Notes on the State of Virginia (1853)/Query 14

QUERY XIV.

THE ADMINISTRATION OF JUSTICE AND DESCRIPTION OF THE LAWS?

The State is divided into counties. In every county are appointed magistrates, called Justices of the Peace, usually from eight, to thirty or forty in number, in proportion to the size of the county, of the most discreet and honest inhabitants. They are nominated by their fellows, but commissioned by the Governor, and act without reward. These magistrates have jurisdiction, both criminal and civil. If the question before them be a question of law only, they decide on it themselves; but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system. In truth, it is better to toss up cross and pile in a cause, than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision, than the hazard of cross and pile. These judges execute their process by the sheriff or coroner of the county, or by constables of their own appointment. If any free person commit an offence against the Commonwealth, if it be below the degree of felony, he is bound by a justice to appear before their court, to answer it on indictment or information. If it amount to felony, he is committed to jail, a court of these justices is called; if they on examination think him guilty, they send him to the jail of the General Court, before which court he is to be tried first by a grand jury of 24, of whom 13 must concur in opinion; if they find him guilty, he is then tried by a jury of 12 men of the county where the offence was committed, and by their verdict, which must be unanimous, he is acquitted or condemned without appeal. If the criminal be a slave, the trial by the County Court is final. In every case however, except that of high treason, there resides in the Governor a power of pardon. In high treason, the pardon can only flow from the General Assembly. In civil matters these justices have jurisdiction in all cases of whatever value, not appertaining to the department of the admiralty. This jurisdiction is two fold. If the matter in dispute be of less value than 416 dollars, a single member may try it at any time and place within his county, and may award execution on the goods of the party cast. If it be of that or greater value, it is determinable before the County Court, which consists of four at the least of those justices, and assembles at the court house of the county on a certain day in every month. From their determination, if the matter be of the value of ten pounds sterling, or concern the title or bounds of lands, an appeal lies to one of the Superior Courts.

There are three Superior Courts, to wit, the High Court of Chancery, the General Court, and Court of Admiralty. The first and second of these receive appeals from the County Courts, and also have original jurisdiction where the subject of controversy is of the value of ten pounds sterling, or where it concerns the title or bounds of land. The jurisdiction of the admiralty is original altogether. The High Court of Chancery is composed of three judges, the General Court of five, and the Court of Admiralty of three. The two first hold their sessions at Richmond at stated times, the Chancery twice in the year, and the General Court twice for business, civil and criminal, and twice more for criminal only. The Court of Admiralty sits at Williamsburgh whenever a controversy arises.

There is one Supreme Court, called the Court of Appeals, composed of the judges of the three Superior Courts, assembling twice a year at stated times at Richmond. This court receives appeals in all civil cases from each of the Superior Courts, and determines them finally. But it has no original jurisdiction.

If a controversy arise between two foreigners of a nation in alliance with the United States, it is decided by the Consul for their State, or, if both parties choose it, by the ordinary courts of justice. If one of the parties only be such a foreigner, it is triable before the courts of justice of the country. But if it shall have been instituted in a County Court, the foreigner may remove it into the General Court, or Court of Chancery, who are to determine it at their first sessions, as they must also do if it be originally commenced before them. In cases of life and death, such foreigners have a right to be tried by a jury, the one-half foreigners, the other natives.

All public accounts are settled with a Board of Auditors, consisting of three members, appointed by the General Assembly, any two of whom may act. But an individual, dissatisfied with the determination of that board, may carry his case into the proper Superior Court.

A description of the laws:

The General Assembly was constituted, as has been already shewn, by letters patent of March 9th, 1607, in the 4th year of the reign of James the First. The laws of England seem to have been adopted by consent of the settlers, which might easily enough be done whilst they were few and living altogether. Of such adoption, however, we have no other proof than their practice, till the year 1661, when they were expressly adopted by an act of the assembly, except so far as “a difference of condition” rendered them inapplicable. Under this adoption, the rule, in our courts of judicature was, that the common law of England, and the general statutes previous to the fourth of James, were in force here; but that no subsequent statutes were, unless we were named in them, said the judges and other partizans of the crown, but named or not named, said those who reflected freely. It will be unnecessary to attempt a description of the laws of England, as that may be found in English publications. To those which were established here, by the adoption of the Legislature, have been since added a number of acts of assembly passed during the monarchy, and ordinances of convention and acts of assembly enacted since the establishment of the Republic. The following variations from the British model are perhaps worthy of being specified.

Debtors unable to pay their debts, and making faithful delivery of their whole effects, are released from confinement, and their persons forever discharged from restraint for such previous debts; but any property they may afterwards acquire will be subject to their creditors.

The poor, unable to support themselves, are maintained by an assessment on the titheable persons in their parish. This assessment is levied and administered by twelve persons in each parish, called vestrymen, originally chosen by the housekeepers of the parish, but afterwards filling vacancies in their own body by their own choice. These are usually the most discreet farmers, so distributed through their parish, that every part of it may be under the immediate eye of some one of them. They are well acquainted with the details and economy of private life, and they find sufficient inducements to execute their charge well, in their philanthrophy, in the approbation of their neighbors, and the distinction which that gives them. The poor who have neither property, friends, nor strength to labor, are boarded in the houses of good farmers, to whom a stipulated sum is annually paid. To those who are able to help themselves a little, or have friends from whom they derive some succors, inadequate, however, to their full maintenance, supplementary aids are given, which enable them to live comfortably in their own houses, or in the houses of their friends. Vagabonds, without visible property or vocation, are placed in workhouses, where they are well clothed, fed, lodged, and made to labor. Nearly the same method of providing for the poor prevails through all our States; and from Savannah to Portsmouth you will seldom meet a beggar. In the larger towns, indeed, they sometimes present themselves. These are usually foreigners, who have never obtained a settlement in any parish. I never yet saw a native American begging in the streets or highways. A subsistence is easily gained here; and if by misfortunes they are thrown on the charities of the world, those provided by their own country are so comfortable and so certain, that they never think of relinquishing them to become strolling beggars. Their situation, too, when sick, in the family of a good farmer, where every member is emulous to do them kind offices, where they are visited by all the neighbors, who bring them the little rarieties which their sickly appetites may crave, and who take by rotation the nightly watch over them, when their condition requires it, is, without comparison, better than in a general hospital, where the sick, the dying, and the dead, are crammed together in the same rooms, and often in the same beds. The disadvantages, inseparable from general hospitals, are such as can never be counterpoised by all the regularities of medicine and regimen. Nature and kind nursing save a much greater proportion in our plain way, at a smaller expense, and with less abuse. One branch only of hospital institution is wanting with us; that is, a general establishment for those laboring under difficult cases of chirurgery. The aids of this art are not equivocal. But an able chirurgeon cannot be had in every parish. Such a receptacle should, therefore, be provided for those patients; but no others should be admitted.

Marriages must be solemnized either on special license, granted by the first magistrate of the county, on proof of the consent of the parent or guardian of either party under age, or after solemn publication, on three several Sundays, at some place of religious worship, in the parishes where the parties reside. The act of solemnization may be by the minister of any society of Christians, who shall have been previously licensed for this purpose by the court of the county. Quakers and Menonists, however, are exempted from all these conditions, and marriage among them is to be solemnized by the society itself.

A foreigner of any nation, not in open war with us, becomes naturalized by removing to the State to reside, and taking an oath of fidelity; and, thereupon, acquires every right of a native citizen; and citizens may divest themselves of that character, by declaring by solemn deed, or in open court, that they mean to expatriate themselves, and no longer to be citizens of this State.

Conveyances of land must be registered in the court of the county wherein they lie, or in the General Court, or they are void as to creditors and subsequent purchasers.

Slaves pass by descent and dower as lands do. Where the descent is from a parent, the heir is bound to pay an equal share of their value in money to each of his brothers and sisters.

Slaves, as well as lands, were entailable during the monarchy; but, by an act of the first Republican assembly, all donees in tail, present and future, were vested with the absolute dominion of the entailed subject.

Bills of exchange being protested, carry 10 per cent. interest from their date.

No person is allowed, in any other case, to take more than five per cent. per annum, simple interest, for the loan of moneys.

Gaming debts are made void, and moneys actually paid to discharge such debts (if they exceeded 40 shillings) may be recovered by the payer within three months, or by any other person afterwards.

Tobacco, flour, beef, pork, tar, pitch, and turpentine, must be inspected by persons publicly appointed, before they can be exported.

The erecting iron works and mills is encouraged by many privileges, with necessary cautions, however, to prevent their dams from obstructing the navigation of the water courses. The General Assembly have, on several occasions, shewn a great desire to encourage the opening the great falls of James and Patowmac rivers. As yet, however, neither of these have been effected.

The laws have also descended to the preservation and improvement of the races of useful animals, such as horses, cattle, deer; to the extirpation of those which are noxious, as wolves, squirrels, crows, blackbirds; and to the guarding our citizens against infectious disorders, by obliging suspected vessels coming into the State, to perform quarantine, and by regulating the conduct of persons having such disorders within the State.

The mode of acquiring lands, in the earliest times of our settlement, was by petition to the General Assembly. If the lands prayed for were already cleared of the Indian title, and the assembly thought the prayer reasonable, they passed the property by their vote to the petitioner. But if they had not yet been ceded by the Indians, it was necessary that the petitioner should previously purchase their right. This purchase the assembly verified, by enquiries of the Indian proprietors; and being satisfied of its reality and fairness, proceeded further to examine the reasonableness of the petition, and its consistence with policy, and, according to the result, either granted or rejected the petition. The company also sometimes, though very rarely, granted lands, independently of the General Assembly. As the colony increased, and individual applications for land multiplied, it was found to give too much occupation to the General Assembly to enquire into and execute the grant in every special case. They therefore thought it better to establish general rules, according to which all grants should be made, and to leave to the Governor the execution of them under these rules. This they did by what have been usually called the land laws, amending them from time to time, as their defects were developed. According to these laws, when an individual wished a portion of unappropriated land, he was to locate and survey it by a public officer, appointed for that purpose; its breadth was to bear a certain proportion to its length; the grant was to be executed by the Governor; and the lands were to be improved in a certain manner within a given time. From these regulations there resulted to the State a sole and exclusive power of taking conveyances of the Indian right of soil; since, according to them, an Indian conveyance alone could give no right to an individual, which the laws would acknowledge. The State, or the Crown thereafter, made general purchases of the Indians from time to time, and the Governor parcelled them out by special grants, conformed to the rules before described, which it was not in his power, or in that of the Crown, to dispense with. Grants, unaccompanied by their proper legal circumstances, were set aside regularly by scire facias, or by bill in chancery. Since the establishment of our new government, this order of things is but little changed. An individual, wishing to appropriate to himself lands still unappropriated by any other, pays to the public treasurer a sum of money proportioned to the quantity he wants. He carries the treasurer's receipt to the auditors of public accounts, who, thereupon, debit the treasurer with the sum, and order the register of the land office to give the party a warrant for his land. With this warrant from the register, he goes to the surveyor of the county where the land lies on which he has cast his eye. The surveyor lays it off for him, gives him its exact description, in the form of a certificate, which certificate he returns to the land office, where a grant is made out, and is signed by the Governor. This vests in him a perfect dominion in his lands, transmissible to whom he pleases by deed or will, or by descent to his heirs if he die intestate.

Many of the laws which were in force during the monarchy being relative merely to that form of government, or inculcating principles inconsistent with Republicanism, the first assembly which met after the establishment of the Commonwealth, appointed a committee to revise the whole Code, to reduce it into proper form and volume, and report it to the assembly. This work has been executed by three gentlemen, and reported; but probably will not be taken up till a restoration of peace shall leave to the Legislature leisure to go through such a work.

The plan of the revisal was this: The common law of England, by which is meant that part of the English law which was anterior to the date of the oldest statutes extant, is made the basis of the work. It was thought dangerous to attempt to reduce it to a text; it was therefore left to be collected from the usual monuments of it. Necessary alterations in that, and so much of the whole body of the British statutes, and of acts of assembly, as were thought proper to be retained, were digested into 126 new acts, in which simplicity of style was aimed at, as far as was safe. The following are the most remarkable alterations proposed:

To change the rules of descent, so as that the lands of any person dying intestate shall be divisible equally among all his children, or other representatives, in equal degree:

To make slaves distributable among the next of kin, as other moveables:

To have all public expenses, whether of the general treasury, or of a parish or county, (as for the maintenance of the poor, building bridges, court houses, &c.,) supplied by assessments on the citizens, in proportion to their property:

To hire undertakers for keeping the public roads in repair, and indemnify individuals through whose lands new roads shall be opened:

To define with precision the rules whereby aliens should become citizens, and citizens make themselves aliens:

To establish religious freedom on the broadest bottom:

 .mw-parser-output .grc{font-family:SBL BibLit,SBL Greek,DejaVu Sans,DejaVu Serif,FreeSerif,FreeSans,Athena,Gentium Plus,Gentium,Palatino Linotype,Arial Unicode MS,Lucida Sans Unicode,Lucida Grande,Code2000,sans-serif}.mw-parser-output .polytonic{font-family:"SBL BibLit","SBL Greek",Athena,"Foulis Greek","Gentium Plus",Gentium,"Palatino Linotype","Arial Unicode MS","Lucida Sans Unicode","Lucida Grande",Code2000}Ἠμισυ γαρ τ᾽ ἀρετῆς ἀποαίνυται εὐρύοπα Ζεὺς Ἀνερος, ευτ᾽ ἄν μιν κατὰ δούλιον ἦμαρ ἕλῃσιν. Od. 17. 323.

 Jove fix'd it certain, that whatever day Makes man a slave, takes half his worth away.

But the slaves of which Homer speaks were whites. Notwithstanding these considerations, which must weaken their respect for the laws of property, we find among them numerous instances of the most rigid integrity, and as many as among their better instructed masters, of benevolence, gratitude, and unshaken fidelity. The opinion that they are inferior in the faculties of reason and imagination, must be hazarded with great diffidence. To justify a general conclusion, requires many observations, even where the subject may be submitted to the anatomical knife, to optical glasses, to analysis by fire, or by solvents. How much more then where it is a faculty, not a substance, we are examining; where it eludes the research of all the senses; where the conditions of its existence are various, and variously combined; where the effects of those which are present or absent bid defiance to calculation; let me add too, as a circumstance of great tenderness, where our conclusion would degrade a whole race of men from the rank in the scale of beings which their Creator may perhaps have given them. To our reproach it must be said, that though for a century and a half we have had under our eyes the races of black and of red men, they have never yet been viewed by us as subjects of natural history. I advance it therefore as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind. It is not against experience to suppose that different species of the same genus, or varieties of the same species, may possess different qualifications. Will not a lover of natural history then, one who views the gradations in all the races of animals with the eye of philosophy, excuse an effort to keep those in the department of man as distinct as Nature has formed them? This unfortunate difference of color, and perhaps of faculty, is a powerful obstacle to the emancipation of these people. Many of their advocates, while they wish to vindicate the liberty of human nature, are anxious also to preserve its dignity and beauty. Some of these, embarrassed by the question, “What further is to be done with them?” join themselves in opposition with those who are actuated by sordid avarice only. Among the Romans emancipation required but one effort. The slave, when made free, might mix with, without staining the blood of his master. But with us a second is necessary, unknown to history. When freed, he is to be removed beyond the reach of mixture.

The Revised Code further proposes to proportion crimes and punishments. This is attempted on the following scale:

I. Crimes whose punishment extends to life:

 1. High treason. Death by hanging. Forfeiture of lands and goods to the Commonwealth. 2. Petty treason. Death by hanging. Dissection. Forfeiture of half the lands and goods to the representatives of the party slain. 3. Murder. 1. By poison. Death by poison. Forfeiture of one-half as before. 2. In Duel. Death by hanging. Gibbeting, if the challenger. Forfeiture of one-half as before, unless it be the party challenged, then the forfeiture is to the Commonwealth. 3. In any other way. Death by hanging. Forfeiture of one-half as before. 4. Manslaughter. The second offence is murder.

II. Crimes whose punishment goes to limb:

 1. Rape. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ Dismemberment. 2. Sodomy. 3. Maiming. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ Retaliation, and the forfeiture of half the lands and goods to the sufferer. 4. Disfiguring.

III. Crimes punishable by labor:

 1. Manslaughter, 1st offence. Labor seven years for the public. Forfeiture of half as in murder. 2. Counterfeiting money. Labor six years. Forfeiture of lands and goods to the Commonwealth. 3. Arson. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ Labor five years. Reparation three-fold. 4. Asportation of vessels. 5. Robbery. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ Labour four years. Reparation double. 6. Burglary. 7. House-breaking. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ Labor three years. Reparation. 8. Horse-stealing. 9. Grand Larceny. Labor two years. Reparation. Pillory. 10. Petty Larceny. Labor one year. Reparation. Pillory. 11. Pretensions to witchcraft, &c. Ducking. Stripes. 12. Excusable homicide. ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\\\ \ \end{matrix}}\right\}\,}}$ To be pitied, not punished. 13. Suicide. 14. Apostacy. Heresy.

Pardon and privilege of clergy are proposed to be abolished; but if the verdict be against the defendant, the court, in their discretion, may allow a new trial. No attainder to cause a corruption of blood, or forfeiture of dower. Slaves guilty of offences punishable in others by labor, to be transported to Africa, or elsewhere, as the circumstances of the time admit, there to be continued in slavery. A rigorous regimen proposed for those condemned to labor.