CHAPTER III. THE SOUTHERN COLONIES. Virginia. "Be The prevailing belief that codes of law are necessary for new colonies is evidenced by Crashaw's sermon preached before the London Company in February, 1609-10. Crashaw says: well advised in making laws, but being made let them be obeyed, and let none stand for scare-crows, for that is the way at last to make all to be contemned." The instruction for the government of the colonies2 fixed general rules for the descent of lands, criminal law, jury trials, and placed civil jurisdiction in the hands of the governor and council. The first code intended for the colonies, printed at London in 1612, and entitled Laws Divine, Moral and Martial,3 was exceedingly severe, and Sir Thomas Smith, the governor, was later much abused for having introduced it into Virginia. On account of the character of the population a strict rule was, however, absolutely necessary. In 1620, an attempt was made by the London company to compile a more adequate and humane code. Sir Edwin Sandys proposed the appointment of several committees for the following purposes: (1) compiling the laws of England suitable for the plantation; (2) collecting the orders and constitutions already in existence; (3) revising the laws passed by the Assembly. These committees were finally to meet and harmonize the entire body of laws which was then to be submitted to the king. Among the commissioners was 1 Brown, Genesis of the United States, p. 371. Ibid., pp. 368-71. Ibid., p. 528. John Selden.* These committees, however, did not report and Governor Yeardley asked for authority to make a collection of suitable laws.5 The first legislative assembly of Virginia met in 1619. It passed a number of laws and petitioned the council that they would "not take it in ill part if these laws passed current and be of force until we know their further pleasure out of England, for otherwise this people would in a short time grow too insolent." There is here so far no claim of the immediate validity of English laws in the colony, and all parties concerned seem to think the formation of a new code adapted to the circumstances of the settlers necessary. In 1631, the oath of commissioner of monthly courts was fixed as follows: "You shall do equal right to poor and to rich after your cunning, wit and power and after the laws and customs of this colony, and as near as may be after the laws of the realm of England." There was not in Virginia, as we have noted in many of the other colonies, a system of courts whose magistrates were elected by the people. The county courts were presided over by eight or ten gentlemen receiving their commission from the governor. Notwithstanding the source of their appointment, these men, not being educated in the law, would perhaps not be governed by considerations much different from those obtaining in the popular courts of Massachusetts and Connecticut. The large number of the members of the court is of itself a reversion to the very archaic type of Doomsmen of the Anglo-Saxon courts, who there declared the custom and fixed the mode of trial. Appeal lay from these courts to the general court, composed of governor and council. Their jurisdiction grew up by custom and the forms of proceedings were quite irregular. They also exercised a general chancery jurisdiction." Proceedings of the Virginia Company of London. Virginia Historical Collections, vol. VII, p. 55. Ibid., p. 55. Hening, Statutes at Large, vol. I, p. 169. Campbell, History of Virginia, p. 352. By the statutes of 1661-1662 procedure in the courts was regulated. At the time of the Restoration Virginia seems to have been especially anxious to show herself loyal to England, and these enactments breathe a deep respect for the common law. In the preamble it is stated that the legislature has endeavored in all things to adhere to these "excellent and refined laws of England to which we profess to acknowledge all due obedience and reverence." As a reason for enacting laws at all they assign the vast volume of the English law from which courts would be unable to collect the necessary principles without the aid of such codification.8 The former laws are repealed and a new code is enacted. As some former laws restrained the trial by jury quite contrary to the laws of England, the law of juries is restated with special carefulness and precision. is interesting to note in this connection that the colonists express their regret that they are unable to comply with the requirement of the English jury system that the jurors shall come from the immediate neighborhood of the place where the fact was committed; but they state that they desire to approach as near as possible to compliance by enacting that six men of the ablest and nearest of the inhabitants of the county shall be on the jury.9 This reminds us of Sir John Fortescue's contention that France could not have the jury system, because there no neighborhood could produce twelve intelligent and substantial jurors. In this code the period of prescription for land is limited to five years. 10 It The system of itinerant judges existed in Virginia for some time, but was abolished in 1662 on account of the great charge to the country.11 The nature of the procedure in the county courts is seen from the provision that the bill or complaint must be filed the day before court, that the answer and judgment as well as evidence in the case is also to be filed, that the judg 8 Hening, Statutes at Large, vol. II, 43. 9 Ibid., II, 63. 10 Ibid., 97. 11 Ibid., II, 179. ment is to be endorsed on the complaint if for the plaintiff, on the answer if for the defendant. 12 The administration of law in Virginia was in the hands of the country gentlemen who looked down upon the legal profession, and in no state do we find more hostile legislation concerning lawyers than in the Old Dominion. In 1645 an act was passed expelling the mercenary attorneys. 13 In November, 1647, it is enacted that none shall plead for recompense, That in case the courts shall perceive that "either party by his weakness shall be like to lose his cause, they themselves may open the cause or may appoint some fit man out of the people to plead the cause, but shall not allow any other attorneys." In 1656 the hostile acts were repealed, but only a year later there was again proposed in the house "a regulation or total ejection of lawyers," whereupon the decision was "by the first vote an ejection."14 A new act was therefore passed 15 forbidding any person to plead or give advice in any case for reward. The governor and council rather opposed this enactment, but promised to consent to the proposition "so far as it shall be agreeable to Magna Charta." A committee was appointed, who upon considering Magna Charta, reported that they did not discover any prohibition contained therein. 16 In 1728, in a paper on the state of the colonies in America, Keith gives a very unfavorable account of the administration of law in Virginia. In order to unify and settle the law he favors the appointment of circuit judges from England. 17 Governor Gooch, in his answer to Keith's criticisms, says that the practice of courts is exactly suited to the circumstances of the respective governments and as near as possibly can be conformable to the laws and customs of England, and that the judges are of com 12 Hening, II, 71. 13 Hening, I, 482. 14 Hening, I, 495. 15 Ibid., p. 482. 16Neill's Virginia Carolorum, p. 264. 17 Byrd Manuscripts, 1728, p. 222. petent knowledge in the laws, though not all of them profound lawyers. 18 The Carolinas. In the case of the Carolina colonies the enforcement of a very complete code, the celebrated Fundamental Constitutions, was attempted by the proprietors. These Constitutions were reactionary in the extreme, and attempted to introduce an intricate feudal system into the new colony. The redeeming feature of the act lies in its very liberal provisions concerning religious affairs, giving any body of believers the right to worship according to the dictates of their conscience. It is very doubtful if aside from these provisions concerning religion the Fundamental Constitutions had any permanent influence in molding the jurisprudence of the Carolinas. They were first promulgated in 1668, and were reissued in modified forms repeatedly until their final abandonment in 1698. The purpose of this code was to "establish the interest of the proprietor with equality and without confusion that the erecting of a numerous democracy may be avoided."19 We have no satisfactory information about the actual administration of justice in the early days of Carolina. The different colonies in the Carolinas had originally, however, very little in common, being settled by various elements. And it is highly probable that each of these colonies developed at first its own customary and popular methods of dealing with legal controversies. 20 The Carolinas were among the earliest colonies to adopt the English common law as a rule of adjudicature. This was done in South Carolina by the act of December, 1712.21 Before, in 1692, the assembly in an address to Governor Ludwell had complained, because "the Palatine Court assumed to 18 Ibid., p. 237. 19 Fox Bourne, John Locke, p. 238; and Hawks, History of North Carolina, p. 182. 20 Chalmer's Political Annals, p. 521. 21 See Robt. Mills, Statistics of South Carolina, p. 196. |