Colonial Williamsburg Digital Library

ITS JURISDICTION AND PERSONNEL

By the middle of the eighteenth century most of the laws, precedents, customs, and procedures with respect to the General Court of Virginia had crystallized into a set pattern. It is with this standardization in mind that the following discussions are cast in general terms, and generally oriented to the mid-century.

The General Court was the supreme court of the colony and was possessed of a wide jurisdictional scope. The General Court law of November, 1753, outlined the broad powers of the court by stating:

That the said general court shall take cognizance of, and are hereby declared to have power and jurisdiction to hear and determine, all causes, matters, and things whatsoever, relating to, or concerning any person or persons, ecclesiastical or civil, or to any person or things, of that nature soever the same shall be, whether brought before them by original process, appeal from any inferior court, or by any other ways or means whatsoever.¹

The appellate function of the General Court consisted primarily in hearing appeals from the County Courts. Inasmuch as this was a relatively easy and inexpensive process, the docket of the higher court was often cluttered with appeals from the decisions of the county justices. Because of these "frivolous suits in the general court, and trifling and vexatious appeals from the county 2. courts and other inferiour courts" a law was passed in 1761 prohibiting lawyers from practicing in both the County Courts and the General Court.²

In original jurisdiction, the General Court could not hear civil cases involving less than £10 or 2,000 pounds of tobacco. Penalties were specified to prevent the use of the high court for the settlement of trivial cases. There was, however, an exception to This rule. Suits of smaller valuation could be initiated in the General Court against vestrymen and county justices of the peace.³ As the vestrymen and the county justices were responsible for the administration of both ecclesiastical and temporal law in the counties, it was felt that it would be difficult to obtain justice in the inferior courts dominated by these men.

In criminal cases the General Court held jurisdiction over all cases that involved the loss of life or limb as a punishment.⁴ As a result practically all felonies were tried before the superior court. The only exception was in the case of slaves accused of a capital crime. Slaves thus accused were tried before a court of oyer and terminer by the county justices by virtue of a special commission issued by the governor.

The General Court met twice a year, on April 10th and October 10th, provided those dates did not fall on a Sunday. In that event, the session was begun on the following Monday. The court sat for twenty-four days (Sundays excepted), or until the docket had been cleared. After 1753, the first five days of every court session were allotted to the hearing and determining of cases in chancery and appeals from the county and other inferior courts. The remaining nineteen days were to be taken up in "trying suits or prosecutions on behalf of his majesty, and all other matters whatsoever, there depending…"⁵

The interval of five to six months between the meetings of the General Court posed a problem to the speedy prosecution of justice in the colony. Not only were criminals subjected to a long incarceration, but their subsistence in the public gaol was an added expence to the colony. In 1710 this situation was remedied. In that year Queen Anne extended the right of habeas corpus to Virginia and decreed that two courts of oyer and terminer were to be held to facilitate "gaol delivery." These courts were to sit the first Tuesdays of December and June.⁶

There is some difficulty in determining just what hours the judges of the General Court sat. In 1662 a law was passed specifying that the hours of the court were to be between eight and eleven in the forenoon and from one to three in the afternoon.⁷ From the sparse information available, it appears that 4. these restrictions were flexible and there was little adherence to the letter of the law. One of the charges brought against Governor Nicholson in 1703 was that he kept the court sitting until "unreasonable hours of the night."⁸ In later years during William Byrd's time, attendance seems to have been just as erratic as in Nicholson's. Between 1711 and 1741 Byrd records various times as the hour of his arrival at court. Of these, ten and eleven were the most popular hours for his appearances upon the bench, with ten o'clock as his favorite time of arrival. From his accounts, however, it appears that the court had gone into session at some earlier hour. The hour of adjournment varied, although four o'clock in the afternoon seems to have been the most popular. Upon at least one occasion in his diary Byrd noted, "We sat till it grew dark and dispatched a great deal of business." But this was an exception, and upon many occasions the court rose in the early afternoon.⁹

The judges of these superior courts were the most powerful men in the colony. The bench of the General Court consisted of the members of the Governor's Council with the Governor as presiding judge. Any five of them formed a quorum.¹⁰ This right of the Council to be the judges of the superior court of the colony had been granted in the Charter of 1618.¹¹ The members of the Council received 5. their appointment from the king, their commission being issued under his "sign manual."¹² Normally, their appointment was the result of a recommendation by the Governor, but it was not unknown that a candidate receive his position through the connivance of an influential friend in England.¹³ Council members were appointed to their office during good behavior, which, for all practical purposes, usually meant they held the position for life. During the seventeenth century the number of Council members had fluctuated from two to eighteen, but in the eighteenth century-the membership was restricted to twelve men.¹⁴

These twelve men were seldom skilled in the law. Primarily, they were "the principal Gentlemen of the Colony," or perhaps more accurately, "the most opulent and landed men of the province…"¹⁵ One of the reasons for the selection of the landed gentry as judges appears in an observation made by Governor Gooch in 1730. He felt that as men of property, they were "thought by everybody the only fit persons to judge the property of others."¹⁶ Because of the high percentage of intermarriage among the families of the members of the Council, the charge of favoritism in the courts was often heard. As early as 1718 Governor Spotswood was complaining bitterly of the partiality of "that Luck of 6. Hundred that sway the Bench in the General Court."¹⁷ Eight years later Governor Drysdale also warned the Lords of Trade against putting "the power of Judicature in the Genll Court too much into one Family."¹⁸ In justice to the judges it must be pointed out that a judge was supposed to disqualify himself, and usually did, when a relative or personal interests were concerned. Favoritism apparently was not as evident in the latter part of the century, for a visitor observed in 1773 that their "views, connexions, interests, or inclinations, have generally been such, as to keep them from baser betrayments of their trust, and the more atrocious prostitution of their enormous power and authority."¹⁹

The members of the Council, after 1753, received a total of £1200 annually, proportioned according to their attendance at the Council and General Court. £100 was divided up among the judges and other officers of each court of oyer and terminer.²⁰ When a Council member was absent he was required to make his excuses by letter. Inasmuch as a quorum of five judges was necessary to conduct a court, it seems that the members of the Council quite often rotated active duty on the bench; thus each man could receive his share of the annual Council budget and yet enjoy some freedom from attendance at the General 7. Court.²¹ There was one instance when the number of judges in the court room was reduced quite suddenly and quite unexpectedly. Dr. William Cocke, Secretary of the Colony and a member of the Council, was seized with an "Applectick fitt," while serving as a judge and died almost immediately.²²

The members of the Council were extremely jealous of their prerogative as judges in cases involving life and limb. This right had been granted to them by Charles II in the charter of 1676. This jealousy was particularly evident after Queen Anne authorized the courts of oyer and terminer in 1710. In 1712 Governor Spotswood issued a commission of oyer and terminer naming as judges six members of the Council and six non-members, three of the latter including the Speaker and two other members of the House of Burgesses. The Council hotly protested that the Governor had infringed upon their ancient right to try all cases involving the loss of life or limb. The dispute between Governor Spotswood and his Council ran on for the next six years, and tension became so great that the chief executive absented himself from the bench of the General Court and only returned at the behest of the Grand Jury.²³

The dispute ended in something of a stalemate for both contestants. The Governor won his point, yet the Council did not lose. The Attorney-General of England was called upon to rule upon the Governor's right to appoint others than the Council in a commission of oyer and terminer. His opinion favored the 8. stand taken by Spotswood.²⁴ Although he was backed by the weight of the law, the Governor merely presented this opinion to the Council and then assured them that in the future he would appoint only members of the Council as Judges in commissions of oyer and terminer. Thus a precedent was established, and Councillors thereafter always insisted that a commission of oyer and terminer be issued every June and December, even if there were no criminals held in the public goal.²⁵ Their insistence upon such rights increased their powers to such a point that Lord Adam Gordon found them in 1765 "greater than those of any other Province."²⁶

The Governor, while sitting on the bench, acted in the capacity of chief justice. It was his duty to preside over the court, to charge the jury, and pass sentence upon the convicted. But there his power ended. He had only one vote, like any other Councillor, and he had no veto power, for the verdict rested on a majority vote of the judges. In his absence, the presiding officer of the court was the President of the Council. As to courts of oyer and terminer, the Governor was "no further concerned than granting a Com.[mission] to the Council & signing dead warrants."²⁷ The President of the Council usually acted as presiding officer in these courts. In his absence, the first person named in the commission of oyer and terminer officiated in that capacity.²⁸

The chief legal officer of the General Court was the Attorney-General. 9. During the seventeenth century he was appointed by the king, until near the end of the colonial period he was appointed and commissioned by the Governor under the seal of the colony. For a short time before the American Revolution, his office was once again an appointment of the home government. After 1703 the Attorney-General was required to take up residence in Williamsburg, and if he was to be absent from the capital, he was required to appoint a competent deputy to serve while he was away. He was not only a functionary of the courts, but he also usually attended Council meetings, although he was not a member of that body. The power of the Governor was more restricted in his control of the Attorney-General than the other officials of the colony.²⁹

The duties of the Attorney-General were many and varied and it was necessary that he be a person of better than average legal ability and training. This was especially true since most of the Judges were men unlettered in the law, and "very incompetent in a number of intricate points which must necessarily come before them to decide upon [and they] may make mistakes from whence result consequences that are very prejudicial to the interest of the people."³⁰ It was 10. because of this professional failing on the part of the judges that the Attorney-General was frequently, by order of the Council, required to give an opinion and ruling on the letter of the law. On the more intricate questions, other lawyers were oft-times called in to assist him in matters of interpretation. Questionable County Court decisions were examined and searched for error by the Attorney-General. Among his primary duties were the drawing of indictments and the prosecution of criminals at the General Court and the courts of oyer and terminer. In a like manner he was responsible for presenting the government's case against those who refused to pay quit-rents, violated the laws of trade, or in any other manner disobeyed the statutes of the colony.³¹

There were certain other informal obligations outside the courtroom. He aided members of the House of Burgesses in the periodic revisal of the laws. For the Governor and Council he assisted in the preparation of proclamations, commissions and other legal papers.³²

The Clerk of the General Court was responsible for keeping the records of the court, taking the depositions of witnesses, the publication of court orders, issuing subpoenas, and the preparation of the court docket. The Clerk of the General Court also served as the Clerk of the courts of oyer and terminer.³³ The Clerk of the General Court was an appointee of the Secretary of the colony, one of the most powerful members of the colonial government. He 11. held his office through an appointment from the Crown, although the Governor of the Colony had the privilege of recommending a candidate. With one exception, the Secretary was always a member of the Council. This exception was Wi11iam Adair, who held the position in absentia from 1743-1776. Adair had apparently purchased the position in expectation of receivil1g the financial rewards of the appointment while maintaining his residence in England. During this period the duties of the office were performed by his deputy, Thomas Nelson of Yorktown. Even then, Nelson was always known as "Secretary" Nelson, and there is little reference in the records to Adair. Nelson was elected to the House of Burgesses in 1746 and was himself elevated to the Council in 1749.³⁴

The Secretary was an official of multiple duties, with one writer commenting, "there is such a Medley in it, that its scarce credible…" He was, in the first place, custodian of all the records of Virginia: the proceedings of the General Court and other courts, legal papers, commissions (both civil and military), land warrants, wills and probates, writs of election, judicial writs, birth, marriage, and death notices, licenses, and papers pertaining to fines, forfeitures, and naval matters. Commissions of oyer and terminer, although signed by the Governor, were actually drawn up and issued by 12. the Secretary's office.³⁵ The Secretary also appointed county clerks, which patronage added much to his political power. In 1726 it was estimated that one-half the members of the House of Burgesses were obligated to the Secretary because of this appointive power.³⁶ The monetary rewards of the office were equally attractive. Around 1764 Governor Fauquier estimated that the income of the Secretary's office (arising from all legal fees) amounted to over £1,000 per year.³⁷

Normally, the Secretary of the Colony would act as the Clerk of the General Court, but this was impossible inasmuch as he was usually a Councillor and therefore a judge. These duties were therefore performed by his clerk, who was appointed by the Secretary and paid out of the revenue accruing to his office.³⁸

The sheriff was the chief ministerial officer of the courts. Each county sheriff was appointed annually by the Governor and Council and was selected from a list of three submitted by the justices of the county concerned. To be recommended for the position he had to be a member of the county court, although he was not allowed to serve in a judicial capacity after his appointment. The sheriff was appointed for a term of one year, although this could be extended to two at the pleasure of the Governor. There was no sheriff, as such, for the General Court and it was necessary that such an officer be in attendance to impanel juries, serve writs, and execute the orders of the court. In the seventeenth century, when the court sat at Jamestown, the officer in attendance had been the sheriff of James City County.³⁹ After the removal of the capital to 13. Williamsburg, the sheriff of York County assumed the duties of court officer as the capitol building was located in the York County section of Williamsburg. There seems to have been no directive or law responsible for this change; it appears to have come about as a result of custom and precedent.

Both the sheriff and the under-sheriffs of York County attended the General Court sessions. One of the duties of the sheriff was to impanel both the grand and petit juries, a job which was sometimes entrusted to one of his under-sheriffs. This was something of an occupational hazard for the under-sheriff, for when he summoned a person ineligible for jury duty, he usually suffered a fine for his carelessness.⁴⁰ Apparently the Sheriff of James City County oft-times assisted in the impaneling of a jury. The York County Sheriff, however, was granted some extra-territorial rights with respect to the courts. Because of the peculiar location of Williamsburg with respect to York and James City counties, he was allowed to summon grand and petit jurors, take evidence, and execute the commands of the court, not only within the limits of Williamsburg, but for a half-mile radius around the town. Among the other duties performed by the attending sheriff was the collection of all fines imposed by the court. These he turned over to the Receiver-General of the colony.⁴¹ The regular income of the sheriff was derived from 10 per cent of all quit-rents collected, a percentage of all fees collected, and fees for duties performed for the county courts, the amount of which was specified by the General Assembly. For his duties in attendance at the General Court the sheriff was 14. paid an allowance above his regular income.⁴²

In addition to those officers discussed above, there were certain minor officials necessary to insure the smooth operation of the General Court. Among these was the Court Cryer. Up until 1732 the duties of the cryer were performed by one of the under-sheriffs of York County. Because of the regular turnover in under-sheriffs (usually in office no longer than two years), they had to be trained in the duties of cryer at frequent intervals. It was with this in mind that the position of Court Cryer was created, with a salary of ten pounds sterling for each court. His appointment came from the Governor.⁴³

The Tipstaff was another of these minor court functionaries. His duties were comparable to those of the bailiff of modern courts of law and included acting as usher, messenger, and doorkeeper for the General Court. His appointment, like that of the Cryer, came from the Governor. In 1771, Tipstaff Christopher Ayscough apparently felt that the connotations of his title meant tipsy, for the Council fired him from the job for excessive drunkenness.⁴⁴

One of the peripheral members of the court was the Chaplain. Since 1660 the House of Burgesses had appointed a Chaplain to read prayers for them before each day's session.⁴⁵ The Council had no Chaplain, and the minister appointed by the Burgesses also served the General Court. The records reveal practically nothing about the duties of the Chaplain to the General Court. 15. From the scanty evidence available, it would seem that his primary duty was preaching to the Council in the mornings before they assumed the role of judges. The Chaplain also visited the condemned prisoners in the public gaol, and it may be assumed that he accompanied them on their trip to the gallows.

Another minor, but necessary, official on the fringe of the General Court was the gaoler. His appointment stemmed from the Governor, although the consent of the Council was always obtained before it was made. After his appointment the gaoler was required to post a £500 bond "for the due execution of his office." His salary was not established by law but was based upon "such allowance as by the general Assembly shall be thought reasonable." There were, however, certain other fees and allowances payable to the gaoler which were established by statute. The annual pay of the gaoler, as granted by the Assembly, ranged from fifteen pounds sterling in the early part of the eighteenth century to around forty pounds near the end of the colonial period.⁴⁷

There were certain prerogatives vested in the position of gaoler. He was exempt from both militia and jury duty. On the other hand, there were certain occupational hazards. If the public gaoler permitted a prisoner to escape through an open door, or without the use of force on the part of the prisoner, or if he allowed one of his prisoners to commit suicide, the gaoler could be charged writh a felony.⁴⁸

The duties of the gaoler were many. His principal charge was, of course, the imprisonment and care of persons charged with a violation of the 16. laws or those condemned and awaiting execution. During the actual sitting of the court his duties were broadly interpreted by the law which stated that he should "constantly attend and execute the commands of the general court…" In one sense, the gaoler could be considered an officer of the court. It was his duty to burn in the hand "in open court" all those who pled and were granted Benefit of Clergy. The gaoler lived close to his job, in quarters in the gaol itself. Under the same roof he was responsible for the jailing of debtors and s1aves as well as criminals.⁴⁹

These, then, were the men responsible for the administration of justice in the highest court in colonial Virginia. Not always trained and often lacking in experience, they exhibited such tenacity for a tough job that they often arrived at a successful conclusion despite personal interests, inadequate training and a lack of precedent. Yet as early as 1736 an anonymous observer was noting that the courts of justice were held "with a Dignity and Decorum, that would become them even in Europe."⁵⁰ Indeed, it seems that the English propensity to "muddle through" was one of the traits retained by the colonists in the new world.

ARREST

When a felony was committed, it was the duty of every person who witnessed or discovered the crime to inform the nearest justice of the peace or constable.² If this crime had involved a death, the coroner was notified. This officer's first duty was the summoning of a jury to "view the Body" and determine the cause of death. He issued a warrant to the constable, empowering the peace officer to summon twenty-four freeholders to the spot where the body lay. From this number, twelve jurors were chosen, one of whom was appointed foreman by the coroner.³

After the jurors were sworn, the coroner delivered a charge to the 2. jury outlining their duties. Primarily, they were to determine the manner by which the deceased met his death. If the victim had been feloniously killed, the jury was to attempt to name his killer, determine just where the killer was now located, and if the murderer was at large, just what steps had been taken to apprehend him. If the jury decided that the deceased had taken his own life, it was their duty to state whether he had been sane at the time of his death and to determine the value of his "Goods and Chattels." This last step was necessary because suicide, or "Self-Murder," was considered to be a crime against the Crown. If the coroner's jury decided that the deceased was Felo de se, or "Felon of himself," that he was "of the Age of Discretion"; that he was "of the Age of Discretion"; that the death had occurred less than a year and a day after the wound had been self-inflicted. If all of these questions were decided in the affirmative, the goods and chattels, but not the land, would be forfeited to the Crown. He was not, however, allowed a Christian burial.⁴

It was always possible, of course, that the victim had met his death by accident, and this possibility brought up the question of a deodand. A deodand was a moveable object, animate or inanimate (a cart, boat, horse) that had been instrumental in the death of a person. Objects fixed to a free-hold, as a waterwheel or a bell, were not considered deodands unless they had become detached. A weapon used to kill in a murder case was also considered to be a deodand. In all cases, the deodand was confiscated, usually sold, 3. and the proceeds turned over to the Receiver-General, to be placed in the "casual revenue" of the colony. Customarily, by English practice, the proceeds of deodands were distributed to the poor.⁵

But, for the sake of narrative, let us consider that the deceased now under examination had been killed by another. It was always required that the coroner's jury literally view the body. Even if it had been necessary to bury the body before the summoning of the jury, the body had to be exhumed to allow the jurors the opportunity of looking upon it. After this had been done, they could then adjourn to some more convenient place. There, witnesses could be sworn and examined. The testimony given here was taken in writing and confirmed by the signature of the witness. If this testimony was considered vital in the examination of the accused by the county justices, the witness was bound by a "Recognizance." This requirement obligated the witness to post bond for his appearance at the examination. After all testimony had been taken, the jury agreed upon a verdict, which was delivered to the coroner by the foreman. The record of the examination was then put into writing and signed by the coroner and every member of the jury. The body could then be interred and the records turned over to the county court. The coroner later 4. collected his fee (133 pounds of tobacco) from the estate of the deceased.⁶

If the coroner's jury had decided that the deceased was a victim of murder, and the person accused of the act had made his escape, the records of their inquisition were then transmitted to the office of the Secretary of the Colony. From this office would be issued a proclamation declaring the fugitive an outlaw. The lands, goods, and chattels of a person outlawed for a felony were forfeit to the Crown, and "his Body at the King's Disposal."⁷

There was the possibility that the felon was already being pursued. Had there been a witness to the crime, and had that person rushed to the nearest constable, that officer had raised Hue and Cry. The Constable did this by requiring every man to take up the chase "by Horn and by Voice." If the fugitive had already left the jurisdiction or precinct of the local officer, the constable was to give notice to the next constable, and he to the next, "'til the Offender is apprehended or pursued to the Sea Side." Sometimes the Governor would issue a proclamation raising Hue and Cry upon a felon and offering a reward for his capture.⁸

There was a similar hare-and-hounds method of pursuing a felon. This was through the use of a Posse Comitatus, or "the force of the county." A county justice of the peace could call out every person in the county, free-men or servants, above the age of fifteen years and able to travel. Only 5. clergymen, the sick, lame, and "impotent persons" were exempt. The justice could designate the number to be called out and the manner in which they were to be armed. It was the duty of the posse to pursue, apprehend, and bring the wanted person or persons before the justice of the peace.⁹

Such strenuous measures were not always necessary. Sometimes only a warrant for the arrest of the accused was needed. This was drawn up by a county justice and executed by the constable or sheriff. An arrest could not be completed by words alone, but the arresting officer had to actually lay hands upon the accused. Doors could be broken down, even without a warrant, should the arresting officer be "refused quiet Admittance." In civil cases, such vigorous action was prohibited, but in the arrest of a felon "all private inconveniences must subside to publick Justice." Actually, any man had the authority to arrest a felon without a warrant, if the party had witnessed a crime committed by the felon. A justice of the peace could also direct a warrant to a private citizen, but under these circumstances the individual would be under no obligations to execute it. Justices and any other peace officers could arrest without warrant for any offences committed in their presence.¹⁰

Felons sometimes escaped to neighboring colonies, primarily Maryland and North Carolina. In 1711 Governor Spotswood registered a complaint that "the 6. Country of North Carolina has long been the common Sanctuary of all our Runaway Servants and of all others that fly from the due execution of the Laws in this and her Majesty's other Plantations."¹¹ In the seventeenth century, extradition from Maryland was sometimes difficult, but this seems to have been eased considerably by the middle of the eighteenth. It also appears that other colonies were equally cooperative in returning criminals to stand trial in Virginia. The only requirement was a request from the Governor of Virginia addressed to the Governor of the colony to which the felon had fled.

PRELIMINARY HEARING

But again, let us assume that these various possibilities had not taken place, and the felon had been placed under arrest before such steps became necessary. The first step after apprehension was the preliminary hearing. The constable had to detain the accused as best he could until he could present him before a justice for this hearing. If there was no gaol in the vicinity, the felon could be locked in the constable's residence, put in irons, bound with ropes, or placed in the stocks.¹³

In the preliminary hearing, the prisoner was brought before a justice of the county court. Although he was not placed under oath, he was allowed to make a statement which was put into writing. He was required to place his signature or mark upon this, especially if it was in the nature of a confession. Witnesses were heard and their depositions taken. If the justice 7. decided that this was a case that required a trial in the General Court, he remanded the prisoner to the county gaol. He then issued a warrant to the sheriff, requiring that officer to summon the county justices to an examining court to be held in the county courthouse. The date of the examination was specified, and it had to be no less than five days nor more than ten days after the date of the warrant. Even if the accused appeared to be innocent to the justice holding the preliminary hearing, the examining court was required.¹⁴

EXAMINING COURT

The examining court or "Called Court" was peculiar to the judicial system of the Colony of Virginia. The prisoner was still not placed under oath, but he was "brought to the barr" to answer the charges against him. First he was questioned by two or more justices.¹⁵ Then witnesses were called, sworn, and questioned by the men on the bench. If their testimony was pertinent to the case, they were placed under a recognizance as surety for their appearance at the General Court or "the next Session of General Jail Delivery of Criminals." The usual bond for witnesses was £10 or £20, but it sometimes ran as high as £40 or £50. The prisoner also had the right to require the sheriff to summon witnesses to testify in his behalf. After all testimony had been heard, and the examining court was of the opinion that the accused should be tried before the General Court in Williamsburg, he was returned to the gaol.¹⁶

On the other hand, if the examining court felt the prisoner was innocent, that was the end of his troubles, for "The Power of Acquittal lodged with the Court is absolute and conclusive."¹⁷ Even if his case was to be tried by the General Court, the accused was not always kept in prison until that body met. But the justices did have to either commit him or admit him to bail. By English common law the crimes of treason, murder, some variations of manslaughter, counterfeiting, and arson were not bailable. Virginia statutes denied bail to blasphemers, defamers of the Governor or his appointees, ministers who violated the laws regulating marriages, free white men or women who married negroes or mulattoes and Roman Catholics who refused to take the oaths to the government and then refused to deliver all arms and ammunition to the nearest justice of the peace as required by law.¹⁸ If a prisoner was eligible for bail, he was allowed twenty days to raise it, and he could not be removed to the public gaol in Williamsburg during that period.¹⁹

If the prisoner was not bailable, he was returned to the county gaol, there to be kept until he could be carried to Williamsburg. Two of the justices (one being of the quorum) prepared a mittimus committing the accused to the care of the gaoler in Williamsburg. He was escorted to the capital by the county sheriff. Any two of the justices could prepare a precept empowering the sheriff to impress (in any county he passed through on the way to Williamsburg) men, horses, or boats necessary for the safe conveyance of his prisoner. Arriving in Williamsburg, the sheriff delivered his charge to the public gaoler and then notified the Clerk of the General Court of the commitment and charge.²⁰

GRAND JURY

There was one more step to be taken before the prisoner could be brought to trial. This was indictment by the Grand Jury. The Grand Jury for the General Court was empannelled by the sheriff of York County and consisted of twenty-four of the men then in town. Although these were "by-standers," it was required that they be freeholders and "of the most capable persons." Another process was required for the courts of oyer and terminer. Because these courts of oyer and terminer were strictly for disposition of criminal cases, the number of freeholders then in Williamsburg was comparatively small. At least six days before the convening of the court, the Clerk of the Court would issue a writ to the sheriffs of York and James City counties. Each sheriff would summon twelve freeholders from his county.²¹ It was necessary that these officials exercise some caution in the selection of the persons to serve as grand jurors. Upon those occasions when it was discovered that a person who was not a freeholder had served on the grand jury, those whom they had indicted were granted a pardon. The sheriff, or under-sheriff, responsible for this mistake was fined.²²

The grand jury, after 1753, met on "Criminal Day," the sixth day after the convening of the General Court. The Grand Jury met the first day of the session during the courts of oyer and terminer. "Criminal Day" was 10. not actually the day of trial for the defendant, but for his arraignment or indictment. After the appointment of a foreman, the jury was sworn.²³ After this the Governor delivered the charge to the Grand jury, outlining their duties and responsibilities. Of the few remaining extant copies of these charges, those by Governor Dinwiddie are perhaps the most picturesque. In October, 1755, he addressed the grand jury with these words:

You are here met and sworn to the discharge of a most necessary and essential Duty and of the greatest Importance y't can be placed in Man agreeable to our happy Constitution. We have reason to dread y't our manifold Crimes and Iniquities have provok'd the Almighty God to punish us with the impend'g Prospect of Famine and the real Invasion of a barbarous and inhumane Enemy who delight in shed'g of Blood and the most unheard of Cruelties. Gent'n, The Laws are the Bulwarks of our most happy Constitut'n, but if those Laws are not put in due and proper Execut'n they become of no Effect, but rather an Encouragem't to the dissolute, profane and abandon'd Part of our People. I am heartily sorry to see so many Criminals now ready for tryal. It's Y'r Duty, Gent'n, with great Care, to Examine into the Facts for which they are committed, and on proper Proofs to find the different Bills and present them to the Court for their Tryal. From Y'r Known Understand'g and Knowledge, I doubt not of Y'r just discharge of the Trust repos'd You, I therefore leave you to Your Examinat's and Enquiries.²⁴

These "Twenty four grave and substantial Men" then considered the bills of indictment as drawn by the Attorney-General. The Attorney-General also presented the case for the King. Witnesses were called and examined. The testimony of one witness was sufficient to find a true bill in all criminal cases except treason. Two witnesses were required for this most heinous of all charges. The grand jury, after examining the bills of indictment, either found a true bill by writing on it Billa vera, or found for the defendant by writing upon his indictment the word, Ignoramus. In the latter case, the accused was discharged, but if a true bill was found against him, he was to stand trial.²⁶

The docket for the court had been prepared earlier by the clerk of the court. Cases were tried in the order that they appeared upon the docket.²⁷

TRIAL

On the sixth day of the General Court and the second day of courts of oyer and terminer, the prisoner was brought to the bar of justice. The flag was hoisted to the top of the capitol flagstaff and the bell was rung to announce that the court was now in session.²⁸ The scanty evidence available 12. indicates that the General Court attracted more spectators to criminal trials than to civil proceedings. Certainly the courtroom was crowded when the docket included such intriguing cases as the trial of a criminal charged with "killing a woman after a new fashion." William Byrd noticed, from his seat on the bench, the "abundance of women in the gallery" when "a man was tried for ravishing a very homely woman."²⁹

The judges, after their attendance at church for spiritual guidance, took their places on the bench beneath Van Dyck's full-length portrait of Queen Anne.³⁰ The court cryer then chanted the traditional proclamation, "O Yes, O Yes, O Yes; silence is commanded in the Court while his Majesties Governor and Councell are sitting, upon paine of imprisonment." After he had gained the attention of the court, the cryer then proclaimed, "All manner of persons that have any thing to doe at this court draw neer and give your attendance and if any one have any plaint to enter or suite to prosecute, lett them come forth and they shall be heard." After this, the first case on the docket was called with the words, "A B come forth and prosecute the action against C D or else thou will be nonsuit." Then with the appearance of the plaintiff, or the Attorney-General in criminal cases, the cryer next called the defendant, "C D, come forth and save the and thy bayles or else thou wilt forfeit thy 13. recognizance."³¹

The prisoner was then brought to the bar and the indictment against him read by the Clerk of the Court. This was the first opportunity of the accused to hear the formal charges against him. He had been kept just as ignorant of the other facts of the case. He had not been allowed to see the panel of jurors called to try him, nor the list of the witnesses summoned to testify, nor to read the depositions taken at the preliminary hearings.³² After the reading of the indictment, the prisoner at the bar was asked how he pleaded, whether guilty or not guilty. It was to the prisoner's advantage to plead and not stand mute. But if he refused to plead and was found to stand "mute by malice," or if the court discovered that he had cut out his own tongue to keep from pleading, the prisoner was considered guilty without further trial. The judge, however, was enjoined to attempt every expedient to persuade him to plead. If the defendant refused to plead, he was sentenced, without further ado to be hanged. This punishment was somewhat better than Piene forte et dure, death by starvation and pressing, which some felt applied to the colonies.³³ It is easy to understand why the extant court records reveal no 14. instance of a prisoner standing mute.

By mid-century the prisoner was permitted advice of counsel if he could afford such services. It seems that criminals sometimes had the advice of counsel as early as 1711, but it was not until 1734 that a statute was placed upon the books which stated "That in all trials for capital offences, the prisoner, upon his petition to the court, shall be allowed counsel."³⁴ There are, however, few instances indicating that a criminal actually employed an attorney. Most of those who were tried for capital offences belonged to the lower economic brackets and could assure no lawyer the payment of his fee. In those rare instances when a counsel for the defendant is mentioned, there was a reasonable doubt as to the guilt of the accused and the attorney apparently felt that he could clear his client and, incidentally, collect his fee.³⁵

A Counsel for the defence was a luxury rather than a necessity, and the trial went on whether or not the prisoner was represented by the legal profession. After the plea of the accused, the next step was the empannelling of the petit jury. The right to trial by jury was felt to be a part of every Englishman's birthright and was considered as "being contemporary with the Foundations of the State, and one of the Pillars of it, both as to Age and Consequence."³⁶ The members of the petit jury were not made up of bystanders as had been the grand jury. When the sheriff had delivered the prisoner to the public gaoler, he had notified the clerk of the Court of that fact. The Clerk then issued a writ to the sheriff, empowering that lawman to empanel twelve 15. freeholders of the county who lived in the "vicinage" of the place where the crime was alleged to have been committed.³⁷

There were certain requirements and qualifications for jury service. First, a juror must be a freeholder with real and personal holdings to the value of £100 current money.³⁸ Any person who was summoned and refused to appear was liable to a fine of 400 pounds of tobacco. If some of the jurors were absent, or were challenged, the sheriff could fill out the requisite number by empannelling the "good and lawful freeholders of the by standers." These could be summoned from any part of, and within a one-half mile radius of, the City of Williamsburg.³⁹ As the boundaries of the Virginia colony expanded westward, the long journey to Williamsburg imposed a hardship upon those summoned as jurors, although they were granted a travel allowance for their trouble.⁴⁰

Before the jury was sworn, the defence had the opportunity to challenge the prospective jurors. The accused was allowed any number of challenges 16. for cause. These included: not owning an estate of sufficient value, conviction for some crime in the past, and "Partiality." This latter embraced such objections as malice, favor, a previously expressed opinion, or kinship with a litigant or one of the court.⁴¹ The prisoner was also allowed to make twenty peremptory challenges. On the other hand, if he challenged peremptorily more than twenty jurors, he was adjudged guilty with no further trial and was sentenced to be hanged.⁴² And prisoners did exercise their right to challenge in the eighteenth-century courts. In 1737, Daniel Handley, indicted for robbery, "excepted against all the Venire but one." In this instance, the challenges were but a futile gesture on Handley's part, for another jury was quickly assembled from the bystanders who just as quickly found him guilty.⁴³ In all cases, those jurors removed from the original panel by a successful challenge of the prisoner were replaced by freeholders from among the bystanders, or of the community.⁴⁴

After the membership of the jury had been agreed upon, a foreman was selected and sworn to the effect that the verdict would be "according to the best of yor cunning." The rest of the jury were then sworn.⁴⁵ Once sworn, a 17. juror was not allowed to leave the courtroom without the permission of the court, and even then the law required that an officer accompany him, "So cautious is the Law to prevent all sinister Practice in the Trial of Causes."⁴⁶

The next phase in the trial of an alleged felon was the presentation of the case by the prosecution. In most criminal cases, the burden of proof rested upon the prosecution.⁴⁷ There were some exceptions, especially in those crimes in which guilt was difficult to detect. This was especially true in those cases involving the murder of illegitimate children by the mother, or the killing of deer out of season. In cases of this nature, the burden of proof was shifted to the defendant.⁴⁸

On the morning of the trial, the witnesses subpoenaed to testify against the accused met with the Attorney-General "to instruct him in forming Indictments against the Criminals." The depositions made by these witnesses at the preliminary hearing were used by the prosecution in the presentation of the case. But this was not sufficient evidence to convict a felon. The witnesses had to appear in person and present oral testimony. A witness who failed to answer when first called forfeited the allowance granted him by law. Only in those cases where the witness had died, or had a legitimate reason for his absence, were the depositions alone admitted as evidence.⁴⁹

Subpoenas had been issued to the witnesses by the clerk of the court 18. on the day the sheriff had delivered his prisoner to the public gaol in Williamsburg. The summons as a witness carried some privileges with it. Writs and processes could not be served on a witness while he was coming, attending, or returning from court. For every mile he travelled, he was paid one and one-half pounds of tobacco. For every day he spent in court, he was allowed sixty pounds of tobacco. Inasmuch as the witnesses were often paid by the government, it was felt that a maximum of three witnesses was enough to prove any case. At least two witnesses were considered necessary to prove any criminal charge.⁵⁰

A wide latitude in age was allowed in qualifying a witness. A person was considered to be "of the Age of Discretion" at fourteen years. A child younger than fourteen was allowed as a witness "if it appear he hath a competent Discretion."⁵¹ On the other hand, there were certain persons disqualified as witnesses. A convicted felon was ineligible unless he had been pardoned or granted benefit of clergy. A wife could not be forced to testify against her husband, or the husband against his wife, unless the charge was treason.⁵² A "Popish Recusant Convict" was denied the privilege of being a 19. witness.⁵³ Negroes, mulattoes, and Indians, free or slave, were not allowed to give evidence except in the trials of other Negroes, mulattoes, or Indians.⁵⁴ After 1748, convicts transported from England to Virginia for some crime in the home country could testify only against other convicts. This step was taken because it was felt they were "commonly of such base and corrupt principles, that their testimony cannot be depended upon."⁵⁵

There were sometimes strange deviations from the norm. A juror, or even a judge, could testify against the accused in open court and in the very case in which they were serving, although there is no evidence that such ever happened. It was not unknown for a confessed felon, upon an implied promise of leniency, to turn King's evidence and testify against his recent compatriots.⁵⁶

The privilege of calling witnesses was not limited to the prosecution. The defendant could require the sheriff to summon witnesses to testify in behalf of the defence.⁵⁷ A witness, before he could take the stand, first had to be sworn.⁵⁸ After this, a witness for the prosecution, or King's witness, could 20. not be cross-examined until he had first given his testimony for the Crown. His evidence, however, had to be given in the presence of the accused. He was not allowed to read his deposition made during the preliminary hearing, but he could use notes "to refresh his Memory."⁵⁹ Hearsay evidence was not valid, although the dying statement of a murdered man could be admitted. On the other hand, there were instances when the accused was convicted on what amounted to circumstantial evidence.⁶⁰

In addition to the questions put to the witness by the prosecution and the judges, the court could "indulge" the prisoner, or his counsel, to question the person testifying. The questions could then be put so as to discredit the testimony of the witness or place a more favorable construction upon it. Testimony could be invalidated if the defence could prove that the witness was lying. Under such circumstances, the counsel for the defence could make a motion to indict the witness for perjury.⁶¹ Another method of discrediting a witness was by proving that there was a variation between his original deposition and his testimony at the trial. One of the rights of the prisoner during a trial was the privilege of requesting a reading of the original deposition.

After the testimony of the witnesses was taken, there seems to have been little else to be done. It seems likely that the prisoner was given an opportunity to make a plea for his life. Certainly the prosecution delivered a summing-up of the case. This concluded, the charge to the jury was made by the presiding officer of the court.⁶³

The jury was then placed in a room "without Meat, Drink, Fire, or Candle, 'til they are agreed of their Verdict." They were allowed to communicate with no one except the sheriff or under-sheriff outside the door of the room, and then only if they had arrived at a verdict. They were prohibited from calling a witness and having him repeat the testimony he had given in court. Should this be done, the verdict was to be set aside and the responsible jurors charged with a misdemeanor. A similar charge was lodged against them if they cast lots in arriving at a verdict. If they ate or drank before they arrived at a decision the jurors were liable to a fine.⁶⁴ Because of the refusal to discharge a jury until it arrived at a verdict, there were very few hung juries in colonial Virginia.

When the jury had arrived at their decision, the sheriff or under-sheriff was notified and they were brought back into the courtroom. The verdict had to be given in open court. The prisoner was brought to the bar, and the jury was commanded to look upon him as the foreman made known their decision. 22. The law demanded that their verdict be legally perfect, although the original indictment could be lessened by the jury. For instance, in a murder case they could find the accused guilty, but they could change the charge to manslaughter, chance-medley, or self-defence. Each verdict had to be signed by the foreman before it was a legal document.⁶⁵

The final step in a criminal trial was the pronouncement of the sentence upon the convicted criminal. It was not done immediately after the trial, but it seems that all criminals convicted during any one session were brought into the court and sentenced the same day, presumably on or near the last day of the session.⁶⁶ The prisoners were brought to the bar of the court and were asked by the presiding judge if they had anything to say. Sometimes they did. In 1751 an old offender by the name of Thomas Seale "made a Petition to the Court, before Sentence was passed, desiring their Honours Clemency; alledging, That tho' a Brother should sin Seventy Times Seven, yet on his Repentance, Christianity obliged us to forgive him." This colorful plea availed him nothing; he was still sentenced to hang.⁶⁷

There were several other pleas a convicted criminal might make before 23. judgement was passed upon him or her. A pregnant female could "plead her belly." Under such circumstances a "jury of matrons" was impaneled to determine if she was "quick with child." If they reported her claim as valid, the verdict was respited until after the birth of her child.⁶⁸

BENEFIT OF CLERGY

Under some specified convictions, the prisoner had recourse to another plea in an effort to escape severe punishment. This was the privilege of claiming benefit of clergy. This hold-over from medieval times could be claimed if the prisoner had not been convicted of wilful murder, rape, treason, arson, horse-stealing, burglary or robbery.⁶⁹ Originally this privilege had been based on the premise of protecting the better-educated English clergy from the vengeance of the temporal courts. Thus, to show himself qualified, the felon had to read a passage from the Bible. If an English passage was followed, the clerk usually turned to the Fifty-first Psalm and the prisoner was ordered to read the opening lines; "Have mercy upon me, 0 God, according to thy loving kindness; according unto the multitude of thy tender mercies blot out my transgressions."⁷⁰ Upon the successful reading of the passage, the prisoner was granted his clergy and became a "clerk convict."⁷¹

In 1732 there had been some changes made in Virginia law width respect to benefit of clergy. Prior to that time, this privilege had been 24. reserved for males only. That year women were allowed to petition for the right. At the same time there was another radical change in the law—the elimination of the reading requirement. Henceforth an eligible felon need only petition and he could receive benefit of clergy "as if he had read as a clerk."⁷²

A person receiving benefit of clergy did not get off scot-free. As soon as he or she was granted the privilege, the public gaoler "in open Court" branded that person on the "Brawn of the left Thumb." If the prisoner had been convicted of a homicide other than wilful murder (manslaughter, self-defence, chance-medley, etc.), he was branded with the letter M. For all other felonies the letter T was customary. Inasmuch as a person was allowed benefit of clergy only one time, the brand served as an identifying mark. The clerk of the court was also required to make a record of the fact.⁷³ In some instances, the criminal was allowed his clergy but received also an additional sentence of imprisonment.⁷⁴ After a person had pleaded and received benefit of clergy, his full citizenship rights were restored.⁷⁵

The application of the branding iron did not always leave a disfiguring or identifying scar. As early as 1739 there is the record of John Oldham, who was convicted of manslaughter but "burnt in the Hand with a cold iron."⁷⁶ By 1774 it seems that this was not an unusual practice, for Richard Starke in his Justice of the Peace commented:

And therefore the burning in the Hand seems to be of little Use, and…can scarcely be called even so much as a slight Punishment, but rather a Piece of absurd Pageantry, tending neither to the Reformation of the Offender, not for Example to others; to wit, burning the Offender in the Hand with an Iron scarcely heated. ⁷⁷

There was still one remaining legal maneuver if the prisoner was convicted of a crime that was not clergyable. An arrest of judgement could be obtained and a new trial could be ordered if it could be shown that there had been a technical error in procedure. There is, however, but little evidence that prisoners often used this maneuver, primarily because they usually pleaded their own case and were unskilled in the niceties of the law.⁷⁸

But if none of these expedients were applicable to the convicted criminal, he stood at the bar of the court while the Governor or presiding officer delivered the sentence. It appears that each sentence was delivered in the form of a previously prepared statement.⁷⁹

Even after he had been sentenced to death, there was still a way out—he might sue for pardon in any one of three procedures. Convicted of homicide by misadventure or in self-defence, he was eligible for a "pardon of course," which could be secured merely from the formality of suing "out his Pardon."⁸⁰

A "pardon of grace" could be granted by the Governor to all convicted felons except traitors and murderers. Since pardon was an executive function, the Governor exercised his power of clemency in consultation with his Council.⁸¹ Usually a petition signed by friends and neighbors of the convicted felon requested careful review of the circumstances of the crime or the trial.⁸² The Council's study of the case constituted a literal review of the evidence because at least some of the Councilors had sat on the case as judges in the General Court or the Court of Oyer and Terminer.⁸³ Sometimes the Councilors themselves requested executive clemency.

Pardons were sometimes granted to felons on a conditional basis. In one case, a pardon was promised a fugitive horse thief if he delivered himself to the General Court.⁸⁴ As late as 1734 it was sometimes the practice to grant a criminal a pardon on the condition that he be transported 27. out of the colony "into some other of his Majesties Plantations for the Term of Seven Years." Two men convicted of stealing slaves and horses in 1772 were granted a pardon with the proviso that they enlist in the crew of one of the ships of His Majesty's Navy.⁸⁵ Occasionally there were extenuating circumstances which precipitated a pardon. Such was the case of one Sharper, "a great runaway and rogue," who received the pardon of the Governor in 1751 in order "to avoid some difficulty as to regularity."⁸⁶

Occasionally a governor might follow British royal precedent and celebrate his arrival in the colony by pardoning the first felon convicted in his term of office.⁸⁷ The convicted pirate, John Vidal, for example, was granted clemency in 1727 to mark the accession of King George II and the arrival of Governor William Gooch.⁸⁸

A pardon of grace, for an offence not clergyable, had to be personally plead by the prisoner. The traditional procedure called for the condemned man to go to the center of the bar in the General Court room, there fall upon his knees and make his plea. The Governor, in the company of his Council, would then consider the merits of the case. If they decided the felon deserved a pardon, the Attorney-General would then prepare the document for the signature of the Governor.⁸⁹

A conviction for wilful murder or treason was something else again. In these cases the Governor could only reprieve until "the King's Pleasure be Known." Such a reprieve was usually granted if the judges, or the Council, decided that the condemned was "a fitt Object of Mercy." When such a recommendation was made, the Governor wrote to the Secretary of State, and later to the Board of Trade, stating the simple facts of the case and requesting that an intercession be made to the King on behalf of the condemned. Upon occasion, it was explained that the court felt that the verdict of the jury had been unjust.⁹⁰ Unusual circumstances also prompted intercession on behalf of the prisoner. Such was the case of Andrew Bourne, an overseer who had killed a slave in a fit of passion, yet had been convicted by the jury of willful murder. In asking a pardon for Bourne, Governor Gooch felt that:

the executing of him for this offence may make the slaves very insolent, and give them occasion to contemn their Masters & overseers, which may be of dangerous Consequences in a Country where the negroes are so numerous and make the most valuable part of the People's Estates.⁹¹

PUNISHMENT

But if a felon had been convicted of a crime that was not clergyable, and the Council "were of the opinion that he was too atrocious an offender to be recommended for a pardon," he had reached the end of his road. The Attorney-General then prepared the death warrant, which the Governor usually 29. signed in the presence of the Council.⁹²

The punishment for a felony was four-fold. The greatest personal loss was, of course, the loss of life. But the felon also suffered "Corruption of Blood, so as he hath neither Ancestor, Heir, nor Posterity." His estate, both goods and lands, was forfeited to the Crown.⁹³

The day of execution was specified in the death warrant, but the law required at least a ten-day interval between the signing of the warrant and the day he was to be hanged. After the Governor had placed his signature on the death warrant, the only recourse left to the condemned men was his own ingenuity. John Sparks, sentenced to death in 1752, adopted desperate and novel measures to insure his own "gaol delivery." As were all prisoners under sentence of death, he was heavily ironed and watched by a special guard which had been impressed to provide maximum security. Nevertheless, this bold fellow somehow managed to saw his irons. The next time the gaoler opened the door to the cell, Sparks hit him in the head with a bottle and made his escape. This daring escapade availed him little; in fact, it hastened his death. He was apprehended on a Thursday and, to prevent a recurrence of his escape, was hanged on Friday.⁹⁴

The condemned criminal, assuming the gaoler was able to keep him in confinement, was prepared both spiritually and physically for the day of his death. He was frequently visited in the prison by the Chaplain and supposedly was ready to meet his Maker on the day of his death. No doubt this spiritual preparation was aided somewhat in 1772 when Peter Pelham, not only gaoler but organist at Bruton Parish Church, was ordered to carry all condemned prisoners to church every Sunday. To make certain the criminal appeared in the best of health on the day he was to die, a doctor was called in whenever the prisoner showed signs of indisposition.⁹⁵

Inclement weather was no bar to the execution, not even rainy, cloudy, foggy, or just plain "drisly" days. Around noon on the day specified in the death warrant, the prisoner was taken from the gaol. He was then placed on a cart, or a sledge, and, attended by a clergyman, was drawn to "the public gallows, near this city." Awaiting him there was the sheriff, acting as the public hangman. The cart was placed beneath the gallows. The condemned person was then allowed to say some last words. Many seemed "penitent," and with a "Composure of Mind." Others took this opportunity to confess their crimes, as did Jonathan Faithful in 1740, who then "declared he was in Charity with all Mankind, and desir'd others to take Warning by his unhappy Example."⁹⁶ Equally eloquent were the last remarks of colonial Virginia's most famous counterfeiter, Lowe Jackson, who: 31.

addressed himself to the Spectators, in a very moving and pathetic Speech on the fatal Consequences attending an early Habit of Vice, which had been the Means of bringing him to that shameful and untimely End. He appeared with a Composure of Mind, not frequently attending Men in his unhappy Circumstances, and died in a very penitent Manner.⁹⁷

After having had his last say the condemned man, the noose around his neck, was "turn'd off" the cart. This did not necessarily bring immediate death. For instance, there was Anthony Francis Dittond, the confessed murderer of Mr. Evans the coachmaker. Dittond was a "lusty Man," and didn't take to dying too readily. After some two or three minutes of swinging at the end of the rope, he was still struggling. The executioner then grasped his legs and bore down to strangle him "and put him out of his Pain the sooner." Under the combined weight of the dying man and his executioner, the rope broke. Dittond fell senseless to the ground. After a short period of lying motionless, he sat up and began to speak again to the attending minister and the spectators, begging them "heartily to pray for him." Then this bold character climbed back, unassisted, into the cart. The rope held the second time.⁹⁸

Once the condemned person was dead, his body was usually taken down and placed in a coffin. It then could be claimed by friends or relatives. In the case of Dittond, reported by the editor of the Virginia Gazette, the body was "to be anatomized by the Surgeons."⁹⁹ Although Lowe Jackson's crime of counterfeiting was considered treason (which called for his body to be quartered after hanging), his body was placed in a coffin bearing the inscription 32. "Mercy triumph over Justice." His friends were allowed to claim the corpse and inter it in his native county.¹⁰⁰

Hangings were by no means limited to the male sex. Women condemned for felonies also departed this life hanging from a noose "at the Gallows near this City."¹⁰¹ Nor was there a color line, for Caesar Valentine, a free Negro, was executed upon the local gallows in 1759.¹⁰² Sometimes the spectators who flocked to view these gruesome spectacles were well repaid for their time and effort. Sometimes as many as three, four, or even five, criminals were executed the same day. The high mark was reached on November 23, 1739. On that day seven "Malefactors," including one woman, were "turn'd off."¹⁰³

Death did not always bring an end to the punishment, for the body of the dead criminal was not always allowed to rest in peace. In 1710 Salvadore, an Indian, and Scipio, a Negro slave, were found guilty of high treason by the General Court. It was ordered by the Council that they be taken to Gloucester and New Kent Counties for execution. After they had been hanged, the bodies of the two criminals were to be decapitated, and then quartered. The heads and quarters were then distributed and displayed "in the most publick place" in various counties throughout the colony as a deterrent to others 33. to commit similar acts of treason.¹⁰⁴

A similar case involved four of Blackbeard's pirates. Because these "profligate Wretches…[had] behaved w'th the greatest impudence at the Bar" and were bold enough to have later "vented their imprications on their Judges and all concerned in their prosecution, and vow'd if they were at liberty they would spare none alive that should fall into their hands," Governor Spotswood felt that a punishment of the most severe nature was justified. Therefore, "for the greater Terrour," two were condemned to be hung in Chains at Tindall's Point on the York River, while two others were to suffer a similar fate at Urbanna on the Rappahannock.¹⁰⁵

Even after death there were ramifications to the case. The costs of the prosecution which had brought about his death had to be paid by the condemned man inasmuch as they were levied against his estate. If he was possessed of no property, the costs were assumed by the public.¹⁰⁶ But these costs were the last assessment against the criminal. Henceforth, he became but a name in the court records, an inscription on a tombstone, or but a fleeting memory in the minds of men.

Because of the severity of colonial laws—nearly every felony carried 34. the death penalty—a spot newspaper check was made in an effort to establish a pattern of Virginia justice. In forty-seven court sessions selected at random between 1737 and 1772, a total of 324 persons accused of felonies were brought to trial. Over one-half of this number were either acquitted or allowed benefit of clergy. Five received the pardon of the Governor in court, while thirty-four were sentenced to imprisonment or some other punishment short of death. A little over one-third, or 125, received the death penalty, but at least one-fourth of these probably received the pardon of the Governor.¹⁰⁷

Crime seldom paid in colonial Virginia, although justice in the highest courts was sometimes administered in an amateurish manner. Yet, on the other hand, it was tempered with mercy. And perhaps it was after contrasting the criminals of England with those of the colony that Governor Spotswood observed in 1710:

[I] declare sincerely to Yo'r Lord'p that I have observed here less swearing and Prophaneness, less Drunkeness and Debauchery, less uncharitable feuds and animositys, and less Knaverys and Villanys than in any part of the world where my Lot has been, and whether the natural Cause of this blessing be the people's living under less worldly Temptations, or being more obedient to their Spiritual Pastours, or that they are more dexterous in concealing from me their Vices, I will not as yet pretend to decide, but resolved I am, whether this be the real or my imaginary State of Virginia, that such a one shall be sincerely encouraged here so long as her Majesty shall think me worthy of serving in this Station…¹⁰⁸

By contrast with modern criminal procedure, much criticism may be levied against the practices of eighteenth-century Virginia; yet these practices provided the foundations for the courts of today. And whatever the criticisms, it was justice in their time.

ARSON

Among the most dreaded of the unexpected dangers ever-present in eighteenth-century Virginia was the sound of the fire bell in the night.

Arson of dwelling houses, because of the factor of personal danger to the inhabitants, was considered a particularly odious crime under English common law. The Assembly of Virginia adopted a like attitude. In 1730 they passed into statute the provision that any person who "maliciously, unlawfully, and willingly" engaged in arson would be guilty of felony, without benefit of clergy.¹

There was also economic arson. The price of tobacco was the economic barometer of colonial Virginia. When that price decreased, there were those who attempted to increase the demand, and thereby increase the price, by destroying the supply. In 1684 the plant-cutting episodes had led to the passage of a law that any group of eight or more persons, who willfully applied the torch 2. to any building in which there was stored tobacco, could "be deemed, declared and adjudged to be traytors, and suffer paines of death, and alsoe loose and forfeite as in cases of high treason."² In 1712, after the counties had been empowered to construct public tobacco warehouses and fix the rates of storage, there seem to have been a number of veiled threats to burn these structures. Perhaps it was these threats that prompted the law of 1714 "to prevent the malitious burning or Destroying the Public Store houses of Tobacco Agents."³ Under this statute the burning of warehouses was made a felony, but the law did not take away benefit of clergy. The very next year "the peoples' inclinations…[were] so great against the Tobacco law" that they burned a warehouse in Essex County.⁴

Despite the deterrent of felony charges facing a warehouse-burner, these storage sheds continued to go up in flames at almost regular intervals. The torch was not always applied with the idea of stabilizing the price of tobacco. In some instances, the burning of a warehouse concealed a robbery, and it was not unknown that the keeper of a public warehouse burned it to conceal evidence of his own maladministration.⁵

It was possibly because of the ineffectual application of the law of 1714 that the statute against burning warehouses was revised in 1730. In his address to the Assembly in May of that year, Governor Gooch declared:

It will also be worthy of your Consideration to inflict adequate punishments on such offenders as are guilty of the Felonious burning 3. of Tobacco houses, and on robbers of stores and ware-houses, practices now become very frequent and I am afraid too much encouraged by the allowing of the benefit of Clergy to such Criminals; especially since so many Imported Convicts are come among us who make light of the punishment the Law in that case inflicts.⁶

This request found approval with the Assembly, and the law passed that session provided the death penalty, without benefit of clergy, for any person, or accessory, burning a tobacco-house, any building containing grain, "or any other houses whatsoever."⁷

Even with the addition of this most severe penalty, the hoped-for deterrent was not realized. Within two years after the passage of this statute, warehouses in Northumberland, Lancaster, and King George Counties were set aflame "by Some malicious & evil dispos'd persons as yet unknown…" The guilty persons apparently remained at large despite a reward of £100 offered by the Governor.⁸ So prevalent was this rash of arson, that Gooch, with the advice of his Council, suggested that special guards be employed for the warehouses.⁹

Slaves sometimes set fire to tobacco houses of their owners as a means of gaining revenge upon their masters. In 1730, after Justice of the Peace William Harrison had pronounced sentence upon several Negroes for unla1wful assembly, they evened the score by firing his private tobacco house.¹⁰

Almost any fire that occurred in the eighteenth century was suspected of being started by an arsonist. In 1705 the fire at the College of William 4. and Mary was thoroughly investigated with a view of establishing that premise. And when the Capitol burned in 1747, there was the prevalent suspicion that "it was designedly, wickedly and maliciously contrived & perpetrated…" In a like manner, when the county court house of Southampton burned in 1767, it was felt that it had been the work of an incendiary, and a reward was offered for information leading to his apprehension.¹²

Gaols were also public buildings subject to the torch of the arsonist. In 1751 Nicholas Derin, from Amelia, was sentenced to death "for burning the Prison."¹³ Only the vigilance of the public watchman prevented the Public Gaol in Williamsburg from suffering a like fate in 1772. A "Negro Fellow" confined in the jail made his escape by burning a hole in the floor of his cell. Had the flames not been discovered by the watch, the entire building might well have been consumed.¹⁴

Even churches were not so sacrosanct that they escaped the arsonist's torch. A reward of £100 was offered in 1732 for information leading to the conviction of "some wickid and Evil Disposed Persons" who burned St. Mark's Church in Spotsylvania County.¹⁵

Robbery was sometimes the motivation for arson. Stores were burned after being burglarized, as were other buildings, in an effort to hide the evidence of the first crime.¹⁶ In 1768, when the post office operated by 5. Purdie and Dixon was robbed, an attempt was made to fire the building by dumping a shovel of hot coals on a bed.¹⁷

The burning of dwelling houses remained the greatest, and almost continuing fear, in the minds of the people. As early as 1705, anyone who allowed brush fires to get from under control to such an extent that the property of others was damaged, was liable to a fine and could be assessed double the amount of damages caused by the flames.¹⁸ This was, of course, accidental arson.

Premeditated arson was something else again. And the arsonists were seldom caught. The extant issues of the Virginia Gazette list only one occasion when an arsonist was convicted.¹⁹ This was one of the few times when crime did pay, for there was a regular wave of house burnings between 1768 and 1771, and this was the only conviction. Some of these arson cases were serious enough to prompt the Governor to issue a proclamation offering a reward for the apprehension of the guilty parties.²⁰

Slaves who engaged in the not so gentle art of arson were not so adept as their white counterparts. They were frequently caught, tried by the county courts of oyer and terminer, and executed. One of these slaves, who burned the "manor house" of Thomas Emerson of Caroline County in 1739, suffered a particularly grisly fate. After he was hanged, the court ordered his head cut off and set up on a pole in some public place.²¹

The winter of 1728-1729 was a period in which there was "a great deal of mischief done by Fire…" Robert ("King") Carter's "fine House" at Corotoman burned, "by what accident they can't tell," and with the loss of all his furniture and a wine cellar valued at £500. But the fire that caught the interest of the colony was that which destroyed "Mount Pleasant," the home of Thomas Lee in Westmoreland County.²² The night of Wednesday, January 29, 1728, was cold and the fire was raging by the time it was discovered. Lee just had time to either toss or push his pregnant wife, three small children, and eight servants—all of them still in their night clothes—out of the window before the roof collapsed. A young white girl of twelve years of age perished in the flames. All evidence made this a clear case of arson. A search of the ashes revealed not a trace of the large amount of money or silver plate that had been in the house. It was felt that the fire had been set by the crew of a convict ship and had been done in the spirit of revenge. Previously, Lee had issued a warrant to the mate of the ship allowing him to punish several of the crew. Governor Gooch immediately offered £50 for the apprehension of the guilty person or persons, but it was generally felt that they had escaped to another colony. With a bounty granted by the King, Lee was able to construct another dwelling, Stratford Hall.²³

Arson, although it was greatly feared and often suspected, was seldom proven and punished. When fitted into the general pattern of crime in colonial Virginia, it occurred infrequently.

BASTARDY

The punishment of women who bore illegitimate children did not fall within the province of the General Court—that was for the county courts to decide. It was only when the mothers of such offspring murdered the children "to avoid the shame" that the case fell within the jurisdiction of the higher court.

Because of the circumstances involved in the death of bastard children, this was one of the few capital crimes tried before the General Court in which the burden of the proof rested with the defendant. It was up to the mother to prove, by the testi1nony of at least one witness, that the child had been born dead, and that there had been no criminal intent in her failure to notify the proper authorities of its death.²⁴

Although a large number of women received the death sentence for concealing the death of their illegitimate children, there were also numerous occasions which saw the accused woman acquitted by the jury.²⁵ Also there seems to have been a tendency on the part of the Governor and his Council to look with some compassion upon unwed females accused of that crime. In one such case, Ann Tandy of Bruton Parish was presented by the York County Court as an accessory in the death of her illegitimate son. Her conviction in the General Court, however, was changed to "Concealing ye Death of her Bastard Child." She later received a pardon from "His Excellency in Council."²⁶

A few years later a controversy with respect to the jurisdiction of the General Court arose out of a case in which an unnamed woman was being 8. tried for this crime. It was moved in court, perhaps by her counsel, that the Act of Parliament providing the death penalty for this crime did not apply to the colonies. The motion was based on a technicality. Inasmuch as the act had been passed in 1624, after the settlement of Virginia, and whereas Virginia had not been specifically named in this act, it was argued that the provisions of the act did not extend to the colony. The court then called for "the concurrent opinion of the ablest lawyers here," who were in agreement that the act was not applicable to Virginia. As a result of this opinion, the defendant was acquitted. But "lest the judgement should give encouragement to such wickid practices," the General Assembly hastily passed "An Act to prevent the destroying and murdering Bastard Children," which was couched "in the very terms of the Act of Parliament with some small variations adapting it to the circumstances of this country."²⁷ It was essential that such a law be in force. Any indentured female servant who bore an illegitimate child became liable for an additional year of servitude to her master. To circumvent this extra service the servant would quite often destroy the child or conceal the birth of a still-born infant.²⁸

Within three years of the above controversy, the Governor and his Council became embroiled in another interpretation of the law with respect to this same crime. This time it was whether the Governor had the right to pardon mothers convicted of murdering their bastard children, or whether the correct procedure called for an appeal to the Crown. This question arose out of the case of Jane Ham of Prince William County, who was convicted in the April, 1713 session of the General Court for concealing the death of her 9. bastard child. During the course of the trial, the evidence seemed to indicate that Jane Ham had done no violence to her child, and that she had concealed its death through ignorance more than anything else. Governor Spotswood, cautious in his interpretation of the law, protested that he could not issue a pardon in the case of wilful murder. The Council then suggested that he reprieve the condemned woman and appeal to the Queen for pardon.²⁹

Spotswood dispatched a letter to Lord Dartmouth, representing the facts of the case and requesting that a pardon he asked of Her Majesty, the Queen. There was no answer. He wrote again, and yet another time. Jane Ham had spent a total of fifteen months in prison when the Governor wrote his fourth and last letter in her behalf. He carefully explained that although the statute covering the concealment of the death of bastard children should have been read in all the churches, he had discovered it had not been so published in Jane Ham's parish church. Her only crime as shown by the evidence, he argued, was not in murdering her child, but merely in concealing its death. Ignorance and the fear that she would be required to serve her master an additional year were her only crimes.³⁰

Once again there was no answer from England. In the meantime, Queen Anne had died, and apparently the Council of Virginia felt that with a new monarch now on the throne, any additional letters with respect to Jane Ham would be lost in the shuffle. Their advice to the Governor now was that "tho' the punishment for concealing the death of a Bastard Child is by Law declared to be the same as that of wilful murder, the crime is very different & especially since upon her tryal it did not appear that she had any ways occasioned the death 10. of her Child," and they suggested that the Governor pardon her. This he did.³¹

Concealment of the death of an infant born in wedlock also fell under the statute applicable to the death of bastards. One such case involved Sarah Williamson, a married Indian woman which was tried before the court in 1728. Gooch was particularly impressed with "her Christian behaviour during the time of her trial and imprisonment, her resignation under her sentence, her willingness to die, and at the same time her constancy in denying the fact" and became convinced that she was not guilty. Her only crime, he asserted, was her ignorance in burying the child without informing the proper authorities. His eloquent plea to the Crown on the behalf of this poor Indian woman was successful, although two years were to pass before the pardon was finally received from overseas.³²

Because of the large number of indentured and convict servants in colonial Virginia, and because the morals of these servants did not always follow conventional lines, bastardy was fairly common in the seventeenth century, when indentured servants were more numerous than slaves. The problem was primarily economic, and county courts punished the parents and arranged for the support of the child. It was only after the murder of the child that the case reached the General Court.

BLASPHEMY

This crime was committed when:

any person or persons brought up in the christian religion shall by writeing printing, teaching or advisedly speakeing, deny the being of a God or the holy Trinity or shall assert or maintaine there are more Gods than one or shall deny the christian religion to be true, or the holy scriptures of Old and New 11. Testament to be of divine authority…³³

After his first conviction, a blasphemer was denied the right to hold any position, ecclesiastical, civil, or military. A second conviction stripped him of all citizenship rights. If, however, he recanted his blasphemous statements within six months after his conviction, and in the same court in which he was convicted, all disabilities were removed.

From the available court records, it seems that this statute against blasphemy was seldom exercised in the General Court during the eighteenth century. Indeed, in 1730 in the preamble of an act "for the effectual suppression of Vice" it was stated that the former law "hath not been duly put into execution, according to the intent and design thereof; whereby divers wicked and dissolute persons have been encouraged to commit the crimes therein mentioned…"³⁵

The only semblance of a trial for blasphemy occurred in 1754, when one William Sherring was sentenced to die for "sacrilege," which certainly falls within these limits. Although the law specified trials in the General Court for blasphemous offences, most ecclesiastical causes of a serious nature seem to have been examined by the Governor in Council. Most charges involving religion were not so much concerned with blasphemous utterances as with complaints made by the vestries of the immoralities of their ministers.³⁶ Two near-blasphemous charges were recorded in 1734 and 1752. One of these was made against 12. the Reverend Mr. Staige of York County in 1734 for refusing to christen bastard children and for opposing the singing of the "new version of Psalmes." Eighteen years later the Reverend Alexander Creaghead of Augusta was brought before the Governor and Council for preaching and publishing "pernicious Doctrines." No real punishment was noted in either case, with Mr. Staige promising to behave himself in the future, and the Reverend Mr. Creaghead "taking the oaths to Government openly in the General Court."³⁷

A general charge against the blasphemous spirit of the times was made by the Council in an address to Governor Gooch in 1747. This was shortly after the burning of the capitol, which they blamed on past sins and

a Spirit of Enthusiasm introduced among the People by Itinerant Preachers; a Spirit, more dangerous to the common Welfare, than the furious Element, which laid the Royal Edifice in Ashes; a Spirit, productive not only of Confusion, but of Blasphemy, Profaness, and the most wicked & destructive Doctrines and Practices…³⁸

On the whole, blasphemy seems to have been of much greater concern in the seventeenth century than in the eighteenth. In those rare instances when it did occur, the case was concluded in the county courts. And it must be remembered that most of the populace of the colony considered themselves to be good Anglicans, although there were dissenters practicing their faiths in the colony. It was probably because of the existence of fairly stringent legal restrictions that these dissenters did not openly "continue their impious 13. and abominable practices and avow their horrid and Atheisticall principles greatly tending to the dishonour of Almighty God."³⁹

BIGAMY

Bigamy was one of those crimes that was never a great problem for colonial Virginians. The only statute listed in the laws was dated 1658, and it merely stated that the same laws against bigamy then prevalent in England with respect to bigamy would "be put in execution in this countrie."⁴⁰

Although bigamy was classified as a felony, it was still not too horrendous a crime, for it was one of those misadventures for which benefit of clergy was allowed. There were also several exceptions to the general conception of bigamy under which a man might remarry, though his first wife was still living. Restrictions upon taking a second mate did not apply to a person whose husband or wife had been "beyond the Seas" for a period of seven years or longer, and it was unknown whether or not the former husband or wife was still living. Marriages dissolved by the ecclesiastical courts were also considered to be null and void, and the participants were not subject to penalty upon remarrying. In like manner, in a marriage when either one or both participants were below the age of consent—fourteen years for a man; twelve for a woman—the contract could be terminated by agreement any time before the age of consent was reached, and both parties were free to remarry.⁴¹

On the whole, the colonial Virginian seemed to feel that one wife was enough at any one time. The eighteenth-century records contain evidence 14. of only two men, and no women, standing trial in the General Court for bigamy. In both of these cases the defendants, John Burgard of Caroline County and Stephen Hutchins of Norfolk, were acquitted.⁴²

BURGLARY

William Byrd of Westover, a judge in the General Court, was himself guilty of perjury of sorts when he wrote in 1726:

we sit securely under our Vines and Fig Trees without any Danger to our Property. We have neither publick Robbers or private, which Your Ldsp will think very strange, when we have often needy Governors, and pilfering Convicts sent amongst us… Then we have no such Trades carried on amongst us, as that of Horsebreakers [House-breakers?] Highway-men, or Beggars. We can rest securely in our Beds with all our Doors and Windows open, and yet find every thing exactly in place the next Morning. We can travel all over the Country by Night and by Day, unguarded and unarmed, and never meet with any Person so rude as to bid us Stand.⁴³

The crime of taking something from another without his consent can fall under many classifications: burglary, robbery, larceny, picking pockets, hog-stealing, horse-stealing, Negro-stealing. Each of these subdivisions of crime will be, for the sake of convenience, discussed under separate subheadings.