The History of Virginia, in Four Parts

by Robert Beverley

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.