95. A Bill Constituting Justices of the Peace and County Courts
Be it enacted by the General Assembly, that the Aldermen to be elected for every county, who by that election shall stand nominated to be Justices for the said county, if they were not such before, shall on the first Monday in after their election, if fair, if not, on the next fair day, Sunday excluded, laying aside all excuses, other than grievous sickness, convene at the court-house of the county, and there with open doors, between the hours of twelve and three of the clock in the day, nominate to be Justices for the said county, so many of the most honest, knowing, and discreet men dwelling therein, and neither of them being sheriff, clerk of the peace, owner of a tavern in the same county, or keeper of a tavern, as, together with themselves, and those already invested with, and continuing in the said office, will make up the number seven, and so many more as will raise that number, if it be not equal to one for every fifty militia in their county, and shall deliver the said nomination, certified under their hands and seals, to the sheriff of their county, who shall attend for that purpose; and, within fifteen days thereafter, the said sheriff shall carry it to the Governor, under the penalty of one hundred pounds. The Governor, with advice of the Council, shall, immediately thereupon, make out and deliver, to the sheriff, a commission, to be directed to such of the said Aldermen as were not before Justices, and to the persons designed by the said nomination, constituting the said commissioners Justices of the Peace for the same county, in addition to those before officiating; and the said sheriff shall, under the like penalty, deliver the said commission to the clerk of the peace, on or before the court-day next after his return to the said county, a reasonable time being allowed for such return. If any person named in the said commission shall fail before the next nomination of Justices, to qualify himself for executing his office, by giving the assurance and taking the oaths, herein after prescribed, unless he be employed in the service of the public, out of the county, his appointment shall thereupon become absolutely void. And if any person invested with the said office, shall remove out of the county to dwell, or shall forbear to sit in court, during the space of six months, unless such non-performance of that duty be justifiable by reason of the like avocation as aforesaid, or shall personally declare, or by writing under his hand, proved by a credible witness, signify, to the said Aldermen, at their anniversary meeting, that he will not act any longer in the said office, he shall thereupon stand divested thereof. The said Justices shall have the powers of conservators of the peace and authority, moreover, jointly or severally, to take of all those who be not of good fame, sufficient surety for their good behaviour, to the intent that the peace be not broken; and shall certify and return all recognizances by them taken to their next county court, to be continued or discharged as the court shall see cause: but no such recognizance shall be binding longer than twelve months after the taking thereof. Any one Justice shall have power to take cognizance, either on his own view, or on information of the breach of a penal law, if the penalty exceed not twenty five shillings, or two hundred pounds of tobacco, and also to hear and determine any plaint in debt or detinue, or upon trover and conversion if the value of the thing alledged to be detained, or the damage alledged to have been sustained be not more than twenty five shillings, or two hundred pounds of tobacco, proceeding in a summary way, without a jury, after the defendant, by warrant of such Justice, or some other, directed to the constable, shall have been summoned to appear, and answer the information or plaint, and the said Justice, if he shall give judgment against the defendant, shall award a writ of fieri facias to make the penalty, debt, or damages, or of distringas, to compel delivery of the thing recovered, with costs, to be directed to the constable, who shall proceed in the same manner as a sheriff ought to proceed in, when the like writ is directed to him. A court in every county, to be constituted of the Justices for such county, or any four or more of them, and to be called the county court, shall hold their sessions, monthly, at the time and place when and where the court of such county, before the commencement of this act, might lawfully sit. Such county court shall be a court of record, and a court both of common law and of chancery, and shall hold plea of actions, real, personal, and mixt, if the causes of such actions arise within their county, or if the actions be such as are called transitory, and where the value of the thing, claimed in any personal action, shall exceed twentyfive shillings, or two hundred pounds of tobacco, and shall hear and determine pleas of the commonwealth arising, or prosecutions, for crimes and misdemeanors, committed within their county, other than treasons and felonies; and shall hear and determine cases of equity in chancery, when the officer of their own county shall have served the defendants with the subpœnas to answer, unless the original cause of action be of such a local nature that, if it were the subject of a common law suit, it must have been tried in the court of such other county, or in the General Court. Where a bay, river, or other water course divideth two counties, the court and every Justice of the Peace, and officers, of either shall have the same jurisdiction and power upon the water, from the shore of their own county to the opposite shore, as if the whole water were within the body of a county. Every person appointed a Justice of the Peace, before he shall execute the office, shall give assurance of his fidelity to the commonwealth, and, in the court of his county, take this oath: “You shall swear that, in the office of Justice of the Peace, in and for the county of you shall do equal right to the poor, and to the rich, after your cunning, wit, and power, and after the laws and [st]atutes of the commonwealth. You shall not be of counsel in any quarrel hanging before you. You shall hold your sessions after the form of the statute thereof made. Fines and amercements, that shall happen to be made, and forfeitures which shall fall before you, you shall cause to be entered, without any concealment, and thereof true accounts to be sent to the public Treasurer. You shall not set, for gift, or other cause, but well and truly you shall do your office of Justice of the Peace, in that behalf. You shall take nothing for your office of Justice of the Peace to be done, but of the commonwealth. You shall not direct, nor cause to be directed, any precepts by you to be made, to the parties; but you shall direct them to the sheriff of the said county, or other the officers or ministers of the commonwealth, or other indifferent persons, to do execution thereof. So help you God.” And also this other oath. “You shall swear, that well and truly you will serve the commonwealth, and the citizens thereof, in the office of a Justice of the county court of in Chancery, and that you will do 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 the commonwealth, without favour, affection, or partiality. So help you God.” And whosoever shall execute the office of a Justice of the Peace, before he shall have given such assurance of his fidelity, and taken such oaths as aforesaid, shall forfeit and pay three hundred pounds; one half thereof to the use of the commonwealth, and the other half to him who will sue for the same. Any Justice of the Peace, accused of corruption, oppression, or other mal-administration, may be thereof impeached before the Court of Appeals, by order of the House of Delegates, or upon a presentment of the grand jury of his county; and if he be found guilty, may, by sentence of the said court, be removed from his office a certain time, or be perpetually disabled to hold that, or any other office, in the commonwealth. All matters depending before a county court, if the Justices thereof fail to meet on the day to which they shall adjourn, either in the same session, which they may adjourn from day to day, or in the next month, shall stand continued to the succeeding session, and that although between the two sessions more months than one intervene, and returns of process shall be made to, and parties and others, bound and summoned, shall appear at, such succeeding session, in like manner, and under like penalties for any defaults, as if the month in which it shall be held had been next, in order of time. Process shall not be discontinued, if by any accident there shall not at any time be a sufficient number of Justices to constitute a court. The clerk of every county court shall reside in such county during his continuance in office, or, if he do not the office shall become vacant.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 65–6. MS (ViU); clerk’s copy.
See TJ’s earlier effort to reform the county courts—the Bill for Better Regulating the Proceedings in the County Courts, under date of 25 Nov. to 4 Dec. 1776. That Bill failed of passage because of conservative disinclination to alter established institutions. Any attempt to reform this most important of all local units of government was bound to meet with intense opposition. Under the Constitution of 1776 the county courts were virtually a closed corporation, since the appointive power lay with the governor but was limited to nominations made by the courts themselves. As pointed out above (Vol. 1, 606), these courts were thus almost exempt from local control. They embraced legislative, judicial, and executive functions (thus wholly violating the principle of separation of powers), and, since they held the key office of sheriff under their domination, these courts were the chief bulwark of the established order. Despite the failure of TJ’s 1776 Bill and despite Section xv of the Constitution of 1776, the Committee of Revisors apparently decided to assault the main stronghold of the county court system by taking the power of nomination out of the hands of non-elective justices and placing it in the hands of elective aldermen. Madison brought up the Bill on 31 Oct. 1785. Legislation on this subject in 1785 hinged also on the question of courts of assize that TJ had proposed in 1776. The same question came up in 1785, when courts of assize were again defeated. “A reform of the County Courts is the substitute proposed by the adversaries of the Assize,” wrote Madison to James Monroe 17 Dec. 1785 (Writings, ed. Hunt, ii, 205). But Bill No. 95 was not the reform these adversaries had in mind: that Bill had already been postponed to the Oct. 1786 session. The substitute “Act for reforming the county courts, and for other purposes,” adopted at the Oct. 1785 session (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 32–6), as Madison wrote to TJ on 22 Jan. 1786, “Requires them to clear their dockets quarterly. It amounts to nothing, and is chiefly the result of efforts to render Courts of Assize unnecessary.” This reform Act was amended at the Oct. 1787 session, and in the Oct. 1792 session an Act was passed “to reduce into one the several acts concerning the county and other inferior courts” (same, xii, 467–74; xiii, 449–67). But all of these Acts were primarily concerned with questions of jurisdiction and procedure, not with fundamental reforms of this all-powerful unit of government. Actually the county courts as organized under the Act of 1748 continued virtually unchanged through the Revolution and, in most respects, down to the adoption of the Constitution of 1867 (see A. O. Porter, County Government in Virginia, New York, 1947, p. 100–54). Madison brought Bill No. 95 up again in 1786 but no action was taken on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17).