THE COUNTY COURT AND ITS OFFICERS

The functions and officers of the colonial court

In colonial Virginia local government was centered in the County Court. Its origins as a political and social institution have been attributed to various prototypes in Tudor and earlier English history. By the time Fairfax County was established in 1742, this institution and its functions in colonial Virginia had been clearly formulated and accepted.[43]

The County Court evolved from the colony's original court established at Jamestown and consisting of the Governor and Council sitting as a judicial tribunal. In 1618, the Governor ordered courts to be held monthly at convenient places throughout the colony to save litigants the expense of traveling to Jamestown. Steadily the numbers of these courts increased and their jurisdiction expanded until, by the end of the seventeenth century, these local courts could hear all cases except those for which capital punishment was provided. In effect, their jurisdiction combined the contemporary English government's King's Bench, Common Pleas, Chancery, Exchequer, Admiralty, and Ecclesiastical courts.

During this period the local courts acquired numerous non-judicial responsibilities connected with the transaction of public and private affairs. Because of both tradition and convenience, the County Court was the logical agency to set tax rates, oversee the survey of roads and construction of bridges, approve inventories and appraisals of estates, record the conveyance of land, and the like. Therefore, the court's work reflected a mixture of judicial and administrative functions, and the officers of the court became the chief magistrates of the Crown and of their communities. Once this pattern of authority and organization was developed, it continued with very few basic changes throughout the eighteenth and most of the nineteenth centuries.

Highest in the hierarchy of the officers of the county and the court were the justices. Originally designated as "commissioners", and, by the 1850's referred to as "magistrates", their full title was "Justice of the Peace" after their English counterparts of this period.[44] Popular usage in Virginia, however, fostered the custom of speaking of the members of the court as "Gentleman Justices". They were both the products and caretakers of a system that placed control of public affairs in the hands of an aristocratic class, and at any time in the County's history up to mid-nineteenth century a list of the County's justices was certain to include the best leadership the County had.

Appointments were for life, and lacked any provision for compensation. Service on the court was, therefore, considered an honorable obligation of those whose position and means permitted them to perform it. That this was considered a serious and active responsibility was indicated by the fact that justices could be fined for non-attendance at court.[45] Through the colonial period and well after the War of Independence the justices of the county court were appointed by the governor, and, although episodes during this period indicated the recurrence of friction between the governor and General Assembly over the power to make these appointments, neither the local court nor the Assembly was able to assert permanently its claim to participate in the appointment process.[46] The number of justices of the county court varied considerably in different counties and times. By law the number was set at eight members; yet in 1769 Fairfax County had 17 justices, and appeared to be typical of other counties in the region.[47]

Appointments to the county court in some instances seemed almost hereditary, for when a justice of one of the prominent local families died or retired to attend to other interests it frequently occurred that his place was taken by a younger relative. Historian Charles Sydnor has noted that during the twenty years prior to the War of Independence three-fourths of the 1600 justices of the peace appointed in Virginia came from three hundred to four hundred families.[48]

Directly or indirectly, the justices of the county court influenced the selection of all other county officers. The clerk of the court was elected outright, but others—including the sheriff, coroner, inspectors and commissioners for special duties, and militia officers below the rank of brigadier—were commissioned by the governor from lists submitted by the justices.

The office of clerk of the county court presumably dates from the origin of the court itself, for references to clerk's fees are found in the law as early as 1621,[49] and authority for appointment by the governor is noted in 1642.[50] From the tables of fees authorized by law, one may see that the clerk performed a wide range of functions growing out of the work of the court. These included issuing orders for all stages of court proceedings, taking depositions and inventories, recording documents, and administering or probating estates of all kinds. In addition, the county's records of births, deaths and marriages were maintained from reports made to the clerk. In time, some of the tasks of issuing certificates—such as marriage licenses—which started as duties of the court were turned over to the clerk to perform.[51]

Frequently the clerk could and did exercise great influence with the justices in the handling of legal matters. As the members of the court were laymen, it often occurred that the clerk was the only person who was learned in the law, and his advice must have been a determining factor in many situations. His tenure in office also strengthened his position of influence, for it was customary to retain clerks in office for long periods of time, during which they had daily contact with the workings of the law and events in the county. Unlike the justices, who came from all parts of the county and seldom were present except on court days, the clerk was much more available at the courthouse, and so generally was the first to hear news from the colonial capital or the outside world. As a result, the clerks of the court were consulted on a variety of matters whenever a justice was not available.

Fees charged for performing the various services connected with the work of the court made up the income of the clerk, and occasionally the same person might hold the positions of clerk and surveyor, notary, or special commissioner. Under certain circumstances, clerks also could practice law, and all of these sources combined to produce an income which was for the times comfortable.

In the eighteenth century, two significant changes in the law prescribing the clerk's office occurred—it was made a salaried position, and the county court was given full authority to appoint the clerk—but in other respects the office was changed very little either by the passage of time or the transformation from colony to commonwealth.

Ranking roughly equal to the clerk in importance to the operations of county government was the sheriff. The office of sheriff appeared when counties began to be established in the 1630's; and until after the War of Independence, sheriffs were appointed by the governor on recommendation of the county court. Almost from the beginning, too, it appears to have been customary to appoint deputies or "under-sheriffs". So it is not surprising to find that after 1661 it was customary for the office of the sheriff to rotate annually among the members of the court who, in turn, appointed their deputies directly. But in the eighteenth century this system proved too disruptive, and deputies were retained throughout several terms of sheriff's appointments.[52]

From the beginning the sheriff and his deputies were compensated by fees which they collected for a wide variety of duties. These ranged from tasks connected with execution of the court's orders in criminal cases, to enforcement of the law and administration of the jail. In addition, the sheriff was due a fee from a master whose runaway servant or employee he apprehended and returned, or for collecting private debts or administering corporal punishment to servants for their owners.[53]

Sheriffs also collected the levies which financed county government. However, being subject to the pressures of their own circumstances, there often was a tendency to give first priority to activities which brought in their own fees. This led the General Assembly to require that sheriffs collect public levies before they take any fees for themselves, and to prescribe a number of other rules for improvement of the conduct of their offices.[55]

The role of the sheriff in the tax collection process always was a difficult one. The procedure for financing the county, initially, was for the justices simply to compile lists of their expenses and the freeholders of the county, compute how much was needed from each freeholder to cover the cost of government, and direct the sheriff to collect it. When the sheriff made his return to the court he was entitled to deduct a percentage as his commission.[56] However, revenue was often not collected, either because the job was farmed out to others who defaulted, or the county was too poor, or its residents were scattered and could not be found.[57] These problems ultimately led the General Assembly to establish other officers whose exclusive duties were the levying and collecting of revenue, but throughout the seventeenth and eighteenth centuries the sheriff performed a central role in the revenue process.

The sheriff was also the custodian of the county jail and its prisoners. He had the authority to decide on and collect bail, and he was liable for a fine if a prisoner escaped. He appears generally to have taken his responsibility for the county jail lightly, for there is evidence of widespread contracting for others to provide the guard for the jail and the food for the prisoners. Other officials who were part of the colonial county government performed specialized functions, but unlike the clerk and sheriff, took no part in the general administration of county business.

The office of county surveyor was created early in the seventeenth century to meet the obvious need for accurate measurement and recording of land. Initially, the surveyor was appointed by the county court, and sometimes treated as an additional duty of the clerk or sheriff. However, by the end of the eighteenth century a significant change had occurred in the legislation which called for appointment by the governor after a candidate had been examined and approved by the faculty of the College of William & Mary. By 1783, therefore, the surveyor became the first county official to be required to show professional competence as a condition of appointment.[58]

The office of constable appeared in 1645, and may be described as similar to that of sheriff, except that it served the court of a single justice.[59] Constables were appointed by the justices of the county court and served in precincts delineated by the justices.

The function of coroner in colonial Virginia was similar in all essential respects to that in England at that time, that is, to represent the Crown by investigating the circumstances of unexplained deaths. Originally, this function was performed by the justices, acting without fee. However, by the 1670's, coroners were being appointed by the governor, and authorized to collect fees for their services from the estate of the deceased or, lacking that, from the county. In the absence of the sheriff, the coroner could be designated by the court to perform the duties of the sheriff's office.[60]

Roughly a century after the appearance of the coroner, the next significant addition to the machinery of county government came with the creation of the commissioners of the tax. Forced by the increased military expenses of the 1760's and 1770's[61] to find new sources of revenue, Virginia created an official to take over the specialized function of assessment of property for tax purposes. He was elected by the freeholders of the county. In office, his task became one of laying off the county into districts, assessing property, and notifying the owner of the tax due.The commissioners of the tax were created in 1777, and lasted until 1782 when a new official, the commissioner of the revenue was established.[62] The new commissioner took responsibility for making assessments of taxable property under a simplified procedure, and the office has remained as a unique feature of Virginia's local government to the present time.

Court Days

As the institution of the county court grew during the seventeenth and eighteenth centuries and became the hub of county government, the monthly sessions of the court furnished an opportunity for general gatherings of the county's residents and visitors to transact both public and personal business. A scene that must have been typical of almost any Virginia county in the early nineteenth century has been described by historian John Wayland as follows:

For anyone who had business with the court, whether he or she came as a petitioner or a penitent, the justices, clerk, sheriff, and other officials represented the presence of power and authority as colonial Virginia knew it. But it was a presence in which men stood on little ceremony or formality with each other. Except in unusual circumstances all were likely to be laymen, for in colonial Virginia there was little formal education in the professions and, at most, one might have attended lectures at the College of William & Mary or a school in England. If the gentlemen justices were widely read in history, philosophy, government and literature—as well they might be—these advantages of their means and leisure did not destroy their appreciation for the issues they were asked to decide. For in their own right they were planters who had to face and deal with these issues in their own lives. Accordingly, their decisions, as reflected in the minutes of their sessions, were based on this realism which comes from personal experience.

Yet it remained true that the gentlemen justices of the county court were, for most practical purposes, beyond any control of the community they governed. Any complaint about the manner in which the justices conducted their business could only be directed to the governor.[64] Should the court cease to function for long periods of time because of quarreling among the justices, or should the occurrence of an emergency require replacement of justices, the freeholders of the county had no method of dealing with their problem except through the pressure of public opinion.[65]

Even with the best of good will among the members of the court, they could not escape the usual difficulties of handling legal matters before a bench of lay judges, who not only lacked professional training, but were handicapped by the scarcity and cost of law books.[66] Decisions which seemed wrong could, from earliest colonial times, be appealed to the governor and General Court. Later the establishment of District Courts, and their successors the Circuit Courts, provided an intermediate tribunal for determining matters which turned on points of law. But the business of the gentlemen justices on court days was a mix of legal and administrative matters, and in the latter area of activity there was no appeal.

Election Days

Among the non-judicial activities carried on at the courthouse, none was as colorful and few were more important than elections of members of the House of Burgesses. Elections were ordered by writs issued by the governor, and in each county they were conducted by the sheriff. Unless reasons of the greatest gravity prevented it, the polling place was the county courthouse.[67]

Voting, or "taking the poll" as it was called, was conducted in the court chambers, or, in warm weather, in the courthouse yard, with the sheriff presiding at a long table. On either side of the sheriff were justices of the court, and at the ends of the table were the candidates and their tally clerks.

The sheriff opened the election by reading the governor's writ and proclaiming the polls open. If there was no contest or a clearly one-sided election, the sheriff might take the vote "on view"—that is, by a show of hands of those assembled at the courthouse. Generally, however, a poll of the individual voters was taken. As the polling went on, each freeholder came before the sheriff when his name was called and was asked by the sheriff how he voted. As he answered, the tally clerk for the candidate receiving the vote enrolled it and the candidate, in his turn, generally acknowledged the vote with a bow and expression of appreciation. At the close of the polling a comparison of the tally sheets showed the winner.

This method of voting enhanced the excitement of a close election, and, since elections frequently were held on court days when many people came to the courthouse on other business, activity outside the courthouse sometimes was spirited. Wagers were offered and taken, arguments broke out and fights sometimes followed.[68]

Those attending the elections usually were in good spirits, for they were aided by the custom of the candidates to provide cider, rum punch, ginger cakes, and, generally, a barbecued bullock or pigs for picnic-style refreshment of the voters waiting at the courthouse.[69] The candidates and their friends also kept open house for voters traveling to the courthouse on election day, offering bed and breakfast to as many as came. On election night, the winning candidates customarily provided supper and a ball for their friends and other celebrants.[70] The law was explicit that no one should directly or indirectly give "money, meat, drink, present, gift, reward or entertainment ... in order to be elected, or for being elected to serve in the General Assembly",[71] but the practice of treating the voters on election day was deeply rooted in Virginia's political tradition. Thus the law was interpreted as only prohibiting one offering refreshment "in order to get elected"—something extremely difficult to prove—but not preventing one from treating his friends. So, while occasionally voices were heard to condemn candidates for "swilling the planters with bumbo",[72] or bemoan the "corrupting influence of spiritous liquors, and other treats ... inconsistent with the purity of moral and republican principles", the complainants almost always turned out to be candidates who themselves had recently been rejected at the polls.[73]

The Transition From Colony to Commonwealth

The War of Independence caused little change in Virginia's system of county government. The county court system was carried over into the state constitution of 1776 with only the oath of office changed to call for support and defense of the constitution and government of the Commonwealth of Virginia.[74] The General Assembly became the successor to most of the functions of the colonial House of Burgesses and Governor in Council, but significantly the principle of the separation of powers established for the commonwealth was not extended to the counties. Thus, the mix of powers, privileges and duties which comprised the authority of the gentlemen justices in colonial times was continued, as was the custom of appointment for life.

How little the transition from colony to commonwealth changed the justices' own view of their position was illustrated in 1785 when the new governor issued new commissions reappointing the justices of Fairfax County's court. The justices refused to accept the new commissions, and pointed out to the governor in a long letter that this duplication of oaths would set a bad precedent and risk giving the executive undue powers over the court. Far from being an artificial objection, the letter noted, this latter point was extremely touchy for the justices' standing in a great many matters was based on seniority, and both the prestige and chances for financial rewards that went with the office depended on this standing.[75]

The most noteworthy changes in the organization of local functions came as a result of the disestablishment of the Church of England. That portion of all local officials' oaths which called for supporting and defending the church was dropped, but, more important, abolition of the parish vestry made it necessary to lodge its non-religious functions elsewhere. In 1780, therefore, the General Assembly created county boards of Overseers of the Poor.[76] Most other welfare activities were added to the responsibilities of the county court.[77]

While the basic philosophy of Virginians regarding their local government did not change as a result of independence, certain new governmental institutions were created because colonial ways were not efficient enough to meet the demands placed on them by social and economic growth. Although the general jurisdiction of the county court was continued, in 1788 a new court, called the district court, was established to relieve the pressure of judicial business.[78] These district courts were the direct antecedents of the present circuit courts of the counties which were created by the General Assembly in 1818.[79]If the district court did not displace the county court immediately, it forecast its eventual decline as a judicial tribunal. The new court introduced the beginnings of professionalism on the bench, and offered the prospect of full-time attention to the administration of justice by trained judges. Establishment of the office of the Commonwealth Attorney in 1788 added to this trend toward professionalism.[80]

Most of the administrative duties of the county court in colonial times remained after independence. Consequently, the records of the county court continued to show actions connected with the licensing of inns, ordinaries, mills, ferries, peddlers, and other similar activities, along with attention to the survey and maintenance of roads, bridges, and fords.[81] Regulatory powers over the practices of tradesmen and artisans was broad, and used by the county court to set rates which could be charged and to prescribe trade practices which affected the quality of the products involved.

In this area of activity, the county court was performing what Virginians generally regarded as matters of purely local concern. Except in connection with the production of tobacco and milling and shipping of grain, economic activities seldom affected anyone beyond the county neighborhood.[82] Therefore, the county court was deemed to be the best body to understand and accommodate the interests involved. This attitude began to change only as the improvement of transportation facilities increased travel and commerce in the period from 1830 to 1860.

NOTES FOR CHAPTER III

[43] See generally, Martha Hiden, How Justice Grew: Virginia Counties: An Abstract of Their Formation, (Williamsburg: Virginia 350th Anniversary Celebration, 1957). Also, because time-honored tradition as well as law influenced the organization of Virginia counties, the description of English local government in J. B. Black, The Reign of Elizabeth, 1558–1603, (Oxford: Oxford University, 1936), pp. 174–177, applies to Virginia's county government in the colonial and early federal periods.