|Pages 41-57||Pages 78-102|
|WHEREAS the name quarter courts is altogether unsutable to the nature of those courts held by governor and councell both in respect there are but three of those courts in the yeare, as alsoe because they are not equally distributed in the quarters of the yeare, September and November being too neer and March too long from them to admitt of that title Be it therefore enacted that the said courts bee noe longer stiled the quarter courts, but that they be henceforth called Generall courts a name more sutable to the nature of them, as being places where all persons and causes have generally audience and receive determination.||See vol. 1. p. 174, 187, 270, 345, 461, 477, 524.|
Courts heretofore called Quarter courts to be henceforward called General courts.
|Whereas the acts of assembly already made are very defective in prescribeing the rules to be observed in the proceedings both in those generall and the particular county courts for want whereof many errors are committed the respects due to the courts soe neerly representing his royall [a] majesties sacred person, by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected, And in regard the long omission of those (hugely materiall though in themselves little) things of forme, hath caused all things till to continue in their first disorders It hath appeared necessary to this present grand assembly to sett downe the rules and forme themselves for the beginning continuance and proceedings in the said courts as followeth, And it is therefore enacted that the Generall courts beginne and continue as followeth.||Recital of defects in the existing laws as to rules of proceeding.|
|Generall Courts to beginne and continue.|
|That March court beginne the 20th of March, if it be not Satturday or Sunday and then to beginne the Munday following, and then to hold eighteene dayes, not accompting Sunday in the number.||March term.|
|[a] the words 'royall' omitted in Purvis.|
|That September court beginne the 20th of September if it be not Saturday or Sunday and then to beginne the Munday following and hold twelve days, not accompting Sundays in the number.||Sept. term.|
|That November court beginne the 20th of November if itt be not Saturday or Sunday and then to beginne the Munday after, and hold twelve dayes not accompting Sundayes in the number.||November term.|
|That adjournments of the said courts be alwayes avoyded and that they beginne precisely upon the day, that all persons knowing the day of the retorne of the writts may accordingly give their attendance.||Adjournments to be avoided.|
| Stile how entred. |
That the stile of the courts be entred thus.
|ATT a Generall court held att James City this by his Majesties Governor and Councell in the yeare of the raigne of our Soveraigne Lord Charles the second by the Grace of God of Great Britain, ffrance, & Ireland, king, Defender of the ffaith &c. & in the yeare of our Lord God &c. Present −−− incert the names of Governor and Councell.||Style of the courts.|
|Silence is commanded.|
|THEN lett the cryer or under sherriffe make proclamation and say "O Yes O yes O Yes silence is comanded in the court while his Majesties Governor and councell are sitting, upon paine of imprisonment."|| Form of opening the court.|
|Suiters to appeare.|
|AFTER silence is comanded lett the cryer make proclamation saying: "All manner of persons that have any thing to doe at this court draw neer and give your attendance and if any one have any plaint to enter or suite to prosecute lett them come forth and they shall be heard."||Proclamation for suitors to appear.|
|When silence is thus comanded & proclamation upon calling the dockett the cryer shall call for the plaintiffe.|
|"A B come forth and prosecute the action against C D or else thou will be nonsuit" And the plaintiffe putting in his declaration the cryer shall call for the defendant.||Calling the Plaintiff.|
|Calling the Defendant.|
|"C D come forth and save the and thy bayles or else thou wilt forfeit thy recognizance."||Calling the Defendant.|
|The proceedings in the said courts: warrants to be issued by the clerks.||Warrants to be issued by the clerks.|
Actions to be proportioned.
|BEE it enacted that warrants be issued out by the clerk of the generall courts and the said clerke soe proportion the number of his actions that there be for each day twenty, and that untill there be twenty actions entred for the first day, no warrant issue for the second, and then twenty for the second before any issue for the third, and soe proportionably twenty per day for soe many as there are actions to fill with that number, it being unreasonable that the governor and councell should waite a week for a stragling busines entred at a particular mans pleasure, and in case any speciall warrant issue that for the extraordinariness of the busines may require the governors owne signing It is enacted that the person first goe to the clerke, and there enter his action and the day of the returne, before his warrant shall be signed.|| Actions to be proportioned to the number of
20 for each day.|
Special warrants, how to issue.
|AND whereas some scruples have arisen about the time warrants may be served (viz.) whether tenn days before the first day of the court. or [a] tenn days before the retorne, that is the day mentioned on the writt to appeare It is hereby declared that warrants may be served at any time, if there be ten days betweene the serving the warrant [b] and the retorne thereof, [c] and further that it may be done in court time for the same court if there be tenn days betweene serving the warrant and the retorne as aforesaid. [d]||Writs may be served at any time within ten days before the return, even after the first day of the court.|
Courts to sitt from eight to eleaven of the clock in the forenoone, from one to three in the afternoone.
|BEE it alsoe further enacted that the court shall each day sitt from eight of the clock to eleaven in the forenoone, and from one to three in the afternoone; and for avoyding all errors that may happen in the draught of the orders by the clerke either through his misapprehending the sence of the court or the partiall information of any person concerned which he being distracted by multiplicity of busines may unwillingly assent to, That all orders of the days be by the clerke drawne up against next morning, and then read in open court (in presence of the plaintiffe or defendant if they will be present) when rule will be given by the court for amendment of errors if any be, before they be entred upon record, and the plaintiffe or defendant if they|| How long the court to sit in each
Orders to be drawn up, by the next morning.
|* The words between the asterisks, omitted in Purvis.|
|[a] the words 'ten days before the first day of the court, or' omitted in Purv.|
|[b] the words 'the warrant' omitted in Purv.|
|[c] 'as aforesaid' instead of 'thereof' in Purv.|
|[d] the words 'the warrant and the retorne as aforesaid' omitted in Purv.|
|have any new matter of plea, shall then have liberty to plead it in arrest of judgement. And the orders thus publickly read and confirmed shall be signed by the secretary which shall remaine upon file in the office for the full justification of the clerke who is to enter them in the booke of records.||Orders to be signed by the secretary and recorded by the clerk.|
The Plaintiffe to fill his declaration three days before the day of hearing.
|AND whereas the clerke is enjoyned to enter twenty actions for each day and the courts to sitt at certain howers, soe alsoe it is hereby enacted that the plaintiffe file his declaration in the office at least three days before the day of hearing, in which tyme the defendant may take a copy thereof the original still remayning in the office, and provide his answer in writing ready to present to the governor and councell at the day of hearing, And further that if the plaintiffe faile either in not appearing to prosecute or in neglecting to file his declaration as is hereby enjoyned, he shall pay to the defendant if he live within fifty miles of James Citty one hundred and ffifty pounds of Tobacco for a nonsuite, and if he dwell further off then three hundred and fifty pounds of tobacco, besides his amercement to the publique, and if the defendant make default then [a] judgement to passe against the bayle for the thing sued for or if noe bayle be returned then against the sherriffe besides his amercement of one thousand pounds of tobacco laid upon him by act for not makeing retornes, Provided that the bayle and sherriffe have respite of execution untill the next [b] court when if they bring the person of the partie, the judgment of the first court granted be reversed, but the amerciament||Declaration to be filed three days at least before the day of
When plea or answer to be filed.
Judgment against bail or sheriff.
|[a] 'the' in Purvis.|
|[b] the word 'next' omitted in Northb. MS.|
|awarded against the sherriffe to continue, and not to be remitted.|
Adjournments to the two last days for determination of references by avisare volumus or actions entered in court time.
|AND whereas this act enjoynes the proportioning soe many actions to a day, but gives liberty to arrest in court time, to the last day of the court, and whereas some cases of difficulty may be presented, upon which the court may desire to advise Bee it therefore enacted that as soon as the court hath satt soe many dayes as are filled with actions, It shall be adjourned to the two last days of that court and whatever the court hath referred by their avisare volumus And all actions entred in court time as aforesaid shall be then tryed and determined.||Adjournment to the two last days of the term, for deciding references by avisare volumus.|
Criminall causes to be tryed at the Generall Court.
|WHEREAS men of the greatest abilities both for [c] judgment and integrity doe usually meet at the generall courts whether their occasions doe frequently call them, and because that any thing that concerneth the life or limb requires the ablest juryes to inquire of itt Bee it enacted that all criminall causes that concerne either life or limb shall be tryed at the generall courts only the fourth day of the said court, And because that the lawes of England doe enjoyne juries to be chosen out of the neighbourhood where the fact was comitted, according to which the remotenesse of our habitations doth not admitt us soe fully to practice as wee desire, yett that wee may come as neere to them||See vol. 1. p. 397, 398.|
Criminal causes to be tried only at the general court, and on the 4th day.
|[c] 'of' in Purvis.|
|as we possibly may, And because it is very requisite that parte of the jury at least should come from thence who by reason of their neere acquaintance with the busines may give information of diverse circumstances to the rest of the jury Bee itt therefore enacted that imediately after the comitment of any person found criminall to the grand inquest the sherriffe of the county to whose custody he is comitted shall give notice thereof to the secretaryes office at James Citty and the clerke of that office shall presently send a venire facias to the said sherriffe to impannell six men of the ablest and neerest of the inhabitants of his county to that place where the fact was comitted to be of the jury for tryall of that cause, retornable the fourth day of the next generall court, where the said jury men are bound to appeare, and for their charges the country shall allowe each man twenty pounds of tobacco per day during their attendance there about itt (viz) from the day they are by the warrant [a] to appeare untill they be discharged, and that the rest of the jury be made up of the by standers.|| Juries, how summoned.|
Six from the neighbourhood.
Jury completed from by standers.
The Governor or two of the Councell to goe the circuite. §
|WHEREAS the honorable governor out of the singular care of his due administration of justice in all courts and that he may be the better inabled to render to his majestie an exact account of the government hath been pleased to take upon him and the councell the paines of visiteing all the county courts of the country, Bee it therefore enacted that the honorable governor and one of the councell, or upon the urgent affaires of the country hindring the governor, That the||Governor and one councilor, or two councillors commissioned by the governor, to visit the county courts yearly.|
|[a] 'writ' in Purvis.|
|§ This act is also in Purv. but the title only in edit 1733 and 1752 and altogether omitted in edit 1769.|
|governor comissionate two of the councell for every river yearely in August to sitt judge in all the county courts, and there here and determine all causes then depending in them by action or reference from any other preceeding court in that county Provided noe councellor be appointed to goe the circuite in the river wherein he doth inhabitt.|
Appeales how to be made.
|WHEREAS many appeales are made from county courts to generall courts and from generall courts to assemblyes, whereby the speedy execution of justice is often retarded, and many persons disabled by the charge of goeing to James Citty to prosecute, are forced many times to desist from the clayme of their just rights, Bee it therefore enacted, that for the avoyding delays, and for the ease fo the inhabitants all appeales made in any court after the generall court in March be referred to the hearing of the governor or itenary councellors [b] in their circuite from whose sentence there, if any person will appeale, if the governor be present, the appeale [c] shall be made to the next assembly, if two of the councell then to the next generall court, from which the said councellors during the tryall of such cause or causes in which they had, att the county courts, given their opinions shall be suspended; But because in the winter time the generall courts are more frequent and all causes may [d] receive speedier determination and because tobacco being only then payable, may be paid in kind, it is enacted that all appeales made from October, December and other intervening county courts be made to the next succeding generall court and from thence to the assembly, And because there may be as greate error in judgment or|| See vol. 1. index tit. "Appeals".|
Appeals from county courts, when to be tried by gov. and itinerant councillors: when by the general court, and when by the assembly.
| This act is in Purv. but the title only in edit. 1733 and 1752 and wholly omitted in edit. 1769.|
|[b] 'council' in Purvis.|
|[c] the words 'the appeale' omitted in Purvis.|
|[s] 'there' in Purv.|
|will in matters of small value as in the greatest, It is further enacted that appeales shall lye open as aforesaid for any thing of what value soever, Provided that the appealement put in good security for prosecuteing the appeale and payment of fifty per cent damages to the defendant, if the appealement be cast in the suite for his unjust molestation Provided also that noe appeales be made from Northampton county (whose remotenesse and dangerousnes of passage is such as is not for inconsiderable causes to be attempted) under the value lymitted by former acts of assembly being three thousand pounds of tobacco, or thirty pounds sterling, any thing in this act to the contrary notwithstanding, And be it further enacted that all causes of what value or nature whatsoever not touching life or member may be tryed att the county courts, And that noe arrest be made to the generall court in any action under the value of sixteene hundred pounds of tobacco or sixteene pounds sterling upon penalty of five hundred pounds of tobacco to be paid by the Plaintiffe to the Defendant for his charges.|| Appeals allowed for all
Vol. 1. pa. 541.
Exception as to Northm. county.
County courts have jurisdiction of all causes.
(Vol. 1. pa. 303.)
| Amercements in Generall courts fifty pounds of Tobacco per cause,
in county courts thirty per cause.
|Edit. 1733 & 1752.*|
|WHEREAS many needlesse (a) suites are raised upon frivolous occasions by litigious persons, for prevention thereof for the future Bee it enacted and confirmed that all persons whatsoever that are cast in any cause be they plaintiffe or defendant shall be amerced, besides the damages & costs to the recoverers, in the generall courts fifty pounds of tobacco to the use of the publique, and in the county courts thirty pounds of tobacco for the maintenance of the comissioners; for the due collecting whereof Bee it enacted that the||See Purv. 23.|
Amercements in general, and county courts.
|* Where the title only is given in any edition, that edition is referred to opposite the title; where the act itself is published, a like reference is made opposite the beginning of the act.|
|(a) The word 'needlesse' omitted in Purv.|
|clerke of the generall courts and the severall county courts keepe an exact account of the amerciament, and deliver or send the same to the severall sherriffs of the particular countyes, who are hereby required to collect the same with the levyes, and accordingly impowered for default of payment to make distresse, and commanded not to retorne any arreares, executors and administrators who cannot pay without orders being always excepted.||How collected.|
|Subpœnas to be issued by the Clerke.||Edit. 1733 and 1752.|
| BEE it alsoe enacted, That the clerke of the generall court
shall issue subpœnas from the secretaryes office for all evidences required in the trial of
any cause there depending, if the witnesses required doe not dwell beyond the bay or the north
side of Yorke (a) river, And if they doe then a Dedimus potestatem
shall issue for taking the depositions in the county or counties where the witnesses doe
dwell, Provided alwayes that in criminall cases all witnesses be bound over to give in
their evidences viva voce at the tryall in the general court.
Subpœnas to be issued for witnesses to attend the general court: unless they reside beyond the bay or on the north side of York river; then a commission to take their depositions. Viva voce evidence in criminal cases.
|Dedimus Potestatem, how to issue.||Edit. 1733 and 1752.|
|WHEREAS many causes betweene party and party are lost for want of evidence who living soe remote cannot but be a charge and expence who living soe remote cannot but be a charge and expence farr exceeding the value of the cause if they (b) be brought to give it vive voce at the generall court or at the county courts if the party dwell out of the county; or else a greater mischiefe is introduced by the partiall and illegal examination of witnesses in presence of but one party before some one commissioner perhaps too favorably inclined to the party in whose behalf the depositions are taken; besides the trouble expence and hindrances of the witnesses themselves, who many||See Purv. 24. & vol. 1. p. 304 Preamble.|
|(a) James, in Purv. but evidently a mistake.|
|(b) The words 'if they' omitted in Purvis.|
|times are forced 100 miles from the place of their residence, for a small allowance to give evidence in tryalls of pettie and inconsiderable value; for remedy whereof, and that all parties may with more convenience, less trouble and costs, have their evidences impartially and legally taken, Be it enacted and confirmed that if the cause be (a) to be tryed in the generall court the governor, if in a county court any one of the councell or the judge of that court shall grant and signe a dedimus potestatem for examination of witnesses in the countyes where they dwell, directed to three such persons as the plaintiffe and defendant, if they both desire the writ shall by consent make choice of and nominate. But if it be the single request of either plaintiffe or defendant then the governor, councell or judge of the county court out of court time shall nominate and appoint three or more such indifferent persons to examine all such witnesses as by the partie desiring the writt they shall be moved to summon before them, and to this end the commissioners thus made choice off or appointed to execute the writt, or (b) any two of them shall by the said writ be empowered and required to appoint a time and place when and where they will receive the evidences, and to issue out subpœnas for their appearances accordingly; and if upon such summons any of the witnesses refuse or neglect to come and give in their evidences, then the commissioners, or any two of them, be further impowered by this act to lay such a fine upon them as the act of assembly gives in such cases for non-appearance of witnesses att the generall or county courts; Provided always that the parties procuring the writt shall give the party concerned against him notice of the time and place when and where the commissioners intend to sitt, att least twelve (c) dayes before the day appointed by the said commissioners for putting itt in execution. And be it further enacted, that the said commissioners, or any two of them which take the said examinations shall imediately subscribe the same, seale them and the writt|
Commissions to take the deposi'ns of witnesses how to issue, be executed and returned.
Commis'oners may fine the witnesses for non-attendance.
Examinations to be returned sealed up.
|(a) The word 'be' omitted in Purvis.|
|(b) The word 'or' omitted in Northumberland MS. but inserted in Purvis.|
|(c) 'Ten' in Purvis.|
|upp, and return them with the writt soe sealed up to the clerke of the generall court; if the writt issue from the governor, or else to the clerk of the county court whence the warrant issued, by either of the said clerkes, to be read at the tyme of the tryall of the cause in either of the said courts.|
|Penalties upon nonappearance of Evidences.||Edit. 1733 and 1752.|
|BEE it also enacted, That the penalties to be inserted in subpœnas to the generall courts for non-appearance of evidences summoned, be one thousand pounds of tobacco, and for like defaults at the county courts three hundred and fifty pounds of tobacco, and that all witnesses summoned to give in their evidences at either of the said courts shall be allowed for their necessary time spent in coming and going to and from the said courts twenty pounds of tobacco per day and for the time they attend there, untill they have given in their evidence forty pounds of tobacco per day, and because many maliciously to aggravate the charge of the suit, summon many more witnesses than are needfull, Be it therefore enacted, that there shall not be allowed in any bill of costs the charge of above three witnesses to any one action, unles for proofe of several matters incident thereto which severally may require the attestation of two witnesses.||See Purv. 25. |
Penalty to be inserted in subpœna.
Allowance to witnesses.
Numb. of witnesses to be taxed in the bill of costs.
|County Courts appointed.||Edit 1733 and 1752.|
|BEE it also enacted that for the more due administration of justice in the several counties, and the greater ease of the people in obtaining the same the courts be continued in each county as of long time hath been accustomed, and that the said courts doe consist of eight* of the most able, honest and judicious persons of the county, which eight or any foure of them, whereof one to be always of the quorum are to bee impowred by commission from the governor||(See vol. 1. index tit. 'Monthly
courts,' & 'County c'ts.' as to the origin of county
* See an. p. 21
County courts how constituted.
|The Charles City MS. commences at this place, the preceding part of the volume having been torn out.|
|for the time being to act according to the laws of England, and of this country and to impower them severally and out of court to act, and doe all such things as by the laws of England are to be done by justices of the peace there, And be it enacted that those persons soe comissionated take the oaths of allegiance and supremacy, and the oath of a justice of peace, that they be called justices of the peace* that the courts be stiled county courts, and further, that the said justices doe keep the said courts precisely upon the dayes appointed, by this, and former acts of assembly (vizt.)||Power of justices, same as in England.|
Oaths of allegiance and supremacy, & of a justice to be taken.
To be called justices of the peace.
|Court days of the several counties.|
|And all adjournments, by all meanes possibly be avoyded and that all justices of the said courts respectiuely shall duly attend the same, and shall not depart or absent themselves from thence without the licence and consent of the rest of the justices there present, and if any of them shall happen to have a lawful cause of absence, it is thought fitt that in such cases they shall upon the first day of the court signify the same to the court by writing and that they make good proof of||Adjournm'ts to be avoided.|
(See vol. 1, p. 436.)
Penalty on justices for being absent,
(see vol. 1, p. 350.)
|* This is the first time Justices of the Peace were expressly so called by act of assembly. They were originally called "Commissioners of Monthly Courts," afterwards "Commissioners of County Courts," but exercised the jurisdiction of justices of the peace. See vol. 1, Index tit. "Commissioners" "Justices of the peace."|
| In Purvis and both the MSS. the time of holding courts for the rest of the counties, is left blank.|
|the truth thereof at the next ensuing court or else being delinquent in the premisses every justice soe offending shall forfeit for every time of his absence three hundred pounds tobacco, to be imposed by the court and disposed off to the good of the county.|
|No arrest without entring of action.||Edit. 1733 and 1752.|
|BEE it alsoe enacted that all actions to the county courts and suppenœs for witnesses or in chancery be first entered with the clerke of the county or his knowne deputy before any arrest made, or summoned or served under penalty of five hundred pounds of tobacco to be levyed upon the sheriffe that shall presume to serve any process contrary to the tenor hereof, And be it enacted that the plt. in any action shall at least the day before the court enter his bill of complaynt and leave it in the clerks hand that the defendant if he will may have a copy thereof, and accordingly provide his answer. But the original declaration or bill to be always filed in the office.||See Pur. p. 27|
Actions and subpœnas to be entered with the clerk, before arrest, summons or service.
Declarat'n or bill, when to be filed.
|The Defendant to put in his answere.||Edit. 1733 and 1752.|
|AND be it further enacted, that for the better regulating and keeping the records and transferring the precidents (a) to posterity, as also for prevention of new suits upon mistakes of the grounds of orders (b) that as the plaintiff both in generall (c) and county courts, files his declaration (d) soe the defendant in both those courts shall also put in his answer in writing, and that the judgment if for the plaintiff be endorsed on the declaration, if for the defendant on the answer,||See Pur. p. 28|
Ans'er or plea to declaration to be filed in writing.
Judg'nts, how indorsed.
|(a) "President" in Purvis; "Precidents" in Northumberland and Charles City MSS.|
|(b) "Others" in Purvis; "orders" in Northb. & Ch. Cit. MSS.|
|(c) The word "courts" after "general" in Purvis; but it is at least superfluous.|
|(d) The words "files his declaration" omitted in Northb. MS. but inserted in Purvis and Ch. Cit. MS.|
|And further, that all evidences concerning that cause be field together with them, and by the clerke carefully preserved.||Evidence preserved.|
|fforme of entring the court.||Edit. 1733 and 1752.|
|BEE it also enacted that the forme for the entring the stile of the court, proclamation for silence, the cryer calling the plaintiff to prosecute, (a) and the defendant to answer, be observed in the county courts as well as in the general (b) courts. varying only in the title of the court and the assessors.||See Pur. p. 28|
F'm of entries in the county co'ts, same as in the general courts, vary'g only the title, &c.
|Courts not to take cognizance of any thing under two hundred pounds of Tobacco.||Edit 1733 and 1752.|
|And be it also enacted that the court shall not take cognizance of any cause under the value of two hundred pounds of tobacco or twenty shillings sterling which a private justice may and is hereby authorized and impowred to hear and determine. And whereas many vexatious persons doe very much trouble the courts, and their neighbours for babbling words, sometimes passionately but not malitiously spoken, Be it enacted, that noe action be admitted for defamation in any court, where the words are not actionable; and further that there be no words actionable (c) but such, as if true might have brought the person to suffer punishment by law; any other to be cast out of the court, and the plaintiff to be nonsuited; not that liberty is hereby given or intended to any scurrelous person to abuse others at his pleasure, but that his majesties courts be not for such brawles forced to wave matters of greater consequence, and because offences of this nature may be determined by a perticuler justice who||See Pur. p. 28|
Jurisdiction of a single justice.
Slander- what words are actionable, and what not.
In actions for others, plaintiff to be non-suited.
|(a) The words "to prosecute" omitted in Purvis & Ch. Cit. MS.|
|(b) "Quarter" in North. MS. but "general" in Purvis and Ch. Cit. MS.|
|(c) The words "and further that there be no words actionable" omitted in Northb. MS. but inserted in Pur. & Ch. Cit. MS.|
|is hereby impowered to bind the persons so offending to the good behaviour of if they find not good security for the same, to comitt them to prison till they find itt.||Brawl'rs to be bound to the good behavior|
|Private Courts Prohibited.||Edit 1733 and 1752.|
|WHEREAS many things are acted and administrations granted at private courts which tend to the apparent damage of diverse of the inhabitants of this country; Be it therefore enacted, that no private courts be kept, but that all busyness, tryable or (a) grantable by or att the county courts be tryed and granted in open court at the time and places by the law appointed; Provided always that it shall and may be lawfull for the dispatch of merchants and other sea affairs which cannot without much prejudice and detriment to the said merchants or masters be deferred till the courts in course should come, it is enacted that it shall be lawfull for any justice of the quorum by his warrant directed to the sheriffe to call particuler courts and to summon any person or persons before them.||See Pur. p. 29|
Private courts prohibited.
Special courts may be held, for merchants and maritime causes.
|Tryalls by Juries.||Edit. 1733 and 1752|
|WHEREAS the seventyeth act made in 1642 and continued by the 91th act 1657 seemes to restraine both plaintiffe and defendant from tryall by juries unles the plaintiffe by (b) declaration, or the defendant upon entry of his appearance doe desire the same; which restriction is quite contrary to the law of England, by which the tryalls of all matters of fact is as appropriate and inherent in the jury as matters of law is in the judges; for which cause, and that wee||See Pur. p. 30 and vol. 1, p. 273, 274.|
Juries to decide all matters of fact, both in general and county courts.
|(a) "Tryalls" in Northb. MS. "tryable or" in Purvis. and Ch. Cit. MS.|
|From page 32, inclusive commencing at this place, to page 37, wanting in the Ch. Cit. MS.|
|(b) "In his" in Purvis, but is a mistake, as appears by a reference to the acts.|
|may in all our tryalls come as near as may be to the laws of England (by which wee are to be governed) as our present capacities will admit, Bee it enacted, that every morning the court sitts, whether the generall or the generall or the county court, the sherriffe of the county in which it sitts shall empannell a jury to attend the court that day, to try such causes as the court shall find proper to be referred to them, And that when ever a jury is sent out, an officer sworn to that purpose shall keep them from meat and drink vntill they have agreed on their verdict.||How Summ'd.|
|Grand Juries to present Offenders.||Edit 1733 and 1752.|
|WHEREAS the several laws constituted (a) and made for the redresse of several misdemeanors and offences either through the remissnes of the county courts or the justices which keep the same, or else through the defect of the laws in not appointing some particular officers to look narrowly after the offenders, and to make presentment thereof to the said justices at their county courts, by which means the laws themselves are slighted and contemned, and become wholly uselesse and ineffectuall; Bee it therefore enacted and confirmed, that juryes of inquest be empannelled and sworne in every county to enquire of the breach of all penal laws made in their severall countyes, and that they make presentment thereof to the severall (b) county courts, twice yearely, (vizt.) in April court and December court, when the justices are to receive them, and fine the offenders (c) according to law, and to take for evidence the presentment of the jury if made upon the certaine knowledge of any of them; or otherwise the parties that inform the jury to give their evidence to the next justice, in presence of the party presented, which deposition being produced (d) by the jury with their presentment, shal be sufficient grounds for the court, to pass judgment against the offenders.||See Purv. p. 30|
See Vol. 1, index titl 'Gr'd jury.'
Grand jruies, to be empannelled twice a year, in couty courts.
What to present.
What evidence admissible.
|(a) "Instituted" in Purvis.|
|(b) "General" in Purvis, but evidently a mistake.|
|(c) "Find them" in Purvis, instead of the words "fine the offenders," as in Northumberland MS.|
|(d) "Presented in Northumberland MS. "produced" in Purv.|
|Pillories to be erected at each court, &c.||Edit. 1733 and 1752.|
|WHEREAS many offences are punishable by the laws of England and of this county with corporall punishments, for executeing whereof noe such provision hath been made as the said laws doe require; Bee it therefore enacted, that in every county, the court cause to be sett up a pillory, a pair of stocks, and a whipping post, neere the courthouse, and a ducking-stoole in such a place as they shall think convenient that such offenders as by the laws are to suffer by any of them may be punished according to their demeritts. And the courts not causeing the said pillory and whipping post, stocks and duckingstoole to be erected within six months after the date of this act, shall be fined five thousand pounds of tobacco to the use of the publique.||See Purv. p. 31|
Pillory, stocks and whipping post to be erected in each county.
Also a ducking-stool.
Penalty for neglect.
|ffines to be disposed of by the Assembly.||Edit. 1733 and 1752.|
|WHEREAS diverse trespasses against the publique are punishable by ffines which are by the present law to be disposed off to the use of the countyes in which the trespasse is comitted, and yett nothing done for the good of any county, as was intended, whereby it may be presumed that the said ffines are either not gathered whereby the trespassers by this lenity and impunity, are incouraged to percist in their contempt of the laws, or else the said ffines are by some evill commonwealths-men perverted to their owne private uses; for prevention whereof for the future, Bee it enacted, that the said clerke of the assembly doe annually attend accordingly during the time at the place aforesaid to receive them, and att the next assembly to present them to the burgesses, who are to order the disposall of the said fines as to them shall seeme most necessary for the||See Purv. p. 31.|
[See vol. 1, p. 399.]
County courts alone, to lay & collect fines.
Estreatment of, how returned to the clk, of the assembly.
Ass'bly to dispose of fines, proportioning them among the counties in which they were levied.
|good and benefitt of the severall respective countyes wherein they accrewed due; always proportioning to every county the use of all the ffines which were levyed therein.|
Supersedeas, by whome and how granted.
|Edit. 1733 and 1752.|
See Pur. p. 32
[Vol. 1, p. 487, 522.
|WHEREAS the writt of supercedeas hath of late been too frequently granted upon slight pretences of error in the court, thereby not only injuriously delaying justice, and keeping men from their just dues, but also bringing calumnies and aspertions upon the courts themselves, Be it therefore enacted, that noe supercedeas whatsoever shall hereafter be granted but by the governor and two of the councell, nor by them unles the party desireing itt make it probably appear to them that there is error in the judgement, and shall also give good security to make good his plea; and if he be cast at the next general court, to pay the principall with twenty five (a) per cent. damages besides costs.||Supersedeas to be granted only by the governor and 3 of the
On what terms.
Damages on affirmance.
Prisons to be built in each county.
|Edit. 1733 and 1752.|
See Pur. p. 33.
[Vol. 1, p. 340, 452.
|WHEREAS the first act of the assembly held att James Citty the third of November, 1647, and continued by the assembly held there the 13th (b) of March, 1657, for prevention of escapes for prisoners, hath enacted that sufficient prisons should be built in each county, and that a house built after the forme of a Virginia house (our ability not extending to build stronger) should be accompted a sufficient prison, and that any person being a prisoner for debt or crime, and breaking one of those prisons, should (c) be proceeded|
|(a) 'Five and twenty' in Purvis.|
|The Charles City manuscript is entire from this place.|
|(b) 'Third' in Purvis and Ch. Cit. MS. but a mistake; the assembly having commenced on the 13th. see vol. 1, p. 429.|
|(c) 'Shall' in Ch. Cit. MS. but 'should' in Purv. & Northb. MS.|
|against as a fellon, and that neither courts, commissioners nor sherriffs should be answerable for such escape: And whereas the 61st* act of the assembly held at James Citty, the said 13th March, 1657, makes the several countyes, not building such prison, lyable to the sherriffe for the escape of any person comitted to his custody; which acts have for want of a penalty never been put in execution; for want whereof fellons may escape and debtors for want of due restraint delay always, and defraud oftentimes the creditor of his just dues, and by meanes thereof the law itself made wholly void, which intended principally that all men should by that restraint have bin forced to make speedier satisfaction; ffor remedy whereof Be it hereby enacted that according to the said acts a good strong prison built after the forme of Virginia houses be built within eight months after the date fo this act, by the court at the charge of the county, upon penalty of being fined five thousand pounds of tobacco, and be answerable for escapes as aforesaid, And that the person breaking prison shall according to the said act of the third of November, 1647, be adjudged a fellon, And that noe person under execution for debt, or imprisoned for fellony shall have the benefit of the rules, and all other persons having the benefitt of the rules shall be secured and lye in prison every night at the perill of the sherriffe.|
* Vol. 1, p. 460
A prison to be built in each county at the charge of the county.
Penalty for neglect.
Prison breaking felony.
Who shall have the benefit of the rules.
|Dwellers within the rules of prisons not to have any benefitt thereof.||Edit. 1733 and 1752.|
|AND be it enacted, that if the sherriffe shall permitt any person dwelling within the rules of a prison, that is by warrant or order of law committed to prison to walke abroad out of prison though with a keeper, and to have the benefitt of the rules or to lodge in his own house; the said sherriffe upon proofe thereof made at the county court by the plaintiffe shalbe ordered to pay the debt as in case of escapes.||Purvis 34.|
Sheriff permitting such as dwell within prison rules & are committed, to walk abroad or lodge in their own house, liable for escape.
|Pages 41-57||Pages 78-102|