How Justice Grew.

by Martha W. (Martha Woodroof) Hiden.

HOW JUSTICE GREW

Virginia Counties: An Abstract of Their Formation

In addition to their human cargo, the poultry and fruit acquired in the West Indies, the clothing, household gear, and other possessions of the pa.s.sengers, the _Susan Constant_, _G.o.dspeed_ and _Discovery_ had a large though imponderable cargo of English laws, customs and religion. The colonists had left England, neither driven out nor seeking escape, but to found a new England in a new world.

Though the seat of government was at "King James His Towne," the natural curiosity to explore and the economic necessity for means of livelihood caused settlements to spring up farther and farther away. Despite the fact that the colonists were in a region where rivers and numerous streams afforded easy transportation interrupted only for short periods by ice in winter, attendance at court in Jamestown was burdensome.

THE FOUR CORPORATIONS

By 17 June 1617, Governor Samuel Argall had established the four great divisions of the colony, namely: "the incorporations and parishes of James City, Charles City, Henrico and Kikotan" (later Elizabeth City).

The Eastern Sh.o.r.e settlements were not included in this division.

Each of the incorporations mentioned above and the Eastern Sh.o.r.e contained one or more boroughs or settlements. Eleven of the settlements in the four incorporations were represented by two Burgesses each, in the first General a.s.sembly. This, the first legislative a.s.sembly of English speaking people in the Western hemisphere, convened on 30 July 1619 in the church at Jamestown. Itself based on the English Parliament as a model, it became the model followed by all succeeding British colonies including Australia. The colonial a.s.sembly next in age to Virginia's is that of Bermuda established in 1620. In the _Journals of the House of Burgesses_, the names of the Burgesses for the 1619 a.s.sembly are arranged by the cities and plantations they represented. In the Journal of the second a.s.sembly that is extant, 1623/24, for the first and only time, the plantations are grouped under the corporations of which they were a part, except Eastern Sh.o.r.e, which, as has been noted, was a separate ent.i.ty.

In 1621, a charter from the Company confirmed former grants and provided "that the Governor should call the General a.s.sembly once a year, and initiate the policy of the form of government, laws, customs, manner of trial and other administration of justice used in England." Governor Wyatt at the same time was ordered to make arrangements for "dividing the colony into cities, boroughs, etc., ... and to appoint proper times for administration ... and law suits." William St.i.th in his _History of Virginia_ states: "Inferior courts were therefore in the beginning of the year 1621 appointed in convenient places to relieve the Governor and Council of the vast burthen of business and to render justice more cheap and accessible. This was the original and foundation of our County Courts, although the country was not yet laid off in counties."

The General a.s.sembly of 1623/24 provided "that there shall be courts kept once a month in the corporations of Charles City and Elizabeth City for the deciding of suits and controversies not exceeding the value of one hundred pounds of tobacco and for punishing of petty offenses." As a consequence of this act, the question of the metes and bounds of these corporations, Charles City, Henrico, Elizabeth City and James City, became important, since suits must perforce be inst.i.tuted in the court having jurisdiction over that particular area. Mr. Nathaniel C. Hale, in his interesting book on William Claiborne called _Virginia Venturer_, shows that William Claiborne in 1621, was appointed a surveyor for the colony and comments that heretofore boundaries of land had been located with ungraduated mariners' compa.s.ses and described by careless references to natural limits.

Apparently the Jamestown Court with those of Charles City and Elizabeth City was adequate for several years, but in February 1631/32 the a.s.sembly pa.s.sed an act adding five more as follows: "for the upper parts"; "for Warwick River; for Warrosquyoake; for Elizabeth City; for Accawmacke." Presumably, since the order had been that the new courts were to be held "in remote parts of the colony," the phrase "upper parts" would mean the most western part of Henrico Corporation, and the Elizabeth City Court would be for the south side of Hampton Roads. This seems logical since the north side had been settled first, was more populous and was not remote from Jamestown.

THE EIGHT ORIGINAL SHIRES

But the colony was growing too fast for this arrangement to continue adequate for long. With a population of about 5,000 persons, the time for division into shires or counties was at hand. It may be noted that, though these units were designated as shires in the Act of the General a.s.sembly creating them, they were, after that, always called counties.

Their functions were the same as those of their English prototypes, but conditions here required two changes which will be mentioned later.

The names of the four corporations, Charles City, Henrico, James City and Elizabeth City were kept for four of the newly created counties, but their areas were lessened. The four new divisions were: Warwick River, later called Warwick; Warrosquyoake, later Isle of Wight; Charles River, later changed to York, and Accomack which embraced all the settlements on the Eastern Sh.o.r.e of Virginia.

[Ill.u.s.tration: 1619 Rapid Growth of Settlement along the James River. Marked by Introduction of Representative Government.]

The tender feeling for the homeland is evidenced by the fact that six out of the "eight original shires," as they are generally called, bore names reminiscent of England. Henrico perpetuated Henry, Prince of Wales, son of James I whose early death made even more difficult the first years of the Colony. Charles City honored his brother Charles, later Charles I, who combined, to his undoing, the charm and obstinacy of the Stuarts. Elizabeth City and the river of the same name derive from Princess Elizabeth, the oldest sister of Henry and Charles. She married Frederick, for a time King of Bohemia, but later overthrown and exiled. Though her life was bitter and tragic, her descendants since 1714 have occupied the throne of Britain. James City was, of course, for King James I, of whom it was said that his instructors had given him an abundance of knowledge but had been unable to give him sense. Warwick's name was for Robert Rich, Earl of Warwick, leader of one of the factions of the Virginia Company, who had founded and cared for the colony. He belonged to the "Court Party" which wished to continue martial law in the colony and opposed the liberal views of Sir Edwin Sandys and the Earl of Southampton. For awhile the Sandys faction was in control and the "Great Charter of Laws, Orders and Privileges" brought over by Sir George Yeardley was the expression of their views on colonial government. But the "Court Party" prevailed in the end and the charter of the Virginia Company was revoked in 1624. Charles River County presumably took its name from Charles I, who was King when it was formed. In 1642/43 when it became York, the change was made to honor James, the second son of Charles I, who in that year was created Duke of York. Warrosquyoake, an Indian word, was later Isle of Wight County since some of its most prominent residents were from the small island of that name lying off the English coast. The Parish lying in and coterminous with Isle of Wight County was called Newport from the largest city in the English island. Accomack honored the friendly tribe of Indians of that name residing on the Eastern Sh.o.r.e.

The bounds of these eight counties as noted in Tyler's _The Cradle of the Republic_ were as follows:

Elizabeth City County extending on both sides of Hampton Roads, on the south side to Chuckatuck Creek and on the north side to Newport News and including a small part thereof.

Warrosquyoake County, later Isle of Wight, extending on the south side of James River from Chuckatuck Creek to Lawne's Creek.

Warwick River County extending on the north side of James River from Elizabeth City County to Skiffe's (Keith's) Creek. This is the only original shire from which no other county was formed. The name was changed to Warwick County in 1643.

James City County extending on both sides of James River, on the south side from Lawne's Creek to Upper Chippokes Creek and on the north side from Skiffe's Creek to above Sandy Point.

Charles City County also extending on both sides of James River, on the south side from Upper Chippokes Creek to Appomattox River and on the north side from Sandy Point to Turkey Island Creek.

Henrico County extending from Charles City County on both sides of James River indefinitely westward.

Charles River County, later York, lay to the north of Warwick County and adjoined Elizabeth City County on the east. Its north and west boundaries were indefinite. The colonists soon crossed the York River to establish plantations along its northern bank and settled as far west as the Pamunkey River.

Accomack, the eighth shire, like York County, showed the vitality of the colonists in pushing settlements away from the vicinity of Jamestown into uncharted wilds.

The Potomac River was the dividing line between Virginia and Maryland, and on the Eastern Sh.o.r.e the division was approximately in line with the mouth of this river. Settling on the Sh.o.r.e in 1616, the colonists moved slowly northward. The Indians were friendly, transportation easy, climate mild, and soil fertile. There was no impediment to growth.

The population of the colony is estimated to have been around 5,000 persons in 1634 as has been noted. Six years later it had increased about 50%, being 7,466 persons. One factor in this growth was the unrest in England at this time which culminated a few years later in bitter civil war.

THE COLONIAL COURTS

We have mentioned that the creation of counties with their courts had in view to render justice more accessible to all. There were by 1642, in the colony six kinds of courts for the administration of justice.

The first of these was the magistrate's court. In 1642, an Act of the a.s.sembly empowered a magistrate or justice to try a case involving not over twenty shillings in currency or 200 pounds of tobacco in value. In 1657/58, the amount could be as much as 1,000 pounds of tobacco if two magistrates were present but only 350 pounds if but one magistrate tried the case. The appeal from the magistrate's court was to the monthly court.

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 pa.s.sed 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 St.i.th, 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 a.s.sembly in 1628/29, the number of justices was to be eight, but later it was increased to ten. Four const.i.tuted a quorum. Three other members of the bench a.s.sociated 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 const.i.tuting 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 a.s.sembly 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 a.s.sembly 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 s.p.a.cing 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, pa.s.sed on apprais.e.m.e.nts 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 a.s.sembly 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 a.s.sembly 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.

"JUSTICE ACCESSIBLE TO ALL." COUNTY DIVISIONS BEGIN

Scarcely had the eight original counties begun to function before the expansion of population forced the erection of a new one. In 1636 that part of Elizabeth City County lying on the south side of Hampton Roads became a separate ent.i.ty under the name of New Norfolk, a name probably derived from the English shire. No court records of this year survive.

The next year 1637, New Norfolk itself was divided into Lower Norfolk and Upper Norfolk counties.

Also in 1637, Warrosquyoake County lost its Indian name, becoming Isle of Wight. By Act of a.s.sembly pa.s.sed in January 1639/40, the bounds between these three counties were set as follows: Isle of Wight to begin at Lawne's Creek, thence down the main river to Richard Hays's, formerly John Seaward's, including the said plantation and families and from thence from the main river into the woods southerly to the plantation of William Nowell and Mr. Robert Pitt, with the said plantation and families, and thence south as aforesaid. The Upper County of New Norfolk to begin at the aforesaid plantation of Richard Hays, from thence southerly into the woods as aforesaid, and by the main river, from thence to extend down by the main river unto the creek near the plantation of Francis Bullock being the first creek to the westward of Crany Point including the plantation of the said Francis Bullock and no ways intrenching upon the Western Branch of Elizabeth River nor the creek thereof which do belong to the county of Lower Norfolk. The parishes in these counties were ordered to be coterminous with the bounds of the counties. Upper Norfolk County kept its name only a few years; in March 1645/46, the a.s.sembly directed it should "be from henceforth nominated and called county of Nansemun."