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"The Transformation of Virginia 1740-1790"

by Rhys Isaac, winner of the Pulitzer Prize in History

Published for the Institute of Early American History and Culture, Williamsburg, VA
Copyright 1982 The University of North Carolina Press / published by W.W. Norton & Co

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I'd hoped to be more enthusiastic about this book; but I found it took some patience to glean a bit of information. At least, Rhys Isaac writes a decent English sentence: something I no longer take for granted of Pulitzer-prize-winning historians. The excerpt here is from a heading that seemed so promising in the contents. Surely a discussion of court days could go far beyond this in depth without much exceeding this section in length. However, since it is an easy read, the book can be worth a look for its lengthier treatment of faith and revivalism and their political implications, which I felt could not effectively be excerpted. Were it denser, "meatier," excerpts would serve; as it, it takes sticking with for the whole writeup. There's nothing earthshaking here, but I did learn from the passages touching on religion.

These passages are quoted from:

Chapter 5: "Occasions: Court Days, Race Meetings, Militia Musters, and Elections"

The times when Virginians came together from their dispersed plantations had a very distinctive quality. Communal assembly was intermittent rather than continuous, and it was oriented more toward a striving for advantage in various forms of contest than toward peaceful exchange and sharing.

Court Day

In the eighteenth-century Virginia landscape, the courthouse occupied a unique place. In can be pictured in its physical setting - usually an isolated brick structure with a simple round-arched, loggia-style porch on the front. Not uncommonly it stood at a crossroads in the midst of woods and fields, since most counties were without towns, and central location was the prime consideration in choosing a site. The courthouse, however, was never quite solitary, for it was invariably accompanied by supporting buildings - always at least one voluntary (i.e., tavern), a lockup, and often a store. A typical county seat is evoked by a passage in William Byrd's droll account of his travels to visit some iron mines and the outlying quarters of his vast estates. He had passed the night at the house of the clerk of the newly formed Caroline County court. (The holder of this much-sought-after office was assured of influence and income. Byrd noted, for example, that his host, Major Ben Robinson, was reformed from the "gaming and idleness" that had plunged him into debt, and that by means of the perquisites of his post, "in a quarrelsome county [he] will soon be able to clear his old scores."} Riding ten miles inland, away from Major Robinson's seat on the Rappahannock River, Byrd reached the Caroline courthouse, where he noted that "Colonel Armistead and Colonel Will Beverley have each of 'em erected an ordinary well supplied with wine and other polite liquors for the worshipful bench. Besides these, there is a rum ordinary for persons of a more vulgar taste. Such liberal supplies of strong drink often make Justice nod and drop the scales out of her hands."

It was a cluster of almost deserted buildings that called from William Byrd this wry comment on what it would be like on court days. Only when it came together did the scattered community attain full existence. In the monthly concourse at the courthouse the male part of Virginia county society became visible to its members in a manner similar to that observed at the parish church. We may obtain a glimpse of a courthouse gathering suddenly illuminated one Thursday in July 1768. A brief notice in the Virginia Gazette tells how:

Last Sussex court day at night, a flash of lightning struck near the end of the court house of that county, killed two horses (the property of one Ehren Horn, a German) and three hogs, and also struck two trees. There were upwards of an hundred people in and about the ordinary, within thirty yards of where the mischief was done. The poor man that owned the horses was indemnified upon the spot, by the generous contribution of the Gentlemen who attended that court."
Court day had drawn such a multitude that more than one hundred persons remained at the ordinary after dark. The horse trader, Ehren Horn, was no doubt one of a number of dealers and peddlers who had come to offer their goods for sale - a custom that gave court days the aspect of a country fair. The gentlemen in attendance displayed that liberality proper to their rank by compensating the unfortunate man's losses. Earlier in the day some of these same gentlemen had conducted the court, lending their personal authority to what was nearly the sum and substance of government at that time - adjudicating disputes, recording transactions, and distributing small favors to the fortunate.

A great deal besides the court proceedings drew the county's inhabitants together on court day, but the sessions in the courthouse were at the center of all activity. A society dominated by landholders, jealous of their independence and litigious in the defense of their boundaries and entitlements, could not but attach great importance to the arena in which conflicts over matters of this kind were joined and their issue determined. The importance of the arbitrator's function conferred considerable dignity on those who exercised it. We must picture the gentlemen justices, bewigged and dressed in their fine coats and waistcoats, seated on the raised "bench" - His Majesty's commissioners engaged in the communal dispensation of "justice." A ceremonial enveloped their hearings. To the twentieth-century observer incessant oath taking is its most striking feature. Periodically the county's commission of the peace was renewed, and the court would then publicly reconstitute itself by an elaborate, carefully recorded round in which a junior justice would administer the oaths of office to the senior justice present, who would then duly swear in all the rest. No justice or militia officer could act until he had qualified himself by taking the oaths in open court. He promised to execute his office faithfully, swore allegiance to the king, and finally "repeated and subscribed the Test." This last was an explicit expression of detestation for the papist doctrine of transubstantiation, and so frequently served to reaffirm the official identity of white Virginians as Protestant Englishmen.

Legal transactions - the deeds that secured the all-important properties, boundaries and entitlements of the county's inhabitants - could be admitted to the record only after they had been read in court and acknowledged by the voices of parties and witnesses. This was a society with a low level of literacy skills. The legal system was based on written instruments, but in the courts it was nevertheless essential for the written record to be rendered viva voce. In a world where oral culture was strong and custom ruled, the acts of authority were spoken aloud and so assimilated into the fund of necessary community knowledge accessible to all. The continual calling and swearing of juries may be explained in part by this need. When free persons arraigned for felony were sent to the General Court in Williamsburg for trial, society paid not only for the witnesses to attend but also for a jury of twelve "venire men," as they were called, to come from the "vicinage" of the crime to judge the facts. Quite explicitly, then, the community's fund of knowledge and received wisdom was incorporated in formal proceedings. In the county courts juries were frequently impaneled and sworn not only to determine causes and assess damages but also to go into the fields in boundary suits with a surveyor, both to adjudicate the way the line was to be run and to be witnesses to its settlement, adding the outcome to the communal store of information. The same applied to the semiannual calling of "twenty-four of the most capable freeholders" as grand juries to translate the community's knowledge of wrongdoings into recorded indictments: for bearing a bastard child; for swearing profane oaths; for being absent overlong from a parish church; or (in the case of court-appointed surveyors) for neglecting to keep the county's roads passable.

Free persons and indentured servants indicted for felony were tried in the General Court at Williamsburg if the justices found sufficient evidence to warrant a trial. Only slaves were tried in county courts for capital offenses. Solemnity surrounded even these summary hearings, however. The justices would meet on a specially appointed day to constitute themselves as a court of oyer and terminer by having the governor's commission read aloud and then swearing the prescribed oaths. Duly constituted, the court would try for his life (without jury) a slave who had been accused, perhaps, of breaking into a storehouse to steal hams, bolts of cloth, or other commodities. If the judges found him guilty and set the value of the stolen goods higher than five shillings, he would be sentenced to hang near the courthouse - a yet more awful ceremony that would take place within a few days. If the court saw fit to set the value of the theft at less than five shillings, the slave was eligible for "Benefit of Clergy" - he would then be "burnt in the Hand . . . in open Court," lashed, and released. It was "usual upon such occasion" for the condemned person, as sentence was passed and the hot iron brought forth, to cry out, "God save the King." Public stigmatization by branding was yet another ritual for memorization, appropriate to a community in which oral culture and traditions were still vigorous. All present must remember the occasion - its victim was no longer eligible for "benefit of clergy" if he should ever again be convicted of a felony.

It would be hard to overemphasize the importance of the ceremonial at the center of the coming together on court day. In the cultural context of the time it served not only to make the community a witness to important decisions and transactions but also to teach men the very nature and forms of government. Anglo-Virginians had no written constitution; they could only conceive of law and authority in their society as extensions and adaptations of English custom. (Modern Americans are so dependent on the idea of a constitution as a document that they readily misconstrue colonial charters, and even governor's "instructions" in the case of Virginia, as instruments functioning in the manner of written fundamental law.) There were no elementary textbooks on "government" - and not many schools to teach from them had they been available - and few, even among the more literate gentry, would have studied learned volumes giving systematic explication of the English customary "constitution." For most men the primary mode of comprehending the organization of authority was through participation in courthouse proceedings. The oaths and rituals were so many formulas, diagrams, or models, declaring the nature of government and its laws. The executions were fearful demonstrations of the consequences of putting oneself outside the protection of those laws.

The importance of the court was not merely confined to the solemn figuration of a symbolic order. Its communication of the symbols of power would necessarily have been feeble had it not itself commanded real and impressive powers. The monthly work of the court was routine enough - mostly cases of debt recovery. Nevertheless, routine as such cases were, a great deal could be at stake for members of the community. If one looks at the inventories of goods attached by the sheriff in small-debt cases, and if one considers how grave were the consequences of the enforced sale of an entire household stock, one may gain an impression of the weight of the law and its magistrates on the lives of simple countryfolk. The disposition of the cases was determined by juries impaneled by the sheriff from among the freeholders present in the courthouse, in the yard, or at the nearby ordinary. Thus the community participated to a large extent in the settling of its disputes, yet it could make all the difference to the defendants if, through the intercession of a well-disposed member of the bench, they could get a postponement of the hearing of their cases. The justices indeed disposed a great many favors, none of which was likely to lead to spectacular wealth, but all of which might be of vital assistance to a man battling to overcome financial difficulties or striving to better himself in the world. The bench of magistrates issued the licenses for the establishment of water mills in the country, they licensed and supervised the conduct of ordinaries, they arranged the contracts for the construction of bridges, jails, and other public works, and they submitted recommendations for the governor's annual appointment of the inspectors in charge of the tobacco warehouses, where all tobacco had to be certified as of standard for the market. The post of tobacco inspector was one of real power, and the consideration it necessarily commanded could only enhance the respect enjoyed by the members of the bench, who were the patrons in making or continuing the inspectors' appointments.

The court was central to the organization of society. Its functions went deeper than the conduct of business and the distribution of patronage. The court was the guardian of the Law, and the Law defined rights and obligations. Rights meant property - above all in land and slaves. Obligations meant, essentially, the monetary regulation of relationships between landowners (as in trespass cases) and of relationships that arose from trade in the produce of land (mainly debts and credits). The connections linking the patriarchal household units of plantation society to the maritime exchange system were formalized and secured in court. At the sessions of the county commissioners a powerful form of high culture - the Law - met with a compelling local need - security of property. WIthout security of property there could be no effective independence of persons, a supreme value in this age. In the courthouse, the royal arms and the form of justice in the king's name expressed the descent of authority from above. In addition, the character of the justices as leading landowners of their county represented the patriarchal property system and affirmed the basis of English law in the needs and consent of the governed.


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