Bill to Amend the Act Establishing a General Court
[27 October 1778]
[Be it enacted by the general Assembly]1 That instead of the Days heretofore set apart for the Trial of Criminal Causes in the General Court held in the months of March and October the said Court shall at the Commencement of the said Terms enter upon the Trial thereof as null those for capitol offences as others setting apart the four first Days, for that Purpose, but the Judges may direct the Clerk at any Time before his Docket be made out and subpœnas issued for witnesses, to appropriate a longer or shorter Time to such Business and to those days so set apart no other Causes shall be docketed and all Process issued either from the County Courts or the General Court in those Causes shall be returnable to the first Day of the next succeeding Session.2
That all Indictments Presentments Informations Actions and Suits which now are or which were on the twelfth Day of April 17743 depending in any Court within this Commonwealth in the Name or on Behalf of George the Third King of Great Britain and or in the Names of any Persons on Behalf of themselves and the said King, shall, where Trials have not been already had be carried on in the Name of the Commonwealth or in the Names of such Persons and the Commonwealth, instead of the said King in the same Manner as if they had been found made entered or commenced since the Establishment of the said Commonwealth.4 That all Appeals depending against the said King shall be carried on against the Commonwealth instead of the said King, and all Bonds and Recognizances entered into to the said King shall operate as if given to the Commonwealth and in Cases of Breaches thereof Suits or Prosecutions may be carried on in the Name of the Commonwealth.5 That where Trials have been had, and Judgments given in the Name or on Behalf of the said King or in the Names of any other Persons on Behalf of themselves and the said King and not satisfied the same shall inure to the commonwealth instead of the said King and Executions may thereupon issue accordingly but no Time shall bar the Commonwealth of Execution. That all Indictments Presentments Informations Actions and Suits in the Name or on Behalf of the said King or in the Name of any Persons on Behalf of themselves and the said King and all appeals against the said King which may have been discontinued or abated in any Court within this Commonwealth on Account of the Abolition of regal Government shall be forthwith revived redocketed and carried on in the Manner before directed. And all Judgments for or against the Commonwealth shall be the same as would have been entered for or against the King had no Revolution in Government taken Place.6
That any Persons who shall be charged with a Capital Offence and not tried at the second Session after their Examination in the County Court and after Petition to the General Court for Trial shall be acquitted and discharged of such Offence unless good Cause be shewn for postponing their Trials but if they be not tried at the third Session they shall be for ever acquitted and discharged of such offence.7
That when any Criminal shall by the General Court be continued to a succeeding Session for Trial the Sherif of the County in which the Crime is alledged to have been committed shall summon twelve good and able Freeholders of his County every one of whom shall be possessed of a visible Estate over and above his Debts of at least the Value of to serve as a venire upon such Trial and all veniremen shall hereafter be summoned by the high Sherif and Qualified as before is mentioned otherwise they shall be incapable of serving.8
That the Clerk of the Court in which any Criminal is examined shall issue subpœnas for witnesses either against or on Behalf of such Criminal returnable to the first Day of the then next General Court and such witnesses being legally summoned and failing to appear shall be fined in a sum not exceeding9
MS (Vi); in clerk’s hand, containing alterations in the hand of TJ. This text is referred to below, for the sake of clarity, as MS (1). Another MS (Vi); in an unidentified hand; endorsed: “A Bill to amend an act, intituled ‘an act for establishing a general court,’ and other purposes.” Docketed in hand of Edmund Randolph: “Octr. 27. 1778. read first time. Octr. 28. 1778. read second time & to be committed to whole on <Monday next> Thursday se’ennight.” This text is referred to below as MS (2). The Act as adopted, which agrees precisely with the text of MS (1) except as indicated below, is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 473–4.
Although MS (2) was the Bill that was introduced and MS (1) represents the amendment offered to it, the latter was in effect an entire new Bill and was adopted. The initial stages of the legislative history of MS (2) are indicated in the docketing quoted above; between 5 Nov. and 13 Dec. consideration of the Bill as introduced by Terry was postponed no less than ten times. This may possibly have been due to the fact that TJ was absent from the House until 30 Nov.: his colleagues, knowing the leading part he had taken in drafting the judiciary bills, may have deferred action on this amending Act until his arrival. This supposition is given weight by the fact that MS (1), which bears alterations in his hand, was, on 18 Dec., offered as an amendment in substitution for the Terry Bill and was adopted by the House on 19 Dec.: the Senate agreed to this “amendment” or substitute Bill the same day (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. 29, 32, 46, 51, 56, 67, 76, 81, 90, 94, 100, 108, 110, 112, 124–5, 126). It is probable that TJ was not the author of the Bill as introduced by Terry or of the substitute embraced in MS (1), though, as indicated in note 2, below, he certainly was instrumental in keeping the latter from interfering with an Act passed at the previous session.
1. MS (1) contained no enacting clause, having been offered as an amendment to MS (2) as introduced by Terry. Enacting clause has been taken from MS (2); square brackets supplied.
2. MS (2) does not contain a paragraph corresponding to the foregoing. As originally drafted in MS (1), this paragraph provided that at the March and October terms the first four days should be set aside for the trial of criminal causes and at the June and December terms the first three days should be devoted to the same purpose. This would have had the effect of amending an Act passed at the May 1778 session, the object of which was to create two additional terms, to be held in June and December, for the purpose of trying criminal causes only (see Bill to Enable Judges of the General Court to Hold Two Additional Sessions, under date of 27 May 1778; Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 460–1); this Act of May 1778 provided, however, that treasons, felonies, misdemeanors, and other commonwealth pleas should continue to be cognizable at the March and October terms as theretofore. MS (1) as originally drawn, therefore, would have had the effect of making other than criminal causes cognizable at the June and December terms; this apparently was unacceptable to TJ and he therefore struck out the proviso relating to these two terms, interlined the necessary changes, and caused the paragraph to read as above and as in the Act as adopted. By this alteration he left the June and December terms to serve their oyer and terminer functions as contemplated by the Act of May 1778. In view of this, it is likely that TJ was not the author of MS (1); conversely, the change that he made in MS (1) to safeguard the object of the Act of May 1778 is further evidence that he was probably the author of that Act.
3. The words “the twelfth” and “of April 1774” are in TJ’s hand. The corresponding section of MS (2) reads “the day of July 1776.”
4. MS (2) agrees in substance with the foregoing, but there were important variations in phraseology and MS (2) was also broader in scope. It provided that in the case of all indictments, presentments, informations, and prosecutions standing in the name of the king and entered “before the day of July 1776” and still undetermined, the judges of any court having jurisdiction of such might “proceed to Tryal, judgment and execution thereon in the same manner, as it would have proceeded had the present revolution in Government not taken place.” MS (2) also contained a further proviso that “where trials have already been had and judgments obtained, or executions awarded in any such indictment, presentment, information or prosecution, the same shall be as valid and binding as though the said revolution had not taken place.”
5. In the corresponding proviso, MS (2) has the following: “All appeals wherein the said King was a defendant shall be carried on against the commonwealth according to the forms of law used against him. And all bonds and recognizances given to the said King shall operate as if given to the commonwealth.”
6. In the section corresponding to the foregoing, MS (2) has the following: “If any indictment presentment, information, prosecution, appeal against the said King, scire facias, or other action or suit, hath already abated by judgment of any court on account of the abolition of regal government here, the same shall be forthwith reinstated, and carried on to trial, judgment, and execution.
“And in case of judgment being pronounced in favour of a defendant in any of the modes of prosecution abovementioned the same entry (except where the said King is defendant) shall be made against the commonwealth as would otherwise have been made against the said King; and where judgment should have been given in favour of the said King, the same entry shall be made, as if the process had originated in the name of the commonwealth.”
MS (2) also has, following the above section, these three sections not in MS (1) or in Act as adopted: “And be it further enacted that where the plaintiff in any petition for lapsed land, now depending and undetermined, makes good his pretentions, the judgment shall be that the land petitioned for is vested in the commonwealth, that it be certified to the Governour or chief Magistrate, that such plaintiff is the first petitioner, and hath pursued his petition with effect; who upon such certificate is hereby impowered to act therein in the same manner as the Governor of the King of Great Britain formerly acted under the laws of Virginia. And the general court shall hear such petitions at their sessions in June and December.
“And be it further enacted that instead of the 6th. day, all criminal process in the General court shall be returnable to the first Monday in each of the March and October sessions; and the court shall proceed on the said first monday to the trial of criminals.
“If the whole number summoned for a grand Inquest should not appear, it may be compleated with bystanders, qualified as the law directs. And for reasons appearing to the court, any one or more of the grand jury may be withdrawn, even after it be sworn, and another or others substituted in his or their stead.”
7. In the section corresponding to the foregoing, MS (2) has the following: “And if a person committed to the publick Gaol for trial in the General court shall not be tried at the second term after commitment, and after petition offered for trial, such person shall be for ever discharged and acquitted of the offence for which he or she may have been committed, unless by affidavit, or otherwise, good cause be shewn for not bringing him or her to trial; and if such person be not tried at the third term after commitment, and after petition offered for trial, he or she shall be discharged and acquitted, any plea allegation or affidavit notwithstanding.”
MS (2) also has the following section not in MS (1) or in the Act as adopted: “And the General court shall have power at the end of each term to settle a proper allowance for the services of the assistant clerks, the sherif of York, crier and tipstaff in attending the said court; and the treasurer for the time being is hereby required to pay any sum or sums of money which may be drawn for by them, for the purpose aforesaid; and shall have been first entered in the auditors books.”
8. This and the following paragraph, which have been struck out in MS (1), are not in MS (2) or in the Act as adopted, probably having been deleted by amendment.
9. The text ends thus abruptly.