V. Bill for Better Regulating the Proceedings in the County Courts
[4 December 1776]
For amendment of the act of General assembly passed in the year 1748 intituled ‘an act for establishing county courts, and for regulating and settling the proceedings therein’ be it enacted by the General assembly of the Commonwealth of Virginia1 that instead of the oaths of2 allegiance and supremacy, the oath of abjuration and subscription to the test by the said act directed and the oath directed to be taken by an ordinance passed this present year3 to enable the then magistrates and officers to continue the administration of justice, every justice4 shall take and subscribe the oath of fidelity to this commonwealth, and instead of the oath of a justice of the county court in Chancery directed by the same act, he shall take the following oath, to wit ‘you shall swear that well and truly you will serve the Commonwealth of Virginia in the office of a justice in the County court of in Chancery, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, according to equity and good conscience and the laws and usages of this Commonwealth, without favour affection, or partiality. So help you God.’5
The said County courts shall also have jurisdiction and power to try all persons charged before them with being inimical to, or assisting the enemies of America, as the Ordinances in that case direct, instead of the Commissioners formerly appointed for such trials, whose power and jurisdiction shall cease from and after the6 passing of this Act.
The said County courts shall cause Grand juries to be summoned to appear in the months of February, May, August, and November annually in the same manner, for the same purposes and under the like penalties as directed to be done for the months of May and November by an act intituled ‘an act concerning juries.’
And instead of the court for receiving and certifying propositions and grievances and publick claims directed to be held before every session of assembly by an act passed in the year 1705 intituled ‘an Act for regulating the election of burgesses, for settling their privileges and for ascertaining their allowances’ and of the court for proof of public claims directed to be held in like manner before every session of assembly, by one other act passed in the same year 1705 and intituled ‘an act concerning public claims’ the said county courts shall in future at all times during their sessions, when required, receive and certify propositions and grievances and receive proofs of public claims, in like manner as is directed to be done by the said acts, and the said special courts for receiving and certifying propositions, grievances and public claims, and for proof of public claims shall henceforth be discontinued.
To give full time for executing process issuing from such courts in the larger counties of this Commonwealth, it shall and may be lawful for the clerk of any county court at the request of the party to make such process returnable to the first or second court after the same shall be issued.
All process against the Governor or any member of the Privy council, or the sheriff of any county, and the proceedings thereupon, shall be after the same manner in the county court as directed for the General court in an act of this present General assembly.
Upon executing any process whereupon bail shall be requirable, the sheriff shall return therewith the names of the bail by him taken; and if he shall not return bail, or the bail returned shall be judged insufficient by the court, or the defendant shall fail to appear or to give special bail, when ruled thereto by the court, such sheriff or bail shall be subject to the same judgment and recovery, and shall have the same liberty of defence, relief and remedy as in like cases is provided by the said act of this present session of assembly in suits depending in the General court.
All matters of fact material to the determination of the cause which in the course of the proceedings in any suit in chancery in the said county courts shall be affirmed7 by the one party and denied by the other shall be tried by jury8 upon evidence given vivâ voce in open court, and where witnesses are absent through sickness or other unavoidable cause, upon their depositions taken as the laws direct,9 for which purpose an issue or issues shall be made up by declaration and plea as hath been heretofore used in Chancery when issues have been specially directed to be made up and tried by jury, saving to the defendant the same benefit of evidence by his own answer as hath been heretofore allowed in trials before the court of Chancery. And so much of the said act for establishing County courts as directs that Commissions to examine witnesses may be awarded by the court10 after replication filed shall henceforth be repealed.
If the complainant shall not at the next court after such trial where trial11 is necessary, or after issue joined where no such trial is necessary, set down the cause for hearing, the defendant may have it set down at his request.
For assisting the said County courts in their adjudications, it shall and may be lawful for them to levy annually the sum of ten pounds12 to be by them disposed of in purchasing approved law books for the use of the said courts while in session.
Dft (DLC). Endorsed by TJ: “A Bill for better regulating the proceedings of the County courts”; at bottom of p. 4 TJ added a more formal title: “Title ‘a bill to amend an act intituled “an act for establishing county courts & for regulating & settling the proceedings therein.”’” Also MS (Vi), in a clerk’s hand, amended as noted below by TJ; this bears TJ’s formal title, which he struck out, causing it to read as first stated above; it is also endorsed by the clerk: “Decr. 4. 1776 Read the first Time Decr. 13th. 2d. Reading put off til next Session.” The MS also has a page headed “Amendments to the Bill for better Regulating the Proceedings in the County Courts”; these amendments are noted below.
This effort to reform the county court proceedings met with failure, for no evidence has been found that the Bill ever came up for a second reading, though TJ was appointed 10 May 1777 to a committee having the same purposes as this Bill (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1777, 1827 edn., p. 6; A. O. Porter, County Government in Virginia, N.Y., 1947, especially p. 100–54.)
1. Amendment: “strike out the words Common Wealth of Virginia.”
2. Deleted in draft: “a justice of the county court in Chancery.”
3. Amendment: “Strike out the words this present year and insert last Session of Assembly.” This oath (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends IX, 126) stands in contrast to TJ’s explicit words, merely requiring the justices to “do equal right and justice to all men, to the best of my judgement, and according to law.”
4. TJ inserted in the clerk’s copy: “hereafter to be commissioned.”
5. Amendment: “At the end of the first clause insert which oaths shall be administered to the presiding Magistrate by any two of the others and by him to the rest.”
6. Deleted in draft: “31st day of Decemb.”
7. TJ changed clerk’s copy to read: “are affirmed.”
8. Amendment: “Strike out the words by Jury.”
9. Amendment: “After the word direct insert By a Jury if either party shall desire it, or the Court shall think proper to direct the same.”
10. Clerk’s copy omits: “by the Court.”
11. Clerk’s copy omits: “where trial.”
12. Amendment: “Leave a Blank for the Sum of Money.”