The Fairfax County Courthouse

by Ross De Witt Netherton; Ruby Waldeck

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]