III. Bill for Establishing a General Court
[25 November 1776]
For establishing a Court of Common Law of general jurisdiction for the more speedy and easy administration of Justice in this Commonwealth and for regulating the proceedings therein.
Be it enacted That, at some certain place to be appointed by act of general assembly, and at the Times herein after directed, there shall be held one principal Court of Judicature for this Commonwealth; which shall be stiled the General Court of Virginia; and, shall consist of five Judges to be chosen by joint ballot of both houses of the General Assembly, and Commissioned by the Governor for the Time being to hold their offices so long as they shall respectively demean themselves well therein; any three of them to be a Court; and the said Judges shall have precedence in Court, as they may stand in nomination on the ballot, and the person first named shall be called chief Justice of such Court.1 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 the 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 a Judge of the General Court, and that you will do equal right to all manner of people great and small high and low, rich and poor according to Law, without respect of persons. You shall not take by yourself or by any other privily or openly 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 done or to be done 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 deny or delay any person of common 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 the 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 partiallity,” So help you God; which Oaths shall be administerd by the Governor or other presiding chief Majistrate in presence of the Council of State2 and, if any person shall presume to sit in Court or execute the said office without having taken the said Oaths, he shall, for such offence, forfeit the sum of five hundred pounds. The jurisdiction of the said Court shall be general over all persons and in all causes, matters or things at common Law, whether brought before them by Original process, by appeal from any inferior Court Habeas Corpus, Certiorari, Writ of Error, supersedeas, mandamus or by any other legal ways or means provided always that no person shall sue out Original process for the trial of any matter or thing in the General Court of less value than ten pounds or two thousand pounds of Tobacco, except it be against the Justices of a County or other inferior Court, or the Vestry of a Parish, on Penalty of being nonsuited and having his suit dismissed with Costs.3 There shall be two sessions of the said Court in every Year, to wit one to begin on the first day of March, if not Sunday, and then on the Monday thereafter; and the other to begin on the first day of August,4 if not Sunday, and then, on the Monday following; to continue each of them twenty four natural days, Sunday’s exclusive, unless the Business depending before them shall be finished in less Time; in which case the Judges may adjourn to the next succeeding Court; and if it should so happen that a sufficient number of Judges should not attend on the day appointed, any one of the said Judges may adjourn the Court from day to day for six day’s successively; and, if a sufficient number of Judges should not be able to attend at the end of such adjournments, all suits, depending in such Court, shall stand continued over to the next succeeding Court.5 The said Court shall have power, from time to time to appoint a Clerk, one or more assistant Clerks, a Crier and Tipstaff, who shall hold their offices respectively, during good behaviour, and be intitled to such fees or salaries, as shall be established by Law, and the Sherif or so many of the under sheriffs, as shall be thought necessary, of the County where such Court may be held, shall attend the said Court, during their sessions.6
All original process to bring any person or persons to answer in any Action or Suit, Information, Bill or plaint in the said Court, and all subsequent process thereon, all attachments or other Writs of what nature soever, awarded by the said Court, shall be Issued and signed by the Clerk of the said Court in the name of the Commonwealth, shall bear Teste by the chief Justice of the Court and be returnable on the respective days of the next succeeding Court, as followeth; that is to say, all process for the Commonwealth on Criminal Prosecutions to the sixth day; all appeals, Writs of Error, Supersedeas, Certiorari, Mandamus, prohibition, and all other writs and process, except subpoenas for Witnesses to the eighth or twenty third day of the said Court; and all such process may be executed at any Time before the return day, except in such cases wherein it is otherwise directed by Law. And, if any Writ or process shall be executed so late that the Sherif or other officer hath not reasonable Time to return the same before the day of appearance thereto, and an Alias, Pluries, Attachment or other Process be awarded thereupon, the sherif 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.
In all actions or suits, which may be commenced against the Governor of this Commonwealth, any member of the privy Council or the sherif of any County, during his continuance in office, instead of the Ordinary process, a summons shall Issue to the sherif or other proper officer, reciting the cause of Action and summoning such Defendant to appear and answer the same on the proper return day in the next General Court; and, if such Defendant being summoned or a Copy left at his house ten days, before the return day, shall not appear to Answer the same on Attachment shall be awarded against his Estate, and thereafter, the proceedings in the suit shall be in like manner, as is directed in case of an Attachment awarded upon the Sherifs returning Non est Inventus on Ordinary process.
In all actions to recover the penalty for breach of any penal Law, not particularly directing special Bail to be given in Actions of Slander, Trespass, Assault and Battery, Actions on the Case for Trover or other wrongs, and all other personal actions, except such as shall be hereinafter particularly mentioned, the Plaintiff or his Attorney shall, on pain of having his suit Dismissed with Costs, indorse on the Original Writ or subsequent Process the true species of Action, that the sherif, to whom the same is directed, may be thereby informed whether Bail is to be demanded on the execution thereof; and, in the cases before mentioned, the sheriff may take the Engagement of any Attorney practising in the General Court indorsed upon the Writ that he will appear for the Defendant or Defendants, and such appearance shall be entered with the Clerk in the office on the second day after the end of the Court to which such process is returnable; which is hereby declared to be the appearance day in all process returnable to any day of the Court next preceding. And every Attorney, failing to enter an appearance according to such engagement, shall forfeit to the Plaintiff fifty shillings for which Judgment shall be immediately entered and Execution may Issue thereupon. Provided always that any Judge of the said Court, in Actions of Trespass, Assault and Battery, Trover and Conversion, and, in actions on the case, where, upon proper affidavit or affirmation, as the case may be, it shall appear to him proper that the Defendant or Defendants should give appearance Bail, may, and he is hereby authorised to direct such Bail to be taken by indorsement on the Original Writ or subsequent process, and every sherif shall Govern himself accordingly.7
In all actions of Debt, founded on any Writing Obligatory, Bill or note in Writing for the Payment of Money or Tobacco, all actions of Covenant or Detinue,8 in which cases the true species of action shall be endorsed on the Writ, as before directed, appearance Bail is to be required, the sheriff shall return on the Writ the name of the Bail by him taken, and a Copy of the Bail Bond to the Clerks office, before the day of appearance; and, if the Defendant shall fail to appear accordingly, or shall not give special Bail, being ruled thereto by the Court, the Bail for appearance may defend the suit and shall be subject to the same Judgment and recovery as the Defendant might or would be subject to, if he had appeared and given special Bail. And if the sherif shall not return Bail, and a Copy of the Bail Bond, or the Bail returned shall be judged insufficient by the Court and the Defendant shall fail to appear or give special Bail, if ruled thereto, in such case the sherif may have the like liberty of defence and shall be subject to the same recovery, as is provided in the case of appearance Bail; and, if the sherif depart this life before Judgment be confirmed against him, in such case, the Judgment may be Confirmed against his Executors or Administrators, or, if there shall not be a Certificate of Probat or Administration granted, then it may be confirmed against his Estate, and a Writ of Fieri Facias may, in either case, be Issued. But the Plaintiff shall object to the sufficiency of the Bail, during the sitting of the Court, to which the writ is returnable, or in the office at the first or second rule day after that Court and, at no time thereafter. And all questions concerning the sufficiency of Bail so objected to in the office shall be determined by the Court on the eighth day of the succeeding Court and, in all cases where the Bail shall be Adjudged insufficient and Judgment entered against the sherif he shall have the same remedy against the Estate of the Bail as against the Estate of the Defendant. Also that every Judgment entered in the office against a Defendant and Bail or against a Defendant and Sherif shall be set aside, if the Defendant upon the eighth day of the succeeding Court shall be allowed to appear without Bail, put in good Bail, being ruled so to do, or surrender himself in Custody and shall Plead to Issue immediately; on which eighth day the Court shall also regulate all other Proceedings in the office, during the preceding Vacation and rectify any mistakes or errors, which may have happened therein.
In every case, where Judgment shall be confirmed against any Defendant or Defendants, and his Bail or the Sherif, his Executors, Administrators or Estate, as aforesaid; the Court, upon a Motion of such Bail or of such Sherif, his Executors or Administrators, or any other person on behalf of his Estate may Order an Attachment against the Estate of such Defendant or Defendants returnable to the next succeeding Court and, upon the execution and return of such attachment the Court shall order the Estate seised or so much thereof as will be sufficient to satisfy the Judgment and Costs and all Costs, accruing on the Attachment, to be Sold, as Goods taken in execution upon a fieri facias and out of the money such Judgment and all Costs shall be satisfied, and the surplus, if any restored to the Defendant or Defendants when required.
Any Judge of the said Court, when the Court is not sitting, or any Justice of the peace authorized for that purpose by the said Court, may take a recognizance of Special Bail, in any Action therein depending, which shall be taken de bene esse and shall be transmitted by the person taking the same, before the next succeeding General Court to the Clerk of the said Court to be filed with the Papers in such Action, and if the Plaintiff or his Attorney shall except to the sufficiency of Bail so taken, notice of such exception shall be given to the Defendant or his Attorney at least ten days previous to the day on which such exception shall be taken. And if such Bail shall be judged insufficient by the Court the Recognizance thereof shall be discharged and such proceedings shall be had as if no such Bail had been taken. Every Special Bail9 may surrender the Principal before the Court where the suit hath been or shall be depending at any time either before or after Judgment shall be given; and thereupon the Bail shall be discharged and the Defendant or Defendants shall be Committed to the Custody of the Sherif or Gaoler attending such Court, if the Plaintif or his Attorney shall desire the same; or such special Bail may discharge himself or herself by surrendering the principal or principals to the Sherif of the County, where the Original Writ was served, and such sherif shall receive such Defendant or Defendants and Commit him, her or them to the Gaol of his County, and shall give a receipt for the Body or Bodies of such Defendant or Defendants, which shall be by the Bail forthwith transmitted to the Clerk of the Court, where the suit is or was depending. When such render, after Judgment, shall be to the sherif, he shall keep such Defendant or Defendants in his Custody in the same manner and subject to the like Rules, as are provided for Debtors committed in Execution, during the space of twenty days; unless the Creditor, his Attorney, or Agent, shall sooner consent to his, her or their Discharge; the Bail shall give immediate notice of such render to the Creditor his Attorney or Agent; and if within the said twenty days, such Creditor his Attorney or Agent shall not, in Writing, charge the Debtor or Debtors in Execution, he, she or they shall be forthwith discharged out of Custody, but the Plaintif or Plaintifs may nevertheless afterwards sue out an Execution either against the Bodies or Estates of such Debtor or Debtors.
When the Sherif or other proper officer shall return on any Original or mesne process that he hath taken the Body of any Defendant and committed him to Prison for want of Appearance Bail, the Plaintif may proceed, and the Defendant make his defence, in like manner, as if his appearance had been entered and accepted, but such Defendant shall not be discharged out of Custody until he shall put in good Bail or the Plaintif shall be ruled by Court to accept an appearance without Bail, and, where any Defendant, after appearance entered, shall be confined in prison, the Plaintif may file his Declaration, give a Rule to plead and deliver Copies of such Declaration and rule to the Defendant or his attorney; and, if the Defendant shall fail to enter his plea within two months after receiving such Declaration and Notice, the Plaintif may have Judgment by Default as in other cases.
Where the Sherif or other proper officer shall return on any Writ of Capias to answer in any civil Action, that the Defendant is not found within his Bailiwick, the Plaintif may either sue out an alias or a Pluries Capias until the Defendant be arrested or a Testatum Capias, where he shall be removed into another County, or may, at his Election, sue out an Attachment against the Estate of the Defendant to force an appearance. And, if the Sherif or other officer shall return that he hath Attached any Goods, and the Defendant shall not appear and replevy the same by entering his appearance and giving Special Bail, in case he shall be ruled so to do, the Plaintif shall file his Declaration and be entitled to a Judgment for his Debt or Damages & Costs, which Judgment shall be final in all Actions of Debt founded on any Specialty, Bill or Note in Writing ascertaining the Demand; and, in other cases, the Damages shall be settled by a Jury sworn to enquire thereof; the Goods Attached shall remain in the hands of the officer, till such final Judgment be entered, and then be Sold in the same manner, as Goods taken upon a Fieri Facias; and, if the Judgment shall not be thereby satisfied, the Plaintif may sue out Execution for the residue; and, in case more Goods be attached, than will satisfie the Judgment, the surplus shall be returned to the Defendant. On the Return of a Pluries Capias that the Defendant is not to be found the Court, instead of the Process to outlawry formerly used, may Order a Proclamation to be Issued, warning the Defendant to appear at a certain day therein to be named or that Judgment will be rendered against him, which Proclamation shall be Published on three successive Court days at the Door of the Court-house of the County, to which the last process was directed and also three Times in the Virginia Gazette; and, if the Defendant fails to appear, pursuant to such Proclamation, the same proceedings shall be had and the same Judgment given, as in other cases of Default.10 In the prosecution of all suits in the General Court the following rules shall be observed.
The Plaintif shall file his Declaration in the Clerk’s office at the succeeding rule day after the Defendant shall have entered his appearance, or the Defendant may then enter a Rule for the Plaintif to declare; and, if he shall fail or neglect so to do at the succeeding Rule day, or shall at any Time fail to prosecute his suit, he shall be nonsuited and pay to the Defendant or Tenant, besides his Costs, One hundred and fifty pounds of Tobacco, where his place of abode is at the distance of twenty Miles or under from the place of holding the General Court; and, where it is more, five pounds of Tobacco for every mile above twenty. One month, after the Plaintiff hath filed his Declaration, he may give a Rule to plead with the Clerk, and, if the Defendant shall not plead accordingly, at the expiration of such Rule, the Plaintiff may enter Judgment by default for his Debt or Damages and Costs.
All Rules to declare, plead, reply, rejoin or for other proceedings, shall be given regularly, from Month to Month, shall be entered in a Book to be kept by the Clerk for that purpose and shall be out on the succeeding Rule day.11
All Judgments by Default, for want of an Appearance, Special Bail or pleas as aforesaid, and Nonsuits or Dismissions obtained in the office and not set aside on the eighth day of the succeeding General Court, shall be entered by the Clerk as of that day, which Judgment shall be final in Actions of Debt founded on any Specialty Bill or Note in Writing ascertaining the Demand, and, in all other cases the Damages shall be ascertained by a Jury to be impanel’d and sworn to enquire thereof as is hereinafter directed.
In all such cases and other Judgments for Plaintiff or Defendant, the Clerk shall allow a Lawyer’s Fee in the Bill of Costs, if the party employed one, which fee, in real, personal or mixed actions, where the Title or Bounds of Land shall or may come in question, shall be five pounds or one thousand pounds of Tobacco, and, in all other Cases fifty shillings or five hundred pounds of Tobacco, at the election of the party Paying.
No Plea in abatement or of Non est factum shall be admitted or received unless the party offering the same shall prove the truth thereof by affidavit or affirmation12 as the case may be; and where a plea in Abatement shall upon argument be Judged insufficient, the Plaintif shall recover full Costs to the Time of overruling such plea, a Lawyers fee only excepted. The Plaintif, in Replevin and the Defendant in all other actions may plead as many several matters whether of Law or Fact as he shall think necessary for his defence.
In all Cases, where a Fine is laid on the Justices of any County Court or the Vestry of a Parish, one Action may be brought against all the Members jointly.
Immediately, after the end of each General Court, the Clerk shall make a Transcript of the Record in each and every suit depending in the said Court, wherein an Issue is to be Tried or enquiry of Damages to be made and transmit the same to the Clerks of the respective Assizes where such Suits are to be tried according to the regulations hereafter mentioned.13
For trial of Issues and enquiry of Damages, upon the Records so transmitted, there shall, in every Year, be holden a Court of Assize at the places and Times following. At Accomack Courthouse on the thirtieth day of April and thirtieth day of september; at Nansemond Sussex, Powhatan and Fairfax Courthouses on the tenth day of May and tenth day of October; at the Capitol, in the City of Williamsburg, at Charlotte, Culpeper and Frederick Courthouses on the twenty fifth day of May and twenty fifth day of October; at Essex, Bedford, Albemarle, and Monongalia Courthouses on the fifth day of June and fifth day of November. At Spotsylvania, Montgomerie, Augusta and Yohogania Courthouses on the fifteenth day of June and fifteenth day of November; or, if any of the said several days shall happen to be Sundays, the said Courts shall begin respectively on the next day and shall continue to sit till they have finished all the Business depending before them, or so much thereof, as can be done before it is necessary for the Judge to proceed to the next Assize.13
In all actions or suits at Common Law, whether real, personal or mixed, which were depending in the General Court at the Time of it’s last Adjournment or have been since commenced therein, or, which shall be hereafter instituted in this Court, wherein the Venue is or shall be laid in the Declaration in either of the Counties of Accomack or Northampton, the Issue shall be tried or enquiry of Damages made at the said Court of Assize to be held at Accomack Courthouse; If the Venue is or shall be laid in either of the Counties of Princess Anne, Norfolk, Nansemond or Isle of Wight or Southampton the Issues shall be tried or enquiry of Damages made at the said Court of Assize to be held at Nansemond Courthouse; If the Venue is or shall be laid in either of the Counties of Elizabeth City, Warwick, York, James City, Charles City, New Kent, King William or Gloucester, the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at the Capitol in the City of Williamsburg; If the Venue is or shall be laid in either of the Counties of Lancaster, Northumberland, Richmond, Westmorland, Essex, Middlesex or King and Queen the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at Essex Courthouse; If the Venue is or shall be laid in either of the Counties of Hanover, Caroline, Spotsylvania, Stafford or King George, the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at Spotsylvania Courthouse: If the Venue is or shall be laid in either of the Counties of Surry, Sussex, Brunswick, Dinwiddie or Prince George, the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at Sussex Courthouse: If the Venue is or shall be laid in either of the Counties of Mecklenburg, Lunenburg, Charlotte, Halifax, or Prince Edward, the Issues shall be tried and enquiry of Damages be made at the said Court of Assize, to be held at Charlotte Courthouse: If the Venue is or shall be laid in either of the Counties of Pittsylvania, Henry, Bedford, or Buckingham, the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at Bedford Courthouse. If the Venue is or shall be laid in either of the Counties of Bottetourt, Montgomerie, Washington or Kentucky, the Issues shall be tried or enquiry of Damages be made at the said Court of Assize to be held at Montgomerie Courthouse: If the Venue is or shall be laid in either of the Counties of Henrico, Chesterfield, Powhatan, Cumberland or Amelia the Issues shall be tried or enquiry of Damages be made at the said Court of Assize, to be held at Powhatan Courthouse; if the Venue is, or shall be laid in either of the Counties of Orange, Culpeper or Fauquier, the issues shall be tried or enquiry of damages be made at the said Court of Assize to be held at Culpeper Courthouse; If the venue is or shall be laid in either of the Counties of Louisa, Goochland, Fluvanna, Albemarle or Amherst the issues shall be tried or enquiry of damages be made at the said Court of Assize to be held at Albemarle Courthouse; if the venue is or shall be laid in either of the Counties of Augusta or Dunmore, the issues shall be tried or enquiry of damages be made at the said Court of Assize, to be held at Augusta Courthouse; If the venue is or shall be laid in either of the Counties of Prince William, Fairfax or Loudon, the issues shall be tried or enquiry of damages be made at the said Court of Assize, to be held at Fairfax Courthouse; If the venue is or shall be laid in either of the Counties of Berkeley, Frederick or Hampshire, the issues shall be tried or enquiry of damages be made at the said Court of Assize, to be held at Frederick Courthouse; If the venue is or shall be laid in either of the Counties of Monongalia or Ohio, the issues shall be tried or enquiry of damages be made at the said Court of Assize, to be held at Monongalia Courthouse; and, if the venue is or shall be laid in the County of Yohogania the issues shall be tried or enquiry of damages be made at the Court of Assize, to be held at Yohogania Courthouse.13
To avoid improper trials by the management of a Plaintiff or his Attorney, the venue, in transitory actions, shall be laid in the County where the defendant is arrested, or an Attachment to force his appearance levied, but may be changed by direction of the Court for good cause shewn.13
At some convenient time, previous to the holding of each Court of Assize, the Judges of the General Court shall allot and regulate, among themselves, the Court or Courts, at which each of them shall attend; and, if by sickness or other disability, any one or more of them shall be unable to go to the Circuit so allotted to him or them, The Governor with the consent of the Council may appoint some other fit and able person to perform the said duty in the room of each Judge so unable, and give him a Commission accordingly; who, having before the Governor or Council taken an Oath of Fidelity to the Commonwealth and the Oath herein before appointed to be taken by the Judges mutatis mutandis, shall have the same power to sit and hold the Court of Assize to which he is appointed, as if he was a Judge of the General Court; each of the said Judges shall have power to try all issues, and enquire of damages by a Jury, upon all Records so to be transmitted to him, and therein to determine all questions about the legality of Evidence and other matters of Law which may arise; For which trials he is to cause the Sheriff of the County wherein his Sitting is (which Sheriff shall attend him during his whole Session) to impannel and return Jurors of the Bystanders, qualified as the Law directs to be sworn of Jurys; he 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 the Assize shall in convenient time, before the succeeding Court, return to the Clerk’s Office.13
Every person summoned to attend as a Juror and failing so to do, shall be fined by the said Court, at their discretion, not exceeding four hundred pounds of Tobacco, to the use of this Commonwealth; to be levied by the Sheriff and paid to the Publick Treasurer, subject to the disposition of the General Assembly.13 On the return of the Postea or certificate aforesaid to the Clerk’s Office, in all such cases where a general Verdict shall be given for either Party, and there be no exceptions certified, as aforesaid, and where no reasons are filed to stay Judgment, within fourteen days after the Postea returned, the General Court next succeeding the Trial shall enter up Judgment and Execution may issue thereupon; and, in all causes, wherein a special Verdict shall be given, exceptions certified or reasons filed in arrest of Judgment, the Clerk shall put them on the Dockett for argument at the following General Court.13
The Judges of the General Court, for good cause to them shewn, shall nevertheless have power to order any Action or suit depending before them or enquiry of damages to be made to be tried at their Barr.13
The Judges of the General Court shall have power, from time to time, to appoint a Clerk of each Assize, who shall continue during good behaviour, shall keep his Office in the County, where the Assize is to be held, attend the Judges, during their sittings, and make due entries and certificates of all matters and things, as he shall be directed by the said Judges; he shall issue Subpoenas for witnesses for either party, upon the Records sent him and do all other things, which the duty of his Office may require, for which he shall be allowed such fees, as may be established by Law and none other.13
Before every General Court, the Clerk shall enter in a particular Dockett all such causes and those only, in which an Issue is to be tried, or enquiry of Damages to be made or a Special Verdict, Case agreed, Demurrer, Appeal or other matter of Law to be argued in the same order as they stand in the course of proceeding, setting, as near as may be, an equal number of causes to each day, and the Clerk of each Assize Court shall, in like manner, prepare a Dockett of all the causes to be tried at such Court, setting them down in the same order also, as they stand in the course of the proceedings.14
When any cause shall be finally determined, the Clerk of the General Court shall enter all the Pleadings and Papers filed as evidence therein and the Judgment thereupon, so as to make a complete record thereof; and those wherein the title to Lands is determined, shall be entered in separate Books to be kept for that purpose.
For prevention of Errors in entering up the Judgments of the said Court, the proceedings of every day shall be drawn at large by the Clerk against the next sitting of the Court, when the same shall be read in open Court and such corrections, as are necessary being made therein, they shall be signed by the Presiding Judge and carefully preserved among the Records.15
In all cases, where Witnesses are required to attend at the General Court a summons shall be issued by the Clerk expressing the day and place, they are to appear, the names of the Party to the suit and in whose behalf they are summoned.
When any witness shall be about to depart the Country or by Age, Sickness or otherwise shall be unable to attend the Court, upon Affidavit thereof or on a certificate from any Justice of the Peace, the Court, when they are sitting, or any Judge thereof in vacation may, on request of either Party, award a Commission for taking the Deposition of such Witness, de bene esse, to be read as evidence at the trial, in case the Witness shall then be unable to attend; but the Party obtaining such Commission shall give reasonable notice to the other Party of the time and place of taking the Deposition; otherwise the same shall be void and all Depositions so taken in any Cause sent to be tried at the Assize shall be transmitted with the Record in such suit.
If any Party in a suit at common Law shall make Oath that he verily believes his claim or defence, as the case may be or a material point thereof depends on the testimony of a single Witness, the Court or Judges, as aforesaid may award a Commission to take the Deposition of such Witness, de bene esse, although he or she be not about to depart the Country, nor under any disability the Party in such case giving ten days notice of the time and place of taking such Deposition to the adverse Party.
If any person summoned as a Witness and attending the Court, Judges of Assize or the Commissioners appointed to take his or her Deposition, as aforesaid, shall refuse to give evidence upon Oath or Affirmation,16 as the case may be, to the best of his or her knowledge, every person so refusing shall be committed to Prison either by the Court or Commissioners, there to remain without Bail or Mainprize,17 until he or she shall give such evidence. No person convicted of Perjury shall be capable of being a Witness in any case, nor shall any Negroe, Mulattoe or Indian be admitted to give evidence but against or between Negroes, Mulattoes or Indians.
If any person, summoned as a Witness to attend the General Court or any Court of Assize, shall fail to attend accordingly the Court or Judges of Assize shall fine such person five Pounds, or one thousand pounds of Tobacco, at the option of the Payer, to the use of the Party, for whom such Witness was summoned; and the Witness, so failing, shall farther be liable to the Action of the Party for all damages sustained by the non-attendance of such Witness; but, if sufficient cause of his or her inability to attend be shewn to the Court or Judges of Assize, as the case may be, at the time he or she ought to have appeared or at the next succeeding Court or Assize then no fine or Action shall be incurred by such failure.
Witnesses shall be privileged from Arrests in Civil cases, during their attendance at the General Court or Courts of Assize, coming to and returning from thence, allowing one day for every twenty miles from their places of abode, and all such Arrests shall be void.18
Every Witness, summoned and attending the General Court or Courts of Assize, shall be paid by the Party, at whose suit the summons issues, two pounds of Tobacco or four pence per Mile19 for travelling to the place of attendance and the same for returning, besides Ferriages, and sixty Pounds of Tobacco or ten shillings per day for his attendance; which allowance shall be entered by the Clerk, of course, except where disputes arise concerning the same, and then such disputes shall be determined by the General Court or Court of Assize respectively, and such allowance, together with the fees accruing to the Clerk and Sheriff in each suit in the Court of Assize, shall be certified by the Clerk with the Record and returned to the Clerk of the General Court to be allowed in the Bill of Costs.
There shall not be allowed in the Bill of Costs the charge of more than three Witnesses for the proof of any one particular fact.
Where any person or persons Body Politic or Corporate shall think themselves aggrieved by the Judgment or Sentence of any County Court or Court of Hustings,20 in any Action Suit or contest whatever, where the Debt or Damages or other thing recovered or Claimed in such Suit, exclusive of the Costs, shall be of the Value of Ten pounds or two thousand pounds of Tobacco, or, where the Title or Bounds of Land shall be drawn in Question, or the contest shall be concerning Mills, Roads, the Probat of Wills, or Certificates for obtaining Administration, such person or persons, Body Politic or Corporate, may enter an Appeal to the General Court, from such Judgment or Sentence.21
Where the Defendant in any personal Action, Appeals, if the Judgment be affirmed, the Damages, besides Costs, shall be ten Per Centum Per annum upon the principal sum and Costs recovered in the Inferior Court, in satisfaction of all Damages or Interest.22 In real or mixed actions, the Damages shall be Ten pounds or two thousand pounds of Tobacco, besides Costs; and, where the Plaintif appeals in any Action, if the Judgment be affirmed, and, in all Controversies about Mills, Roads, Probat of Wills, or Certificates for Administration, if the sentence of the Inferior Court be affirmed the party appealing shall pay to the other five pounds or One thousand pounds of Tobacco, besides all Costs.
No appeal, Writ of Error or Supersedeas shall be granted in any Cause, until a final Judgment shall be given in the County or other inferior Court.
The party praying23 a Writ of Supersedeas shall petition the Judges of the General Court for the same, pointing out the Errors he means to assign in the proceedings, and procure some attorney practising in the General Court, to Certify that, in his Opinion, there is sufficient matter of Error for reversing the Judgment. Whereupon the Court in their sessions, or any two Judges, in vacation, may Order such writ to be Issued or reject the Petition, as to them shall seem just; but no supersedeas shall be Issued in any case, except such, as in respect to it’s value or nature, would have admitted of an appeal.
Writs of Error shall not be sued out of the General Court to Judgments of Inferior Courts, but with leave of the Court, upon Motion of the party desiring the same; and ten days previous Notice thereof given, in Writing, to the adverse party.
Before granting any Appeal or Issuing a Writ of Error or Supersedeas the party praying the same shall enter into Bond with sufficient Security in a reasonable Penalty, with Condition to satisfy and pay the Amount of the recovery in the County or other inferior Court and all Costs and Damages awarded by the General Court, in case the Judgment or sentence be Affirmed.
If, upon hearing any Appeal, Writ of Error or supersedeas, the Judgment of the inferior Court shall be reversed, the General Court shall enter such Judgment thereupon, as ought to have been entered in the inferior Court.
If any Person or Persons shall desire to remove any Suit depending in an inferior Court into the General Court, Provided the same be Originally Cognizable therein, a Certiorari for such removal may be granted by the General Court for good cause shewn upon motion and ten days notice thereof given in Writing to the Adverse party; or, in Vacation, the party desiring such Writ shall by Petition to the Judges of the General Court set forth his or her reasons and make Oath before a Magistrate to the truth of the Allegations of such petition; whereupon any two Judges of the said Court may under their hands Order the Certiorari to Issue and direct the penalty of the Bond to be taken Previous thereto or may reject such Petition, as to them shall seem just; Provided that ten days previous Notice of the Time and place of applying for such Writ be given in Writing to the Adverse party; upon which Order of the Judges, the Clerk shall Issue the Certiorari; Provided that the party shall enter into Bond with sufficient security in the Penalty so directed, with Condition for satisfying all money or Tobacco and Costs, which shall be recovered against the party in such suit; but, if any suit so removed by Writ of Certiorari shall be remanded to the inferior Court by Writ of Procedendo or otherwise, such Cause shall not afterwards be removed into the General Court, before Judgment shall be given therein in the inferior Court.
The Clerk of the General Court shall carefully preserve all such petitions for Writs of Certiorari with the affidavits thereto in the office; and, if any person in such affidavit shall take a false Oath and be thereof Convicted upon a prosecution commenced within twelve months after the offence committed, such offender shall suffer the pains and penalties directed for wilful and Corrupt Purgery.24
Where any Person shall be committed in any Civil Action to the Gaol of any County or Corporation for a Cause or matter Cognizable in the General Court, it shall be lawful for the Clerk of the General Court and he is hereby required upon the application of such person and a Certificate of his or her being Actually in Goal, to Issue a Writ of Habeas Corpus cum causa to remove the Body of such prisoner into the public Prison for Debtors, and the cause of his Commitment into the General Court returnable on the first day of the succeeding General Court if Issued in Vacation, or to the last day of the Term if Sued out whilst the Court are sitting.
If any person Committed for Treason or Felony, specially expressed in the Warrant of Commitment, shall apply to the General Court the first Week of the Term, if the Trial is to be at Bar, or to the Judge of the Assize, where the Trial is to be on the first day of his session and desire to be brought to Trial, and shall not be Indicted and Tried sometime in that Term or session, the Judges shall set such prisoner at Liberty upon Bail for his appearance to answer the offence at the next succeeding Term or session; unless it appears by affidavit that the Witnesses for the Commonwealth could not be produced at such Term or session. And, if any such prisoner shall not be Indicted and tried the second Term or session after commitment, he shall be discharged from his Imprisonment in manner aforesaid. Provided this shall not extend to discharge any person in Custody of the sherif for any other Cause.25
All Writs of Habeas Corpus sued out during the Sessions of Assize shall be returnable before the Judge proceeding on the Circuit in which the prisoner is detained.13
The Courts of Assize at their several sittings to be held, as aforesaid, shall have full power to hear and determine all Treasons, Murders, Felonies and other Crimes and Misdeameanors, which shall be brought before them in their respective Circuits.26 When any person not being a slave shall be charged, before a Justice of the Peace with any Criminal offence, which in the Opinion of such Justice ought to be examined into by the County Court, the said Justice shall take the Recognizance of all material Witnesses to appear before such Court and immediately by his Warrant Commit the person so Charged to the County Gaol, and moreover shall Issue his Warrant to the Sherif of the County requiring him to summon the Justices of the County to meet at their Court-house on a certain day, not less than five or more than Ten day’s after the date thereof, to hold a Court for examination of the Fact, which Court shall consider whether, as the case may appear to them, the prisoner may be discharged from further prosecution, may be Tried in the County or must be tried in the General Court or Court of Assize; if they shall be of Opinion that the Fact may be tried in the County the prisoner shall be bound over to the next Grand Jury Court to be held for that County for Trial, or, upon refusing to give sufficient Bail, shall be remanded to the County Gaol, there to remain until such Court, or until he or she shall be Bailed. But if they shall be of Opinion that the Prisoner ought to be Tried in the General Court or Court of Assize they shall take the Depositions of the Witnesses and bind such as they shall think proper by recognizances to appear and give Evidence against such Criminal at his Trial; and, having remanded the Prisoner to Gaol, any two of the Justices, one being of the Quorum, by warrant under their hands and seals, shall direct the sherif or his Deputy to remove the prisoner and commit him to the Gaol of that assize Court, at which the Issues in civil cases for the County from whence he is removed are herein directed to be Tried, there to be safely kept until he or she be discharged by due course of Law. By virtue of which Warrant the sherif, as soon as may be, shall remove the Prisoner and deliver him or her with the Warrant to the keeper of the Assize Gaol, who shall receive and safely keep him or her accordingly.27
And for Enableing the Sherif safely to Convey and deliver such Prisoner the said two Justices by their Warrant shall empower him, as well within his County as without, to impress such and so many Men, Horses and Boats, as shall be necessary for the Guard and safe Conveyance of the Prisoner, proceeding therein as the Laws may direct in Cases of Impressing on other Occasions, and all persons are to pay due Obedience to such Warrant.28
Provided that, if such person shall in the Opinion of the Court be Bailable by Law, he or she shall not be removed within twenty days after the examining Court, but shall and may be admitted to Bail before any Justice of the same County within that Time or at any Time afterwards before any Judge of the General Court.
When any person shall be so removed to be Tried for Treason or Felony, the Clerk of the County, from whence the Prisoner is removed, shall immediately after the Court held for his or her examination Issue a Writ of venire Facias to the Sherif of the County commanding him to summon twelve good and lawful Men, being Freeholders of the County, residing as near as may be to the place, where the Fact is alledged to have been Committed, to come before the Court of Assize, where the Prisoner is to be Tried at it’s 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 Freeholders of the bystanders, as will make up the number twelve, shall be a lawful Jury for the Trial of such Prisoner.
Every Venire man summoned and attending such Court of Assize shall have the same allowance for travelling and attendance as is herein before provided for Witnesses, to be paid by the Public.
If any Person summoned as a Venire Man shall fail to attend accordingly, not having a reasonable excuse to be made at the time he should have appeared or at the next General Court or Court of Assize for that District, the Court of Assize may fine every such person not exceeding forty shillings or four hundred pounds of Tobacco for the use of the Commonwealth.
If a Prisoner shall desire any Witnesses to be summoned for him or her to appear, either at the examining Court or on the Trial at the Assizes, the Clerk of the Assize or of the County Court, as the case may be, shall Issue Subpoena for such Witnesses, who being summoned and attending, shall have the like allowance for travelling and attendance and be subject to the same Penalty for failing to attend, as is provided for Witnesses in Civil Causes.
The keepers of the respective Assize Gaols, 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 fee to the Sherif of the County and to the Assize Gaoler for keeping and Dieting any such Prisoner shall be one shilling per day and no more.
Where the Criminal shall be Convicted and hath Estate sufficient to pay the Charges of Prosecution, the whole shall be paid out of such Estate, and the Public only made Chargeable where there is no such Estate or not sufficient to be found.
The Sherif of each of the Counties of Accomack, Nansemond, York, Essex, Spotsylvania, Sussex, Charlotte, Bedford, Montgomerie, Powhatan, Culpeper, Albemarle, Augusta, Fairfax, Frederick, and Monongalia, Yohogania, for the Time being, shall before every meeting of the Court of assize in their respective Counties summon Twenty four Freeholders of the Counties Assigned to each Assize, qualified as the Laws require, 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 enquire of and present all Treasons, Murders, Felonies or other Misdemeanors whatever which shall have been committed or done in any of the Counties within the Jurisdiction of such assize Courts respectively. And, upon any Indictment for a Capital offence being found by a Grand Jury to be true against any person or persons, the Judges shall cause such person or persons to be immediately arraigned and tried by a Petit Jury, summoned as herein before directed and he or they being found Guilty, pass such Judgment, as the Laws direct, and thereupon award Execution; and, if the Prisoner shall be found not Guilty, to acquit him or her of the Charge.
Provided that in all Trials the Defendant shall, on petition be allowed Counsel, and that when sentence of Death shall be passed upon any Prisoner, there shall be one Calender Month at least between the Judgment and Execution.
The Judges of the General Court may also on other Occasions upon good Cause shewn, order any Prisoner committed for a Capital offence to be removed by Habeas Corpus or otherwise to the Public Gaol, in order to be tried at the Bar of the General Court, and thereupon a venire facias shall Issue to summon a Jury of the vicinage for his trial at Bar; and, as well for the enquiry into such offences, as all others committed within this Commonwealth, except only where the penalty inflicted by Law, is less than twenty shillings, or two hundred pounds of Tobacco, a Grand Jury shall be summoned and sworn in the General Court on the sixth day of each Term. But no Grand Jury shall make any presentments of their own knowledge upon the Information of fewer than two of their own Body.29
Every person summoned to appear on a Grand Jury and failing to attend not having a reasonable excuse shall be fined by the Judge, not exceeding four hundred pounds of Tobacco to the use of the Commonwealth.30
Upon Presentment made by the Grand Jury at any Court of Assize of an offence not Capital, the Judge shall order the Clerk to Issue a summons or other proper process against the person or persons presented, to appear and answer such Presentment at the next Court of Assize and thereupon hear and determine the same according to Law.
The Attorney General of the Commonwealth or some other person, to be appointed by the Judges of the General Court and Commissioned by the Governor, to continue in office during good behaviour, shall attend each of the said Assize Courts in behalf of the Commonwealth.13
The Clerk of Assize of each Court shall in a Book by him kept for that purpose enter the names of all Venire Men and Witnesses, who attend for the Trial of Criminals at such Court, the number of Days each shall attend, the Ferries they shall have Crossed and the Distances they shall have travelled on that occasion, and transmit the same, after every Court, to the Clerk of the General Court, who shall make the like Entries of all Venire Men and Witnesses, who attend the Trial of Criminals at the Bar of the General Court, and shall, before every Session of General Assembly, deliver all such Books to the Clerk of the house of Delegates, that the allowance may be made to such Venire men and Witnesses.31
The Gaoler in every County, where any Assize is held, shall constantly attend the said Court of Assize and execute the Command of the Judges from Time to Time, and take or receive into his Custody all persons by the Court to him Committed on Original or mesne Process or in Execution in any Civil Suit or for any contempt of the Court, and him or them safely keep, until thence discharged by due course of Law, and may demand and receive of every such Prisoner the legal fees for diet and care; but where such Prisoner is so poor as not to be able to subsist him or herself in Prison, the Goaler shall be allowed by the Public one shilling per day for the maintainance of every such poor Prisoner and no security shall be demanded of him or her, nor shall he or she be detained for such Prison Fees; and every Gaoler, during his continuance in office, shall be exempted from serving in the Militia and on Jury’s and shall have such allowance over and above the Fees, as by the General Assembly shall be thought reasonable.32
All the Penalties hereby inflicted and not otherwise appropriated shall be one Moiety to the use of the Commonwealth and disposed of, as the General Assembly shall direct and the other Moiety to the informer, and be recovered by action of Debt or Information in any Court of Record, where the same is Cognizable, and where Fines shall be laid by the Courts of Assize on any person or persons for not attending as Jury men, the Clerks of Assize shall Certify the names of the Persons the fines severally imposed upon them and the County in which they reside to the Clerk of the General Court, who shall annually, before the last of January, transmit to the Sherif of each County a list of all such Fines, and all others imposed to the use of the Commonwealth by the General Court on persons residing in the County, and such Sherif shall collect and Levy the same in like manner, as is provided for County Levys; and account for and pay the Money, deducting five Percentum for Commission, and also Insolvents to the Treasurer of this Common wealth on or before the first day of September; or the said Treasurer may recover the same with Costs by Motion in the General Court on ten days previous Notice given in Writing of such Motion; and the Clerk of the General Court shall deliver Copies of all lists so sent to the Sherifs to the Treasurer, to Enable him to call such Sherifs to Account.
This Act shall commence and be in force from and after the first day of next, and all other Acts so far as they relate to any matter or thing contained or within the Perview of this Act are hereby repealed.33
MS (Vi). Clerk’s copy, 40 numbered pages, docketed: “An Act for establishing a General Court. Oct. 1777.” Another copy in clerk’s hand, MS (Vi), 13 pages numbered in fours, docketed: “An Act for establishing a General Court Oct 1777.” These are not identical. Each differs from the other and from the Act as finally adopted (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 401–19). The text used here differs from the second MS text principally in its provision for an elaborate system of assize courts. Since assize courts were embraced in the Bill as reported in 1776 and were eliminated by amendment at the Oct. 1777 session, the text employed here may be regarded as substantially if not precisely the same as that drawn up and reported in 1776. Hence for the sake of clarity the text used here is referred to as the 1776 Bill, and the second MS text is referred to as the 1777 Bill. Both were under discussion during the Oct. 1777 session of the Assembly, but the second is probably the later text, since it incorporates no provisions for assize courts, though in phraseology and other details it differs from the Act as adopted more than does the 1776 Bill, as the textual notes indicate. Accompanying these MSS is a single page headed: “Amendments to the Bill for establishing a General Court & Courts of Assize.” These amendments are in part the same as the 52 amendments made in the Bill by the Senate on 17 Jan. 1778, the most important of which delete all provisions for assize courts (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 117–18). However, the page and line references in this list of amendments are not correlated either with the MS of the 1776 Bill or with that of the 1777 Bill; hence they must refer to another MS of the former, not now known to be extant.
On 25 Nov. 1776 TJ presented a Bill for a General Court according to a direction of the House of 1 Nov. That direction had been for the establishment of a General Court. It is to be noted, however, that, as introduced, the Bill was “A Bill for establishing a General Court and Courts of Assize.” On 27–29 Nov. the Bill was discussed in committee of the whole; on 5 Dec. it was amended and ordered to be engrossed and read the third time. On 13 Dec., however, it was postponed until next session of Assembly (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. 35, 69, 71, 72, 75, 83, 96). On 10 May 1777 a committee, of which TJ was a member, was given leave to bring in a Bill for establishing “a General Court and Courts of Assize.” On 30 Oct. 1777 this direction was again given to a committee of which TJ was head. The Bill reported 7 Nov., was passed by the House, after amendment, on 3 Jan. 1778, and was amended by the Senate on 17 Jan. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn. (p. 7, 15, 17, 95, 98–9, 116, 117–19, 120).
1. The 1777 Bill does not include the provision concerning precedence and the designation of the chief justice, though the Act as finally adopted does (sect. ii).
2. The 1777 Bill does not include the requirement that oaths be administered by the governor in presence of the council of state, though the Act as finally adopted does (sect. ii).
3. The Act as adopted includes at this point a clause authorizing the transfer of suits depending before the old General Court to the new (sect. iv).
4. The 1777 Bill provides for sessions on 1 Apr. and 1 Oct. and the Act as adopted calls for sessions on 1 Mch. and 10 Oct. (sect. v).
5. The 1777 Bill does not include the clauses providing for day-to-day adjournment because of lack of quorum, but the Act as adopted does (sect. v).
6. The 1777 Bill does not provide for the appointment of “one or more assistant Clerks, or Crier and Tipstaff or for attendance of sheriff and under sheriffs,” though the Act as adopted does (sect. vi).
7. The proviso authorizing any judge of the court to direct a defendant to give bail is not in the 1777 Bill, though it is in the Act as adopted (sect. xii).
8. The 1777 Bill contains, but the Act as adopted does not, the following at this point: “and all actions on the case for the recovery of Money due on a Mutuatus, quantum meruit, Emisset or Indebitatus assumpsit for Goods sold, or for work and labour done and performed. …”
9. The Act as adopted includes (sect. xix-xx) the provisions concerning special bail as here given, but the 1777 Bill did not permit any but judges of the General Court to take a recognizance of special bail, did not require it to be transmitted by the person taking it to the clerk of the court before the next succeeding General Court, and did include the following reenactment of earlier procedures concerning special bail: “but if such Bail shall be judged sufficient or be not excepted to within the time aforesaid the same shall stand and the Bail be chargeable in the same manner as if the Recognizance had been taken in Court. Or such Recognizance of Bail may be taken and returned and have the effect as directed by an Act of Assembly Intituled ‘An Act for taking special Bail in the Country upon Actions and Suits in the General Court.’ And every person becoming special Bail for any Defendant or Defendants either in Court or in manner aforesaid shall be liable for the Judgment given against the Principle in the same manner and upon the like proceedings as have been heretofore used in England and this State, unless he render the Body of the Principle in his discharge according to the Rules of those proceedings or according to an Act of Assembly intituled ‘An Act for amending and declaring the Law concerning the escape of Debtors out of the Prison Rules and for other purposes therein mentioned.’”
10. The Act as adopted agrees with the text of the 1776 Bill concerning a warning proclamation “instead of the process to outlawry formerly used” (sect. xxii-xxiii), but the 1777 Bill continues the earlier method, as set forth in the following: “And where an appearance cannot otherwise be inforced in any civil action, or the defendant cannot be taken upon an Execution against his Body, the Plaintif on the return of a Pluries Capias or Capias ad satisfaciendum that the defendant is not to be found, may sue out an Exigent and Proclamation in order that the defendant may be outlawed thereupon.”
11. The Act as adopted (sect. xxv) agrees with the text here given, but the 1777 Bill differs from it in the following: “All rules to declare, plead, reply, rejoin, or for other proceedings shall be given regularly from Month to Month and shall be out in one Calendar month, and shall be entered in a Book kept by the Clerk for that purpose to the intent that all attornies and others by inspecting the Book may be certainly and readily informed what proceedings have been or are to be in the Causes depending, and no Rule shall be given between one Rule day and another.”
12. The Act as adopted agrees with the text here given (sect. xxviii), but the 1777 Bill does not provide for proof by affirmation and also provides that the plaintiff in replevin and the defendant in all other actions “be not admitted to plead and demur to the whole.”
13. This paragraph is not in the 1777 Bill or in the Act as adopted. Only the text as here given includes provisions respecting assize courts. References to assize courts occurring at various places in the text of the 1776 Bill and later deleted by amendment are not indicated except, as here, where whole paragraphs are involved.
14. The Act as adopted (sect. xxxi) and the 1777 Bill agree in the last part of this paragraph, reading as follows: “… setting, as near as may be, an equal number of causes to each day.”
15. The Act as adopted (sect. xxxiii) agrees with the text here given, but the 1777 Bill provides that proceedings recorded by the clerk shall be read in open court the next day, except those of the last day of the term, which are required to be drawn up, read, and corrected the same day.
16. The Act as adopted (sect. xxxvii) agrees with the text as here given, but the 1777 Bill reads: “(or being one of the people called Quakers, upon his or her solemn affirmation).”
17. The Act as adopted (sect. xxxvii) agrees with the text as here given, but the 1777 Bill omits “or Mainprize.”
18. The Act as adopted (sect. xl) agrees with the text here given, but the 1777 Bill provides that all witnesses “shall be privileged from the service of any writ or process or other distress whatsoever.”
19. The Act as adopted (sect. xl) agrees with the text here given, but the 1777 Bill provided for “one pound and an half of Tobacco, or three pence per mile.”
20. The Act as adopted (sect. xlii) agrees with the text here given, but the 1777 Bill reads: “of any County or other inferior court.”
21. The 1777 Bill contains, but the 1776 Bill and the Act as adopted do not, the following provisions for the manner of assigning error: “in any personal action or suit where the Judgment shall not exceed twenty pounds, or four thousand pounds of Tobacco, the Appellant shall assign error in matter of right only, and if upon the hearing in the General Court, the Judgment shall appear to be according to the right of the Cause, the same shall be affirmed, notwithstanding any mispleading or error in matter of form; where the Judgment shall be for more than those sums and shall not exceed fifty pounds or ten thousand pounds of Tobacco, the Appellant may assign errors in matter of right and such errors in the form or manner of proceedings, as were insisted on in the inferior Court and none other: And in all suits of greater value than the sums last mentioned, in suits concerning the titles or bounds of Land and in all other controversies above mentioned, the Appellant may assign any errors of form or substance.”
22. The Act as adopted (sect. xliii) agrees with the text here given, but the 1777 Bill provides the same damages and costs in “any personal or mixed action appeals” and “In Ejectments and real Actions” the damages were to be £5 or 1000 pounds of tobacco. The 1777 Bill differs also in providing that the appellant should pay “fifty shillings or 500 ℔s of Tobacco besides all costs” if the sentence of the inferior court should be affirmed.
23. The 1777 Bill agrees with the text here given but the Act as adopted and the MS from which it was printed by Hening (sect. xlvi) reads, erroneously, “paying.”
24. Thus in MS.
25. The proviso in the last sentence of this paragraph is in the Act as finally adopted (sect. lv), but not in the 1777 Bill, which has the following: “Provided that if any person discharged from his imprisonment for criminal cause either by Habeas Corpus, or for want of prosecution as aforesaid, shall at the time be charged in debt or other action or with Process in a civil cause, he shall be kept in custody according to Law for such other suit.”
26. The Act as adopted (sect. lvi) and the 1777 Bill agree with the text as here given except in applying the jurisdiction to the General Court. The 1777 Bill also has the following, not included in either the present text or the Act as adopted: “The General Court in their Sessions shall have Jurisdiction of all Treasons, Murders, Felonies or other crimes and misdemeanors committed or done within this Commonwealth, and shall proceed to the trial of all Persons committed to Gaol for Capital offences, in like manner and subject to such Regulations as by an Act of Assembly made in the year 1748 intituled ‘An Act directing the method of trial of criminals for Capital Offences, and for other purposes therein mentioned,’ are prescribed and directed; and give Judgment according to Law against all such as shall be convicted; and Award Execution thereupon, Saving to the Governor his right of granting Pardons according to the Constitution of Government.
“The said Judges shall also have Power to proceed upon all Indictments and Punishments for Offences not Capital which shall be formed or made before them by Grand Juries to be summoned and sworn on the sixth day of each term in like manner and for the purposes as mentioned in an Act of Assembly made in the year last mentioned, intituled ‘An Act concerning Juries.’ And shall issue process and proceed to trial and Judgment upon all such Indictments and Presentments according to Law and the practice heretofore used in the General Court.
“The said Judges or any three of them shall moreover have full power and are hereby required to meet at the place appointed for holding the General Court on the second Tuesday in June and on the second Tuesday in December in every year then and there to hold a Court of Oyer and Terminer and Gaol Delivery for the trial of all such Capital Offenders as may then be in the Public Gaol; they may adjourn from day to day until all such Criminals according to Law and in the manner prescribed by the said Act directing the method of trial of Criminals for Capital Offences and for other purposes therein mentioned. …”
27. Except for the provision concerning the jurisdiction of the General Court (see note 26), the 1777 Bill does not contain any of the matter in this paragraph concerning an examining court, though the Act as adopted does (sect. lvii).
28. This and the succeeding ten paragraphs are not in the 1777 Bill, though they are in the Act as adopted (sect. lvii–lxvi), except for the elimination or alteration of references to assize courts, clerks of assize, assize jails, &c.
29. This paragraph is not in the 1777 Bill, though it is in the Act as adopted (sect. lviii) except for the provision concerning removal of capital offenders for trial before a jury of the vicinage. However, sect. xl of the Act as adopted empowers the General Court to try all causes before it and to cause the sheriff to “empannel and return jurors of the byestanders.”
30. This and the succeeding paragraphs are not in the 1777 Bill, though they are in the Act as adopted (sect. lxix–lxx).
31. This and the succeeding paragraphs are not in the 1777 Bill, though they are in the Act as adopted (sect. lxxi).
32. At this point the Act as adopted contains two sections (sect. lxxiii-lxxiv) not in the 1776 Bill or the 1777 Bill. These sections provide for salaries of judges and for a tax on process.
33. This paragraph is not in MS of 1777 Bill. That Bill, however, includes at different places the following interesting sections which are not in the 1776 Bill or the Act as adopted:
“And for prevention of delay by arresting Judgments and vexatious Appeals, the several Acts of the British Parliament commonly called the Statutes of Jeofails and amendments shall be and are hereby adopted in this Commonwealth. …
“And for effectually securing the personal liberty of the Citizens of this Commonwealth Be it hereby enacted that the several Acts of the British Parliament commonly called and known by the name of the Habeas Corpus Acts shall be and are hereby adopted in this Commonwealth. …”
There is an even more important draft of a memorandum in TJ’s hand respecting writs of habeas corpus that may have been intended for insertion in the 1776 Bill (DLC: TJ Papers, 232: 42062). This draft reads as follows: “<And forasmuch as it will happen that many counties of this commonwealth will be so remote from the General court in term time and from the judges thereof in vacation that the inhabitants may be long deprived of their liberty and sometimes be altogether removed before they shall be able to apply for and obtain a writ of Habeas corpus from the said court or any of it’s judges: be it therefore enacted that> the said General court shall from time to time assign in every county some one of the most able learned and fit of the justices of the said county who (no judge of the said court being in the said county at the time) shall receive applications for <writs of Habeas corpus from any persons restrained of their liberty as aforesaid and thereupon to order in the cases before directed, which shall> issue and direct to any person within his county writs of Habeas corpus in the same manner as the court or one of the judges thereof may do returnable before the said General court in term time or any judge thereof in vacation, on which writs the same proceedings shall lie as if they had been issued by the said court or a judge thereof.” It is possible that TJ drafted this as a separate bill; but the deletion of the preamble in the MS makes it more plausible to assume that he had intended it as an addition to the General Court Bill.