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New Light on the Chancery Side of Virginia's Evolution to Statehood

Published online by Cambridge University Press:  16 January 2009

Marvin K. Singleton
Marvin K. Singleton
Affiliation:
Manitoba University
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Extract

The assertion that ‘Equity in the early American colonies is a subject that still awaits complete research’ is more true of some colonies than of others. Because of marked differences in founding and internal growth, the colony-by-colony approach has been conceded to be appropriate; but this piecemeal approach has resulted in the overwriting of Massachusetts's meagre and testy involvement with the chancery style of justice, while Virginia's much richer involvement has received too little treatment.

Type
Research Article
Information
Journal of American Studies , Volume 2 , Issue 2 , October 1968 , pp. 149 - 160
Copyright
Copyright © Cambridge University Press 1968

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References

page 149 note 1 Quotation from Glenn, G. and Redden, K., ‘Equity: a visit to the Founding Fathers’, Virginia Law Review, 31 (1945), 753–83, 753 n.13CrossRefGoogle Scholar. Support for the colony-by-colony approach is widespread (as in Haskins, G., ‘Court records and history’, William and Mary Quarterly, 5, 3rd series (10 1948), 547–52, 547CrossRefGoogle Scholar). (The law reviews abound in essays on Massachusetts's experience with chancery, and two recent discussions appear in Billias, G., Selected Essays in Colonial America (Barre, Mass., 1965)Google Scholar (the sole essay dealing with Virginia omits the chancery dimension altogether), and in the careful notes published with the Legal Papers of John Adams, ed. Wroth, L. and Zobel, H., 3 vols. (Cambridge, Mass., 1965), vol. i, introduction, pp. xxxi–xciv, 44 n.39, 231 n.1, and passim.)Google Scholar The fullest account of the Virginia courts of this era is Bruce, P. A., Institutional History of Virginia in the Seventeenth Century, 2 vols. (New York, 1910), vol. iGoogle Scholar, but this earnest account makes remarkable claims for the maturity and urbanity of the Virginia judicial system ab initio (i.e. the lofty punctilio of the courts [as on p. 508]; the claim that ‘at every period during the seventeenth century, the justices … had sufficient knowledge of law to conduct the business of the courts according to the recognized English precedents’ [p. 554]; ‘the different pleadings used in England’ in both common law and chancery divisions ‘were strictly adhered to in the Colony’ [ibid.], and similar claims, are misleading). The account by S. Wilson (‘Courts of Chancery in the American Colonies’, reptd. Select Essays in Anglo-American Legal History, ed. Freund, Ernst et al. , 3 vols. [Boston, 1908]Google Scholar) is little more than onepageof inaccuracies. I wish to thank Professor Thomas Barnes of the University of California at Berkeley for sponsoring and reading this paper.

page 150 note 1 In Massachusetts and Pennsylvania, equitable concepts were utilized by the bench in ‘chancering’ forfeitures and in loosening up interpretation of the positive laws to avoid injustice. Much of this equity—and the legislative ‘equity’ which compensated for chancery jurisdiction's being generally absent in Massachusetts—‘was that of the layman, a sort of natural justice’ (Gardner, J., ‘Anachronism of modern equity—Discretion of the chancellor in the use of a jury’, Mercer Law Review, 8 (1957), 225–51, 226Google Scholar). Even colonies harbouring no ideological suspicion of chancery were well behind Virginia in their efforts to structure an institutionalized conscience (see McCain, P., The County Court in North Carolina before 1750 (Durham, N. C., 1954), p. 146Google Scholar; Records of the Court of Chancery of South Carolina, 1671–1779, ed. Gregorie, A. (Washington, D.C., 1950)Google Scholar, J. Frierson, introduction, pp. 20–54, 29).

page 150 note 2 Reservations about the assorted English and American ‘mergers’ have been expressed, but as yet no colloquy between proponents and critics of merger has opened up. When cultural, legal, and other forms of scholarship have severally enlarged our knowledge of what Equitable analysis achieved within and without the judicial process, some informed estimate as to whatever happened to Equity can be made. In the meantime any effort to formulate a jurisprudence susceptible to some degree of intellectual analysis will represent simply the shabby eclecticism of the common lawyers. Harvard College in the 1870s dignified Massachusetts's ancient Puritan suspicion of Star Chamber Equity: the acceptance of this in the provinces of the U.S. and the Grant-era anti-intellectual positivism has led some of the better American law schools in anti-Equity and anti-historical directions. I have elsewhere suggested the enormous cultural importance (to William Faulkner, among others) of Virginia's relatively civilized affinity for at least some natural law and equity, but Maitland's dictum (‘equity saved the common law’) remains an enigma to many.

page 151 note 1 Information from The Records of the Virginia Company of London, ed. Kingsbury, S., 3 vols. (Washington, D.C., 1906), vol. i, introduction, pp. 11–115, 29 ffGoogle Scholar.; Bruce, , Institutional History, vol. i, p. 463Google Scholar; Wertenbaker, T., The Planters of Colonial Virginia, rptd. The Shaping of Colonial Virginia (New York, 1958), p. 34Google Scholar; Wertenbaker, , Virginia Under the Stuarts, 1607–1688 (Princeton, 1914), pp. 22–4Google Scholar; Scott, A., Criminal Law in Colonial Virginia (Chicago, 1930), pp. 8–11Google Scholar.

page 151 note 2 Records, vol. 1, ‘The Court Book’, pp. 211–636, 222, 226, 228, 230, 284, 389 (‘Marshall Lawe’ appeal); 223, 230, 233, 254, 260, 380, and passim (‘Chauncery petions’).

page 152 note 1 Barton, R., introduction, Virginia Colonial Decisions, vol. i, The Reports by Sir John Randolph and by Edward Barradall …, pp. 1–250, 197Google Scholar. Barton claims that the county courts from their origin in the 1623–4 Assembly had jurisdiction to hear civil cases, ‘both at law and in equity’ (pp. 197–8). The statement as to similitude between court personnel requires modification. Reinsch, P., English Common Law in the Early American Colonies (Madison, 1899), p. 46Google Scholar, in noting that usually on the bench of the county court were several justices, claimed great uniqueness in this: ‘The … number of the members of the court is of itself a reversion to the very archaic type of Doomsmen of the Anglo-Saxon courts, who there declared the custom and fixed the mode of trial.’ The presence of several justices is, however, better explained with reference to contemporaneous English practice (see Osborne, B., Justices of the Peace, 1361–1848 [Shaftesbury, Dorset, 1960], pp. 29–33Google Scholar). After the first wave of Virginia planters died and their progeny were commissioned, the American justices' inferiority in education, when compared with their English counterparts, becomes marked (Osborne, , Justices, p. 86Google Scholar).

page 152 note 2 Some Assembly reactions are in Statutes at Large …, ed. Hening, W., 13 vols. (New York, et al., 1819–1823), vol. iGoogle Scholar, March 1658 (the Governor and Council ask Assembly advice ‘in causa Elizab: Perry vs. Thomas Davies, After Long suite judgment given, execution served, A new suite is again renewed by Davis in chancery, And then Davis appealing to the Assembly whether his appeal must be allowed, hee neither charging the court with error, injustice or partiality’), p. 515; in the same month a bill was passed to prevent the too frequent granting of supersedeas, p. 522; and ‘Whereas Richard Bushrod exhibiting a petition against Thomas Brereton about a parcell of land in Potomack River, which land the said Bushrod pretends the said Brereton surreptitiously procured order to pattent, this petition extrajudicially brought into the Assembly’, p. 545; and ‘The widow Hudson extrajudicially bringing into the Assembly a petition against Collonel William Clayborne is referred to take her course at the comon lawe’, p. 549. An Assembly act of November 1645 asserts an equitable defence until the justices find ‘noe such cause of reliefe in equitie as was pretended’ and provides how to start an equity suit, take depositions, and so forth. Bruce, (Institutional History, vol. i, p. 555)Google Scholar discovered an English-style equity bill dated 1641 in the Lower Norfolk County archives. Unfortunately, research into county archives is made lopsided by the burning in Richmond in 1865 of most of the representative county archives. The best kept records are from the eastern shore county of Accomack. It is from these records that Bruce bases his judgement that Equity proceedings date from the 1630s, but the statute book shows how isolate and freakish was the eastern shore locale (see e.g. Hening, vol. 1, pp. 362, 397 and passim; Ames, S., ‘Law in action: the court records of Virginia's eastern shore’, William and Mary Quarterly, 4, third series (04 1947), 177–91)CrossRefGoogle Scholar. Bruce puts great weight on the use across the Bay of the terms ‘suit’ (instead of ‘action’), ‘answer’ (instead of ‘plea’), ‘petition’ (instead of ‘declaration’); and many of the cases look as if a very summary ‘fire-side’ equity was being dispensed. But Professor Philbrick, F., ‘Prefatory Note’, County Court Records of Accomack—Northampton, Virginia 1632–1640, ed. Ames, S. (Washington, D.C., 1954)Google Scholar, although admitting the idiom of the cases suggests to a modern lawyer chancery usage, considers that the explanation lies in the ‘customary’ usage connected with the body of ‘customary’ law apparently being applied. This may explain the use of such terms as ‘suit’, but more troublesome is the frequent talk of ‘depositions’, ‘deponents’, and ‘interrogatories’—more pointedly chancery language.

page 153 note 1 Hening, vol. ii (March 1661), p. 59, shows the great interest of the legislature in ‘those hugely materiall though in themselves little things of forme’. Laid down were rules ensuring decorum and gravity in court proceedings. This concern for delicacy, however, did not extend to provisions for the jury, which was to be kept shut away in its room without meat, drink, ‘or other reliefe’ until it brought in its verdict. The ‘Act for Law Books’ called for Dalton's Justice of the Peace, and office of Sheriffe; Swinburne's Book of Wills and Testaments; and a collection of the statutes of England (Hening, vol. ii, p. 246). Bruce, (Institutional History, vol. i, p. 556)Google Scholar cites the 1666 ordering of the books as a clue that ‘the justices did not rely entirely on their sense of natural equity to guide them in reaching a right conclusion’.

page 154 note 1 ‘Commission’ printed in Calendar of Virginia State Papers and other Manuscripts, 1652–1781, ed. Palmer, W. (Richmond, 1875), pp. 14–16Google Scholar. The best account of Howard's stormy fights with the Assembly (Howard, among other things, abolished the judicial functions of the Assembly in an already rather centralist context [i.e. justices of the peace in Virginia, unlike the other colonies, were never elected by the people]) and his role in imperial consolidation is Wertenbaker, , The Planters, pp. 240–59Google Scholar. Cf. The History and Present State of Virginia, ed. Wright, Louis B. (Chapel Hill, N.C., 1947), pp. 91, 97, 255Google Scholar.

page 154 note 2 An interesting and relatively elaborate case is given in Calendar, pp. 42–3 (1693); but for proof of the greater intricacy across the Atlantic in chancery, see Mr D. E. C. Yale's excellent editions for the Selden Society of Lord Nottingham's Cases, passim.

page 154 note 3 Surrency, E., ‘Documents: report on court procedures in the colonies–1700’, American Journal of Legal History, 9 (1965)Google Scholar, ‘Virginia’, pp. 234–46, ‘Report on court procedures…’, pp. 69–72. (Professor Surrency's conclusion rests largely on the elaborateness of the Virginia reports and the references therein to local statutes and rules of court (p. 71). But it is also true that this detail would have been a function of Governor Nicholson's zeal in the matter, and some of the local material must have been originally cut from the English pattern.)

page 154 note 4 ‘Mr Attorney Generall according to Order of Councill of the tenth day of December last presented the Draught of an Oath by him prepared to be taken by the Member's of the Councill as Judges of the Generall Court, pursuant to His Majts Royall Instruccons, which Oath consisting in Severall parts and Seemeing to make a distinction in the Proceedings of the Generall Court, between the Comon Law and Chancery, Whereupon a Debate ariseing in the Councill, whither Such a Distinction ought to be made in the Said Oath, and it being a Matter wholly depending upon the Law for Setling the proceedings in the Generall Court, therefore/Ordered, that for the present a Short Oath be drawne to be taken by the … Councill as Judges of the Generall Court, wherein they Shall be Generally Required to doe Justice &c without mentioning any distinction as to the proceedings in Comon Law or Chancery [so, oath ordered went] … in all Cases both of Law and Equity you Shall doe equall Justice and Right…’ (Executive Journals of the Council of Colonial Virginia, ed. McIlwaine, H., 5 vols. (Richmond, 1925), vol. i, entry 17 04 (1699) p. 420Google Scholar; and see entry 9 December, 1698, for the role of the English High Court of Chancery in administering oaths and granting commissions, p. 398).

page 155 note 1 Hening, vol. iii (Oct. 1705), p. 291: ‘Oath of a Judge of the General Court, in Chancery’; ibid. vol. iii (Oct. 1710), pp. 508–9: ‘Oath of a Justice of the Peace in Chancery.’

page 155 note 2 ‘Precept concerning delays of justice in county courts, 1711’, printed in Chumbley, G., Colonial Justice in Virginia (Richmond, 1938), pp. 85–6Google Scholar; Hening, vol. iv, acts of April 1718, p. 59; Feb. 1727, pp. 182–96; May 1732, p. 343; Aug. 1734, pp. 413–17; Hening, vol. v, acts of Feb. 1745, pp. 319, 328–9; Oct. 1748, pp. 509–13.

page 155 note 3 Chumbley, , Colonial Justice, pp. 144–8Google Scholar.

page 156 note 1 The art of classification is tested by such petitions as this from David Morgan to the Governor in 1713. Morgan, who wanted to handle the affairs of an illiterate friend who died intestate, wrote: ‘Your poor peticoner Humbly prayeth that your Honor will bee pleased to Bestow ye sd Estate on him after Just Debts payd … That your Honr may be pleased to Order yt Your peticoner may Recover ye Same: Eyther at the Comon Law or Equity’ (printed in Calendar, p. 167). Soundings in the reported cases from the county courts of various counties show a county-by-county variation in the incidence of suits on the chancery side: Botetourt County featured more such suits than did Fincastle or Montgomery Counties; and virtually the only Equity cases in Washington County were the common-garden variety will and mortgage cases (Summers, L., Annals of Southwest Virginia 1769–1800 (Abingdon, Va., 1929), passimGoogle Scholar).

page 156 note 2 Reports of Cases Determined in the General Court of Virginia from 1730 to 1740; and from 1768, to 1772, ed. Jefferson, Thomas (Charlottesville, 1829)Google Scholar, Waddill v. Chamber-layne (1735) (interestingly refers, on p. 13, to foreign law: ‘The civil law is universally allowed to be the most equitable perfect law in the world’); Legaw and Armistead v. Newton (1735); and, where a case at law is ill-brought, ‘The remedy must be in equity’ (p. 58); and, most interesting of the cases, Jones &c. v. Porters: this case, which appears wrongly decided, leaves a purchaser for value without remedy in equity (pp. 62–7); but the case was followed in 1740, Knight v. Triplet, pp. 71–2, even though Jones is there said to be a hard case, because ‘hardship can never induce the court to decree against a positive law’ (p. 72). By 1769, the court was more responsive, and, in Bradford v. Bradford, Wythe, destined in 1777 to become Lord Chancellor of the new High Court of Chancery, was bettered by Pendleton, who was to take his place beside Wythe on the Chancery bench (for an analysis of Bradford, a land boundary case, see Seiler, W., ‘Land processioning in colonial Virginia’, William and Mary Quarterly, 6, third series (07 1949), 416–36)CrossRefGoogle Scholar.

page 156 note 3 Rankin, H., ‘The General Court of colonial Virginia: its jurisdiction and personnel’, Virginia Magazine of History and Biography, 70 (04 1962), 142–53, 145Google Scholar.

page 156 note 4 General Court judges were encouraged to ‘do speedy Justice & avoid all dilatory proceedings & to Judge of ye most equitable part of ye Cause if not positively tied up by Law’ (‘Virginia’, American Journal of Legal History, 9, 239Google Scholar). County court justices, in the small claims context, were instructed to ‘instantly precede … in a summary way … and … give judgment according as the very right of the cause and matter in law shall appear unto them without regard to form, or want of form’ (Hening, vol. iv (1727), pp. 195–6).

page 156 note 5 Smith, J., Appeals to the Privy Council from the American Plantations (New York, 1950)Google Scholar, ‘Appendix A: Statistics on The Appellate Jurisdiction, Table 3, Chancery, Virginia’, p. 669. Smith's book also explains the low English regard during the eighteenth century for colonial law (p. 657) and reflects on the proneness of chancery courts to suffer reversal (p. 659).

page 157 note 1 Major such enactments are Hening, vol. iv (Feb. 1727), pp. 182–96; vol. v (Oct. 1748), pp. 509–13; vol. vi (Nov. 1753), pp. 345–9; and for the information on partition see ‘Slaves’, Acts of Assembly of Virginia in Force and Use, January 1, 1758, ed. Mercer, J. (Glasgow, 1759), p. 341Google Scholar.

page 157 note 2 Information from Legislative Journals of the Council of Colonial Virginia, ed. Mcllwaine, H., 3 vols. (Richmond, 1918), vol. ii, entries of 11 and 12 04 1745, pp. 984, 985Google Scholar; Hening, vol. vi (May 1755), p. 478; Howard, G., Preliminaries of the Revolution, 1763–1775 (New York, 1905), p. 91Google Scholar.

page 157 note 3 Tazewell quoted in Chumbley, , Colonial Justice, pp. 148–52Google Scholar (see also Gipson, L., The Coming of the Revolution, 1763–1775 (New York, 1962), ‘Planter debts’, pp. 40–54Google Scholar); information from Journals of the House of Burgesses of Virginia 1773–1776, ed. Kennedy, J. (Richmond, 1905), vol. i (entry 14 06 1775), pp. 234–6Google Scholar; Journals of the Council of the State of Virginia, ed. Mcllwaine, H., 3 vols. (Richmond, 1931), vol. i (entry 5 03 1777), p. 359 and passimGoogle Scholar.

page 158 note 1 Journals of the House of Burgesses (entry 2 06, 1774), p. 188Google Scholar (another such letter to Governor Dinwiddie from the Burgesses is given in the entry for 19 June 1775, p. 255); information from Hening, vol. ix, 29 June 1776, art. 14, p. 117 (Virginia Constitution); Hening, vol. ix (Oct. 1777), pp. 389; vol. ix (Oct. 1778), pp. 522, 536, 540; Summers, L., History of Southwest Virginia, 1746–1786 (Richmond, 1903), p. 285Google Scholar; Journals of the Council of the State, vol. ii (entry 6 04 1778), p. 116Google Scholar; ‘An Act for … British Property’, Hening vol. ix (Oct. 1777), p. 377.

page 158 note 2 Quotation from Notes on the State of Virginia, ed. Peden, W. (Chapel Hill, 1955), p. 130Google Scholar; but see also Jefferson, 's drafts of his ‘Declaration on Taking up Arms’, printed in The Writings of Thomas Jefferson, ed. Ford, Paul (New York, 1892), vol. i, pp. 462 ffGoogle Scholar., and ibid. pp. 1–153, ‘Autobiography’, p. 69. That Jefferson's attitude toward chancery was more complex than this quotation suggests is shown in his letter ‘To Philip Mazzei’, The Papers of Thomas Jefferson, ed. Boyd, J. et al. (Princeton, 1954), vol. ix, pp. 67–72Google Scholar; ‘To William Carmichael’, Papers (Princeton, 1955), vol. xii, pp. 423–7Google Scholar; ‘To William Stephens Smith’, Papers, vol. xii, pp. 557–8Google Scholar; ‘Some Jefferson manuscript memoranda of colonial Virginia records’, ed. Clemons, H., Virginia Magazine of History and Biography, 45 (04 1957), 154–68, 160Google Scholar; Van Hecke, M. T., ‘Trial by jury in Equity cases’, North Carolina Law Review, 31 (1953), 157–74, 158Google Scholar. (Some theoretical support for a present-day reopening of the question is in Gardner, , ‘Anachronism of modern Equity’, Mercer Law Review, cited above, p. 150, n. 1Google Scholar; but see Levin's essay, cited below, p. 159, n. 2.

page 159 note 1 John Norton and Sons Merchants of London and Virginia: Being the Papers from Their Countinghouse for the Years 1750 to 1795, ed. Mason, F. (Richmond, 1937), p. 520 n. 1Google Scholar. Wythe, known as ‘the American Aristides’, taught Jefferson law, and was considered a virtuoso of the yearbooks, Bracton, Britton, Fleta, and so forth (Shewmake, O., The Honorable George Wythe (Williamsburg, 1954), p. 13Google Scholar).

page 159 note 2 Hildrup, R., The Life and Times of Edmund Pendleton (Chapel Hill, 1939), p. 210Google Scholar. An interpretation similar to Hildrup's is in Beveridge, A., The Life of John Marshall, 4 vols. (Boston, 1916–1919), vol. i, pp. 218–19Google Scholar; and for a recent practical application of this general viewpoint so as to achieve ‘impressive economies’ in civil litigation, see Levin, A. L., ‘Equitable clean-up and the jury: a suggested orientation’, University of Pennsylvania Law Review, 100 (1951), 320–53, 323CrossRefGoogle Scholar.

page 159 note 3 The concern is well mirrored in the Letters of Joseph Jones of Virginia, 1777–1787, ed. Ford, W. (Washington, D.C., 1889)Google Scholar; but the generalization can also be supported from the letters of better-known figures.

page 159 note 4 During this same decade, Patrick Henry was repeatedly elected to one-year terms as governor, and he felt compelled to entertain in the governor's mansion as lavishly as ever had the royal governors. Henry plunged so scandalously into debt to maintain the ancient mode that his biographers are hard pressed to account for his folly.