OF THE COURTS OF LAW IN VIRGINIA.

§ 22. I have already, in the chronology of the government, hinted what the constitution of their courts was in old time, and that appeals lay from the general court to the assembly; that the general court, from the beginning, took cognizance of all causes whatsoever, both ecclesiastical and civil, determining everything by the standard of equity and good conscience. They used to come to the merits of the cause as soon as they could without injustice, never admitting such impertinences of form and nicety as were not absolutely necessary; and when the substance of the case was sufficiently debated, they used directly to bring the suit to a decision. By this method, all fair actions were prosecuted with little attendance, all just debts were recovered with the least expense of money and time, and all the tricking and foppery of the law happily avoided.

The Lord Colepepper, who was a man of admirable sense, and well skilled in the laws of England, admired the construction of their courts, and kept them close to this plain method, retrenching some innovations that were then creeping into them, under the notion of form, although, at the same time, he was the occasion of taking away the liberty of appeals to the assembly.

But the Lord Howard, who succeeded him, endeavored to introduce as many of the English forms as he could, being directly opposite to the Lord Colepepper in that point.

And lastly, Governor Nicholson, a man the least acquainted with law of any of them, endeavored to introduce all the quirks of the English proceedings, by the help of some wretched pettifoggers, who had the direction both of his conscience and his understanding.

§ 23. They have two sorts of courts, that differ only in jurisdiction, namely: the general court, and the county courts.

§ 24. The general court is a court held by the governor and council, or any five of them, who by law are the judges of it, and take cognizance of all causes, criminal, penal, ecclesiastical and civil. From this court there is no appeal, except the thing in demand exceed the value of three hundred pounds sterling, in which case an appeal is allowed to the king and council, in England, and there determined by a committee of the privy council, called the lords of appeals; the like custom being used for all the other plantations. In criminal cases, I don't know that there's any appeal from the sentence of this court; but the governor is authorized, by his commission, to pardon persons found guilty of any crime whatsoever, except of treason and wilful murder; and even in those cases, he may reprieve the criminal, which reprieve stands good, and may be continued from time to time until his majesty's pleasure be signified therein.

§ 25. This court is held twice a year, beginning on the 15th of April, and on the 15th of October. Each time it continues eighteen days, excluding Sundays, if the business hold them so long, and these were formerly the only times of goal delivery; but now, by the governor's commission, he appoints two other courts of goal delivery, and the king allows one hundred pounds for each court to defray the charge thereof.

§ 26. The officers attending this general court, are the sheriff of the county wherein it sits, and his under officers. Their business is to call the litigants, and the evidences into court, and to empannel juries. But each sheriff, in his respective county, makes arrests, and returns the writs to this court.§ 27. The way of empanneling juries to serve in this court, is thus: the sheriff and his deputies every morning that the court sits, goes about the town, summoning the best of the gentlemen, who resort thither from all parts of the country. The condition of this summons is, that they attend the court that day to serve upon the jury, (it not being known whether there will be occasion or no.) And if any cause happen to require a jury, they are then sworn to try the issue, otherwise, they are in the evening, of course, dismissed from all further attendance, though they be not formally discharged by the court. By this means are procured the best juries this country can afford; for if they should be summoned by writ of venire, from any particular county, that county cannot afford so many qualified persons as are here to be found, because of the great resort of gentlemen from all parts of the colony to these courts, as well to see fashions, as to dispatch their particular business. Nor is vicinage necessary there, to distinguish the several customs of particular places, the whole country being as one neighborhood, and having the same tenures of land, usages and customs.

The grand juries are empanneled much after the same manner; but because they require a greater number of men, and the court is always desirous to have some from all parts of the country, they give their sheriff order a day or two before, to provide this pannel.

§ 28. In criminal matters this method is a little altered; because a knowledge of the life, and conversation of the party, may give light to the jury in their verdict. For this reason a writ of venire issues in such cases, to summon six of the nearest neighbors to the criminal, who must be of the same county wherein he lived; which writ of venire is returned by the sheriff of the respective county, to the secretary's office, and the names are taken from thence, by the sheriff attending the general court, and put in the front of the pannel, which is filled up with the names of the other gentlemen summoned in the town, to be of the petty jury for the trial of that criminal. If the prisoner have a mind to challenge the jurors, the same liberty is allowed him there as in England; and if the pannel fall short, by reason of such challenge, it must then be made up of the bystanders.

§ 29. All actions in that country are generally brought to a determination the third court, unless some special, extraordinary reason be shown why the party can't make his defence so soon. The course is thus: upon the defendant's nonappearance, order goes against the bail, (for a capias is generally their first process,) on condition, that unless the defendant appear, and plead at the next court, judgment shall then be awarded for the plaintiff. When the defendant comes to the next court he is held to plead. Thus, by common course, a year and a half ends a cause in the general court, and three or four months in the county court. If any one appeal from the judgment of the county court, the trial always comes on the succeeding general court; so that all business begun in the county court, tho' it runs to the utmost of the law, (without some extraordinary event,) ought to be finished in nine months.

§ 30. Every one that pleases, may plead his own cause, or else his friends for him, there being no restraint in that case, nor any licensed practitioners in the law. If any one be dissatisfied with the judgment of the county court, let it be for any sum, little or great, he may have an appeal to the next general court, giving security to answer, and abide the judgment of that court; but an action cannot originally be brought in the general court, under the value of ten pounds sterling, or of two thousand pounds of tobacco, except in some particular cases of penal laws.

§ 31. The county courts are constituted by law, and the justices thereof appointed by commission from the governor with advice of council. They consist of eight or more gentlemen of the county, called justices of the peace, the sheriff being only a ministerial officer to execute its process. This court is held monthly, and has jurisdiction of all causes within the county, cognizable by common law or chancery, and not touching life or member, and never was limited to any value in its jurisdiction, as Mr. Oldmixion would have it, pag. 298. But in the case of hog stealing, they may sentence the criminal to lose his ears; which is allowed by a particular act for that purpose, as the punishment of the second offence, the third is felony. In all things they proceed in the same manner as the general court.

§ 32. This monthly court hath the care of all orphans, and of their estates, and for the binding out and well ordering of such fatherless children, who are either without an estate, or have very little.

In September annually they are to enquire into the keeping and management of the orphan, as to his sustenance and education, to examine into his estate, and the securities thereof, viz: whether the sureties continue to be responsible, and his lands and plantations be kept improving, and in repair, &c. If the orphan be poor, and bound an apprentice to any trade, then their business is to enquire, how he is kept to his schooling and trade; and if the court find he is either misused or untaught, they take him from that master, and put him to another of the same trade, or of any other trade, which they judge best for the child. They cannot bind an orphan boy but to a trade, or the sea.

Another charitable method in favor of the poor orphans there, is this: that besides their trade and schooling, the masters are generally obliged to give them at their freedom, cattle, tools, or other things, to the value of five, six, or ten pounds, according to the age of the child when bound, over and above the usual quantity of corn and clothes. The boys are bound till one and twenty years of age, and the girls till eighteen. At which time, they who have taken any care to improve themselves, generally get well married, and live in plenty, though they had not a farthing of paternal estate.