Colonial Williamsburg Foundation Library Research Report Series - 1218
Colonial Williamsburg Foundation Library
Colonial Williamsburg Foundation Department of Historical Research
This research was funded in part by grants from the National Endowment for the Humanities, "Planning for the Interpretation of the Courthouse of 1770" (GM-22355-85), the L.J. and Mary C. Skaggs Foundation, The Pew Charitable Trusts, the Jeffress and the Gwathmey Trusts, and the Dyson Foundation.
NOTE. This report Department is prepared to serve the needs of the Department of Historical Research and those other departments at the Colonial Williamsburg Foundation that are charged with the restoration and interpretation of the Williamsburg-James City County courthouse. As such, it is designed for that project and for other purposes related to the Foundation's mission of exhibition, education, and interpretation. It is, therefore, for the exclusive use of Colonial Williamsburg, its employees, and the author.
|I. Overview: Local Courts and the Williamsburg Community||2|
|II. Interpretive Connections||7|
|III-History of the County Court System: A Methodological Overview||13|
|IV. Historical Development: English Backgrounds||41|
|V. Historical Development: The Transplantation of Legal Institutions to the Chesapeake||59|
|VI. Historical Development: The Creation of Local Institutions||76|
|VII. Historical Background: Local Justice before 1634||87|
|VIII. Historical Development: The Eighteenth Century||105|
|IX. Historical Development: The "Due Administration of Justice"||118|
|X. Historical Development: Virginia's Constitutional Legacy||132|
|A Court-house Hornbook/Glossary||138|
Standing at a prominent crossroads or atop a hill, a county courthouse was a familiar sight to Virginians in the eighteenth century. Rural folk passed it on their way to other parts of the county. Even if the court was not in session, they might encounter another person on his way to conduct business. Notices tacked onto the courthouse doors told of proposed marriages, sales of property, or new laws passed by the House of Burgesses. Travelers or others carrying mail knew that they could always stop at the courthouse and find someone willing to carry a letter the last few miles to the neighbor it was addressed to. Purely because of its central location in a scattered rural society, the county courthouse was part of the routines of colonial life.
For people living in a more urban setting such as Williamsburg or Yorktown, the courthouse was no less an important presence. Closer to it, they were all the more familiar with its power to attract people from the countryside and to transform their usually quiet villages into bustling markets. The large brick courthouse, occupying an open two-acre site, stood apart from the low wooden shops and homes crowded together in town. By contrast with the urban clutter around it, the courthouse loomed large in town life, too.
The county courthouse was more than a physical presence. Its meaning in the lives of colonial Virginians went beyond its physical setting, size, or appearance. Anyone walking through its 3 doors saw familiar scenes and faces. Straight ahead, seated on a raised bench, were the justices of the peace. Flanking their bench, the sheriff's boxes stood as reminders of the physical power that supported the authority of government. In one box the sheriff sat receiving process papers that ordered him to take the body, property. or bond of a defendant as security for appearing in court. Often, the sheriff had the unpleasant duty of seizing a debtor's property in execution of a judgment. Across the courtroom, in the other sheriff's box, his deputy sat, serving as court crier.
The sheriff may have been the long arm of the law, but it was the county clerk who actually made the law function smoothly. From his small desk, set off by a railing at the strategic center of the courtroom, he kept the proceedings from grinding to a chaotic halt. He kept some semblance of order in the court by following his "docquett" sheet, a list of cases and matters that the justices had to deal with. From his seat he could beckon to the attorneys who sat before him, crowded onto two benches inside a tiny balustraded area reserved for them between the public and the court officers. Appropriately, they faced toward the justices, but frequently they turned around to see if their clients were present among the crowd of onlookers milling about in the broad open area behind the courtroom rail. In the small rooms off to the side of the main courtroom, deputy clerks sat at rough but functional tables sorting documents and keeping track of the many varieties of business coming to the court. 4 Surrounded by book presses containing records of years past as well as law books and collections of statutes, the side rooms were becoming "offices" for the steadily increasing load of local responsibility. If the busy county clerk could not be bothered during court term, his deputies could start a petitioner on his or her way toward the proper paperwork needed to bring the matter to the court's attention.
Today, the quiet dignity of the courthouse hardly suggests the business that took place there. For colonial Virginians, government meant local government at their county courts. These courts met monthly and involved people and problems that spectators actually knew. Crowding into the courtroom, county residents heard matters of local gossip openly aired and settled. They heard hard-pressed planters explain how a drop in tobacco prices had left them unable to pay their bills. They saw local bullies or rowdies--perhaps men they had suffered from--whipped. But the justices did more thin settle lawsuits or try criminals. Anyone seeking redress of a grievance or authority to deal with a pressing problem might have recourse to the court and its officers. The justices heard petitions from widows seeking to protect property. Orphans, petitioning through a well-disposed friend might request the court to investigate how they were being treated by a guardian or master. Slaves were less willing participants, but they, too, found their way to court, if only to have their ages certified and recorded for tax purposes. Few problems were too minor to engage the attention of the 5 justices. At their monthly meetings they had to order road repair and relieve the poor of their burdens. They set rates for products and services, drawing on their familiarity with local attitudes and needs to balance the interests of merchant and consumer alike.
Ordinary Virginians did more than watch others at court. To a remarkable degree, they took an active part in the process of government, too. More than any other institution in colonial Virginia, the county court gave meaning to the idea of self-government. The courthouse was a place that common folk knew through active personal participation. The central location of the courthouse is more than symbolic. Located at midpoint on Duke of Gloucester Street, the courthouse was a social crossroads that brought together the many different social groups that comprised colonial Williamsburg. Most obviously, the court served to resolve conflict among people, especially business disagreements or unfilled promises. Williamsburg was a busy trading center, with its merchants part of a transatlantic commercial network subject to all the problems of economic fluctuation and business pressures. Throughout the eighteenth century Tidewater planters remained deep in debt to their European factors, and to London merchants who wanted repayment for the items purchased on credit or against tobacco accounts. Lawyers representing these overseas creditors frequently appeared at the court to obtain judgment against local debtors. Because of the looming presence of the Crown in Williamsburg, the city's 6 Hustings Court acted "with the greatest dispatch" to settle such cases. At the same time, the local network of debt was even more extensive. Before the age of financial institutions, anyone with cash might be a lender, and Williamsburg residents agreed to lend their money to other residents or nearby planters at current market rates. In addition, the town served as a point for the sale of imported goods, as well as a center of local manufacturing. Within this context, "credit" might involve something so elementary as a merchant's or artisan's agreement to allow a purchaser several months in which to pay for a product. Anyone willing to give such "forbearance" became a creditor, and anyone accepting it became a debtor. When such obligations fell due without repayment, the court offered one way of recovering the money owed. Williamsburg's many craftsmen -- such as James Geddy and James Anderson - tavernkeepers, and merchants were, therefore. familiar faces at the meeting of the Hustings Court and the at the James City County Court that met in the same building.
Williamsburg residents also served, of course, as court officers. Benjamin Waller was clerk of the James City county court. Philip Ludwell, Carter Burwell, Edward Champion Travis, and Robert Carter Nicholas all served as justices of the peace for that court. For the Williamsburg Hustings Court, which was composed of the city's mayor, recorder. and aldermen, the list of officers is still more impressive. At one time or another, it included mayors Thomas Everard, John Randolph, Jr., George Wythe, 7 John Blair, Jr., and John Dixon, as well as recorders Benjamin Waller and Peyton Randolph. The businesses or dwellings of numerous aldermen survive as historic sites: those of Sir John Randolph, John Custis, William Prentis, Peyton Randolph, Robert Davidson, William Parks, William Pasteur, and John Holt.
The description above, concerning social relationships and connections to other Williamsburg sites, alludes directly to the numerous interpretive possibilities of the courthouse site. The theme of an emergent commercial culture is obvious, as is the transatlantic dimension of the regional economy. Both of these ideas are already well implemented in the Foundation's interpretive program. Other ideas, more obliquely handled at present, come readily to mind. One such area is the use of public power to support the system of chattel slavery. Ultimately, it was the legitimizing power of government, as represented by the local county courts, that enabled slave-owners to maintain discipline over their slaves. The courts punished slave crime and judged whether or not an owner acted justifiably in his punishment of a slave for misbehavior such as insubordination. Slaves were a valuable -- indispensable -- form of property, and the courts as protectors of private property were vital to the economic viability of the system.
The role of women in Williamsburg is another topic that leaps to mind as neglected and for which the courthouse program 8 offers an excellent opportunity for further implementation. The current research being undertaken into the records of Virginia's colonial courts amply confirms the significant economic role played by women in that society. Women used the courts to protect their property when widows and to demand the property due them, by law, through marriage. Women could use the courts only if adult and unmarried; a married woman, by contrast, had few legal rights. The clash of economic power and legal incapacity is a striking one, and a subject much in need of primary research (such as is now going on) and interpretive presentation.
Another dimension of the court that demands amplification is the enormous and integral role played in the legal system by the yeomen of Virginia. Although the justices of the peace were of the gentry, they could not have hoped to direct the county court system without the aid of lesser freeholders. Such hitherto anonymous men were the backbone of the system, serving as deputy clerks, subsheriffs, constables, bailiffs, and ad hoc committee members. Their participation was not merely that of following the directions of their betters; rather, they operated in an institutional framework that enabled--indeed, required--them to exercise discretion and determine the course of the law. It is a theme worthy of emphasis, for it removes the court from its supposedly Olympian stature and makes it the governmental unit of the people.
The administration of justice may seem an unlikely choice as the central emphasis for an interpretive theme, yet it is a 9 subject whose apparent dryness conceals an important and exciting process. From the repetitive and intractable records of court business we can discern the process by which colonial Virginians created an American system of justice and responsible government. So great were the responsibilities of the county court, and so far-reaching were its powers, that the people of colonial Virginia simply would not permit the county court to become--like its English counterpart--the instrument for the advancement and protection of a small rural landholding elite. Virginia local justice might have taken the course of duplicating English ways, but it did not.
By the middle of the eighteenth century, local justice in England and Virginia had diverged sharply. In England, the social, religious, and political upheavals of the 1600s produced a system of local government that rested upon the brute force of the state to suppress challenge or punish crimes against property. "Albion's fatal tree"--the gallows--threw a long shadow over England, and its dark message lent an awesome dignity to the proceedings of the courts. In provincial Virginia, the product of seventeenth-century disorder was not repression but accommodation. In the decades after Bacon's Rebellion of 1676 the courts gradually--and at times swiftly--admitted large numbers of the "middling" yeomanry to the process of government and the administration of justice. This sharing of power was not the product of high-minded idealism, nor of sympathy for the plight of the excluded. Rather, it was a matter of practical 10 governance. Hard-pressed in the management of their own plantation affairs, yet unwilling to enlist the aid of the throne in solidifying their power, the Virginia gentry had little choice but to share power or lose it.
"Court day" in Virginia, therefore, differed from English meetings of quarter sessions or the assize courts. With less pomp and ceremony, the court's term was as much a meeting of the county community and the assumption of public duties through active participation. For every justice of the peace, there were a dozen less distinguished men--friends, neighbors, relatives--who served the court as lower-level petty officials. Acting as unpaid public servants in an age before salaried public service, these ordinary freeholders actually made government work. Indeed. they defined what government was by the tasks they performed and the way in which they discharged them. Deputy sheriffs delivered the court papers that the sheriff would not bother with, and constables supplied the muscle to reinforce the written orders of the court. Other men served to inspect the products that Virginians sold to one another or shipped abroad. Sealers of leather, inspectors of beef or pork, tobacco sealers--all these men assured that anything made in Virginia was a commodity worth buying.
Most Virginians probably did not need to hold office in order to serve the court--they might be called on in a particular case to apply their knowledge or judgment. Grand jurors investigated or reported wrongdoing, and petit jurors tried those 11 accused. Arbitrators cooled heated disputes and untangled complicated problems that the court had no wish to meddle with. Neighbors agreed to record and appraise the belongings of those who died.
The courts were at once the embodiment of British law and the agency of Americanization. Law and legal systems always represent and reflect the cultures that create them, and the hyphenated Anglo-American nature of Virginia society produced a legal system simultaneously supportive and subversive of British culture. All laws, it must be remembered, had to have the approval of the Crown. Yet the Crown's interest was not always identical to that of Virginia's, and English officials always looked first to upholding imperial needs. By the middle of the eighteenth century, the clash became more open. In 1748, for example, the House of Burgesses enacted a sweeping revision of the Virginia law code in order to adjust it to the needs of the time. The Privy Council, however, disallowed the new enactments and demonstrated the priority of British interests over colonial ones. In 1770, the very year that the courthouse was built, another example of transatlantic incompatibility occurred, and it directly concerned the Williamsburg Hustings Court. That court, with a well-earned reputation for its sympathy toward British creditors seeking to recover against Virginia debtors, lost its authority to handle such cases. When the law detecting such a change got to Britain, however, the Privy Council disallowed it.
Yet British officials, for all their attention to colonial 12 statutes, could not supervise the month-to-month operation of local courts. Accordingly, the Virginians in actual control of those bodies developed their own way of handling affairs. Not always consonant with proper British forms or procedures, these legal changes emerged from what was necessary in the American context. The product was a legal system steadily moving toward the American half of the Anglo-American cultural equation.
However much "The law hateth impossibilities," lawmakers accept impossible tasks. Benjamin Watkins Leigh did so when he undertook to compile Virginia's revised code of laws in the early nineteenth century. Among his problems was the historical annotation of statutes, such as the twenty-page "Act to reduce into one act, the several acts and parts of acts, concerning the County and other Inferior Courts, and the jurisdiction of justices of the peace within this Commonwealth." Leigh -- a legislator, practicing attorney, and (by now reluctant) historian -- pointed out that the county courts were "so important, that their institution may well be considered as a part of the constitution, both of the colonial and present government." But beyond that he could be no more specific, for he knew from experience that statutory provisions were never more unreliable as a description of institutional complexity and adaptability than they were in describing the operation of local justice in Virginia. Attempting to explain the historical role of the county court, he confessed simply, "It would be impossible for any man to estimate the character and utility of this system, without actual experience of its operation."1
Virtually every historian of colonial Virginia has accepted 14 Leigh's statement about the importance of the county court; few, however, have paid as much attention to his warning about the distance that separates the historian from the participant. It is the purpose of this study to discover, as nearly as possible for a historian living at such a remove from the colonial period, the actual operation of the Virginia county court -- in this particular case, the court of York County. This is a daunting task, for much of that past is irrecoverable. The significance of local justice in the colonial South is as elusive as it is evident, resting on unspoken assumptions, unwritten procedures, and unrecorded customs. Nevertheless, this study attempts to apply two very different modes of analysis -- jurisprudential and quantitative -- to the problem, in the hope that the results will in some measure expand our understanding of this institution and its role in the lives of early Virginians.
More specifically, this historical inquiry serves as a basis for the Foundation's restoration of the Williamsburg-James City County courthouse erected on Duke of Gloucester Street in 1770. Through the exhibit that will result, the Foundation is attempting to illustrate the development of the rule of law in colonial Virginia. The restoration of the courthouse, therefore, must be grounded an a firm understanding of how such a court operated and functioned in the lives of the countless ordinary Virginians who came to it. Though simply stated, this task poses problems that few academic historians are forced to confront. Scholars who examine transatlantic trade can do so quite well 15 without knowing -- as an eighteenth-century mariner did -- how to judge the wind and wrestle with rigging on a beamy, double-ended ketch in a storm. Such knowledge came to those who needed it only through years of training offered by men who themselves had learned through imitation, trial, and error. Nonetheless, that knowledge can be recaptured, albeit with considerable difficulty: we could do so by building such a vessel and going through the actual trials of learning seamanship, complete with the peculiarities of early modern maritime technology. The experience, no doubt, would involve the sort of unpleasant surprises that come from not knowing what to expect, but the result -- barring loss of life -- would be a recaptured understanding of one facet of a lost world.
The restoration of a functioning courthouse requires precisely this sort of knowledge, for it involves nothing less than the recreation of the world of a colonial lawyer, complete with the knowledge and information that he accumulated only after years of actual participation in the system. Unfortunately, that system can not be replicated for testing and examination. Recreating a dynamic human world is a much different matter from that of reconstructing and learning to sail the replica of a square-rigged vessel. It is a much different matter to make statements about the actual operation of procedures now known only in theory and about activities no longer performed. We can start by trying to discover the social, economic and political contexts that conditioned men's thinking and shaped their 16 strategies, but those are only a beginning. They can permit us to deduce certain likely facts and to make educated guesses; but they cannot give us a reliable empirical foundation upon which to build an understanding of how people actually pursued those goals. We could go further and prepare by grounding ourselves thoroughly in the legal aids published for lawyers, scouring and memorizing such handbooks as Every Man His own Lawyer2 but we would still lack the knowledge of courtroom tactics and process that undid many a novice attorney. John Adams, who read law for years before attempting to practice, found the courtroom a very different world from the orderly system he had been led to expect from his law books. Pressed by the "Importunity" of an over-eager client, he rushed into the case. The courtroom rather than a scene of decorum and control,
was a scene of absolute confusion. [A justice of the peace] persuading an Agreement, the Parties raging and scolding, I arguing and the 3 Voluntiers proposing each one his Project. And all the spectators smiling, whispering, etc.Adams discovered, to his lasting chagrin, that nothing proceeded as theory predicted. He lost his case and set about learning how to manage a courtroom action.3 17
Approaching this task quickly daunts us as legal historians. Simple, basic questions become lost in the vast and empty shell of the courthouse structure, but they can not be avoided. If we are to reconstruct a functioning human institution, we must confront matters which, as academic historians, we usually regard as trivial or inconsequential, such as the placement of furniture or the extent of writing surfaces. We have to offer informed opinion about the allocation of space for groups of unknown size. (How much writing was a justice called on to do during a term of court, and what sort of writing surface should we allow for it? Where was the bar, and why was it placed there? When did the court even have one to begin with, since we know that it did not have one for decades?)
To understand simple questions about the allocation of space and the placement of furniture, it is necessary to understand what the original architect of the building (assuredly a justice of the peace himself) knew about court activity from his own observation and participation. Recreating the functions of an institution requires that we know and understand the activities and responsibilities of a small army of petty officials. These men are mentioned, however, only obliquely in the written record; they have left tracks inferable only through a careful analysis of implicitly understood procedures. It becomes necessary, therefore, to know what duties and demands could be (or were in practice) placed on officers of the court. We can recapture the world of clerks, deputy clerks, bailiffs, constables, sheriffs, 18 deputy sheriffs, and coroners only by knowing the precise steps of process and procedure, and the extent to which they were followed. Without knowing the actual steps involved in litigation and adjudication, we can have no sense of what court officers really did, and what power they actually wielded. That means that we must so back to those elusive, unwritten practices and conventions, which we can recapture only by delicate inference through a careful analysis of a huge mass of data. What did the custom of the court demand -- or, conversely, what steps did it ignore -- in the way of serving process? What motions did a defendant have available after declaration and before the plea? How easy was it to make a dilatory plea, and what purpose did it serve? What was the precise process on execution, and who was involved in securing or delaying it? Behind all of this, of course, are the litigants themselves. How many people used the court, and to what purpose? Did different sorts of people use it differently, and how did they do so?
These questions are not antiquarian arcana. Rather, the prosaic answers they offer about such things as writing surfaces and the allocation of space lead us to other questions and conclusions about the nature and distribution of power and authority in colonial Virginia. Answers initially sought for restoration purposes, that is, divulge unexpected information about the dynamics of legal process and the application of judicial power within a social system. They call into question the easy generalizations on which we historians tend to rely when 19 we claim to make factually based interpretive statements. Who actually controlled what went on in the courtroom? What was the relationship among justices, clerk, sheriff, constable, and petitioners? How did participants at court manipulate procedure in order to make the best use of the forum into which they had come? How often were cases settled out of court, and how often through the enforced process of legal mechanism? What strategies did litigants seek to develop to gain an advantage over adversaries? What impact did they have on the formulation of rules and statute's? What was the nature of justice, both as perceived and in retrospect? The answers to such questions have broad implications. They reveal the uses of public power by competing groups and individuals, and, ultimately, they relate to the very nature of government and the position of the individual in a complex society.
The answers to the mundane questions of space and process, therefore, merit serious attention, but they have eluded even the best historians using the most extensive and detailed records available. The editors of the Legal Papers of John Adams, both of them law professors and skilled historians, confess that "We have embarrassingly little knowledge of the way in which the Massachusetts courts regulated their business and conducted their trials." 4
A scholar addressing the question for colonial Virginia must 20 begin from an even more precarious position, for the elusive answers are to be found, if at all, in a body of records that has challenged and exasperated historians since the colonial period. From Robert Beverley onward, the history of law and the legal system in Virginia has suffered from gaps in the record which historians have tried to identify and fill.5 Notable and hard-working scholars in the past have had to deal with incomplete and scattered records whose surviving remnants are only now being gathered and catalogued at major repositories. In the early twentieth century, for example, Philip Alexander Bruce had to travel countless miles by horse and buggy over dirt roads to uncover the local records needed for his massive (and still useful) work.6 Others avoided the difficulty by relying instead on statutory prescriptions alone.7 More recently, perceptive and suggestive insights have been offered as parts of larger 21 works,8 but we lack a comprehensive work that builds on the contributions of the past, expands and adds to their questions, and attempts to confront the broad sweep of legal evolution in Virginia from 1607 to 1776.
The greatest barrier to such a study has been the limited and poor quality of Virginia's legal records. Precision and completeness in record-keeping were not virtues among early Virginians, nor was careful attention to preservation in a damp climate. As early as 1664 responsible public officials decried the "great neglect in keeping records in this country," and twenty-eight years later the governor complained that "Severall of the Bookes of Records … were much torne and defaced, and divers papers of great conceirne are very old [and] much Worne and lye in great Confusion."9 The situation had not improved substantially in the 1820s when Thomas Jefferson noted the 22 deplorable condition of records which he had had to purchase in order to preserve as sources for the legal history of the colony.10 The accidental destruction of the General Court's records during the evacuation of Richmond in 1865 leaves us without the appellate decisions needed to understand Virginia jurisprudence fully,11 while the incomprehensible sale of other records for scrap in the late nineteenth century destroyed other records whose identity we do not know with certainty, given the poor state of their care up to that point.12
The virtual absence of higher court records for the colony should have forced scholars to devote more time and attention to those that have survived -- namely, the local records of the county jurisdictions. It was there that colonial Virginians 23 actually learned about the law and took their roles as participants. Unfortunately, these records, too, pose problems. Many were destroyed in courthouse fires started by mischance, carelessness, and even arson. Others perished in the dubious safekeeping of the state government at Richmond as early as 1780. Further, county court records were not kept with the attention to legal procedure, reasoning, and doctrine contained in those for the General Court. County clerks had no pecuniary incentive to keep exhaustive records, and county justices, though required by statute to assure the accuracy and preservation of county orders, frequently neglected to do so and bequeathed to their successors archives that were incomplete and "in great disorder." 13
Fortunately, not all colonial court records in Virginia have suffered from such neglect and misfortune. Those of York have benefited from supererogatory ingenuity. As the Union Army threatened to invade Tidewater Virginia in 1862, the state legislature ordered all threatened court records moved to Richmond for safekeeping. Fortunately, as it turned out, the York records never reached their destination and were not incinerated with those that did. The county clerk, Bolivar Sheild , was caught behind Union lines and carted the records in a hay wagon to an icehouse, where he buried them and covered them with straw. The York loose papers that he saved number 450,000 24 and now remain at the Virginia State Library. Few of these loose papers are from the period before 1780, however; the colonial writs, petitions. and other loose papers probably had been lost, already, in the siege of Yorktown during the Revolutionary War. From the colonial period, Sheild was able to save only the county order books, with their basic narrative record of court business, wills, and deeds. Nevertheless, these books contain a vast quantity of data reaching back to 1646 -- upwards of 90,000 entries involving as many as 50,000 named individuals.
Despite their enormous quantity, the surviving colonial records of the York county court are nearly intractable in their lack of detail and exasperating in their inconsistency. Yet for all the rich detail that they lack, their vast quantity affords us insights into a world of courtroom activity and the politics of legal change that are only dimly perceived from the conventional perspective. Our received wisdom about local justice is not based on a close scrutiny of court records but rests, rather, on examinations of the planter elite, on a few scattered narrative comments, on the surviving appellate decisions of the General Court, or on the prescriptive literature of treatises and handbooks. By contrast, we have in the York colonial records the steady march of legal process over the course of more than a century, involving thousands of individuals, ranging from justices of the peace to constables, from wealthy creditors to indebted small planters, from masters to servants and slaves. It is these people -- notable or 25 obscure, as the case may be -- that this study examines, for it is from them and their participation in the legal system that historians can take a large step forward toward recapturing the elusive reality of colonial courtroom activity.
Justices of the peace -- the traditional subject of Virginia's legal history -- may have dominated local institutions, but they did so only as part of a complex process of competition, accommodation, and cooperation. It can be conceded -- and reemphasized -- that the justices were the leading men of their societies; like their counterparts in England, they stood atop a system of "graduated subservience" that governed localities.14 It is, as well, abundantly clear from these court records that for much of the eighteenth century they were able to protect their political interests from challenge and their economic interests from damage.
As the present study has discovered, the extent of gentry participation and domination has been considerably exaggerated. Gentry preeminence in the courtroom seems so evident only because of the way records have been approached in the past. At the pinnacle of the political system, the justices are most easily identifiable in the surviving records; their participation and domination seem so obvious mainly because of the way records have been approached in the past. Too narrow a focus on the static ascendancy of the "elite" gentlemen justices of Virginia tends to 26 magnify the extent of their control and to exaggerate their ability to control, by themselves, the day-to-day operation of local justice.
Most seriously, such an emphasis on the gentry rests upon a static view of Virginia history that does serious violence to the steady process of growth, change, and conflict that characterized the colony's transition from rough Tudor borderland outpost to wealthy Hanoverian province. The first tentative settlements of the late 1500s and early 1600s were typical extensions of a violent borderland culture, where the legal system rested upon notions of military conquest and the garrison state. If "justice" was to be done, it was done for the interests of the Crown or the backers of the Virginia Company; it had little to do with the rights of individuals. By 1770, when the county courthouse on Duke of Gloucester Street was erected, these ideas had undergone a profound transformation. In their place, a body of procedural and substantive protections guarded the interests and rights of free-born English subjects. At the same time, vestiges of the older concepts of brutal and summary justice survived, but they were now applied only to black colonists. So foreign and repugnant had they become for white colonists that the Virginia legal system had to segregate such concepts among an unfree black population and create two different legal worlds a vulnerable world of unfreedom for blacks, and a world of liberties and security for whites.
The story of how legal change benefited whites but not 27 blacks forms an integral dimension of this research project, for it illustrates the manner in which liberties are achieved or lost. If the gentry gained control of Tidewater society, the existing scholarship pays little attention to the difficulty with which that ascendancy was achieved in the first place and thus ignores the precarious nature of that rule once established. For that reason, this study approaches the problem of understanding Virginia's eighteenth-century legal culture by examining its origins. The process by which it developed defined the final product; the mechanisms used to destroy one legal system and create another, in other words, became the mechanisms by which the system functioned.
The first part of this study, therefore, examines the seventeenth-century struggle over the control of local justice, and the compromises that produced the remarkable social stability of eighteenth-century Tidewater Virginia. The next part describes the workings of local justice, with its broadly based citizen participation and increasing procedural complexity, features that were both cause and symptom of the inadequacy of gentry rule. The business of county administration and adjudication was far too extensive, complex, and onerous for a small group of men -- amateurs devoting only a fraction of their time to the effort -- to control without aid and cooperation. By the middle of the eighteenth century, the county courts had developed a system of justice that contained within it many of the enduring elements of American jurisprudence. New challenges 28 confronted it in the third quarter of the eighteenth century -- as they had done a hundred years earlier -- but it was a different system that met such attacks. The changes that had overtaken the legal system since the seventeenth century enabled it to assert legitimacy and vigor in the face of such throats, and carried Virginia into and through the Revolution.
The use of the computer now permits the historian to go beyond the gentlemen justices and to understand more precisely the foundations of local Justice and political stability. It affords us a view of the entire web of citizen participation and the process by which the actual exercise of power was shared through a functional division of responsibility and authority. As an analytical tool joined to an appreciation of the subtleties of jurisprudence and procedure, the quantitative organization and analysis of the data reveal the legal system to be as much the creation of middling yeomen and more obscure participants as it was the product of the burgesses and gentlemen justices. Such a two-fold examination reveals that the pressures and the participation of such lesser individuals had a deep and lasting impact an the court system. Petty officials, it appears, were not simply obedient servants carrying out the orders of an elite. They gave to the court both the force and legitimacy it needed; moreover, it will be argued here, the manner in which they discharged their duties influenced the nature and quality of 29 Justice. 15
The services they performed existed within a particular eighteenth-century system of economic obligation and debit collection whose dynamics were very different from our own. Litigants -- both plaintiff and defendant, creditor and debtor -- shaped the course of the law in colonial Virginia through a persistent contest of interests. The law was not the possession of the few, nor were its institutions the exclusive preserve of the rich and powerful. Great planters and Scots merchants may have dominated the economy of the Tidewater, but patterns of indebtedness were far more complex than a simple rich-poor relationship of economic power over financial weakness; the recovery of moneys lent was a much more problematic process than that of the "haves" holding sway over the "have-nots." 16 The 30 great planters were themselves debtors, and like other Virginians they suffered within an unstable economy that repeatedly placed severe financial pressures on them. Often, they were forced to take refuge in the very same procedural defenses that their lesser neighbors had fought for and had made a part of the legal process. If the courtroom was an educational experience, its teachers were not only the great planters and the justices of the bench; their social inferiors, collectively and without easily recoverable fanfare, had much to teach them, too. 17
These conclusions about the dynamics of litigation and legal process call into serious question the current received wisdom that explains the growth and stability of eighteenth-century Virginia as the product of elite rule by "gentlemen of 31 longtailed families" or "county oligarchies."18 Still more clearly, the records of the actual day-to-day operation of the county court challenge those complementary studies that have relied heavily on the methods and models of cultural anthropology to emphasize public activity as ritual, and more particularity as elite-dominated ritual. The following description of justices at a Virginia county court best exemplifies such an approach:
We must picture the gentlemen justices, bewigged and dressed in their fine coats and waistcoats, seated on the raised "bench" -- His Majesty's commissioners engaged in communal dispensation of "Justice." A ceremonial enveloped their hearings.The court, we are told, was characterized by its "symbols and formulas," as it "embodied law and property, establishing genteel proprietors as the upholders of these twin pillars of the social order."19 Such an approach has dominated the interpretation of colonial justice and has led to a prevailing interpretation of legal activities at "court day" as primarily "a kind of dramatic play." Legal activity thus becomes a "spectacle" that affirmed elite rule or else an "on-going ritual" that preserved "mutual obligation" among gentlemen without the nastiness of third-party (i.e., judicial) intervention and enforcement by way of 32 execution.20
Serious methodological objections can be raised against the appropriateness of applying such analysis to Virginia's legal history. Known as "thick description" and developed most notably by Clifford Geertz,21 it is a method most useful where empirical evidence is lacking. Compensating for the absence of adequate documentation, it eschews the traditional constraints of the empirical method in favor of a frankly more subjective analysis of discrete examples of symbolic behavior, particularly behavior that appears to have no directly apparent rational goal. The less rational and goal-oriented the behavior, the more symbolic it must be, and therefore the more appropriate for "thick description." The application of "thick description" to political behavior is most proper, accordingly, in a study such as Geertz's of nineteenth-century Bali, where people in deep trances engaged in bizarre activities that were inexplicable by more conventional methods of analysis. Geertz pointed but that this behavior took place under a Balinese state that possessed no conventional forms of authority and no bureaucracy. Lacking such institutions, Bali became a "theatre state" relying on "its 33 semiotic capacity to make inequality enchant." With no "mechanics of power" present, dramatic ceremony had to serve as a symbolic "poetics of power." 22
It is difficult, for a variety of reasons, to accept the "theatre state" model as entirely explanatory of law and justice in colonial Virginia.23 In the first place we must remember, as Holmes reminds us, that "The foundation of jurisdiction is physical power."24 The colony lacked neither coercive power nor a bureaucracy, and courtroom behavior was coolly rational and directly goal-oriented. To be sure, it remains arguable that court ceremonial or ritualized behavior can serve as an analytical tool by symbolizing for us, as it did for colonial Virginians, the leadership of the sentry in society and in public institutions. But leadership and control are vastly different. However much deference and ceremony punctuated court activity, they did not characterize it; however much they symbolized leadership, they did not confer or facilitate control. The necessary "physical force" that Holmes instructs us to look for 34 was, rather, a product of shared values and cooperative exertion among all groups committed to the rule of law in that society.
Even assuming, arguendo, that deference did characterize the operation of the legal system, the exact nature of that deference must be clarified and subjected to critical scrutiny. It is not at all clear, for example, that the monarchical-paternalistic model of deference (with justices as "commissioned agents of a father-king")25 is appropriate for an analysis of eighteenth-century Virginia. Rather, it is argued here, a classical republican model of deference is more in accord with the observable operation of the legal system, particularly because it acknowledges that the demos "retain the power of result."26 Shifting our focus in this way forces us to ask difficult questions about the sources and extent of the much-celebrated power of the gentry: namely, to what extent was the security of the elite grounded upon real power, such as that of patron over client? To what degree -- instead or in addition -- was it based on a series of compromises and genuinely functional (i.e., non-symbolic) power-sharing agreements with the lesser gentry and middling yeomanry? Put differently, it asks if what appears to be the remarkable social stability of eighteenth-century Virginia was a product of elite control or of a delicate equilibrium 35 between and among white planters both large and small. 27
Fundamentally, the prevailing interpretation that emphasizes deference and ritual attributes social stability and the effectiveness of the legal system to the paternalistic power of the elite. It requires us to accept that "the judicial mode was one expression of the attributes of fatherhood in their fullest extension."28 The results of this study, instead, suggest that gentry power was simply not as monolithic or hegemonic as the graphic nature of ceremony leads us to believe, and therefore that a paternalistic metaphor for legal activity is misplaced. An analysis that describes the Virginia courtroom as fully consistent with other examples of "deference on one side and condescension on the other" overlooks the incompleteness of gentry control, especially within the context, of legal procedure and the various pressures restraining judicial authority. Quite simply, this study would submit that it is inappropriate to compare authority over slaves with authority in the courtroom.29 36 The two situations bear no resemblance; indeed, what characterizes the nearly untrammeled power held over slaves is precisely what the legal system for whites was not.
Beyond methodological considerations, we find ample empirical evidence to question the received wisdom about the deferential basis of legal activity. In the written records we find explicit and implicit evidence of the undramatically mundane operation of the county court. The court met not once, with a single, impressive ceremony, but several days each term. Its most common functions were hardly the stuff of pageant -- the recordation of deeds, levying of tax rates, issuing of licenses, or fixing the price of a "stable room, and fodder for each horse, per night." Deference could not be demonstrated, nor mutual obligations expressed, in court activities that rarely placed parties in face-to-face public stance. Rather than ritual, we find repetitious paperwork -- reams of initial process that would never come to dramatic or symbolic confrontation, and stacks of petitions that were endorsed with repeated continuances or imparlances as debtors put off their trials. Rather than gentlemanly ritual that affirmed mutual obligations, we find harsh and unyielding recovery matched by clever dilatory tactics to keep the writ-bearing sheriff at bay. In actual fact, many of these activities probably did not even take place in the large courtroom we are told to envision; rather, it is far more likely 37 that they were handled in the more comfortable (and heated) side rooms known as "jury rooms," which scholars have assumed were reserved only for those panels. Many of the most significant activities, in fact, did not even involve the magistrates, but were discharged out of court by lesser officials who held considerable discretionary authority and who were not directly responsible to the "gentlemen justices."
The hitherto unappreciated importance of widespread activity and responsibility in Virginia's legal development has broad implications for the history of American law. The shift of focus from elite to popular or yeoman influence, it turns out, reveals the colonial backgrounds and sources of a central concept that propelled the American Revolution and dominated its early national development -- a broadly held notion of public virtue. If committed to a paternalistic-monarchical model, on the other hand, we are prevented from seeing the very real yeoman dimension of colonial justice that contributed to an enduring tradition of widely diffused civic virtue. We are forced, that is, to see the Revolution as discontinuous; that is, as a repudiation of discredited eighteenth-century legal principles and practices that soon vanished without a trace of influence on the national period. This study, by contrast, locates central and mainstream legal concepts within the ordinary operation of colonial courts. By so doing, it is hoped, it will address and answer a m major problem of American legal history -- namely, that of "demonstrating the interconnectedness of colonial and national 38 legal history."30
What emerges from the dry dust of nearly intractable data, then, is a vitally important "event" stretching over a century and a half. This "event" was the slow and complex process by which Americans developed their own notion of the rule of law. Seen in that perspective, this study is no less an inquiry into the grander and more impressive episodes of American history for being a study of anonymous people, minor public officials, and the slow accretion of small changes. The need to emphasize the interaction of everyday affairs with great events requires that this study cover the years between the 1580s and the ratification of the United States Constitution, with 1676 as a pivotal year. The more spectacular conflicts and major achievements of history must be seen as containing within them the prosaic struggles and expedient solutions of ordinary people. Though rarely noticed as constituent parts of a larger process, they were nonetheless inseparable components of large-scale, seemingly sudden historical change.
Virginia may have produced some of the great leaders of the Revolutionary and Constitutional era, but the ideas they articulated were neither radically new nor abstract. Instead, they were the product of the way Virginians had learned to interpret and give order to the world around them. It is essential to 39 recognize that the experiences and accomplishments of the humble and (to us) inarticulate were part and parcel of that background. The procedures and limits of law -- what we ultimately call "constitutionalism" -- were shaped by economic need and political power, as well as by expedience, popular pressure, and compromise. Legal change was not imposed from above by "gentlemen justices" or monolithic "oligarchies," but was a complex product of competition and accommodation among all classes and groups.
What emerges sharply in this study is the extent not only of popular participation in colonial Virginia legal activity, but the way in which law and legal process became a common possession of the people--or at least of all but the very poor and the enslaved. Debtors were quite skilled at influencing the rules of court and in restructuring transaction costs. They were not the passive and vulnerable parties we have been led to imagine, intimidated by the ceremonial or supposedly greater learning of professionals. As a result, they were not as hostile to lawyers as has been argued, nor were they necessarily intimidated by them. If anything, hostility toward lawyers was for many years more an attitude of the justices, who resented them as challengers to their own control of legal procedure, than it was of the middling litigant who welcomed the purveyor of a useful service.
True, clients often resented attorneys and frequently begrudged them their wealth and power; but it was not necessary for them to like lawyers in order to appreciate and use them. Similarly, the "gentlemen justices" at first resisted sharing 40 power with the yeomanry or accommodating their needs, preferring instead to regard the courts as their own private preserves for the furtherance of their own interests. But that is precisely the point: the rule of law was not the product of good will, generosity, or willing submission to a set of principles for the sake of an abstract ideal known as "justice." Rather, the rule of law was hammered out in countless legislative and judicial encounters. It was the product of challenge, competition, and finally a grudging acknowledgement of the need to be accountable and share power or lose it entirely, to make the system rational -- even bureaucratic -- so that it could not be attacked as arbitrary and partial. Once that system was established, it implicitly took on the lustre of tradition and legitimacy; once it was challenged, it was articulated and made explicit. What Virginians had constituted became constitutional.
England founded its overseas colonies at a point in its history when the Crown had only incomplete control over its outlying dominions. The decades of Tudor and early Stuart rule predate the modern bureaucratic state and reveal, by sharp contrast with our present age, an inability of the state to govern without the willing participation of its subjects and the willing obedience of local magnates. Unable to impose government and justice, the Crown had to delegate the powers needed to obtain even minimal standards of law and order.
Not surprisingly, the enterprise of overseas colonization reflected these limitations and concessions. From the earliest years of unsuccessful settlement, through to the issuance of the first charter in 1606 and the creation of institutions under subsequent charters, one theme recurs constantly: namely, the steady devolution of legal authority from center to periphery .31
It is vital to recognize this background if one is to comprehend fully the origins of local government in colonial Virginia. Although the Grand Assembly of 5 March 1623 enacted legislation creating monthly inferior courts at Charles City and Elizabeth City32, and eight years later established three more 42 "monthlie corts" for "remote parts of this colony" downstream from Jamestown and on the eastern short33, the earliest subunits of Virginia government and justice have gotten little attention from scholars. Some doubt that the law of 1623 was even implemented, others regard that of 1632 as merely a preliminary step toward the much more significant creation of an English system of shires in 1634, and others assume that no courts at all, other than the Council, existed before then. 34
Such confusion or disagreement naturally follows from a failure to recognize the powerfully persistent English tradition of local government in the borderlands that loomed over the first attempts at overseas expansion and that quickly took root in the earliest days of the colony. Virginia's system of local justice and administration was forged not in 1634 but, rather, in the quarter century before then; what took form in 1634, that is, was nothing new, but a continuation of patterns and institutions that drew on English specific impulses characteristic of England's attempts to control distant marchlands.
By the time Englishmen landed at Cape Henry in 1607 they possessed many precedents for the extension of English rule into such borderlands. Indeed, in the decades of Tudor political consolidation and expansion across England and into Ireland had acquainted them with a broad array of legal and administrative 43 arrangements for satisfying the needs of the state and the goals of powerful private individuals. These arrangements were a product of the bloody civil wars that revealed fifteenth-century England to be a fragmented monarchy, more a geographical expression than anything resembling the modern, unified English state. Confronted with external rivals and internal disorder, the Tudors responded with increasing severity to those who violated public order. This might mean the brutal repression of insurrectionaries after the Pilgrimage of Grace in 1537 or the "orgy of revenge" after the Northern Rebellion of 1569-1570. Swift, harsh justice characterized their reactions.
But the Tudor social order was no less insecure, and local ruling groups threatened by the disorder of vagrants and other unorganized, apolitical forces were equally severe in the methods they used to achieve social control. We must be reminded that the maintenance of public order was a priority of the Tudors, and they began a tradition of conferring increasingly powerful authority on those charged with imposing order in the localities. They gave ever greater powers and responsibilities, that is, to a smaller group wielding greater powers than ever before: namely, to the justices of the peace and their courts of quartet sessions. The Marian committal statute, we are told by one historians "aimed to prod the justice of the peace into assuming the role we would today associate with the public prosecutor." The grand jury decreased in importance in this period, but process by information (direct accusation by a justice) expanded. 44 Petit juries, for their part, returned fewer acquittals and, at any rate, were dealing with a more limited range of offenses. Tudor Parliaments enlarged the range of offenses subject to summary trial by enacting statutes that placed many more crimes within the jurisdiction of justices of the peace sitting in petty sessions without a jury.35
Of more importance to the present inquiry is the revival and employment of far more potent institutions at very much the same time that overseas expansion was being contemplated. Henry VIII made free use of his prerogative to issue "Commissions of Array" ordering his nobles to raise forces to subdue disorderly elements of the population.36 What is significant about Henry's orders, however, is that they were not directed against insurrectionaries alone; rather, these armed forces were also directed against "strong vagabonds." Henry's successors did not depart from this trend, and under his daughter Elizabeth the use of the militia to maintain civil order accelerated.37 London in 1570 appointed armed officials to rid the city of "rogues, vagabonds, and maimed soldiers," and by 1589 every county in England had adopted a similar practice: each had a provost-marshal commissioned to 45 apply martial law to demobilized soldiers who had not secured a passport for their journey home, as well as to "vagrant and masterless persons and sturdy vagabonds."38
This penetration of martial law into civilian society is noteworthy as prelude to the settlement of Virginia, but it was only part of a more general crackdown on disorderly lower classes that also had resonances in early Virginia. The English poor laws were far-reaching and comprehensive, but one novel and intriguing feature was the effort to rid the realm of such misfits by penal servitude beyond the borders. When the crisis of disorder reached a peak in the 1580s and 1590s, Elizabethan judges at the assizes were directed "to certify the names and crimes of those convicted at the gaol deliveries, in order to their being committed as prisoners to the galleys." Galley service was a serious punishment, to say the least. It was symbolic of the oppressiveness of Continental justice and is sometimes cited by historians to show how different England was at that time for not having used such a sanction, and , by extension, how a libertarian impulse lay imbedded in the nation's settlement of overseas colonies. But the intent of this order is unmistakable enough, whether or not it was put into widespread practice. Galley rowers were referred to in England as "slaves," and in 1589 Sir John Hawkins -- at this time also taking part in other Atlantic activities -- presented his estimate of expenses 46 to the Crown for the charge of "maintaining the galley Bonvolia, when she saileth the seas." Hawkins estimated that there would be "fifty banks in the galley which will require 150 slaves."39
England's use of galley service was not inconsistent with other ideas that combined national security with domestic order. The poor law of 1597 (39 Eliz. I, c.4) reveals how galley servitude was seen as closely related to servitude in the colonization efforts then going on in Ireland and being contemplated for Virginia. Section 4 of that acts reads, in part, that incorrigibles who "will not be reformed of their roguish kinde of life" by whipping or by the house of correction could be
banyshed out of this realm and all other the Domynions thereof, and at the Charges of that Country [i.e., county] shall be conveied unto such parts beyond the Seas as shalbe at any tyme hereafter for that purpose assigned by the Privie Council … or otherwyse be judged perpetually to the Galleys of this Realm ….40Galley service, compulsory labor, and colonization of the borderlands, therefore, were linked together as a coherent policy 47 by those grappling with foreign and domestic threats.
The attitude behind this policy toward labor and crime grew out of a tradition firmly rooted in the English mind, and which would be effectively transplanted in Virginia. Yet it would flourish in the New World with particular vigor because its transplantation coincided with another English phenomenon -- the aptly named "Tudor revolution in government" that reinvigorated old institutions and created new ones for the better governance of the realm.41 For the purposes of the present study, the more relevant a aspect of this phenomenon concerned the Henrician efforts to suppress dynastic challenges and religious resistance, especially in the frontier areas of the North and West where the Crown's control could not be direct or personal.
Far from London -- precisely the situation that would obtain in Virginia -- it was necessary to delegate broad Powers to local magnates. Close historical correspondences exist, therefore, between the Virginia experience and the manner in which the Crown pacified its hinterlands in the North and West, and colonized its frontier in Ireland. The enforcement of royal policy -- including many royal judicial powers -- through the Privy Council was proving to be an effective method of imposing social and political control over areas closer to London. Henry VIII sought, through loyal nobles elsewhere, to suppress local disorder by placing such men in control of similar conciliar 48 bodies such as the Council in the North, the Council in Wales, and the Lords Wardens of the Northern Marches. Conciliar justice was swift and was not bound by juries or the protections of regular common law prosecutions.
The procedures followed by the Council in the North are representative and illustrative. Meeting quarterly, the president and Council were supposed to follow common law procedures for serious offenses such as treason, murder. and felony, but were to apply the conciliar Star Chamber methods of bill, witness, and examination to every other offense. In practice, however -- and without protest from the Crown -- the President and Council more usually followed Star Chamber methods in every type of prosecution, dispensing with the need for a grand jury indictment or petty trial.42
But the North was not only distinguished by its disorderly English subjects. On the Scottish border, it also suffered from the depredations of marauding Scots. Theft by Scots was a considerable problem, and so, too, was escape by English felons into the neighboring kingdom. For these reasons, there existed in the North another powerful judicial institution -- those judicial meetings of the Lord Wardens of the Marches, the three administrative units along the Scottish border. The Crown, delegating authority there to the wardens and their deputies, was most concerned with "march treason," activities imperiling the 49 realm or endangering Peace between the two kingdoms.
Technically, the warden was barred from duplicating the judicial; activities of the assizes, but the assizes reached the North only once yearly, and wardens therefore were free to interpret "march treason" loosely. According to the closest study of that officer, "within his own march [he] was like a king of Israel during the absence of Elijah. He had an absolute free hand in the sphere of 'March Treason.' for he could practically himself determine what was March Treason and what was not."43 In point of fact, he did so, and might summarily condemn and execute malefactors.
The Tudors, aware of their inability to obtain full obedience from the border barons who dominated the outlying marchland areas of the realm, had learned to strike a compromise between their ideal of centralization and the reality of fractious border barons whose loyalty was as tenuous as their own ambitions were great. It made sense to Henry VIII, as well as to his daughter Elizabeth, to accept reality and to permit such men to continue exercising their enormous local powers in exchange for a formal royal benediction; local marchland powers, blessed with the imprimatur of a royal commission, satisfied both crown and magnate. Yet the shape of justice in the marches followed local inclinations rather than royal imperatives. Close, centralized control was impossible.50
The experience of the marches is a surprisingly neglected antecedent of English colonial activity, perhaps because the first colonial adventurers did not come from the North. Nevertheless, the records of the Virginia Company amply demonstrate examples of situations and remedies analogous to those seen in the marches. There, as in Virginia, we see crimes committed by individuals against a neighboring nation, with summary justice, or with hostage pledges given to assure the return of an offender and thereby keep the peace on a volatile frontier.
The Spanish wars of the late sixteenth century added fear of invasion and Catholic-inspired insurrection to a nation already uneasy about internal disorder. Elizabeth I, therefore used the threat of foreign invasion to bolster the forces of public order and prepare the nation for subversion or invasion. She extended martial law across the realm: by 1589 she had established a provost-marshal in every county of the realm, each officer authorized to apply martial in cases of social disorder. Lawyers in the common-law tradition opposed and criticized the office: to William Lambarde, it was a creation of "imperial or Roman law" and unwelcome in England.44
At the same time, the desperate crusade to conquer Ireland in the later Tudor period led Elizabethan officials to extend these same arrangements across King George's Channel. Ireland 51 stood not only as a strategic threat (that is, as a steppingstone for a Spanish invasion), but it also loomed as an attractive active opportunity for the expansion of England's landed aristocracy. Elizabethan leaders spoke in admiring terms of the island's vast and unexploited acreage, its deep and good harbors, and its availability as a haven for England's troublesome unemployed -- in terms, incidentally, much like those soon to be applied to Virginia.45 Generations of habit had taught English adventurers, however, that colonization of border marchland required stern discipline if the colonizing population were to be reliable as laborers and defenders of the soil. By the turn of the seventeenth century, as the Tudors completed their military conquest of the island, England was extending its grasp across the Atlantic to Roanoke, and many of the same men who had invested money and effort in the Irish conquest would be intimately involved with the North American enterprise.46
It was from Ireland, accordingly, that the Virginia colonization experience would draw its most influential patterns of justice. Thanks in large part to the excellent work of David Beers Quinn and his students, we now know a great deal about English treatment of the native Celtic population, and how it prefigured English attitudes toward, and treatment of, the native 52 Amerindian population.47 Yet that dimension of the Irish background is less pertinent to the present study than the effort to understand how English colonial promoters and leaders would control other English settlers. How, in other words, did the leaders of national expansion regard their fellow Englishmen transplanted across St. George's Channel to Munster or Connaught, and across the Atlantic to Jamestown or Henrico?
Significantly, English promoters and adventurers viewed the experience of transplantation as a process of degeneration. According to Edmund Spenser (who served in many official positions there, most notably as secretary to Lord Grey, the Deputy in Ireland), the English born and reared in Ireland had become "much more lawless and lycencious, then the verie wilde Irishe." he attributed the decline to weak discipline and the resulting "libertie and ill example" of factious governors.48
The Anglo-Irish, therefore, required stern discipline, and their charter liberties meant little to such men as Sir Humphrey Gilbert trying to subdue and pacify the island. To Gilbert, an ardent supporter of the Crown and prerogative rule, "the Prince had a regular and absolute power, and that which might not be done by the one, I would do yt by the other in Casez of 53 necessatie."49 His suppression of the Munster rising in 1569 was notorious even for that violent age, but his policy in terrorem so effectively restored English rule that it earned him a knighthood the next year. Gilbert, of course, did not use the same methods against the English there, but he made clear his attitude toward their status: they were feudal tenants, not freeholders, and they were to be subject to the justice dispensed by their lords.
Gilbert's views characterized other men interested in colonization. Sir Thomas Smith, well known now for his treatise de Republica Anglorum, also took a keen interest in the Irish enterprise. Smith, though hardly a Gilbert, shared the common attitude that colonial tenants must be strictly disciplined. To Smith, England ought to follow a Roman model of colonization, with the native population displaced by an emigrating society of tenants bearing military obligations. Every colonist was to bear arms in defense of the colony, and would forfeit his land if he failed to do so.50 Such men were not freeholders: rather, they were like the population he described in Chapter 24 of the First Book of de Republica: besides the three estates of monarchy, barony, and ye yeomanry, there was a "fourth sort of men which doe not rule." According to Smith, "These have no voice or authoritie in our common wealth, and no account is made of them 54 but onlie to be ruled, not to rule other."51 This category does not exactly correspond to the debased Virginia servants of the early colony, for Smith's "fourth sort" might hold petty office if no gentleman could be found in a particular area, and they possessed full legal rights. Nevertheless, Smith also gave consideration to the creation of yet another lower class, that of "bondmen," whose existence he denied (albeit inaccurately) in contemporary England. But their presence, historically, had been important and necessary; their role, much like that of the colonists in Ireland. was "that the countrie being evill, unwholesome, and otherwise barren, should not be desolate."52
The establishment of colonies in Ireland, therefore, followed the major currents of English borderland administration and led to the creation of governmental sub-units that possessed varying -- yet always great -- degrees of autonomy. From the most basic level of government on up to that of viceregal administration, those English officials who administered justice in Ireland acted with little or no external constraint. Manorial organization, for instance, permitted landlords to conduct their own courts leet where royal officials could not interfere and where, of course, the common law did not apply. In the Munster plantation, conciliar justice obtained, while many of its leaders naturally inferred that they possessed the authority to use 55 martial law if necessary -- and necessary it was, in the eyes of those who would make the decision to use it. To Captain Thomas Lee,
martial law is very necessary, and (in my opinion) ought to be granted to all governors of remote and savage places where your majesty's laws are not received …. until such time as the people shall become civil, and embrace the laws, and peaceable living.53Conformity to English patterns, of course, remained the ideal, but for the leaders of the Tudor and early Stuart ventures such precedents offered variety and flexibility rather than any particular model. Even when the outward forms of common law institutions and procedures were established, as they were upon the shiring of northern Ireland, there came no guarantee that the common law could resist the will of local magnates. Courts were held in the households of landlords, and juries frequently bowed to the pressures of openly implied force.54 Successful or not from the Crown's perspective, the Irish pattern demonstrated to ambitious Englishmen that provincial justice was a malleable quantity, capable of being adapted to their needs of land acquisition and labor control.
And it was not, significantly, incompatible with the needs of the Crown, either. English monarchs jealously guarded their 56 own prerogatives in granting patents for land and government in distant areas, but as long as the border regions produced a revenue for the royal Treasury and did not overtly assume powers repugnant to royal authority, they consistently allowed marchland barons and entrepreneurs to develop those methods of government and administration that suited local needs.
It should not be surprising that such attitudes toward labor and the maintenance of public order among an unruly population would be applied to transoceanic ventures. What is surprising is that some historians, including some of great distinction, are still gripped by the Whig notion that when Englishmen transplanted their institutions across the sea to Virginia the colony received the common law and the way it applied to yeomen and gentlemen.55
Gilbert, fresh from his triumph in Ireland, turned to the Newfoundland area as opportunity for another feudal barony. That enterprise can scarcely be seen as the transplantation of liberal ideas -- even by sixteenth-century standards -- but rather must be seen in the context of exporting England's problem population of idle vagabonds and sternly whipping them (literally) into a productive unit. Certainly, this is the model envisioned by such promoters as Hakluyt, who in 1584 recognized that the poor laws and proclamations against vagabonds had failed "for want of sufficient occasion of honest employment." These people in 57 England, he wrote, were prone to disorder and violence. They
can hardly lyve by one another, nay rather they are readie to eate upp one another; yea many thousands of idle persons are within this Realme, which havinge no way to be sett on worke be either mutinous and seeke alteration in the state, or at least very burdensome to the common wealthe, and often fall to pilferinge and thevinge and other lewdness.56Two points in this statement are noteworthy. One is the disorder of a potentially insurrectionary population. To many thoughtful English, a dangerous situation might be solved by exporting the source of the problem. Second, Hakluyt was not talking about opportunities for the downtrodden to become sturdy yeomen freeholders. The phrase "be sett on worke" is, rather, suggestive of houses of correction and other compulsory labor.
Ideals of individual liberty did not motivate any of the leaders of England's sixteenth-century colonial ventures. That they did not do so is clear from two documents published in the same general period that Gilbert (and later his half-brother Sir Walter Raleigh) were trying to establish North American colonies. Edward Hayes, proposing that the rich Newfoundland shore be exploited by a fishing colony, suggested that the area be fortified militarily and protected by a fleet of galleys manned 58 by convicts.57 Christopher Carleill, composing his "Briefe and Summary Discourse upon the Intended Voyage to the Hithermost Parts of America" for Gilbert in 1583, commented on the same problem of idle youths that Hakluyt did. Carleill noted the benefits to be conferred by work and cited his "owne experience" of how it had benefited youths he had seen. It is vital to emphasize, however, that Carleill had seen this happen during their military service in "the warres of the lowe Countreys" -- that is, when they were subjected to the discipline of a provost marshal beyond the seas.58
Gilbert's plan for Newfoundland implemented the ideas prevalent in England at the time. Its historical commonplace to point out that his grants of authority in 1578 and 1582 provided that "statutes lawes and ordinances may be as nere as convenyently may be agreeable to the forme of the lawes and pollicie of England."59 Such "lawes and pollicie of England" at that time were scarcely libertarian, or even consistently within the common law.60 Moreover, the vaunted prohibitions against "tortures, martial law and attachment of their persons for 59 actions real and personal" applied only to "Associates" and "Assistants," those individuals who had ventured more than fifty pounds sterling and who, at their own expense, brought laborers to the colony. This latter group, although entitled to jury trial, were subject to all other features that such a status in England meant.61 The Gilbert colony in Newfoundland never took actual form, for Gilbert -- perhaps to the benefit of the English laborers he would have brought, and certainly to that of the Indians who would have been treated like the Celtic Irish -- vanished when his ship foundered returning from Newfoundland.
Gilbert's disappearance temporarily halted England's overseas ventures, and it did not deflect the general thrust of colonization. Rather, its abortive character bore the indelible imprint of a pattern of borderland administration that would, irresistibly, reappear in Virginia.
England turned its colonization southward after Gilbert. There, economic prospects far exceeded the limited potential of the frigid North Atlantic coast. The mid-Atlantic also offered a strategic location at the edge of the Spanish empire and afforded English raiders an attractive haven. Roanoke, therefore, stood more as an attempt at "territorial dominion," as one historian 60 has called it, than a true colony.62 Roanoke was to be a base for privateering -- a predatory effort aimed at displacing the wild "naked men" who lived there and at plundering Spanish dominions. Its administrative structure closely resembled that of the very Spanish regions it was aimed at.63
Not surprisingly, discipline at Roanoke, the most distant of England's hinterland areas, would follow harsh military lines. Raleigh, the most important influence shaping the enterprise, had been made Lord Lieutenant of Cornwall as well as Lord Warden of the Stannaries in 1583. In these capacities he commanded the Cornish militia and presided at the powerful court that regulated affairs in the rough mining communities of Cornwall. Raleigh, in addition, had helped suppress Desmond's rising in Munster where he made the acquaintance of Edmund Spenser. Altogether, these experiences served him well in establishing a government for Roanoke. Governors Ralph Lane and Richard Grenville were military officers whose control of Roanoke was consistent with their backgrounds. Lane imposed a severe discipline while at sea and did not alter it when the group landed.64 Despite his own harsh discipline, however, he regarded Grenville's as even worse, complaining later of "the tyrannical conduct of Grenville from 61 first to last" in the New World.65
The Roanoke colonies left few records of life and justice there, and the latter effort vanished as completely as Gilbert did. It is directly to the Chesapeake, therefore, that historians must turn for evidence of how English laborers were to be controlled in America.
In turning to Virginia, it must be recalled that the granting of the Company charter in 1606 took place amid the much awaited decision in Calvin's Case. Although North America figured not at all in the case, the decision had unavoidable implications for the colonies: the provinces across the sea, as conquered lands, would be subject to the absolute prerogative of the Crown. The Virginia patent of 1606 reveals this legal concept clearly, as James kept control of the Company in London through a council that he appointed.66 Whenever Virginia law was to be scrutinized for conformity to English law, it was against the king's law that they were measured -- "It beinge not fitt," said the Company in 1620, "that his Majesty's subjects should be governed by any other laws then by such as shall receave 62 influence from his Majesty."67
Notwithstanding James's desire to place no limits on his own prerogative, the "Articles, Instructions, and Orders" issued for the colony on 20 November 1606 did specify that for "the good government of the people" the colony's laws be "as neer to the common lawes of England and the equity thereof as may be."68 Yet the mention of these "common laws" should be seen in context. In the provinces the common law had only begun to undergo the transformation that would elevate it, by the time of the Civil War, into a universal body of legal principles to protect individual liberties through due process or to guarantee the legal restraint of power. In the provinces at the turn of the seventeenth century, the common law was better described as it had been in 1540:
our law ys infynyte and without ordur or end. Ther is no stabyl grounde therin nor sure stay, but everye one that can coloure reson makyth a stope to the best law that ys before tyme devysed. There is no stabyl ground in our commyn law to leyne unto and the jugys are not bounden, as a rule, but aftur theyr owne lyberty that have authoritye to juge as the cyrcumstance of the cause doth them move.6963
Rather, there remained within English law a powerful tradition of judicial discretion as well as acquiescence in localistically variant systems of law. The common law -- whatever it was in 1606 -- did not penetrate very far beyond the central courts at Westminster, and its impact was slight at the local level even close to the capital.70 Certainly, it did not reach to Virginia, whose first leaders were nothing other than a marchland council closely akin to that of Wales or the North. The charter made it clear that justice was in the hands of the council. True, the charter provided that all colonists and their children "shall have and enjoy all liberties, franchises and immunities within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande or anie other of our saide dominions."71 Far from providing the common law, however, this clause was a citizenship provision guaranteeing that the colonists and their children would be considered as under the natural protection of the monarch and entitled as well as subject to his laws.72 We ought to observe that these included "liberties, franchises, and immunities" -- the language of local privileges and the enjoyment 64 of local law beyond the common law. Legal rights, therefore, were still private matters, defined by one's personal status within the Company -- whether stockholder, official, or servant. English law. we must let Sir John Neale remind us, had its origins in the feudal notion "that all rights were private rights. Even the King's rights, though more extensive than others, were private not public."73
Virginia law, then, had a broad variety of English legal systems upon which to pattern itself. Even before population growth and the tobacco boom burst the bonds of compact settlement, therefore, the justice system of colonial Virginia held within it the seeds of political devolution and legal variation. In addition to the legacy of local devolution, the men who came to Virginia as its first leaders -- the president and council resident in the colony, as named by the council in London -- possessed explicit permission to innovate and adapt and, where necessary, to reject entirely the specific orders of the company.
It is a convention of Virginia historiography to contrast what is said to be the structural weakness of the first charter (1606-1609) with the strong leadership of the second and later charters. Control in 1607 was vested in a Council and in a President who was merely a chief among equals. For that reason, we are told that Presidents Edward Maria Wingfield and John 65 Ratcliffe were weak and ineffectual, and that their administrations lacked the power to enforce the discipline needed for the new settlement effectively to establish a beachhead and survive.
But the problems of leadership at Jamestown had less to do with intentionally weak governmental institutions than with the personal status of the men who administered the system. In the first place, the charter government was no less powerful than the Councils in the North and in Wales. Their presidents, too, were technically primus inter pares with little independent power to act on their own.74 Moreover, the powers of Virginia legal institutions were little, if any, less than those of the potent and effective conciliar bodies. Historians routinely note that the "Instructions for Government" guaranteed that offenders be tried by "twelve honest and indifferent persons," but they just as routinely fail to note that this provision applied only to capital crimes. Other than those accused of felony, defendants were to be tried "summarily, and verbally without writing."75
Virginia criminal justice under the first charter, therefore, had undeniably "English" precedents; but "English" precedents do not necessarily mean "common law" precedents. Rather, it was English conciliar justice that would be applied for those offenses most usually encountered. It is meaningless 66 to state that the charter's guarantee that all colonists enjoy the rights of Englishmen born and residing in England meant common law protections. The common law was not the only law in England, and on the frontiers it was conciliar justice that ruled. Commissions to the presidents and councils in the North, for instance, commonly speak of "leges et consuetudines regni nostri Angliae" ("the laws and customs of our realm of England") and permit departures in case of necessity. We must recognize that such a concept, with its many competing systems of law specific to different areas and circumstances, stood as precedent for flexibility in the creation of judicial bodies and procedures.76
Nevertheless, there is no doubt that the regimes of Wingfield and Ratcliffe were ineffectual. But social reasons endemic to the New World account for this. Wingfield and Ratcliffe were weak rulers simply because they did not have the personal prestige that, within a mature and stratified society such as England's, would have permitted him to dominate a divided council. Presidents of the Council in the North also had divided councils, but their personal social standing (as well as their wealth and retainers) usually overcame such difficulties. By contrast, the first Virginia presidents had no such status or personal following. President Wingfield, for example, would be humiliated by an artisan and sneered at by his Councillors 67 precisely because of his low social standing.77 He had been knighted only to try to confer the necessary status on the man and the office, but it did not work. It was an artificial status without any basis in fact or custom to merit deference. Yet Wingfield's problems and weaknesses were not shared by the Council when it wanted to act. Councillor George Kendall was condemned by a jury and shot in 1608 merely on the suspicion of spying for Spain, and it is not clear that he was convicted according to the common law requirement of two witnesses. The only accuser of whom we have record is James Read, the artisan who had insulted Wingfield, and who made his accusation while standing on the gallows awaiting execution himself. Kendall was troublemaker in the colony, and previously had been tossed summarily into prison for trying "to sow discord between the President and the Council."78
If the role of the common law in Kendall's two brushes with authority is unclear, less uncertainty attaches to the condemnation of John Smith that same year. The "Instructions for Government" specified as capital such crimes as "tumults, rebellion, conspiracies, mutiny and seditions … together with murther, manslaughter, Incest, rapes, and adulteries … (and noe other)." Smith was "indicted," he informs us, most probably 68 for manslaughter. But the definition of manslaughter used at his "tryall" was not that of the common law; rather, it derived from "a Chapter in Leviticus" holding him responsible for the death of two men killed by the Indians while under his command.79
The period of the second charter (1609-1618) witnessed an acceleration of the flow toward great discretionary power in judicial institutions. The Company, successfully raising a large new common stock to finance the enterprise, wished to protect its investment and to convince investors that their money was not being wasted on a disorganized, poorly run venture. Discipline must be demonstrated. To put the colony on a firm footing, the Company appointed Lord De La Warr to the newly created office of governor. De La Warr did not join the fleet that brought the new charter to Virginia in 1609, and Sir Thomas Gates acted in his stead. While awaiting De La Warr, Gates was to take possession of all prior letters patent and instructions and "dispose of them in the future according to your discretion."80
Gates, therefore, brought with him a mandate for firm control. If he needed any other incentive to assert strong leadership, his experiences reinforced them. Shipwrecked in Bermuda, Gates learned immediately how precarious life could be in the new World. He arrived in Virginia, moreover, to find the colony in a state of confusion. Taking his instructions 69 literally, he proceeded to act "rather as a Chauncelor then as a judge." He was authorized to create his own personal guard and to appoint lesser officials -- unspecified as to powers or number -- as needed. The Company, acknowledging the protean nature of a frontier settlement, authorized him, too, to "make, adde or distinguishe any lawes or ordinances at your discretion…" Although the instructions hedged such a grant by specifying laws "accordinge to the authority limited in your Comission," the Company concluded its order to Gates by giving him a virtually unlimited commission: other than limiting his authority to name a successor, the Company explained that
we doe by these our lettres instructions binde you to nothinge so strictly but uppon due consideration and good reason and uppon divers circumstances of time and place wherein we cannot here conclude you may in your discretion departe and Dissent from them and Change alter or establishe execute and doe all ordinances or acts whatsoever that may best conducte the glory of god, the honor of our Kinge and nation and the good and perfect establishement of our Colony.A magna carta for baronial tyranny, Gates's instructions would remain in spirit as the dominant force behind the colony's legal development in its first decades.81
Gates did not fail to take advantage of the powers given him, and he promptly issued a set of laws to reorganize work and 70 society in Virginia. His training fitted him well for his task and guided his work. He had served as an officer in Ireland, where the Earl of Leicester had drafted a model code of military law, and he had studied the common law at Gray's Inn. The rules he set out shortly after his arrival, however, demonstrated his military rather than common law training.82 Gates formulated his laws to impose discipline on the working population of Virginia, and they expressly set out the lines of authority there. Officers and ministers were to be obeyed without question. Law #13 covers the intent most fully:
No manner of Person whatsoever, contrarie to the word of God (which tyes every particular and private man, for conscience sake to obedience, and duty to the Magistrate, and such as shall be placed in authoritie, over them[)], shall detract, slaunder, calumniate, murmur, mutenie, resist, disobey, or neglect the commaundments, either of the Lord Governor, and Captaine Generall, the Lieutenant Generall, the Martiall, the Councell, or any other authorised Captaine, Commaunder or publike Officer, upon paine for the first time so offending to be whipt three severall times, and upon his knees to acknowledge his offence, with asking forgivenesse upon the Saboth day in the assembly of the congregation, and for the second time so offending to be condemned to the 71 Gally for three years: and for the third time so offending to be punished with death.Gates's laws form the first section of the famous Lawes Divine, Morall and Martiall that would take form in the following years.83
Lord De La Warr arrived in Virginia, as is well known, just as Gates had decided to abandon Virginia after the winter of 1609-1610 (forever known as the notorious "Starving Time") had left the colony in a shambles. De La Warr turned back Gates's fleet, restored the colonists to work, and assumed command of the enterprise. De La Warr's own instructions gave him virtually dictatorial power and jettisoned even the intention to establish the common law of England. As the Company instructed,
We holde it requisite that your Lordship in causes of civill justice, proceede rather as a counsellor then as a judge; that is to saie, rather uppon the right and equitie of the thinge in demaunde then uppon the nicenes and letter of the lawe, which perplexeth in this tender body rather then dispatcheth causes. Soe that a summary and arbitrary way of justice, mingled with discreet formes of magistracy as shall your discretion seeme aptest for your Lordship to exercise in that place, wilbe of most use both for expedicion and example and for criminall causes, you are to deale therein 72 according to your comission and good discretion.84
A stern legal system, therefore, was in place by June of 1610, when De La Warr arrived, and it continued in force after his departure. The unhealthy conditions of the James River settlement, which had sapped the vigor of the colony and sent hundreds to their graves, sent De La Warr back to England in less than a year, but they did not change the course of legal development. De La Warr chose George Percy -- a hardened military veteran and fierce Indian fighter -- to serve as deputy governor and "To execute Marshall lawe or any other power and Authority as Absolute as himselfe." A month later, in May 1611, Sir Thomas Dale arrived as the colony's first marshal. The highest legal official in the colony under the system of martial law, he also took over executive duties from Percy as acting governor. 85
Part of his duties as marshal involved providing a legal code for the colony, which he issued on June 22. This body, to which his name attaches, forms the bulk of the famous Lawes Divine, Morall and Martiall that explicitly shaped the colony along semi-military lines. As explained by David Flaherty, not all of what is commonly called "Dale's Code" was Dale's own creation. The laws appeared barely a month after his arrival and 73 bear clear indications of having been drafted in England before his departure. In addition, they included Gates's laws, too. Altogether, about three-fourths of "Dale's Code" can be attributed to the marshal.86 What is important to note, then, is that these laws were not a temporary aberration, drafted under desperate conditions by a military officer facing starvation and the destruction of everything under his command. Rather, they continued a process long underway.
The Lawes governed the most minute activities of an army in the field. Dale, as an experienced soldier, knew the importance of camp hygiene and responded to the dreadful death rates of the preceding years by requiring, for example, that his charges maintain "sweete and cleane" living quarters; he even specified where people were to "doe the necessities of nature." The most famous provisions, of course, are those putting the colony on an explicitly military footing with regard to conduct and organization. Ordering all laborers to begin work at the "beating of the Drum" and to continue until the drummer ended the work day, it established a rigorous work regimen along the lines of an army in the field rather than according to the intermittent patterns of work and rest more characteristic of English agrarian society.87
This regimentation of work, it must be emphasized, departed 74 sharply from the way in which work and servitude were regulated in civilian society. It also provided the framework for a full-scale regimentation of society along such military lines. The Lawes, contrary to much received historical wisdom, did not apply their military dimension only to the battlefield or to situations of emergency. Rather, they included an elaborate set of "Instructions" to the marshal in organizing his subordinates -- captains, lieutenants, ensigns, sergeants, corporals, and privates -- to control every aspect of life. It was necessary to provide for such a distribution of centralized authority "in every army, commonwealth, or Colonie (all bodies alike compounded)…"88 Virginia would be no different; if such was needed in the courts of "a well setled State, much more sure as it [is] required, to be in their beginnings … ." Captains were to instruct the drummer to call "every labourer to his work" and to assure the performance of their duties. Each ensign was to "make it his duty, to be a diligent not onely overseer, but labourer himselfe … that the necessary and daily taskes of such workes and husbandry … may be in due time accomplisht and brought to passe." Every inferior rank below lieutenant had the same charge, down to the lowliest private, who "shall doe his best indeavour like a painfull and industrious servant of the Colonies to discharge his duty… ."89 It fell to military officers to settle quarrels among laborers; if they concerned 75 money, the marshal was to "preferre for the creditor a bill of complaint at the Marshals Court, where the creditor shall have justice."90
The marshal's Lawes, with their establishment of justice along military lines, left an enduring imprint on the legal culture of the fledgling society. Gates, entirely in sympathy with Dale's efforts, returned to Virginia in August 1611 and, undoubtedly, continued the martial code. Early in 1614 he turned command of the colony once again to Dale, who led the colony until the arrival of George Yeardley in mid-1616. Yeardley has been widely credited with ending the martial regime, but, significantly, he is said to have done so only in 1619. In the meantime, Samuel Argall assumed the post of governor and explicitly re-invoked the Lawes in 1617.91
Yeardley's supposed benevolence in revoking Dale's Code rests upon slim -- and arguable -- evidence. In the first place, the tribute came initially from a highly biased source: the so-called "Ancient Planters" who made the claim in 1624 as a way of discrediting the faction of the Virginia Company responsible for leadership of the colony in those years.92 In the second place, 76 the idea places too great an importance upon the "Great Charter" of 1618, which probably ended martial law but hardly established the common law. "The rigour of Martiall Law, wherewith before they were governed," it was later claimed in promotional literature, "is reduced within the limits prescribed by his Majestie: and the laudable forme of Justice and government used in this Realme, established, and followed as neere as may be."93 What this means is simply that martial law (which only applies outside England) was ended and that the traditional form of borderlands justice within the realm would be followed. From the course of the law in the next decades, it is quite clear that broad and discretionary power continued to rest in the hands of local magnates, who continued to rule in a manner only slightly different, if at all, from the arbitrary military-influenced system of the marshal.
Ironically, the "Great Charter" would have a greater impact on the colony's legal development by decentralizing authority in sub-units of local administration than by providing any substantive legal principles.
By the time the Virginia Company issued its second charter in 1609, settlement had spilled over from Jamestown Island into 77 several other "Forts and Plantations," as John Smith described them.94 Stretching from Point Comfort at the tip of the peninsula to the falls of the James, they also reached across the river and penetrated the Nansemond River basin, too.95 The structure and operation of these settlements has eluded historical description because they have, quite simply, left almost no records. Contemporary accounts are few, as most descriptions that have come down to us are the product of the fierce factional squabbling that lambasted management of the colony. We have indictments aplenty of oppressive acts by councilors, as their opponents appealed to the Company in London for support in gaining the upper hand of the colony.96 But we have much less indication of how conciliar power translated into practices and power wielded beyond Jamestown.
Perhaps we will never obtain such knowledge, but enough information can be gleaned to suggest some tentative answers. In the first place, the units of local administration were not so strictly defined as to have any one name even to describe them. Their purpose was both military as well as economic, and for that reason Smith chose to label them "forts" and "Plantations." But we also see them called "hundreds" (West Sherley Hundred) and 78 referred to in ways suggestive of English manorial habit (Martin's Brandon). Their leaders, therefore, fell into two categories: military commanders and manorial lords. While the commanders could -- and did -- apply martial law, the proprietors possessed the broad instruments of franchisal justice -- that is, to conduct courts for their own profit (from fees) and for the protection of their interests as landlords. Franchisal courts possessed extensive discretion; by English legal practice, they were limited only by their adherence to the terms granted them, the broadly construed notion of public welfare, and consistency with royal interests.97Despite the undoubted authority of the governor and council, these sub-units possessed considerable autonomy and, it is quite likely, went their own way with regard to any system of justice. One settlement, though exceptional, gives tantalizing hints to support such speculation.
John Martin, the son of a London goldsmith and backer of Sir Francis Drake, had sailed with Drake and arrived aboard the Godspeed with Christopher Newport's fleet in 1607. When the Company's instructions were opened on arrival at the Chesapeake, Martin was named as one of the colony's first councilors. Well acquainted with the potential of the New World, Martin was the lone dissenter opposing the abandonment of the enterprise after the "Starving Time" in 1610. And well he should have clung to the New World, for Martin already had seized the potential of the 79 colony's isolation and the opportunity for independent aggrandizement. Instrumental in getting Governor Wingfield deposed and a rival shot to death (after a trial that ignored charter-mandated procedures), he and John Ratcliffe assumed virtually unchallenged control of the colony until Lord DeLaWarr arrived and promptly removed him from the council as "a most unworthie person."98
Martin's significance for us here is not his high-handed style as councilor; rather, his subsequent career is worthy of closer examination for it reveals to us the way in which someone not of the council was able to use the inherently centrifugal force of English local development to erect for himself a secure and autonomous plantation. It took Martin several years, but in 1617 he finally obtained for himself the kind of autonomous local authority to put him, for all practical purposes, beyond accountability.
Undoubtedly through the influence of his brother-in-law Sir Julius Caesar, Martin obtained a patent that enabled him to set out on his own to exploit the human and natural resources of the region. He received the right to "free trafick in the Bay and Rivers" -- an extraordinary grant, inasmuch as it allowed him to 80 create an alternative economy beyond the control of the Company -- and broad legal powers over his servants. According to the patent, Martin was free to run his plantation "in as large and ample manner and to all intents and purposes as any Lord of Mannor here in England." Martin's Brandon was even put beyond the administrative control of the Council in all but the most serious of matters, military necessity: he was free, as the patent said,
to govern and comand all such person or persons as at this time he shall carry over with him or that shall be sent him hereafter free from any comand of the Colony except it be in aiding and assisting the same against Foreign or Domesticall Enemy.99Martin put his privileges to good use and turned Martin's Brandon into a notorious haven for men seeking to elude the Council -- to frustrated authorities, it became "a receptacle of vagabonds and bankrupts and other disorderly persons," a refuge "where such as are indebted do shroud and rescue themselves under his protection."100
Martin's grant was truly exceptional, however, and we should be cautious before generalizing about other plantations from it. Yet its exceptional nature ought not obscure the tendency it embodied: the persistent aggrandizement of authority into the hands of petty local magnates. Indeed, the broad authority 81 conferred in Martin's patent must be seen as a backdrop to the events of 1618, when the so-called "Great Charter" overhauled the organization and management of the colony. Often credited with bringing the common law to Virginia -- although it did nothing of the kind -- the charter of 1618 can be credited with something scarcely less significant in the modernization of justice in colonial America by sweeping away, at a stroke, the sort of franchisal baronial divergence that Martin's Brandon constituted. We have no copy of this document (which certainly makes any constitutional talk about the common law rather speculative), but the instructions sent with Governor George Yeardley that year contain certain explicit provisions that indicate what was being corrected. Significantly, Yeardley was directed to organize the colony's existing plantations into a uniform system of "four cities or burroughs" and to consolidate the varied settlements "into one body corporate … under equal and like law and orders with the rest of the colony."101 Never given credit for what this properly accomplished, this clause ended forever the legal basis for proprietary justice or local judicial franchises, and it laid the basis for an ideal of equal justice, even if such justice was, as we shall see, harsh and arbitrary. The Company also provided for the establishment of "particular plantations" organized by independent adventurers, but it barred them from going their own way legally: "equal and like law" would apply there, too.82
It was Martin who tested this consolidation when in 1619 he attempted to send two burgesses from Martin's Brandon to sit at the newly convened House of Burgesses. Unwilling to seat representatives who resisted the laws and authority of the colony, the burgesses refused to admit Martin's men and sent to England for help in quashing his extraordinary privileges. Asking that the Company "remove any such hinderance" to "the free and publique current of justice," they attacked Martin's patent as a precedent by which "the uniformity and equality of lawes and orders extending over the whole Colony might be impeached."102 Martin's patent threatened to reduce the colony government to a hollow confederation of independent baronies, and the Company could not tolerate such a loss of mastery. In 1622 it rescinded as improperly obtained his "divers exorbatant pryveledges and transcendent liberties."103
Even as the Company acted to curb decentralization, however, events in Virginia were giving an entirely unanticipated and thoroughly ironic twist to the struggle between central authority and local imperatives. The massacre that devastated the colony in March 1622 brought down the Company and, in June 1624, left its shattered institutions under the control of the Crown. Yet Crown rule only strengthened those forces undermining centralized control of the colony. Our friend John Martin, ever quick to 83 sense the potential for augmenting his privileges, had worked closely with his brother-in-law Sir Julius Caesar and others who wanted to dissolve the Company, and once the deed was done he returned to Virginia with more land than ever. Moreover, he was hard at work imploring the king to create a vast tract of forest as royal demesne, with Martin in control.104 As steward of the forest, he would apply "forest law," not the common law, and possess enormous autonomous authority. Martin's efforts failed, but once again he anticipated the course of Virginia's development, to advanced by a new group of non-Company men who had risen to wealth in the colony while the London investors went bankrupt. Uncommitted to the larger goals of the enterprise, they were the hardy survivors of the dreadful demographic realities of disease, brutality, and opportunism.105
The massacre gave these men the license of necessity to rebuild the colony along lines favorable to their own benefit. Since 1619 local planter-magnates had gained admittance to the government through their seats in the House of Burgesses. They also succeeded to seats on the Council, as the Company's own men receded from power. At Jamestown they gained control of the uniform system of justice and authority that had been intended to curb localism. The foxes, in other words, were now entrusted 84 with protection of the chicken coop. From Jamestown -- using the much greater powers of colony-wide authority -- they proceeded to advance their own interests.
The revocation of the Company charter put the stamp of legitimacy on their control. As early as July 1623 the privy Council had decided to recall the charter; in November its law officers began quo warranto proceedings against it, and in May 1624 the Court of King's Bench adjudged that no cause had been shown not to revoke it. The Virginia Company had ceased to exist, yet nothing immediately took its place.106 James's death left all affairs uncertain, and not until March of 1625 did King Charles I proclaim Virginia a royal colony.
By proclamation two months later, Charles made Virginia part of "our Royal Empire" and directly dependent upon the Crown. For the time being, no new company was anticipated, and although Charles planned to create a new London council to run his domain, he never got around to the task. Matters were left to the Privy Council, which quickly lost interest.107
Those Virginians looking forward to the Company's demise greeted the dissolution of the Virginia Company as an invitation to advancing their own interests. Yet they also recognized that their control, momentarily secure by default from London, might be overturned at a stroke by a reconstituting of the Company or the creation of an entirely new one. As a result, they took 85 steps to create a system of locally distributed powers among themselves. In that way, they hoped, the re-imposition of centralized power from abroad, by way of Jamestown, would find a well-entrenched local gentry exercising autonomous powers as in Ireland or marchland England. To that end, they made great use of the office of "commander," a quasi-military office deriving from the extension of plantations throughout the James River basin.
It was, therefore, within this context that the Assembly in City.1624 created monthly courts at Charles City and Elizabeth "old-planters" exempted themselves from war taxes and declared that only they, as the General Assembly, could levy any taxes on land or goods.108 They left their monthly courts notably vague as to procedures, but they gave to their presiding officers, referred to as "commanders," significant police powers and the authority to inflict corporal punishment or assess fines. Ominously, those "persons of quality," who were "not fitt to undergoe corporal punishment" might be "ymprisoned of the discretione of the commander."109
In practice, the monthly courts became powerful units of local administration, supervised from above only by themselves as councillors. In assuming authority, the commanders seem to have followed no well-understood guidelines, but rather to have shaped the institution according to the needs of their society. When 86 Governor John Pott issued a commission to commanders in 1630, for example, he conferred on them "full power and authority to doe, execute and performe all such matters and things as are incident and appertayning to the place and office of Commander there."110 Two years earlier he had alluded to one very significant matter, when he specified that commanders of hundreds should have control over local militia. In addition, courts could draw on the office of provost-marshal for assistance. This officer -- criticized in England for its non-common law, Roman authoritarian origins seems to have evolved into that of a quasi-military shrieval official with many duties. He notified people as to appearing in court, discharged constabulary duties, and appraised decedents' estates.111
Finally, the geographical expansion of the colony offered new opportunities and needs. As trade reached up the bay, it required the extension of authority to govern those men who carried their ventures beyond easy access from Jamestown and, indeed, beyond any hundreds or monthly courts. But the impulse to confer great power on local magnates stood available, and in 1630 Governor Pott acted to confer on any commander of a trading expedition "power to punish his men according to the Laws of the sea, Life excepted."112
Well before 1634, then, as the Virginia colony stretched deep inland and far up the Chesapeake Bay, its local leaders had provided for the extension of their authority through powerful legal institutions. Protected by habit, practice, and an English tradition of acquiescence in such devolution, they had laid the foundation for a local justice throughout the colonial South.
But the charter of 1618, which provided for particular plantations and local privileges, still presented a challenge to the control of the "sot-weed gentry" now dominating the colony. Governor Samuel Argall had been forced to concede in 1618 that "the citizens of Bermuda hundred claims the privileges granted them which he can't refuse, and he therefore cant force the artificers there to follow their arts to the great prejudice [of the] Colony." Argall's solution characterized what was happening in Virginia. for he appointed a provost-marshal for Bermuda Hundred, explaining it as a military necessity in "places of wars and garrison towns." Was this move purely a military action, taken in Argall's military capacity? There is reason to doubt that, for he was careful to add that the provost-marshal also had power to take into "safe custody all Delinquents and Prisoners of what nature and Quality soever their offences be…" and was empowered to put down "al Mutinies factions Rebellions and all 88 other Discords …" No further labor problems were reported from Bermuda Hundred, we should note.113
Unfree laborers were, of course, better yet for the purposes of labor control, and as early as 1610 a minister affiliated with the Company noted that "the basest and worst men trained up in a severe discipline, a hard life, etc., do prove good citizens." Dale, a year later, flatly requested that the government send convicted felons to Virginia; his inspiration for the plan, he unashamedly added, was the Spanish Empire.114 True, there were protests against such a strategy, but they were outweighed by the mutual advantages to be gained by a labor-hungry Virginia and an English government dismayed by the unabating problems of social disorder and crime.
The creation of a servile population, by one method or another, already had become an indelible feature of early Virginia. Indeed, there may even have been suggestion (for it was reported by the Spanish ambassador in London) that "there is a determination to marry some of the people that go over to the Virginians" -- that is, to Native Americans.115 No evidence survives to confirm this remarkable plan; but there is no need to rely on hearsay for more concrete examples of English intentions. In 1620, for instance, the City of London "appointed one hundred 89 children, from their superfluous multitude, to be transported to Virginia." In spite of the "very beneficial conditions" specified by the City, many potential transportees already knew what conditions were like in Virginia, and they actively resisted. Although the City had appropriated five hundred pounds sterling for their passage, "Some of the ill-disposed children, who under severe masters in Virginia might be brought to goodness, and of whom the City was especially desirous to be disburdened, declare their unwillingness to go," reported the City, which had to request "higher authority to get over the difficulty." The Virginia Company appreciated the opportunity and quickly obtained Privy Council authority to compel their transportation.116
The resistance shown by these children was not unique, for transportation to Virginia was feared by many. In 1620 a Somerset man claimed to have a "commission to press maidens to be sent to the Bermudas and Virginia" and had to be arrested. His "undue proceedings," reported the justice of the peace who arrested him, "breed such terror to the poor maidens that forty have fled … to obscure places, and their parents do not know what has become of them."117 In 1620 King James I sent a group of young offenders (adjudged incorrigible after being convicted and punished twice) to the Company for transportation to 90 Virginia, along with an order authorizing it to send fifty more. The Company welcomed this assistance, and the next year petitioned Parliament for more of the "poorer sort of people that encrease in multitude and swarme in all places of the Kingdome." It got its request; even after the Company lost its charter, a steady stream continued to arrive in Virginia throughout the 1630s and 1640s.118
These transported laborers came to the colony as unfree workers. Standing still lower, however, were the rebels transported as war captives. Hundreds of Scots and Irish wound up in Virginia in that matter, and little solicitude was shown them. In fact, their abject status in Virginia is indicated by reference to them as "slaves." One hundred Irish and Tories were shipped as "slaves" in 1653, and even Dutch colonists captured in the English conquest of new Amstel in 1665 were sold to Virginia as "slaves."119 For black Africans, this term by 1662 would assume a yet more debased meaning,120 but until then the system of social control and criminal justice treated all unfree laborers in roughly similar manner.
Those exploiting the situation in Virginia knew that a stern 91 system of control was necessary for imposing order upon a population of misfits, outcasts, and kidnap victims. Accordingly, the legal system offered few of the procedures and protections of the common law courts. Even before Virginia became a royal colony its leaders styled themselves as holding certain viceregal judicial prerogatives. In 1620 the Company discussed the matter of whether serious offenders ought to be sent back to London for trial or tried in Virginia. Trial in London would most probably be according to the common law, but as the Company commented in deciding to leave such matters in Virginia, "when a governor is chosen and sent thither he hath a kind of Royalle power to execute Lawes and to punishe offenders there … ."121
Prerogative justice, or military justice for that matter, was the key to maintaining social order in Virginia. As Governor Sir Francis Wyatt observed in 1623, the people of Virginia had become "so careless that he advises some commission should be thought of for a Marshal Court, at least ad terrorem, that it may do much good."122 Wyatt knew how difficult it was to achieve discipline among the rough Virginia population of freemen. Many former servants were gaining their freedom, but their higher status did not guarantee higher standards of behavior or conformity to orderly work habits. Instead, it meant the appearance of a free population no longer subject to Company or 92 household discipline, yet as unruly as ever. To the Virginia Assembly in 1619, these former servants "nowe at length have gotten the raines of former servitude into their owne swindge," and "would in shorte time growe so insolent, as they would shake off all government, and there would be no living, among them."123 Wyatt, moreover, had problems getting such people to fight and destroy the Native Americans of the region, and in 1624 he had to confess having "No small difficulty to maintain a war by unwilling people."124
How, then, maintain control over a disorderly class of free husbandmen as well as over servile laborers? One hypothesis proposes that unruly free whites were replaced by blacks permanently deprived of all personal liberties.125 Such an answer has a great deal of merit and undoubtedly describes an important historical phenomenon -- but it more accurately describes a later period. Blacks were not brought to Virginia in large numbers until after the Restoration, and their servile status did not become fully debased legally (that is, lifelong and heritable) until then. Therefore, such an answer does not explain what Virginia leaders did before the Restoration to maintain social order without the benefit of a black underclass to exploit and hold against white laborers.93
It is possible that indiscriminate brutality was the answer. Indeed, brutal repression of the lower orders was not new; rather, it had a long tradition in England, where it was wholly compatible with contemporary beliefs about human nature; social discipline, labor, and crime. Virginia leaders -- landowners and officials alike -- were hardly reluctant to duplicate it in the England's newest marchland territory on the Chesapeake. But they did so with a difference that must be emphasized if we are to understand how and why the Virginia legal system eventually came to differ from that in England. The difference was that the brutal subjugation of free Virginians and the suppression of any political dissent against such a process followed two patterns that were highly disapproved in England: the use against freemen of methods normally used only against servants, and the application of prerogative procedures in judicial proceedings.
The Virginia government was able to do so by making full use (perhaps fuller than intended) of instructions sent to its governors after 1618 -- that is, after the "Great Charter" supposedly returned Virginia to the common law. By the instructions sent to the governor and Council in 1619,
if any man be founde to live as an Idler or renagate, though a freedman, it shalbe lawful for that Incorporation or Plantation to which he belonseth to appoint him a M[aste]r to serve for wages, till he shewe apparent signs of amendment.Repeated drunkenness, an increasing problem among freemen, would 94 be punishable by "suche severe punishments as the Governor and Counsell of Estate shall thinke fitt," including degradation to servile or bond status.126 By the instructions of 1621,
the Governor for the time being shall have absolute power and authoritie according to the implication of his perticular commission to direct determine and punish at his good discretion any emergent buisnes neglect or contempt of authority in any kind or what soever negligence or contempt may bee found…These powers could not be used against Councillors, significantly, but they would be quite effective against anyone else challenging the powers of the governor or the leadership of Virginia, or anyone else upsetting the social order.127
The case of Edward Sharpless illustrates how these powers were used. Sharpless was clerk and acting secretary of the Council in 1624 when royal commissioners arrived in Virginia to investigate affairs preparatory to Crown revocation and assumption of the charter. The colony's government tried desperately to obstruct them and plaintively pleaded for a retention of "the libertie of our Generall Assemblie." For generations this resistance to the Crown and plea for 95 representative government has been interpreted by Whiggishly inclined historians as indicative of a libertarian impulse -- as the first stirrings of a movement for freedom and as evidence of a "Patriot" (now refurbished as "Country") party committed to such ideals. But that is reading history backwards and obscures the fact that the Virginia leadership was not resisting royalism in the name of (an anachronistic eighteenth-century) ideal of freedom. Rather, it was a case of a border aristocracy jealous of losing its unquestioned and powerful grip an local affairs to a central government in London.
Sharpless, for whatever reason, was not as committed to that effort, and he turned over to the commissioners the records of the Virginia Assembly's business. The manner in which he was tried is revealing. He was not tried by a jury, but by a process in which "it appeareth to this Court by sufficient proofe and his owne confession" that he had "betrayed" the colonial government in turning over the documents. His punishment was to be set in the pillory, "to have his ears nayled to it, and cut of[f]." Additional evidence suggests that he was also placed in servitude for seven years.128
Several aspects of this judicial proceeding are noteworthy. First, it is important to observe that there no Jury heard the case. Moreover, from the manner in which the Council, acting as a court, obtained its evidence it is clear that it was acting as a conciliar court using Star Chamber methods — the 96 characteristic Star Chamber manner of "proofe and his owne confession." So, too, was his punishment indicative of Star Chamber, for in the period that court was becoming notorious for its gory nailings and cutting off of ears -- particularly of gentlemen, a class hitherto protected from such penalties. Finally, the Council's degradation of a gentleman paralleled what Star Chamber was doing, although not even that body degraded gentlemen to servility as the Virginia Council had done.129
The parallel to Star Chamber is worthy of note, for both bodies served the same purpose. Strong judicial powers were appreciated by many of the first Virginia adventurers left alone in a wilderness, and so, too, were the powers of Star Chamber appreciated by many common people in England for quite some time. In fact, before the 1630s a large number of private cases were brought to Star Chamber by ordinary individuals. However -- and this distinction is crucial -- by the mid-1630s Star Chamber was coming under increasingly heavy attack because of its enforcement of Church conformity and the hated Ship Money exactions. Gentlemen were being subjected to punishments usually reserved for the lower classes, and were being degraded from their professions. Moreover, Star Chamber was becoming an instrument for benefiting the state and those special interests close to it, as it enforced economic proclamations favorable to the few who 97 had contacts among its membership. Within a few years, it would be abolished for these reasons.130
The Virginia Council operated in much the same way in maintaining an arbitrary government against criticism and in protecting the special economic interests of officials and their allies. Outside of felony and treason (which Star Chamber could not try, and which the Virginia Council tried by jury) the Council operated with similar methods. Pursuing similar ends, it matched what one historian has referred to as Star Chamber's "power of punishment extending to all lengths short of the death penalty, and a jurisdiction limited only by its own will."131
The main difference was that the Council made this common practice a decade before Star Chamber did, and aroused no objections in England when it did so. Protests about the treatment of Edward Sharpless did reach London, but no action was taken after Governor Wyatt replied to them. It mattered little, if at a11, that the Lawes Divine, Morall and Martiall were no longer technically in force; Virginians who spoke in such a way as to pose a threat to the government were punished as severely as when the Lawes had been operative. In 1624, the last year of the Company's rule and six years after the Lawes had been 98 rescinded, Richard Barnes was punished by the Council for his "opprobrious" and "base and detracting speeches concerning the Governor." The Council ordered that he be
disarmed, and have his armes broken, and his tongue bored through with a[n] awl [and] shall pass through a guard of 40 men & shalbe butted by every one of them, and att the head of the troope be kicked downe and footed out of the forte: that he shalbe banished out of James Cittye & the Iland, that he shall not be capable of any priviledge or freedom of the countrey, & that (before he goe out of the Iland) he shall put in suretyes of 200 li bond for his good behaviour.132
The loss of the Company charter in 1624 only demonstrated that the sot-weed gentry had succeeded in consolidating their dominance through control of central judicial institutions. When Luke Eden was owed twenty bushels of corn by the colony treasurer in 1625, he discovered how partial legal institutions had become. Eden confronted his debtor in the Council chamber and made his demand for repayment too emphatic for the treasurer. Such behavior was deemed "lewd" and his words "unreverent," actions that were "to the great abuse of the Governor and the rest of the Counsell beinge then in Courte." The Council ordered that Eden "shalbe laid neck and heele in the market place," pay two hundred-weight of tobacco, and post bond for his future good 99 behavior.133
New institutions reinforced existing practice. The office of provost-marshal was established, vesting in that officer the power to present petty offenders for trial before the governor, and as an informer qui tam to collect half the fines paid.134 In addition, the Assembly appointed "commanders" for each plantation. These men had judicial powers at the monthly meetings held at Charles City and Elizabeth City and could summarily fine offenders for swearing or drunkenness. Moreover, they had responsibility for military preparedness and the enforcement of certain economic legislation.135 Freemen were subject to their authority and could be fined, as was Roger Dilk in 1627, merely for leaving a plantation without the commander's knowledge or permission.136
While the Council turned a deaf ear to allegations of atrocious treatment of servants, it would act swiftly against threats to its prestige. Richard Proctor, a land owner at Martin's Hundred, was a notoriously cruel and demanding master toward his servants, and in 1624 a parade of complaints came before the Council. John Burrows, "gent.," testified under oath 100 that Elizabeth Abbott, one of Proctor's servants, had been beaten so badly that
she could not tell what to doe, and so showed this Examinat divers parts of her body, which she sayeth was grevous to behold, and that this examinat sent woorde by Mr. Proctor's people that he were best send for a Surgeon to looke to her otherwyse she must needs perishe.One of Burrows' servants was more explicit: Abbott's "fflesh in some places was raw and very black and blew and … she said she was whipt with fishookes." The Council did not even reprimand Proctor for these actions,137 but did punish him two years later when it
ordered that Richard Proctor of Martin's hundred for his offence in taxing Capt Hamer, dec'd, and Mr Persey unjustly of extortion, and saying that they were unfit to sett at the Council, shall suffer one month's imprisonment, and shall be at the end thereof Sett in the pillory and have his eares nailed … ."138
The Virginia Council, then, was acting much like the Court of Star Chamber in punishing affronts to government. Free Virginians were aware of the similarity and criticized it, but the Council ignored any imputations that it was departing from the protections accorded free Englishmen. When Richard Cornish was executed for sodomy in 1624, he had been tried and convicted 101 only on the testimony of one witness. At least two men criticized this proceeding, and one of them, Thomas Hatch, did so despite being aware that such an opinion might cost him his ears. He was almost right, as the Council ordered that for his words he
shalbe shipt from the forte to the gallows and thence to be whipt back againe, and be sett uppon the Pillory and there to loose one of his eares.Hatch was the governor's servant, and the Council further ordered "that his service to Sir George Yardley for seaven years Shalbeagain from the present d[a]ye … ."139 Already a servant, he could not be degraded further, but the other critic, Edward Nevell, did lose his freedom -- for life. The Council ordered him to
stand one the Pillory with a paper one his head shewinge the cause of his offence in the markett place, and to loose both his Ears and to serve the Colony for a yeere, And forever to be incapable to be a ffreeman of the Countrye.140
While Virginia was shaping its legal system along such lines and successfully overwhelming any opposition to it, the Crown was meeting with less success in its own efforts to impose prerogative rule in England. It is paradoxical that in the period under consideration Englishmen were developing a keen sense of England's unique liberties. But beyond the seas, whether in Crown dominions or foreign kingdoms, it mattered less 102 that such liberties were not enjoyed. Supreme in those areas were the prorogative powers of the prince, to which England must not be subjected. As early as 1571 Sir Humphrey Gilbert's defense of the prerogative elicited the reply that men who had served overseas had grown too accustomed to arbitrary rule as practiced in France, Spain, or Portugal. Such men, Gilbert was lectured. must not be "trusted to conclude for our Home-Affairs." Fifty years later, during the crucial Commons debates of 1621, this long-standing distinction between the protection of liberties in England and the lack of such barriers beyond the borders remained. Indeed, the contrast became more precise in English law when it was observed in Parliament that "new conquests are to be governed by the will of the conqueror. Virginia is not annexed to the Crown of England and therefore not subject to the laws of this House."141
Freeborn Englishmen, this doctrine asserted, must not be subjected to the tyranny of Continental systems nor, for that matter, to the similarly arbitrary conditions that they knew and accepted for colonies. English awareness of how prerogative rule operated in America is not an easy matter for historians to establish with certainty, but one debate in Parliament preceding the Petition of Right in 1628 is extremely revealing. Shortly before the Petition was drafted, charges were brought accusing John, Lord Mohun, of abusing his authority as Vice-warden of the 103 Stannaries. Mohun, it appears, had given economic privileges to his friends and had used his judicial powers (as head of the Stannary Court) to halt legal proceedings against members of his administration. When common law indictments were sought against Mohun's officials for false imprisonment, Mohun forced the abandonment of the indictments and compelled the man seeking them to "leave the country." But that was not all. Mohun had forced a debtor to pay more than he owed, and had punished several men for using rival courts. When one Fitzwilliams was imprisoned for exploiting the labor of mariners "without any authority," Mohun had obtained a supersedeas (an order barring execution of a judgment) to have him released. Mohun's rule in Cornwall was arbitrary and partial to his own allies' interests. When resisted, he announced "that if any man opposed him he would make that man the mark he would aim at."142
To Virginians, such arbitrary rule would have seemed painfully familiar. It is important to note, however, that while Parliament disapproved of it in Cornwall they saw it as perfectly appropriate for Virginia. Christopher Wandesfords later Strafford's deputy in Ireland, heard the charges made against Mohun and commented, "If he proved such a man as he was reported, he was fitter to have a dominion of his own in America than in this kingdom."143104
What had become intolerable in England, therefore, remained unexceptionable in Virginia. By the middle of the seventeenth century Parliamentary opposition had begun to limit prerogative rule in England, but the old tradition of swift and discretionary justice unbounded by common law continued to thrive on the colonial frontier along the Chesapeake. Transportation, penal servitude, and ultimately black slavery were its logical continuation.
To trace the transformation that overtook the transplanted marchland system of justice is a formidable task. In sharp contrast to its origins as a virtually private domain of an autocratic "sot-weed gentry," local justice in eighteenth-century Virginia was characterized by due process, secure protection of private property, and widespread citizen participation. These principles pervaded the legal culture of eighteenth-century Virginia from the original Tidewater shires established in 1634 to the newest counties of the Piedmont, Shenandoah, and Appalachians.
By the time of the American Revolution, these principles had become a birthright -- a legacy that Virginians clung to tenaciously against British alteration. With the War for Independence successfully concluded, moreover, Virginians insisted on continuing them. After all, they had not fought a long and bloody war to preserve such liberties and self-rule against England only to see them limited in a federal union with other states. For that reason, Virginia's colonial legacy of justice informed the state's participants at the Constitutional Convention in Philadelphia and dominated the state's debate on ratification of the Constitution in Richmond. It is the purpose of the following sections of this report to describe that mature eighteenth-century system of county justice in Virginia, and then to trace its broader and longer-term impact on the creation of an American system of justice.106
Any inquiry into the colonial origins of the American constitutional tradition must overcome the powerful -- and prevailing -- wisdom that there are no such meaningful links. The conventional wisdom remains, as Stanley Katz criticized it at Oxford in 1981, an array of "intellectual arguments for disregarding the [colonial] past as irrelevant to the national history of American law."144 It is a major purpose of this report to take up the challenge offered by that evaluation, and to push forward the study of American legal history along the fruitful lines suggested by it.
Good precedent exists for making the attempt. Even as Professor Katz laid down his challenge to scholars to find such links signs had begun to appear that the search had shifted its approach into lines that someday would permit us to identify continuities between the two periods. These inquiries ignored the glitter of major case and took up a line of investigation that few people remembered as having been suggested by Julius Goebel in 1938. Goebel, whose sharp pen would lacerate many able scholars who tried to follow his lead, nonetheless ought to be credited with making the earliest sustained argument throughout a corpus of scholarly work for studying the "relentless advance of … glacial jurisprudence" that steadily overwhelmed "the 107 erstwhile leading cases with their gaudy background."145
It is only in the last decade, long after Goebel's death, that scholars are once again pursuing his suggestion. They are doing so by abandoning as fruitless the anachronistic search for landmark decisions or sweeping statements that would reveal the way in which a sovereign power shares, limits, or divides authority. Instead, they have begun to examine what Professor Jack Greene, in a recent essay reviewing their contribution, called the "context and legitimacy" of law. Put simply, they have shifted the inquiry downward -- away from Parliament, the central courts at London, and the Privy Council -- and into the conditions of legal activity on the local level, where colonists put into action their implicitly declared doctrines about the contours of legal power.146
The present inquiry continues along these lines in the hope of pushing that inquiry forward. It does so by looking at the Constitution within an actual and practical context that gave it existence -- that is, from a background of provincial legal practices, and within a framework of shared local assumptions concerning the proper exercise of legal authority. Its method will be to examine in meticulous -- even archaeological -- detail the procedures that lawyers, litigants, and judges developed in 108 rural Virginia, a state deeply divided over the Constitution, and whose participants in the framing process included James Madison, George Washington, George Mason, Patrick Henry, and Edmund Randolph. Many of these details will appear arcane and quaint, rustic and irrelevant to our modern industrial society; but they are not irrelevant to our inquiry into constitutional origins; in the method and minutiae of rural jurisprudence will be found some of the essential mechanisms of justice that Virginians came to regard as the basic or fundamental components constituting a free society -- in other words, what they called their "constitution."
The legal system of colonial Virginia was, first and foremost, a local system whose chief officials, the justices of the peace, resided in and among their county communities. At the same time -- and perhaps more important -- these men were amateur justices. Their lives revolved around the cycle of planting and marketing tobacco, not the administration of justice.147 Brought up and trained to plant and market tobacco, they came to the bench with little or no legal training. Yet legal training was a not a requirement for the county bench. The qualifications for magistracy in Virginia basically followed those set out in Dalton's Countrey-Justice, which listed a number of sterling personal virtues but said of legal expertise only that justices "ought to be Men of competent Knowledge in the Laws of their 109 Country."148 Virginia statute prescribed less demanding standards; namely, that justices ought to be "the most able, honest and judicious persons of the county."149 By practice, the most significant qualification was status: above all, the "gentlemen justices" were, as an English treatise described them, men of "ample Fortunes."150
Many justices took their responsibilities seriously, but membership in the county commission did not assure close attention to the business of the court. Attendance was erratic, and justices wandered into the courtroom not in any en banc manner, but seriatim: the four needed to constitute the court entered together, but they would be joined intermittently by their colleagues. At a York County Court term in 1741, a session typical of countless others, Thomas Nelson and four others convened the court, soon to see Daniel Moore walk in by himself, John Blair after a half dozen matters had been settled, and Samuel Reade after nearly three dozen orders and adjudications.151 A disapproving correspondent wrote to the 110 Virginia Gazette in 1770,
The usual hour of adjournment from one court day is to ten o'clock, the court in course; but perhaps if those who constitute and should attend the courts, meet by one o'clock, it may be called, through the colony, a very early meeting; and as two hours more are generally spent in how do you's, and seeing who and who are together, this brings almost the constant setting of the courts down to three or four o'clock.152
Satire and sharp criticism had little effect. Complaints from higher authority, such as the repeated urgings and threats of the governors, did little to improve performance.153 Proceedings at the Henrico County Court, for example, were typical in 1713 for being "very often delayed for want of a sufficient number of Justices to expedite the same,"154 and throughout the first third of the eighteenth century, as court business increased, justices frequently avoided the onerous burdens of coming to court. Governors responded by increasing the size of the county commissions, but the larger number of justices did not create continuity or add expertise. Although enough justices attended to permit business to go forward, the lack of 111 consistent attendance from term to term limited their familiarity with cases that had been continued and lessened the effectiveness of the bench.155
The status of the justices may have accorded them some symbolic benefits at court day -- deferential treatment amid the assembled throngs of county residents attending -- but it scarcely sufficed to allow them extensive control of the court over which they presided. In the first place, their legal learning was scant; in eighteenth-century York County, for example, only three justices had been trained in England. Even had they trained at the Inns of Court, they would not have acquired the knowledge of routine legal matters that constituted the bulk of court responsibilities. The Maryland barrister Charles Carroll of Carrollton spent four years at the Inns of Court but afterwards admitted that he needed someone "to instruct me in the law" once he returned to the colonies; otherwise, he would be helpless at "the practical part of the law."156 That should have been no surprise. Virginia Councilor Robert Carter III described his own experience at the Inns as 112 primarily "the life of a London blade."157
Few other county justices received anything that approached legal training. In an age when legal knowledge was obtained mainly by observation and apprenticeship, only first-hand acquaintance through actual participation could educate an individual in the operations of the legal system. Yet few justices undertook to serve in lesser offices before assuming a seat on the bench. In York County, for example, justices of the peace brought little courtroom experience with them to the county commission. On becoming justices of the peace, most had been vestrymen or had served a small number of times on juries (usually grand juries), but such experience gave little useful knowledge for someone who was to administer and adjudicate in court. By the first decade of the eighteenth century in York, few justices came to office with first-hand experience in judicial administration, criminal procedure, or civil process. Accustomed to the advantages of wealth in Virginia society and politics, they expected appointment to the county bench and had little reason to prepare for it. If any one characteristic typified their background qualifications, it was birth: by mid-century, half of York's justices of the peace were sons of justices.
Enterprising Virginians knew that justices came to office lacking precise information about their powers and 113 responsibilities. To fill that need, booksellers imported English manuals and even supplied them with a domestic product, George Webb's The Office and Authority of a Justice of Peace, first published in Williamsburg in 1736.158 Yet Dalton's Countrey Justice and Webb's Justice (the two most popular handbooks) gave little help in the courtroom. Webb's ubiquitous compilation gives many hints as to the limits of magistratical competence in eighteenth-century Virginia. By what it includes and excludes, however, it reveals how justices of the peace conceived their role and defined their place in the legal system. The entries Webb compiled seem designed for a system in which justices of the peace discharged their authority mainly when sitting out of session as rural administrators and conservators of the peace. Webb's major concern was criminal matters, for a single justice had to know which offenses were petty enough for him to handle summarily, which had to be heard by the county court, and which, as possible felonies, required an examining court to determine if the case had to go to the General Court.159
Webb's manual had little to say about the business that came before the county courts, and less about the adjudication of civil disputes. If we can go by what he included as a guide to the extent of participation by justices in civil litigation, they were primarily concerned with getting cases into the courtroom 114 (see the extensive treatment of "Attachment") and then up to the General Court (see "Appeals"). What happened in between, we might surmise, was the concern of others (a point I will return to later). In fact, Webb gave less attention to traverse jury trials than to trials by ordeal or battle. Virtually useless when it came to adjudication, this most common of manuals concentrated on the details of rural police powers and flattered the justices' sense of place and tradition by supplying antiquarian information that appealed to their self-image as paternal agents of the monarch. It included, for instance, information on how they were to handle deodands and what to do with someone who had had carnal knowledge of the queen.160
Whatever authority the single justice wielded over slaves and the poorest of whites from his plantation parlor, however, the justice in the courtroom was a very different figure. Few loose papers survive for the county courts of colonial Virginia, and as a result we have no truly empirical inquiry into the mass of routine activities that constituted the actual operation of a county courtroom. Once undertaken in those papers that do 115 survive, however,161 such an inquiry reveals a rather passive role for the county magistracy. The most common of courtroom activities concerned the administrative oversight of property matters such as the probate and administration of decedents' estates, and the recordation of deeds. The justices were supposed to give careful attention to such matters, but in actual practice they did little more than administer oaths to individuals, either before appointing them or upon presentation of their reports -- an important symbolic role, but nonetheless an empty one in terms of actual oversight or influence. From the absence of their signatures on such reports, and from the speed with which they were processed on court day, it is clear that such important matters were being handled elsewhere -- by non- magistratical court officials and lay participants. Discussion will return to that area later, but for the moment it is important to see that local instrumentalities of justice generally operated without the discretionary intervention of the bench. They came to stand as customary practices that had so hardened into settled habit that they might be expected as the due exercise of legal procedure -- in other words, as the due process of law.
The justices appear to have exerted somewhat more authority in adjudication, but there, too, their role was circumscribed and 116 reactive rather than broad and discretionary. In the first place, the appearance of clever and sedulous attorneys transformed the seventeenth-century courtroom, where justices had ruled with an unchallenged hand, into an arena where untrained justices often sat exasperated and chagrined by legal cunning beyond their ability to challenge. To one critic, litigation proceeded "according to the art or influence of the lawyers and attornies before the judges, who by their education are but indifferently qualified for that service."162
Landon Carter, the Richmond County magnate who ruled his vast private holdings with undeniably patriarchal authority, had only indifferent success when he attempted to act as a patriarch in the courtroom. In 1772 he suffered what he confessed was "a most singular insult" from an attorney while sitting as justice at the Richmond County Court. Carter, when asked if certain testimony ought to be admitted, answered on non-legal grounds and was promptly taken to task by attorney Richard Parker. When Carter called Parker "impudent," the lawyer returned the remark and provoked the outraged Carter to threaten Parker with time in the stocks. To Carter's embarrassment, the court ignored his anger; although the two men made mutual apologies, Carter confided to his diary that the attorney had been the "hero" of 117 the episode.163
This example -- though perhaps probative of nothing by itself -- nonetheless typifies a much broader pattern in which attorneys succeeded in dominating courtroom activity. For example, they frequently made motions that the justices had little competency to deny. Carter, two years after his humiliation by Parker, complained in his diary that he had spent three days in court "chiefly in obliging the Lawyers to say anything out of the causes they are engaged in, and making the most absurd motions imaginable."164 The ability to deal with legal motions depended on a familiarity with the "practical part of the law" that few justices achieved. Carter, for example, once had been forced to accept "a most gross affront" from Parker when the justice inexpertly "interposed as to the rules of pleading."165 Not surprisingly, then, when St. George Tucker reflected on the actual power of the county elite before the Revolution, he called them "a race of harmless aristocrats."166
If the bench lacked the skill to deny motions and control the progress of litigation, who possessed it? Why does an examination of mid-eighteenth-century county court orderbooks167 reveal hardly any examples of motions rejected in open court? Was it simply because the court accepted every motion made? Hardly. The reason is that the decision was made elsewhere, in an area of legal procedure that has not been examined. The face-to-face activities of the courtroom, as recorded in the orderbooks of each county, are the most easily recovered historical data on legal activity in colonial Virginia, but, it must be emphasized, they are scarcely the entirety. Orderbooks, the backbone of the existing historiography, recorded only those final orders approved on court day. Behind these stand a largely unexamined process by which lesser officials conducted a variety of activities and actually passed on interlocutory orders. These aspects of the legal system were vital to the operation of the courts, for it was there that skill in the "practical part of the law" best showed itself, and where, significantly, the justices of the peace took little or no role.119
Perhaps the most important of these activities took place the day before the court opened its session. Known as "the rules," this was the time set aside for the clerk to hear and enter motions on the docket he prepared for the coming term. Normally, this occurred on the day before term, but it is possible that the clerk heard these motions at his office well before that, while the court was "in vacation" between terms. No justice of the peace took part as the clerk entered the motions that each party was to make when its case came up in open court. It was there that attorneys made their motions and had them ruled on.
The clerk, who was the only trained professional among all court officials, was in the best position to make these interlocutory "office judgments" at the rules. Known as "sidebar rules" in England (where they were moved for at the side bar of the court), these activities were within the authority of the clerks as settled matters of practice. Although statutory modification in Virginia confirmed the common law by allowing the court to review these, and by court procedure these motions were repeated in open court, it is clear that practice in most Virginia counties replicated that of the English courts by making the activities of the rules settled procedural matters. Although justices always held final authority to overrule a clerk upon objection by a party, such interventions were rare.168 Motions 120 were made. oaths taken, and writs served according to "the usual process,"169 while clerks acted "of course" and even handled the mechanics of confirming defaults and confessions of judgment in their offices before having them passed on mechanically by the full court.170
Such preliminary activities must not be underestimated or thought of merely as the filing of papers. Litigants might test the strength of their pleas and probe their opponents' defenses in the forum of the rules. Orderbooks, as historians have examined term by term, fail to reveal the pattern of pleading that litigants followed in eighteenth-century Virginia; they reveal only a seemingly endless flow of continuances, with an 121 occasional dismissal or continuance. The impression they give, therefore, is a misleading one: from this glacial progression of continuances, it might appear that courtroom activity was little more than ritualistic -- the perfunctory entering of an action preparatory to an out-of-court settlement.
A computer reorganization of this material into the sequential progression of each individual case reveals much more, however. Such a reconstruction of the progress of thousands of cases through the docket uncovers consistent patterns of civil process and persistent practices of litigation. Cases, it appears, went through what became common patterns of clever pleading and counter-pleading. The imparlance, which offered a chance to delay a case, did not bring parties together in common agreement, but more often served as a preliminary to obtaining a lawyer and framing an effective plea. At the rules, for example, plaintiffs could see if an opponent had secured a lawyer and what plea he had entered. Alternatively, defendants could examine the rules docket and see what defenses other defendants would be making; if such a plea suited their needs, they might make the same for themselves. Lawyers, making themselves available by their obvious presence on the courthouse steps, stood ready to give advice and gain clients. If a case was hopeless, parties learned this at the rules, where the county clerk presided over the proceedings and negotiations. When he finally entered in the orderbook that a case had been "dismissed," therefore, it stood only as the last step in a long process of demand, delay, 122 reaction, and countermeasure. Each step was a calculation within a well-known context of assumption and expectation.
Central to this system, of course, were skilled clerks. They, alone of all court officials, had in every case undergone extensive legal training. They obtained it in the office of the colony secretary, who directed a sort of school for court clerks. Each clerk, therefore, apprenticed for the secretary; by copying form after form, each one learned the nuances of pleading in a way that justices of the peace did not. If a county clerkship was not open when the trainee sought a position, he could work as a deputy clerk until a post opened up by the death of a sitting clerk, or by the creation of a new county.171 To his new position he took with him a formbook, copied in his own hand, in which he had recorded all the proper pleadings. 172
The county clerks brought to local justice the legal knowledge of pleading, the consistency, and the predictability that the bench did not offer. They, not the "gentlemen justices," examined the record of probate and inventory appraisal, and they also went over guardians' accounts presented to the court. Inventories might even be directed to the clerk himself rather 123 than to the court.173 The clerks -- or their deputies -- drafted documents and stood as witness to them. In every case, they received a fee for their trouble and skill. If a will, probate inventory, or indenture was to be legally drafted and efficacious in the eyes of that particular court, it had to have approval of the clerk; only he really took the time to peruse the documents and enter them as properly recorded.
The clerk's record was law, and it stood unimpeachable once recorded and not challenged. Although the first justice in the commission was supposed to examine and approve all records at the close of every term, it was impossible for any justice to recall every detail sworn to. Moreover, clerks often waited years before making up a final record after a term. Although statute required two justices to inspect the county's records yearly to ensure prompt and full recording, years might elapse before such an inspection, and only the clerk might be able to locate papers amid the "great disorder" that prevailed in many counties.174124
County clerks, then, could build their offices into authoritative, independent, and -- not coincidentally --lucrative positions. They served for life, and in many instances passed their offices to sons or nephews. Appointed by the colony secretary of state and not the county magistrates,175 they possessed an independence that few other local officials enjoyed. In turn, they wielded patronage of their own by choosing their own deputies. Moreover, they were permitted by law to practice law in counties other than their own176 -- a profitable privilege, indeed, and a most effective avenue to legal success. Because of their intimate knowledge of pleading and their connections to other county clerks, they formed a potent legal fraternity.
The clerk was not the only individual below the level of magistrate whose discretionary authority and considerable responsibility spread the actual exercise of judicial authority broadly among the populace and engaged a significant portion of the county community in judicial operations. The power of issuing execution, including that of ordering the imprisonment of a debtor, rested in the hands of the clerk and even, on occasion, 125 those of his deputies.177 Similarly, deputy-sheriffs normally served process for sheriffs, who, chosen from among the bench, were too elevated socially to traipse about the county in search of defendants or judgment debtors. Altogether, these non-magistrates created, through the informal patterns of court communication and execution, a significant structure of organization that distributed authority broadly throughout the community. By their position at crucial points of control in the judicial system, they greatly weakened the hierarchical ideal of justice and replaced it with a set of settled procedural expectations, understood by the community and exercised by familiar individuals.178
The breadth of popular engagement in the legal process extended beyond formally appointed officials. A broad segment of the male freeholding population was called on to furnish services on juries and jury-like bodies. The personnel of the trial jury (relatively random by today's methods of selection) was in truth a consistent body of men whose repeated appearance gave to the fact-finding process of the jury trial a quasi-professional consistency. In York County, many men served on dozens -- some, on hundreds -- of juries. Their way of thinking about law and 126 their knowledge of local matters is vital to recognize at a time when "memory jurisprudence" was the pre-eminent fund of legal reference.
Moreover, attention to the jury in its role as fact-finder in civil suits has led historians to overlook other jury-like activities that created a widespread system of citizen engagement in the legal system. "Enquiry juries" performed a significant role as fact-finder in the award of damages after a confessed judgment (many of which, it should be pointed out, were the result of office judgments made, to all practical intents, before the county clerk and only ratified in open court by the justices). The enquiry jury for damages was a thriving institution in colonial Virginia, inseparable from the legal process and no less hallowed than the trial jury. Patrick Henry's famous oration in the Parson's Cause, it must be remembered, was to such an enquiry jury. Its great virtue to Henry and to countless other Virginians was that it might effectively nullify the legal decision of the bench and render damages consistent with the community's accustomed notions of legal obligation and in conformity with practical expectation. Following a default, or office, judgment, the enquiry jury circumvented the power of the bench and placed adjudication under the authority of the clerk and the judgment of the community. By the middle of the eighteenth century in York County, the petit and enquiry juries had become common facts of judicial life. fundamental to every procedural expectation of local practice. In 127 fact, they settled nearly as many litigated disputes as did the bench.179
County clerks, of course, did not possess the skills of the prothonotaries who performed these tasks in the English Court of Common Pleas nor of the secondaries who did so for the Court of King's Bench. Virginia county clerks frequently entered judgments in language that fell far short of the precision of the proper legal terms of art. For example, they commonly entered the term "dismissed" to describe an action that had been fully adjudicated. with final judgment and process issued. To an English barrister like Sir John Randolph, such "Ignorance of the Clerks" was scandalous, and in 1729 he insisted that it had to be changed or "all Judgments will be void." Randolph argued that the word "Dismissed is no Judgment and therefore no bar" if the plaintiff tried to sue again on the same obligation. Technically, of course, he was correct, and the clerk of the General Court complied. The judges of the General Court, however, ignored Randolph's argument and continued to tolerate such informality among the counties.180128
Reluctant to rule county practices defective, the General Court consistently overlooked the informalities of country justice if the anomalous recording did not affect anyone's right. It revealed its approval of local inattention to strict common-law rules, for instance, in its attitude toward appeals made upon allegedly defective declarations. An appellant might argue that a declaration was defective for not making all the necessary averments; without them, the jury's verdict went beyond the strict bounds of common law pleading that restricted the submission of evidence to those allegations pleaded. The General Court reacted unsympathetically to such arguments: if a plaintiff proved beyond the averments, then justice was better served.181 Only if a defective declaration touched substantive law would the General Court rule it legally improper -- if, for example, it joined as a plaintiff a party who had a lesser estate than that being sued for by the other plaintiffs. Such a practice would have conferred title where inappropriate, and would have affected substantive law in a manner that the General Court refused to concede.182
Few appellate cases survive, but the forty-two surviving eighteenth-century examples amply indicate a pattern by which the General Court at Williamsburg indulged the localities in their own particular conduct of justice as long as the informalities 129 were not so bad that a jury did not have enough clear factual matter to decide. Equitable intervention by the General Court into county cases, for example, was only "very sparingly done where there has been a Verdict & the Merits of the Cause fairly tried," according to Edward Barradall in 1735. At Virginia county courts, he continued, "the strict Rules of Law are not very rigidly adhered to either by Judges or Juries."183 Like today, the "harmless error" of a lower court would not call for appellate reversal.
Where does this survey of rural justice lead us? Put more broadly but pertinently to our examination of constitutional origins, what is the connection between rural county clerks and the Constitution? The link, I submit, is in a body of belief central to eighteenth-century jurisprudence; namely, to the way in which eighteenth-century Americans created and adhered to the notion of procedural due process. What we have seen so far, on the microcosmic level of the lowest courts in Virginia, are the following: a weakened, or diminished, structure of hierarchy; in turn, this contributed to a second fact, a limiting of judicial discretion; third, a broad distribution of judicial responsibility through widespread and consistent citizen engagement; the placing of considerable judicial authority in the hands of non-magistratical county officers, who became responsible for the manner in which adjudication proceeded; a vigorous though not professionally trained bar, whose members 130 stayed within certain well-known patterns of pleading; a tolerant stance by the central court at Williamsburg, the General Court, toward a bewildering variety of local informality as long as such practices did not violate property rights by preventing the community from making its judgment in a fair trial.
Altogether, these created a system in which the citizens of Virginia could expect justice to proceed in a manner consistent with their particular, entrenched ideas of how justice would proceed. For colonial Virginians, the way in which justice was obtained stood central in their jurisprudence. As someone identified only as "Common Sense" wrote to the Virginia Gazette in 1745, "Law is a dead Letter, and lives only in the due Administration thereof."184
"Due administration," of course, was due process. To such men, laws were but paper barriers against tyranny unless they were executed in a manner consistent with justice. Tyranny might just as easily use a legal system improperly as reject it entirely, as eighteenth-century republicans argued. England in the 1730s saw numerous attacks on the Whig oligarchy (which, after all, acted through Parliament, a "free" institution that was supposed to guarantee liberty); Parliament had succeeded in establishing what was otherwise a solecism: "legal tyranny." Liberty was not guaranteed by written laws nor even by established institutions, the opposition argued, but through specific procedural liberties such as those fought for in the 131 seventeenth century.185
Virginians knew this well. "Common Sense" had argued precisely that point in his letter to the Gazette. Even a conquering tyrant, "an Usurper, who murder'd our King, by Force of Arms, could never alter the steady Course of Justice, in our Courts of Law, or destroy the Certainty thereof …. " Such a tyrant would impose his own judges, who will
determine, as Bribery, Faction, or Interest directs; the Law, which should protect us, will be warped, and made to authorize our Destruction: In such Cases, the Lawyers only can make the Defence, urging the known Rules of Law, detecting the fallacy, reporting and publishing such unjust Proceedings, bringing such Judgments to Publick Censure, and by such Means, exposing such Judges to Publick rage.186Those most familiar with how their own courts operated understood and skillfully applied such "known Rules of Law." Only they could assure that maxim vital to early modern Anglo-American jurisprudence: cursus Curiae est lex Curiae ("the practice of the court is the law of the court").187
For the localistically-inclined Virginians, government must preserve their own courts' procedural practices. Typical of the eighteenth-century common-law thinking, they could not conceive of separating procedural precedents from substantive rights. When it came time to create a federal judicial system, they justified the continuation of their own forms of justice by reference to their own historical past and tenaciously opposed the creation of a powerful federal judiciary with a uniform common law.
For Richard Henry Lee, the battle continued the opposition he had begun by refusing to attend the Philadelphia Convention. Taking his case directly to the people, he set out his objections in his Letters from the Federal Farmer to the Republican (New York, 1787). Echoing the long tradition of distrust for words and paper guarantees, he cautioned,
It is not a few democratic phrases, or a few well formed features, that will prove its [the Constitution's] merits; or a few small omissions that will produce its rejection among men of sense; they will require what are the essential powers in a community, and what are the nominal ones; where and how the essential powers shall be lodged to secure government, and to secure true liberty.Among Lee's criticisms, that of "Common Sense" in 1745 recurred: "[M]en who govern, will in doubtful cases, construe laws and constitutions most favourably for increasing their own 133 powers....."188
Virginians took careful note of the possibility that there might someday be a federal common law with a system of uniform federal rules of procedure, and the importance of their own unwritten but firmly understood procedure recurred throughout the Virginia ratifying convention in the summer of 1788. When Article III, section 2, clause 2 came up for discussion, it focussed the leading lights of Virginia politics directly on this issue. It did not matter, Patrick Henry argued, what precise words the Constitution used in describing the federal judiciary. Specific guarantees meant little as long as their terms might be construed or applied in a manner repugnant to expectation and settled local practice. "What is meant by such words in common parlance," Patrick Henry asked of the reference to appeals on "law and fact." If, as he and others feared, this clause permitted federal judges to review facts submitted t a local juries, the entire system of jury trial as Virginians knew it would be undermined. "Poor people do not understand technical terms," Henry argued. He later took up the same parts, even by the supporters of it. The jury, for example, was to consist of men from the "vicinage" -- but how, Henry asked, would federal courts apply that term in order to be consistent with Virginia's particular 134 practices?189
To George Mason, the analogy of county courts to state courts offered a useful argument for opposing a federal system of inferior courts and for preventing a uniform federal procedure. County writs, of course, ran only where issued. Their execution by local officials and the resulting adjudication by neighbors familiar with procedure and law remained an ideal of justice. "Have Hanover and Henrico the same objects?" he asked. "[C]an an officer in either of these counties serve a process in the other?" Of course not, he knew, for James Madison had just conceded the same point, with reference to the same fears, only a moment earlier, "observing that the county courts were perfectly independent of each other, where the same inconvenience might arise" if process ran among them.190
William Grayson, soon to be Virginia's first Senator, insisted that expectation, borne of custom, was essential to justice. Virginians were deeply concerned about the fate of their debts to English merchants in 1788, and Grayson pointed out that contract law included within it the expectations that, both creditors and debtors held regarding the courts and procedures that would enforce obligations. Virginians had grown accustomed to a relatively slow process of recovery -- much slower in some counties than others, significantly, owing to different process 135 practices.191 Adding that Virginians preferred such slowness and could not count on it among federal courts, Grayson explained that debts before 1776 were contracted with specific expectations concerning process and remedies. Virginia debtors would recall these as inseparable components of contract law, along with other adjustments such as the award of interest arrangements or brokerage fees. Grayson explained,
I presume, when the contracts were made, the creditors had an idea of the state judiciaries only. The procrastination and delays of our courts were probably in contemplation by both parties. They could have no idea of the establishment of new tribunals to affect them. Trial by jury must have been in the contemplation of both parties, and the venue is in favor of the defendant. From these premises it is clearly discernible that it would be wrong to change the nature of the contracts.192Procedure, then, unavoidably affected law, and local practice had to be maintained for that reason. Suitors would not, under the anticipated dual system of courts, know the venue in which they might have to sue and the certain basis of law would be destroyed.
These debates revealed an intense preoccupation with what 136 Julius Goebel identified as the concern "as to what the legal substratum of the new government was to be -- a matter vital to the functioning of the federal judiciary."193 No state constitution had provided explicitly for such protections, as he explains, because "due process had developed at the hands of the courts with particular reference to settled procedural expectations."194
The constitutional protections of due process, then, could not be guaranteed by written enactments, especially in an age of legislative supremacy. For that reason, some Virginians doubted that even an explicit bill of rights would suffice to restrain abuses. To George Nicholas, a bill of rights "was no security." Distrusting any document by itself, he warned, "It is but a paper check."195
Revolutionary Virginians, with a powerful legal tradition emphasizing popular engagement in law and politics, naturally demanded that the instrumentalities of justice remain in the hands of the people who implicitly understood their purposes and practices. Not only the making of laws, but also the, implementation and exercise of them, was necessary to, make any constitutional protection meaningful and to assure a proper demarcation of judicial authority between a central government 137 and the states. In its eighteenth-century history, the Virginia legal system had successfully worked out such arrangements between the inferior county courts and the superior court at Williamsburg. Basic legal principles stood supreme in provincial jurisprudence, while the rural localities implemented them along the lines and through the procedures understood by the people. Well before the Revolutionary crisis, capital and countryside had struck an effective working balance, one that informed a strong constitutional tradition in Virginia after Independence.
These descriptions are based on the particular, and sometimes idiosyncratic, practices of the county courts in the Tidewater region of colonial Virginia. Frequently, these conflicted with prescribed statutory rules and common law procedures, and I have followed Virginia practice rather than the required formal rules.
This "hornbook" is not intended to be an exhaustive or definitive work, but is designed for the purposes of the planning committee and the training of interpreters.
All words in CAPITAL LETTERS are referred to under their own entry. They are cross-referenced for the reader's convenience.
--the proper term for an adversarial legal proceeding in which one person sues another to enforce or protect a right, or to redress or punish a wrong. It also applies, therefore, to criminal prosecutions, since these, too, involve someone's complaint regarding another's act.
Obviously, any plaintiff going to the trouble of applying to the court for redress looked toward the TRIAL when his rights would be determined and an order made to enforce them. Yet to reach that point required patience and some familiarity with legal procedures (whether or not a lawyer furnished these).
A hypothetical action to recover money lent will help to illustrate the vicissitudes of going to court to prosecute an action.
Step One: Making the Complaint. On entering the court-house 139 (or the CLERK'S OFFICE) to initiate his complaint, a creditor would be aware of the costs involved: every act that he asked the court to take required a fee, and it was required by law that a schedule of these fees be displayed publicly. He had to make his complaint no later than three days before the next court. To do so, he asked that the sheriff serve the debtor with a CAPIAS AD RESPONDENDUM (occasionally demanding special BAIL) to appear at the county court's RULES DAY or the first COURT DAY. There, the creditor (now the plaintiff) had to appear also and make a more formal and detailed DECLARATION of his complaint.
Step Two: The Defendant's Answer. The defendant was supposed to make an answer at this point, but there were ways to evade this and to slow down the progress of the action to get more time or to discourage the plaintiff. The defendant need not even show up. By the middle of the 18th century, Virginia jurisprudence had become quite sympathetic to debtors, and the courts were prevented from making swift EXECUTION on defaulters. Accordingly, the plaintiff might make a MOTION for a conditional JUDGMENT by which the court ordered execution for the money owed if the defendant did not show up to defend at the next court. If he failed again and the plaintiff wished confirmation of the Judgment, he got a writ for an ENQUIRY JURY that assessed damages at the next court. Many plaintiffs, however, were content simply to ask for an "alias ["otherwise"] capias" or even a "pluries ["often"] capias" after a second nonappearance. Once the defendant appeared at the next term of court, he might ask for an 140 IMPARLANCE to consider his other options. (Technically, the justices were supposed to pass on such a motion, but in practice the CLERK seems to have done this.) The defendant could base his tactics on the information he obtained by seeing how strong his opponent's case was (by seeing what the declaration actually said), and if the plaintiff was using a lawyer. Contrary to what most recent scholarship says, the imparlance was not a preliminary to an out-of-court settlement; indeed. most cases that reached the stage of an imparlance ultimately went forward.
Step Three: Pleadings. If the defendant needed legal advice. he might consult one of the attorneys who attended the RULES DAY in search of clients. Together, they would decide how to proceed; they had many options:
They could challenge the declaration as imperfectly worded, forcing the plaintiff to "perfect his declaration" and postponing matters another month. (Since lawyers were engaged hastily, they had little time for preparation, and thus took first refuge in the most obvious tactic procedural irregularity.) But there was more than just delay (time) involved: the more a plaintiff had to narrow his claim, the easier it would be, farther down the road when the issues came to TRIAL, for the defendant to show a variance between the claim and the proof (e.g., that the defendant had agreed to pay for corn, but the plaintiff could prove only that he had delivered miscellaneous items of food.)
Once the plaintiff had set out the facts he had in support of his cause, the defendant had to decide how to reply. Usually, 141 he got a CONTINUANCE, which gave him time to decide, or further to delay for the sake of delay. But:
All of these pleadings were supposed to bring matters to TRIAL, but in practice this was not so. Before a case got to trial, many motions might intervene:
Amendments: Each party might find that its pleading was not drawn up properly, and upon challenge would have to amend. The law was very liberal on allowing amendments to pleading in the 142 interest of justice, but this also slowed things down.
Preparation of Reply: Similarly, each pleading permitted the other party to continue the case until the next meeting before making its reply.
With a demurrer, the plaintiff would wait until the next court to enter his joinder in demurrer. The defendant had a luxury here, because he could learn at the next RULES DAY if the plaintiff had a good joinder. Rather than letting him make it and defeat the defense …
The defendant could withdraw his plea and make a factual defense (See B and C, above). Once that began …
Parties might have to confer on legal matters, such as the plaintiff's challenging the legal sufficiency of the special pleas or …
The justices might have to confer on their answer to such a special plea or demurrer; even if they knew what it was going to be (by checking the rules DOCKET -- if they ever did), it seems that they could not always make such a decision on a technical matter in only a day or two. Also, they may not have wanted to be pressed into retiring to one of the Jury rooms to confer, preferring instead to get on with the other actions more speedily. Once they decided that a special plea was good, or once the factual matters had been narrowed down …
Parties often asked for, and received, time to obtain WITNESSES whose testimony was vital if justice were to be served. But… 143 A jury had to decide the factual matter, if one of the parties asked for one. A jury never decided the facts until the next court after the parties joined issue.
In the month between asking for a jury trial and the next court, either party might get cold feet about the strength of his case, and withdraw the plea for a confession of judgment at a sum they agreed on out of court. On the other hand …
The best trick by a stubborn and clever defendant would be to raise an issue of EQUITY, which converted this COMMON LAW case into an equity matter that might drag an through dozens of additional terms.
Execution. Judgment that determined rights and assessed damages or commanded performance had to be enforced. Writs of EXECUTION were issued on the last day of term, but stubborn and clever defendants still had some methods available. Such a person might, for instance, ask for an "arrest of judgment," which was merely a delayed demurrer made after a verdict. Others might balk at paying, which would require an "alias execution" and cause still more delay and annoyance to the plaintiff. (If the plaintiff waited more than a year to get execution, he had to renew the judgment through a writ of "scire facias.")
Alternatively, the defendant could APPEAL to the general Court. If the defendant had no other legal avenue of delay, he could post a "replevin bond" by which he guaranteed to pay the debt at some time in the future.
-- after the PROBATE of a will, the person appointed by the court to handle the administration of a decedent's estate if the will failed to name an executor to do so; the term also applied to a person appointed when someone died INTESTATE (without a will). He (although Just as often she, since wives were often so named) gave a bond for the honest discharge of duties. He did so before the CLERK of the county court, presented with the signatures of two WITNESSES, either at the CLERK'S OFFICE before the court term, at one of the RULES DAYS, or during the sitting of the court at COURT DAY. The administrator then was sworn in open court. The administrator was to gather all the estate, pay all debts, and distribute any remaining assets as legacies to heirs. After discharging all obligations he had to present the account of the estate's assets to the court for approval. In practice, be did so to the CLERK, usually at one of the RULES DAYS; the clerk, not the JUSTICES, however, seems to have assumed the responsibility of checking the accounting made by the administrator; once he had approved the administrator's actions, he signed the will and put it on the court's DOCKET, whereupon it was presented in open court and approved by a pro forma acceptance.
Usually, the court would appoint a widow as administrator of her husband's estate. In many cases, the widow remarried before all estate matters were settled, at which point her husband became co-administrator or co-executor of the will. If there was no obvious and willing candidate among the decedent's family, the 145 court usually appointed a major creditor of the estate to serve as administrator. This person still had to post bond and, like any other administrator, was forbidden to take any profit or benefit from the administration.
If the will named someone to take administration of the estate, that person was known as an "executor." The only difference between an administrator and an executor, besides the way they were appointed, was that the executor did not have to post a bond after the probate of the will.
-- a pledge made by a defendant either to assure his appearance at court (known interchangeably as "common bail," "bail below," or "bail to the sheriff"), or to guarantee satisfaction of a court judgment ("special bail," "bail above," or 146 "bail to the action"). The former was a fiction; no money or surety bond was ever required.
The latter, special bail, was a serious matter; it required the defendant to have two individuals (known as "sureties") post a recognizance bond to be paid if the defendant did not pay on losing an action. Sureties were often friends of the defendant, but just as often the recognizance bond was posted by a deputy-sheriff who offered the bond in return for a fee. This service was just that -- it was not part of the deputy's official obligations, nor anything established or regulated by law. The deputy simply used his position as a way of drumming up the business, since it was he who usually served the process on a defendant requiring him to post the special bail.
The requirement of special bail was not the usual practice in colonial Virginia; a plaintiff had to have good reason (e.g., the threat that the defendant would abscond, or otherwise be unable to pay) for a clerk to attest a CAPIAS requiring special bail. In addition, it was available only where the alleged damages were quite high, and were promised by a sealed instrument such as a BOND. If the defendant could not obtain such sureties, he might be placed in the gaol until the case was settled and satisfaction made.
-- a sealed instrument promising a fixed sum of money (known as a "sum certain"). This means that the document, promising a certain amount of money, has been legally sealed, 147 with a wax seal affixed to it. Such a seal "imparts consideration" -- i.e., the plaintiff (promisee) need not prove that he was to pay or give anything ("consideration") in return. A bond was one of society's surest forms of obligation to assure repayment, since a promisor could only plead in his defense that the document was "not his bond," and it was difficult to prove that the sealed, signed bond was not genuine. Usually, a creditor asked for a bond worth twice the amount of the obligation; e.g., someone lending £50 would ask for a bond in the amount of £100. He could sue and recover easily, but the court did not, in actual practice, force the debtor to pay £100 when he owed only £50; it would, therefore, "chancer" the bond to the sum owed, plus interest. The proper WRIT for the recovery of money owed by bond was known as DEBT.
Bonds, therefore, were a most common obligatory instrument. But there were some built-in protections for the borrower. Normally, promisors would have the bond include a "conditional defeasance" -- a clause abrogating the obligation upon satisfaction of some promise, such as paying money. Some common forms of such bond were: the recognizance for BAIL, which was discharged by paying as court judgment; a bond to serve in an office faithfully, which was discharged by doing one's job; a bond to obey the law by keeping the peace with one's neighbors (a "peace bond," usually ordered by a single justice of the peace rather than the entire county court); a bond to keep an ordinary and obey the laws regulating their operation; a MORTGAGE bond. Bonds, 148 DEEDS, AND WILLS constituted the vast bulk of the loose papers stored in a county court-house. See also SPECIALTY.
-- a complaint made to the county clerk to begin process in a civil (i.e., non-criminal) action, such as one to recover money. This was a general statement; it did not specify in precise legalese what the nature of the complaint was, nor the precise amount of damages claimed, but merely commanded the defendant to appear and answer. Technically, he was under "arrest" by the deputy-sheriff, but unless special BAIL was demanded, he was simply under command of the court to appear; if he failed to appear, he might be liable to judgment by DEFAULT, but he was not liable to be seized physically, nor to post bail. The capias, then, was simply a flat statement that the person named in it (the defendant) was being summoned to appear at the county court-house on one of the RETURN DAYS, when a more precise and formal DECLARATION would be made by the plaintiff. A private individual might draft it himself, and then give it to the CLERK for him to attest to its legality and efficacy, and then give it to the SHERIFF for service. More commonly, it was drafted by the clerk or one of his DEPUTY CLERKS, who charged him a small fee for the service -- as did the deputy sheriff who searched out the defendant and served process on him. This complaint had to be made no later than three days before the 149 court met, so that the defendant had time to find out more precisely what was demanded of him by the plaintiff's declaration, and thereby answer it. If it was delivered too late, the defendant did not have to appear until the next subsequent court's return days. If the defendant was not to be found, the deputy sheriff had to return the complaint with the notation "non est inventus" ("not found"), which, upon further application by the plaintiff, resulted in an ATTACHMENT of the defendant's property. If the defendant, properly notified, failed to appear, a CONDITIONAL JUDGMENT was entered against him, which he had to contest at the next court or face CONFIRMATION and EXECUTION of the judgment.
Quite often, a defendant failed to appear and defend, preferring to delay and contest the action at a later court. Often, he did so on the advice of an ATTORNEY, who in all probability had just met him on the court-house steps.
-- a court official whose duties went far beyond those of keeping records and drafting documents. In colonial Virginia he was central to the administration of justice and combined duties and powers that were scattered among many different officers in the English court system. Trained in the office of the colonial secretary, he had considerable legal skill and knowledge and was probably the only full-time professional official of the court. Because documents had to show at least a minimum of precision and had to include the necessary wording to make a document valid, he possessed skills that even ATTORNEYS lacked; in fact, men often trained for the bar by serving as DEPUTY CLERKS, during which time they absorbed enough legal knowledge to practice. By law, the clerk was barred from practicing law in his own court, but many (if not most) practiced in neighboring counties, where they built up a lucrative business. They knew the law well and - perhaps just as importantly -- they knew the other clerks and thus had an "in" when it came to filing motions and learning about opponents.
The clerk also knew more law than the JUSTICES OF THE PEACE whose servant he was, because the justices left to him much of the endless routine of court administration, the clerk came to exercise much discretionary authority that they alone, in law, 151 possessed (See, for example, ADMINISTRATOR, WILL). By statute, the clerk was entitled to charge fees for drafting any of the documents presented to the court; either he or one of his deputies drafted the DEEDS, BONDS, WRITS, and EXECUTIONS that were the substance of court activity, as well as the MOTIONS that every case consisted of. His attestation, or signature -- for which he also could charge a fee -- had to be affixed to virtually all court documents.
Clerks were appointed by the governor, not by the justices. As just about the only county official not chosen by the magistrates, he had an independence other officers did not, and he added to his powers by being able to choose, in turn, his own deputies. He served at the pleasure of the governor and normally held office until his death, whereupon it was not uncommon for his son or other relative to succeed him.
-- that body of substantive principles and procedural forms developed in England, as distinct from statute law (enactments of a legislature), civil law (Roman-based law), EQUITY (the chancellor's law), and canon law, and as distinct from the varieties of local law that obtained on particular manors or in certain counties of England. Put more simply for the purposes of Interpreters, it might be defined as the unwritten law of the central courts in London, a body of law and procedures guaranteeing the security of person and property. Virginians assumed that they were under the English common law, and they insisted that they be accorded all its benefits. The reality, however, is far more complex. Historically, they had dispensed with it when they saw fit -- slavery is the best example of an area that the common law did not recognize, and which was directly contrary to it. Moreover, English jurists such as Sir William Blackstone argued that all the colonies were conquered provinces, and as such were not entitled to the common law. Much could be argued to support the contention that the English common law did obtain in Virginia, but it was not until 1662 that the House of Burgesses even claimed it. Before that, only "the laws of England," which included much more than the common law, stood as a standard for Virginia laws to follow.
The most accurate answer to "What was the system of law in colonial Virginia?" would be the following: Virginia common law. This was a composite of the English common law and those variations of particular Virginia legal traditions that modified the 153 English common law but which were not contrary to it. In other words (and simplifying a bit), Virginia common law was basically English common law, but only when it suited Virginians (e.g., for trials by jury); Virginia common law included local departures from English common law when they could get away with it (that is, when the Privy Council believed that such departures were not "repugnant" to the English common law). It must be added that there existed one great exception to this generalization: slavery, though clearly "repugnant" to the common law, was too deeply entrenched and economically beneficial to challenge]. We now use an American common law, as supplemented or altered by particular state practices; there is no federal common law.
-- the date assigned by statute when each county court was to meet. For Williamsburg Husting, it was the first Monday of the month; for James City County, the second Monday; for York County, the third Monday. It becomes clear that this arrangement permitted attorneys to ride a circuit of Courts in their particular areas of the colony. If an attorney had been at Williamsburg on the first Monday, he could ride to Charles City for that court's meeting on the first Wednesday, or Gloucester or Isle of Wight for the first Thursday; than, back to James City for the second Monday, or to Prince George (second Tuesday) or Warwick (second Thursday), before going on to York for the third Monday.
Since court terms normally lasted more than one day, an attorney might not be able to attend every court in his part of the colony, but he need not attend every day of court. The most important day was the RULES DAY, where he filed motions or drummed up business, or the first day of term, where he could do the same. By the second day of term, only the litigating parties who were going to issue at TRIAL, with their attorney, remained. It should be pointed out that one result of this was that any trial, in the form we know it, was thus attended by only a small 155 group of people -- perhaps none of them mere "spectators."
-- a jurisdiction vested in several tiers of the larger legal system. At the lowest level, every citizen had some responsibility, since there existed no paid constabulary, AND the CONSTABLE and SHERIFF had only limited duties in this regard. The basic individual was the JUSTICE OF THE PEACE, who was empowered to raise a "hue and cry" requiring neighbors to join in pursuit of a felon. The j.p. also had some power acting on his own: he might require a troublesome individual to post a peace BOND, to be forfeited if future disturbances occurred, or the j.p. might remand the person to trial on his own "information."
Others could bring an alleged criminal to trial. Churchwardens were authorized to make "presentments" (see INDICTMENT), a deputy KING'S ATTORNEY could file an "information," or a GRAND JURY could make an indictment.
Punishment, however, remained exclusively within the authority of the court. JURY trials were not common for criminal trials, but were guaranteed by the COMMON LAW and might be used if asked for. An attorney might be used in defense, but as yet there existed no constitutional guarantee to counsel, and the use of attorneys in criminal trials at the county court was not common.
The county court, by law, could not try felonies (those crimes serious enough to be punished by loss of life or limb), 156 and the most common offenses they tried were absence from church and sexual infractions (usually bastardy). Normally, these crimes resulted in a choice of fine or whipping. (Unfortunately, the records do not permit us to say which punishment people chose, though it is likely that whipping was more common, given the class of the offenders and the normal fine of £5.) Imprisonment was not a punishment in the colonial period. In criminal matters, the gaol was used only to hold suspects until trial.
If a felony was involved, a group of justices, called together to arraign the suspect, would have sent the case to the General Court, or to the colony's own OYER AND TERMINER court. Such a group of examining county justices was known as a "called court" or an "examining court."
-- a legal plea that the facts as stated were true, but legally meaningless. (In this sense, it might be considered to be the legalese for saying "So what?") If a defendant admitted the facts involved in a case (e.g., that he had called the plaintiff something nasty) but insisted that the words were not legally actionable, he would admit the facts and "demur" -- specifically, he would say that the plaintiff's accusation "is not sufficient in law to maintain his action." (Translation: "Yeah, I said that, but so what -- those words won't give you a legal case.") The plaintiff then made his "joinder in demurrer," by he argued his interpretation of the law. The justices then decided if the facts, as so admitted, legally sustained the cause; the justices' DECISION on this matter led directly, without further pleading, to a JUDGMENT.
In the 1730s, a notorious case reached the General Court on appeal when justices decided that the words "pocky whore," as admitted by the defendant, were actionable under the COMMON LAW. See also TRIAL.
-- also known as "undersheriff" or "subsheriff." He was appointed by the sheriff and served as an all-around aide. It was he who probably did the legwork of actually riding out to find a defendant and serve process on him for his appearance. He served, too, in helping the sheriff in the latter's capacity as enforcer of laws and dispenser of corporal punishments (most usually whippings, but undoubtedly the harsher punishments meted out to slaves).
In the courtroom, he acted as cryer and sat in the other sheriff's box opposite the sheriff. Another deputy probably acted as messenger, carrying the writs from the clerk to the deputy clerk when a case was continued to another court term, or carrying the writ of execution from the clerk to the sheriff for 160 service. Like the deputy clerk, he was not salaried, but his office gave him opportunities to make some money. Commonly, he served as what we today call a bail bondsman, putting up bond where needed, or standing as a WITNESS.
-- a system of rules and procedures co-existing with (and often the rival to) the COMMON LAW. (Strictly speaking, the word "law" does not even apply to it, pertaining technically to the common law.) In England, equity had its own courts presided 162 over by a "chancellor" and "masters in chancery." In Virginia, all courts had the authority to act as equity courts and thus to apply its system of "chancery." At the time of its medieval origins, the chancellor was a clergyman whose purpose was to intervene when the COMMON LAW had no authority over a remedy crying for redress, or when the common law's own methods of redress were too rigid and caused hardship. In 18th-century Virginia, its main application was to testamentary matters, where fairness toward heirs (especially children) might be overwhelmed by the rigidities of common law rules on descent. To protect heirs, equity permitted its courts two major powers that common law courts lacked: to control trusts established by testators, and to order specific performance (that is, to order a defendant to do something or to deliver a particular thing, such as a deed, when all the common law could do was to order damages for non performance).
Equity therefore took account of matters that the common law did not. Conversely, it built in controls that prevented it from running amok and violating the rights of persons. Specifically, its procedures were made glacial in their operation: parties could get seemingly endless continuances in order to prepare the case they claimed to need. Too, where common law pleading acted to narrow issues to a specific, easily defined question, equity acted to open up the dispute to all sorts of (often tangential) related issues. As a result, if a party could get his cause translated into the equity side of the court's jurisdiction, he 163 could drag it on for literally dozens of terms.
-- a body of twelve men summoned by the sheriff (in the same manner as those for the GRAND JURY) to determine factual matters before the court. They were the voice of the community, and every court had such a group empaneled for TRIALS that came to issue. They were not permitted to decide a matter of law -- that is, whether or not they believed an act to be legal or not -- but only if the defendant did or did not commit the wrong alleged. The justices were to instruct them on matters of law, and the jury's verdict decided fact. For example, a defendant in a slander action would plead "not guilty" by denying 168 that he had said the nasty words alleged. The jury could only decide whether or not he had said the offending words; it could not bring in a verdict of not guilty by reason that the defendant had said the words but that the words were not legally slanderous; that was up to the justices, who would decide the law of what was/was not slanderous before sending it to jury to determined the fact that he had/had not so spoken. If the Judge said the law called the words slanderous, the jury had to give a verdict limited to whether he had said the words ("guilty") or had not said them ("not guilty"). (If the defendant wanted to put the legal issues to trial, he had to give up a jury trial and make a DEMURRER and wait upon the judge's DECISION. Hence, a jury gave a verdict, but justices made a decision.)
Often, justices (who were not always learned in the law) did not instruct the juries before they retired to the jury room. Unequipped or unauthorized to decide matters of law, some juries therefore returned special verdicts: "We find the defendant guilty if the law says so-and-so, but not guilty if the law says such-and-such."
-- in Virginia practice, the day before the court actually met. At the rules, parties or their attorneys might consult the DOCKET to see when (or if) their case was to come up. In the General Court after 1727, every party had to file his motion that day, and the other side might prepare its answer. This expedited the progress of the docket, because no case came before the General Court judges until the parties were actually ready to join issue at TRIAL. Practice differed in the county courts, where every MOTION was read and passed on in open court. It seems very likely, however, that the courts of York County and Williamsburg, whose clerks were familiar with General Court practice, created a system very similar to that of the General Court, for cases moved through these two courts much more swiftly than through other county courts. In all likelihood, it seems that these two courts placed more reliance on their clerks to use the rules days to expedite the progress of cases and to settle there the preliminaries and verbiage that would slow other courts. Beacuse motions were filed at the rules, there was little wrangling in the courtroom until issue was joined at TRIAL. It should be added that since no justices of the peace were present at the rules, the clerk had considerable power and influence.