Williamsburg Courthouse Historical Report, Block 19 Building 3Originally entitled: "A Proposal for the Interpretation of the Williamsburg Courthouse on Market Square: Report from the Courthouse Interpretive Planning Team"

Barney Barnes, Barbara Beaman, Cary Carson (Chairman), Ron Hurst, David Konig, Carl Lounsbury, Pam Pettengell, Mary Wiseman


Colonial Williamsburg Foundation Library Research Report Series—1646

Colonial Williamsburg Foundation Library

Williamsburg, Virginia


ON MARKET SQUAREAn Interpretive Planning Team Document




Courthouse Interpretive Planning Team

Barney Barnes
Barbara Beaman
Cary Carson (Chairman)
Ron Hurst
David Konig
Carl Lounsbury
Pam Pettengell
Mary Wiseman

Colonial Williamsburg Foundation

Williamsburg, Virginia,


Table of Contents

The Core Staff
Seasonal Staffing Levels
Group Tours
Study Visit Tours
Interpretive Experiments
Training Sessions and Materials
Summative Evaluation
I. Charter Document
II. Scenarios for the Interpretation of the Williamsburg/James City County Courthouse
III. A Courthouse Hornbook and Glossary

As soon as the Board of Trustees reviewed recommendations for the restoration of the Courthouse in November 1986, an interpretive planning team began meeting regularly every two weeks to develop an educational plan for presenting this newest exhibition building to the visiting public. The team was composed of three historians, two training specialists, a curator, and an architectural historian. The following proposal embodies their unanimous recommendation. It describes how a Courthouse storyline can contribute to visitors' fuller understanding of Colonial Williamsburg's "Becoming Americans" theme, how the Courthouse can be staffed with a combination of Character Interpreters, Historical Interpreters, and Visitor's Aides, what visitors will experience on visiting the Courthouse, and how escorted groups and school tours can use the building. The reports concludes with proposals for testing and evaluating some of the experimental aspects of the interpretive program, a course description for interpreter training sessions, and an implementation schedule. Bound with the proposal is A Courthouse Hornbook and Glossary prepared by David Konig as a basic reference book for everyone who interprets the Courthouse, whether it is his or her principal assignment or not.

I. The Proposal in Brief

The Williamsburg Courthouse will be open to the public five days a week, Tuesday through Saturday. Its interpreters will tell a story about ordinary men and women in eighteenth-century Virginia and how they learned to conduct public affairs in their communities according to a rule of law. Visitors will also learn how local courts schooled men and women in the arts of citizenship. The drafters of the state and federal constitutions self-consciously drew on that experience in creating a plan of government for a new nation.

The Courthouse story will be told to most visitors by Character Interpreters from the Company of Colonial Performers. Four new CIs will be assigned to the Courthouse exhibition building, a clerk in the person of Benjamin Waller, a lawyer playing the part of James Hubbard, a constable, and an assistant clerk and apprentice lawyer. From time to time throughout the day, including two formal presentations of the county court in session, other Character Interpreters will call by the Courthouse to discuss business with the clerk, the lawyer, or the constable or take part in a session of court. The goal is to inform visitors about the great variety of affairs dealt with by the court and its clerk and show them how the restored Courthouse at Williamsburg is a prism through which they can see reflected a wide spectrum of the social history activities they encounter elsewhere in the Historic Area.

Ticketed visitors will experience the Courthouse interpretation in one of two ways depending on the time of their visit. Usually they will find at least two Character Interpreters—either the clerk of the court and an attorney, or a constable—busy about their business in one of the backroom clerk's offices or in the empty courtroom. Unescorted visitors will be 2 admitted by a Visitor Aide and then met at the door by a third-person interpreter in modern dress. That person may be drawn from the ranks of either the CIs or the HIs. She or he will discuss the layout of the courtroom and adjoining jury rooms by way of explaining the role of the James City County Court in the public life of the Williamsburg community and the operation of the city's municipal government, which shared the building with county officials. The moderator will then put the clerk, lawyer, or constable into this picture and help visitors enter into conversation with them. The first-person interpreters' assignment will be to describe the variety of cases that a clerk put on the docket on "Rules Day," the day before the court met and the day that the constable ran errands for the clerk and lawyers drummed up clients to prosecute or defend.

Each "Rules Day" interpretation will last fifteen to twenty minutes, allowing three complete tours every hour during times of heavy visitation. The spectators gallery in the courtroom will accommodate approximately 125 standing visitors, multiplied three times equals 375 ticketholders admitted to the Courthouse every hour.

Twice a day, once in the morning and once again in the afternoon, visitors may attend sessions of the county court or the municipal Common Hall in full session. The times of these thirty-to fifty-minute performances will be announced in the daily "Schedule of Events." Visitors admitted to the building to see the court in session will be met as usual by the third-person moderator. The visitors themselves will create the sense of crowding and confusion that was characteristic of court times in the eighteenth century. Some will be admitted to the bar to take seats on the justices' bench, others to sit in the seats reserved for jurors, still others to occupy the lawyers' box, and two or three to occupy the sheriff's elevated platform. The rest will crowd into the space behind the bar as litigants and spectators did two hundred years ago. Again the moderator in modern dress, addressing the audience from the under-sheriff's platform, will explain who attended county court sessions in the eighteenth century, where they sat or stood, and how business was conducted. He or she will supply the interpretive connections between eight or ten scenarios enacted by three, four, and sometimes even five characters assembled for these performances. The purpose of combining first- and third-person interpretation is to give visitors a chance to see and hear how real citizens defended their interests in these people's courts of the eighteenth century and to experience a semblance of the emotions that are clues to their motivations. At the same time we want them to enjoy the advantage of the hindsight that a narrator-historian can provide.

HAPO directors, when reviewing an early draft of this plan, requested that the planning team invent a device to permit visitors to come and go periodically from the "Court Day" performances. The planning team recommends that a 30-50 minute program be presented in three or four loosely organized episodes consisting of two or three separate cases introduced and linked together by the third-person moderator. The end of each episode might involve various kinds of "stage business" that gave visitors an opportunity to move closer to the action or rotate out of the courtroom. Visitors impaneled might be instructed by the Chief Magistrate to remove themselves to one of the jury rooms to consider their verdict. Or lawyers might hustle business across the bar. Or a disturbance might break out that required a momentary suspension of 3 the proceedings and intercession by the sheriff. Eighteenth-century courts were sufficiently spontaneous to provide us with many useful interludes to move visitors in and out of the room.

The two "Court Day" programs can be seen by a maximum audience of about 200—125 to 140 behind the bar, thirty seated on the justices' and jurors' benches, and another fifteen or so at the lawyers' bar.

Leaders of escorted tours may provide their own interpretation of the Courthouse themes at special designated times early and late in the day or at other periods of low visitation. Otherwise they will be encouraged to work in tandem with the third-person interpreter on duty in the building to engage the Character Interpreter clerk, lawyer, or constable in conversation with their group. School tours will be admitted to one of the clerk's offices where special display materials will be kept for tour leaders' use. Groups whose visits to the Courthouse coincide with the morning or afternoon "Court Day" performances will be treated like other visitors.

II. Interpretive Goals

The interpretive planning team included the historian and architectural historian who had conducted most of the research for the Courthouse project, David Konig and Carl Lounsbury. Their work had already begun to define a central theme for the interpretation, an aspect of the Becoming Americans story that could be appropriately and powerfully told at Williamsburg's restored Courthouse. David Konig was the principal author of the charter document that served as the team's bill of particulars (Appendix I).

The storyline that the planners were asked to develop into an interpretive scenario for the Courthouse was supposed to show modern-day visitors how the eighteenth-century county courts in Virginia were at once the embodiment of British law and an agency of Americanization. According to their plan, visitors to an authentically restored eighteenth-century courthouse will learn how ordinary freeholders defined their understanding of what government should be by the tasks they performed and the manner in which they discharged them. They will see how Virginians did not permit county courts to become—like their English counterparts—instruments for the exclusive advancement and protection of a small rural landholding elite. The Virginia gentry had to share power or risk losing it. Local government and the American colonies never became a possession of the few. Its institutions were never the private preserve of the rich and powerful. Interpretation at the Williamsburg Courthouse will reveal how the uses of public power by competing groups and individuals ultimately defined the very nature of community government in America and the position of the individual in a complex society.

The elements of that story, the planning team decided, will be most clearly presented in the following order, however differently individual interpreters choose to tell it. The information that visitors need to know and the ideas that interpreters want them to learn can be organized as answers to four broad questions.

  • I.How did courthouses function in eighteenth-century Virginia?
    • A.In colonial Virginia courthouses were centers of local government.
    • B.All government functions, especially administrative and judicial, were supplied from the county courthouse.
  • II.Who was present at courthouses in Virginia?
    • A.The King's authority first and foremost, as represented by a royal coat of arms hanging over the magistrate's chair.
    • B.The Crown's authority was delegated to the King's commissioned agents in each locality, the Chief Magistrate and the Justices of the Peace.
  • III.How did the King's agents secure the participation of ordinary citizens in the enforcement of English rule?
    • A.Justices of the Peace, appointed by the Governor, usually served for life.
    • B.JPs and sheriffs were members of the communities over which they presided.
    • C.Because all were members of local communities, English law was applied in accordance with well known needs, realities, expectations, and customs.
    • D.Because JPs were not trained court officials, they required guidance and assistance from professional clerks and part-time lawyers.
    • E.Attorneys and officials with specialized knowledge and training were too few and far between to take exclusive control of the legal system. The rule of law required active participation from freeholders serving as jurors, estate administrators, appraisers, guardians, witnesses, and other court designatees.
  • IV.How did the experience of ordinary citizens give rise to a distinctively American rule of law?
    • A.There were fewer citizens in the American colonies to do the courts' bidding and therefore many freeholders served more frequently in more capacities than was customary in England.
    • B.Despite the wide participation of freeholders in the legal process, many members of the eighteenth-century community still had no voice and no part in local government, notably slaves, women, and those with little property. The American legal system was the creation of white, male 5 property holders in a society that condoned and protected slavery.
    • C.Ordinary people developed habits of self-government that were already second nature to Americans when events called on them to codify their legal system in federal and state constitutions.

These elements form a basic framework around which different interpretive storylines can be built more or less in the sequence presented here. Sometimes the third-person moderator will briefly introduce the information embodied in the first three questions and leave the first-person clerk or lawyer to expound on III.D. to IV.C. in conversation with visitors or interaction with other Character Interpreters by explaining the purpose and importance of documents he is preparing, by speculating on the outcome of a much-talked-about case on the next day's docket, and so on. The formula can be used very differently in the "Court Day" programs. In effect I.A. to III.B. can be covered by the moderator and the Character Interpreters jointly as they seat visitors on the justices' and jurors' benches, the lawyers' bar, the clerk's table, and the sheriff's box. The rest of the scenario can then unfold in the theatrical action of the program, episode by episode, leaving time for the moderator to sum up IV.A-C. in a final statement that concludes the program. The framework of information and ideas can be adapted in still other ways for school groups. Barbara Beaman and Pam Pettengell persuaded their fellow team members that the northwest clerk's office should be arranged to accommodate twenty to twenty-five school children sitting on the floor and should be furnished with objects that can be passed around. They believe that special hand-held placards and photographic enlargements (conveniently stored in the room) can be brought out and used effectively to present to school-age children the background information of I.A. to III.D. The scenario might be completed by asking leading questions about selected artifacts or by the children themselves role-playing with teachers, escorts, or Character Interpreters.

In short, the formula allows considerable variation depending on audience, teaching techniques, case study materials, and the preferences of individual interpreters. The storyline is pre-determined. The narrative is as free and open as interpreters choose to make it.

III. Staff

The interpretive planning team was given a tall order when Dennis O'Toole asked us to design an interpretation for the Courthouse that was innovative, theatrical, and kept the building open to visitors twelve months a year, yet increased the total staff of interpreters by no more than 5.0 FTEs. When the Educational Administrator's Group reviewed the plans on June 30, 1987, they further requested that the Courthouse remain open all day every day. That requirement was later reduced to five days per week for reasons of practicality.


We quickly determined that the Courthouse could not be "stationed" as are most other exhibition buildings in the Historic Area. Even the Magazine and Guardhouse employs a minimum weekly staff of five to six. The Courthouse required another approach altogether.

The plan recommended in this proposal gives administrative and interpretive responsibility for the Courthouse to the Company of Colonial Performers. CCP Director Bill White has made a commitment in principle to staffing the Courthouse program Tuesday through Saturday throughout the year.

The Core Staff.

The Courthouse will be staffed by four full-time regular employees hired as Character Interpreters, the Courthouse being their primary, but not sole, interpretive responsibility. One will assume the role of Benjamin Waller, clerk of the court, another James Hubbard, a typical attorney, and a third a constable, and the fourth an assistant clerk or an apprentice lawyer. All had regular business at the Courthouse in the eighteenth century. One of them will be designated as the CCP site supervisor, with the usual housekeeping and scheduling duties. The remaining FTE on the Courthouse staff will be allocated to the Department of Historical Interpretation and shared by HIs who rotate assignments as a third person interpreter.

The interpretive planning team recommends that the Company of Colonial Performers explore at least two alternatives in using its assigned FTEs: (1) Hire four full-time regular employees who will be trained in both first-person and third-person interpretive techniques. These individuals will have the Courthouse as their primary, but not sole, interpretive responsibility. (2) Hire three full-time and two half-time employees to be similarly trained and with similar responsibilities. The second alternative offers a way to increase the variety of on-site interpreters during periods of peak visitation.

The Company of Colonial Performers will supplement this core staff with one to three additional interpreters per day as visitation requires. These interpreters will serve as non-costumed third-person interpreters on the days they are assigned to the Courthouse. They will work in cooperation with the first-person clerk, lawyer, or constable and other Character Interpreters who call by the Courthouse on business or attend the court in session. These drop-in characters, drawn from the CCP cast of townspeople who had regular dealings with court officials in the eighteenth-century, will make scheduled appearances according to scenarios based on actual case studies selected from the county court records to demonstrate everyday activities at the Courthouse (Appendix II). The Courthouse staff will swell to six or seven every day during periods of peak visitation. The flexibility of the Company of Colonial Performers to provide additional interpreters when required, yet maintain a year-round staff of no less than two on-site interpreters, is a critical factor in the planning team's recommendation to turn over operation of the building to that department.

Seasonal Staffing Levels.

The size of the Courthouse can and should be adjusted to anticipated seasonal levels of visitation. This can be accomplished in the following manner.

Low visitation:

The Courthouse will be staffed by three interpreters, two in character and the other a non-costumed, third-person interpreter. The former will be the clerk and one other CI assigned to the Courthouse. The third-person moderator may be, but does not have to be, one of the other individuals hired to work there. Moderators may be drawn from among other Character Interpreters or specially trained HIs. The planning team recommends that during periods of very low visitation, visitors be admitted on demand and not gathered into groups except for the morning and afternoon "Court Day" programs.

Moderate visitation:

A staff of three or four—two third-person moderators and the clerk, lawyer, or constable, spelled by a relief Character Interpreter, and a visitor aide—will be employed when levels of visitation increase to a point where admission on demand no longer suffices, but visitation is still too low to require three tours per hour. Each moderator will usually begin her and his interpretation outside before taking groups into the building.

High visitation:

Three groups can be conducted through the Courthouse every hour when the building is staffed by two, three, or four Character Interpreters, three third-person moderators and a visitor aide. A cycle of three fifteen to twenty minute tours per hour reaches the maximum capacity consistent with good interpretation and the logistics of moving visitors in and out of the building. The visitor aide will be responsible for ticketing and line interpretation. Again moderators will often meet their groups and begin their interpretations outside the building.

Finally it should be noted that the periodic appearance of other characters playing Williamsburg townspeople with business to transact at the Courthouse is not only possible, but expected, at every level of visitation.

Group Tours.

Adult group tours led by a Historical Interpreter will join the line of general admission visitors in front of the Courthouse on days when the building is open. During periods of low to moderate visitation, one or more escorted groups may take one of the established time slots and be admitted by themselves. On these occasions, the Historical Interpreter(s) with the group(s) may choose to provide their own interpretation or take advantage of the Courthouse program offered by the staff on site. All historical interpreters will receive eight hours of classroom instruction on the subject of local courts and the judicial system and will be expected to finish a suggested reading list. Using this knowledge, historical interpreters may tailor an interpretation to meet the needs of their specific group.

The planning team further proposes that a small group of approximately ten specially selected historical interpreters with an in-depth interest in government be trained to work periodically as the designated thirdperson moderator. When these interpreters visit the Courthouse with a tour, they may choose to serve as the moderator for their group.


Study Visit Tours.

School groups escorted by Historical Interpreters will join the line of general admission visitors in front of the Courthouse on days when the site is open. During periods of low to moderate visitation, one or more school groups of twenty to twenty-five students and chaperones may be admitted by themselves. At these times, the Historical Interpreter(s) with the students may choose to provide their own interpretation for the group or have the site staff present the Courthouse program. Historical Interpreters trained for the moderator position may also serve in this capacity when they bring an escorted tour to the Courthouse.

When visitation is heavy, school groups will have to combine with adult groups and regular admission visitors to make up the maximum number allowed for each Courthouse interpretation. Historical Interpreters on these occasions, will leave the interpretation of the Courthouse to the first and third-persons assigned to the building. It is presumed that the intellectual level of the interpretation for general admission visitors will be appropriate for students in junior high and high school and that the setting and combination of first- and third-person interpretation will provide a valuable learning opportunity for students in these age groups. Elementary school children may be taken to the Courthouse as well, but it will be difficult during busy seasons to accommodate their level of understanding and still provide a stimulating experience for older children and adults. Historical interpreters with young school groups will want to consider using other sites during periods of heavy visitation.

On Sundays and Mondays the Courthouse will be closed to the general public. On these days, the building will be reserved for school groups. The planning team suggests that a system be devised by which interpreters can pick up a key to the Courthouse and let themselves into the building.

The planning team also discussed the feasibility of designating the northwest clerk's office as a "furnished classroom" for the use of study groups on days the building is closed. The reproduction furnishings in this room could be used as props for students and teachers to handle and talk about. Special display materials and large mounted photographs might be stored out of sight ready for use by these special groups.

Special focus and in-depth student tours frequently come to Colonial Williamsburg to study government and related topics. In these cases, one of the Historical Interpreters who have had the advanced moderator training should be assigned to the group whenever the schedule permits.

There are clear advantages in a collaboration between HIs and CIs. On days when they work together, their partnership will enable the CCP staff to devote one more position to first-person interpretation. It will provide a corps of qualified substitutes to call upon when illness or other absences reduce the already small number of Character Interpreters. It will provide the Department of Historical Interpretation staff with a subject area in which selected veteran interpreters can specialize. Such opportunities have been shown to provide strong incentives for professional growth and are a source of considerable job satisfaction. Finally, successful collaboration between first-person CIs and third-person HIs would provide much needed precedent for other cooperative ventures elsewhere in the Historic Area.


IV. Implementation


The Courthouse Project has been a cooperative venture among departments from the initial research phase through the appointment of our interpretive planning group and the preparation of this proposal. Collaboration will extend to many others throughout the Foundation as the restoration gets underway and interpreters are trained for their new assignments. A project manager, Cary Carson, coordinates the effort as a whole. He deals with a construction manager from Facilities and Maintenance and an architectural historian, Willie Graham, from the Department of Architectural Research in all matters concerning the reconstruction of the Courthouse as an exhibition building. The work itself will harness the talents and energies of craftsmen from the Division of Facilities and Maintenance, Roy Underhill's crew of carpenters and Mack Headley's cabinetmakers from the Department of Historic Trades, and outside contractors to install modern mechanical, electrical, and air conditioning systems. The restoration, once begun, is expected to take eighteen to twenty months to finish. As soon as the interior is ready for occupancy, the curators, helped by the cabinetmakers, will need approximately a month to furnish the courtroom and the four jury rooms.

It is our current ambition to open the Courthouse to the public in the spring of 1991.

Interpreter training, therefore, needs to be scheduled for February or March and planned a full year before that. Planning will be the responsibility of the Department of Interpretive Education. Trainers need to work closely with the Company of Colonial Performers and Kevin Kelly's Office of the Teaching Historian in the Department of Historical Research. His office will help design courses of instruction, prepare training materials, schedule and coordinate lecturers from the research departments, and make arrangements for visiting lecturer David Konig.

The Courthouse will cease to be managed as a special project on opening day. Thereafter its operation will become the responsibility of the Company of Colonial Performers administered on a daily basis by a designated site supervisor.

A number of interpretive experiments, described in the following section, will be planned and coordinated with the project manager by Conny Graft, Director, Department of Interpretive Education and Planning. She will also conduct periodic evaluations of the Courthouse interpretation once the building has opened to the public.

Interpretive Experiments.

The purpose of the initial formative evaluation will be to test and evaluate aspects of the interpretive scheme offered in this proposal before the comprehensive program plan is implemented. During the experiment we will seek the answers to the following questions:

  • 1.Does the interpretive program meet the interpretive goals as stated on page 4?
  • 10
  • 2.Do visitors come away from the program with a sense of how county courts in Virginia were at once the embodiment of British Law and an agency of Americanization? If not, what else do they learn from their experience?
  • 3.What do visitors bring with them in terms of a general understanding of eighteenth-century law? Does their attention stray when interpreters deal with more complex administrative and legal topics? If so, are there ways to hold their interest and enhance their understanding of these important subjects?
  • 4.What is the best way to present the Court Day Program?
  • 5.What type of line interpretation can visitor aides provide for the Courthouse?

For a period of two weeks, interpreters and visitor aides will experiment with several different approaches to presenting the Courthouse to ticketed visitors, adult groups, and school groups. During the experiment three types of evaluation will be conducted.

  • 1.Internal Review. Members of the Interpretive Planning Team and HAPO Directors will be asked to observe the program. Their observations will be recorded on a questionnaire that they will be asked to fill out and return to the project manager.
  • 2.Interpreter Review. Interpreters and visitor aides will be asked to keep a log of events each day. At the end of the experiment the project manager will meet with the interpreters to gather their suggestions for strengthening the quality and mechanics of the program.
  • 3.External Review. Pre- and post-visitor surveys will be administered during the course of the surveys. Visitors will also be observed by interpreters and interns and their reactions and behavior will be recorded.

At the end of the experiment, feedback from planning team members, HAPO Directors, interpreters, visitor aides, and visitors will be collected and analyzed by Conny Graft. The information gathered from these groups will be used to assist the planning team in determining the most effective means of communicating the story of the Courthouse to visitors. The final evaluation report will also be used to train interpreters.

Ideally if the schedule permits, it would be best to conduct the experiments during the fall of 1990, after construction has been completed and before the site officially opens to the public in the spring of 1991. This would allow time for changes in the program to be implemented before interpreters are trained in the winter of 1991.


Training Sessions and Materials.

All African American Interpreters, Character Interpreters, Historical Interpreters, and Visitor Aides will receive eight hours of training in the history of the county courts in Virginia as a basic prerequisite to their various assignments as first- and third-person interpreters. Those who have key roles in the Courthouse interpretation will be required to take advance training and spend additional time reading and studying.

The introductory course, "Courthouse Government in Eighteenth-century Virginia and the Origins of American Citizenship," will be taught by DIE trainers, Research Division staff members, and guest lecturer David Konig. Reading assignments, to be completed before the training session is given, include the following materials: David Konig, "The Williamsburg Courthouse: A Research Report and Interpretive Guide," including "A Courthouse Handbook and Glossary" (Appendix IV) as well as an index to relevant references in the useful eighteenth-century handbook Every Man His Own Lawyer; also Carl Lounsbury, "Order in the Court." Other materials will be strongly recommended. They include Robert M. Barrow, Williamsburg and Norfolk: Municipal Government and Justice in Colonial Virginia; John M. Hemphill, II, "Local Institutions and Politics in Williamsburg and Environs, 1691-1776"; A. G. Roeber, Faithful Magistrates and Republican Lawyers, chapters 3 and 4; and D. Alan Williams, "The Small Farmer in Eighteenth-century Virginia Politics."

We estimate that more than 200 interpreters will need this one-day course. The morning session will consist of lectures and exercises with David Konig. The balance of the training will involve sitework and other segments more appropriately taught in groups of no more than twenty-five interpreters. Therefore we propose that David Konig come to Williamsburg on two different occasions to conduct the morning program for approximately 100 interpreters each time. Following that we will schedule four or more half-day segments to be conducted by Williamsburg staff. We will then repeat the process for the next 100 or so interpreters.

The proposed syllabus looks like this:

  • David Konig lectures on origins of Anglo-American law with particular emphasis on the administration of justice in eighteenth-century Virginia (1 ½ hours).
  • David describes four typical events associated with Virginia courthouses (¾ hour).
  • Class exercise: Students are asked to consider how county courts figured in the lives of such people as a small freeholder, a white female, a merchant, and an African-American slave. One or two groups report, David augments the reports, and discusses the other cases (¾ hour).
  • Summary of principal interpretive goals (¼ hour).


Each large lecture class will be divided into groups of twenty-five interpreters and will have the following half-day program on four subsequent days beginning with the afternoon of David's morning program:

  • Carl Lounsbury and Ron Hurst lead a visit to the site to discuss exterior and interior architecture, fittings and furnishings of the building (1 ½ hours).
  • Describe operating procedures for general admission groups and school groups for both rules day and court day programs (a written summary of the procedures will be provided). (½ hour).
  • Describe selected encounters ("scenarios") between clerk or —attorney and various townspeople played by Character Interpreters and discuss how each will meet specific interpretive goals (¾ hour).
  • Discuss interpretive opportunities before and after the Courthouse interpretation and thematic connections with the rest of the town (½ hour).

(This totals 6½ hours of training. Lunch and a fifteen-minute break in the morning and in the afternoon will complete the eight-hour day.)

To enroll in advanced training for Character Interpreters and those Historical Interpreters who are given study visit assignments and third-person interpretive roles at the Courthouse, interpreters must successfully complete the introductory course. The advanced course will teach the use of primary and secondary sources to solve problems of historical interpretation, will require interpreters to write first-person scenarios and third-person presentations, and organize in-depth tours on the subject of local government. Also included will be skill practice sessions for first-person interpreters, first-person and third-person interactions, third-person introductory presentations, and Courthouse interpretations that include school groups. Historians will assist in the training by selecting problems for study, preparing course materials, and reviewing the content of the interpreters' responses.

Because the advanced training is a time-consuming process, we propose that the twelve Character Interpreters, and the approximately ten Historical Interpreters who have key roles in the courthouse interpretation be given their introductory and advanced training well before the program begins. We propose that this group receive training before the experiments take place in the fall of 1990. They could then participate in the experiments and make suggestions for revisions of both the program and the training. This would mean that the introductory training program would be done three times, once in the fall of 1990 and twice in the late winter or spring of 1991.


Summative Evaluation.

After the interpretive program has been operating for six months it will be necessary to conduct a summative evaluation to determine if the program is still running smoothly. Members of the Interpretive Planning Team will be assigned to observe the program and to share their observations with the supervisor and director of the site. Feedback from interpreters and visitors will also be collected to insure that the quality of the original program is being maintained. Finally, members of the Educational Standards Committee will be asked to serve as outside reviewers and they will observe the program and share their observations with the program supervisor and director. Ultimately, the job of maintaining an exciting and effective educational program lies with the interpreters and visitor aides who work at the Courthouse. By testing out our ideas with the public and gathering feedback from staff and visitors during initial planning stages, we will be giving interpreters and visitor aides a plan that is destined to succeed.

Estimated training costs are as follows:

Introductory Course:
African American Interpreters12 x 8 hours @$8.25 =$ 792
Character Interpreters12 x 8 hours @ $8.41 =$ 807
Historical Interpreters130 x 8 hours @$8.00 =$ 8,320
Visitor Aides35 x 8 hours @ $5.81 =$ 1,627
Advanced Course:
African American Interpreters12 x 40 hours @$8.25 =$ 3,960
Character Interpreters12 x 40 hours @$8.41 =$ 4,037
Historical Interpreters10 x 40 hours @$8.00 =$ 3,200


Other training costs include airline and per them expenses for David Konig's three trips to Williamsburg as well as his honorarium for teaching the introductory course three times and serving as a consultant for the advanced training. Training materials costs will include reproduction of David Konig's and Carl Lounsbury's reports for all participants as well as additional copies of the supplementary readings designated. We will probably make video tapes of at least part of the training and will have to purchase blank tapes for that purpose.


Appendix I
Charter Document


Place of Exhibition, Tour or Special Program:The Courthouse
Team Leader:Cary Carson
Team Members:Barney Barnes, Barbara Beaman, Ron Hurst,
David Konig, Carl Lounsbury, Pam Pettengell



The James City County and City of Williamsburg Hustings Courthouse during the third quarter of the eighteenth century.

Principal Artifacts:

The key artifact is the large brick courthouse itself. Surrounded by a two acre square it stood apart from the shops and houses of the town. Inside against the back wall is the raised bench where the justices of the peace sat. Flanking the justices' bench are the sheriff's boxes which served as reminders of the physical power of the court. In front of the raised bench stood a small desk set off by a railing. The county clerk sat at this strategic spot controlling the flow of business before the court. Farther from the justices' bench were two small benches reserved for attorneys. A ballustrated bar separated these court officials from the broad open area of the courtroom where the public stood.

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 business coming to the court. 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.

Demonstrated or Implied Activities:

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 2 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 than 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 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.

Historical Cast of Characters:

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. 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 port, tobacco sealers—all these men assured that anything made in Virginia was 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 accused. Arbitrators cooled heated disputes and untangled complicated problems that the court had not wish to meddle with. Neighbors agreed to record and appraise the belongings of those who died.

Key Social Relations and Connections with Other Colonial Williamsburg Sites:

The central location of the courthouse is more than symbolic. Located at midpoint on the Duke of Gloucester Street, the courthouse was a social crossroads that brought together the many different social groups that comprised Colonial Williamsburg. Virtually any of the sites already included in the existing interpretive program at Colonial Williamsburg can be shown to have had some connection to the courthouse. Some connections may seem farfetched, but the public functions of the court were so extensive that they touched many different activities and assisted many different institutions, nearly all of which are represented by existing historic sites. For example, churchwardens of Bruton Parish had to bring their presentments to the court for action. Tavernkeepers like Anthony Haye at the Raleigh had to obtain licenses from the court.

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 such as Greenhow and Prentis part of a transatlantic commercial network subject to all the problems of economic fluctuation and business pressures. Law suits with these overseas creditors frequently appeared at the court.

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. 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 at the James City County Court that met in the same building. Because of the looming presence of the Crown in Williamsburg, the city's Hustings Court acted "with the greatest dispatch" to settle such cases.

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, 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 Williamsburg Common Council also used the building for its own meeting. Among the members of the common council for whom sites survive were Alexander Craig and James Geddy.



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 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 town like Williamsburg or Yorktown, the courthouse was no less an important presence. Closer to it, they were all to transform their usually quiet villages into bustling markets. The courthouse loomed large in town life too.

Therefore the main interpretive goal at the courthouse is to demonstrate to the visitor that within this building colonial Virginians helped create a civil and legal system uniquely suited for an emerging American Society.

Suggested Topics:
  • 1.The role of the court in the colonial economy.
  • 2.The legal system as an instrument reinforcing the institution of slavery.
  • 3.The legal rights of women in Colonial Virginia.
  • 4.The vital participation of yeomen planters in the court.
  • 5.The local English legal system of the eighteenth century.
  • 6.The role and powers of the various county court officials.
  • 7.The administrative and judicial duties of the county court.
  • 8.The gentry and the prestige of the county commission.
  • 9."Court Days" as a community event.
"Becoming Americans" Storyline:

The administration of justice may seem an unlikely choice as the central emphasis for an interpretive theme, yet it is a 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 5 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 source 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 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 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 6 society produced a legal system simultaneously supportive and subversive of British culture. All 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, a body with a well-earned reputation for its sympathy toward British creditors seeking to recover against Virginia debtors. That year, the House of Burgesses took from the Hustings Court the authority to adjudicate the type of case that British creditors customarily used against Virginia planters. When the law directing such a change got to Britain, however, the Privy Council disallowed it.

Yet British officials, for all their attention to colonial 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.


Available Staffing:

Assume that an additional 2.5 F.T.E.'s will be available to provide "living history," e.g., reenactment, at the Courthouse. Consult with Mr. Ed Spencer about the man hours that would be spent opening and closing the building as needed (Historic Area Attendants) and monitoring tickets and providing interpretation to arriving visitors (Visitor Aides). The Department of Historical Interpretation will be given general site supervision responsibility, but we hope that they will be able to provide this coverage without additions to their staff or budget. Consult with custodial services as to their current level of service at the Courthouse and inquire as to whether they believe more hours will be needed once it becomes an operating exhibition. And, if audio-visual programming is recommended, the costs of maintaining such programming should also be calculated.

Training and Materials:

As proposed by the planning team.

Research Support:

Research materials for the project have been completed and are or soon will be available to the team. Further research needs will be identified by the team.


Audiences and Seasonality:

Situated on Market Square, the Courthouse sits amidst one of the most heavily trafficked areas of the Historic Area. In 1986, to illustrate this point, the Magazine will receive some 650,000 visitors and the Peyton Randolph House some 250,000. The Bootmaker will take in about 320,000. Door count is a function of the building's capacity, the duration of interpretation, and the number of days and hours per day open each year.

The team should consider operating the Courthouse on a schedule something like this:

January-mid-March:Open Tuesday, Friday, Saturday
Mid-March-mid June:Open Tuesday, Thursday, Friday, Saturday, and Sunday
Mid-June-August:Open daily
September-December:Open Tuesday, Thursday, Friday, Saturday, and Sunday
The hourly schedule on days open is up to the team to recommend. The building could be open all day or open only while presentations are being made or a combination of these two patterns. While closed, the Courthouse should be available to Historical Interpreter-led groups.

Interpretations at the Courthouse should be designed to instruct and engage our general ticket-bearing audience. Lanthorn Tours currently form on the Courthouse steps. The team should consider whether the new interpretation will affect that practice. And Historical Interpreter-led groups will also be an important audience for the Courthouse.


The events and activities which transpired within and around the Courthouse in the eighteenth century were fraught with social symbolism and often of a dramatic nature. The Courthouse interior is itself a sort of theatre in which the dramatis personae are elevated upon platforms and benches and the audience watches, listens, and (occasionally) participates from the pit 8 behind the bar. Trials, sentencings, hearing petitions, making administrative decisions, elections, punishments in the stocks and pillory, public gathering outside the Courthouse, militia training on the green--all invite interpretation through dramatizations and reenactment which permit considerable active participation by visitors and require the interpretation of our personnel portraying justices, lawyers, defendants, candidates, and miscreants.

The team should also consider how the Courthouse interior might be interpreted when no drama is afoot. Can this be done through signage and/or audio-visual means and/or written materials? Or is a site interpreter the best way to accomplish this? In pondering this opportunity it will be best to keep in mind that increasing staff hours is the interpretive resource we're least likely to get funded.


The drafting of a comprehensive interpretive plan that is ready to undergo the review process should be completed by Friday, March 27, 1987. The implementation of the project hinges on procurement of the required funds. But our hope is that the newly restored and interpreted Courthouse will open to the public by mid-June 1989.


Scenarios for Interpretation of the Williamsburg-James City County Courthouse
David Konig and Carl Lounsbury

Appendix II

The following scenarios are presented as basic, generalized plans for more specific programs whose precise contours will be determined by staffing and time considerations. They encompass a variety of formats—a single character interpreter present when the court is not in session, two such characters out of sessions, and larger groups of interpreters, including Historical Interpreters. Every effort has been made to choose scenarios that illustrate the larger themes in the interpretive plan, as well as those that touch upon specific sites or involve other characters.

  • A.County Clerk (Benjamin Waller or his deputy)
    • 1.Proving an estate inventory (many possibilities here for drawing the visitor into interaction as the estate appraiser)
    • 2.Accepting petitions from citizens, for example, to relocate a road, to register a livestock mark, to send on to Burgesses' Committee on Propositions and Grievances (offers many opportunities for introducing issues of political content), to change location of courthouse (a natural issue relating to questions of country growth, social development, and smaller communities within the country), to complain about prices charged by ordinaries (a great chance to tie in with other locations, such as Wetherburn's Tavern), to exempt from taxes (tithes) on grounds of infirmity or old age.
    • 3.Filing as public record a last will and testament or title transfer deed.
  • B.Attorney (James Hubbard, out of session)
    • 1.Requesting a summons to serve on clients debtor
    • 2.Answering a summons from client's creditor
    • 3.Making formal declaration of complaint (serves to recapitulate steps 1 and 2 for purposes of explaining court litigation procedures)
    • 4.Filing a plea for trial (serves to recapitulate all previous stages)
    • 5.Filing an appeal
    • 6.Arranging an auction for client's property
    • 7.Arranging freedom of client (from gaol) upon presentation of bankruptcy petition
  • 2
  • C."Townspeople" appearing before county clerk (or, simply waiting for clerk and explaining the nature of their business to visitors)
    • 1.Benjamin Powell: seeing clerk with regard to repairs made on public property (for example, courthouse furniture demolished at election day or worn heavily on court days; courthouse exterior damaged by vandals or casually by local boys playing handball; stocks and pillories; gaol repair needed to make secure enough to hold accused criminals/convicted slaves awaiting punishment)
    • 2.Merchant: seeking stay of judgment after fall in exchange rate; alternatively, asking for a scire facias to renew a judgment on which he had forborne execution during hard times.
    • 3.Ship captain: breach of contract with local chandler.
    • 4.Slave: suing for freedom.
    • 5.Housewife: requesting or reporting that second husband be named co-administrator of deceased first husband's estate; before a justice, being examined as to willingness to give up dower rights; requesting status as feme sole trader (married woman who has legal right to make her own contracts for business purposes).
    • 6.Servant: complaining that master is abusing or failing to instruct according to indenture; request to be put to another master.
    • 7.Guardian: Certifying that management of trusteeship obligations are being met.
    • 8.Artisan (upholsterer): recording estate inventory; complaint that another artisan of non-master craftsmen statue, is undercutting price and quality.
  • D.Appearance before Hustings Clerk
    • 1.Complaints brought forward to Hustings Court by clerk of market, responsible for answering to aldermen: rotting meat; poor quality bread; high prices of foul bread; muggings.
    • 2.Complaints by individuals about fire hazards or public nuisances (for example, roaming swine) or "effluvia" that will cause disease.
    • 3
    • 3.Complaints about encroachment on public property (for example, building bulkheads or stairs—even buildings—on town land).
  • E.Court Day (Hustings or County)
    • 1.Debt trial, at issue after pleading and counterpleading (recapitulated by chief justice).
    • 2.Adjudging age of slave
    • 3.Criminal trial
    • 4.Grand jury and/or vestry presentment list
    • 5.Grand jury charge read by chief justice
    • 6.Proving of documents such as those initially presented to clerk (as above)
    • 7.Reading of new statutes passed by Assembly
    • 8.Reading of justices' commission
    • 9.Petit jury reporting verdict
    • 10.Enquiry jury reporting damages
    • 11.Lawyer's declamation to jury
    • 12.Lawyer mingling and soliciting business
    • 13.Whipping of malefactors

This list of interpretive scenarios should cover the major legal issues that we wish to interpret under the "Becoming American" rubric. It is not exhaustive. It can be expanded to fit our peculiar needs and personnel requirements.

Appendix III
A Courthouse Hornbook and Glossary
David Konig


A Courthouse Hornbook:
The Personnel and Procedures of the County Court
in Eighteenth-Century Virginia
An Interim Reference Guide Prepared for the
Courthouse Interpretive Planning Team
Colonial Williamsburg Foundation
David Thomas Konig

Cary S. Carson
Barney Barnes
Barbara Beaman
Ron Hurst
David Konig
Carl Lounsbury
Pam Pettingill

NOTE: This document is prepared as a brief and concise reference source for the purposes of the Courthouse Interpretive Planning Team. As such, it omits the scholarly apparatus that will be found in the final Research Report that will deal more fully with the development of Virginia legal institutions. Its statements 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. For these reasons it is not for public circulation.


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 courthouse (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 3 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 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 4 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, he got a CONTINUANCE, which gave him time to decide, or further to delay for the sake of delay. But he eventually had to make a choice about replying to those facts:

  • A.He could admit them all as true and enter a DEMURRER asking the court to make a DECISION as their legal adequacy.
  • B.He could plead the "general issue"—a flat denial of all the facts alleged.
  • C.He could make a "special plea" admitting those facts alleged, but adding some new facts in justification ("Yeah, but he hit me first" or "Yeah, but that obligation was made seven years ago and there is a statute of limitations that requires all obligations like that to be sued on within six years.") However, this now placed the burden of factual proof on the defendant and permitted the plaintiff to put new matter in evidence. Special pleading was a rather technical matter, for it involved a question of law: namely, did the new fact (the special matter put in evidence) stand up in law to defeat the claim of the plaintiff? The justices decided this legal matter as to whether the plea was good or not.

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:


Each party might find that its pleading was not drawn up 5 properly, and upon challenge would have to amend. The law was very liberal on allowing amendments to pleading in the 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 plea, 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...

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 on through dozens of additional terms.


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 7 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, he 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 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 writ at MESNE PROCESS placing a defendant's property under court control. Ordinarily, the circumstances permitting this were limited: when a debtor could not be located and was subject to losing his cause through DEFAULT; if a debtor had absconded and left property in the county; if 7 there existed no administrator or executor to an estate being sued; if the debtor's only property was in the hands of a third party. This writ barred the holder from selling the property and thus secured it for a court's final JUDGMENT. (It served the same purpose, therefore, as SPECIAL BAIL, for situations where the defendant for some reason could/would not post such bail.)


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 "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 9 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, 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, DEEDS, AND WILLS constituted the vast bulk of the loose papers stored in a county courthouse.






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 judgement 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 courthouse 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 for the defendant and served process on him. This complaint had to be made no later than three days before the 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 the ATTACHMENT of the defendant's 11 property. If the defendant, properly notified, failed to appear, a CONDITIONAL JUDGEMENT was entered against him, which he had to contest at the next court or face CONFIRMATION and EXECUTION of the judgement.

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 courthouse steps.


A writ of EXECUTION directing the sheriff to seize the body of a debtor against whom a court judgement had been executed and not paid. The debtor was imprisoned until he could discharge the debt, or until he declared insolvency.

CASE (also known as TRESPASS ON THE CASE, but not to be confused with TRESPASS, an entirely different writ)

A common law writ, most commonly used to recover money lent by an unsealed written instrument (such as a promissory note), by verbal or unsealed written contract, or by some other promise undertaken but not fulfilled. See TRESPASS ON THE CASE.


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 the 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 CLERK, during which time they absorbed enough legal knowledge to 12 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, 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.


Because the CLERK's duties involved services that had to be discharged when the court was not in session, he usually took his papers and records home with him, where he set up an office known to all. As a result, references to "the clerk's office" may pertain to his home rather than to a room at the courthouse. This practice continued even into the third 13 quarter of the 18th century, when courthouses appear to have set aside space for him. Court records of case still pending therefore were kept at his home.


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 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 14 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 ancient operating system of writs and the procedures they called for in the system of Anglo-American justice. Every legal action in a common law court began with a writ stating a specific right belonging to the complainant, and a particular wrong that violated such right. These two categories defined the precise (the one and only) remedy that the court could apply to redress the wrong. The complainant had to state each of these three categories of his plea in language that had evolved steadily since the 13th century. The most common writs in use in 18th-century Virginia were the writs of DEBT, CASE, TRESPASS, DETINUE, AND EJECTMENT. Each applied to a particular factual situation, and they were not, in law, interchangeable. Nevertheless, throughout the 17th century Virginia county courts used them loosely, until the General Court and more professional lawyers forced them to adhere more strictly to the proper writs, with their appropriate procedures, of common law pleading. See also TRIAL.


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 15 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 attorneys, 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 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 16 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), 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."


Strictly by the rules of COMMON LAW PLEADING, the only proper writ to use in suing for an obligation owed by bond BOND. Conversely, it was to be used only for such obligations, although until the 18th century Virginia courts seem to have used it generically for any action to recover money owed. The proper defensive pleading used against this writ was "nil debet" ("I do not owe"), which enabled the defendant to argue either that the bond was somehow invalid or that he had performed the condition. Most would do the latter, by 17 which they would "pray oyer of the bond" (ask that it be read and heard in court) and plead that they had performed the condition. At the TRIAL that ensued, the justices or JURY decided if the conditions had been performed.


The formal legal statement, in methodically legalistic language, stating all the material facts constituting the plaintiff's cause of action. It had to be filed at the RULES DAY or first COURT DAY to which the defendant had been summoned by a CAPIAS AD RESPONDENDUM. See ACTION.


An instrument, under seal, conveying title to real property. Usually, the seller also made a second deed of warranty, a bond by which he guaranteed that he had valid title to the property, and which promised damages if the title were later proven defective. Occasionally, you will run across the term "deed poll"; this is now obsolete, though it was sometimes spoken of in colonial Virginia. It simply meant that the document was cut with smooth edges, lacking indentation (Formerly, the two parties to a conveyance wrote the deed twice on a single sheet and then cut it in half with a wavy line; each party kept one, the authenticity of which could be proved by placing it against the other. Most Virginia deeds actually had a wavy line at the top, a purely decorative vestige that had nothing to do with the ancient practice.) Deeds, WILLS, and BONDS constituted the vast bulk of the loose papers stored in a county courthouse.




The determination of judges on a matter of law as applied to specific facts or, if no jury was involved, on both law and facts (as distinguished from a jury's VERDICT, which only determined the facts in dispute). See DEMURRER, PETIT JURY.



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 referred to as "subclerk." Usually only one man served in this office, serving as a scrivener for the clerk and therefore earning a healthy income from the fees of drafting documents. He also might WITNESS a document and receive a fee for that. Deputy clerks aided the clerk on COURT DAY especially. While the clerk was involved in managing the progress of cases through the DOCKET, his deputy (in all likelihood seated off to the side in one of the ancillary rooms known as the CLERK'S OFFICE) would record what was going on, deal with those parties who wanted to know how the docket was proceeding; if he had any time to spare, he would copy documents. He probably kept in touch with what was going on in the larger courtroom through the DEPUTY SHERIFFS.



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 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 common law writ for the recovery of an actual item of chattel property, which the plaintiff has a right to, and which the defendant obtained in some lawful manner (e.g., not stolen). It was most usually employed by an heir to recover possession of a slave believed to be part of a legacy, but held by someone claiming ownership.


The formal statement of the cause of action. A plaintiff was required to make such a declaration at one of the RETURN DAYS, or in open court when the cause of action was called in court. If he failed to do so, his cause was dismissed, and he owed court costs to the defendant.


The list of cases and other matters set to be handled by the court. The CLERK prepared this and had it ready at the RULES DAY, where it 20 could be examined by attorneys and others.


A common law writ, evolving out of TRESPASS, to try the title to a parcel of land. It originated as an action for tenants (who, obviously, did not own their land) to obtain redress when someone entered their land and ousted or ejected them. The action, in its early form as a type of trespass, therefore did not give the winner title; it simply punished a wrongdoer and awarded damages, and thus established who had the right to use that land. Because it was such a simple action, land owners wanted to use it, too; however, it was only for tenants. As result, lawyers developed a fiction: the parties suing, even if they both claimed title to the land, entered the action as being between two "tenants"—names they made up, such as John Doe and Richard Roe, or Fairclaim. v. Shamtitle. By the 17th century in England, this had become the usual way of trying title to land, and it was used in Virginia, too. By long usage, therefore, the courts honored its decision as establishing actual title.


A writ of EXECUTION used when a debtor had no cash or chattel property to be taken inexecution. Because no land or slaves could be taken in execution unless secured by MORTGAGE, the court had to order that half the profits of the judgment debtor's lands be paid to the judgment creditor until the judgment was satisfied.


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 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 21 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 could drag it on for literally dozens of terms.


The order of a court, after JUDGMENT directing satisfaction. It might compel complete satisfaction (as by paying money or delivering possession of land) or serve as a means to that end (as through placing a recalcitrant or INSOLVENT debtor in gaol, via CAPIAS AD SATISFACIENDUM). Final judgments in colonial Virginia were secured by the following writs of execution: FIERI FACIAS, ELEGIT, HABERE FACIAS POSSESSIONEM.



A writ of execution directing the sheriff to seize and sell at auction the chattels of a judgment debtor, in satisfaction of a court judgment.


A group of twenty-four laymen summoned twice yearly (May and November) to inquire into purported crimes and return indictments (also known as presentments) of suspected individuals to be tried by the court. The grand jurors were chosen and summoned by the sheriff from among the list of tithe payers in the county (those heads of households who actually paid the tithes levied). In practice, the grand jurors were of a slightly higher social status than those men serving on the PETIT JURY. A man might serve on these juries many times; we have evidence of some who served on dozens of grand juries. The conclusion we may draw from such service is the presence of a group of quasi-officials—technically laymen, but such frequent participants that they had a considerable influence on the workings of the system.


A writ of execution, issued after an EJECTMENT action, directing the sheriff to place the winning party in actual possession of the land in controversy.


That person who, by the ancient feudal rules of succession, was entitled to inherit a decedent's real property. Although defined clearly by generations of inheritance practice, and although supposedly obviated by written wills that spelled out such lines of descent, the determination of who was heir at law caused more legal problems in colonial Virginia that did any other area of law. It became tangled for two main reasons peculiar to Virginia: the patterns of remarriage in Chesapeake society, and the problematical classification of slaves as real property. Although not unique to Virginia, a third factor also complicated matters: the legal 23 limitations of those persons drafting wills, which were often legally imprecise and thus open to dispute. Further, such inheritance cases took up a disproportionately large share of the court's time because so many involved matters that had to be solved by EQUITY, whose broad concern for fairness had produced many more arcane rules and remedies, and which allowed more reasons for CONTINUANCES that the rather strict or cut-and-dry procedures of the COMMON LAW.


The most usual method of continuing a court action to another term. By the 17th century, it had nothing to do with its original medieval purpose of letting the parties meet and talk (hence the verb, "to imparl"). In actual practice, it was a preliminary to litigation, a postponement usually used for testing the resolve and strength of one's opponent and, if need be, getting a lawyer.




A bankrupt. By Virginia law, he could be imprisoned as a debtor, but after twenty days in gaol he might certify that he was not hiding any assets, and be released.


A person dying without a WILL.


The order of a court finally determining rights between parties, and making an order to carry them into effect, through EXECUTION if necessary.


A body of laymen summoned to assist the court by making a factual determination. See PETIT JURY, GRAND JURY, ENQUIRY JURY, CORONER'S JURY.


The chief legal officer of the colony, one of whose deputies was appointed for every county of the colony. These deputy king's (or queen's) attorneys basically served to prosecute criminal 24 complaints, and were paid by the county for their attendance at court.

MESNE (pronounced "mean") PROCESS

Writs issued at the intermediate stages of an action (that is, between the primary process of the process, when a CAPIAS AS RESPONDENDUM begins the action, and the final process, as when a FIERI FACIAS commands EXECUTION.) Such writs may order a defendant put in gaol, or his property put under ATTACHMENT.


Like today, a type of bond, secured by real property rather than cash. In colonial Virginia it was the only way for a creditor to take a debtor's land or slaves (also real property, for this purpose) in satisfaction of a debt. In all other cases, he had to take cash damages, or the cash proceeds from the sheriff's sale of chattel goods taken in execution by FIERI FACIAS. Technically, a debtor could secure his obligation with chattel property, which thereby created a "chattel mortgage," but these were less common than real mortgages. A creditor might request a chattel mortgage, however, because the bond created a SPECIALTY, giving him priority in any insolvency.


An application to the court for obtaining an order or a rule directing something to be done in favor of the applicant. See TRIAL.


A special court established to "hear and end" criminal causes. On the county level, it did not convene regularly, but met only (and whenever needed) to try a slave accused of a criminal act. Its trials differed from those for free persons at the regular county courts in several major respects: no JURY was available to the accused; the defensive pleading was made by the owner, who was not permitted to argue any legal points whatsoever; and the court was empowered to try felonies—those crimes punishable by loss of life or limb. When a slave was executed, the justices of 25 this court set a compensatory value to be paid by the colony to the owner. If a free person committed a felony, he or she had to be sent to the General Court. See also CRIMINAL JUSTICE.


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 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 26 says such-and-such."


The certification by the court that a WILL has been proved as valid, and appointing a person or persons as ADMINISTRATOR of the estate. In England until 1857 this certifying power was reserved to ecclesiastical courts, but in colonial Virginia (as in the other colonies) it was within the powers of the county courts. See also ADMINISTRATOR, WILL.




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 the settle there the preliminaries and verbiage that would slow other courts. Because 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.

The RULES DAY and the first day of court were the busiest days of the 27 term; once people filed their motions or took care of deeds. bonds, and wills, they returned home. See also COURT DAY.




A sealed promise. This included BONDS and DEEDS of all types. By law it created an obligation of the highest priority; that is, that had to be paid first, before other types of promises would be paid.




A common law writ to recover damages for a broad variety of torts (private injury). There were specific types of trespass actions, such as that for assault and battery, breaking one's close (unlawful entry onto another's property), or taking goods away.


Actually, a term interchangeable with CASE, and not at all a TRESPASS. The confusion arises because—like trespass—it can apply to private wrongs, but it differs by pertaining only to indirect or consequential wrongs caused by someone's act (such as leaving a log in a road, which then overturned a cart, rather than the true TRESPASS of actually throwing the log at the cart), and for nonviolent injuries (such as slander). TRESPASS ON THE CASE also differs from trespass in applying to someone's failure to act (what we today call negligence), or by the refusal to act according to an obligation undertaken or assumed. Hence, it could also be employed for damages upon someone's refusal or failure to perform a contractual obligation. The proper defense, according to the rules of COMMON LAW PLEADING, was that the defendant "did not assume" the obligation.


The judicial determination of the issues in dispute between parties. Technically, this was only one point in an ACTION—the point at which the issues in dispute were actually settled—and it might be preceded 28 or followed by many MOTIONS stretched over many monthly meetings of the court. See ACTION.


The factual determination of a PETIT JURY.


The legal instrument by which someone makes a disposition of property to take effect after his death. In colonial Virginia, the will had to be signed by two WITNESSES, who after the death of the person making the will (the testator) had to appear before the county clerk and swear that the will was valid—i.e., that they had seen the testator make the will in a state of sound mind, and under no duress. The court was much more strict in accepting the proof of a "nuncupative will," one dictated by the dying person and only later written down.


A person who has knowledge of a fact and makes it known to the court. Not all witnesses whose names appear in the court records actually set foot in court: some simply swore to documents that were put on deposit with the court, but were sworn before the clerk; others, however


A written order of the court, in the name of the monarch, directed the sheriff, another officer of the court, or a private individual. It either authorized or commanded a specific act incident to the pursuit of justice. See COMMON LAW PLEADING.