How Justice Grew: Virginia Counties, An Abstract of Their Formation

by Martha W. Hiden

The next court was the parish court. In the seventeenth century only one of these courts existed in Virginia and that only for a short time. This was the court of Bristol Parish which most likely sat in the old Merchants Hope Church, still standing and still in use. The court was discontinued before the end of the seventeenth century, and its papers passed into the custody of the Henrico County Court. A parish court was in a way a vestigial body, a relic of days when the authority of the church was preeminent in both civil and ecclesiastical matters.

The third recourse for justice was to the monthly court, developed according to Stith, from the inferior court established in 1621. The Governor named the first justices of a new county, renamed justices in the old counties and filled every vacancy as it occurred. By Act of Assembly in 1628/29, the number of justices was to be eight, but later it was increased to ten. Four constituted a quorum. Three other members of the bench associated with one member of the quorum, who had a different status from the other justices, formed a sufficient number to make a valid court. The person whose name appeared at the head of the list of those constituting the quorum probably served as presiding justice; in his absence, the one named second and so on down the list. No pay was provided for the justices.

In 1642, the Assembly ordered that at least six monthly courts be held every year and the justices were empowered to determine when extra sessions were necessary. At the same time, another Act of Assembly provided that Henrico should hold court on the first day of every month; Charles City on the third; James City on the sixth; Isle of Wight on the ninth; Upper Norfolk (later Nansemond) on the twelfth; Elizabeth City on the eighteenth; Warwick on the twenty-first; York on the twenty-fourth; and Northampton, (formerly Accomack) on the twenty-eighth. The careful spacing between these courts enabled attorneys to appear in cases in different counties with no conflict of dates.

The range of cases that could come before a monthly court was naturally wider than could come before a magistrate. As much as ten pounds sterling could be involved in a suit and there was no appeal from the decision; when larger amounts were involved, the defeated litigant could appeal to the General Court. All questions where injury to life or limb was at stake went before the General Court.

The monthly county courts had, in a general way, a jurisdiction resembling the combined jurisdiction of the English Chancery Court, King's Bench, Common Pleas, Court Exchequer, Admiralty and Ecclesiastical. The justices of the monthly courts looked after the poor and afflicted, held special orphan courts at least once a year, granted probates of wills, passed on appraisements of estates as presented to them for inspection, on inventories and estate accounts which also were presented for their scrutiny, and recorded conveyances of land.

Recordation of land conveyances is one of the two differences between the monthly court of a Virginia county and its British prototype. There conveyances were private property and retained in private ownership. Manor houses of old English estates often had a room called the "Muniment room" where deeds, inventories, rent rolls and such family papers, often including copies of wills, were kept. The name derived from a Latin word meaning to fortify or strengthen, since the deeds strengthened the validity of ownership claimed by the holder of the land. The other function of the monthly court in Virginia different from the English Shire Court was the power to probate wills. In England probate of wills was in the prerogative courts of Canterbury and York. Probably since there was no diocesan see in Virginia, Virginia being in the diocese of London, the monthly court offered the most feasible place of probate.

It has been noted that there was a limit to the powers of this court and that cases which it could not hear went before the General Court. This court was composed of the Governor and his Council of State. It met semi-annually, 15 April and 15 October, each term lasting at least eighteen days. The Governor presided at these sessions. The presence of five members was necessary for the transaction of business. The Minutes of the Council and General Court are extant for the years 1622-1632 and abstracts for the years 1670-1676. They were published in one volume by the Virginia State Library in 1924 and are helpful in acquiring a general picture of life in the colony in the seventeenth century.

The General Assembly was also a judicial body with power to render decisions. At its afternoon session the 22nd day of September 1674, a cause came before the Council and General Court which had originated in Accomack County. The Court made no decision but ordered it "referred to the Assembly by reason it very much concern the country." From that one would infer that causes involving general principles were deemed proper for discussion and decision by the Burgesses who represented the entire colony, since all would be affected by the decision.

The Court of Admiralty, the last dispenser of justice in the colony, seems to have been established about 1697 under the governorship of Sir Edmund Andros. Previously such matters as would come within the province of this court had been handled by other judicial procedures, as they were later. The instances of piracy were not numerous enough to justify the maintenance of a Court of Admiralty in Virginia. No records of this court survive.

It may seem we have wandered far from the formation of counties, but since the accessibility of justice for all was a prime consideration in their creation, it would appear well to examine the means by which the average citizen could have his grievances heard and decided. The importance of the county monthly court in his life cannot be overestimated. While on business at court, he had opportunity to see his friends, play cards, gamble, race horses, fight, drink, "swap" horses and other livestock, attend the muster of county militia to which he belonged, and see the newest articles imported from England. The county court and his parish church services were his chief contacts with the world that lay beyond his plantation.