OF THE COURTS OF LAW IN VIRGINIA.
Sec. 22. I have already, in the chronology of the government, hinted what
the constitution of their courts was in old time, and that appeals lay
from the general court to the assembly; that the general court, from the
beginning, took cognizance of all causes whatsoever, both ecclesiastical
and civil, determining everything by the standard of equity and good
conscience. They used to come to the merits of the cause as soon as they
could without injustice, never admitting such impertinences of form and
nicety as were not absolutely necessary; and when the substance of the
case was sufficiently debated, they used directly to bring the suit to a
decision. By this method, all fair actions were prosecuted with little
attendance, all just debts were recovered with the least expense of
money and time, and all the tricking and foppery of the law happily
avoided.
The Lord Colepepper, who was a man of admirable sense, and well skilled
in the laws of England, admired the construction of their courts, and
kept them close to this plain method, retrenching some innovations that
were then creeping into them, under the notion of form, although, at the
same time, he was the occasion of taking away the liberty of appeals to
the assembly.
But the Lord Howard, who succeeded him, endeavored to introduce as many
of the English forms as he could, being directly opposite to the Lord
Colepepper in that point.
And lastly, Governor Nicholson, a man the least acquainted with law of
any of them, endeavored to introduce all the quirks of the English
proceedings, by the help of some wretched pettifoggers, who had the
direction both of his conscience and his understanding.
Sec. 23. They have two sorts of courts, that differ only in jurisdiction,
namely: the general court, and the county courts.
Sec. 24. The general court is a court held by the governor and council, or
any five of them, who by law are the judges of it, and take cognizance
of all causes, criminal, penal, ecclesiastical and civil. From this
court there is no appeal, except the thing in demand exceed the value of
three hundred pounds sterling, in which case an appeal is allowed to the
king and council, in England, and there determined by a committee of the
privy council, called the lords of appeals; the like custom being used
for all the other plantations. In criminal cases, I don't know that
there's any appeal from the sentence of this court; but the governor is
authorized, by his commission, to pardon persons found guilty of any
crime whatsoever, except of treason and wilful murder; and even in those
cases, he may reprieve the criminal, which reprieve stands good, and may
be continued from time to time until his majesty's pleasure be signified
therein.
Sec. 25. This court is held twice a year, beginning on the 15th of April,
and on the 15th of October. Each time it continues eighteen days,
excluding Sundays, if the business hold them so long, and these were
formerly the only times of goal delivery; but now, by the governor's
commission, he appoints two other courts of goal delivery, and the king
allows one hundred pounds for each court to defray the charge thereof.
Sec. 26. The officers attending this general court, are the sheriff of the
county wherein it sits, and his under officers. Their business is to
call the litigants, and the evidences into court, and to empannel
juries. But each sheriff, in his respective county, makes arrests, and
returns the writs to this court.
Sec. 27. The way of empanneling juries to serve in this court, is thus: the
sheriff and his deputies every morning that the court sits, goes about
the town, summoning the best of the gentlemen, who resort thither from
all parts of the country. The condition of this summons is, that they
attend the court that day to serve upon the jury, (it not being known
whether there will be occasion or no.) And if any cause happen to
require a jury, they are then sworn to try the issue, otherwise, they
are in the evening, of course, dismissed from all further attendance,
though they be not formally discharged by the court. By this means are
procured the best juries this country can afford; for if they should be
summoned by writ of venire, from any particular county, that county
cannot afford so many qualified persons as are here to be found, because
of the great resort of gentlemen from all parts of the colony to these
courts, as well to see fashions, as to dispatch their particular
business. Nor is vicinage necessary there, to distinguish the several
customs of particular places, the whole country being as one
neighborhood, and having the same tenures of land, usages and customs.
The grand juries are empanneled much after the same manner; but because
they require a greater number of men, and the court is always desirous
to have some from all parts of the country, they give their sheriff
order a day or two before, to provide this pannel.
Sec. 28. In criminal matters this method is a little altered; because a
knowledge of the life, and conversation of the party, may give light to
the jury in their verdict. For this reason a writ of venire issues in
such cases, to summon six of the nearest neighbors to the criminal, who
must be of the same county wherein he lived; which writ of venire is
returned by the sheriff of the respective county, to the secretary's
office, and the names are taken from thence, by the sheriff attending
the general court, and put in the front of the pannel, which is filled
up with the names of the other gentlemen summoned in the town, to be of
the petty jury for the trial of that criminal. If the prisoner have a
mind to challenge the jurors, the same liberty is allowed him there as
in England; and if the pannel fall short, by reason of such challenge,
it must then be made up of the bystanders.
Sec. 29. All actions in that country are generally brought to a
determination the third court, unless some special, extraordinary reason
be shown why the party can't make his defence so soon. The course is
thus: upon the defendant's nonappearance, order goes against the bail,
(for a capias is generally their first process,) on condition, that
unless the defendant appear, and plead at the next court, judgment shall
then be awarded for the plaintiff. When the defendant comes to the next
court he is held to plead. Thus, by common course, a year and a half
ends a cause in the general court, and three or four months in the
county court. If any one appeal from the judgment of the county court,
the trial always comes on the succeeding general court; so that all
business begun in the county court, tho' it runs to the utmost of the
law, (without some extraordinary event,) ought to be finished in nine
months.
Sec. 30. Every one that pleases, may plead his own cause, or else his
friends for him, there being no restraint in that case, nor any licensed
practitioners in the law. If any one be dissatisfied with the judgment
of the county court, let it be for any sum, little or great, he may have
an appeal to the next general court, giving security to answer, and
abide the judgment of that court; but an action cannot originally be
brought in the general court, under the value of ten pounds sterling, or
of two thousand pounds of tobacco, except in some particular cases of
penal laws.
Sec. 31. The county courts are constituted by law, and the justices thereof
appointed by commission from the governor with advice of council. They
consist of eight or more gentlemen of the county, called justices of the
peace, the sheriff being only a ministerial officer to execute its
process. This court is held monthly, and has jurisdiction of all causes
within the county, cognizable by common law or chancery, and not
touching life or member, and never was limited to any value in its
jurisdiction, as Mr. Oldmixion would have it, pag. 298. But in the case
of hog stealing, they may sentence the criminal to lose his ears; which
is allowed by a particular act for that purpose, as the punishment of
the second offence, the third is felony. In all things they proceed in
the same manner as the general court.
Sec. 32. This monthly court hath the care of all orphans, and of their
estates, and for the binding out and well ordering of such fatherless
children, who are either without an estate, or have very little.
In September annually they are to enquire into the keeping and
management of the orphan, as to his sustenance and education, to examine
into his estate, and the securities thereof, viz: whether the sureties
continue to be responsible, and his lands and plantations be kept
improving, and in repair, &c. If the orphan be poor, and bound an
apprentice to any trade, then their business is to enquire, how he is
kept to his schooling and trade; and if the court find he is either
misused or untaught, they take him from that master, and put him to
another of the same trade, or of any other trade, which they judge best
for the child. They cannot bind an orphan boy but to a trade, or the
sea.
Another charitable method in favor of the poor orphans there, is this:
that besides their trade and schooling, the masters are generally
obliged to give them at their freedom, cattle, tools, or other things,
to the value of five, six, or ten pounds, according to the age of the
child when bound, over and above the usual quantity of corn and clothes.
The boys are bound till one and twenty years of age, and the girls till
eighteen. At which time, they who have taken any care to improve
themselves, generally get well married, and live in plenty, though they
had not a farthing of paternal estate.