for his
trial, Talbot escaped from the Gloucester jail and returned to Mary-
land. Fiske says that he was liberated by his wife, who one dark,
wintry night sailed with two companions down the Chesapeake Bay
and up York River until they came to Gloucester. Talbot was de-
livered from prison and taken back to his home in Maryland. The
sheriff of Gloucester County and another prominent Virginian were
sent to Maryland for the prisoner, but it is not stated whether they
succeeded in bringing him back. At any rate, the case was put on
trial in Virginia before the General Court acting under a special
commission of oyer and terminer, and he was sentenced to death.
The King commuted the sentence (1686) to five years banishment
from the British dominions. Sainsbury MSS., 1682-1686, 134, 138, 142,
143, 146, 150, 162, 195, 209, 212; ibid., 1686-1688, 3, 12. Randolph
MSS., 426, 427. Fiske, Old Virginia and Her Neighbors, II, 158.

457] The Superior Courts. 59

courts was not often given, and therefore, they were not an
effective remedy against the delays in criminal trials. In
1692, an attempt was made to shorten the long intervals that
came between the courts at which criminals could be tried.
We find an order bearing date of that year which authorized
the governor to grant special commissions of oyer and
terminer at any time during the sessions of the General
Court or assembly for the trial of capital offenses which
could not be reported to the General Court on the day
usually set for the hearing of criminal cases.86

Naturally, the next step to be taken in the development of
the oyer and terminer courts was to introduce into these
supplemental courts regularity as to the times of meeting.
This step was attempted in 1710 when Lieutenant-Governor
Spottswood was instructed by the Queen to require courts of
oyer and terminer to be held regularly twice a year. Soon
after his arrival, the governor called together his council and
made known to them this order of the Queen. The coun-
cillors considered the innovation unnecessary, and replied
that, in their opinion, criminal trials were already adequately
provided for. There was, however, no important reason
why they should object to the change, and when the gover-
nor again advised with them soon afterwards, they agreed to
the new plan and recommended that the assembly provide
for the expenses for carrying it out. The time set for the
first meeting of the court was in December, 1710."

The lieutenant-governor had thus succeeded in establish-
ing regular courts of oyer and terminer without arousing
the dangerous opposition of his council. If he had been
satisfied to step here, it would have fared much better with
him than it did. If he had not tried to use the new courts
as a means of enlarging his own powers, this expansion of
the judiciary could have taken place without occasioning any
dispute over the new acquisition. But, unfortunately for
him, he claimed, and two years later exercised the right of

" Calendar Virginia State Papers, I, 35, 36.
"Letters of Governor Spottswood, I, 8, 24.

60 Justice in Colonial Virginia. [458

naming in his commission of oyer and terminer persons
other than councillors, which stirred up opposition against
him in the council. The councillors regarded this as an
attempt on the part of the governor to deprive them of their
rights in the courts newly annexed to the judiciary. They
did not, however, refuse to sit in the court of oyer and
terminer the first time outsiders sat on the bench with them.
Their reasons for yielding thus far in the beginning were
that no criminal cases were tried at that particular court,
and besides, they did not want their protest against the gov-
ernor's action to take the form of a public affront. How-
ever, they asserted their right to act as sole judges in crim-
inal trials, and the governor was soon convinced that they
would not part with any of their judicial power without a
struggle.88

The opposition of the council to this innovation led the
governor to refer the question to the Lords of Trade for an
opinion. The Lords of Trade decided that the governor
did not have to confine himself entirely to councillors in
choosing judges for the courts of oyer and terminer, unless
such a limitation were imposed upon him by an act of the
assembly.88 Spottswood thought that his opponents would
acquiesce in this decision, and in 1717 he named as judges of
a court of oyer and terminer five councillors and four other
prominent men. These outsiders were added, according to
his own statement, to show the people that the power of the
crown over the judiciary was the same in Virginia as it was
in England. Some of the councillors were still unwilling to
concede the governor's right to create judges in this way,
and so refused to sit in this court.90 Eight members of the
council declared that they would not act as judges in these
courts if any persons other than councillors were appointed
to sit with them." The dispute, therefore, continued open,

"Byrd MSS., II, 199-202. Spottswood's Letters, II, 25-26.
"Sainsbury MSS., 1715-1720, 521, 522.
"Ibid., 637. Spottswood's Letters, II, 26, 259, 260.
"Sainsbury MSS., 1715-1720, 578.

459] The Superior Courts. 61

and much bitterness of feeling was engendered before a
final settlement was reached.

Prominent among the leaders of the opposition were Com-
missary Blair, Philip Ludwell, and William Byrd, all men
of great influence in the colony. Byrd sent a remonstrance
to the Lords Commissioners of Trade and Plantations, in
which he brought forth able arguments to show that the gov-
ernor could not go outside of the council in selecting judges.
The innovation, he said, was a violation of the laws and
chartered privileges of the colony. Besides, it gave the
governor an undue influence over these courts, and, there-
fore, left the lives and fortunes of the people too much at
his mercy. For the judges of the oyer and terminer courts
were appointed, not for life or for a certain number of years,
but for one term of the court. If the governor, therefore,
wished to punish any one, he could at each term of the court
appoint as judges such men as would vote for the sentence
he desired.92 Spottswood replied to these objections, and
pointed out that there were precedents in favor of the prac-
tice inaugurated by him. The King, he said, had sometimes
joined others with councillors in his special commissions of
oyer and terminer, and in the slave courts justices of the
peace gave the death sentence. He also declared that
the judges whom he had appointed to sit with the councillors
in these courts were as well qualified to try criminals as the
councillors themselves.93

But before the governor sent in his reply to Byrd, the
contest had reached a stage in which an important constitu-
tional question was involved. In order that the mooted
point might be settled once for all, the Lords of Trade
appealed to the attorney-general of England for his opinion
on them. The attorney-general decided that the governor
had not infringed any legal provision by the exercise of the
disputed power, but recommended that he be restrained from

"Calendar of Va. State Papers, I, 190-193. Sainsbury MSS.,
1715-1720, 578, 708.
98 Sainsbury MSS., 1715-1720, 698-701.

62 Justice in Colonial Virginia. [460

convening these courts except on " extraordinary emergen-
cies." In January, 1718, the Lords of Trade sent this
opinion to the governor and intimated that he was expected
to act in accordance with the recommendation coupled
with it."

The assembly now came forward to champion the cause
of the council. In May, 1718, it sent a petition to the King
asking that the councillors might be the sole judges of the
courts of oyer and terminer, or that His Majesty would in
some other way restrain this dangerous power of the gov-
ernor. But the Lords of Trade refused to grant this re-
quest, and the council gave up its attempt to exclude out-
siders from the bench of the oyer and terminer courts.*6

In the settlement of the dispute neither the governor nor
the council could claim a complete victory. The governor
had gained his point in so far as his power to appoint other
judges to sit with the councillors in the oyer and terminer
courts had been upheld; but the Lords of Trade had to
forego most of the fruits of the victory as they receded from
their first position. According to the instructions first
given to Spottswood, these courts were to be held regularly
twice a year, but he was now advised to convene them only
on very important occasions.88 The failure of the council to
obtain from the Board a theoretical recognition of their right
to act as sole judges in the courts of oyer and terminer seems
to have been only a nominal defeat. For in the first court
of oyer and terminer that was held after the councillors
yielded, no outsiders were appointed to sit with them as
judges." Then, too, the immediate successor of Spotts-
wood, Hugh Drysdale, seems to have profited by Spotts-
wood's experience and to have prudently abstained from
antagonizing his council by exercising the disputed power.

94 Sainsbury MSS., 1715-1720, 669, 675, 676, 686.
"Ibid., 740, 770. Spottswood's Letters, II, 321.
" Sainsbury MSS., 1715-1720, 675, 676, 678. Randolph MSS., 498.
Spottswood's Letters, I, 8.
OT Spottswood's Letters, II, 321.

461] The Superior Courts. 63

Before the end of the first year of his administration, the
council had unanimously agreed that the courts of oyer
and terminer should be regularly held according to the
King's instructions.98 Now we can hardly believe that those
men who had contended so strenuously for their rights dur-
ing Spottswood's administration M would now consent to the
formation of a regular tribunal unless they felt assured that
they would always be chosen as its sole judges. At any
rate, there is no doubt that by the middle of the eighteenth
century (1755), it was customary for the oyer and terminer
courts to be composed exclusively of councillors.100 We may,
therefore, safely say that the councillors eventually won all
that they were contending for, and that the victory of the
governor and Lords of Trade was an empty one, which barely
enabled them to come out of the contest with their dignity
unimpaired.

The fact that the council was able to push its opposition to
such a successful issue argues much for the influence wielded
by it in the colony. The power possessed by the councillors
at this particular period was greater than that usually en-
joyed by them, and Spottswood ought to have seen that
during his administration the time was most inopportune for
a governor to measure lances with them. Seven of them,
more than a majority, were related,101 and it was, therefore,
easy for them to combine against the crown representative.
Besides, the family to which most of the councillors belonged
had already procured the removal of two governors, which
emboldened them against Spottswood and made them popu-
lar with the people.102 On the other hand, Spottswood's
power was weakened by the opposition which the assembly
was waging against him.108 The council's success in this

98 Sainsbury MSS., 1720-1730, 74, 75.

89 Spottswood's council was passed on to Drysdale with few, if
any, changes in its personnel. Ibid., 1715-1720, 578, 593. Council
Journal, 1721-1734, 3, u, 16, 27, 32-34.

100 Dinwiddie Papers, I, 384.
5, II, i

101 Spottswood's Letters, II, 60.

102 Sainsbury MSS., 1715-1720, 709.

108 - - -

Ibid., 740. Southern Literary Mesenger, XVII, 590-592.

64 Justice in Colonial Virginia. [462

quarrel was also doubtless due, in large measure, to the able
leadership of Commissary Blair and Colonel William Byrd.

This dispute was a struggle directly between the council
and the King's representative, but indirectly a contest be-
tween the colonial government and the crown. The council
was supported by the representatives of the people,104 and the
governor, by the Lords of Trade, for this board saw in the
council's objections to the innovation only a desire to con-
serve its own authority at the expense of the King's power.108

It is difficult to determine what support the people gave
the aristocracy in their brave struggle with the King's repre-
sentative. It would seem that they were not indifferent to
this increase of the governor's authority, as their representa-
tives, the Burgesses, expressed their disapproval of it. But
Spottswood says that the Burgesses at this time were much
in disfavor with the people ;106 and if this be true, their ad-
dress in support of the council cannot be taken as an expres-
sion of popular opinion. He also claimed that the people
refused to concern themselves with the council's quarrel.
According to his account, a paper was drawn up in the form
of a grievance against the oyer and terminer courts, and was
sent out to the counties to be signed by the citizens. But
despite this attempt to work up sentiment against the
governor's action, only two counties sent in grievances
against these courts, and one of these remonstrances had only
eighteen signatures and the other only eleven.107

It might at first thought appear that this protest of the
councillors was only an expression of that factious spirit
which they too often betrayed during this period.108 But
if the innovation attempted by the governor had been car-
ried out without opposition, it would in all probability have
materially altered the relation of the colony to the mother

104 Sainsbury MSS., 1715-1720, 740.

106 Ibid., 691.
108 Ibid., 779-

107 Ibid., 706. Spottswood's Letters, II, 276.

108 Campbell, History of Virginia, 398.

463] The Superior Courts. 65

country. The proposed change would have meant a trans-
fer of a certain amount of power from the Virginia aristoc-
racy to the King's representative, and through him to the
King himself, and, therefore, the colony would to that extent
have been deprived of its local autonomy. Besides, this
transfer of power could not have been effected without giv-
ing the governor a dangerous influence over the judiciary.
This new privilege of the executive was, as Colonel Byrd
pointed out, liable to great abuse. It is true that Spottswood
did not use the new courts as a means of procuring unjust
sentences against his enemies, for he did not require any
criminals to be tried in them who desired to wait for the
regular sessions of the General Court.109 But the opposition
of the council was aimed not so much at Spottswood's policy
as at the principle underlying that policy.110 If no voice of
protest had been raised at this time against executive aggres-
sion, the new power would have been confirmed to the
King's representative by precedent. There would always
have been present the danger that an able and unscrupulous
governor would use his influence over the judiciary as a
means of gratifying his private spite. The council, there-
fore, did the colony a great service by thus resisting this
encroachment upon its privileges. It may be true that
the councillors, as was charged by the Lords of Trade, made
the fight to protect their own interests rather than to protect
the rights of the people.111 But their service to Virginia was
none the less valuable because it was not performed en-
tirely for altruistic reasons. For it seems that colonial
Virginia owes the absence of this element of despotism from
her constitution to the stand which the council at this time
made against the governor's attempted aggression.

However, the strife over the oyer and terminer court
ceased in a few years,112 and the new tribunal became a per-

09Sainsbury MSS., 1715-1720, 796.

110 Ibid., 69. Spottswood's Letters, II, 26, 222.

111 Sainsbury MSS., 1715-1720, 691.

112 Spottswood's Letters, II, 341.

66 Justice in Colonial Virginia. [464

manent part of the Virginia judiciary. After the court had
become established, its sessions were held twice a year,
in June and December, and the intervals between the terms
of the General Court were thus equally divided.1"

In both the General Court and the oyer and terminer
courts, important criminal offenses were tried by a petit
jury after indictments had been made by the grand jury."4

It has already been shown that the right to be tried by
a jury of their compeers was one of the privileges that the
first settlers brought with them from England.110 This right
was called into exercise for the first time in 1607 in the
trial of two suits for slander brought by John Smith and
John Robinson against Edward Maria Wingfield, the first
president of the local council.116 Juries were several times
called on to decide causes during the few years in which
Virginia was under the first charter that was granted to
the Company.117 In Dale's scheme of military government
there was no provision for juries, and they probably had no
place in the martial courts that dealt out summary punish-
ment to offenders. But after this military tyranny had
given place to the regime of freedom inaugurated by Yeard-
ley, the people began again to enjoy the right of trial by
jury, and as early as 1625 we find the governor and council
making use of this privilege.118

According to the usual custom the grand jury of the Gen-
eral Court was selected from the freeholders who happened
to be at the capital while the court was in session.119 For the

/"Virginia Gazette, Dec. 15, 1768; June 15, 1769. Webb, Vir-
ginia Justice, 107. Hugh Jones, Present State of Virginia, 29.

114 Robinson MSS., 75, 76, 83. General Court Records, 1670-1676,
8, 20, 53, 154, 235. Hening, IV, 403 ; V, 543.

15 See page n.

119 Wingfield's True Discourse, published in Arber's Works of
Smith, LXXXIII. In Winsor's Narrative and Critical History of
America (Vol. Ill, p. 146) it is erroneously stated that the first
trial by jury in Virginia was in 1630, when ex-Govenor Pott was
arraigned before the Quarter Court for cattle stealing.

m Arber, Works of Smith, 12, 13.

M Virginia Court Book, 1623-1626, August, 1623.

U9 Randolph MSS., 412. Hening, V, 524, 525. Mercer, Virginia
Laws, 160. Webb, Virginia Justice, 198.

465] The Superior Courts. 67

grand jury of the oyer and terminer court, the sheriffs of
James City and York Counties m each had to summon twelve
men to come before the court. A grand jury of not less
than fifteen was to be sworn out of those that obeyed the
summons.121

The petit jury in both courts was usually composed of
twelve men, though in the early records of the General
Court, panels of thirteen, fourteen, and twenty-four are
mentioned.122 The English custom of trying criminals by
juries of the vicinage could not be followed by the General
Court without great inconvenience and expense. But in
1662, a law was passed providing for the partial adoption
of this practice by the General Court. According to this
statute, every crime punishable by loss of life or member
was to be tried by a jury of twelve men, six of whom were to
be selected from bystanders and six were to be summoned
from the vicinity in which the crime was committed.123 This
method of choosing jurors was employed by the General
Court for nearly three-quarters of a century."*

When the court of oyer and terminer was established,
criminals brought before it were tried by a jury of twelve
men from the county in which the crime had been committed,
according to the common law of England. In 1734, the
practice in both courts was made uniform by a law which
provided that twelve men of the vicinage should be sum-
moned whenever an important criminal case was to be tried
by either court. The places of those who were challenged
or who failed to appear were to be filled with bystanders.128
But this method was found inconvenient and expensive.

120 Williamsburg, the capital, was on the border of these two coun-
ties, being partly in both.

121Hening, IV, 403; V, 543. Mercer, Va. Laws, 160. Webb, Va.
Justice, 199.

122 Robinson MSS., 75. Hening, I, 145, 146.

128 Hening, II, 63, 64.

1MHartwell, Blair, and Chilton, 47. Calendar Virginia State
Papers, I, 8, 34, 35. Hening, IV, 404. Beverley, Book IV, p. 23.

L* Hening, IV, 403, 404; V, 544. Mercer, Virginia Laws, 218.
Webb, Virginia Justice, 199.

68 Justice in Colonial Virginia. [466

Besides, it was noticed that most of the sentences given for
capital offenses were against those persons who had been
convicted of crimes in Great Britain or Ireland before
they were brought to Virginia. It was held that no advan-
tage could come to such persons from being tried by a jury
of the vicinage, as they were generally not known even in
the county in which they lived. It was, therefore, enacted
in 1738, that in trials for capital crimes, juries should be
made up of bystanders in all cases in which the accused was
still serving a term for a crime committed in Great Britain
or Ireland.138 Juries of bystanders were also usually em-
ployed by the General Court in the determination of civil
causes and in the trial of minor criminal offenses.127 The
property qualification for jury service in the General Court
and the courts of oyer and terminer was fixed by laws of the
eighteenth century at one hundred pounds sterling.128

During the colonial period, the severity of the laws was
mitigated by the custom of allowing the benefit of clergy
to criminals. According to the ancient practice in England,
those who were entitled to this privilege could claim it in
all cases of petit treason and in most cases of capital felonies.
Before Virginia was settled, English statutes had added
certain other offenses to this list of exceptions. This raised
the question as to whether the class of criminals thus ex-
cepted by Parliament were to be excluded from the benefit
of clergy in Virginia. The opinion generally held was that
clergy should not be allowed in Virginia in those cases in
which it had been taken away by these English statutes ;
but as doubt might arise on this point, the assembly in
1732 reviewed the question and declared in favor of the com-
monly accepted view.

For a long time the benefit of clergy was not granted in

128 Hening, V, 24, 25, 545. Mercer, Virginia Laws, 57, 58.
T Herring, III. 369; V, £25. Mercer, Virginia Laws, 217. Bever-
ley, Book IV, p. 22. Hening, II, 73, 74. Hartwell, Blair, and Chil-
ton, 47. Hammond, Leah, and Rachel, published in Force's Tracts,
p. 16. General Court Records, 1670-1676, 150, 158.

IM Hening, III, 176, 370; V, 525. Mercer, Va. Laws, 218, 219.

467] The Superior Courts. 69

England to laymen under the rank of peers unless they could
read, but in the fifth year of Queen Anne's reign a law was
passed by Parliament which did away with this unjust dis-
crimination against laymen. In 1732, the Virginia assembly,
following this precedent, extended the benefit of clergy to
negroes, Indians, and mulattoes, and ordered that the read-
ing test should thereafter never be required of anyone who
should claim this privilege.128

In the list of crimes which were placed without the
benefit of clergy by the statutes were murder, burglary, burn-
ing of houses, horse stealing, and man-slaughter when
committed by a negro, Indian or mulatto. Also if a negro,
Indian, or mulatto was convicted of breaking into a house
in the daytime and stealing as much as five (afterwards
twenty) shillings, he was to be punished without benefit
of clergy. Clergy was allowed to a criminal only once
during his lifetime.180

When the court granted the benefit of clergy to an
offender, it substituted burning in the hand for the death
penalty.181 According to Starke, the old English custom
required that the letter " M " be branded in the hand of
murderers and " T " in that of other felons. This im-
print was burnt into the hand not merely to punish the crimi-
nal, but also to put a mark on him which would show that
he had received the benefit of clergy and thus keep him
from deceiving the court into granting the privilege a second
time.182 But in the eighteenth century branding seems to
have been regarded as a mere act of form in Virginia, for
it could be done with a cold iron."8 When a person was

129Hening, IV, 325, 326. Mercer, 54. One case is given in which
the General Court of Virginia required reading before allowing
clergy. General Court Records, 1670-1676, 53. Blackstone's Com-
mentaries, IV, 296, 299.

180 Herring, IV, 326. Webb, Virginia Justice, 82, 83. Starke, Vir-
ginia Justice, 87. Mercer, Virginia Laws, 54.

mWebb, Virginia Justice, 83. Virginia Gazette, Oct. 29, 1736;
June 10, Oct. 28, 1737; May 12, Dec. 15, 1768; June 15, 1769.

182 Starke, Va. Justice, 87. Blackstone, IV, 294.

188 Virginia Gazette, Dec. 7, 1739. Starke, 88.

70 Justice in Colonial Virginia. [468

admitted to clergy, he forfeited all his goods, but when he
was burnt in the hand, he was reinstated in the posses-
sion of his lands. By the act of branding, his credit was
also restored, and his disability for acting as a witness was
removed.1*4 Indians, negroes, and mulattoes, who were given
the benefit of clergy, besides being burnt in the hand, could
be punished by whipping.185

ECCLESIASTICAL AND ADMIRALTY COURTS.

There was one independent ecclesiastical court in the
colony, which was held by the Commissary of the Bishop of
London, though it was not a court in the true sense of the
term. The immoralities of the clergy were the only offenses
of which it took cognizance and deprivation of, and suspen-
sion from, office were the only punishments which it could
impose. From this court appeals could be taken to the
Court of Delegates in England.138 This was a narrower
jurisdiction than that exercised by the ecclesiastical courts
of England during the colonial period. The other spiritual
causes which were cognizable in the English ecclesiastical
courts were determined in Virginia by the regular common
law courts.137 In England matrimonial and testamentary
causes were tried by the spiritual courts ; while in Virginia,
they were heard by the regular common law courts. As has
already been shown, the General Court and the county courts
examined wills and gave certificates thereon, and the gov-
ernor signed the orders for executing them.138 No record of
absolute divorces has been found, and apparently they were
not often given during the colonial period. However, di-
vorces a mensa et thoro were granted by both the General
Court and the county courts, and a marriage could be

mStarke, 91. Blackstone, IV, 300.

"Mercer, 54.

'"Dinwiddie Papers, I, 384.

1OTHartwell, Blair, and Chilton, 49, 50. Webb, Virginia Justice,
206. Blackstone, III, 87-97.

138 See page 45. Blackstone, edited by Chitty, III, pp. 67-73. Bev-
erley, History of Va., Book IV, p. 21.

469] The Superior Courts. 71

annulled ab initio by the General Court if the contracting
parties were within " the Levitical degrees prohibited by the
laws of England." m

During the greater part of the seventeenth century, there
was no need of a separate court of admiralty in Virginia.
In a report sent to England in 1671, Governor Berkeley
said that it had been twenty-eight years since a prize had
been brought into the colony.140 The few maritime causes
that came up for a hearing were determined by the regular
courts, which could employ juries to assist them in render-
ing decisions.141 This method of trial must have been un-
favorable to a strict enforcement of the navigation laws, for
both judges and juries would naturally be disinclined to give
severe sentences for violations of laws that they considered
unjust to the colony. The theory that the courts dealt len-
iently with smugglers is supported by the fact that the home
government at the end of the century felt called upon to
establish a court of vice-admiralty in the colony. An order
for erecting a court of admiralty in Virginia appears in
the instructions given to Lord Howard in locjo.143 But this
order seems not to have been complied with by him, and it
was renewed to Governor Andros in 1697. The council
had already expressed its approval of the plan, and next
year Andros established a court of vice-admiralty, whose

138 Calendar Virginia State Papers, 29. General Court Records,
1670-1676, 262. Robinson MSS., 16, 75. Elizabeth City County Court
Records, 1684-1699, 235. Virginia Magazine of History and Biog-
raphy, I, 40; VIII, 175. Hening, IV, 245-246.

According to the Rev. Hugh Jones, the ecclesiastical courts of
Virginia were in his day very unpopular with the people and their
very name was hateful to them. But it must be borne in mind that
Hugh Jones's views were narrow and biased, and it is, therefore,
not improbable that he construed the opposition of a certain faction
of the clergy to the Commissary's reforms into a general discontent
of the people with the practices of the spiritual courts. Hugh Jones,
Present State of Virginia, 66.

140 Chalmers, Political Annals, 325.

141 Virginia Magazine of History and Biography, V, 38; XII, 189.
Hening, I, 466, 467, 537, 538. General Court Records, 1670-1676, 8,
40, 41, 42, 253. Beverjey, History of Va., Book IV, pp. 20, 21.
Hartwell, Blair, and Chilton, 43.

143 Sainsbury MSS., 1640-1691, 334.

72 Justice in Colonial Virginia. [470

territorial jurisdiction was to embrace Virginia and North
Carolina.14*

The establishment of the colonial courts of vice-admiralty
was, in a sense, an extension of the jurisdiction of the
High Court of Admiralty to the colonies.144 At first the
judge was appointed by the governor, but later the judge
was commissioned by the High Court of Admiralty of
Great Britain, and the other officers — the advocate, the mar-
shal, and the register — were chosen by the governor.145 The
court took cognizance of violations of the trade and quar-
antine laws and other maritime causes, except that it did
not have jurisdiction over offenses committed on the King's
ships of war. Appeals from decisions given by this court
could be made to the High Court of Admiralty in Eng-
land or to the King in council.148

The governor took a prominent part in admiralty proceed-
ings. He was vice-admiral of the colony, and had power
to appoint masters of vessels and grant them commissions
to execute martial law.147 The courts of vice-admiralty were
not convened at regular intervals but were called only
when there were cases to be tried.148 The court as constituted
in 1736 was composed of not less than seven judges, one
of whom was always either the governor, or the lieutenant-
governor, or a councillor. Merchants, planters, factors and
officers of ships were also eligible to a seat on the bench of
this court.148

mSainsbury MSS., 1691-1697, 292, 315. Ibid., 1706-1714, 323.
William and Mary College Quarterly, V, 129.

Just how long this court continued to hear maritime causes com-
ing up from North Carolina, I am unable to say.

144 Blackstone, III, 69.

140 Dinwiddie Papers, I, 384. William and Mary College Quarterly,
V, 129.

148 Dinwiddie Papers, I, 384. Hening, III, 178; IV, 99-101; ibid.,
1691-1697, 135, 137. Blackstone, ed. by Chitty, III, p. 54.

14TSainsbury MSS., 1625-1715, 55; ibid., 1640-1691, 334; ibid., 1705-
1707, 58, 526. Dinwiddie Papers, I, 384. Beverley, Hist, of Va.,
Book IV, p. 4. Hartwell, Blair, and Chilton, 20.
'Dinwiddie Papers, I, 384. Blackstone, III, 68.

148 Webb, Virginia Justice, 107, 249, 250. Virginia Gazette, Sept.
15, 1738.

471 ] The Superior Courts. 73

The methods employed in dealing out punishment for
piracy were not uniform. In 1687, the King appointed a
special commissioner to supervise the trial of pirates in
Virginia.150 Ten years later the English method of inquir-
ing into and punishing offenses committed at sea was
adopted in the colony. According to a law enacted in 1699,
all piracies, treasons, felonies and other crimes committed on
the high seas, or in the bays, harbors or rivers under the
jurisdiction of the admiral m were to be tried by a special
court of oyer and terminer called for that purpose. The
judge of the court of vice-admiraly and " such other substan-
tial persons " as the governor should see fit were to be the
judges of this court.152 In the early part of the eighteenth
century, commissioners were appointed by the Queen to try
pirates in Virginia and North Carolina. According to
Webb, whose work was published in 1736, it was the cus-
tom in his day for the commissioners appointed by the King,
or some of them at least, to sit in the court of vice-admiralty,
before which persons charged with piracy were brought
for trial.153

1BOSainsbury MSS., 1686-1688, 88, 144; ibid., 1625-1715, 142.

151 The term admiral was used here to designate the governor,
who was vice-admiral of the colony.

152Hening, III, 178. Statutes of the Realm, 28, Henry VIII, C.
15. Hugh Jones, Present State of Virginia, 29.

158 Webb, Virginia Justice, 107. Sainsbury MSS., 1705-1707, 30;
ibid., 1715-1720, 779, 780.

CHAPTER III.

THE INFERIOR COURTS.

The Monthly or County Courts. — The most important
inferior court was the one regularly held in each county.
It was at first known as the monthly court, but it was after-
wards given the English name of county court. The first
monthly courts were established as early as 1624. At that
time it was provided by an act of assembly that courts should
be held every month in the corporations of Charles City
and Elizabeth City.1

The creation of these courts was the necessary outcome
of the rapid growth of the colony which began in 1619.
When the cleared areas began to lengthen along the river
and to encroach more and more on the wilderness, it be-
came very inconvenient for those colonists living at a dis-
tance from James City to go there for the arbitration of their
minor differences. The need of local adjudication in small
matters naturally became felt first in the more remote set-
tlements, and, as one would expect, the first two monthly
courts were established on the eastern and western fron-
tiers. The jurisdiction of the county courts was limited to
petty cases coming up from the precincts immediately adja-
cent to them, and thus the judicial authority of the governor
and council was, for a considerable part of the country, left
unimpaired.

1 In an address made before the Virginia Bar Association in 1894,
Judge Waller Staples said that monthly courts were first established
in 1623. This statement is based on a law passed by the assembly
in 1624; the mistake in the date arises, I presume, from an errone-
ous reading of " 1623-4," which is given by Hening as the date of
the act.

It is not improbable that these two courts were established as early
as the year 1619, and that the act of 1624 was only a statutory
recognition of what had already been accomplished in fact. Hen-
ing, I, 125. Proceedings Virginia State Bar Association, Vol. VII,
129. McDonald Papers, I, 137.

473] The Inferior Courts. 75

It was not long before the growth of the colony demanded
an extension of this branch of the judiciary. By 1632, three
other monthly courts had been created, one of which was
located on the eastern side of the Chesapeake Bay.8 In
1634, the colony was divided into eight shires, corresponding
to the shires of England, in each of which a court was to
be held every month.8 Other counties were formed from
time to time, and each one was given a local court as soon as
it was organized. In 1658, there were sixteen counties in
Virginia;4 in 1671, twenty;5 in 1699, twenty-two;6 in 1714,
twenty-five;7 and by 1782, the number had increased to
seventy-four.8

By the act of 1624, it was provided that the judges of the
monthly courts should be " the commanders of the places
and such others as the governor and council shall appoint
by commission." ' The judges were at first known as com-
missioners of the monthly courts, but were afterwards given
the title of justice of the peace.10 The office of justice of the
peace was one of dignity, and was generally held by men of
influence and ability.11 Apparently few of the magistrates
were learned in the law, and many of them probably had lit-
tle general education.12 But the causes determined by the

aHening, I, 168.

8 Hening, I, 224.

4 Ibid., 424-431.

'Ibid., II, 511, 512.

'Virginia Magazine of History and Biography, I, 230-236.

7 Ibid., II, 3-15.

8 Jefferson's Notes on Virginia, 116.

9 Hening, I, 125.

10 Hening, I, 132, 133 ; ibid., II, 70.

"Hening, II, 69. Council Journal, 1721-1734, 219. Spottswood's
Letters, II, 193. Calendar Va. State Papers, I, 88.

"According to an interesting account written by Hartwell, Blair,
and Chilton about the end of the seventeenth century, the justices of
the peace in their day were less qualified for the duties of their office
than were those chosen in the early years. The reason for this,
they said, was that the first settlers, haying been reared in England,
had had better opportunities for acquiring a knowledge of the com-
mon law than the Virginians of a later period, who had been brought
up in the colony where there were few educational advantages.
Hartwell, Blair, and Chilton, 44.

76 Justice in Colonial Virginia. [474

county courts did not, as a rule, involve difficult points of
law, and, therefore, the sound judgment and good common
sense of the justices must in a large measure have com-
pensated for their lack of legal knowledge.

The judges of the monthly courts were at first appointed
by the governor and council." In the beginning of the Com-
monwealth period, the Burgesses and the commissioners
sent to Virginia by Parliament ordered that the commis-
sioners of the county courts should be chosen by the House
of Burgesses." But this provision was repealed the next
year (1653), when the governor and council were given
power to appoint commissioners on the recommendation
of the county courts." In 1658, it was enacted that appoint-
ments so made should be confirmed by the assembly.18 The
method of selecting judges that was employed during the
Commonwealth period did not go far towards bringing the
county courts into responsibility to the people ; for, with
the exception of the first year, it gave the people little, if any,
control over the appointment of their commissioners. The
Puritan Revolution, therefore, did not go far towards democ-
ratizing the lower branch of the Virginia judiciary.

From the Restoration to the end of the colonial period,
county justices were commissioned by the governors, though
they were often, if not generally, appointed with the advice
and consent of the council." Justices were not chosen for
any definite period of time, and it seems that their commis-
sions could be renewed at the discretion of the governor.
But most, if not all, of the old members were usually named

"Hening, I, 125. Accomac County Court Records, 1632-1640, 9.
Lower Norfolk County Records, 1637-1643, 159.

* Hening, I, 372.

15 Ibid., 376, 402.

18 Ibid., 480.

"Council Journal, 1721-1734, 219, 286. Essex County Court Rec-
ords, 1683-1686, 153. Henrico County Court Records, 1677-1692,
!» !33> 134, 244; ibid, 1710-1714, 253. Warwick County Court Rec-
ords, 1748-1762, 42, 155. Hening, II, 69, 70. Calendar Virginia
State Papers, I, 16, 191. Sainsbury MSS., 1691-1697, 335. Spotts-
wood's Letters, II, 193. Dinwiddie Papers, I, 383.

475] The Inferior Courts. 77

in the new commissions, and so the appointments were prac-
tically made for life.18 It does not appear whether the prac-
tice of filling vacancies in the county commissions on the
recommendation of the county courts was discontinued
immediately after the Restoration, but if it was, it was
afterwards revived. For in the later years we find the
justices claiming and exercising the right of making nomi-
nations for vacancies in their respective courts.18 This cus-
tom made the county courts self-perpetuating bodies, and
rendered them practically independent of the executive.

The number of justices appointed for the county courts
varied at different times and in different counties, but usually
ranged from about eight to eighteen.20 But the justices were

18Henrico County Court Records, 1677-1692, 133, 244, 271, 373;
ibid., 1737-1746, 374. Richmond County Court Records, 1692-1694,
102. Sainsbury MSS., 1625-1715, 65. Hartwell, Blair, and Chilton,
43. Rappahannock County Records, 1686-1692, 203, 207, 209, 21 1,
213, 218. Warwick County Records, 1748-1762, 38, 47, 49, 53, 57.

"Council Journal, 1721-1743, 43, 262, 311. Rappahannock County
Court Records, 1686-1692, 190. Henrico County Court Records,
1737-1746, 339- Warwick County Records, 1748-1762, 42, 155.

We do not find any law compelling the governor to appoint the
nominees of the county courts, but it was good policy for him to
do so. For if he were to choose as new justices men who were not
acceptable to the old ones, it would be liable to stir up opposition
against him in the counties. That the justices were jealous of their
power to nominate to vacancies is evident from the action taken by
the court of Spottsylvania County in 1744 when this privilege was
infringed by the governor. Three new justices were put in the com-
mission of Spottsylvania County who had not been recommended by
the court. Some of the old justices regarded this as an affront to
them, and seven of them refused to sit on the bench. Calendar
Virginia State Papers, I, 238.

20 In one of the commissions granted in 1632, only five names are
mentioned. In 1642, eleven commissioners were appointed for Ac-
comae County, and eight were put in the commission given to
Lower Norfolk County in the same year. In 1661 a law was passed
by the assembly restricting the number to eight for each county. In
1699 the average number of justices for all the counties was about
twelve; in 1714, a little more than fourteen. Hening, I, 169; II, 21.
Accomac County Court Records, 1640-1645, 148. Lower Norfolk
County Records, 1637-1643, 159. Sainsbury MSS., 1691-1697, 335.
Mercer, Virginia Laws, 62. Henrico County Records, 1677-1692,
244, 332; ibid., 1719-1724, 6; ibid., 1710-1714, 253-309. Rappahan-
nock County Records, 1686-1692, 211. Charles City County Rec-
ords, 1758-1762, 246. Warwick County Records, 1748-1762, 57.
Winder MSS., I, 203. Virginia Magazine of History and Biography,

I, 230-236, 364-373 ; n, 3-15.

78 Justice in Colonial Virginia. [476

very irregular in their attendance at courts, and, as a rule,
more than one-half of them were absent at every session.*1
The court could not convene for the transaction of business
unless as many as four justices were present." It sometimes
happened that courts could not be held at the appointed
times because there were not enough judges present to make
a quorum. This caused considerable inconvenience to wit-
nesses and parties to suits, especially if they lived at con-
siderable distances from the county-seats. This irregularity
in the meeting of the courts was complained of from time to
time, and attempts were made to compel a more regular
attendance of the judges. Laws were passed providing for
fines to be imposed on all justices who should be absent from
the court sessions without a good excuse. But despite these
measures, the county courts continued to be poorly attended
by the magistrates during the entire colonial period.28

Long before Virginia was settled, there had grown up in
the county court system of England the practice of appoint-

"The following facts regarding the average attendance of jus-
tices at courts have been gathered from the court records of the coun-
ties mentioned below. The average attendance for Lower Norfolk
County from 1638 to 1640 was about five ; for Accomac from 1640
to 1645, five ; for York from 1672 to 1676, little more than five ; for
Rappahannock from 1686 to 1692, between four and five; for Hen-
rico from 1738 to 1740, between four and five; for Charles City
from 1761 to 1762, about five.

22 Lower Norfolk County Records, 1637-1643, 159. Henrico Rec-
ords, 1677-1692, i, 244. Winder MS., I, 204. Sainsbury MSS.,
1691-1697, 335.

When the monthly courts were first organized, three commission-
ers constituted a quorum. Hening, I, 133.

* It is probable that these provisions were not strictly enforced,
as the fines for absences were to be imposed by the county courts.
One would naturally expect the justices to deal leniently with their
colleagues for staying away from the meetings of the courts when
they, themselves, were often guilty of the same offense. It was
doubtless this failure on the part of the county courts to punish
delinquences in attendance that caused Governor Spottswood, in
1711, to order the sheriffs to report all excuses for absences to him.
However, it does not appear whether Governor Spottswood's plan
was a more effective remedy for the evil than were the measures
adopted by the assembly. Hening, I, 350, 454; II, 70, 71. Henrico
County Records, 1710-1714, 56, 57. Warwick County Records, 1748-
1762, 86, 92. Winder MSS., II, 171.

477] The Inferior Courts. 79

ing certain justices of the peace to be of the quorum. By
this was meant that no court could be legally held unless one
of them was present. This custom probably owed its origin
to the ignorance of the justices in matters of law. Judicial
skill was not to be expected of every country squire ; conse-
quently, it was necessary to appoint certain ones " eminent for
their skill and discretion " to be of the quorum and to order
that no court should be held in which the salutary advice of at
least one of them could not be felt.24 Upon the organization
of the monthly courts, this same practice was adopted in
Virginia. Whenever a commission was given to the justices
of a county, certain of them were mentioned by name as
belonging to the quorum. One, at least, of the persons so
designated had to be present at every court, else no causes
could be tried. The number of the quorum varied from
time to time, and in the different counties, and generally in-
creased as the county courts grew in importance.28

Prior to 1643, the statutes ordered that the local courts
should be held every month, and, therefore, they were called
monthly courts. At this time it was enacted that they should
meet once in two months, and the term county court was
substituted for the old name.28 By the end of the seventeenth
century the custom of meeting monthly had been revived,
and was kept up from that time until the end of the colonial
period.27

The place where justice was administered was usually
some conveniently located hamlet or village, which might be

^Cooley's Blackstone, I, 349-350.

25Hening, I, 125, 133. Accomac County Records, 1640-1645, 148.
Surry Records, 1645-1672, 359-360. Lower Norfolk County Records,
1637-1643, 159. Virginia Magazine of History and Biography, I,
230-236; II, 3-15. Henrico County Records, 1677-1692, 134.

^Hening, I, 272, 273, 462. Hammond, Leah and Rachel, 15, 16.
Winder MSS., I, 204. Henrico Records, 1677-1692, 134; ibid., 1697-
1704, 165, 301. Rappahannock Records, 1686-1692, 4-252.

27Hening, III, 504; V, 489. Henrico Records, 1710-1714, 38, 42,
80, 91, 92; ibid., 1719-1724, 23, 27, 33, 39; ibid., 1737-1746, 15, 22,
28, 34. Charles City County Records, 1758-1762, 87, 09, 103, 106,
115. Beverley, History of Va., Book IV, p. 24. Hartwell, Blair,
and Chilton, 43. Mercer, Va. Laws, 62.

8o Justice in Colonial Virginia. [478

called the county-seat. In the early years, however, we find
that in one or two of the counties, the sessions of the courts
were frequently held at the houses of the commissioners.
In such cases, the courts generally journeyed from the home
of one commissioner to that of another, and thus all the
magistrates shared equally the burden of entertaining their
colleagues." Sometimes when a county was divided by a
large stream, two court-houses were erected, one on each
side of the river, and the courts were held in both.28

The jurisdiction of the county courts extended to both
civil and criminal cases.80 Chancery causes were also cog-
nizable in them, and the justices were required to take sepa-
rate oaths as judges in chancery.31 Once a year, at least, the
justices held an orphans' court, which inquired into the
management of the estates of orphans and bound out father-
less children who had no property. It was also the business
of this court to see that the orphans who had been appren-
ticed were treated kindly and educated properly.82 When
the monthly courts were first established, their jurisdiction in
civil cases was limited to suits involving amounts of not
more than one hundred pounds of tobacco. But in a few
years, the limit was raised, first to five and then to ten
pounds sterling, and later, to sixteen pounds sterling, or six-
teen hundred pounds of tobacco.33 By the end of the cen-

28 York Records, 1633-1694, 2, 3, 8, 14, 67. Lower Norfolk County
Records, 1637-1643, 63, 66, 68, 74, 78.

29 Essex County Records, 1683-1686, 3, 10, 18, 33. Hening, I, 409.

80 Accomac Records, 1640-1645, 168, 173, 200, 262. York Records,
1671-1694, 88, 125, 220. 221. Rappahannock Records, 1686-1692, in,
114, 158. Beverley, History of Va., Book IV, p. 25. Winder MSS.,
I, 204. Mercer, Va. Laws, 64.

81 Richmond County Records, 1692-1694, 14, 35, 86. Henrico
County Records, 1710-1714, 74, 81, 252; ibid., 1737-1746, 84, 95, 140,
200. Charles City County Records, 1758-1762, 22, 201, 315. Hen-
ing, III, 509; V, 490.

"York County Records, 1633-1694, 67. Winder MSS., I, 204.
Beverley, History of Va., Book IV, p. 25.

83 Hening, I, 125, 168, 186, 224, 272, 346, 398. Accomac Records,
1640-1645, 148. Lower Norfolk County Records, 1637-1643, 159-160.

The court of Northampton, a county east of Chesapeake Bay,
could determine finally all causes involving amounts less than
twenty pounds sterling, or 3200 pounds of tobacco. This exception

479] The Inferior Courts. Si

tury all these restrictions had been removed ; and from that
time on all civil causes except those of less value than twenty
shillings could be determined by the county courts."

But while the jurisdiction of the county courts was thus
being broadened at the top, it was being narrowed at the
bottom. It was found expedient to relieve them of many
petty cases by allowing the commissioners to perform cer-
tain judicial acts out of court. So in 1643 it was provided
by law that no suit for a debt under the amount of twenty
shillings (afterwards twenty-five) should thereafter be heard
in the county courts, but that every controversy of this kind
should be decided by the magistrate living nearest the cred-
itor. The magistrate was also authorized to commit to
prison the litigant who would not comply with his award."
From this time until the end of the colonial period, causes
involving amounts of not more than twenty-five shillings, or
two hundred pounds of tobacco, were determinable by single
justices.88 The judicial authority of single justices was not
confined to civil cases, but violations of certain penal laws
could also be punished by them.87 They were to hear com-
plaints of ill-treatment made by servants against their mas-
ters, and if they considered the charges well-founded, were
to summon the offending masters before the county court.
Complaints of servants could also be made directly to the
county courts by petition " without the formal process of an
action." Furthermore, masters were not allowed to whip
Christian white servants naked without an order from a jus-
was made against this county because of its distance from James
City and the difficulty with which appeals from its court could be
prosecuted in the General Court. Hening, I, 346.

"Hening, III, 507-508; V, 491. Warwick Records, 1748-1762,
272. Blair, Hartwell, and Chilton, 43, 44. Webb, Virginia Justice,
107.

85 Hening, I, 273. Hartwell, Blair, and Chilton, 43.

88 Hening, V, 491. Hartwell, Blair, and Chilton, 43. Winder
MSS., I, 204. Webb, Virginia Justice, 203. Mercer, Virginia Laws,
64.

For a few years, single justices could hear causes of the value
°f 35° pounds of tobacco. Hening, I, 435.

"Webb, Virginia Justice, 204.

82 Justice in Colonial Virginia. [480

tice." By these provisions, servants were given easy access
to the local judiciary, and the protection of the law was
placed in easy reach of them. Appeals from the decisions of
single justices were in certain causes allowed to the county
courts, but the decisions of the county courts on such appeals
were always final.89 The authority of two justices acting
together, one being of the quorum, was greater than that of
single magistrates. Proclamations against outlying slaves and
warrants for their arrest could be issued by them. They
could suppress ordinaries during the intervals between court
sessions if the keepers allowed unlawful gaming and drink-
ing on the Sabbath day. By a statute of 1676 (re-enacted
next year) any two justices of the quorum were given power
to sign probates of wills, and letters of administration.40

At first, the criminal jurisdiction of the county courts was
limited to petty causes, but it seems that later it was in-
creased so as to include important criminal offenses. This
enlargement of the jurisdiction of the local courts was made
for the convenience of the people, but the local tribunals
were unequal to the new responsibility. So in 1655, by an
act of the legislature, this power was taken from them ; and
it was ordered that offenses " touching life or member "
should thereafter be referred to the Quarter Court of the
assembly, whichever of them should first be in session. The
assembly realized that, in thus restricting the powers of the
lower courts, it was departing from English precedent, and
was, to that extent, causing their divergence from the line of
development which had been followed by the county court
system of the mother country. The reason given by the
assembly for thus restricting the jurisdiction of the lower
courts was that the juries generally empaneled in the
sparsely settled counties of Virginia were less informed and

"Hening, I, 255, 440; III, 448, 449; VI, 357, 35& Calendar Vir-
ginia State Papers, I, 99.

88 Starke, Virginia Justice, 10.

"Hening, I, 435; II, 359, 391; III, 86, 397-398. Henrico County
Records, 1677-1692, 16-17, 300-301.

481] The Inferior Courts. 83

less experienced in judicial matters than those in the English
shires, and could not, therefore, with equal safety, be en-
trusted with the fate of criminals charged with high crimes.
Thus the law-makers of Virginia realized in this case, as well
as in many others, that a constitution which had been made
for an old and highly developed society, could not be fitted
to a new and rapidly growing state without some adapta-
tion." From this time until the Revolution, no offenses
punishable by loss of life or member, unless they were com-
mitted by slaves, were cognizable in the county courts.*2
But the county courts could order the ears of slaves to be cut
off as a punishment for hog-stealing,48 and during the last
century of the colonial period, the justices could try slaves
charged with capital crimes.*4

In the county courts, as well as in the General Court, de-
cisions were reached by a majority vote of the judges pres-
ent.*3 Petit juries were called on to decide matters of fact,
and offenses were brought before the court by means of
presentments and indictments made by the churchwardens
and the grand jury.

The offenses which the churchwardens were required to
present to the county courts were fornication, adultery,
drunkenness, " abusive and blasphemous speaking, absence
from church, Sabbath-breaking," and other like violations of
the moral code.48 But the duty of publicly accusing their

41 Hening, I, 397, 398, 476.

42Hening, III, 508; V, 491. Webb, Virginia Justice, 107.

43 But this inhuman punishment was inflicted only for the second
offense. Other persons, as well as slaves, were severely punished
for hog-stealing. For a good many years, the laws provided that
all persons found guilty of hog-stealing for the second time were to
be required by the county courts to stand in the pillory two hours
with their ears nailed to it, and at the end of that time to have
their ears cut loose from the nails. Hening, II, 441 ; III, 179, 276,
277. Beverley, History of Virginia, Book IV, p. 25.

44 See pp. 99-101.
"Hening, I, 125.

"Hening, I, 126, 156, 227. Accomac Records, 1632-1640, 123.
Lower Norfolk County Records, 1637-1643, 85, 217, 220, 226.

In every parish, which was a subdivision of a county, there were
two churchwardens and a vestry composed of twelve men. Usually

84 Justice in Colonial Virginia. [482

neighbors of disgraceful deeds must have been a hard one to
perform, and so the thankless task was often shirked by
them.47 The churchwardens had power by law to make
presentments during the entire colonial period, but in the
latter part of it they seem not to have exercised this authority
often.48

In 1645, the grand jury found its way into the county
court, where it joined with the churchwardens in acting the
role of public accuser. By a statute of this year, it was
provided that grand juries should be empaneled at the mid-
there were from two to four parishes in a county, though in some
of the counties there was only one. The parish was not always
bound by the limits of the county, but some of the parishes ex-
tended into two counties. The office of churchwarden seems to
have been older in Virginia than that of vestryman, for we find men-
tion of churchwardens as early as 1619, and we know that church-
wardens were chosen in Accomac County before the vestry was
appointed.

Vestrymen were elected differently at different times. The first
vestry that is mentioned in the county court records was appointed
by the commissioners of the monthly court, and as late as 1692, an
old vestry was dissolved and a new one chosen by a county court.
Vestrymen were also often elected, especially in the early years, by
a majority of the householders of the parish. But in time there
grew up the custom of allowing the vestries to fill their own vacan-
cies, and so they became self-perpetuating bodies like the county
courts. Every year the vestrymen elected two of their number to
the office of churchwarden.

To the vestrymen and the churchwardens was entrusted the man-
agement of the affairs of the parish. They appointed ministers, kept
the churches in repair, bound out orphan children, and laid the
parish levy. Another important duty performed by the vestry was
that of "processioning" lands. Every four years (at one time
every year) they had to go around the lands of every person in the
parish and mark out the bounds and renew the landmarks. This
was a wise provision; for it must have prevented many disputes
over boundaries which would otherwise have arisen, and thus have
removed a very fruitful source of litigation. Hening I, 290, 291 ;
II, 25, 44, 45; III, 325, 530. Henrico Parish Vestry Book, 1730-
1773, 8, 12, 16, 20-26, 34, 35. Bristol Parish Vestry Book, 1720-
1789, 3, 5, 7, IS, 18, 26. Colonial Records of Virginia, 27, 103, 104.
Jefferson's Notes on Virginia, 116. Richmond County Records,
1692-1694, 56. Accomac Records, 1632-1640, 10, 39. Winder MSS.,
II, 163. Webb, Virginia Justice, 71. Robinson MSS., 235. Bever-
ley, History of Virginia, Book IV, p. 28. Hugh Jones, Present
State of Virginia, 63, 66. Warwick Records, 1748-1762, 78, 81, 342.

47 Hening, I, 291, 310.

"Webb, Virginia Justice, 71. Mercer, Virginia Laws, 286. Bev-
erley, Book IV, p. 28.

483] The Inferior Courts. 85

summer and March terms of the county courts " to receive
all presentments and informations, and to enquire of the
breach of all penal laws and other crimes and misdemeanors
not touching life or member, to present the same to the
court." In 1658, a law was passed providing that grand
juries should be empaneled at every court. But the grand
jury system did not prove as efficient in the detection of of-
fenses as its advocates hoped it would, and the law was
repealed the same year.48

But the repeal of this statute proved to be an unwise meas-
ure for it left the counties without adequate provision for the
detection of offenses. In a year or so it was noticed that the
laws were not being properly respected, and a renewal of
the grand jury system in the counties was voted by the
assembly. By an act of 1662, it was ordered that grand
juries should thereafter be empaneled in all the counties, and
that all breaches of the penal laws committed within their
respective counties should be presented by them to the
county courts at the April and December terms.60 In fifteen
years this statute had almost become a dead letter because it
had not provided any penalty for non-compliance with its
provisions. For this reason, a law was passed in 1677 which
provided for a fine of two thousand pounds of tobacco to be
imposed on every court that should fail to swear a grand
jury once a year, and a fine of two hundred pounds of
tobacco on every juror who should be absent from court
without a lawful excuse.81

From this time until the end of the colonial period, the
grand jury was a permanent part of the county court system.
By the end of the seventeenth century, it had reached its
complete development, and no material changes were made
in it from that time until the Revolution. It was the custom
during the eighteenth century for the sheriff to summon

"Hening, I, 304, 463, 521.

60 Ibid., II, 74.

51 Ibid., II, 407, 408.

86 Justice in Colonial Virginia. [484

twenty-four" freeholders to be present at the May and
November courts. Those that obeyed the summons con-
stituted the grand jury, provided the number that attended
was not less than fifteen. If enough jurors were absent to
bring the number below fifteen, no jury was empaneled and
the absentees were fined."

By 1642 the practice of calling on petit juries to try causes
had been introduced in the county courts.64 A law was passed
in that year which gave either party to a controversy pend-
ing in any court in the colony the right of having a jury
summoned to sit in judgment on his case, provided it was
important enough to be tried by a jury.65 Litigants were not
slow to avail themselves of this privilege, and almost imme-
diately we meet with jury trials in the county courts."

From this time on, the county courts referred important
causes to juries for trial. The usual practice in the eighteenth
century was for a jury of twelve men to be selected from
the bystanders every day the court was in session, which
was called on to decide all causes that should be tried by
a jury.67 According to the laws that were in force during
this century, none but those who possessed property of the
value of fifty pounds sterling could serve on juries in the
county courts.68 In the county court, as well as in the Gen-

"In the latter part of the seventeenth century, the number sum-
moned was twelve. Each juror made an individual report of the
offenses that had come within his knowledge. York Records, 1671-
1604, 125. Henrico Records, 1677-1692, 32, 33. Elizabeth City
County Records, 1684-1699, 4, 93.

"Richmond County Records, 1692-1694, 136, 137. Henrico Rec-
ords, 1710-1714, 55, no, 193, 273; ibid., 1737-1746, 5, 34, 39. War-
wick Records, 1748-1762, 103, 184, 355. Charles City County Rec-
ords, 1758-1762, 75, 115. Hening, III, 367-368; IV, 232.

"Juries are mentioned in the county court records before this
time; but they were not empaneled to try causes but only to ap-
praise estates and goods about which suits were pending in the
courts. Accomac Records, 1632-1640, 17, 59.

"Hening, I, 273.

58 Accomac Records, 1640-1645, 179, 188, 190, 204, 222.

"Hening, I, 474; II, 74; III, 369; V, 525. Essex County Records,
1683-1686, i, 8, 32, 40, 60. Henrico Records, 1677-1692, 191. Rap-
pahannock Records, 1686-1692, 214. Richmond County Records,
1692-1694, 91-

68 Hening, III, 176, 370 ; V, 526.

485] The Inferior Courts. 87

eral Court, it was the practice in the early years for juries
to be kept from food until after they had rendered their
verdict.09 A few instances are recorded in which juries of
women were called on to decide questions of fact in cases in
which women were charged with witchcraft or of concealing
bastard children.*

"Hening, I, 303; II, 74.

60 Rappahannock Records, 1686-1692, 163. William and Mary Col-
lege, Quarterly, Jan., 1893, pp. 126-128.

It is not to be inferred from this mention of witchcraft cases that
such trials were frequent occurrences, for only a few cases have
been found in which persons were charged with this crime.

The most noted witchcraft trial in Virginia history was that of
Grace Sherwood. On the 7th of December, 1705, Grace Sherwood
brought suit in the court of Princess Anne County against Luke
Hill and his wife in action of trespass of assault and battery and
recovered damages to the amount of twenty shillings. Soon after
this, Luke Hill and his wife brought before the same court an accu-
sation of witchcraft against Grace Sherwood. The court in Feb-
ruary, 1706, ordered the sheriff to issue an attachment against the
body of Grace Sherwood and to summon a jury of matrons for her
trial. On the 7th of March the case came up for a hearing, and the
jury of twelve women brought in the following verdict: "Wee of
ye Jury have SerchtH Grace Sherwood & have found Two things
like titts with several Spotts." This report of the jury left the court
in doubt as to what should be done, and Luke Hill sent in a petition
to the council asking that Grace Sherwood be prosecuted before the
General Court. This petition was referred to the attorney-general
for his opinion, who said that the charge was too general to war-
rant a prosecution before the General Court. He also said that the
case should be examined again by the court of Princess Anne, and
if sufficient grounds were found for a trial by the General Court,
the accused should be sent to the public jail at Williamsburg. He
would then prosecute her before the General Court if an indictment
against her were made by the grand jury. The case was again taken
up in the Princess Anne court, and a jury of matrons was again
summoned. But the court had some difficulty in getting a jury to
serve, and the trial was delayed for a while. Finally on the $th
of July the court, with the consent of the accused, decided to appeal
to the ordeal of water to determine her guilt or innocence. The
sheriff was ordered to take her on the loth of July out and duck
her in deep water, but was to be very careful not to endanger her
life. She swam when she was thrown into the water, and after she
was brought out, a jury of women again examined her. The ver-
dict brought in by these women was about the same as the one re-
ported by the jury on the 7th of March. The sheriff was then
ordered to kep her in jail until she could be tried again; but it is
probable that all proceedings against her were dropped, as further
mention of the case is not found in the records. William and Mary
College Quarterly, IV, 18-20. Lower Norfolk County Antiquary,
IV, 139-141 ; HI, 34-38.

88 Justice in Colonial Virginia. [486

The justices of the county courts, like the judges of the
General Court, were not always closely bound by laws in
giving their decisions. The early commissioners sometimes
invented penalties and fitted them to offenses without the
guidance of any legal precedent. The unique way in which
this was done argued more for the originality of the judges
than for their knowledge of the law."

There was no lack of variety in the punishments that the
early justices inflicted on criminals. Fines were imposed,
and often resort was had to the lash to induce offenders to
repent of their misdeeds. As a rule, the number of stripes
given did not exceed thirty-nine, but they were generally
made on the bare back.62 In the early records of Lower
Norfolk County, three cases appear in which culprits were
punished by receiving one hundred lashes on the bare
shoulders." One case is also given in the records of Essex
County in which this punishment took a very severe form.
The court, on a certain occasion, ordered the sheriff to give
an offender one hundred and twenty lashes on the bare
back.84 However, law-breakers were seldom subjected to
such harsh treatment, and it seems that, on the whole, the
penal laws of Virginia as interpreted by the judiciary in the

81 See pp. 90-91. The following example of the originality of the
justices in devising penalties is given in the Accomac Records, under
date of September 8, 1634. A woman for calling another a prosti-
tute was ordered to be drawn across a creek at the stern of a boat,
unless she acknowledged her fault in church the next Sunday be-
tween the first and second lesson. Accomac County Records, 1632-
1640, 20.

82 In the records of York County, two instances are recorded in
which offenders were ordered to be whipped until the blood came.
York Records, 1671-1694, 138, 221. Accomac Records, 1632-1640,
20, 37, 47 ; ibid., 1640-1645, 49, 88, 200.

"In one of these cases the offense was a mutiny of slaves
against an overseer in the absence of their master. In one of the
other two cases, a woman had wrongfully charged a man with being
the father of a bastard child born of his servant. In the other, a
woman-servant had falsely accused her mistress of acts of unchas-
tity. Lower Norfolk County Records, 1637-1643, 12, 14, 15, 16.

64 Essex County Records, 1683-1686, 49.

These are the only examples of such undue severity that have
been found though it is not claimed that no others are on record.

487] The Inferior Courts. 89

colonial period were not harsher than could be expected at
that time.

The early commissioners did not rely solely on physical
punishments for the correction of wrong-doing, but some of
the penalties that they ordered must have appealed strongly
to the self-esteem of those who had brought themselves under
the censure of the court. Slanderers frequently were re-
quired to ask pardon of the injured parties in church or in
open court, and were sometimes compelled to sit in the
stocks on Sunday during divine service. Those who had
abused their neighbors might also be subjected to the humilia-
tion of lying neck and heels together at the church door.8*
Fornication and adultery were very much frowned upon by
the county courts. In the early years, men and women who
had committed these sins were sometimes whipped, and
sometimes were compelled to acknowledge their fault in
church before the whole congregation. A few instances are
recorded in which women who had erred from the path of
virtue or had slandered their neighbors were compelled to
make public confession while standing on stools in the
church, with white sheets wrapped around them and white
wands in their hands.68 Transgressors did not always go
through this terrible ordeal without demurring. In Lower
Norfolk County we find a woman refusing to do penance
properly, and even going so far as to cut her sheet. But the
court would brook no disobedience to its orders, and obstin-
acy on the part of the criminal only increased the severity of
the original sentence. In the same county a woman was sen-
tenced by the court to ask forgiveness in church for having
slandered one of her neighbors. Having refused to comply
with this order, she was summoned before the court to
answer for her contempt. She did not obey this summons,
and the commissioners, in her absence, voted an order which

^Accomac Records, 1632-1640, 59, 112, 145, 151; ibid., 1640-1645,
49, 88. 200.

""Accomac Records, 1632-1640, 123, 145. Lower Norfolk County
Records, 1637-1643, 219, 226. Accomac Records, 1640-1645, 200.

go Justice in Colonial Virginia. [488

showed that they were not in a mood to tolerate further
obstinacy on her part. The decree was as follows : " The
sheriff shall take her to the house of a commissioner and
there she shall receive twenty lashes ; she is then to be taken
to church the next Sabbath to make confession according to
the former order of the court. If she refuses, she is to be
taken to a commissioner and to be given thirty lashes, and
again given opportunity to do penance in church. If she
still refuses to obey the order of court, she is then to receive
fifty lashes. If she continues in her contempt, she is to
receive fifty lashes, and thereafter fifty every Monday until
she performs her penance." '

The oldest county court proceedings that are now extant
are those of Accomac, which date from 1632. These re-
cords are particularly interesting because of the unique
methods employed by the commissioners in their administra-
tion of justice in the first half of the seventeenth century.
These early commissioners seemed often to consult the dic-
tates of expediency in rendering their decisions, and fre-
quently prescribed such punishments as would wring from
crime an income to the community. Indeed, from the
penalties that they attached to certain offenses, one would
think that the judges inclined to the belief that the wicked-
ness of man should be harnessed and made to do service in
the cause of righteousness. A few cases are recorded in
which wrong-doers were required to build a pair of stocks
and dedicate them to the county by sitting in them during
divine worship, and in 1638 a man who had been guilty of
the sin of fornication was ordered to build a ferry-boat for
the use of the people.68 We also find a court in 1634 ordering
a man, for abusing another, to " daub the church as soon as
the roof can be repaired."88 On another occasion, disobe-
dience to a country regulation regarding the carrying of

97 Lower Norfolk County Records, 1637-1643, 121, 137.
88 Accomac Records, 1632-1640, 28, 69, 123. Lower Norfolk County
Records, 1637-1643, 13.
•* Accomac Records, 1632-1640, 16.

489] The Inferior Courts. 91

arms was punished by requiring the offenders to repair to
the church the following Saturday and pull up all the weeds
growing in the churchyard and the paths leading to it.70

Some of these unusual modes of punishment, ducking and
pillorying for example, were employed by the courts in the
later, as well as in the earlier, part of the colonial period.
By laws passed late in the eighteenth century, it was pro-
vided that ducking-stools, stocks and pillories should be
erected in every county.

For the punishment of breaches of the penal laws com-
mitted by servants, a special arrangement had to be made,
as they could not pay the fines imposed on them by the
court. Additions of time to their terms of service were
sometimes made, and in the eighteenth century, it was the
custom for the court to allow servants to bind themselves out
to a term of service to any one who would pay their fines.
But if they could not get any one to assume their fines, they
had to undergo corporal punishment and receive twenty-
five stripes for every 500 pounds of tobacco of the fine."

The justices had many duties to perform in addition to
those of trying causes. They ordered the opening of new
roads and saw that surveyors appointed by them kept the
highways open and cleared." The levy of the county was
apportioned by them, and the lists of tithables were some-
times taken either by themselves or by officers chosen by
them for that purpose.73 The justices also licensed taverns

70 Accomac Records, 1640-1645, 88.

71 Hening, III, 267, 268 ; V, 507, 508. Webb, Virginia Justice, 106,
291. Essex Records, 1683-1686, 5; ibid., 1695-1699, 59. Virginia
Gazette, August 19, 1737. Robinson MSS., 53. Rappahannock
County Records, 1686-1692, 55, 147.

"Hening, II, 103; VI, 65. Essex County Records, 1683-1686,
97. Rappahannock Records, 1686-1692, 16, 46, 163, 212. Henrico
Records, 1737-1746, 64, 147, 168, 231.

78 Hening, II, 357. Henrico Records, 1677-1692, 186, 288, 403.
Essex Records, 1695-1699, 40, 86, 87. Elizabeth City County Rec-
ords, 1684-1699, 98, 172. Beverley, History of Virginia, Book IV,
pp. 19-20. According to one of Bacon's Laws, representatives of the
people were to assist the justices in laying the county levy.

92 Justice in Colonial Virginia. [490

and regulated the prices at which drinks could be sold.74
Another important duty of the court was to issue certifi-
cates for land grants. Every " adventurer " who brought
over emigrants to Virginia was entitled to fifty acres of
land for every person transported. These grants were made
by the governor upon certificates given by the county courts
stating the number of persons the claimant had landed.75

The county courts were also required to hear complaints
and to examine claims. Once before every session of the
assembly, a court was held for these purposes, public notice
of it having been given beforehand. All claims for dues
from the general government were examined, and the just
ones were certified to and sent on to the assembly with the
recommendation that they be allowed. If the people had
any grievances against the government, they were at liberty
to bring them before this court to be likewise sent on to the
assembly.78 During a considerable part of the seventeenth
century, the county courts had the power to make or to
assist in making the by-laws of their respective counties."

We see, therefore, that in the county government there
were no well-defined limits separating the judiciary from the

T4Hening, II, 19; III, 396, 397; VI, 71-73. Elizabeth City County
Records, 1684-1699, 236. Henrico Records, 1737-1746, 25, 68, 102,
133, 210, 308. Webb, Virginia Justice, 108.

"Accomac Records, 1640-1645, 43, 96. Lower Norfolk County
Records, 1637-1643, 5, 80, 125. Henrico Records, 1710-1714, 2, 12.
Rappahannock Records, 1686-1692, 5, 60, 85, 151.

7CHening, II, 405, 421; III, 43, 44; VII, 528; VIII, 316. Essex
Records, 1683-1686, 14, 15, 18. Hartwell, Blair, and Chilton, 39.

"This power began to be exercised at an early date, and in 1662,
it was recognized by law. Some years later representatives of the
people met with the justices and took part in making the by-laws for
the counties. By an order of the Committee of Trade and Planta-
tions given in 1683 all laws empowering the county courts to make
by-laws were to be repealed; but the governor was instructed to
allow the assembly to pass a law providing that by-laws be made
by the counties or parishes with the consent of the governor and
council. Whether such a law was passed does not appear, but it
is certain that in a few years (1691), the county courts had been
deprived of the power to make by-laws for the counties. Accomac
Records, 1640-1645, 88, 89. William and Mary College Quarterly,
II, 58, 59- Hening, II, 35, 171, 172, 357, 441. Virginia Magazine of
History and Biography, VIII, 186. Sainsbury MSS., 1682-1686, 51.

49 1 ] The Inferior Courts. 93

legislature and the executive. Nor were the lines that
divided the county courts from the other branches of the
colonial government sharply drawn. The Burgesses chosen
by the counties were very often justices of the peace, and
so the county courts and the assembly were kept in close
relation with each other.78 During a part of the seven-
teenth century, the county courts were in like manner con-
nected with the General Court. Councillors were not ineligi-
ble to the office of justice of the peace, and by a law of 1624,
they were empowered to sit in the court of any county, even
if they were not in the commission, and were authorized to
hold a court on occasions of emergency in the absence of the
quorum.79 The interdependence thus established between
the higher and lower tribunals must have been a great
advantage to the latter, for it not only gave the inexperienced
justices the benefit of the advice of a councillor, but it also
enabled the decisions of the Quarter and county courts to be
rendered with something like uniformity. But there was
one objection to allowing the councillors this privilege. It
permitted the Quarter Court to assist in giving decisions,
the responsibility for which had to be borne by the county
courts. For this reason a provision was put in one of
Bacon's laws, passed in 1676, forbidding councillors to vote
with the justices in the county courts.80

In the records that have been examined no mention is
made of any great abuses in the practice of the county
courts, and on the whole, justice seems to have beeen ad-
ministered fairly by them. And yet there were certain de-
fects in the county court system which were unfavorable to

"Lower Norfolk County Records, 1637-1643, 16, 17, 36, 189. Ac-
comae Records, 1640-1645, 115, 118, 217, 343. Henrico Records,
1677-1692, 133, 228, 244, 403; ibid., 1710-1714, 39, 115, 202, 266; ibid.,
1737-1746, 128. Elizabeth City County Records, 1684-1699, 12, 244.
Essex Records, 1695-1699, 33, 40, 86, 87.

In 1714, seventy per cent of the Burgesses were justices. Vir-
ginia Magazine of History and Biography, II, 3-15.

"Hening, I, 224. Lower Norfolk County Records, 1637-1643.
160. Accomac Records, 1640-1645, 149.

80 Hening, II, 358.

94 Justice in Colonial Virginia. [492

good government in the counties. As the people had no
voice, either direct or indirect, in the selection of justices,
public opinion was probably not as effective in restraining
the judges from unfair decisions as it should have been.
Besides, the custom of rilling vacancies in the court on the
nomination of the justices made the court a self-perpetuat-
ing body. The justices would naturally be inclined to give
the vacant places on the bench to their friends and relatives,
and so it was easy for a few families to get and keep a
monopoly of the government in each county.

But despite these defects, the county court system was
well adapted to the conditions that obtained in Virginia in
colonial times. From the experience gained from the perform-
ance of their judicial and administrative duties, the justices
learnt much of the art of government, and were thus qualified
for taking part in the organization of the commonwealth gov-
ernment when Virginia severed her relations with Great
Britain. The fact that Virginia had a numerous class of men
who had already known the responsibilities of governing,
no doubt, accounts, in large measure, for the absence of radi-
calism in the constitutional changes made in 1776. To the
opportunities for political training afforded by the county
courts and the other governmental agencies of the colony,
Virginia was also largely indebted for the number and
prominence of her leaders in the struggles for independence.

The county courts were not only a training-school for
statesmen, but were also incidentally an agency for the
education of the people. " Court-day was a holiday for all
the country-side, especially in the fall and spring. From
all directions came in the people on horseback, in wagons,
and afoot. On the court-house green assembled, in indis-
criminate confusion, people of all classes, the hunter from
the backwoods, the owner of a few acres, the grand pro-
prietor, and the grinning, needless negro. Old debts were
settled, and new ones made; there were auctions, transfers
of property, and, if election times were near, stump-speak-

493] The Inferior Courts. 95

ing." ' These public gatherings brought the people in
contact with each other, and gave the ignorant an opportu-
nity to learn from the more enlightened. The education
that comes from association with people is a kind that is
particularly needed in a society in which the inhabitants
are isolated from each other; and, therefore, the educa-
tional advantages afforded by the monthly meetings at the
county seats atoned to some extent for the lack of adequate
opportunities for school education in colonial Virginia.

Circuit Courts. — As the General Court was held only at the
capital, appeals from the counties could not be prosecuted in
it without considerable delay and inconvenience. So there
arose the need for an appellate court to act as intermediary
between the higher and lower tribunals. The assembly real-
ized this, and soon after the Restoration, attempted to remedy
this defect in the Virginia judiciary by the formation of a new
court. In 1662 a law was passed providing for the establish-
ment of circuit courts, which were to be held once a year in
every county. The colony was divided into circuits, and to
each was assigned the governor and one councillor or two
councillors. During the month of August, these judges of
the General Court were to hold courts in every county of their
respective circuits on the days regularly appointed for the
county courts.

Whenever a circuit court was held in a county, all appeals
that had been allowed since the preceding March by the
regular courts of that county were to be brought before it
for trial. Appeals from the county courts that were
allowed from October to December were to be tried by the
General Court. The reason why appeals were to be taken to
the General Court during these months and not during the
spring and summer, was that the sessions of the General
Court were held oftener in winter than in summer. The
decisions of the circuit court were not final but could be
appealed from to the assembly or the General Court. When-

81 Ingle, Virginia Local Institutions, J. H. U. Studies, III, 90.
Hugh Jones, Present State of Virginia, 49.

96 Justice in Colonial Virginia. [494

ever the judges of a circuit court were the governor and one
councillor, appeals from it were to be allowed to the assem-
bly; but when the itinerant judges were two councillors, ap-
peals from their decisions were to be tried by the General
Court.82 But this new tribunal was short-lived, for the law
which brought it into being was repealed in December of this
same year. The circuit courts were discontinued because of
the great expense incurred in holding them.83

Courts of Examination. — In the early years, before the
special courts of examination had grown up, all per-
sons who were charged with any violations of the
penal laws, except those who were punished by loss of
life or member, were brought before the county courts
for examination. These causes were determined by the
county courts, except those which the justices saw fit to
refer to the governor and council, which were sent on to
the Quarter Court for trial.84 It seems, however, that im-
portant criminal offenses in the early years were not given a
preliminary hearing in the county courts before they were
brought before the Quarter Court for trial. But before the
end of the seventeenth century there had grown up a well-
defined system for the examination of prisoners in the
counties.85 Whenever a justice issued a warrant for the
arrest of a criminal charged with an offense which, in his
opinion, was not cognizable in the county court, he ordered
the sheriff to summon his fellow magistrates together in a
special court of examination, which was held within ten days
after the issuance of the warrant. The offender and his
witnesses were brought before this court and examined, and
if he was found innocent of the charge brought against him
he was discharged. If, however, the evidence gave grounds

82 Hening, II, 64, 65.

88 Ibid., II, 179.

84 Ibid., I, 304. Accomac Records, 1632-1640, 43, 47; ibid., 1640-
1645, 270.

"We do not find a law recognizing the existence of courts of
examination until 1704, but we know that such a court had been
established in Rappahannock County as early as 1690. Rappahan-
nock Records, 1686-1692, 163. Hening, III, 225.

495] The Inferior Courts. 97

for a trial the case was sent to the next grand jury court of
the county, provided it was matter of which the county court
took cognizance. But if it proved to be a case over which the
county court had no jurisdiction, it was sent up to the Gen-
eral Court for determination. Whenever a cause was re-
ferred to the General Court, the prisoner was turned over to
the custody of the sheriff to be taken at once to the public
jail at the capital, unless the offense was a bailable one, in
which case he was given twenty days in which to find bail.htt
This method of examining criminals was employed from the
last decade of the seventeenth century to the end of the colo-
nial period. By means of these special courts criminal
cases were all sifted, and only those in which there was some
chance of conviction were passed on to the General Court.
In this way criminal offenses were disposed of with less
expense than they would have been if all of them had been
tried directly by the General Court.

Slave Courts. — A good deal of special legislation for the
punishment of slaves is found in the colonial laws. When
a runaway slave was caught, he was taken from one con-
stable to another until he was brought back to his owner.
Each constable who took part in conveying the fugitive back
to his master whipped him before turning him over to the
next constable. If it was not known to whom the fugitive
belonged, he was confined in the county jail and a notice of
his capture was posted on the court-house door. At the end
of two months, if he was not claimed by his owner, he was
sent to the public jail at Williamsburg and was kept in the
custody of the sheriff there until his master was found. In
the Virginia Gazette were published notices of all such fugi-
tives, in which minute descriptions of their personal appear-
ance were given.87 Two justices, one being of the quorum,

88 Hening, III, 389-391 ; V, 541, 542. Webb, Virginia Justice, 109-
115. Starke, Virginia Justice, 114-120. Henrico Records, 1719-
1724, 137, 138; ibid., 1737-1746, 87, 166, 252, 253.

"Hening, III, 456-457; IV, 168-169; V, 552-554; VI, 363-365.
Virginia Gazette, June 3, 1737; July 7 and September 29, 1768; De-
cember 7, 1769.

98 Justice in Colonial Virginia. [496

could issue proclamations against outlying slaves, ordering
them to return to their masters. These orders were to be
read every Sunday twice in succession in every church in
the county immediately after divine service. After this
announcement had once been made any outlying slave who
failed to obey it could be killed by any one without fear of
punishment.88 Besides, the county courts for some years
had the power to punish incorrigible and runaway slaves
by castration. But by 1769 the assembly had come to realize
that this penalty was " revolting to the principles of human-
ity " and was " often disproportionate to the offense." By
a law passed in this year, the county courts were deprived of
the power to order the castration of outlying slaves and were
limited in the use of this punishment to attempts at rape
made by negroes against white women.89 As has already
been shown,80 there was no law extending the benefit of
clergy to slaves until 1732, and even after that time, this
privilege was not allowed in all cases in which it could be
claimed by freemen. There was also some discrimination
against slaves in the punishments prescribed by the laws for
penal offenses.91

The testimony of Indians, negroes, and mulattoes, bond
and free, was allowed in the trial of slaves for capital crimes.
For a while persons of that description who professed
Christianity and " could give some account of the principles
of the Christian religion," served as witnesses in the cases
regularly tried by the General Court. But their testimony
was very unreliable and was rejected by some juries while it
was admitted by others. Just decisions could not be reached
so long as they were based on such untrustworthy evidence,
and so in 1732 it was enacted by the assembly that no negro,
Indian, or mulatto, bond or free, should thereafter be al-

Hening, III, 460; VI, no.

"

"Hening, III, 460, 461; IV, 132; VIII, 358.
90 See page 69.
Ballagh, History of Slavery in Virginia, 85-88. Hening, VI>

106.

497] The Inferior Courts. 99

lowed to bear witness in court except in the trial of slaves
charged with capital offenses. After this kind of testimony
was excluded, it frequently happened the persons so dis-
criminated against were relieved from paying their just debts
because they could not be proved in court. Therefore, it
became necessary to modify the rule against negro and
Indian testimony, and in 1744 it was provided by law that
free Christian negroes, Indians, and mulattoes should be
allowed to bear witness for or against any negro, Indian, or
mulatto, free or slave, in any court in the colony in both
civil and criminal cases.92

Prior to 1692, there were no special courts for the trial of
slaves charged with capital crimes. Like freemen who were
accused of the same offenses, they were never sentenced to
death except at Jamestown and only after they had been
given a trial by jury. Not only was this method of trial ex-
pensive, but it also prevented a speedy administration of
justice. But the punishment of negroes for capital offenses
had to be inflicted without delay if it was to be most effective
in deterring other slaves from crime. For these reasons a
special court of oyer and terminer for the trial of slaves
was created in 1692 by an act of assembly. This law pro-
vided that the sheriff of a county should notify the governor
whenever he had arrested a slave for a capital crime. Upon
receipt of this notice, the governor was to issue a special
commission of oyer and terminer to such persons of the
county as he should deem fit, and the persons so named —
who were, as a rule, justices of the peace — were to meet at
once in a court at the county seat. The prisoner was to be
brought before this court and tried without the aid of a jury.

Other laws were passed from time to time which re-
affirmed and enlarged the provisions of this act. By a
statute of 1705 masters were to be allowed to appear in de-
fense of their slaves " as to matters of fact, but not as to

^Hening, IV, 127, 327; V, 244, 24*: VI, 106. Henrico County
Records, 1737-1746, 254, 285.

ioo Justice in Colonial Virginia. [498

technicalities of procedure," and were to be indemnified for
the loss of their slaves whenever they were executed by order
of the court. This indemnity was an inducement to the
people to report the crimes of their slaves to the authorities.
When the law was revised in 1723, it was provided that the
testimony of negroes, Indians, or mulattoes, bond or free,
when supported by " pregnant circumstances or the testi-
mony of one or more credible witnesses," should be accepted
by the court as sufficient evidence for conviction or acquittal.
If a non-Christian negro, Indian, or mulatto should give
false testimony he was to be severely punished. His ears
were to be nailed to the pillory one hour each and were to be
cut loose from the nails, after which he was to receive thirty-
nine lashes " on his bare back, well-laid on." In 1748,
unanimity of the judges present was required for conviction ;
but by a law of 1772, sentences could be voted by any four
of the justices, being a majority of those present.

But even this method of trying slaves was attended with
some inconvenience, for the commissions of oyer and termi-
ner given by the governor for every court could not be sent
to the counties without considerable trouble and expense.
Besides, the time limit of these commissions was sometimes
reached before sentences had been given by the courts.
These objections were met by a law passed in 1765, which
provided that the justices should be given a standing com-
mission of oyer and terminer empowering them to try all
criminal offenses committed by slaves in their respective
counties. Whenever a warrant was issued for the arrest of
a slave charged with a capital crime, the justices of the
county were summoned by the sheriff to meet at once in a
special court. Any four or more of the justices who obeyed
this summons were to constitute a court, before which the
prisoner was arraigned for trial. Sentences were given as
before without the assistance of a jury.

Clergy was allowed by the slave courts for those offenses
to which it had been extended by law. For crimes without

499] The Inferior Courts. 101

the benefit of clergy, hanging was the usual punishment,9*
though occasionally the death penalty came in a more bar-
barous form. One instance has been found in which a slave
was burnt for murder,84 and another is given in which the
heads and quarters of some negroes who had been hanged
were set up in the county as a warning to their fellow-
slaves.*6 The sentences given by the court were executed
without delay. In Henrico county in the early part of the
eighteenth century slaves convicted by this court seem usu-
ally to have been hanged on the first Friday after their trial,
and two cases are recorded in which only two days elapsed
between the trial of a slave and his execution.96 By such a
speedy administration of justice the criminal was deprived of
the opportunity of seeking a pardon from the governor, and,
in 1748, it was provided by law that death sentences against
slaves should never be executed except in cases of con-
spiracy, rebellion, or insurrection until after ten days had
elapsed.81

The prohibition of trials by jury in the slave courts was
not an unjust discrimination against the slaves. On the
contrary, it was an advantage to the slave that he was tried
by the justices and not by a jury, especially during the period
when convictions could not be made except by a unanimous
vote of the judges present. For the justices were better
qualified than an average jury to decide causes, and were less
liable to give unjust sentences.98

Courts of Hustings. — In 1705, Governor Nott was in-

"Hening, III, 102, 103, 269-270; IV, 126-128; VI, 104-108; VIII,
I37> 138, 522, 523. Calendar Virginia State Papers, I, 194. Henrico
Records, 1710-1714, 225, 308; ibid., 1719-1724, 39, 43, 75, 159; ibid.,
I737-I746> 254, 284, 415. Warwick Records, 1748-1762, 128, 129, 299,
300. Charles City County Records, 1758-1762, 221, 222, 245. Bal-
lagh, History of Slavery in Virginia, 82, 83. Dinwiddie Papers, I,
384-

84 Virginia Gazette, February 18, 1737.

95 Virginia Magazine of History and Biography, I, 329, 330.

98 Henrico Records, 1719-1724, 39, 159, 547; ibid., 1737-1746, 284-
285.

97 Starke, Virginia Justice, 272. Hening, VI, 106.

98 Ballagh, History of Slavery in Virginia, 85.

IO2 Justice in Colonial Virginia. [500

structed by the Queen to recommend to the assembly the
enactment of a law which would bring about the establish-
ment of towns in Virginia. In obedience to this order, the
assembly in 1705 passed a law, which was to take effect
three years later, designating certain places as ports, from
which all exports from the colony were to be sent, and into
which all imports were to be received.09 It was thought that
the monoply of the colony's foreign commerce thus given to
these shipping points would cause towns to grow up around
them, and by this same act a detailed scheme of government
was mapped out for these towns.100 The assembly seemed to
think that towns could be legislated into being despite the
fact that economic conditions in Virginia were unfavorable
to city life. To planters who lived on the navigable rivers
with wharfs at their doors, the law requiring them to take
their tobacco miles away to load it at a would-be-town
seemed a useless and oppressive measure.101 It was not long
before the folly of this act of paternalism had become plainly
apparent to the Lords of Trade, as no attempt was made to
settle these towns.102 They recommended that the Queen
repeal the law, and in 1710 Governor Spottswood issued a
proclamation declaring it null and void.103

While the assembly and the Lords of Trade failed in their
attempt to impose city life on rural Virginia, commerce and
trade did select a few places for towns. The first of the
towns to grow into such importance as to require a court
of Hustings was Williamsburg, the capital. In 1722, Wil-
liamsburg received a charter from the King which consti-
tuted it a city and gave it a separate government. The man-
agement of the affairs of the city was entrusted to a mayor,
recorder, six aldermen and twelve councilmen. The King

"Other abortive attempts to establish towns were made by the
assembly prior to this time. Herring, I, 362, 397. Ingle, Local
Institutions of Virginia, J. H. U. Studies, III, 101-103.

"°Hening, III, 404-419.

m Byrd MSS., II, 162-165.

M Sainsbury MSS., 1706-1714, 215.

"*Henrico Records, 1710-1714, 17.

$oi] The Inferior Courts. 103

appointed the first mayor, recorder, and aldermen, who were
to elect twelve councilmen to hold office during good be-
havior. Every year at the feast of St. Andrew the mayor,
aldermen, and councilmen were to meet and select one of the
aldermen to be mayor for the ensuing year. Whenever va-
cancies occurred in the board of aldermen by the death or
resignation of any of its members, they were to be filled
from the common council by the mayor, recorder, aldermen,
and common council. When a vacancy occurred in the com-
mon council, the mayor, recorder, aldermen, and common
council chose some freeholder to fill it. The government
of the town was thus placed in the hands of officers in the
election of whom the people had no voice at all.

The mayor, recorder (who was to be learned in the law),
and the six aldermen were the judges of the Court of Hust-
ings, and were also justices of the peace in Williamsburg.
But no alderman was to sit in the Court of Hustings of
Williamsburg, unless he was also commissioned a justice of
the peace in some county. The mayor, recorder, and alder-
men performed legislative, administrative, and judicial du-
ties ; and so in Williamsburg, as well as in the counties, the
judiciary was closely connected with the other branches of
the local government. The meetings of the Hustings Court
were to be held monthly.104 The court was at first limited
in its jurisdiction to those causes in which the amounts in-
volved did not exceed twenty pounds sterling, or 4000
pounds of tobacco, and appeals were allowed to the General
Court. The jurisdiction of the court was enlarged from
time to time, and in 1736 it was provided by an act of
assembly that the court of Hustings of Williamsburg was
to " have jurisdiction and hold plea of all actions, personal
and mixt, and attachments, whereof any county court within
this colony, by law, have or can take cognizance." This
court also decided chancery causes, and examined crimi-

104 Charter of Williamsburg, published in the William and Mary
College Quarterly, X, 84-91.

IO4 Justice in Colonial Virginia. [502

nals that were sent from Williamsburg to the General
Court and oyer and terminer courts for trial, but it seems
not to have had authority to try slaves charged with capital
offenses.108

In 1736, Norfolk was granted a charter which contained
about the same provisions as the one given to Williams-
burg in 1722. The governmental machinery provided for
by this charter was almost an exact replica of that of
Williamsburg, except that in Norfolk the number of alder-
men was to be eight instead of six, and the number of
councilmen, sixteen instead of twelve. In Norfolk, as in
Williamsburg, the mayor, recorder, and aldermen consti-
tuted the Court of Hustings, which was at first to take cog-
nizance only of those causes in which the amounts involved
did not exceed twenty pounds sterling, or 4000 pounds of
tobacco. The jurisdiction of the Norfolk court was ex-
tended by subsequent statutes, and during the last years of
the colonial period the courts of Norfolk and Williamsburg
exercised the same jurisdiction. These were the only cities
in which corporation courts were organized before the
Revolution.108

Coroners' Courts. — Coroners were appointed by the gover-
nor, and justices of the peace were usually, though not al-
ways, selected for the office. In 1702 the number of coro-
ners in the different counties varied from one to four.
These offices had ministerial, as well as judicial duties to
perform. When a sheriff was personally interested in a
suit or was for any other reason disqualified from serving
the county court, the process could be directed to one of the
coroners and could be executed by him. But the main
duty of the coroners was to hold inquests over the bodies
of persons who had met with violent deaths. Whenever

106Hening, IV, 542; V, 204-207; VIII, 401-402. Webb, Virginia
Justice, 105, 108.

108 Charter of Norfolk, published in Local Institutions of Virginia,
appendix, by Ingle, J. H. U. Studies, 3d series. Hening, IV, 541,
542; VI, 261-265; VIII, 153, 154. Virginia Gazette, November 19,
1736

503] The Inferior Courts. 105

the occasion for an inquest arose a coroner would order
the constable of his precinct to summon twenty-four free-
holders to the coroner's court. From this number a jury of
twelve was chosen to view the body and make a report as
to the cause of the death. Witnesses were summoned if
necessary, and a few instances are recorded in which resort
was had to the ordeal of touch to decide the guilt or inno-
cence of persons accused of murder. In 1656, a jury of
inquest was sworn in Northampton County to examine
the body of a man supposed to have been murdered. This
jury gave the following verdict: " Have reviewed the body
of Paul Rynnuse, late of this county dec'd, and have caused
Mr. Wm. Custis (the person questioned) to touch the face
and stroke of the said Paul Rynuse (which he very willingly
did). But no sign did appear unto us of question in law." :

Military Courts. — The militia of the colony included all
the able-bodied men between the ages of sixteen, eighteen,
or twenty, and sixty (these were the different limits at
different times), except certain classes of persons who were
exempted from militia duty by law. In 1721, the militia-
men constituted about one-sixth of the entire white popula-
tion of the colony. The militia of every county was organized
into a regiment, which was commanded by a colonel or an
inferior officer. It was necessary for the militia officers to
call their men together frequently for the purpose of drill-
ing them. Each captain was to hold what was called a
private muster for the members of his company four times
a year, or oftener if the commander of the regiment re-
quired it. In addition to these private musters, a general
muster was held in each county usually once or twice a

107 Webb, Virginia Justice, 97-104, 296. Starke, Virginia Justice,
106-113. Henrico Records, 1677-1692, 146, 191; ibid., 1737-1746, 334.
Surry County Records, 1645-1672, 278. Virginia Magazine of His-
tory and Biography, I, 364-373. Virginia Magazine of History and
Biography, V, 40.

In the trial of Grace Sherwood for witchcraft (see p. 87),
the ordeal was appealed to by a county court.

io6 Justice in Colonial Virginia. [504

year, at which all the militiamen of the county were to be
present.10*

These musters could not be conducted properly unless
the officers were given power to punish their men for insub-
ordination, absence from the drills, and other delinquencies.
Accordingly, it was provided that whenever a militiaman
should refuse to obey an order of an officer at a muster, the
ranking officer present could punish the offender by impos-
ing a fine on him or by ordering him to be bound neck
and heels together for a few minutes. If he repeated the
offense, he was to be tried by the captains and field-officers
present, who by a majority vote could send him to prison
for a term not exceeding ten days. At all the musters,
general as well as private, the captains were to keep a
record of the offenses and delinquencies in attendance and
equipment of all the men of their respective companies, and
were to report the same to the court martial. The court
martial was convened once a year at the county seat on the
day following that of the general muster. In this military
court sat a majority or all of the captains and field-officers
of the county. The court inquired into the ages and capa-
bilities of all those on the muster list, and decided which
ones should be dropped on the grounds of old age or physi-
cal disability. It also inquired into the absences and other
delinquencies reported by the captains and imposed fines for
the same.100

Apparently there never were any regular parish courts in
colonial times, though there is an intimation in the records
of Accomac that the vestry of that county in the early years
had judicial powers in cases involving certain violations of
the moral code.110 In 1656, a court was established for

108 In 1674 general musters appear to have been held oftener than
twice a year. General Court Records, 1670-1676, 197.

109 Sainsbury MSS., 1720-1730, 30. Winder MSS., I, 206. Hening,
II, 246, 247; III, 335-342; IV, 118-124; V, 16-21 ; VI, 530-536; VII,
93-99, 536-538.

"The Accomac County court decreed in one case that "all who
have been freemen since 1634 and have not contributed towards the

505] The Inferior Courts. 107

Bristol, an outlying parish of Henrico and Charles City
counties ; but the judges of this court were not the vestry-
men, but were the commissioners living in the parish.
The jurisdiction of the court was the same as that of the
county courts, but in all cases appeals were to be allowed
to Charles City and Henrico county courts.111

When Lord Culpeper and others were granted the terri-
tory known as the Northern Neck,118 which lies between
the Rappahannock and Potomac Rivers, they were given
power to establish courts-baron and courts-leet and to hold
frank-pledge of all the inhabitants. The court-leet was to
have jurisdiction over all the tenants and other inhabitants
of the hundred in which it was held, except those that had
received land grants from the governor and council prior
to 1669. The jurisdiction of the court-baron was to be
limited to causes involving amounts not exceeding forty
shillings in value and appeals were to be allowed to the
Quarter Court."8 However, it is more than probable that
this bit of feudalism never, in actual practice, found a place
in the Virginia judiciary, for no mention has been found of
any attempt to carry out these instructions.

charges of the church officers' business shall be liable to stand to
the judgment of the vestry." At another time (1641) the vestry
ordered a servant to stand in a white sheet in church for the sin of
fornication, but this decree was set aside by the court. Accomac
Records, 1632-1640, 53; ibid., 1640-1645, 97.

111 By a special provision a similar court was to be established in
1679 for a frontier settlement to be made by Captain Lawrence
Smith and Colonel William Byrd. Hening, I, 424; II, 450-451.

12 The grant was first made in 1649, and was renewed in 1669.

113 Sainsbury MSS., 1640-1691, 189-193.

CHAPTER IV.
COURT OFFICIALS AND LAWYERS.

By the year 1634, when the shires were organized,
the development of the colony had gone far enough to
necessitate the appointment of sheriffs for the counties.1
Before that time, the duties of the sheriffalty were, as we
have seen, performed mainly by the provost marshal, though
the commander of the hundred also sometimes executed the
orders of the governor.2 As late as 1633, we find the pro-
vost marshal making arrests, warning the court, imprisoning
offenders, and inflicting on them such punishments as duck-
ing, tying them by the heels, and setting them in the stocks.
The fee which he received for the performance of each of
these duties was set by the assembly. He was also en-
trusted with the care of prisoners, and had to provide them
with " diet and lodging." For this he received a com-
pensation which was paid by the prisoners themselves, and
the amount of which was determined by agreement with
them.8

It seems that the monthly courts at first elected sheriffs,4
but soon it became the custom for the governor and coun-
cil to appoint them on the recommendation of the county
commissioners. Vacancies were temporarily filled by the
commissioners.8 According to a later practice, the office
devolved on the justices in rotation. The oldest justice in
the commission first served a term of one year, and then all

1 Hening, I, 224. Accomac Records, 1632-1640, 17.

2 Virginia Court Book, 1623-1626, July 12. Robinson MSS., 58.
Hening, I, 176, 201, 220. Colonial Records of Virginia, 20. Acco-
mac Records, 1632-1640, 6, 8, 10, 16, 20.

8 Robinson MSS., 58. Hening, I, 176, 177, 201, 220.

4 Accomac Records, 1632-1640, 18.

"Robinson MSS., 168. Lower Norfolk County Records, 1637-1643,
220. Accomac Records, 1640-1645, 73, 74, 357. Hening, I, 259, 392,
442, 471-

507] Court Officials and Lawyers. 109

the others followed in succession.8 However, the old method
of selecting sheriffs was afterwards revived, and from the
end of the seventeenth century to the Revolution, sheriffs
were appointed by the governor.7 During the greater part
of the eighteenth century, it was the custom for the court
of each county every year to recommend three of its justices
as suitable persons for the sheriffalty, one of whom the
governor would appoint sheriff for a term of one year.
The first of the three justices was often, if not usually,
selected by the governor, and so the power of choosing
sheriffs was by this custom practically placed in the hands
of the county courts.8 The sheriff did not sit as a judge
in the county court, but he became a justice again after his
term had expired.8 Sheriffs were appointed for only one
year; but during a considerable part of the colonial period,
their commissions could be renewed by the governor for a
second term.10

According to an account of Virginia written at the end
of the seventeenth century, the place of sheriff was a lucra-
tive one and was much sought after.11 But by the end of the
first decade of the next century the tobacco currency had
fallen so low that it had become difficult to get suitable
persons to accept the sheriffalty. This refusal on the part
of the justices to serve when appointed sheriff led the as-

"Hening, II, 21, 78, 353. York County Records, 1671-1694, 26.

7 These appointments were sometimes, and probably generally,
made with the advice of the council. Council Journal, 1721-1734,
285, 286, 289, 331, 332.

8 Hartwell, Blair, and Chilton, 27, 28. Calendar Virginia State
Papers, I, 98, 99, 198. Hening, III, 246, 247; V, 515, 516. Webb,
Virginia Justice, 299. Starke, Virginia Justice, 325. Henrico Rec-
ords, 1710-1714, 55, 79, 123, 154, 230; ibid., 1719-1724, 244, 264, 322;
ibid., 1737-1746, 297, 312. Warwick Records, 1748-1762, n, 25, 137,
179.

9 Webb, Virginia Justice, 293.

"Hening, I, 259, 442; II, 247; III, 246, 247; V, 515, 516; VII,
644. Robinson MSS., 451. Va. Mag. Hist, and Biog., II, 387, 388.
11 Hartwell, Blair, and Chilton, 27, 28.

no Justice in Colonial Virginia. [508

sembly to pass a law in 1710 which imposed a heavy fine on
any one who should refuse the office when elected to it.13
Sheriffs in Virginia performed many of the same duties
that they did in England, but they did not have power to
hold courts as in the mother country. They executed
the orders and sentences of the courts and the assembly,
made arrests, summoned jurors and others to court. They
also sometimes took the lists of tithables and usually col-
lected the taxes." In the early years sheriffs were wont to
attend public meetings for the purpose of making arrests
and serving warrants. The fear of meeting this officer
caused many people to absent themselves from musters and
from church on Sundays. This falling off of the attendance
at these places not only affected the spiritual welfare of
the people, but also hindered the transaction of public and
private business. The assembly realized that this obstacle in
the way of public meeting should be removed, and so in
1658 enacted that no warrants should thereafter be served on
any one on the Sabbath or on muster days.1* By subsequent
statutes it was provided that no arrests except for felony,
riots, and suspicion of treason, were to be made on Sundays,
certain holidays, and muster and election days, and that
no persons except residents of the town were to be arrested
in James City during the period beginning five days be-
fore and ending five days after the meetings of the General
Court and the assembly. Witnesses were also granted
exemption from arrests except at the King's suit while at-
tending the county or other courts and also while coming to
and returning from the same. Councillors and sheriffs
were privileged from arrest for debt and trespass while at-
tending and going to and returning from the General Court
and council meetings.15

13 Spottswood's Letters, I, 56. Council Journal, 1721-1734, 54.
Hening, III, 500, 501 ; IV, 84. Webb, Virginia Justice, 299.

"Hening, I, 333, 452, 465; II, 19, 83, 412; III, 264; VI. 247, 523,
566: VIII. 181. Winder MSS., I, 203, 204. Hartwell. Blair, and
Chilton, 51. Webb, Virginia Justice, 293-295, 303. Chitty's Black-
stone, I, pp. 252-254. Beverley, History of Virginia, Book IV, p. 13.
Hening, I, 457.

"Hening, II, 86, 213, 502, 503. Webb, Virginia Justice, 15.
Starke, Virginia Justice, 15.

509] Court Officials and Lawyers. in

In each county there was a jail, in which were detained
offenders who had been sentenced to imprisonment by the
county court and those criminals who were waiting to be
sent to the public jail at Jamestown or Williamsburg. Dur-
ing the first part of the colonial period, criminals who were
to be tried by the Quarter Court or the assembly were kept
in the county jails while awaiting their trials. On the first
day of every term of the Quarter Court or the assembly
the sheriff of each county delivered the criminals that were
in his custody to the sheriff of James City, who brought
them before the governor and council or the assembly for
trial.18 But by the beginning of the eighteenth century
(1705), it had become the custom to send criminals charged
with offenses cognizable in the superior courts to the pub-
lic jail at Williamsburg immediately after they had been
given a preliminary hearing before the courts of examina-
tion in the counties.17 Prisoners for debt, as well as crimi-
nals, were confined in the public jail at the capital. In 1724,
there were two public prisons at Williamsburg; one for
debtors, and another for criminals.18 By a law of 1746 both
classes of prisoners were to be kept in the same building,
but one part of the prison was to be occupied by debtors
and the other by criminals.19

The keeper of the prison in each county was the sheriff,
who had to answer for all escapes due to his own negli-
gence, but the commissioners were held responsible for those
that were permitted by the insecurity of the prison-houses.
Owing to the poverty of the counties, they did not in the
early years have strong jails, and escapes from them were
frequently made. The responsibility for these bore heavily
on the sheriffs and commissioners, and the assembly de-
clared, in a law passed in 1647 and re-enacted in 1658 and
1662, that any prison that was as strong as an average Vir-

'" Hening, I, 264, 265, 398, 444.

17 Hening, III, 300.

18 Hugh Jones, Present State of Virginia, 30.

19 Hening, VI, 135.

112 Justice in Colonial Virginia. [510

ginia house, and from which an escape could not be effected
without breaking through some part of the building, should
be deemed sufficiently secure. Persons breaking out of such
a house on being retaken were to be adjudged felons, and
the sheriffs and commissioners were not to be answerable for
jail-breakings in such cases.20 Prison rules were in one re-
spect more humane than they are at present. The prisoners
were not all shut off from the advantages of fresh air and
exercise, but most of them were allowed to walk about dur-
ing the daytime within a certain area around the jail. The
limits within which prisoners were allowed their freedom
were marked out by the justices, and by an act of 1765 were
to include an area of not less than five nor more than ten
acres. All prisoners except those charged with felony or
treason 21 who would give bond not to escape were allowed
the freedom of the prison grounds. But if any one abused
this privilege by going outside of the prescribed limits, he
was deprived of this liberty. The leniency of these regula-
tions enabled some of the prisoners to reduce the punishment
of confinement almost to a minimum. Many persons sent to
jail for debt took houses within the prison limits, and thus
lived at home while serving out their terms of imprison-
ment. But the assembly did not intend that debtors should
get off with a nominal punishment, and so in 1661 passed a
law by which persons living within the limits of a prison
were not to be allowed to lodge in their own houses or be
permitted to walk over the grounds, but were to be kept
in close confinement.22

The laws providing for the payment of prison fees varied
from time to time. It was often required that the prisoner
himself pay the cost of his maintenance while in prison. By
laws enacted in 1711 and 1748, it was provided that prisoners

"Accomac Records, 1640-1645, 108, 201, 264, 270. Hening, I, 265,
340, 341, 452, 460; II, 77-

By a law passed in 1662 this exception was also made against
persons under execution for debt. Hening, II, 77.

"Hening, I, 341; II, 19, 77; III, 15, 268; VIII, 119, 120. War-
wick County Court Records, 1748-1762, 208, 340.

51 1 ] Court Officials and Lawyers. 113

for debt were to have an allowance from the assembly if they
were not able to pay their prison fees. Other statutes of
this century placed upon creditors the burden of defraying
the charges incurred in keeping insolvent debtors in prison.28

In colonial times, as well as at the present, the constables
shared with the sheriff in the performance of the executive
duties of the counties. We cannot say exactly when con-
stables were first appointed, but we know that by 1637 the
office had become an established part of the governmental
machinery of the counties.24 Constables were usually ap-
pointed by the county courts, though the first ones were
chosen by the assembly.28 Every county was divided into
precincts, in each of which a constable was elected every
year by the county court. Any person elected constable
could be forced to accept the office, though he could be re-
lieved from serving at the end of one year.28 Many of the
duties performed by the constable were the same as those
discharged by the same officer in England, and were about
the same as those that have engaged his successors in
Virginia up to the present time.

Not only did he have to execute orders and decrees of the
courts and the assembly, but he was also a conservator of
the peace and had to arrest all those who were guilty of
riotous and disorderly conduct. He was enjoined to " keep
a watchful eye over the drinking and victualling houses and
such persons as unlawfully frequent " such places. On him
also devolved the duty of seeing that each farmer planted
as many acres in corn as the law required, and did not allow
suckers to grow after his tobacco had been cut.27

""Hening, I, 285, 449; IV, 27, 490; VI, 136; VIII, 527-529. Acco-
mac Records, 1632-1640, 129; ibid., 1640-1645, 264.

24 Accomac Records, 1632-1640, 69.

25 Winder MSS., I, 129. York Records, 1671-1694, 72, 186, 235,
257. Essex Records, 1683-1686, 86. Elizabeth City County Records,
1684-1699, 18, 119. Henrico Records, 1710-1714, 42, 240; ibid., 1737-
1746, 160, 191. Beverley, History of Virginia, Book IV, pp. 9, 14.

30 Webb, Virginia Justice, 93.

"Accomac Records, 1640-1645, 82. Warwick Records, 1748-1762,
317. Webb, Virginia Justice, 90-95. Starke, Virginia Justice, 103-
104. Hening, I, 246, 344. Chitty's Blackstone. I, pp. 264-265.

114 Justice in Colonial Virginia. [512

Constables took the leading part in the hue and cry.
Whenever a robbery or murder was committed, the person
robbed or any one else who was present could go to the
nearest constable and " require him to raise the hue and cry
to pursue the offender." Upon receiving such notice, the
constable was to call on all the men of his precinct to assist
him in his search for the felon. If they failed to find him
in that precinct, the constable was to notify the constable of
the next precint, and he the next, and so on until the offen-
der " was apprehended or pursued to the seaside." The hue
and cry could be raised by a constable without an order from
a magistrate, but it was usually not done without a warrant
from a justice.28 The hue and cry could also be raised to
pursue runaway slaves and servants.29

Another important office was that of clerk of the county
court. County clerks were usually appointed by the sec-
retary of state, and were regarded as his deputies. The ap-
pointments were not made for any definite period, but were
revocable at the pleasure of the secretary.50 This patronage
not only extended the influence of the secretary through-
out the colony, but also proved a source of considerable reve-
nue to him, as it was the custom for all the clerks to pay him
a fee every year. In 1700 these fees annually amounted to
36,200 pounds of tobacco.81 In 1/18, a bill was offered in
the assembly providing that the power of appointing and re-
moving clerks should be taken from the secretary and given
to the justices of the peace. The reasons given by the advo-
cates of the measure for the proposed changed in the

MWebb, Virginia Justice, 181. Starke, Virginia Justice, 206, 207.

''Hening, I, 483; II, 299.

80 In one of Bacon's laws it was provided that county clerks should
be elected by the county courts. From the Accomac and Henrico
court records we find that clerks were occasionally commissioned by
the governor. But these exceptions to the usual method of choos-
ing clerks seem not to have remained in force very long. Hening,
II, 355- Accomac Records, 1640-1645, 146. Henrico Records, 1719-
1724, 58; ibid., 1710-1714, 201 ; ibid., 1737-1746, 191. Sainsbury MSS.,
1705-1707, 394, 408.

n Sainsbury, 1720-1730, 268. Va. Mag. of Hist, and Biog., VIII,
184.

513] Court Officials and Lawyers. 115

method of choosing county clerks was that these clerks were
often elected Burgesses, and as long as they held office at
the pleasure of the secretary, an appointee of the king, the
assembly would be too much under the influence of the
governor. Governor Spottswood rightly considered the bill
an attack on the King's prerogative, and declared his inten-
tion of vetoing it if it passed the assembly. The measure,
therefore, failed, and county clerks continued to be appointed
as before.82

The General Court and the oyer and terminer courts
were served by the sheriffs of the county or counties in
which the capital was located. According to Hartwell, Blair,
and Chilton, the secretary of state was nominally the clerk
of the General Court, and drew the salary that went with the
place ; but the duties of the office were performed by a
deputy, who was styled clerk of the General Court, with the
assistance of one or more under clerks. The place of
secretary was one of the oldest and most important offices
in the colony, and, as we have just seen, was considered
of sufficient dignity to be filled by a direct commission from
the King. In the office of the secretary, were kept the pro-
ceedings of the General Court and also a record of all pro-
bates and administrations, certificates of birth, marriage
licenses, and the fines imposed by the county courts.88

Prior to 1662, there was not a notary public in Virginia.
Owing to the lack of such an officer to attest oaths, state-
ments sworn to in Virginia were not given the credit in
foreign countries to which they were entitled. For this rea-
son the assembly in 1662 appointed one notary public for
the colony, and some years later authorized him to choose
deputies throughout the colony.84

Lawyers are seldom alluded to in the early county court
records,85 though frequent mention is made of attorneys.

82 Spottswood's Letters, II, 279.

""Beverley, History of Virginia, Book IV, pp. 10-11. Hartwell,
Blair, and Chilton, 48-51.
84 Hening, II, 136, 316, 456, 457.

83 York Records, 1633-1694, II.

Ii6 Justice in Colonial Virginia. [514

But these attorneys were not always lawyers. A person
living in one county and owning property in another fre-
quently appointed an attorney to represent him in the county
in which his property was situated. These powers of attor-
ney, as well as notices of the termination of the legal agency
created by them, were recorded in the proceedings of the
county courts.38 Though the lawyers in the earliest years
were few in number, yet by 1643 tnev nad become important
enough to call forth special legislation for their profession.
In this year it was provided by an act of assembly that law-
yers should not be allowed to practice in any court until after
they had been licensed in the Quarter Court. They were
also restricted in their charges to twenty pounds of tobacco
for every cause pleaded in the monthly courts and to fifty
pounds for every one in the Quarter Court. Besides no
case could be refused by any lawyer unless he had already
been employed on the other side.87 Within two years the
assembly repented of having allowed lawyers this small
amount of liberty, and it passed a law prohibiting attor-
neys from practicing in the courts for money. The reason
given by the assembly for this action was that suits had been
unnecessarily multiplied by the " unskillfullness and covet-
ousness of attorneys." ' The exclusion of lawyers from
the courts must have worked a hardship on those parties to
suits who were intellectually inferior to their opponents, and
it soon became necessary to modify this statute. A less strin-
gent law against attorneys was passed two years later,
though by it compensation was still denied professional
lawyers. By this act it was provided that whenever a court
perceived that a litigant would suffer injustice because of his
inability to cope with his opponent, the court was either to
open the cause itself or else " appoint some fitt man out of

"Accomac Records, 1632-1640, 57, 161, 162. York Records, 1633-
1604, 118, 151, 185, 202. Essex Records, 1683-1686, 60. Henrico
Records, 1677-1692, 160, 167.

87 This act did not apply to special attorneys or those that had
letters of procuration from England. Hening, I, 275. 276.

"Ibid., I, 302.

515] Court Officials and Lawyers. 117

the people to plead the cause, and allow him satisfaction
requisite." ' By 1656, the assembly had come to realize the
inconvenience attendant upon the administration of justice
without the assistance of lawyers, and this time voted a re-
peal of all the laws against " mercenary attorneys." w But
professional attorneys were given only a short lease of life
by this act of repeal. In 1658, it was enacted that any one
receiving pay for pleading in any case in any court in the
colony should be fined 5000 pounds of tobacco. Every one
that pleaded as an attorney for another had to take an oath
that he would take no compensation either directly or in-
directly for his services. At this time the question was
raised by the governor and council whether this law was not
a violation of Magna Charta. But the Burgesses saw noth-
ing in the measure that was contrary to the principles of
that document, and it became a law despite the doubt as to
its constitutionality.41 The courts must have gotten along
badly without the assistance of paid attorneys ; for in 1680
the assembly again passed a law which recognized the right
of lawyers to charge for their services. This same statute
also provided that no attorney-at-law should plead in any
court until after he had been licensed by the governor. The
reason given by the assembly for imposing this restriction
on the practice of the law was that the courts had been
annoyed by ignorant and impertinent persons pleading in the
interest of their friends. These volunteer attorneys some-
times pleaded for parties to suits without being asked to do
so by them, and often did injury to the causes advocated by
them.42 The law of 1680 was soon afterwards repealed, but
professional attorneys had been again admitted to the courts
by 1718. During the eighteenth century we find no statutes
forbidding lawyers to receive compensation for their ser-
vices, but the fees charged by them continued to be restricted

88 Hening, I, 349.
Hening, I, 419.

u Hening, I, 482, 483, 495, 496.
42 Hening, II, 478, 479-

n8 Justice in Colonial Virginia. [516

by the assembly. By the laws of 1680 and 1718, lawyers'
fees were fixed at fifty shillings, or 500 pounds of tobacco,
for every cause pleaded in the General Court and fifteen shil-
lings, or 150 pounds of tobacco, for every one in the county
courts.4*

It is not easy to explain this opposition of the assembly to
the legal profession. Mr. John B. Minor thought that it
had its origin in the jealousy between the aristocracy of
birth represented by the assembly and the aristocracy of
merit represented by the lawyers.44 It is more probable that
this unfriendly attitude of the ruling class towards the legal
fraternity was caused by the lack of ability and character of
the early lawyers. Attorneys' fees, even when allowed to be
charged, were fixed so low by law that little encouragement
was given to men of ability to qualify themselves properly
for the profession. It is not unlikely, therefore, that during
the greater part of the seventeenth century the attempts at
pleading made by many of the lawyers were a hindrance to
the proper administration of justice, and if so, the prejudice
of the assembly against " mercenary attorneys " was not
without foundation. This feeling of hostility to lawyers
still finds its counterpart in the present-day belief of many
people, especially in the backward districts, that the duties
of the legal profession are incompatible with high moral
rectitude.

While professional lawyers were not excluded from the
courts by the laws passed in the eighteenth century, yet the
courts were, for a considerable part of this century, closed to
those would-be lawyers who had not been properly licensed.
It has just been shown that the statutes of 1643 an^ I68o
provided for the licensing of attorneys by the governor or
Quarter Court. Similar provisions are found in laws
enacted in the eighteenth century. According to a law

"Hening, II, 479, 49®; IV, 59; VI, 371-372. Sainsbury MSS.,
1640-1691, 215, 324. Randolph MSS., 444. Mercer, Virginia Laws,
19, 20. Beverley, History of Virginia, Book IV, p. 24.

"Minor's Institutes, ist ed., Vol. IV, Part I, pp. 163-168.

517] Court Officials and Lawyers. 119

passed in 1732, the governor and council were to receive all
applications for licenses to practice in the inferior courts,
and were to refer them to such persons, learned in the law,
as they should see fit to select, who were to examine the
candidates and report to the governor and council as to
their qualifications. Upon the receipt of this report, the
governor and council were to license such of the candidates
as had proved themselves qualified to enter upon the profes-
sion and were to reject the others. The governor and
council could also, for just cause, suspend any lawyer from
practicing in the inferior courts. If a practitioner in an
inferior court should at any time be neglectful of his duty,
he was to pay all the damage occasioned by such neglect.
But the provisions of this act did not extend to lawyers
practicing in the General Court or to " any counsellor or
barrister at law whatsoever/" This law was repealed in
1742, but another was passed in 1745, which contained about
the same provision for the licensing of attorneys except that
it required the governor and council to select only coun-
cillors as examiners of applicants for licenses.46

It does not appear whether the government ever entirely
recovered from its early prejudice against professional attor-
neys ; but from an order made by the court of Augusta
County in 1746, it would seem that the justices of that region
were still of the belief that the conduct of lawyers in court
sometimes became a nuisance. The following order was made
by the court in February of that year : " That any attorney
interrupting another at the bar, or speaking when he is not
employed, forfeit five shillings." 4 Apparently, the General
Court also regarded the much-speaking of the lawyers as a
nuisance, as the assembly felt called upon to pass a law in
1748 forbidding more than two lawyers on a side to plead in
the General Court except in cases of life and death.48

45 Hening, IV, 360-362.
48 Ibid., V, 171, 345; VI, 140-143, 371-372.
"Virginia Historical Register, Vol. II, No. I, p. 15.
48 Hening, VI, 143.

120 Justice in Colonial Virginia. [518

During the first years of the colony's history, there was
no attorney-general in Virginia to give legal advice to the
Quarter Court. But the governor and council could send to
England for an opinion if a cause came before them in-
volving a question of law which they felt incapable of de-
ciding.4' The first attorney-general mentioned in the
records was Richard Lee, who was appointed in i643.M It
is not stated from whom Lee received his appointment ; but
the later attorneys-general were appointed by the governor,
and sometimes with the consent of the King.51 Prior to
1703, the attorney-general was not required to live at the
capital, but in that year the salary of the office was raised
from forty to one hundred pounds sterling, and its incum-
bent was required to take up his residence in Williamsburg.62
The attorney-general had to prosecute criminals before the
General Court and the oyer and terminer courts, and to give
his advice to these courts whenever it was needed.83

In 1711, it was found necessary to appoint prosecuting
attorneys for the counties.54 At that time breaches of the
penal laws were prosecuted in the counties by those persons
who had reported them to the courts, and informers were
given one-half of all the fines imposed for offenses reported
by them. It sometimes happened that the informer would
compound with the accused for his half of the fines and
would then stop the prosecution. This would cause the case
to be thrown out of court, and, so the crown would fail to

"Sainsbury MSS., 1618-1624, 109-110.

80 Va. Mag. of Hist, and Biog., VIII, 70.

61 Sainsbury MSS., 1625-1705, 66, 77; ibid., 1691-1697, 331; ibid.,
1706-1714, 449. Virginia Gazette, Nov. 18, 1737.

02 The salary did not continue so high until the end of the period ;
in 1755 it was only seventy pounds sterling. Sainsbury, 1625-1705,.
30, 59, 61, 66, 77. Dinwiddie Papers, I, 390.

"Calendar Virginia State Papers, I, 94, 100, 161. General Court
Records, 1670-1676, 116. Randolph MSS., 432. MSS. in Va. Histor.
Soc., 23, 24. Webb, Virginia Justice, 113.

"But before this time, as early as 1665, we find mention of a
prosecuting attorney for Accomac County. This officer was perhaps
a prosecuting attorney specially appointed for Accomac County be-
cause of its isolation and distance from Williamsburg. Neill, Vir-
ginia Carolorum, 315.

519] Court Officials and Lawyers. 121

receive its half of the fine. There was need, therefore, of a
better method of prosecuting offenders in the counties, and
Governor Spottswood, following a recommendation of the
attorney-general, issued a proclamation appointing prosecut-
ing attorneys for the counties.60 These new officers came to
stay, and from this time on we find them performing their
duties in the county courts. They were deputies of the
attorney-general and had to prosecute offenders in the county
courts as the attorney-general did in the General Court and
oyer and terminer courts. They were also required to see
that all the fines imposed by the county courts were reported
to the secretary's office to be recorded.

85 Hening, IV, 545, 546.

MHenrico Records, 1710-1714, 193; ibid., 1719-1724, 337; ibid.,
1737-1746, 360. Warwick Records, 1748-1762, 162, 324, 373.

CONCLUSIONS.

From the facts presented in this study, the following- con-
clusions may be drawn :

(1) The judiciary was in all its branches closely allied to
the other departments of the government. Prior to 1682,
the legislature was the highest court of appeal in the colony,
and it was closely connected with both the superior and in-
ferior courts during the entire colonial period. The judges
of the General Court constituted the upper house of the
assembly, and the justices of the county courts were often
elected to seats in the lower house. Besides, the judges of
the General Court, as members of the governor's council,
performed executive duties for the colony at large, and the
justices of the county courts performed administrative duties
in their respective counties.

(2) The authority of the judiciary was subordinate to
that of the legislature. No law enacted by the assembly
could be declared unconstitutional and set aside by the
courts.

(3) The judiciary was aristocratic in its organization,
and from 1682 to the Revolution the people had no voice,
either direct or indirect, in the choice of their judges. Even
prior to 1682, the assembly was the only court in which the
judges were elected directly by the people. During the
Commonwealth period, the judges of the General Court were
chosen by the representatives of the people, and for a short
while during this period justices of the county courts were
appointed with the consent of the assembly. But with these
exceptions, the colonial judiciary was thoroughly aristocratic
in all its branches.

(4) The position of judge in both the superior and in-
ferior courts was one of honor and dignity, and was usually
held by men of ability. The judges of the General Court

52 1 ] Conclusions. 123

were very influential in the colony, and were often able to
curb the power of the governor. Their opposition to the
King's representative probably contributed much towards
keeping the colony from falling into a state of close depend-
ence upon the crown. It is also not improbable that out of
this opposition to the governor there grew up that spirit of
resistance to the crown which both the aristocracy and the
people showed in the Revolutionary period.

(5) The courts were bound in their decisions by the com-
mon law of England, the Parliamentary statutes passed prior
to 1607, and by the statutes enacted by the Virginia Assem-
bly. But a legal education was not a requisite qualification
for judges, and apparently many, if not most, of the judges
both of the superior and inferior courts, came to the bench
without special legal training. Therefore, in arriving at
decisions, they frequently had to rely, especially in the early
years, on their own judgment for guidance more than on law
and precedents.

(6) Each county had a court which met at regular inter-
vals and the justices of the peace exercised certain judicial
powers out of court. As these magistrates lived in different
parts of the county, justice was thus brought almost to the
doors of the people. In the documents that have been ex-
amined very few complaints against the inferior courts are
recorded, and it seems that these tribunals as a rule adminis-
tered justice fairly and impartially.

(7) There were certain latent weaknesses in the consti-
tution of the General Court which occasionally gave rise to
abuses in actual practice. But as only a few cases of such
abuses have been found, it may safely be inferred that justice
was as a rule fairly administered by the superior, as well as
the inferior, courts.

MANUSCRIPTS.

(A complete bibliography is not attempted, but only those manu-
script sources are mentioned to which reference has been made.
The titles of the printed materials are given with sufficient fulness
in the footnotes.)

Accomac County Court Records (1632-1645). 2 v. State Library,
Richmond, Va.

Charles City County Court Records (1758-1762). Virginia Histori-
cal Society, Richmond, Va.

Collingwopd, Edward, MSS. 2 v. Folio. Library of Congress,
Washington, D. C.

Council Journal (1721-1734). State Library, Richmond, Va.

De Jarnette MSS. 2 v. Folio. State Library, Richmond, Va.

Elizabeth City County Court Records (1684-1699). State Library,
Richmond, Va.

Essex County Court Records (1683-1699). 2 v. State Library,
Richmond, Va.

Henrico County Court Records (1677-1746). 4 v. Henrico Court-
house and State Library, Richmond, Va.

Journal of the Virginia Assembly (1697-1720). State Library, Rich-
mond, Va.

Lower Norfolk County Court Records (1637-1643). Virginia His-
torical Society.

Ludwell MSS. 5 v. Virginia Historical Society, Richmond, Va.

McDonald, Col. Angus M. MSS. relating to the early history of
Virginia. 5 v. State Library, Richmond, Va.

Randolph, John, of Roanoke, MSS. Virginia Historical Society.

Rappahannock County Court Records (1686-1692). State Library,
Richmond, Va.

Records of the General Court of Virginia (1670-1676). Virginia
Historical Society.

Richmond County Court Records. State Library, Richmond, Va.

Robinson, Conway, MSS. Abstracts of General Court Records and
other valuable papers since destroyed. Virginia Historical So-
ciety.

Sainsbury MSS. copied from the British Public Record Office. 20
v. Folio. State Library, Richmond, Va.

Surry County Court Records (1645-1672). State Library, Rich-
mond, Va.

Virginia Court Book (1623-1626). A record of the early judicial
proceedings of the Governor and Council of Virginia. Library
of Congress, Washington, D. C.

Warwick County Court Records (1748-1762). State Library, Rich-
mond, Va.

Winder MSS. Copies from British Public Record Office. State
Library, Richmond, Va.

York County Court Records (1633-1694). 2 v. State Library,
Richmond, Va.

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