THE COUNTY COURT AND ITS OFFICERS
_The functions and officers of the colonial court_
In colonial Virginia local government was centered in the County
Court. Its origins as a political and social institution have been
attributed to various prototypes in Tudor and earlier English history.
By the time Fairfax County was established in 1742, this institution
and its functions in colonial Virginia had been clearly formulated and
accepted.[43]
The County Court evolved from the colony's original court established
at Jamestown and consisting of the Governor and Council sitting as a
judicial tribunal. In 1618, the Governor ordered courts to be held
monthly at convenient places throughout the colony to save litigants
the expense of traveling to Jamestown. Steadily the numbers of these
courts increased and their jurisdiction expanded until, by the end of
the seventeenth century, these local courts could hear all cases
except those for which capital punishment was provided. In effect,
their jurisdiction combined the contemporary English government's
King's Bench, Common Pleas, Chancery, Exchequer, Admiralty, and
Ecclesiastical courts.
During this period the local courts acquired numerous non-judicial
responsibilities connected with the transaction of public and private
affairs. Because of both tradition and convenience, the County Court
was the logical agency to set tax rates, oversee the survey of roads
and construction of bridges, approve inventories and appraisals of
estates, record the conveyance of land, and the like. Therefore, the
court's work reflected a mixture of judicial and administrative
functions, and the officers of the court became the chief magistrates
of the Crown and of their communities. Once this pattern of authority
and organization was developed, it continued with very few basic
changes throughout the eighteenth and most of the nineteenth
centuries.
Highest in the hierarchy of the officers of the county and the court
were the justices. Originally designated as "commissioners", and, by
the 1850's referred to as "magistrates", their full title was "Justice
of the Peace" after their English counterparts of this period.[44]
Popular usage in Virginia, however, fostered the custom of speaking of
the members of the court as "Gentleman Justices". They were both the
products and caretakers of a system that placed control of public
affairs in the hands of an aristocratic class, and at any time in the
County's history up to mid-nineteenth century a list of the County's
justices was certain to include the best leadership the County had.
Appointments were for life, and lacked any provision for compensation.
Service on the court was, therefore, considered an honorable
obligation of those whose position and means permitted them to perform
it. That this was considered a serious and active responsibility was
indicated by the fact that justices could be fined for non-attendance
at court.[45] Through the colonial period and well after the War of
Independence the justices of the county court were appointed by the
governor, and, although episodes during this period indicated the
recurrence of friction between the governor and General Assembly over
the power to make these appointments, neither the local court nor the
Assembly was able to assert permanently its claim to participate in
the appointment process.[46] The number of justices of the county
court varied considerably in different counties and times. By law the
number was set at eight members; yet in 1769 Fairfax County had 17
justices, and appeared to be typical of other counties in the
region.[47]
Appointments to the county court in some instances seemed almost
hereditary, for when a justice of one of the prominent local families
died or retired to attend to other interests it frequently occurred
that his place was taken by a younger relative. Historian Charles
Sydnor has noted that during the twenty years prior to the War of
Independence three-fourths of the 1600 justices of the peace appointed
in Virginia came from three hundred to four hundred families.[48]
Directly or indirectly, the justices of the county court influenced
the selection of all other county officers. The clerk of the court was
elected outright, but others--including the sheriff, coroner,
inspectors and commissioners for special duties, and militia officers
below the rank of brigadier--were commissioned by the governor from
lists submitted by the justices.
The office of clerk of the county court presumably dates from the
origin of the court itself, for references to clerk's fees are found
in the law as early as 1621,[49] and authority for appointment by the
governor is noted in 1642.[50] From the tables of fees authorized by
law, one may see that the clerk performed a wide range of functions
growing out of the work of the court. These included issuing orders
for all stages of court proceedings, taking depositions and
inventories, recording documents, and administering or probating
estates of all kinds. In addition, the county's records of births,
deaths and marriages were maintained from reports made to the clerk.
In time, some of the tasks of issuing certificates--such as marriage
licenses--which started as duties of the court were turned over to the
clerk to perform.[51]
Frequently the clerk could and did exercise great influence with the
justices in the handling of legal matters. As the members of the court
were laymen, it often occurred that the clerk was the only person who
was learned in the law, and his advice must have been a determining
factor in many situations. His tenure in office also strengthened his
position of influence, for it was customary to retain clerks in office
for long periods of time, during which they had daily contact with the
workings of the law and events in the county. Unlike the justices, who
came from all parts of the county and seldom were present except on
court days, the clerk was much more available at the courthouse, and
so generally was the first to hear news from the colonial capital or
the outside world. As a result, the clerks of the court were consulted
on a variety of matters whenever a justice was not available.
Fees charged for performing the various services connected with the
work of the court made up the income of the clerk, and occasionally
the same person might hold the positions of clerk and surveyor,
notary, or special commissioner. Under certain circumstances, clerks
also could practice law, and all of these sources combined to produce
an income which was for the times comfortable.
In the eighteenth century, two significant changes in the law
prescribing the clerk's office occurred--it was made a salaried
position, and the county court was given full authority to appoint the
clerk--but in other respects the office was changed very little either
by the passage of time or the transformation from colony to
commonwealth.
Ranking roughly equal to the clerk in importance to the operations of
county government was the sheriff. The office of sheriff appeared when
counties began to be established in the 1630's; and until after the
War of Independence, sheriffs were appointed by the governor on
recommendation of the county court. Almost from the beginning, too,
it appears to have been customary to appoint deputies or
"under-sheriffs". So it is not surprising to find that after 1661 it
was customary for the office of the sheriff to rotate annually among
the members of the court who, in turn, appointed their deputies
directly. But in the eighteenth century this system proved too
disruptive, and deputies were retained throughout several terms of
sheriff's appointments.[52]
From the beginning the sheriff and his deputies were compensated by
fees which they collected for a wide variety of duties. These ranged
from tasks connected with execution of the court's orders in criminal
cases, to enforcement of the law and administration of the jail. In
addition, the sheriff was due a fee from a master whose runaway
servant or employee he apprehended and returned, or for collecting
private debts or administering corporal punishment to servants for
their owners.[53]
Sheriffs also collected the levies which financed county government.
However, being subject to the pressures of their own circumstances,
there often was a tendency to give first priority to activities which
brought in their own fees. This led the General Assembly to require
that sheriffs collect public levies before they take any fees for
themselves, and to prescribe a number of other rules for improvement
of the conduct of their offices.[55]
The role of the sheriff in the tax collection process always was a
difficult one. The procedure for financing the county, initially, was
for the justices simply to compile lists of their expenses and the
freeholders of the county, compute how much was needed from each
freeholder to cover the cost of government, and direct the sheriff to
collect it. When the sheriff made his return to the court he was
entitled to deduct a percentage as his commission.[56] However,
revenue was often not collected, either because the job was farmed out
to others who defaulted, or the county was too poor, or its residents
were scattered and could not be found.[57] These problems ultimately
led the General Assembly to establish other officers whose exclusive
duties were the levying and collecting of revenue, but throughout the
seventeenth and eighteenth centuries the sheriff performed a central
role in the revenue process.
The sheriff was also the custodian of the county jail and its
prisoners. He had the authority to decide on and collect bail, and he
was liable for a fine if a prisoner escaped. He appears generally to
have taken his responsibility for the county jail lightly, for there
is evidence of widespread contracting for others to provide the guard
for the jail and the food for the prisoners. Other officials who were
part of the colonial county government performed specialized
functions, but unlike the clerk and sheriff, took no part in the
general administration of county business.
The office of county surveyor was created early in the seventeenth
century to meet the obvious need for accurate measurement and
recording of land. Initially, the surveyor was appointed by the county
court, and sometimes treated as an additional duty of the clerk or
sheriff. However, by the end of the eighteenth century a significant
change had occurred in the legislation which called for appointment by
the governor after a candidate had been examined and approved by the
faculty of the College of William & Mary. By 1783, therefore, the
surveyor became the first county official to be required to show
professional competence as a condition of appointment.[58]
The office of constable appeared in 1645, and may be described as
similar to that of sheriff, except that it served the court of a
single justice.[59] Constables were appointed by the justices of the
county court and served in precincts delineated by the justices.
The function of coroner in colonial Virginia was similar in all
essential respects to that in England at that time, that is, to
represent the Crown by investigating the circumstances of unexplained
deaths. Originally, this function was performed by the justices,
acting without fee. However, by the 1670's, coroners were being
appointed by the governor, and authorized to collect fees for their
services from the estate of the deceased or, lacking that, from the
county. In the absence of the sheriff, the coroner could be designated
by the court to perform the duties of the sheriff's office.[60]
Roughly a century after the appearance of the coroner, the next
significant addition to the machinery of county government came with
the creation of the commissioners of the tax. Forced by the increased
military expenses of the 1760's and 1770's[61] to find new sources of
revenue, Virginia created an official to take over the specialized
function of assessment of property for tax purposes. He was elected by
the freeholders of the county. In office, his task became one of
laying off the county into districts, assessing property, and
notifying the owner of the tax due.
The commissioners of the tax were created in 1777, and lasted until
1782 when a new official, the commissioner of the revenue was
established.[62] The new commissioner took responsibility for making
assessments of taxable property under a simplified procedure, and the
office has remained as a unique feature of Virginia's local government
to the present time.
_Court Days_
As the institution of the county court grew during the seventeenth and
eighteenth centuries and became the hub of county government, the
monthly sessions of the court furnished an opportunity for general
gatherings of the county's residents and visitors to transact both
public and personal business. A scene that must have been typical of
almost any Virginia county in the early nineteenth century has been
described by historian John Wayland as follows:
Court day once a month was looked upon as a great event; everyone
that could leave home was at hand. It was a day of great interest;
farmers coming in with their produce, such as butter and eggs, and
other articles which they exchanged for groceries and dry goods.
The streets around the courthouse were thronged with all sorts of
men; others, on horseback, riding up and down trying to sell their
horses. Men in home made clothes, old rusty hats that had seen
several generations, coarse shoes and no stockings, some without
coat or vest, with only shirt and pants....
This was a day to settle old grudges. When a man got too much
whiskey he was very quarrelsome and wanted to fight.... It was,
also, a great day for the gingerbread and molasses beer. The cake
sellers had [tables] in front of the courthouse, spread with white
cloths, with cakes piled high upon them and with kegs of beer
nearby. I have seen the jurymen let down hats from the windows
above, get them filled with gingerbread and a jug of beer sent up
by rope. About four or five o'clock the crowd began to start for
home.[63]
For anyone who had business with the court, whether he or she came as
a petitioner or a penitent, the justices, clerk, sheriff, and other
officials represented the presence of power and authority as colonial
Virginia knew it. But it was a presence in which men stood on little
ceremony or formality with each other. Except in unusual circumstances
all were likely to be laymen, for in colonial Virginia there was
little formal education in the professions and, at most, one might
have attended lectures at the College of William & Mary or a school in
England. If the gentlemen justices were widely read in history,
philosophy, government and literature--as well they might be--these
advantages of their means and leisure did not destroy their
appreciation for the issues they were asked to decide. For in their
own right they were planters who had to face and deal with these
issues in their own lives. Accordingly, their decisions, as reflected
in the minutes of their sessions, were based on this realism which
comes from personal experience.
Yet it remained true that the gentlemen justices of the county court
were, for most practical purposes, beyond any control of the community
they governed. Any complaint about the manner in which the justices
conducted their business could only be directed to the governor.[64]
Should the court cease to function for long periods of time because of
quarreling among the justices, or should the occurrence of an
emergency require replacement of justices, the freeholders of the
county had no method of dealing with their problem except through the
pressure of public opinion.[65]
Even with the best of good will among the members of the court, they
could not escape the usual difficulties of handling legal matters
before a bench of lay judges, who not only lacked professional
training, but were handicapped by the scarcity and cost of law
books.[66] Decisions which seemed wrong could, from earliest colonial
times, be appealed to the governor and General Court. Later the
establishment of District Courts, and their successors the Circuit
Courts, provided an intermediate tribunal for determining matters
which turned on points of law. But the business of the gentlemen
justices on court days was a mix of legal and administrative matters,
and in the latter area of activity there was no appeal.
_Election Days_
Among the non-judicial activities carried on at the courthouse, none
was as colorful and few were more important than elections of members
of the House of Burgesses. Elections were ordered by writs issued by
the governor, and in each county they were conducted by the sheriff.
Unless reasons of the greatest gravity prevented it, the polling place
was the county courthouse.[67]
Voting, or "taking the poll" as it was called, was conducted in the
court chambers, or, in warm weather, in the courthouse yard, with the
sheriff presiding at a long table. On either side of the sheriff were
justices of the court, and at the ends of the table were the
candidates and their tally clerks.
The sheriff opened the election by reading the governor's writ and
proclaiming the polls open. If there was no contest or a clearly
one-sided election, the sheriff might take the vote "on view"--that
is, by a show of hands of those assembled at the courthouse.
Generally, however, a poll of the individual voters was taken. As the
polling went on, each freeholder came before the sheriff when his name
was called and was asked by the sheriff how he voted. As he answered,
the tally clerk for the candidate receiving the vote enrolled it and
the candidate, in his turn, generally acknowledged the vote with a bow
and expression of appreciation. At the close of the polling a
comparison of the tally sheets showed the winner.
This method of voting enhanced the excitement of a close election,
and, since elections frequently were held on court days when many
people came to the courthouse on other business, activity outside the
courthouse sometimes was spirited. Wagers were offered and taken,
arguments broke out and fights sometimes followed.[68]
Those attending the elections usually were in good spirits, for they
were aided by the custom of the candidates to provide cider, rum
punch, ginger cakes, and, generally, a barbecued bullock or pigs for
picnic-style refreshment of the voters waiting at the courthouse.[69]
The candidates and their friends also kept open house for voters
traveling to the courthouse on election day, offering bed and
breakfast to as many as came. On election night, the winning
candidates customarily provided supper and a ball for their friends
and other celebrants.[70] The law was explicit that no one should
directly or indirectly give "money, meat, drink, present, gift, reward
or entertainment ... in order to be elected, or for being elected to
serve in the General Assembly",[71] but the practice of treating the
voters on election day was deeply rooted in Virginia's political
tradition. Thus the law was interpreted as only prohibiting one
offering refreshment "in order to get elected"--something extremely
difficult to prove--but not preventing one from treating his friends.
So, while occasionally voices were heard to condemn candidates for
"swilling the planters with bumbo",[72] or bemoan the "corrupting
influence of spiritous liquors, and other treats ... inconsistent with
the purity of moral and republican principles", the complainants
almost always turned out to be candidates who themselves had recently
been rejected at the polls.[73]
_The Transition From Colony to Commonwealth_
The War of Independence caused little change in Virginia's system of
county government. The county court system was carried over into the
state constitution of 1776 with only the oath of office changed to
call for support and defense of the constitution and government of the
Commonwealth of Virginia.[74] The General Assembly became the
successor to most of the functions of the colonial House of Burgesses
and Governor in Council, but significantly the principle of the
separation of powers established for the commonwealth was not extended
to the counties. Thus, the mix of powers, privileges and duties which
comprised the authority of the gentlemen justices in colonial times
was continued, as was the custom of appointment for life.
How little the transition from colony to commonwealth changed the
justices' own view of their position was illustrated in 1785 when the
new governor issued new commissions reappointing the justices of
Fairfax County's court. The justices refused to accept the new
commissions, and pointed out to the governor in a long letter that
this duplication of oaths would set a bad precedent and risk giving
the executive undue powers over the court. Far from being an
artificial objection, the letter noted, this latter point was
extremely touchy for the justices' standing in a great many matters
was based on seniority, and both the prestige and chances for
financial rewards that went with the office depended on this
standing.[75]
The most noteworthy changes in the organization of local functions
came as a result of the disestablishment of the Church of England.
That portion of all local officials' oaths which called for supporting
and defending the church was dropped, but, more important, abolition
of the parish vestry made it necessary to lodge its non-religious
functions elsewhere. In 1780, therefore, the General Assembly created
county boards of Overseers of the Poor.[76] Most other welfare
activities were added to the responsibilities of the county court.[77]
While the basic philosophy of Virginians regarding their local
government did not change as a result of independence, certain new
governmental institutions were created because colonial ways were not
efficient enough to meet the demands placed on them by social and
economic growth. Although the general jurisdiction of the county court
was continued, in 1788 a new court, called the district court, was
established to relieve the pressure of judicial business.[78] These
district courts were the direct antecedents of the present circuit
courts of the counties which were created by the General Assembly in
1818.[79]
If the district court did not displace the county court immediately,
it forecast its eventual decline as a judicial tribunal. The new court
introduced the beginnings of professionalism on the bench, and offered
the prospect of full-time attention to the administration of justice
by trained judges. Establishment of the office of the Commonwealth
Attorney in 1788 added to this trend toward professionalism.[80]
Most of the administrative duties of the county court in colonial
times remained after independence. Consequently, the records of the
county court continued to show actions connected with the licensing of
inns, ordinaries, mills, ferries, peddlers, and other similar
activities, along with attention to the survey and maintenance of
roads, bridges, and fords.[81] Regulatory powers over the practices of
tradesmen and artisans was broad, and used by the county court to set
rates which could be charged and to prescribe trade practices which
affected the quality of the products involved.
In this area of activity, the county court was performing what
Virginians generally regarded as matters of purely local concern.
Except in connection with the production of tobacco and milling and
shipping of grain, economic activities seldom affected anyone beyond
the county neighborhood.[82] Therefore, the county court was deemed to
be the best body to understand and accommodate the interests involved.
This attitude began to change only as the improvement of
transportation facilities increased travel and commerce in the period
from 1830 to 1860.
NOTES FOR CHAPTER III
[43] See generally, Martha Hiden, _How Justice Grew: Virginia
Counties: An Abstract of Their Formation_, (Williamsburg: Virginia
350th Anniversary Celebration, 1957). Also, because time-honored
tradition as well as law influenced the organization of Virginia
counties, the description of English local government in J. B. Black,
_The Reign of Elizabeth, 1558-1603_, (Oxford: Oxford University,
1936), pp. 174-177, applies to Virginia's county government in the
colonial and early federal periods.
[44] The first statute on this subject, in 1628, used the term
"commissioners" (I Hening, _Statutes_, 133). In 1662, this term was
replaced by "justices". P. A. Bruce, _Institutional History of
Virginia in the Seventeenth Century_, (New York: Putnam, 1910), I,
488. However, Porter, _County Government_, p. 170, states that
"justice of the peace" was the full title during most of the
seventeenth and eighteenth centuries.
[45] Porter, _County Government_, p. 168.
[46] In 1657, for example, the House of Burgesses enacted legislation
requiring that appointments be recommended by the county court and
approved by the Assembly. (I Hening, _Statutes_, 402, 480) But this
requirement appears to have been repealed after the restoration of
Charles II.
[47] Porter, _County Government_, p. 49, cites the _Calendar of State
Papers_, I, 261, listing the numbers of justices in nearby counties as
follows: Fauquier, 18; Prince William, 18; Loudoun, 17.
[48] Charles Sydnor, _American Revolutionaries In The Making_, (New
York: Collier, 1962), p. 64.
[49] Hening, _Statutes_, I, 117.
[50] Hening, _Statutes_, I, 305.
[51] Hening, _Statutes_, II, 28, 280.
[52] Porter, _County Government_, p. 42.
[53] _Ibid._, pp. 27-28.
[54] Hening, _Statutes_, I, 330, 484.
[55] These rules included prohibitions against extortion of excessive
fees, acting as lawyers in their own courts, falsifying revenue
returns, multiple job-holding and the like. See Hening, _Statutes_, I,
265, 297, 330, 333, 465, 523; II, 163, 291. Porter, _County
Government_, 68, comments that "the office of sheriff, judging from
the number of acts which the assembly found it necessary to pass, was
the problem child of ... [the 18th century], not only in regard to the
duties of the office, but also in the method of appointment."
[56] Shepherd, _Laws of Virginia_, I, 367.
[57] _Calendar of State Papers_, IV, 416.
[58] Hening, _Statutes_, XI, 352.
[59] Hening, _Statutes_, IV, 350.
[60] Hening, _Statutes_, II, 419; IV, 350.
[61] Hening, _Statutes_, IX, 351.
[62] Hening, _Statutes_, XII, 243.
[63] John Wayland, _History of Rockingham County, Virginia_, (Dayton,
Virginia: Ruebush-Elkins, 1912), pp. 424-425.
[64] Porter, _County Government_, p. 109, citing _Calendar of State
Papers_, IV, 170.
[65] Sydnor, _American Revolutionaries_, pp. 77-78.
[66] As a result law books were the property of the court rather than
the individual justices, and on the death or resignation of a justice
his law books were surrendered to the court and divided among the
remaining members of the court. Hening, _Statutes_, IV, 437.
[67] In unusual circumstances, such as an outbreak of smallpox, the
sheriff might chose an alternate site. H. R. McIlwaine (ed), _Journals
of the House of Burgesses, 1742-49_, (Richmond, 1909), p. 292.
[68] Douglas S. Freeman, _George Washington: A Biography: Young
Washington_, (New York: Scribner, 1948), II, 146, notes that
Washington became involved in an election-day brawl at the election of
members of the House of Burgesses in December 1755. The contest
between John West, George William Fairfax, and William Ellzey was very
close, and Washington (supporting Fairfax) met William Payne (who
opposed Fairfax). Angry words led to blows, and Payne knocked
Washington down with a stick. There was talk of a duel, but the next
day Washington apologized for what he had said, and friendly relations
were restored.
[69] Sydnor, _American Revolutionaries_, p. 53.
[70] Nicholas Cresswell, _The Journals of Nicholas Cresswell,
1774-1777_, (Pt. Washington, N. Y.: Kennikat Press, 1968), pp. 27-28.
[71] Hening, _Statutes_, III, 243.
[72] "Bumbo" was an eighteenth century slang term for rum. Sydnor,
_American Revolutionaries_, p. 53.
[73] William C. Rives, _History of the Life and Times of James
Madison_, (Boston: Little, Brown, 1873), I, 180-81.
[74] Porter, _County Government_, p. 107.
[75] Calendar of State Papers, IV, 337.
[76] Hening, _Statutes_, X, 198; XI, 432; XII, 273, 573; Shepherd,
_Laws_, I, 114.
[77] Hening, _Statutes_, X, 385 (orphans); XII, 199 (mental health).
[78] The district court's jurisdiction included civil cases of a value
of L30 or 2,000 lbs of tobacco, all criminal cases, and appeals from
the county court in criminal cases. Hening, _Statutes_, XII, 730 et
seq.
[79] Virginia, _Code of 1819_, I, 226.
[80] Hening, _Statutes_, XIII, 758.
[81] Hening, _Statutes_, XII, 174.
[82] In the late eighteenth century, Virginia millers and warehousemen
were major sources of grain and flour for New England, the West Indies
and Mediterranean. The House of Burgesses, and later the General
Assembly, enacted comprehensive laws regulating the quality, grading
and marking of these products. See, Lloyd Payne, _The Miller in
Eighteenth Century Virginia_, (Williamsburg: Colonial Williamsburg,
1963) and Charles Kuhlman, _The Development of the Flour-Milling
Industry in the United States_, (Boston: Houghton Mifflin, 1929), pp.
27-33, 47-54.
[Illustration: Fairfax County Courthouse, June 1863. Photo by T. H.
O'Sullivan. Copy from the Library of Congress.]