with Notes of Reference (1803)
St. George Tucker
Summary View of the Judicial Courts of the Commonwealth
REMEDIAL justice, the object of the establishment of judicial courts, has frequently been supposed, by those who are unacquainted with the laws of Virginia, to be more tardy in this commonwealth than in most other places. This opinion, perhaps, is not so well founded as strangers may imagine: in no country of equal population are there so many courts of judicature, whose sessions are frequent, and whose jurisdiction is competent to afford relief in all cases: in no country, where the ordinary modes of proceeding at common law have been adopted, have so many regulations to prevent delays been introduced by legislative authority, and countenanced ‘by the practice of the courts. A stranger to our jurisprudence would probably be surprised to hear, that exclusive of the court of appeals, high court of chancery and general court, there are nineteen superior courts of record, which hold pleas in all cases criminal and civil, where the debt is equal to one hundred dollars in value, or the action is founded on a tort; and which hold their sessions twice a year in the different districts of the commonwealth, and sit from ten to fifteen days at each session. That there is likewise a court of record in every county, which sits monthly; and has unlimited jurisdiction in all cases arising within the county, (both in law and equity) above the value of ten dollars: besides eight corporation courts, possessing like jurisdiction within their respective limits; amounting, in the whole, to one hundred and twenty courts of record: in addition to these, the federal courts have concurrent jurisdiction in civil cases, where either party is not a citizen of the state. In England, where there are more than six times as many people, there are but four superior courts of record; and the jurisdiction of their inferior courts is so limited, that it seems wonderful that justice should even be tolerably administered in that kingdom.
That our judiciary system is capable of improvement cannot be denied; but improvements in that branch of civil polity must be the result of experience. The endeavors of the legislature have not been wanting for this purpose, and it is highly probable that a few years may enable them to improve a system, which (it were the height of injustice to deny) has undergone a considerable change for the better since the revolution. The establishment of superior courts which sit regularly in various parts of the country; and possess appellate jurisdiction in civil cases to a certain amount, has already produced very beneficial effects in correcting the proceedings of the inferior courts, which are now much more regular than formerly. Suitors who apprehend delay or partiality in the county courts, have an opportunity of prosecuting their claims where the value is equal to one hundred dollars, in the superior courts. If the plaintiff is delayed by an appeal from the judgment, he gains by the delay an additional security for his debt and an ample interest for his money, if the judgment is affirmed. Suits at common law for the recovery of a liquidated debt can seldom be spun out by any artifices on the part of the defendant more than two or three terms after he is arrested. Litigated claims, indeed, are not unfrequently depending much longer; but this happens because the plaintiff is at one time unprepared to go to trial, as well as the defendant at another. Where the cause of action arises out of the state, or has been occasioned by long and mutual dealings, or is founded on a special contract, it very frequently happens that neither party can procure the necessary documents for his claim, or defense, or the attendance of his witnesses. In old countries, people are generally stationary: A witness to a transaction in London, York, or Bristol, may be found in the same place, probably, as long as he lives. In America the spirit of migration and change is so prevalent, that the witnesses to any transaction of three or four years standing, are generally dispersed, perhaps, to the remotest parts of the United States,
of Europe, or even of the Indies. Under such circumstances, delay is indispensably necessary to justice.
Our laws, it is true, in many instances, afford a remedy in these cases, by suffering the parties to take the depositions of such witnesses as are out of the state, or may be about to leave it; but this provision is often ineffectual by the sudden removal of the witness, or his departure without notice. Other causes arising oftentimes from unforeseen accidents, occasion delays in litigated actions. The death of either party, or the unwillingness of persons to take upon them the administration of his estate, are not unfrequently the causes of great procrastination. These inconveniences are beyond the reach of the laws…. They must, however, be taken into the account as theyfrequently contribute more than any other causes to the delays in our courts. Upon the whole, we may pronounce that the administration of justice stands upon as respectable a footing in Virginia, as in any state in the Union, and perhaps in any other country. For, although it will not be contended that the judiciary system is as complete as it might be, nor the talents of the judges equal to those of a nation renowned for its able and upright judges, yet the expense of litigation in that country often amounts to a denial of right, where the parties are above the rank of paupers, but yet too poor to incur the enormous expense which attends the prosecution of any contested claim there; whereas, in Virginia the cheapness of the law is perhaps one great cause of the multitude of suits, and the delays which attend their decision.
These few observations being premised, I shall now proceed to mention the judicial courts in this commonwealth.
The establishment of courts being a branch of the royal prerogative in England, their first institution in the colony of Virginia must have proceeded immediately or mediately from that source.1 We find that courts had been established in each county;2 and that superior courts in which the governor and council presided, were held at James city before the year 1661, under the name of quarterly courts, the stile of which was changed to that of the general court by an act of that session. The jurisdiction of the county courts extended to all causes of whatever value or nature they might be, not touching life or member: of the latter the general court has exclusive jurisdiction, as also, concurrent original jurisdiction with the county courts, in suits above the value of sixteen pounds sterling or sixteen hundred pounds of tobacco. An appeal la^r from the county court to the general court, in all cases; and it seems that a further appeal lay from thence to the general assembly. The governor and one of the council, or two of the council by commission from the governor, made the circuit of the county courts, in which the justices of the peace, of whom eight were required to be in every county were the ordinary judges.3 The succeeding year the title of an act occurs repealing the act for itinerary judges,4 so that the system, which required the attendance of the governor or two of the council, at the county courts, was soon changed. From that period to the present, the constitution of the county courts has undergone no material alteration.
King Charles the second by letters patent of the 28th year of his reign, among other things declared and granted that the governor and council of Virginia or any five of them, whereof the governor or his deputy always to be one, should have full power and authority to hear and determine all treasons, felonies and other offenses committed within the government, so as they should proceed, as near as may be, according to the laws and statutes of the kingdom of England. The jurisdiction of this court, as defined by a subsequent act,5 extended to all causes, matters and things, whatsoever, relating to, or concerning any person or persons, ecclesiastical or civil; or to any person or thing of what nature soever the same may be, whether brought before them by original process or appeal from any other court or any other ways and means whatsoever: but no original process could be sued out of the general court where the debt or thing demanded was under 100 £ sterling, or 2000 pounds of tobacco, except where the justices of the county court, or the vestry of a parish had incurred a specific fine of less value. The same act declared that the general court and county courts were the only courts of record in Virginia, and that no other courts whatsoever, should be deemed such. The general court held two terms annually, beginning the fifteenth days of April and October, which continued eighteen days, and two intermediate courts of oyer and terminer were held in June and December. The county courts were held monthly on days prescribed by law. Appeals lay from the judgment of the general court, to the queen or king in council. Both the general court and the county courts were invested with chancery as well as common law jurisdiction;6 they were likewise courts of probate for deeds and wills, and the latter possessed the concurrent right of granting administration of intestates estates, and the care of orphans and their estates within their counties respectively.
When the revolution took place it was thought proper to transfer the chancery jurisdiction of the general court to another court. Its jurisdiction in ecclesiastical cases seems to to have been either abolished, or become obsolete, except in the cases which have been transferred to the cognizance of the high court of chancery. These are confined to incestuous marriages only, in which cases the court of chancery is authorized to annul the marriage. A court of appeals and a court of maritime jurisdiction was likewise established; but the latter was discontinued soon after the adoption of the constitution of the United States.7 That instrument laid the foundation of the federal courts. About the same time the general court was new organised, and district courts were established in various parts of the commonwealth. Of all these several courts we shall now say something, beginning with the inferior, and state courts, and proceeding to the superior, and finally to the federal courts, whose jurisdiction will be found, in some instances, separate from, in others concurrent with, and in some few paramount to, that of the state courts.
1. Corporation courts, or those courts which by charterer act of assembly have been established in the towns of Norfolk, Williamsburg, Richmond and some others, are courts of limited jurisdiction the extent of which in a great measure depends upon the act of their incorporation; but by a general law from which the city of Williamsburg and the borough of Norfolk are excepted, they shall have jurisdiction only in suits between their respective inhabitants, or between inhabitants and persons not inhabitants of this commonwealth. And in either case, only where the contract is made, or the cause of action accrues, within the corporation; in which cases their jurisdiction is not limited to any particular sum, but is co-extensive with that of the county courts.8 They have likewise the same jurisdiction in criminal cases arising within their limits, as the county courts possess beyond those limits in the counties respectively. The manner of chusing their magistrates depends upon the acts of their incorporation. But no magistrate of a corporation can at the same time act as a justice of the county courts.9 These courts so far as they have been yet established,10 are all courts of record and have concurrent jurisdiction with the district and county courts, in testamentary causes and others of a similar nature, as also in all cases relative to guardians and their wards, idiots, lunatics, and their estates, and the probate of deeds, concerning lands, and slaves, within their respective limits.11
2. The county courts were established in every county of the commonwealth, for the trial of suits and for the probate of deeds and wills, and granting letters of administration of intestate’s estates within their respective counties. They have cognizance of all civil suits both at common law and in chancery, where the claim amounts to ten dollars or more,12 and of all pleas of the commonwealth except such criminal causes where the judgment on conviction, did, before the commencement of the act for amending the penal laws, extend to life or member; and except the prosecution of causes to outlawry against any person whatever. The justices of the peace of the several counties are judges of those courts13 and they are appointed by the governor with the advice of the council of state on recommendation of the county courts.14 Their sessions are held monthly; but four out of the twelve are denominated quarterly sessions, and with some exceptions, are held in the months of March, May, August and November, and continue six days, unless the business be sooner ended.15 At their quarterly sessions a grand jury is sworn to make presentments of all breaches of the penal laws of the commonwealth,16 and such presentments as have been before made, and all other prosecutions in behalf of the commonwealth, as well as civil suits at common law and in chancery, where the claim exceeds twenty dollars or 800 lbs. of tobacco are to be tried at the quarterly sessions. At the remaining eight sessions petitions for small debts, or for trover and conversion, or the detention of any thing not exceeding twenty dollars or eight hundred pounds of tobacco, are to be tried.17 Deeds and wills maybe proved, administrations of intestate’s estates granted, poor orphans may be directed to be bound out by the overseers of the poor;18 and guardians and committees of infants, idiots, lunatics and their estates, be appointed; justices, sheriffs and coroners, and officers of the militia, when necessary, may be recommended to the executive; and surveyors of highways, and constables appointed.19 Injunctions in chancery may likewise be granted or dissolved and all chancery causes therein depending, tried, in like manner as at the quarterly sessions:20 and if any defendant in any suit in chancery resides within the county, and any other defendant within another county, or in any other country, the process in the former case may be directed to such other county;21 and in the latter the court may appoint a day for the defendant to appear, which if he fails to do after due publication thereof, the court may proceed to make a decree against him as if he had appeared.22 An appeal lies from judgment on the common law side of these courts to the district courts, where a freehold or franchise is in dispute, or the debt or thing demanded is of the value of one hundred dollars, or three thousand pounds of tobacco; and a writ of error or supersedeas, lies from those courts to the judgment of the county courts, and in similar cases, where the judgment amounts to thirty three dollars and one third, or one thousand pounds of tobacco.23 An appeal from a decree on the chancery side lies to the high court of chancery where the debtor claim amounts to thirty three dollars and one third, or where lands or slaves are the subject of the decree.24 Four of the justices (whose number is indeterminate and various in the several counties) constitute a court. They are likewise justices of oyer and terminer for the trial of slaves25 and may convene and hold separate courts for the examination of free persons charged before any one of them with any criminal offense, preparatory to their being indicted for the same in the district or county court, according to the nature of the offense;26 the consideration of which more properly belongs to that part of the commentaries which treats of crimes and misdemeanours.
3 & 4. The district courts and the general court, are next in order to be considered; the former being a modification of the latter, are in strictness only so many different branches of the same stock. In deducting the history of the first we must begin with the latter. The constitution of the commonwealth requires that judges of the general court should be appointed by joint ballot of both houses and be commissioned by the governor. That they shall have fixed and adequate salaries, and hold their offices during good behavior. In October 177727 the general court was organized as a principal court of common law, of general jurisdiction, to consist of five judges, to be chosen and commissioned as the constitution directs, any three of whom might constitute a court, for the trial of all actions and suits at common law, real, personal or mixed, where the debt or claim was of the value of ten pounds current money or more; or where the action was brought against the justices of an inferior court, or the vestry of a parish; as also petitions for lapsed lands, and appeals, writs of error and supersedeas from, or to the judgment of any inferior court. It had also full power to hear and determine all treasons, murders, felonies and other crimes and misdemeanors, which should be brought before it. This court was to hold two sessions of twenty four days each, beginning on the first day of March and the tenth of October yearly. In the succeeding year28 an act passed for enabling the judges to hold two additional sessions in June and December for the trial of criminals only. The backwardness of the county courts in doing business soon occasioned a vast accumulation of suits in the general court. In the year 1787, it was computed that the suits then depending therein could not be tried in less than five years, and they still continued to accumulate. This inconvenience had been foreseen and felt some years before that period. Other inconveniencies were experienced from the great distance from whence criminals were often brought to be tried, as well as from the immense expense of jurors and witnesses who were obliged to attend from remote parts of the commonwealth. To remedy these inconveniencies an act passed in October 178429 for the establishment of courts of assize, upon the plan of those courts, and the courts of nisi prim in England. Seventeen districts were appointed (nearly the same as at present) where the courts were to be held. The judges of the court of appeals, consisting at that time of the judges of the high court of chancery, the general court, and court of admiralty were to allot the districts among themselves and two of them were to attend as judges of the courts of assize. The writs were to be issued by the clerks of assize and be returned to the general court and the issue there made up. After which the record was to be sent out to the assize courts, and after verdict to be again returned to the general court, in order to have the judgment there entered up; and execution was to be finally sued out of, and be returned to, that court. This scheme appeared to be complicated to some, and pregnant with great inconveniencies to others. The act was accordingly suspended the next year30 and repealed two years afterwards without any experiment being made of its effect. In 1787, an act passed for establishing district courts.31 The judges of the court of appeals were required to attend as judges of the district courts; but that court by a solemn act declared the law which required the judges of the high court of chancery, and the court of admiralty to take upon them the character of judges at common law, not only in civil but in criminal cases, was unconstitutional. They therefore declined carrying the act into execution. The legislature being immediately convened by proclamation from the governor, suspended the act till the next session and then repealed it, so far as it related to the judges of the court of appeals. By that and several subsequent acts, all which were consolidated in 1792, the general court and district courts were organised and reduced to their present form, of which we shall now give a sketch.32
The judges of the general court, whose number now consists often, allot among themselves the duty of attending the several district courts, two to each court. To effect this, the state is arranged into five circuits, in four of which there are four districts, and in the fifth three, making in the whole nineteen,33 in each of which a superior court is held, possessing the same jurisdiction within the district, both in criminal and civil cases, as the general court formerly possessed throughout the state, with some small variations, which will be noticed in their proper places. These courts hold two sessions yearly, the circuits beginning in April and September, and ending in May and October. The judges have no separate commissions, but act by virtue of their commissions as judges of the general court; which proves the district courts to be only branches of that court, as otherwise they could have no constitutional authority therein. One judge is sufficient to constitute a court in all cases, except in criminal cases, extending to life or member, and even in these, if the accused shall petition to be tried, one judge constitutes a court.
The terms vary from ten to fifteen days, in proportion to the population of the districts, and the number of suitors. An appeal lies to these courts from the county courts, and from them to the court of appeals. Their original jurisdiction is limited to suits where the debt or claim amounts to one hundred dollars or upwards, nor will an appeal lie to them for a less sum. But writs of error and supersedeas are grantable where the judgment of the inferior court is for any sum not under ten pounds. Special actions on the case, and actions of trespass, either of a personal or mixed nature, may likewise be brought therein; but, in these, if the plaintiff does not obtain a verdict for five pounds, he recovers no more costs than damages, unless the trespass is malicious, or the title or bounds of land is brought in question. It has been held, that if any offense is committed within any district, process may be awarded from that court to any part of the state to apprehend the offender;34 but in civil actions, except where there are two or more parties jointly, or jointly and severally bound in any contract or obligation, one of whom resides within the district, it is held that process cannot be awarded to any county without the district, yet, in the case of a writ of right for lands lying in one district, it has also been held, that if the tenant resides within another district, atestatum fraecife may be awarded to such other district, after the defendant has been returned no inhabitant of the county where the land lies. And by a parity of reasoning it would seem, that in actions of trespass quareclausumfregit, a similar remedy ought to be given; otherwise there might be a great defect of justice where the trespasser resides in one district, and the lands lie in another, because these actions must always be laid in the county where the lands lie: there is, however, no provision for this case in the law. The consequence, perhaps, may be, that the suit must be brought in the general court, where the party grieved is entitled to his remedy, if he cannot obtain it in any other court. The district courts, with the consent of the accused party, may adjourn any question of law, in a criminal case, to the general court for decision, and may also adjourn thither any new or difficult question in civil cases. The venue likewise may, upon good cause shown to the general court, be changed from one district to another, and any suit depending in a district court, in which any judge of the general court shall be interested, unless good cause to the contrary be shown, shall be removed to the general court for trial at that bar.35
The general court continues to sit at the seat of government in Richmond, and holds two sessions, the one in June, the other in November, yearly. It has not original jurisdiction in civil suits, in any case where a remedy can be had in any other tribunal, nor has it jurisdiction in any other case whatever, where a remedy can be had in any other court, except those which are particularly enumerated in the constitution, or in the act constituting it, or in some other statute. On the other hand, it’s jurisdiction is general over all causes, matters, and things at common law, as well criminal as civil, unless there be some other tribunal to which cognizance of the case belongs. And this is founded upon this principle, that there ought to be no right without it’s remedy. Therefore, where a person grieved cannot obtain a remedy in any other court, he shall obtain it in the general court, if the cause of action arises by the common law. This provision may supply all the casus omissos of the district and county court jurisdictions. Of these, the following are the most obvious. 1st. Where, in an action of trespass quare clausum Jregit, the defendant resides in a different district from that where the lands lie. In this case, no action lies in the county or district courts, for the action must be brought in the county or district where the lands lie. If, in the county court, the defendant be returned “no inhabitant,” the suit abates; if, in the district court, acapias ad respondendum (which is the process in this case) be sued out against the defendant in any other district than that in which he resides, before a non est inventus has been returned in his district, upon a capias issued against him in the same suit, the writ is void…..In this case then it would seem that a competent remedy can be had, only in the general court. 2dly. In a writ of right, where the tenant of the fee resides in one district, and the lands lie in another, it may admit of some doubt, (though in the case before alluded to the doubt was overruled) whether process could be awarded ‘to another district. 3dly. In all cases where a person is aggrieved by the judgment of the inferior courts, where the debt or thing recovered or claimed is under the value of ten pounds, it is perhaps reasonable to infer, that a writ of error lies to the general court; and 4thly. Where any person is aggrieved by the judgment of a single magistrate, it is no less reasonable to suppose, that a writ of false judgment ought to lie from some court; for otherwise, great oppression and injustice might be exercised towards poor persons, (suits and controversies to a small amount being most generally between, or against them.) And, as no other court is invested with jurisdiction in these cases, and as those proceedings are founded upon the common law, it would seem that the general court, as the supreme court of common law jurisdiction, should have the power of administering the remedy. But the judgment of the magistrate is expressly declared to be final, and so perhaps is that of the court, upon petitions for small debts, etc. a subject which may deserve the attention of the legislature.
The express jurisdiction of the general court seems to be at present confined to cases of impeachment, except where a judge of that court is impeached; indictments or informations against the clerks of courts for breach of good behavior in office, and against counsel and attornies guilty of mal-practice in the general courts, whose licenses may thereupon be suspended or wholly vacated. High treasons, misprisons of treasons, and other offenses against the commonwealth committed by any citizen of the commonwealth, and all felonies committed by citizen against citizen, out of the state (except piracies and felonies on the high seas, the cognizance of which belongs to the court of admiralty of the United States) are also to be tried in the general court. These with some other cases chiefly of a fiscal nature, particularly enumerated in the act concerning the general court, together with those before noticed, seem to be the only cases now cognizable in the general court, as contradistinguished from the district courts. Deeds for lands in any part of the commonwealth may there be proved, and the court has moreover cognizance of testamentary and other causes of a similar nature throughout the commonwealth. A mandamus also lies from that court to the district courts. It has power moreover, as was before observed, to change the venue from one district to another, or to direct a trial to be had at its own bar. Three judges constitute a court, and the terms are limited to sixteen days. An appeal lies from this court to the court of appeals, where the matter in dispute is of the value of one hundred and fifty dollars, or is a freehold or franchise. This system is susceptible of many improvements.
The principal inconveniences which have hitherto manifested themselves are the want of concert in the opinions of the judges, who being allotted, two and two together, have not an opportunity, by consulting together, to establish that uniformity which is much to be desired in judicial decisions. This produces a want of confidence in the judges, and want of respect for their opinion in the suitors; hence no question of any importance arises in which there is not an appeal: this in time must clog the administration of justice so far as to require the court of appeals to sit constantly throughout the year, nor will the whole year suffice, if appeals are allowed, as of course, in all cases, whether there be, or not, any error supposed to exist in the judgment of the court from which the appeal is made. Another inconvenience which has more than once produced great mischief, is that two judges are necessary to constitute a criminal court, unless the prisoner shall petition to be tried., It has frequently happened, (and the same thing must continue to happen very frequently) that one of the judges, by sickness or other incapacity, has been unable to attend the court where there were criminals of the most atrocious kind to be tried; these from a consciousness of their guilt are sure not to petition to be tried, unless the witnesses against them happen to be absent. If the same thing should happen at the next court, the prisoner, whatever be his offense, has a right to be bailed; and if there be not a court to try him at the third term he shall be discharged. Some of the most atrocious offenders that were ever brought to the bar of a court, have escaped the punishment due to their crimes from these circumstances. Oftentimes it has happened that the witnesses who were present at the first term, could never attend, or be compelled to attend, again; many other circumstances concur to give an atrocious offender a certainty of escaping, where there is not a full court at the first term. To remedy this inconvenience it would surely be better whenever one judge only should constitute the court, to allow a bill of exception in behalf of the prisoner, which might be adjourned to the general court for decision.
It would be more difficult to remedy the want of uniformity in the opinions of the judges; but even this inconvenience might in time be lessened, if not wholly removed, by transferring to the general court all causes whatsoever now cognizable in the district court of Richmond, and requiring the attendance of a greater number of judges than are now necessary to constitute that court. By these means a more uniform practice, and probably more uniform opinions, would prevail in the district courts, which would gradually conform to the precedents established in the general court: whereas, at present, little respect is paid to any former precedent, either by the bench, or the bar.
5. The high court of chancery is a court of equity, possessing general jurisdiction over all persons and all cases in chancery, where the matter in dispute is of the value of thirty-three dollars, and one third. The jurisdiction of this court depends upon the import of this word “chancery” which conveys no definite meaning. Our acquaintance with the constitution, jurisdiction and powers, of the high court of chancery in England, affords a clue to our inquiries, which is not altogether without difficulty in the unravelling. ” The jurisdiction of this court,” said the late lord chancellor Hardwicke, when at the bar ” as it is a court of equity, is perhaps of all others the most difficult to be traced, both as to it’s foundation, and the time when it hadit’s original. But I think there have been very great opinions, and I am apt to believe a strict search into antiquity might enable one to show, that this jurisdiction has also taken it’s rise from the great seal. For the chancery being, upon the division of the king’s courts, the officina justitiae from which all original writs issued, and where the subject was to come for remedy in all cases; the chancellor was applied to in all cases, for proper writs, where the subject wanted a remedy for his right, or redress for a wrong that had been done him. But in the execution of his authority, he was confined by the rules of the common law, and could award no writs but such as the common law warranted, therefore, when such a case came before him as was matter of trust, fraud, or accident, (which are the subjects of an equity jurisdiction) the chancellor could award no writ proper for the plaintiff’s case, because the common law afforded no remedy. Upon this it is not improbable, that the chancellors, who were most commonly churchmen, men of conscience, when they found those cases grew numerous, in order to prevent the suitors being ruined, against right and conscience, and that no man might go away from the king’s court without some relief, summoned the parties before them, and partly by their authority, and partly by their admonitions, laid it upon the conscience of the wrongdoer, to do right.36 This extraordinary court or court of equity proceeds by the rules of equity and conscience, and moderates the rigor of the common law, considering the intention rather than the words of the law. It gives relict for and against infants, notwithstanding their minority,37 and for and against married women notwithstanding their coverture. In some cases a woman may sue her husband for maintenance, she may sue him when he is beyond sea, etc. and be compelled to answer without her husband. All frauds and deceits for which there is no redress at common law, all breaches of trust and confidence, and accidents, as to relieve obligors, mortgagors, etc. against penalties and forfeitures, where the intent was to pay the debt, are here remedied; for in chancery a forfeiture shall not bind, where a thing may be done after a compensation made for it.38
It will give relief against the extremity of unreasonable, engagements entered into without consideration; oblige creditors that are unreasonable to compound with an unfortunate debtor:39 and make executors give security, and pay interest, for money which is to lie long in their hands.40 Here executors may sue one another, or one executor alone be sued without the rest: order may be made for the performance of a will: it may be decreed who shall have the tuition of a child.41 It may confirm titles to lands though one has lost his writings, render conveyances defective through mistake, etc. good and perfect, but not defects in a voluntary conveyance, except where intended as a provision for younger children.42 This court may likewise grant injunctions to stay proceedings at law, or to stay executions upon unrighteous judgments, against the defendants in a court of law. Or to stay waste, or to quiet the possession of lands. It may likewise set aside a verdict at law, and award a new trial, where injustice has been done on a former trial. 1. Equity cases abridged, 377. Such are the general objects of the jurisdiction of the high court of chancery, in England, which may be regarded as the prototype of our own as a court of equity. How far the common law jurisdiction of the high court of chancery in England, is to be regarded as vested in the high court of chancery in Virginia, is a question of some nicety, inasmuch as the general court is declared to have general jurisdiction over all causes, matters, and things, at common law, as well criminal, as civil, except in such cases as by the constitution of the United States, or of the commonwealth, or any statute made by the congress of tho United States, or by the general assembly of the commonwealth, are or shall be vested in any other tribunal.43
The high court of chancery in Virginia, may award process, and make a decree against an absent debtor, or other absent defendant, although he never was within the limits of it’s jurisdiction;44 it has decreed conveyances for lands not lying within the state, to be made by persons served with process within it’s limits.45 It may issue writs of ne exeat, to prevent defendants from departing the state,46 and writs of habeas corpus to deliver any person illegally detained in custody;47 may grant relief to any person having a demand against the commonwealth which is disallowed by the auditor: and may upon petition grant relief in any other case where any person has an equitable claim against the state:48 may require the opinion of the general court on any matter of law, may direct issues to be tried in that or any other court, according as justice and the convenience of the patties may require; may take cognizance of suits at law, properly cognizable in the general court, where a majority of the judges of that court are interested; may grant writs of certiorari for removing thither any suit in chancery, depending on any county or inferior court; may grant bills of review after decree made therein.49 It has also appellate jurisdiction, and may reverse or affirm the decree of any county court or inferior court, where the matter in dispute amounts to thirty-three dollars and one third.50 Lastly, this court has jurisdiction in all cases of incestuous marriages, and may annul the same, and punish the parties by fine, and if it see fit, may cause them to give security not to co-habit again.
The general court, as has been already mentioned, before the revolution possessed all the powers and jurisdiction of a high court of chancery: when the revolution took place it was thought proper to separate the court of equity from the court of law. The constitution accordingly requires, that judges in chancery shall be appointed by joint ballot of both houses of assembly, and be commissioned by the governor, and hold their office during good behavior.51 When the court was first organized, three judges were appointed, but the number was reduced to one some years after.52 An appeal lies from this court to the court of appeals, where the matter in controversy is of the value of one hundred and fifty dollars, and such appeal may now be made from an interlocutory decree.53 The high court of chancery holds three sessions in the year, and sits at the capital in the city of Richmond. The terms begin in March, May, and September. The first continues eighteen days, and the two last twenty-four each. But the court is always considered as open, so as to grant injunctions, writs of ne exeat, certiorari, and other process usually granted in vacation. Such, until very lately, was the constitution and jurisdiction of the high court of chancery. By an act passed in the year 1801, c. 14, it was new organized, the state being divided into three districts. A court for the eastern district, consisting of the counties in general which lie below the falls of the great rivers, was established at Williamsburg.
The counties lying between the eastern district and the blue ridge of mountains, constitute the middle district, and a court is held for the same at Richmond as heretofore. The counties westward of the middle district compose a third district, and a court is held for the same at Staunton, in Augusta county, one judge being appointed for each district: and the courts respectively, and the judges thereof in term time, as well as in vacation, are subject to the same rules and regulations, and have and may exercise the same jurisdiction and powers within their respective districts, in every respect, as the high court of chancery, or the judge thereof, formerly possessed.
6. The court of appeals is the supreme judicial court of the Commonwealth.54 It has original cognizance in no case whatsoever, except where a judge of the general court may be impeached; but it has appellate jurisdiction from the district courts in all cases where the matter in controversy amounts to one hundred dollars, and from the general court and high court of chancery where it amounts to one hundred and fifty dollars, or is a freehold or franchise; and whether it reverses or affirms the judgment, certifies it’s own judgment to the court from which the matter was removed, who are to enter it as their own, and award execution thereon accordingly. The judges of this court are, by the constitution, required to be appointed by joint ballot of both houses, and commissioned by the governor, and, as well as the judges of the high court of chancery and general court, hold their offices during good behavior. If they are impeached, they (and all others who maybe impeached, except the judges of the general court,) are to be tried in the general court. They are to have fixed and adequate salaries, and are incapable, as well as others, of holding any lucrative office, or of being elected members of either house of assembly. The first act for organizing the court of appeals declared it should be composed of the judges of the high court of chancery, general court, and court of admiralty: no commission was made out for them as judges of the court of appeals, nor were they balloted for as such. About ten years after, the legislature wishing to new model the courts, availed itself of this circumstance, and gave it an entire new constitution. There are now five judges, who are appointed and commissioned in the manner directed by the constitution.
This court sits twice a year in April and October. The duration of the terms is unlimited. The multiplicity of business renders them very long already; they will probably increase in duration yearly. If a majority of the judges of the court of appeals are interested in the determination of any suit therein depending, the same shall be entered of record, and the clerk shall thereupon issue writs of summons to the chancellor and the judges of the general court, requiring their attendance, if not disqualified, to attend at the next session of the court of appeals. And the remaining judges, who are not interested, if any such there be, together with such as attend by virtue of such summons, or any five of them, constitute a special court of appeal for the trial of such suit, and may proceed to hear and decide the same in like manner as the ordinary court. It now remains to say something of the federal courts.
By the constitution of the United States,55 it is declared, that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may, from time to time, ordain and establish; the judges of which shall hold their office during good behavior, and receive a salary which shall not be diminished during their continuance in office. The judicial power extends to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority: to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to those between two or more states; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state and foreign states. In the original frame of the constitution, the judicial power was still more extensive; but an amendment has been proposed and ratified, by which it is declared that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state. Amendments to the constitution of the United States, Art. 13.
The judicial courts of the United states, as organized by the act of 1 Cong. 1 Sess. c. 20, consisted, first, of a district court in each state, and in that part of Massachoosetts which is called the province of Maine, a single judgment being appointed for each district, who was by law required to reside within the same; these courts held four sessions in every year. Secondly, of a circuit court; which held two sessions annually in each district, and consisted of two judges of the supreme court who alternately rode the circuits, together with the judge of the district court, or any two of them. But for the convenience of the judges of the supreme court, on whom the duty was founded to fall very hard, a subsequent act56 required the attendance of one of them only at each circuit court: and, thirdly, of a supreme court, consisting of a chief justice, and five associate justices, which held two sessions annually at the seat of government.
During the second session of the sixth congress a very extensive alteration in the system was proposed, and carried into effect by an act57 passed on the thirteenth day of February 1801, which, among other provisions, divided the United States into twenty-two districts. The districts were again classed into six circuits, in each of which, (except the sixth, comprehending the districts of East Tennessee, West Tennessee, Kentucky and Ohio,) three judges, to be called circuit judges, one of whom was to be commissioned as chief judge, were authorized to be appointed, with an annual salary of two thousand dollars, each. In the sixth circuit, one circuit judge only was to be appointed, who together with the district judges of Kentucky and Tennessee was authorized to hold the circuit courts for that circuit; and whenever the office of district judge, in those districts, respectively, should become vacant, such vacancies were to be supplied by the appointment of two additional judges, for that circuit.
The appointments authorized by this act were made by the president for the time being, altho’ not more than twenty days remained of the period for which he was elected, after passing the act, which had been carried thro’ congress by small majorities, after a strenuous opposition. As soon as the question had been taken and carried in the house of representatives, a member gave notice, which was laid upon the table, that at the next session he should move for a repeal of the act. Some unpopular appointments of judges, made by the president were not calculated to reconcile the opponents of the act to its passage. The question whether a succeeding congress could repeal the law, and by so doing remove the newly appointed judges from office, soon became a popular topic of discussion, in many parts of the United States. And while many who disapproved the law, were satisfied that it could not constitutionally be repealed, so as to affect the judges who held commissions under it, others either doubted, or declared themselves convinced of the constitutionally, as well as expediency and sound policy of such a measure. Accordingly, very soon after the commencement of the first session of the seventh congress, a motion was made in the senate for the repeal of the act.
The debate was conducted with great ability in both houses successively, during a considerable portion of the session; the several speakers both in favor of the repeal, and against it, displaying a scope of talents and ingenuity in their arguments, which showed them equally prepared to maintain their opposite opinions. The bill passed the senate by a small majority only; but ‘the majority in favor of the repeal was much greater in the house of representatives. It received the president’s assent on the eighth day of March, 1802, and it’s passage, as it respects the construction of the constitution of the United States, and of that principle (supposed to be a fundamental one,) which appeared both to require and to have secured the absolute independence of the judiciary department, may be deemed one of the most important events which have taken place in congress since the adoption of the constitution. The act of the 13th Feb. 1801, 6 Cong. 2 Sess. 4. As also, another passed the third day of March, 1801, for altering the times and places of holding certain courts, 6 Cong. 2 Sess. c. 62, were totally repealed, and all acts, and parts of acts, which were in force before the passage, thereof, and which by the same were either amended, explained, altered, or repealed, are thereby revived, and declared to be in as full and complete force as if those two acts had never been made. And by a subsequent act of the same session,58 the districts of the United States (excepting the districts of Maine, Kentucky, and Tennessee,) are formed into six circuits, of which the districts of New Hampshire, Massachoosetts, and Rhode Island, constitute the first; Connecticut, New York, and Vermont the second; New Jersey and Pennsylvania the third; Maryland and Delaware the fourth; Virginia and N. Carolina the fifth; and S. Carolina and Georgia the sixth. The chief justice of the U. States, and the several associate justices of the supreme court, are assigned to these courts respectively; and together with the district judges respectively, are to hold two circuit courts annually, in each district, but if only one of them shall attend, the circuit court may be held by the judge so attending. And on every appointment hereafter made of a chief justice or associate justice of the supreme court, the judges shall allot themselves among the several courts, as they shall think (it and such allotment shall be entered upon record. And, if no allotment be made, the president may make the allotment; which he seems authorized to do in the first instance after making any appointment; and the allotment made in cither case is binding until another is made.
The district courts of the United States have, exclusively of the courts of the several states, cognizance of all crimes and offenses which shall be cognizable under the authority of the United States committed within their respective districts, or upon the high seas, where no other punishment is to be inflicted than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months: as also exclusive cognizance of all civil causes of admiralty and maritime jurisdiction,59 and of all captures made within the waters of the United States, or within a marine league of the coasts or shores thereof60 of all seizures made under the laws of impost, navigation or trade of the United States, where the seizures are made on waters navigable from the sea, by vessels often tons burden, within their respective districts, as well as upon the high seas: saving to the suitors in all cases the right of a common law remedy where the common law is competent to give it; and also exclusive cognizance of all seizures made on the land or other waters than those before mentioned, and of all suits for penalties and forfeitures incurred under the laws of the United States61 (except in cases of penalties incurred by breach of the laws imposing duties on wine licenses, spirits distilled, or goods, sold at auction, where the distance is more than fifty miles from the place of holding a federal district court, which are also cognizable by the state courts:62 as also cognizance concurrent, with the state courts of all causes where an alien sues for a tort only, in violation of the law of nations, or of any treaty of the United States; and of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to one hundred dollars. They have also jurisdiction, (exclusively of the state courts) of all suits against consuls or vice-consuls, except for offenses above the description above mentioned.63 A writ of error lies from the circuit courts of the United States to these courts, where the matter in dispute is more than fifty dollars exclusive of costs.64 The district courts for Virginia are now held alternately at Richmond and at Norfolk,65 on the third Tuesday in December, March, June and September, yearly, in addition to which, the district judge has power to hold special courts at either of those places, or at any other place in the district, as the nature of the business may require.66
The circuit courts of the United States, hold two sessions every year in each district:67 that for Virginia, was formerly held alternately at Williamsburg and Charlottesville, but is now stationary at Richmond, and sits on the twenty-second days of May and November, yearly. The present chief justice of the United States is allotted to this circuit, and that of North-Carolina.68 The circuit courts now consist of one judge of the supreme court of the United States, according to the allotment made by the act of 7 Cong. 1 Sess. c. 31, and the district judge of the district in which the court is held; but if one of the judges only attend, he may hold the court as was before mentioned. In addition to the stated sessions of these courts, the judges have power to appoint and hold special-sessions for the trial of criminals, at any other time and place within the district as convenience may require. These courts have original cognizance concurrent with the state courts, in all suits at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the value of five hundred dollars; and the United States are plaintiffs, or an alien is a party; or the suit is between a citizen of the state where the suit is brought, and n citizen of another state. They have also exclusive cognizance of all crimes and offenses cognizable, under the authority of the United States, except where the laws of the United States may otherwise direct, and concurrent jurisdiction with the district courts of the United States, of the crimes and offenses cognizable therein. But no person can be-arrested in one district, for trial in another, in any civil action, and no civil suit can he brought therein, against an inhabitant of the United States, unless he be an inhabitant of the district, or found therein at the time of serving the writ; nor can these courts take cognizance of any suit, brought by an assignee of a promissory note, or other chose in action, unless a suit might have been prosecuted therein if no assignment had been made, except in cases of foreign bills of exchange. Suits cognizable in these courts, if commenced in a state court against an alien, or a citizen of another state, or if the title of lands be concerned, and the value of the matter in dispute exceeds five hundred dollars, may on certain conditions be removed therein for trial. A writ of error in the nature of an appeal, where the matter in dispute exceeds two thousand dollars, lies from the supreme court of the United States to these courts.69
In all cases removed, by appeal or writ of error, from the district courts to the circuit courts, judgment shall be rendered in conformity to the opinion of the judges of the supreme court, presiding at the circuit courts. And in case of disagreement in opinion between the judges presiding in the circuit courts, in any other case, the point upon which the disagreement shall happen, shall, during the same term, upon request of either party, be stated under the direction of the judges, and certified under the seal of the court to the supreme court at their next session, and shall be there finally decided, and the decision shall be remitted to the circuit court and there entered of record, and have effect according to the nature of the judgment or order of the supreme court. But the cause may still proceed in the circuit court, if, in the opinion of the court, further proceedings can be had, without prejudice to the merits. It is further provided that imprisonments shall not be allowed, nor punishment in any case inflicted, where the judges of the circuit court are divided in opinion upon the question touching such punishment or imprisonment.70
The supreme court of the United States has jurisdiction exclusively, in all such suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can exercise consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice consul shall be a party.71 This court has likewise power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus to any courts appointed or persons holding office under the United States. A writ of error lies from this court to the highest court of law or equity of a state, in which a decision in the suit can be had. In any suit where the validity of a treaty, or a statute of, or an authority exercised under, the United States is called in question, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where the construction of any clause in the constitution, or of a treaty, or statute of, or commission held under, the United States is drawn in question, and the decision is against the right, title, privity, or exemption set up, or claimed by either party under the same. But no other error can be assigned but such as immediately respects the abovementioned questions.72
All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. The judges both of the supreme and district courts, have likewise power to issue writs of habeas corpus, where the prisoner is in custody under, or by color of the authority of the United States.73
The supreme court is hereafter to be holden at Washington, the present seat of government of the United States, on the first Monday in February annually, by any four of the justices thereof; but one or more may make any orders touching any suit preparatory to the trial or decision thereof; and if four justices do not attend within ten days, the court shall be continued over to the next stated session. It is moreover made the duty of the associate justice resident within the fourth circuit, to attend at the city of Washington on the first Monday in August annually, and he is authorized to make any orders touching any suit depending in the supreme court preparatory to the trial or decision thereof: and all writs and process may be returnable to the first Monday in August, as well as to the session to be held in February; and all actions, pleas and other proceedings in any cause civil or criminal shall be continued over to the ensuing February session:74 so that there is now but one session of the supreme court in every year, for hearing and deciding causes therein depending, the session in August being merely preparatory.
The senate of the United States constitute a court for the trial of impeachments made by the house of representatives: when sitting for that purpose, they must be upon oath or affirmation. When the president of the United States is tried, the chief justice must preside, and no person can be convicted without the concurrence of two-thirds of the members present. But judgment in case of impeachment cannot extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit, under the United States.75 This court, although in some respects, it may be considered as the highest tribunal in the United States, possesses no authority in any civil case, nor in any criminal case whatsoever, except in the case of impeachments.
Although in this general view of the several judicial courts of the commonwealth, and of the United Slates, their jurisdiction in criminal cases has been incidentally mentioned, yet we shall have occasion to pay a more particular attention to that part of their respective constitutions, in the notes on the ensuing book of the commentaries.
1. Having no copy of either of the charters of Virginia, except that of Charles the second, granted in the twenty-eighth year of his reign, I cannot be particular on this subject….Nor is it, perhaps, material.
2. Beverley’s History of Virginia, Pt. 1, Sec. 45. County courts were first established in 1622. See also H.V. Pt. 4, c. 6, throughout.
3. Pur is 1661, c. 19, 24, 25, 25, 31.
4. Edition of 1733, p. 28.
5. 1705, c. 19. Edition of 1733.
6. 17XX, c. 4.
7. Ibid., 1788, c. 71.
8. 1794. c. 67.
10. Williamsburg, Norfolk, Richmond, Petersburg, Fredericksburg, Alexandria, Winchester and Staunton, are the only corporations in which courts are established.
11. Ibid. c. 92. Ib. c. 95. Ib. c. 120. Ib. c. 90, 103.
12. The cognizance of all causes not exceeding ten dollars or four hundred pounds of tobacco, belongs to the justices of the peace, any one of whom may give judgment and award execution against the goods and chattels of debtors to that amount, but he cannot award execution against the body of the debtor. 1794. c. 67, amended by act of 3800. c. 38. Sess. Acts.
13. L. V. 1748, c. 4.1794. c. 67.
14. L. V.Edi. 1764, c. 67.
15. Ibidem c. 67.
16. C. V. Art. 15.
17. Ibidem c. 73.
18. Ibidem c. 95,120.
19. C. V. Art. 15.
20. Edi. 1794, c. 80, 81, 1-16,19. C. V. Art. 15.
21. L. V. 1797, c. 8. Sess Acts.
22. Ibidem. But in suits at common law if a def. be returned “no inhabitant” of the county, the suit abates as to him. And even if he be taken, yet if he be in fact an inhabitant of any other county, he cannot be held to bail unless a mm est iirsentiu has been returned upon a capias issued against him in the same suit in the county in which he resides, or, the cause of action arose within the county or corporation where the suit may be brought. L. V. 1794, c. 80. Sec. 13., c. 67. Sec. 23.
23. 1784. c. 78.
24. Ib. 6 67.
25. Ib. c. 167. Ib. c. 103.
26. Ib. c. 74.
27. c. 17.
28. 1778, c. 9.
30. 1785, c. 12.
31. 1787, c. 16., c. 39.
32. 1794. c. 65, 66.
33. The districts are Suffolk, Petersburg, New London, Washington, and the Sweet Springs in Botetourt, for the southern division of the state; Williamsburg, Richmond, Charlottesville, and Staunton, for the middle; Northumberland, Fredericksburg, Dumfries, Winchester, Hardy and Monongalia, for the northern; and Accomack, for the eastern shore.
34. Upon a question referred to the general court, it has been held, that every indictment must allege, that the offence was committed within the jurisdiction of that district court where the indictment is brought.
35. In 1792, an act passed giving to these courts chancery jurisdiction. A case soon after arose in Dumfries district court, wherein a motion was made for an injunction to stay execution upon a judgment of that court, given at a preceding term. The case was adjourned to the general court for novelty and difficulty. That court certified their opinion, that the motion ought to be over-ruled; because, the powers and duties assigned to be performed by that clause of the act, could onl) be executed by those who may be constituted judges in chancery in the manner prescribed by the constitution of the commonwealth The clause was consequently not carried into effect. See the case of Kamper and Hawkins in the general court, Nov. 16,1793.
36. 1 Strange, 150.
37. V. L. 1794, c. 95. 172.17-J7, c, 98. Accordant.
38. 1 Danvers. 752 2 Ventris. 352.
39. It may be doubted whether the high court of chancery in Virginia, hath such power as this, which is probably derived from the English Statutes concerning bankruptcy.
40. 2 Vent. 346. |iwej a to this, if the executor, when he qualified, gave sufficient security.
41. L. V. 1794, c 95. Accordant.
42. 2 Vent. 265.
43. V. L. 1794, c. 65. J. Wythe’s Rep. 143.
44. Ibid, c.118.
45. V. L. 1794, c. 64.
46. Ibid. c. 167.
47. Ibid. c. 78,64.
48. V. L. 1794, c. 64.
49. V. L. c. 85.
50. Ibid. c. 104.
51. C. V. Art. 14.
52. V. L. Oct. 1777, c 15. 1788, c. 69. 17S4, c. 64.
53. V. L. 1797, c. 5.
54. 1794, c. 63.
55. Art. 3.
56. 2 Cong. c. 66.
57. 6 Cong. 2 Sess. c. 4.
58. L. U. S. 7 Cong. 1 Sess.c. 8. f ftid.7 Cong. Sess. 1. c. SI.
59. L. U. S. 1 Cong. 1 Sess. c. 20.
60. L. U. S. 3 Cong. c. 50.
62. L. U. S. 5 Cong. c. 48,49, 66.
63. L. U. S. 1 Cong. 1 Sess. c. 20.
64. L. U. S. 1 Cong. 1 Sess. c. 20.
65. L. U. S. 7 Cong. 1 Sess. c. 31.
66. L. U. S. 1 Cong. 1 Sess. c. 20.
67. L. U. S. 1 Cong. 1 Sess. c. 20.
68. L. U. S. 1 Cong. 1 Sess. c. 20.
69. L. U. S. 1 Cong. 1 Sess. c. 20.
70. L. U. S. Cong. c. 31.
71. See the case of Joseph Ravara, consul from Genoa, reported in 2 Dallas’ Reports, 29r.
72. L. U. S. 1 Cong 1 Sess. c. 20.
74. L. U. S. 1 Cong 1 Sess. c. 31.
75. C. U. S. Art. l, s. 3.3.