with Notes of Reference (1803)
St. George Tucker
Of the Lex Scripta, or Written Law, of Virginia
THE LEX SCRIPTA, or Written Law of the commonwealth of Virginia, may be arranged under six different heads. 1st. The constitution of the United States; 2d. Laws of the United States made in pursuance thereof; 3d. Treaties made, or which hereafter may be made, under the authority of the United States; 4th. The constitution of the commonwealth of Virginia; 5th. Acts of the general assembly of the colony of Virginia, antecedent to the revolution, and of the commonwealth, since that period; 6th. Certain acts of the parliament of England, antecedent to the settlement and establishment of the colony of Virginia.
1, 2, and 3. The constitution of the United States, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, are by that constitution declared to be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary, notwithstanding. And the senators and representatives of the United States, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound by oath or affirmation to support the constitution.1
4. The fourth part of the lex scripta, or written law of this commonwealth, and formerly the first in point of obligation, and pre-eminence, is the constitution of the commonwealth: concerning which, as well as the three preceding heads, sufficient has been said in the foregoing tracts.
5. The acts of the colonial and state legislature, successively, form a fifth part of the written law of the commonwealth.
This body, like the congress of the United States, consists of two distinct branches, differently chosen, and organized, in some respects, but equally the immediate representatives of the people; being both chosen by the same persons (though in larger districts) and with the same qualifications; except in respect to age; though the senators are chosen by a larger portion of the community, and serve for a longer period than the delegates,
The constitution requires that these two bodies should meet once, or oftener, every year, in general assembly, for the purpose of making such laws as shall be necessary for the common good; and the acts made by them, if neither repugnant to the constitution of the United States, nor to any law, or treaty made under the authority thereof, nor to the constitution of the commonwealth, are binding upon every other branch of the government, as well as upon all orders and descriptions of persons within the commonwealth.
To form a complete digest of statute law, as was observed in another place, seems to have been a favorite object with the legislature of Virginia; and repeated and frequent attempts have been made to effectuate that purpose; but unfortunately the disposition to change has been such, that laws have not unfrequently been altered, suspended, or wholly repealed, even before they have obtained a place in the new code …. There have been five compilations made under legislative authority within about sixty years; neither of which could be regarded as complete, the number of omitted laws, being probably more than ten-fold the number of those that are preserved.2 A thousand inconveniencies and perplexities daily arise from this circumstance, and are likely daily to increase. The compilations now to be met with (though most of them very rarely) are Purvis’, printed in 1684, but whether by authority or not, does not appear. Park’s, printed in 1733. Hunter’s, in 1753. Rind and Purdie’s, in l769. Nicolson and Prentis’ in 1785; and Davis’ in 1794. The sessions acts are usually sent out in sheets, and are rarely preserved, even till a succeeding session, without mutilation. Hence arises one of the greatest difficulties attending the study of the law in Virginia …. A proposal was laid before the legislature in 1796, to direct a new publication of all the laws of the state …. but no attention seems to have been paid to it, though made from a quarter3 which, it was supposed, would procure it that respect.
The manner of making these laws will be better considered hereafter, when we are to examine the constitution of the congress, and of the general assembly of the state …. For the different kinds of acts, or statutes, as they may be properly termed, with the general rules of construction, I shall refer the student to 1 Blacks. Com. p. 85, 91.
The constitution of the United States imposes certain restrictions upon the states, which in their operation must be considered as restraining the power of the legislature particularly.
First, no state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. All acts of the state, therefore, on any of these subjects, whether entered into or passed by the legislature, or any other department of the state government, are absolutely null and void, ab initio.
Secondly, no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the congress. No state shall, without consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
On the subject of both these prohibitory clauses of the constitution of the United States, we have offered some remarks at large, in the tract upon the constitution of the United States. They are repeated here, for the sake of regularity, only.
6th. The sixth and last branch of the written law of the commonwealth, are certain acts of the parliament of Great-Britain.
In the preceding note,4 we endeavored to show, that our forefathers migrating to this new country, brought with them all the laws of the parent state, which were applicable to their new condition and circumstances; and this extended not only to the common and unwritten law, but also to the written laws of the kingdom from whence they emigrated. But this principle extends only to the existing laws of the parent state, at the time of the colony being settled, and not to such as should be thereafter made. Upon these grounds it was always held, during the regal government, that all statutes of the kingdom of Great Britain made prior to the fourth year of the reign of James the first, which were applicable to the circumstances of a remote and infant colony, were actually in force in Virginia: the colonial legislature, therefore, held it to be generally unnecessary, by any special acts, to re-enact them so as to form a part of the colonial code.5 Hence, at the revolution, the same convention which established the constitution, judged it expedient to pass an ordinance, declaring that “all statutes or acts of parliament made in aid of the common law, prior to the fourth year of James the first, and which are of a general nature, not local to that kingdom, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force until the same be altered by the legislative power of the colony.”6
The change of principle which had taken place in the government, very soon manifested the necessity of revising a code formed upon monarchical principles, and not unfrequently under the auspices of despots, who dictated to their complying parliaments, whatsoever might contribute to strengthen and confirm the power which they had by continual usurpations obtained …. A special committee was therefore appointed in October 1776, to prepare such a code of law, as should be adapted to the republican spirit of the newly established constitution. A judicious selection of the British statutes was made by this committee, in 1785, and 1786, the general assembly acted upon their report, and passed a considerable number of the acts which they had prepared, in consequence of which a very considerable part of the British statute book, was either repealed, or enacted in the form of Virginia laws. But the whole report was not acted upon …. the system was thereby rendered incomplete. In 1786, another act was passed for “completing the revision,”7 which directed that a committee of three should be appointed to take into consideration the bills reported by the former committee, which had not been enacted into laws, to examine what alterations should be made therein, and report thereupon to the next assembly as they should judge proper: they were likewise authorized to take into consideration all acts passed subsequent to the revisal being prepared, with full power to revise, alter, amend, repeal, or introduce all or any of them, and to prepare bills on the subject, and report them to the general assembly, with a proviso that they should have no force or effect, until enacted by the general assembly. What was done in consequence of this act I have never been informed, but I believe that no step whatsoever was taken in pursuance of it. In 1789, several other salutary British statutes were introduced into the state code, by the general assembly. In the same session another committee was appointed to prepare a new edition of the laws, a part of whose duty it was to report, “what English statutes, if any there be, are suited to this commonwealth, and shall not have been enacted in the form of Virginia laws.”8 Nineteen statutes were reported by that committee as proper to be re-enacted.
The assembly at the same session passed an act,9 repealing so much of the ordinance of convention above mentioned as relates to any British statute, and declaring that after the first day of January, 1791, no such statute should have any force or authority within this commonwealth. This act was at the succeeding session suspended,10 until the general assembly should have acted upon the report of another committee, thereby appointed for the purpose of carrying the former act concerning a new edition of the laws into effect, a part of whose duty was assigned by the act, “to prepare bills on the subject of such British statutes, if any there be, which are suited to this commonwealth, and have not been enacted in the form of Virginia laws.” In pursuance of the directions of this act, the committee reported drafts of bills to the general assembly on the subject of all such remaining statutes as had not already been enacted by the legislature, and as it was conceived proper to adopt in our code, which were accordingly passed, at the succeeding session in 1792. At the same session the assembly passed an act repealing, under certain restrictions, all statutes or acts of the parliament of Great Britain heretofore in force within this commonwealth, with a proviso, “That all rights arising under any such statute or act, and all crimes and offenses committed against the same, at any time before the commencement of this act, shall remain in the same condition in all respects, as if this act had never been made.” “Saving moreover to this commonwealth, and to all and every person and persons, bodies politic and corporate, and each and every of them, the right and benefit of all and every writ and writs, remedial and judicial, which might have been legally obtained from, or sued out of any court or jurisdiction of this commonwealth, or the office of the clerk of any such court or jurisdiction, before the commencement of this act, in like manner, with the like proceedings thereupon to be had, as fully and amply to all intents, constructions and purposes, as if this act had never been made; any thing herein contained, to the contrary or seeming to the contrary notwithstanding”.11
1. C. U. S. Art. 6.
2. In the editions of 1733 and 1753, the titles of the omitted acts are retained in the order of time in which they were passed; but this necessary circumstance was altogether disregarded in the edition of 1769. The edition of 1785 retains the titles of all omitted acts passed between the years 1769 and 1784. But the edition of 1794 omits the titles, as well as the acts.
3. Mr. Jefferson, Mr. Wythe, Mr. Marshall, and some others.
4. Some few acts of parliament prior to that period, were re-enacted in Virginia.
5. Note E.
6. 1776, c. 5. See also, Vol, 2, p. 259, note 2
7. Acts of 1786 c. 113.
8. Acts of 1789, c. 9.
9. Ibid. c. 17.
10. Acts of 1790, c. 20.
11. V. L. Edition of 1794, c. 147.