II. Bill for Establishing a High Court of Chancery
[25 November 1776]
For establishing a Court of general Jurisdiction in Chancery, Be it enacted by the General Assembly of the commonwealth of Virginia,1 That at some certain place2 to be appointed by Act of General Assembly and at the times hereinafter directed shall be held a principal Court of Judicature for this commonwealth which shall be called the High Court of Chancery and shall consist of three judges to be chosen from time to time, by the joint ballot of both houses of Assembly and commissioned by the Governor, to hold their office so long as they shall respectively demean themselves well therein any two of them to be a court.3
Every person so commissioned before he enters upon the duties of his office, shall, in open Court, take and subscribe the oath of fidelity to this commonwealth and take the following oath of office to wit “You shall swear that well and truly you will serve this Commonwealth in the office of Judge of the High Court of Chancery and that you will do equal right to all manner of people great and small, high and low, rich and poor, according to Equity and good conscience and the laws and usages of Virginia without respect of persons, you shall not take by yourself, or by any other, any gift, fee, or reward of gold, silver or any other thing directly or indirectly of any person or persons great or small for any matter done4 by virtue of your office; except such fees, or salary as shall be by law appointed, you shall not maintain by yourself or any other privily or openly any plea or quarrel depending in the Courts of this Commonwealth, you shall not delay any person of right for the letters or request of any person nor for any other cause, and if any letter or request come to you contrary to law, you shall nothing do for such letter or request but you shall proceed to do the law any such letter or request notwithstanding, and finally in all things belonging to your said office during your continuance therein, you shall faithfully, justly, and truly according to the best of your skill and judgment do equal and impartial justice without fraud, favour, affection or partiality. So help you God,” and if any person shall presume to execute the said office without having taken the said oaths he shall forfeit and pay the sum of five hundred pounds for his said offence.
The said Court shall have general jurisdiction over all persons and in all causes in Chancery, whether brought before them by original process, appeal from any inferior Court, Certiorari, or other legal means, but no person shall commence an original suit in the said Court in a matter of less value than ten pounds except it be against the justices of any County, or other inferior Court or the Vestry of any Parish on pain of having the same dismissed with Costs.
There shall be two Sessions of the said Court in every year, to wit, one to begin on the fifth day of April, if not Sunday, and then on the next day, the other on the fifth day of September5 if not Sunday, and then on the next day, to continue each of them eighteen days, Sundays excluded, if they shall so long have business to require their attendance, if not they may when the business is dispatched adjourn to the next Court. The said Court shall however be considered as always open so as to grant injunctions, Writs of ne exeat or other process heretofore allowed by the laws to be issued in time of Vacation by the Clerk of the General Court in Chancery.
The said Court shall have power from time to time to appoint a Clerk who shall hold his office during good behaviour and be entitled to such fees or Salary as shall be established by the legislature.
All original process to bring any person to answer any bill, petition, or information in the said Court and all subsequent process thereupon shall be issued and signed by the Clerk in the name of the Commonwealth and bear teste by the first Commissioner6 of the said Court; shall be returnable to the first or seventeenth day of the Term which shall be next after the suing out such process and may be executed at any time before the return day thereof. And if any process shall be executed so late that the Sheriff hath not reasonable time to return the same before the day of appearance and thereupon any subsequent process shall be awarded the Sheriff shall not execute such subsequent process but shall return the first process by him executed on which there shall be the same proceedings, as if it had been returned in due time, and all Appeals from decrees in Chancery obtained in any inferior Court shall be made to the third day of the next term.
In all Suits in the said Court the following rules and methods shall be observed that is to say—
The Complainant shall file his Bill within one Calendar month after the day of appearance, or may be ruled on the requisition of the defendant to file such Bill and if he fails to do so within one Calendar month after such rule the suit shall be dismissed with costs and upon the Complainants dismissing his Bill, or the defendants dismissing the same for want of prosecution the Complainant shall pay costs to be taxed by the Clerk of the Court: for which costs a subpoena or other process of contempt may issue returnable on any return day.
The Complainant may amend his Bill before the defendant or his Attorney hath taken out a copy thereof, or in a small matter afterwards without paying costs, but if he amend in a material point after such copy obtained, he shall pay the defendant all costs occasioned thereby.
If the defendant shall not appear on the day of appearance (which in all cases shall be the second day after the term to which the subpoena is returnable) an attachment shall be awarded and issued against him returnable to the next term, which being returned executed, if the defendant doth not appear or being brought into Court upon any such process shall obstinately refuse to answer, the Complainants Bill shall be taken pro: confesso7 and the matter thereof decreed accordingly.
The defendant within three calendar months after his appearance and Bill filed shall put in his answer to be filed with the Clerk in the office, at the expiration of which time, if no answer be filed the Clerk upon request shall issue an Attachment returnable to the next court, and if no answer be filed upon the return of such Attachment executed, the Complainants Bill shall be taken as confessed and the matter thereof decreed and if the Attachment be returned not executed, an Attachment with proclamations, and such subsequent process of contempt may issue as was heretofore issued out of the General Court sitting in Chancery in like cases.
No process of contempt shall issue unless the subpena be returned served by a sworn officer or affidavit be made of the service thereof.
Every defendant may swear to his answer before any judges of this or of the General Court or any justice of the peace.
When a cross Bill shall be preferred,8 the defendant or defendants to the first Bill shall answer thereto, before the defendant or defendants to the cross Bill shall be compellable to answer such cross bill.
The Complainant shall reply or file exceptions within two Calendar months after the answer shall have been put in. If he fails so to do the defendant may give a rule to reply with the Clerk of the Court which being expired, and no replication or exceptions filed the suit shall be dismissed with costs, but the Court may order the same to be retained if they see cause on payment of costs.
If the Complainant’s Attorney shall except against any answer as insufficient he may file his exceptions and give rule with the Clerk to make a better answer within two Calendar months, and if within that time the defendant shall put in a sufficient answer the same shall be received without costs, but if any defendant insist on the sufficiency of his answer, or neglect, or refuse to put in a sufficient answer, or shall put in another insufficient answer, the Plaintiff may set down his exceptions to be argued the next term in Court and after the expiration of such rule, or any second insufficient answer put in no further or other answer shall be received, but upon payment of costs.
If upon argument the Complainants exceptions shall be over ruled or the defendants answer adjudged insufficient, the Complainant shall pay to the defendant or the defendant to the Complainant such costs as shall be allowed by the Court.
Upon a second answer adjudged insufficient costs shall be doubled. If a defendant shall put in a third insufficient answer which shall be so adjudged9 the Complainant may go on with the subsequent process of contempt as if no answer had been put in.
Rules to plead, answer, reply, rejoin or other proceedings not before particularly mentioned, when necessary, shall be given from month to month with the Clerk in his office, and shall be entered in a rule book for the information of all Parties, Attornies or Solicitors concerned therein.
No defendant shall be admitted to put in a rejoinder unless it be filed on or before the expiration of the rule to rejoin, but the Complainant may proceed to the examination of witnesses.10
After an Attachment with proclamation returned, no plea or demurrer shall be received, unless by order of Court upon motion.
If the Complainant conceives any plea or demurrer to be naught, either for the matter or manner of it he may set it down with the Clerk to be argued. Or if he thinks the plea good but not true he may take issue upon it and proceed to trial by jury as hath been heretofore used in other causes in Chancery where trial hath been by jury. And if thereupon the plea shall be found false the Complainant shall have the same advantages as if it had been so found by verdict at common Law.
If a plea or demurrer be over ruled, no other plea or demurrer shall be thereafter received but the defendant shall answer the allegations of the Bill.
If the Complainant shall not proceed to reply to, or set for hearing as before mentioned any plea or demurrer before the second Court after filing the same, the Bill may be dismissed of course with costs.
Upon a plea or demurrer, argued, and over ruled, costs shall be paid, as where an answer is judged insufficient, and the defendant shall answer within two Calendar months after, but if adjudged good the defendant shall have his costs.
If any defendant shall obstinately insist on a demurrer after the same hath been over ruled by the Court, and shall refuse to answer, the Bill shall be taken as confessed and the matter thereof decreed.11
After any Bill filed and before the defendant hath answered, upon oath made that any of the Complainants witnesses are aged or infirm or going out of the country, the Clerk may issue a commission for taking the examination of such witnesses de bene esse the party praying such commission giving reasonable notice to the adverse party of the time and place of taking the depositions.
All matters of fact material to the determination of the cause which in the course of the proceedings shall be affirmed by the one party and denied by the other, shall be tried12 by Jury, for which purpose an issue or issues shall be made up by declaration and plea as hath heretofore been used in Chancery when issues have been specially directed to be made up and tried by Jury.
And for rendering the said trials more convenient to parties and witnesses, a venue shall be laid in the Declaration a transcript of the record deliverd to the Clerk of Assise where the said venue is laid and a trial be had before the judge of the same assise in every case in such manner as is directed by law in actions at the common law, saving to the Defendant the same benefit of evidence by his own answer as hath been heretofore allowed in trials before the Court of Chancery. Nevertheless the judges for good cause to them shewn, may direct the venue to be changed in any cause or may order any trial to be had at their bar and not at the Assises.
The judge of Assise shall certifie under his seal upon or with each record transmitted, the verdict which shall be given therein, together with such demurrers, or exceptions to evidence, or to the opinion of the Court as he shall be desired by either party to certifie, which verdict and other certificates the Clerk of Assise shall return in convenient time to the office of the Clerk in Chancery.
When the Postea shall be return’d if the Complainant shall not within one Calendar month thereafter set down the cause for hearing with the Clerk, the Defendant may have the same set down at his request.13
The Court in their sittings may regulate all proceedings in the Office and for good cause shewn may set aside any dismissions and reinstate the suits, on such terms as shall appear equitable.
For prevention of errors in entering up the decrees and orders of the court the proceedings of every day shall be drawn up at large by the clerk and read in open court the next day (except those of the last day of each term, which shall be drawn up, read and corrected the same day) and any necessary corrections made therein, when they shall be signed by the presiding judge of the court and preserved among the records.
And for the more entire and better preservation of the records of the court, when any cause shall be finally determined, the clerk shall enter all the pleadings therein and other matters relating thereto, together in a book to be kept for that purpose, so that an entire and perfect record may be made thereof, and those wherein the title to lands is determined shall be entered in separate books to be kept for that purpose only.14
The Court in their Sessions or any two of the Judges in vacation may grant writs of Certiorari for removing before them the proceedings on any suit in Chancery depending in any county or other inferior Court, writs of ne exeat to prevent the departure of any defendant out of the Country, until security be given for performing the decree, and writs of Injunction to stay Execution of Judgments obtained in any of the Courts of common Law subject nevertheless to the rules following That is to say
No writ of Certiorari shall be granted to remove any suit unless the matter in dispute be of value sufficient to intitle the High Court of Chancery to original jurisdiction therein: nor unless ten days notice of the motion be given to the adverse party: nor in Vacation but upon such petition and affidavit as are by law directed for writs of Certiorari to be granted by the General Court and in all cases bond and security shall be given for performing the decree of the said High Court of Chancery before the issuing of the Certiorari. Writs of ne exeat shall not be granted but upon a bill filed and affidavits made to the truth of its allegations, which being produced to the Court in term time or to two judges in Vacation they may grant or refuse such writ as to them shall seem just, and if granted, they shall direct to be indorsed thereon in what penalty bond and security shall be required of the defendant.
If the Defendant shall by answer satisfie the Court there is no reason for his restraint; or give sufficient security to perform the Decree the writ may be discharged.
No Injunction shall be granted to stay proceedings in any suit at law, unless the matter in dispute be of value sufficient to admit of original jurisdiction in the said High Court of Chancery, nor unless the Court in Term time or two judges thereof in Vacation shall be satisfied of the Plaintiffs equity either by affidavit certified at the foot of the Bill that the allegations thereof are true, or by other means, and shall order the same, in which case the Complainant shall enter into bond with sufficient security15 for paying all money and tobacco and costs due or to become due to the Plaintiff in the action at Law, and also all such costs as shall be awarded against him or her in case the Injunction shall be dissolved.
The said High Court of Chancery shall take cognizance of and hear and determine all suits in Chancery which were depending in the General Court at its last adjournment16 in the same manner as if the said Suits had been originally commenced in or appeals enterd to the said High Court of Chancery.
If any suit shall be depending or hereafter commenced against any Defendant or Defendants who are out of this country and others within the same having in their hands effects of or otherwise indebted to such absent defendant or defendants and the appearances of such absentees be not entered and security given to the satisfaction of the Court for performing the decrees upon affidavit that such Defendant or defendants are out of the Country, or that upon enquiry at his her or their usual place of abode, he she or they could not be found so as to be served with process, in all such cases the said High Court of Chancery may make any order and require surety if it shall appear necessary to restrain the defendants in this Country from paying, conveying away or secreting the debts by them owing to, or the effects in their hands of such absent defendant or defendants and for that purpose may order such debts to be paid and effects delivered to the said Plaintiff or Plaintiffs upon their giving sufficient security for the return thereof to such persons and in such manner as the Court shall direct. The Court shall also appoint some day in the succeeding term for the absent defendant or defendants to enter his or their appearance to the suit and give security for performing the decree, a copy of which order shall be forthwith published in the Virginia gazette and continued for two months successively and shall also be published on some Sunday immediately after divine service in such Parish Church or Churches as the Complainant17 shall direct; and another copy shall be Posted at the front doors of the said Court.
If such absent defendant or defendants shall not appear and give such security within the time limited or such further time as the Court may allow them for good cause shewn, the Court may proceed to take such proof as the Complainant shall offer, and if they shall thereupon be satisfied of the Justice of the demand they may order the Bill to be taken as confessed and make such order and decree therein as shall appear just, and may inforce due performance and execution thereof by such ways and means as hath heretofore been used for inforcing other decrees, requiring the Plaintiff or Plaintiffs to give security as the Court shall approve, for abiding such future order as may be made for restoring the estate or effects to the absent defendant or defendants upon his or their appearance and answering the Bill: and if the Plaintiff or Plaintiffs shall refuse to give, or not be able to procure such security the effects shall remain under the direction of the Court in the hands of a receiver or otherwise for so long time, and shall then be finally disposed of in such manner as to the Court shall seem just.
If any defendant or defendants shall be in custody upon any process of contempt, and be brought into Court by virtue of a writ of Habeas corpus or other process, and shall refuse or neglect to enter his or her appearance according to the rules of the Court or appoint an Attorney of the Court to do the same for him, The Court in such case may direct an Attorney to enter an appearance for the Defendant or defendants, and thereupon such proceedings may be had as if he or they had actually entered an appearance; but if such defendant or defendants shall be in custody at the time a decree shall be made, upon Refusal or neglect to enter an appearance or to appoint an Attorney as aforesaid, or shall be forthcoming so as to be served with a copy of the Decree then such defendant or defendants shall be served with such copy before any process shall be taken out to compel the performance thereof. And if such defendant or defendants shall die in custody before such service, then his Heir, if any real estate be sequestered or affected by such decree, or if only personal estate, his Executor or Administrator shall be served with a copy in a reasonable time after such death shall be known to the Plaintiff and who is such Heir Executor, or Administrator.
If any person or persons who shall be out of the Country18 at the time any decree is pronounced as aforesaid, shall within seven years from the passing such decree return to this country and appear openly or in case of his or her death if his or her Heir Executor or Administrator shall within the said seven years be and appear openly within this country,18 the Plaintiff or Plaintiffs their Executors or Administrators shall serve such person or persons so returning or appearing with a copy of the decree within a reasonable time after such return or appearance shall be known to the Plaintiff or Plaintiffs and thereupon such defendants or their representatives may within twelve months after such service, or those defendants not served with a copy, or their representatives, may within seven years after the decree pronounced appear in Court and petition to have the case reheard. And upon their paying down or giving security for payment of such costs, as the Court shall think reasonable, they shall be admitted to answer the Bill, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree and execution had, as if there had been no former decree in the cause. But if the several defendants or their representatives, upon whom the decree shall be so served shall not within twelve months after such service and the other defendants or their representatives upon whom no such service is made shall not within seven years from the time of the decree pronounced appear and petition to have the cause reheard as aforesaid, and pay or secure to be paid such costs as the Court may think reasonable as aforesaid, All and every decree to be made in pursuance of this Act against any defendant or defendants so failing, shall stand absolutely confirmed against him, her, or them, his, her, or their heirs, Executors and Administrators and all persons claiming under him, her, or them by virtue of any act or conveyance, done or made subsequent to the commencement of the suit. And at the end of such term, the Court may make such further order for quieting the Plaintiff or Plaintiffs in any such suits, in their possession of and title to the Estate and effects so sequestered or made liable, as to them shall seem reasonable.19
MS (Vi); in clerk’s hand, with alterations in TJ’s hand and two paragraphs written by him on an inserted slip. Endorsed by TJ: “for establishing a High court of Chancery”;amendments by House in clerk’s hand, all of which are indicated in notes below. Another MS (Vi); in clerk’s hand, with some minor alterations in TJ’s hand; docketed by clerk: “A Bill For establishing a high Court of Chancery. 1777 Nov. 7th. Read the first time. Novr. 8th. Read 2d. time & committed”; amendments noted below and the two drafts distinguished by being referred to as 1776 Bill and 1777 Bill. Except for TJ’s alterations and amendments in 1776 and 1777, both texts are almost identical with each other and with thelaw as enacted; hence the whole legislative history of the Bill is traced here.
There can be little doubt that TJ was the author of this Bill in 1776. The best account of his purpose in advocating such a court is set forth in his letter to Mazzei of 28 Nov. 1785, where he regards chancery jurisdiction ideally as making “the administration of justice progressive almost in equal pace with the progress of commerce and refinement of morality”; he also notes that, “to guard … effectually against the dangers apprehended from a court of Chancery, the legislature of Virginia … very wisely introduced into it the trial by jury for all matters of fact.” This Bill was introduced by TJ, 25 Nov., when it was read the first time; 29 Nov., it was read a second time and referred to Committee of the Whole; 3 Dec., considered by House and amendments agreed to; 13 Dec., it was postponed to next session (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1776, 1828 edn., p. 69, 75, 80, 96). (These amendments, noted below, aid in proving that this is the 1776 draft; some were incorporated in 1777 Bill and some were disregarded in that Bill. Notes below also indicate priority of this text; since the Senate at no time offered amendments in 1776 or 1777 Bills, the amendments to this text can only have been those made by the House in 1776.) On 30 Oct. 1777 TJ was appointed to committee to bring in Bill on this subject; Bill introduced by Nicholas, 7 Nov.; read second time, 8 Nov., and referred to Committee of Whole; 2 Jan. 1778, amended by Committee of Whole; 3 Jan., read third time and passed, Prentis carrying Bill to Senate; 9 Jan., agreed to by Senate (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1778, 1827 edn., p. 8, 15, 17, 96, 99, 108; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 389–99).
1. The words “of the commonwealth of Virginia” struck out in 1777 Bill, one of the indications of priority of the present text.
2. Williamsburg was designated as the place in 1778, and Richmond in 1779 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 434; X, 89).
3. TJ interlined a change in the 1777 Bill to cause it to read “two of whom may hold a Court,” which is the reading of the Act (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 389), a change proving the present text to be the earlier.
4. Amendment to 1777 Bill: “After ‘done’ insert ‘or to be done’ agd.”; Act of 1778 reads thus.
5. Amendment to 1776 Bill altered this to 1 March and 1 September; amendment in 1777 Bill: “Leave out from the Word April to the Word then and insert ‘or if that be Sunday’ agd.” Act of 1778 agrees with amendment to 1777 Bill.
6. Amendment to 1776 Bill: “Strike out the word Commissioner and insert Judge”; so written in 1777 Bill and in Act of 1778.
7. Amendment to 1776 Bill: “Strike out the words pro confesso and insert as confessed”; so written in 1777 Bill and in Act of 1778.
8. Amendment to 1776 Bill: “Strike out the word preferred and insert exhibited”; so written in 1777 Bill and in Act of 1778.
9. Amendment to 1776 Bill: “After the word adjudged insert he or she may be examined upon Interrogatories and committed until he or she shall answer them and pay Costs, if the defendant after process of Contempt, put in an insufficient answer which shall be so adjudged.” The 1777 Bill and Act of 1778 incorporate this amendment.
10. Amendment to 1777 Bill: “Leave out from the word ‘proceed’ to the word ‘after’ … and insert ‘to set his Cause down for hearing’ agd.” Act of 1778 incorporates this amendment.
11. Amendment to 1777 Bill deleted words “shall obstinately insist … by the Court, and,” and inserted: “After a Demurrer shall have been over ruled”; thus in Act of 1778.
12. Amendment to 1776 Bill: “At the word tried insert ‘upon Evidence given vivâ voce in open Court, and where witnesses are absent through Sickness or other unavoidable Cause, upon their Depositions taken as the Laws direct’ “and also: “after the Word Jury insert ‘if either party shall desire it, or the Court shall think proper to direct the same.’” This amendment was thus copied (except that “open Court” was changed to “said Court”) into the 1777 Bill, but an amendment to 1777 Bill at this point deleted the second part of 1776 Bill amendment; it was reconsidered, but struck out again, and is not in Act of 1778. This proves TJ right on a point heretofore challenged (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends I, 51).
13. All but one sentence of the preceding three paragraphs were deleted in the 1776 Bill. The list of amendments reads as follows: “Strike out 28, 29 and 30th Clauses, except the words of the 28th Clause Saving to the Defendant the same Benefit of Evidence by his own answer as hath been heretofore allowed in Trials before the Court of Chancery.” They were not included in the 1777 Bill, but a draft of an amendment in TJ’s hand (DLC: TJ Papers, 233: 41701) covering these paragraphs precisely was evidently offered in 1777. His efforts to restore the whole of these deleted paragraphs failed; however, two amendments adopted at this point in the 1777 Bill cause the 1777 Bill to read as in Act of 1778 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 394, sect. xxvi and xxvii, the latter of which substantially enacts the last of the three deleted paragraphs from 1776 Bill).
14. This and the preceding paragraph were written by TJ on a slip of paper inserted at this point; these paragraphs were copied in this order in 1777 Bill and in Act of 1778.
15. Amendment to 1777 Bill: “Insert to be approved by the said Court or Judges”; thus in Act of 1778.
16. The 1777 Bill inserts at this point, though not recorded as an amendment, the words “or have been commenced therein since such adjournment”; thus in Act of 1778.
17. “Complainant” struck out in 1777 Bill and “Court” interlined in TJ’s hand; thus in Act of 1778.
18. Changed to “Commonwealth” in 1777 Bill and in Act of 1778.
19. Act of 1778 adds a paragraph not in 1776 or 1777 Bills, giving each of the Chancery judges a salary of £500 and stating taxes on processes.