Bill for the Establishment of Courts of Assize
JM was chairman of the House committee for Courts of Justice, and carried a burden of work in the October 1784 session of the legislature that ordinarily would have been assigned a delegate who practiced law. However, JM’s lack of formal legal training did not deter his colleagues from giving him a lawyer’s work. JM’s concern for this bill creating a circuit court system was not focused on its content, but rather on its secret opposition. Jefferson had proposed a court of assize, or circuit court, in the bill creating the General Court in 1776, only to have it eliminated by the ensuing session of the legislature (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , I, 628–41). In recounting the course of the 1784 bill through the House, JM spoke of the measure as “nearly a transcript from the bill originally penned in 1776 by Mr. [Edmund] Pendleton,” who was on the Committee of Revisors along with Jefferson and George Wythe (JM to Jefferson, 9 Jan. 1785). The term, “courts of assize,” was buried deep in Anglo-French antiquity and the use of this ancient title in itself reveals something about Virginians’ ideas on the conservatism of law. Perhaps the use of an old term for an innovation was adjudged necessary by Jefferson and the revisors.
JM introduced the Assize Court bill on 2 December, then pushed it through the General Assembly. The law was too drastic a change, however, and never went into effect. As JM noted nine months later, this legal reform was endangered by “the diversity of opinions” among its supporters along with the opposition of “those who mask a secret aversion to any reform under a zeal for such a one as they know will be rejected” (JM to Jefferson, 20 Aug. 1785). Operation of the courts was first postponed until 1787, then until 1788, and finally the law was repealed in 1788 without having ever been in force (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XII, 45, 267, 497).
One legislative hurdle for the bill, as JM later explained, was a belief held in the Senate that circuit courts ought to have “independent and complete jurisdiction,” with only special appeals to higher courts. In the House of Delegates objectors claimed the assize courts furnished “but a partial relief to suitors, and might render the service of double setts of Lawyers necessary” (JM to Jefferson, 9 Jan. 1785). JM conceded certain points to opponents but held down their number by admitting that supplementary legislation would be required before the newly created courts could begin their work.
For his allies in passage of the bill, JM depended on those delegates from “the discontented extremities of the State” (JM to Jefferson, 9 Jan. 1785). Since no circuit courts then existed, disputants carried their appeals to sessions of the General Court, Court of Appeals, or High Court of Chancery—all held at the capital. This was a considerable inconvenience for most clients but no doubt some lawyers saw advantages in carrying on a practice at home and another at Richmond. Delegates who were lawyers may have feared an implicit threat to their dual practice, which in colonial times had been prohibited “to prevent frivolous suits in the general court, and trifling and vexatious appeals from the county courts” (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , VII, 399; Hugh F. Rankin, “The General Court of Colonial Virginia,” VMHB description begins Virginia Magazine of History and Biography. description ends , LXX , 142). When the court system was reconstituted after 1776, no such prohibition was retained although the jurisdiction of the General Court remained essentially as in pre-Revolutionary times. Jefferson would have liked to place the clamp back on those lawyers who, “traversing the counties seeing the clients frequently at their own courts or perhaps at their own houses must of necessity pick up all the business” and then were “permitted to come from the county courts and consume the harvest” (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , II, 235). Those lawyers who suspected “that they do not possess on their abilities or knowledge sufficient to enable them to stand before judges of law” were also in the “latent opposition” (John Marshall to Charles Simms, 16 June 1784 [DLC: Simms Papers]). As John Marshall discerned matters, the greatest source of the “secret aversion” to the bill was harbored by the county justices “who are tenacious of authority [and] will not assent to any thing which may diminish their ideal dignity & put into the hands of others a power which they will not exercise themselves.” Marshall also thought there was a contumacious crowd in the legislature that wanted to throw roadblocks before any plan that might “expedite & facilitate the business of recovering debts” or make it difficult to break a contract (ibid.).
The lawyers and their allies gained the last word when JM’s Assize Court bill was repealed (see Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XI, 421 n.). They not only rescinded the bill printed below but also wrote into the repeal a clause that killed Jefferson’s efforts to stop legalized barratry. All laws prohibiting lawyers from practicing in both inferior and superior courts were repealed, except in cases where the attorney switched from one client to another between the lower and the appeal court (ibid., XII, 497). Even the lawyers saw there were limits to what the public would allow.
Despite all these setbacks, one eminent lawyer appreciated what JM was attempting and understood the nature of the opposition. Judge Edmund Pendleton, who had become president of the Court of Appeals, told JM he favored “the Assize scheme to any other I have heard.… However it is exceedingly difficult to have it well understood by [those?] not conversant in law proceedings, who have confused Ideas of different Courts which are but branches of the same Court.” With many another politician, Pendleton advised JM to remember “if we can’t get the very best, we must take the best we can get” (Pendleton to JM, 19 Dec. 1786 [DLC]).
[2 December 1784]
For rendering the administration of Justice more expeditious and convenient as well as less burthensome to Individuals and to the CommonWealth Be it enacted by the General Assembly that immediately after the first1 day of January in the Year of our Lord one thousand seven hundred and eighty six the Clerk of the General Court shall make a fair transcript of the Record in each and every Suit depending in the said Court wherein an Issue is to be tried or Inquiry of damages to be made and transmit the same to the Clks of the several Assizes wherein such Suits are to be tried according to the Regulations herein after mentioned. For the tryal of Issues & Inquiry of damages on the Records so transmitted there shall in every Year be holden a Court of Assize at the Places and times following. At the city of Richmond, on the first day of April, and on the first day of October; At the city of Williamsburg, on the thirteenth day of April, and on the thirteenth day of October; At Northumberland court-house, on the first day of April, and on the first day of October; At King and Queen court house, on the twentieth day of March, and on the twentieth day of September; At Fredericksburg, on the third day of May, and on the third day of November; At Winchester, on the tenth day of April, and on the tenth day of October; At Staunton, on the first day of April, and on the first day of October; At Charlottesville, on the thirteenth day of April, and on the thirteenth day of October; At Dumfries, on the twenty third day of April, and on the twenty third day of October; At Monongalia court-house, on the first day of May, and on the twenty-fifth day of September; At Washington court-house and fort Chiswell, alternately, on the tenth day of May, and on the tenth day of October; At Suffolk, on the third day of May, and on the third day of November; at Petersburg, on the lands of Sarah Newsum, which she has ceded to the corporation of Petersburg for the purpose of erecting their public buildings, on the twenty third day of April, and on the twenty third day of October; At Brunswick court-house, on the thirteenth day of April, and on the thirteenth day of October; At Prince Edward court-house, on the tenth day of April, and on the tenth day of October; at Bedford court-house, on the twenty third day of April, and on the twenty third day of October; and at Accomack court house, on the twenty third day of April, and on the twenty third day of October; And if any of the said several days shall happen to be Sunday then the said Courts of Assize shall respectively as the case may happen begin on the succeeding day and shall continue to sit until the Business depending before the Court shall be ended or so much thereof as can be finished before it shall be necessary for the Judges to proceed to the next Assize. In all Suits or Actions at Common Law whether real personal or mixed which shall be depending in the General Court on the said first day of January, in the Year of our Lord one thousand seven hundred and eighty six, or which shall thereafter be instituted in the said Court wherein the Venue is or shall be laid in either of the Counties of Henrico, Hanover, Chesterfield, Goochland, or Powhatan, the Issues shall be tried and the Inquiry of damages be made at the Court of Assize to be held at the city of Richmond; If the Venue is or shall be laid in either of the Counties of James city, Charles city, New-Kent, Surry, Gloucester, York, Warwick, or Elizabeth city, the Issues shall be tried and the Inquiry of damages be made in the said Court of Assize to be held at the city of Williamsburg; If the Venue is or shall be laid in either of the Counties of Richmond, Westmoreland, Lancaster, or Northumberland, the Issues shall be tried and the Inquiry of Damages made at the said Court of Assize to be held at Northumberland court-house; If the Venue is or shall be laid in either of the Counties of Essex, Middlesex, King and Queen, or King William, the Issues shall be tried and the Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at King and Queen court house; If the Venue is or shall be laid in either of the Counties of Spotsylvania, Caroline, King George, Stafford, Orange, or Culpeper, the Issues shall be tried and the Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Fredericksburg; If the Venue is or shall be laid in either of the Counties of Frederick, Berkeley, Hampshire, or Shenandoah, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Winchester; If the Venue is or shall be laid in either of the Counties of Augusta, Rockbridge, Rockingham, or Greenbrier, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Staunton; If the Venue is or shall be laid in either of the Counties of Albemarle, Louisa, Fluvanna, or Amherst, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Charlottesville; If the Venue is or shall be laid in either of the Counties of Fairfax, Fauquier, Loudoun, or Prince William, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Dumfries; If the Venue is or shall be laid in either of the Counties of Harrison, Yohogania, Monongalia, or Ohio, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Monongalia courthouse; if the Venue is or shall be laid in either of the Counties of Montgomery or Washington, the Issues shall be tried and ⟨the⟩ Inquiry ⟨of damages be⟩ made at the said Court of Assize to be held at Washington court-house and Fort Chiswell, alternately; If the Venue is or shall be laid in either of the Counties of Norfolk, Isle of Wight, Princess Anne, Nansemond, or Southampton, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Suffolk; If the Venue is or shall be laid in either of the Counties of Prince George, Sussex, Dinwiddie, or Amelia, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at Petersburg; If the Venue is or shall be laid in either of the Counties of Brunswick, Greensville, Lunenburg, or Mecklenburg, the Issues shall be tried and ⟨the⟩ Inquiry of damages ⟨be⟩ made at the said Court of Assize to be held at ⟨Brunswick court-house; if the venue is or shall be laid in either of the counties of Prince Edward, Buckingham, Charlotte, Halifax, or Cumberland, the issues shall be tried and the inquiry of damages be made at the said court of assize to be held at Prince Edward court-house; if the venue is or shall be laid in either of the counties of Bedford, Botetourt, Campbell, Pittsylvania, or Henry, the issues shall be tried and the inquiry of damages be made at the said court of assize to be held at Bedford court-house; if the venue is or shall be laid in either of the counties of Accomack or Northampton, the issues shall be tried and inquiry of damages be made at the said court of assize to be held at Accomack court-house.⟩ To avoid improper tryals by the management of the pl[ain]t[iff] or the Attorney for the pl[ain]t[iff] the Venue in transitory Actions shall be laid in the County where the Def[endan]t is arrested or where an attachment to force his appearance is levied, but may be changed by direction of the Court upon good Cause shewn. At some convenient time previous to the holding each Court of Assize the Judges of the General Court shall allot and regulate among themselves the Court or Courts of Assize at which each of them shall attend and if by sickness or other disability any one or more of them shall be unable to attend the Governor with the Advice of Council upon Notice thereof being given to him shall and he is hereby authorized and empowered to call upon either of the Judges of the High Court of Chancery or of the Court of Admiralty to supply the place of any Judge of the General Court so disabled from performing his duty until said disability is removed and such Judge or Judges of the Court of Chancery or of the Court of Admiralty as shall be appointed by the Governor as aforesd. shall have as full and as ample power for the purposes of the Assize Court assigned to him as the Judge of the General Court whose disability he is appointed to supply and shall proceed in the same manner as the Judge of the General Court would have been bound to do if no such disability had happened. The said Judges of Assize2 shall have full Power to try all Issues and inquire of damages by a Jury upon all Records to be transmitted to them by the Clk of the General Court and therein to determine all Questions about the legality of Evidence and other matters of Law which may arise. For which tryals they shall cause the Sheriff of the County wherein the Assize Court is to be held (who shall attend them throughout their whole Session) to empannel and return Jurors of the By-standers qualified as the Law directs to be sworn of Juries. They shall certify under their hands and Seals upon or with each Record transmitted the verdict that shall be given therein, together with such Demurrers, exceptions to Evidence, or exceptions to the opinion of the Court as they shall be desired by either Party to certify according to the truth of the case which Verdicts and other certificates the Clks of Assize shall in convenient time before the succeeding General Court return to the Clks Office of the General Court. On the Return of the postea or certificate as aforesd. to the Clerk’s office of the General Court in all such Cases where a General Verdict shall be given for either Party and there be no exceptions certified as aforesd. and where no Reasons are filed to stay Judgs within fourteen days after the Return of the Postea as aforesd. the General Court at their next succeeding Term shall enter up Judt. upon such Verdicts and an Ex[ecuti]on may issue thereupon. And in all such Cases wherein a special Verdict shall be given, exceptions certified, or Reasons filed in arrest of Judgment the Clk of the General Court shall put them on a Docket for Argument at the following General Court. The Judges of the General Court shall nevertheless for good cause shewn have power to order any Issue, or Writ of Inquiry of damages in a Suit depending before them to be tried at their own Bar. The Judges of the Court of Appeals shall and they are hereby authorized and empowered to appoint a Clk for each assize Court who shall continue in Office during good Behavior and shall keep his office and reside in the County where the Assize Court is to be held, attend the Judges during their Settings and make due Entries and certificates of all matters and things as he shall be directed by the said Judges ⟨Courts⟩ of Assize. He shall Issue S[ub]p[oen]as for Witnesses for either Party upon the Records sent him and shall do all other things which the duty of his office may require, for which he shall be allowed such Fees as by Law shall be established and none other. The said Clk shall also prepare a Docket of all the causes so transmitted by the Clk of the General Court setting them down in the same order as they stand in the Course of the proceedings. All depositions taken in any Suit so sent to be tried at any of the Assizes shall be transmitted together with the Record. All Writs of Habeas Corpus which shall be sued out during the Session of Assize shall be returnable before the Judges of the circuit in which the Prisoner is detained. And the said Courts of Assize shall have full Power to hear & determine all Treasons Felonies Murders and other Crimes and misdemeanors which shall be brought before them for which purpose, whenever any County Court shall order a Prisoner for further tryal they ⟨or any one of the justices who sat in such court on the examination of the prisoner⟩ shall by Warrant from under ⟨his or⟩ their hands & Seals, direct the Sheriff or his deputy to remove the Prisoner and commit him to the Goal3 of that Assize Court at which the Issues in civil Causes for the County from whence he is removed are herein directed to be tried—which warrant the sheriff is hereby directed to obey and may be furnished with Powers to impress Men for the Safeguard of such prisoners in like manner as is practiced in the removal of Criminals to the public Goal. And the Clk of the County from whence such prisoner is removed shall immediately after the Court held for his County upon the examination of such prisoner issue a Writ of Venire facias to the Sheriff of the County commanding him to summon Twelve good and lawful Men being Freeholders of the County to come before the Court of Assize where the prisoner is to be tried at its next Session and return a Pannel of their names which Freeholders or so many of them as shall appear not being challenged, together with so many other good and lawful Men of the Byestanders ⟨being freeholders of the assize district⟩ as will make up the number twelve shall be a lawful Jury for the tryal of such prisoner. If a prisoner shall desire any Witnesses to be summoned for him or her to appear on the tryal at the Assizes, the Clk of Assize shall issue Subpœnas for such Witnesses. The Keepers of the Respective Assize Goals by order of any two Justices of the same County may impress Guards for the safe keeping of all prisoners in their Custody to be paid by the Public. The Sherif [f] of each of the Counties wherein an Assize Court by this Act is directed to be held shall before every Meeting of the Assize Court in their respective Counties, summon twenty four Freeholders out of the Counties assigned to the Assize Court for the district in which they respectively reside, qualified as the Laws direct for Grand Jurors to appear at the succeeding Court of Assize—Which twenty four Men or any sixteen of them shall be a Grand Jury and shall inquire of and present all Treasons Murders Felonies or other Misdemeanors whatsoever which shall have been committed within the Jurisdiction of such assize Courts respectively. Upon any Indictment for a capital offence being found by the Grand Jury to be true agt. any person or persons the Judge ⟨court of assize,⟩ before whom the Indictment shall be found shall cause such person or persons to be immediately arraigned and tryed by a Pettet Jury summoned as herein before is directed and he she or they being found guilty to pass such judt. as the Law directs, and thereupon award execution, and if the Prisoner shall be found not guilty to acquit him or her of the Charge. Provided that on all Tryals the Prisoner shall be allowed Counsel upon Petition, and when Sentence of death shall be passed upon any Prisoner, there shall be one Calendar Month at least between Sentence and Execution. Upon the tryal of any Prisoner for any offence punishable capitally, if a bill of Exceptions or demurrer to Evidence shall be offered on behalf of the Prisoner, and a Verdict shall afterwards be found agt. him and the Judges ⟨court of assize,⟩ before whom the tryal is had shall ⟨be divided in opinion, or⟩ entertain doubts about the propriety of such exceptions or demurrers they shall direct the Sentence to ⟨or where only one judge shall attend or be present, then he shall not finally determine such exception or demurrer, but in all such cases the sentence shall, by order of such judges or judge,⟩ be suspended until the same shall be determined by the General Court before whom such demurrer or bill of exceptions shall be laid on the first day of the next succeeding Term and if the Judges of the General Court shall be of Opinion that no good Cause is shewn to the contrary execution of the Sentence shall forthwith take place in the same manner as if such Demurrer or bill of exceptions had never been offered. The Judges of the General Court may upon good cause shewn order any prisoner Committed to the Goal of a Circuit to be removed by Habeas Corpus to be tried at their Bar and in that Case a Jury shall be summoned from the Vicinage to try such offender in like manner as is directed for the summoning of a Pettit Jury to attend an Assize Court. Where the Grand Jury4 in any Court of Assize shall present a person for an offence not capital the Judge ⟨court⟩ shall and may order the Clk to issue a Summons or other process commanding the person to appear at the next Court of Assize to answer such presentment and thereupon shall hear and determine the same as is now done upon such like occasions in the General Court. ⟨And if the grand jury shall present any person for a criminal offence, who has not before been committed or examined by a county court for the same, the court of assize shall order the clerk to issue a capias against such person, directed to all sheriffs and constables within this state, commanding them to take such person wherever found, and carry him before a magistrate of the county wherein he shall be apprehended, who shall proceed therein in the manner directed by law for examination of criminals.⟩ The Attorney General for the Common Wealth or some other to be appointed by the General Court and commissioned by the Governor to continue in office during good behaviour shall attend each of the said Assize Courts on behalf of the CommonWealth. The Goaler for the County in which an Assize Court is hereby directed to be held shall constantly attend the said Court of Assize and execute the commands of the Judge ⟨said court⟩ from time to time with regard to the duties of his office. Every person summoned as a Witness or Jury man and failing to appear may be fined by the Judge of the Assize Court to which he was summoned in the same manner as a Witness or Jury man might be fined by the General Court for such offences. And for the greater ease and convenience of Suitors the Clk of the General Court shall from time to time furnish each Clk of Assize with a sufficient number of blank Writs which may by the respective Clks of Assize be filled up and issued as they shall be required but which shall be made returnable to the Clks office of the General Court on the respective return days established by Law. And each Clk of Assize to prevent mistakes & Errors shall transmit a List of all Writs by him issued on or before the last return day in each Session of the General Court to the end that the same may be docketed and proceeded on. All and every Act or Acts of Assembly coming within the perview and meaning of this Act shall be and they are hereby repealed. This Act shall commence and be in force on the first day of May ⟨January⟩ 1786.
Ms (Vi). Docketed, with endorsements by a clerk. In John Beckley’s hand, except for the portions in angle brackets, which were supplied by the various committees. The revised bill is printed in Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XI, 421–29.
1. Dates and places were left blank in this draft of the bill, and later added to the final version of the act. A partial list of amendments to the bill is in Ms (Vi). The editors have silently included these dates and places.
2. In the final version of the bill, the words from “At some convenient time” to this point were replaced by: “Previous to the holding the courts of assize, the court of appeals shall allot and regulate among themselves the court or courts of assize, at each of which two of the judges of the said court of appeals shall attend; which two judges, or in case of failure in either through sickness or other cause to attend, the other of them …”
3. Beckley’s spelling for “gaol.”
4. Beckley wrote “in case of presentments” following “Grand Jury,” but the clause was later deleted by a committee.