|Pages 380-402||Pages 426-446|
| CHAP. VII. |
An Act for better regulating the trial of Criminals, for Capital Offences.
|I. WHEREAS the trial of criminals, for capital offences, is now different in the general court, from the method of trial in the courts of oyer and terminer; which have been for some time established, in pursuance of instructions from his present majesty, and his royal predecessors, for the ease of the subjects here, and preventing long imprisonments, the law, as it now stands, requiring no more than six jurors of the vicinage, for trials in the general court; and the common law by which the courts of oyer and terminer proceed, requiring twelve: For settling one uniform method of trial in both courts, and for the better defending of the right of the subject, to be tried by twelve jurors of his vicinage, and for enabling all persons, brought to a trial for capital offences, to make their best defence:|| |
|II. Be it therefore enacted, by the Lieut. Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That it shall and may be lawful for the sheriff of the county of York, and the sheriff of the county of James-City, for the time being, upon writs to them directed, out of the secretaries office, which writs the clerk of the said office is hereby impowered and directed to issue, six days at least before the day for holding every court of oyer and terminer, to summon, each of them twelve good and lawful men, being freeholders of their respective counties, to appear and attend at such court of oyer and terminer; which twenty four freeholders, or so many of them as shall appear, shall be of a grand jury: And that it shall and may be lawful for such grand jury, to inquire of, and present, all treasons, felonies, and other offences, cognizable by the justices of oyer and terminer, which shall have been committed or done in any county or counties within this colony of Virginia: And if any of the freeholders, so summoned, shall fail to appear, and attend the said court, it shall and may be lawful for the justices of the said court, to fine every freeholder, so failing, not exceeding four hundred pounds of tobacco.|| Grand jury at court of oyer and terminer, how summoned.
Penalty for not appearing.
|III. And be it further enacted, by the authority aforesaid, That when any person shall be committed to the public goal of this county, for treason, or felonies, for which such person may be tried before the court of oyer and terminer, or before the general court, the sheriff, or other officer, bringing such person to the public goal, shall immediately give notice to the clerk of the general court, for the time being, of such commitment, and the cause thereof, and the parish, and the county, where the fact, for which snch person was committed, shall be alledged to be done; and thereupon the said clerk shall issue a writ, directed to the sheriff of the county where such fact was committed, thereby commanding him to cause to come twelve good and lawful freeholders of his county, residing, as near as may be, to the place where the fact shall be alledged to have been committed, before the justices of oyer and terminer, on the first day of that court, or the justices of the general court, on the fourth day thereof, then next coming, and to return a pannel of their names; which twelve freeholders, so returned, or so many of them as appear, not being challenged, together with so many other good and lawful freeholders of the by standers as shall make up the number of twelve men, shall be, and are hereby declared to be, a lawful jury, for the trial of any person or persons, indicted for treason, or felony, committed or done in any county or counties in this colony, before the justices of the court of oyer and terminer, and the justices of the general court, respectively, and it is further declared, That in all trials for capital offences, the prisoner, upon his petition to the court, shall be allowed counsel.|| Notice of commitment. |
to be of the vicinage.
Counsel to be allowed
|IV. And be it further enacted, That if any person, summoned and returned upon the pannel, to serve on the petit jury, before the justice of oyer and terminer, shall fail to appear, it shall be lawful for the justices of the said court, to fine every person, so failing, not exceeding four hundred pounds of tobacco; which said fines, herein before mentioned, shall be to our sovereign lord the king, his heirs and successors, for and towards the support of the government of this colony, and the contingent charges thereof.||Fines on jurors.|
|V. And be it further enacted, by the authority aforesaid, That no person shall be qualified to be of the petit jury, for the trial of treason, or other criminal||Qualification of jurors.|
|offence, in the court of oyer and terminer, who shall not be a freeholder, and be possessed of an estate, real and personal, of the value of one hundred pounds sterling.|
|VI. Provided always, That no exception, to be taken to a jury-man, for the insufficiency of his estate, shall be allow'd, unless the same be made before such jury-man be sworn of the jury. And if any challenge shall be made for the king, of any of the twelve jurors, so as aforesaid to be returned by the sheriff of the county where the fact shall be supposed to be committed, a good cause of such challenge shall be shewn. And that this act shall not take place, 'til the tenth of November next.|| No exception to, after sworn. |
Challenge, for the crown must shew cause.
| CHAP. VIII. |
An Act for allowing Indians to be witnesses in criminal offences committed by Indians.
|I. WHEREAS divers murders, and other felonies, have of late been committed in the frontier parts of this colony, as well by Indians, tributary to his majesty, as by foreign Indians; and by reason of their disguise, and the clandestine manner of perpetrating their crimes, the same are rarely known to any but themselves; so that the offenders cannot be convicted, but by the evidence of their own people, to the very great terror and loss of his majesty's good subjects inhabiting at or near those parts: For remedy whereof,|
|II. Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That when any free Indian shall have committed any murder or other felony, for which he or she may be tried before the justices of the general court, or commissioners of oyer and terminer, it shall and may be lawful to produce and examine any free Indian as a witness, without oath, upon the trial, against or for the criminal; and the evidence given by such Indian witness, to the grand-jury, and upon the trial before the court, shall be allowed to be good and sufficient, as well to convict, as to acquit, the accused Indian, as if the same had||Evidenee of Indiant, how taken.|
|been delivered upon oath; any law, custom, or usage, to the contrary, notwithstanding.|
|III. And to the end such Indian witness may be deterred from giving false evidence, Be it further enacted, That if it shall appear to the court, before whom such trial shall be had, that such Indian witness hath given false testimony, the court shall, without further trial, order every such witness so offending, to have one ear nailed to the pillory, and there to stand the space of one hour, and then to have that ear cut off; and thereafter the other ear nailed thereto, and to be cut off at the expiration of one other hour.||Penalty for giving false evidence.|
|I. FORASMUCH as the buying and selling, by false weights and measures, is of late much practised in this colony, to the great injury of the people,|| |
Weights and measures according to the English standard.
|II. Be it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and by the authority of the same, That from henceforth there shall be but one weight, one measure, one yard, and one ell, according to the standard of the exchequer, in England: And whosoever shall sell or buy by, or keep, any other weight, measure, yard, or ell, whereby any corn, grain, salt, or other thing, is bought or sold, after the tenth day of June, one thousand seven hundred and thirty six, shall forfeit, for every offence, twenty shillings, being thereof lawfully convicted by the oath of one sufficient witness, before any justice of the peace of the county where the offence shall be committed; to be levied, by distress, and sale of the goods of the offender, for the use of the poor of the parish; rendring the overplus to the party so offending: And in default of such distress, such justice of the peace shall commit the said party to the common goal or prison, there to remain, without bail or mainprize, until he shall pay such forfeitures, as aforesaid.|
|III. And, to the end all people may be more easily provided with such weights and measures, Be it further||To be provided by the counties.|
|enacted, That the justices of peace of every county, where they have not already provided the same, shall, within eighteen months after the end of this session of assembly, provide, at the charge of their respective counties, brass weights, of half hundreds, quarterns, half quarterns, seven pounds, four pounds, two pounds, and one pound weight, according to the said standard: And measures, of bushel, half bushel, peck, and half peck, dry measure, according to that standard: And gallon, pottle, quart, and pint, of wine measure, according to that standard; with proper scales for the weights; upon pain of forfeiting, by every justice sworn into the commission of the peace, five shillings, for every month such weights and measures shall be wanting: To be recovered, by action of debt, or information, in any court of record in this colony, one moiety whereof shall be to the king, his heirs and successors, for supporting the contingent charges of this government, and the other moiety to the informer.||Denominations.|
|IV. And, the said weights and measures, so to be provided, shall be kept, from time to time, by such person as shall be appointed by the county courts, respectively, to which all persons may resort, for trying their weights and measures; and when they are tried, and found to agree with the standard, the same shall be sealed by the person keeping such standard with a seal, to be likewise provided by the justices, as aforesaid. And, that the fees to the persons entrusted with the keeping of such standard weights and measures, be, for the trying every stillyard, and certificate thereof, one shilling; for the trying any weights or measures, and sealing the same, four pence for every such weight or measure sealed; to be paid by the person for whom the service shall be done; any former law, custom, or usage, to the contrary hereof, in any wise, notwithstanding.|| To be sealed. |
|V. Provided always, That this act, or any thing herein contained, shall not be construed to prohibit any person or persons whatsoever, from buying and selling by stillyards which shall be tried by and agree with the standard aforesaid, where the buyer and seller, payer and receiver, shall both consent thereto; any thing in this act contained, to the contrary hereof, in any wise notwithstanding.||Steelyards.|
| CHAP. X.|
An Act for better regulating and collecting certain Officers Fees; and other purposes therein mentioned.
|I. BE it enacted by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That from and after the passing of this act, it shall and may be lawful, to and for the secretary of this colony, for the time being, and all county court clerks, sherifs, coroners, constables, and surveiors, respectively, to demand, receive, and take, the several fees herein after mentioned and allowed, for any business by them respectively done, by virtue of their several offices, and no other fees whatsoever: (That is to say,)|
|II. And be it further enacted, That the several fees before mentioned, shall be charged to the party at whose instance the business aforesaid shall be performed: And that the fees herein after mentioned, and allowed, to the secretary, shall be charged to the several counties respectively, for whose service the business shall be performed; and shall be, by the justices, levied on the inhabitants thereof, (That is to say,)|
County court clerks.
|III. And to the end, all persons chargeable with the paiment of any of the fees aforesaid may certainly know for what the same are charged: Be it further enacted, That no fee or fees herein before mentioned, shall be deemed to be due or paiable, by or from any person or persons whatsoever, until there shall be delivered to the collector, and by him produced, or ready to be produced, to the person or persons chargeable with the paiment of the same, a bill or account, in writing of the particular fees, for which any person is or shall be charged, signed by the clerk, or officer, to whom such fees shall be due, or by whom the same shall be chargeable, respectively; in which said bill or account, is and shall be expressed distinctly, and in words at length, and in the same manner, as the fees aforesaid are allowed,|
|and made paiable by this aet, every particular fee, for which any money or tobacco is or shall be demanded or demandable.|
|To the Sheriff.|
|And where a survey shall be made, of any lands, which are to be added to other lands, in one inclusive patent, the surveior shall not be paid a second fee for the land first surveied; but shall only receive what the new survey amounts to: And where any surveior shall have actually made surveys of several parcels of land, joining to one another, and delivered several plats, if the party shall desire one plat, including such surveys, the surveior shall make it out for ten shillings.|
|IV. And be it further enacted, by the authority aforesaid, That the clerk of the secretary's office shall cause to be set up in some public place of the said office, and there constantly kept, a fair copy of the secretary's fees herein before mentioned, on pain of forfeiting two thousand pounds of tobacco for every general court||Table of fees to be set up.|
|day the said copy shall be missing through his neglect. And that the clerk of every county court shall, in like manner, set up a fair copy of all other fees herein before mentioned, in the court-house of his county, to be there constantly kept, on pain of forfeiting one thousand pounds of tobacco, for every court day the same shall be missing through his neglect: Both which penalties shall be to the person or persons who shall inform or sue for the same; and shall and may be recovered, in any court of record, within this dominion.|
|V. And be it further enacted, That if any officer whatsoever, shall claim, charge, demand, exact, or take any more fees, or greater fees, for any writing, or other business whatsoever, by him done, within the purview of this act, than is here set down and ascertained; or if any officer shall charge, or demand and take, any fee or fees, chargeable and demandable by this act, where the business for which such fee is due, shall not have been actually done and performed, to be proved by the fee-book of such officer, upon his corporal oath, such officer or person, for every offence, shall forfeit and pay to the party injured, two hundred pounds of tobacco: to be recovered, with costs, in any court of record within this dominion, by action of debt, bill, plaint, or information: Provided, the same be sued for within twelve months after the offence committed, besides the fee overcharged.|| Penalty for exacting more than legal. |
Limitation of prosecution.
|VI. Provided always, That nothing herein contained, shall be construed, deem'd, or taken, to inflict any of the penalties before mentioned, on any of the said officers, for demanding and taking the fees respectively directed to be taken by them, by one act of assembly, made in the fifth and sixth years of his present majesty's reign, intituled, An Act to revive and continue certain parts of an Act for ascertaining the fees of certain officers; and for better settling the fees of County Court Clerks, and Sherifs, and of Attornies, in causes depending in the county courts, to be allowed in the bill of costs; and for settling the fee for summoning witnesses in controversies depending before the Governor and Council, and ascertaining the allowances to such witnesses: And by one other act made in the fourth year of the reign of queen Anne, intituled, An Act directing the duty of Surveiors of Land, and ascertaining their fees: at any time before the publication of this||Proviso.|
|act; for which, two months, after the passing thereof, is hereby allowed.|
|VII. And for the better collecting the said tobacco fees, Be it further enacted, That the clerk of the secretary's office, and of every county court, respectively, and every surveior, shall every year, before the twentieth day of December, deliver, or cause to be delivered, to the sheriff of every county in this colony, respectively, the accounts of all fees due from any person or persons residing therein; which shall be signed by the said clerk, or surveior, respectively; and the said sheriff is hereby impowered and required, to receive such accounts, and to collect, levy, and receive, the several quantities of tobacco therein charged, of the several persons chargeable with the same: And if such person or persons after the said fees shall be so demanded, shall refuse or delay to pay the same,'til after the tenth day of April, in any year, the sheriff of that county wherein such person inhabits, or of the county in which such fees became due, shall have full power, and is hereby required, to make distress upon the negros, goods, or chattels, of the party so refusing or delaying to pay, either in that county where such person inhabits, or where the said fees became due: But no action shall be maintainable for secretary's, county court clerks or surveiors fees, unless the sheriff of the county shall return, That the person or persons from whom such fees shall be due and paiable, hath not sufficient within his bailiwick, whereon to make distress. And if any sheriff shall be sued for any thing by him done, in pursuance of this act, he may plead the general issue, and give this act in evidence.|| When fees to be delivered to the sheriffs. |
Duty of sheriffs in collecting.
When action maintainable.
|VIII. And be it further enacted, That the sheriff of every county, shall, upon or before the last day of May in every year, account with the secretary or his agent, and the clerks of the respective county courts, and the respective surveiors, for all fees put into his hands, pursuant to this act, and pay the same, abating four per cent. for collecting: And the secretary is hereby required to appoint an agent in every county, to receive the sheriff's account, and all tobacco due to him.||When sheriffs to account.|
|IX. And if any sheriff shall refuse to account, or pay the whole account of fees put into his hands, after the deductions aforesaid are made, together with an allowance of such persons as do not dwell, or have no visible||How proceeded against.|
|estate in his county, it shall and may be lawful for the secretary, or clerk, or surveior, upon a motion made in the next succeeding general court, or in the court of the county of such sheriff, to demand judgment against such sheriff, for all fees wherewith he shall be chargeable, by virtue of this act; and such court respectively, is hereby authorised and required to enter up judgment accordingly, and to award execution thereupon: Provided, That the sheriff have ten days notice of such motion.|
|X. And be it further enacted, That the respective county courts, in every cause, except where the same shall be brought by petition, where the plaintiff shall recover, or be nonsuited, or where his suit shall be dismissed, shall allow in the bill of costs, fifteen shillings, or one hundred and fifty pounds of tobacco, for an attorney's fee, (if the party emploied one) except against executors, or administrators, and where the plaintiff may not recover more cost than damage.||Lawyer's fees to be taxed.|
|XI. And whereas divers disputes and controversies do frequently arise, concerning the priority of entries for lands, and their right to obtain patents for the same, which are properly determinable before the governor and council; and for the clearing of the truth therein, witnesses are often necessary, and such witnesses have refused to attend, in regard no allowance hath hereto been established, for their travelling, and attendance: Be it therefore enacted, by the authority aforesaid, That when any controversy shall be depending before the governor and council, it shall and may be lawful for the clerk of the council, and he is hereby impowered and required, at the instance of either of their parties to issue a summons, directed to the sheriff of any county wherein the witnesses desired to be summoned shall reside; which summons, the said sheriff shall duly execute, and return, and shall be paid and allowed by the party on whose behalf the same was executed, thirty pounds of tobacco, or three shillings current money, at the election of the party chargeable therewith: And every such witness, so summoned and attending, shall be paid for travelling, and for each day he shall attend at Williamsburg, the like allowance as is given by law for witnesses summoned to, and attending the general court. And where the governor and council shall judge either of the parties in any matter coming before|| Allowances to witnesses. |
|them, to have given unjust vexation, it shall and may be lawful to award the allowance to the said witnesses, and all other costs, to be repaid by such party to the party injured. Provided always, That it shall be in the election of the person or persons chargeable with the paiment of the said allowances for witnesses, in any of the matters depending before the governor and council, to discharge the same, either in tobacco, or current money, at the rate of ten shillings for every hundred pounds thereof.|
|XII. Provided also, That nothing herein contained, shall be construed, deemed, or taken, to give any power or authority to the council board, to hold plea of any matter or thing properly cognizable in his majesty's courts of common law.|
|XIII. And be it further enacted, That one act of assembly, made in the fourth year of the reign of queen Anne, intituled, An Act directing the duty of Surveiors of Land, and ascertaining their Fees, for so much of the said act as relates to ascertaining the surveiors fees, shall be and is hereby repealed, and made void. And that this act shall be adjudged and taken to be a public act; and shall remain and be in force, from the commencement of the same, for two years, and no longer.||Rnpeal of former act; in part.|
|I. WHEREAS of late, in some parts of this colony, especially towards the frontiers, where the poorer sort of people live, sherifs, and other officers, have sold goods, and other things, taken in execution, or distrained for rent, for much less than the true value, which has been occasioned either by a scarcity of buyers, or the arts and contrivances of designing people; and especially in levying executions upon judgments entered up, for tobacco, and distraining for rents reserved to be paid in tobacco, great hardships are complained of; for that the officer has given out, that no person can bid at any sueh sale, without producing inspectors notes|| |
|to the value of the goods, or other things, to be sold; which has proved very grievous to many poor people: For prevention whereof, for the future,|
|II. Be it enacted, by the Lieutenant-Governor, Council, and Burgesses of this present General Assembly, and by the authority of the same, That when any judgment shall be hereafter entered up, for the paiment of tobacco, or any rent is or shall be reserved in tobacco, no execution shall be levied, or any distress made, for the same, between the last day of August, and the last day of December, in any year.||No execution or distress for tobacco, between the last of August and last of December.|
|III. And where any execution shall be served, or distress made, for money or tobacco, upon the goods, or other estate of the debtor, or tenant, if such debtor or tenant shall, within five days, tender one or more sufficient sureties, to be approved by the creditor, or landlord, to be bound with him to pay such sum of money, or tobacco, and all costs, with lawful interest for the same, at the end of twelve months; then such officer shall restore to the party, the goods, or other estate, so taken, or distrained. And where no such security shall be offered, and the goods, or other things taken, or distrained, cannot be sold at three fourths of the value thereof, at the least, in the opinion of the sheriff, or other officer, it shall and may be lawful, to set up and sell the same for money, or for tobacco, if the judgment, or rent, be paiable in tobecco, to be paid at the end of twelve months. Provided, the buyer shall be bound, with one or more sureties, to pay the same accordingly, with interest, to such creditor, or landlord, respectively.||On executions, and distresses, bond and security may be given, & the goods restored; or may be sold on credit.|
|IV. And be it further enacted, That one clause of an act made at a session of this general assembly, held the twenty first day of May, in the third year of his majesty's reign, intituled, An Act to enable the sale of goods distrained for rent, and to secure such goods to the person distraining the same; for the better security of rents, and to prevent frauds committed by tenants; for appraising goods distrained for rent, be, and is hereby repealed, and made void.||Part of former act repealed.|
|I. FOR the better preservation of the breed of deer, in this colony, Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and by the authority of the same, That it shall not be lawful to kill or destroy any deer, running wild in the woods, or unfenced grounds, between the first day of January, and the last day of August, in every year; or to buy, or receive, of any Indian, or other person whatsoever, any deer, killed or destroied within the said times; upon pain of forfeiting fifteen shillings, for every deer, so killed or destroied, bought or received; recoverable before any justice of the peace of the county where such offence shall be committed, upon conviction; by the oath of one sufficient witness; and to be levied by distress, and sale of the goods of the offenders, to the use of the informer; rendring the overplus to the party so offending: And in default of such distress, such justice of the peace shall commit the said party to the common goal, or prison, there to remain, without bail or mainprize, until he shall pay the forfeiture aforesaid.|| Deer not to be killed between first of January and last of
|II. And, if any servant or slave, by command of his or her master, mistress, or overseer, shall so kill, buy, or receive any deer, the party giving such command, shall be liable to the like penalty: And if such servant or slave cannot prove such command, he or they shall receive by order of the justice of the peace, for every offence, fifteen lashes, on his or her bare back, well laid on; unless security be given for paiment of the fine within six months after such conviction.||On servants and slaves.|
|III. And be it further enacted, That one act of assembly, made in the fourth year of the reign of queen Anne, intituled, An Act to prevent killing Deer at unseasonable times, be, and is hereby repealed and made void.||Repeal of former act.|
|Pages 380-402||Pages 426-446|