PAPER

READ BY

R. G. H. KEAN.

OUR JUDICIAL SYSTEM: SOME OF ITS HISTORY, AND SOME OF ITS DEFECTS.

For a

This subject has commended itself to me, for the present occasion, chiefly for two reason: First, that it can be treated without technicality, and secondly, that within the compass of a paper not too long for the present purpose, several of the merits and demerits of the judicial system of our State in the past and at the present time can be touched upon, so, possibly, as to lead us to take stock of what we have. body as influential as this Association ought to be, in the matter of Law Reform, to give its attention earnestly to the work of improving the administration of public justice in our own State Courts, is, or ought to be, one of the readiest means by which such reforms can be brought about, if they are found to be needed.

It may be assumed, I think, that the moral standards of a people, if not fixed by those of the Bench and Bar, will rarely be found to be higher than those by which the Bench and Bar are governed. And among lawyers the standards, not only of social and professional ethics and attainments, but of efficiency, in their part of the great business of administering justice, must, in the long run, conform in a great degree to the standards which prevail among the judiciary. The Judges of a State, the expounders and administrators of its laws, under whose authority and subject to whose control the functions of the Bar are discharged, cannot fail to exert a powerful influence upon the lawyers, both as a body and as individuals.

In the presence of a Judge, pure, wise, learned, and fearless because independent, every lawyer who has an atom of self-respect or prideto say nothing of any higher principle-will be ashamed to exhibit folly, ignorance, or corruption.

The history of our Virginia Judicatory through about two hundred years presents an interesting example of that evolution which has largely characterized the formation of the social and public institutions of the English speaking peoples. The partial sketch which I propose to give, being introduced only as prefatory to other matter, must be meagre and general. Details will be omitted, even when they would possess much antiquarian interest; and the order followed will be rather by subjects than chronological.

In the first Charter to Sir Thomas Gates and others, April 10th, 1606, (4th James I.) Article VII provided for a Council" which shall govern and order all matters and causes which shall arise, grow, or happen " in the Colonies (two were contemplated, though only one was subsequently planted,) "according to such laws, ordinances and instructions as shall be in that behalf given." I Hen. Stat. at L., pages 60

61.

Instructions were framed accordingly, which passed the privy seal 20th November of the same year, by which plenary powers were vested in the President and Council to deal with all matters judicial, criminal or civil, restricting the death penalty to only the more serious felonies, providing for trial by jury, with power of reprieve (the King retained in his own hands the power of pardon). Their civil jurisdiction was "to hear and determine all and every other wrongs, trespasses, offences and misdemeanors." The proceedings were to be recorded "briefly and summarily in a book," and to be subscribed with the hands or names of the president and Council, or such of them as gave the judgment or sentence. Here we have the original of our mode of authenticating the Court orders by having them read, to ensure accuracy, and signed by the judge. This, I infer from its omission in the Circuit Court of the United States, in this Circuit, is not a universal practice in the other States.

Some fifteen or eighteen years elapsed before the dispersion of the Colonists led to the formation of municipal corporations. In March, 1623, among the acts of one of the first assemblies was one providing that in the corporations of Charles City and Elizabeth City, courts should be held once a month for deciding suits not exceeding the value of one hundred pounds of tobacco, and for punishment of petty offences. These courts were to be held by the Commanders of plantations, and such others as the Council by commission should appoint. The form of the commission is given. I Hen. S. at L., p. 137. Appeals were allowed to the Governor and Council, the appellant if cast in suit to pay double damages.

I Hen. S. at L., p. 125.

Such was the small beginning of the system

by which justice was to be carried to the homes of the people.

In this half military half civil administration we find the original of our old County Court system, of which I shall have something more to say hereafter. If the consequence of appeals taken for the purpose of "getting a compromise," or "taking the chances," were as serious as our forefathers thought they ought to be, our appellate courts would have much fewer causes to decide, and a better opportunity to decide them advisedly. It is true that sometimes suitors might be deterred from appeals which ought to be taken, but counsel would be much more careful how they advised appeals than they now are, and it would be less in the power of rich suitors to oppress poor ones by continued litigation.

By the year 1629 "Commissioners of Monthly Courts," named and commissioned, in the same instrument, from the Governor and Council, had superseded the Commanders; and the County Court system, which held its ground in its original simplicity and efficiency, but with greatly increased powers and jurisdiction, until 1852, and, in most of its features except the mode of selection, until 1870, was fairly launched on its career of two hundred and forty years duration. I cannot summarise their subsequent history for the first two hundred years so well as by quoting the note of Mr. Benjamin Watkins Leigh, on page 244 of the 1 Rev. Code of 1819, of which, by the direction of the Legislature, he was the compiler. He says:

"The institution of the County Courts. originated as early as 1623-4, and as it is the most ancient, so it has ever been one of the most important of our institutions, not only in respect to the administration of justice, but for police and economy. They were first called monthly courts; and at first only two of them were established, and their jurisdiction jealously limited to the most petty controversies, reserving the right of appeal for the party cast to the Governor and Council, who were the judges of what were called the quarter courts. In 1642-3, the style was changed to that of County Courts, the Colonial Assembly having previously begun, and continuing thenceforward, to enlarge their duties, powers and jurisdiction, and to extend the system to every county as it was laid off. As early as 1645 they had been matured into their present (he is writing in 1819) form, (though somewhat rude and irregular), of courts of general jurisdiction in law and equity; and the most important duties in matters of police and economy were confided to them. * * In 1661-2 it was enacted that Commissioners of the County Courts should take the oath of a justice of the peace, and should be called justices of the peace. These tribunals now assumed a perfectly regular form, and their functions have ever since been so im

portant that their institution may well be considered as a part of the constitution, both of the colonial and present governments. No material change was introduced by the Revolution in their jurisdiction or general powers or duties of any kind. * * * It would, perhaps, be impossible for any man to estimate the character and utility of this system, without actual experience of its operation.'

Down to the Revolution the great reservoir of judicial power was in the Governor and Council, sitting as the "Quarter Court.”’ It was the court of general original jurisdiction in nearly all sorts of causes, and was the appellate court in all cases in which appeals were allowed. It was the court in which such lawyers as Sir John Randolph and his son John, George Wythe, Edmund Pendleton, Jefferson, Henry, Blair, Nicholas, the Lees, Tyler, &c., were trained. was the parent stock out of which the other courts sprouted. offshoot, as we have seen, was the County Court system. It was the original and antitype of the Court of Appeals and General Court.

It

Its first

In the reorganization of 1776-7 the body of its original jurisdiction, other than in Chancery matters, fell to the General Court, an institution in many respects full of wisdom and benefit. Mr. Jefferson was the author of the acts by which the General Court and the High Court of Chancery (between which the judicial powers of the Governor and Council were divided) were organized. These acts passed in October, 1777 (9 Hen. Stat. at L. 401). Under them the General Court consisted of five judges, elected by the General Assembly, and sat only at Williamsburg, the Westminster of old Virginia. As the extension of settlement and increase of population made it inconvenient for suitors, jurors and witnesses to attend at the Seat of Government, the judges of the General Court in 1788 became itinerant by districts, and their number had to be increased.

From time to time, by successive acts, the original jurisdiction of the General Court was curtailed, and transferred, as to civil actions between citizens, to the District Courts, which were in substance what the circuit Superior Courts of a later, and the Circuit Courts of the present day, are. It remained the court in which causes in which the State was a party were tried, was the appellate court in criminal cases, and had general common law jurisdiction in all causes, matters and things, as well criminal as civil, except when jurisdiction was vested elsewhere by the Constitution and laws of the United States and of this State. 1 Rev. Code 1819. Ch. 67.

From 1788, when the District Courts were established, to 1851, when the General Court was abolished, and its original jurisdiction given to the nisi prius courts (except suits in which the State is pecuniarily interested, and a few other matters as to which the Circuit Court of Richmond was made residuary legatee), the General Court was composed of the circuit (District and Superior) judges of the Commonwealth, a majority constituting a court. Coming together as they did twice a year, in June and September, to hold terms at the Seat of Government, as the Court of Criminal Appeal, and with exclusive jurisdiction in revenue and other State matters, all the judges were thus thrown together from time to time. They were brought into conference, not only on those subjects on which they were called upon to adjudicate, but as to modes of procedure, questions of practice, or of law reform, and any new or difficult question which might have arisen on their circuits. The newly appointed judges had the opportunity to sit at the feet, of the older and more experienced. Uniformity of practice and of view was promoted, the individual crotchets of one were corrected by contact with the rest, and thus in many ways the General Court was an educational influence of very high value.

By its constitution of judges incessantly engaged at nisi prius in the trial of civil and criminal causes, the General Court had the opportunity to become far better qualified as a court of Criminal Appeal than any Court of Appeals has the chance to be, composed as the latter generally is of men who either never sat at all at nisi prius, or if having some experience on the Circuit bench, scarcely ever presided over a criminal trial. The opinions and decisions of our old General Court in Commonwealth's cases, will, I think, demonstrate its superiority over the Court of Appeals in that branch of the law; a superiority due, as I conceive, to the greater advantages possessed by the judges of the former for acquiring the best training and the most accurate familiarity with criminal jurisprudence and procedure. Whenever we shall have occasion to try our hand again at constitution making it is not unworthy of serious consideration, whether it would not be well to reorganize the General Court in some form, if for no other reason as a sort of college for judicial education.

On 5th of October, 1829, a convention called by the people of Virginia to revise the constitution under which they had lived from 1776 (53 years), met in the hall of the House of Delegates at Richmond. At 12 o'clock James Madison called the body to order, and nominated James