CHAPTER IX.

RISE OF THE COUNTY IN VIRGINIA AND THE SOUTH,1

I. ORIGIN AND CHARACTER.

The Virginia county has received far more attention from writers than the similar institution elsewhere in the colonies; and indeed for several reasons its history is unusually important and attractive. Thus its constitution was closely modelled upon that of the contemporary English shire; it was the organism by which all the more important functions of local government were discharged; it furnished a pattern for the other southern colonies; and it has exerted a wide influence in the newer states and territories of the southwest. Moreover the Old Dominion, in population, wealth, and social prestige, held a foremost place among the English provinces.

1

But it is easy institutionally to exaggerate the importance

1 My principal authorities are Hening, Statutes at Large, 13 vols.; Palmer and McRae's Calendar of Virginia State Papers; An Account of Virginia, in 1 Mass. Hist. Collections, V; Jefferson, Notes on Virginia; Beverley, History of Virginia; Proceedings of The First Assembly of Virginia, 1619, in Col. Rec. of Va., Richmond, 1874; Stith, Hist. of Virginia; Lawes Diuine, Morall, and Martiall, in Force's Tracts, III; Neill, Virginia Carolorum; Burnaby, Travels, 16 ff.

I am much indebted to Mr. Ingle's Local Institutions of Virginia: J. H. U. Studies, III, and to Dr. Channing's Town and County Government: J. H. U. Studies, II. The histories of Burk, Hildreth, Campbell, Lodge, and Doyle have also afforded some assistance. For historical sketches of the various counties, see Howe's Hist. Collections of Virginia.

of all these considerations. The Virginia county was not so independent as that of Pennsylvania; for, on the one hand, it was less democratic in the choice of officers; and, on the other, the functions of local government were to some extent shared with the parish from the beginning. Again, while it may have been the most complete realization in this country of the parent institution, still it possessed various unique features; and besides, the county organization of Pennsylvania, New York, or even of Massachusetts, retained the broad outlines of the English model. In addition to all this, it is beyond question, that the two systems of county government now existing in the northwestern states, were suggested, not so much by that of the South as by those of the Middle Provinces; though, in no section, did the people ever become entirely unfamiliar with the general conception of county organization.

Nevertheless the Virginia county furnishes a most interesting and profitable study; in fact, scarcely from any other single point of view can so satisfactory an insight into the every-day life of the people be obtained.

The institution was a natural growth. The followers of Smith, like those of Bradford or Winthrop, settled of necessity in village communities. For a time the "city" promised to be the counterpart of the northern "town." But a number of causes, chiefly economic, determined a different development. The customs of entail and primogeniture, the rise of negro slavery, the numerous watercourses, and the predilection for large estates on the part of the principal settlers, all these combined to produce plantation, rather than village life.

Within a very few years from the original occupation, the rudimentary cities had begun to decay-to dissolve or expand into the county. At first "hundred," "plantation," or "guift" was the name given to the territorial unit. Not until 1634 was the colony divided into "shires," eight in number, to be

'This point is brought out by Ingle, Local Institutions of Va., 81.

"governed as the shires in England." Soon after, in the records, the term "county" supersedes the more ancient name.' The number of counties was gradually increased, until in 1680 there were twenty;3 in 1705, twenty-nine; and in 1781, seventy-four.5

We now proceed, without further preface, to examine the county constitution, adopting much the same arrangement as hitherto.

II.-EVOLUTION OF THE COUNTY COURT.

(a)—Development of the Organization.

The growth of the local judiciary extends over a number of years before the system reaches its permanent form. During the early period, the only tribunal which existed in the province was that of the governor and council at Jamestown. This court at first was held quarterly, but later the sessions were reduced to three, and then two, each year; and on account of the inconsistency of retaining the old name, it was ordered by the assembly in 1661/2 that they be called "general courts."9

In 1624 courts "to be kept once a month in the corporations of Charles City and Elizabeth City" were erected.10 These, like the inferior tribunals of 1636 in Massachusetts, were the

1 Hening, I, 224.

"In minutes of the Assembly for 1639/40; but these are a summary made in the following century: Hening, I, 224, note, 228. The term is next used in 1642/3: Hening, I, 238 f.

As appears from a list of counties, where towns and store-houses are to be established: Hening, II, 472-3.

Beverley, Hist. of Va., 192.

5 Jefferson, Notes on Va., 125-6, 148.

* Hening, 1, 145, note, 174, 187, 270.

'Hening, I, 524 (1658/9).

Hening, III, 10 (1684); Beverley, Hist. of Va., 206.

Hening, II, 58.

10 Extended in 1631/2 to other places in "remote parts:" Hening, I, 168.

germs of the county courts. They had jurisdiction in suits "not exceeding one hundred pounds of tobacco" and in petty offences, and they were held by the commanders of the respective places and such others as the governor saw fit to commission, the former being of the quorum.1 In June the jurisdiction was extended to cases involving less than 1600 pounds of tobacco; and in March, 1643, the name "county courts" was substituted for "monthly courts." They were now to be held six times a year in each of the ten counties; and it was also provided at this time that actions for less than twenty shillings or two hundred pounds of tobacco2 should be tried by a single commissioner.3 The commissioners were afterwards called "justices" and "magistrates."5

6

In 1661 the number of justices was fixed at eight including the sheriff; but the law does not seem to have been long observed, and the limit was removed by the act of 1748.8 The justices were appointed by the governor; but in practice they usually nominated candidates who then received the governor's commission; thus the county court, like the vestry, became in effect a close corporation composed of the leading gentry of the county. The commission for each county was

1 Hening, I, 125. See the form of commission in Ib., 132 (1628/9), 168–9 (1631/2). One other besides the commander was usually of the quorum: Neill, Virginia Carolorum, 90–1.

'Made 350 pounds in 1657/8; and two commissioners could try cases of 1000 pounds: Hening, I, 435. Cf. Ib., II, 72; V, 491.

'Hening, I, 272-3; Ingle, Local Inst., 89; Channing, Town and County Govt., 44.

In 1661/2: Hening, II, 70, note.

Cal. Va. State Papers, I, 263.

"Hening, II, 21. The reason assigned is that "the great number of commissioners in each county hath rendered the place contemptible and raysed factions."

'In Beverley's time, 1705, the court was held by "eight or more gentlemén:" Hist. of Va., 208.

8 Hening, V, 489.

'However, in 1652, it was enacted that the assembly should appoint the commissioners: Hening, I, 372.

ordinarily renewed every year, the main object being to increase the governor's fees and patronage.1

The court usually met monthly in the county town, four justices being necessary for a legal session, one of whom must be of the quorum.2 It had jurisdiction in criminal actions not extending to life and limb,3 and in civil suits involving over twenty shillings, being final for sums under sixteen pounds sterling. It could also try equity cases, hear appeals from the single justice, and it had charge of probate and administration. Business in the county court seems often to have been loosely administered, the justices being sometimes dilatory and incompetent.8

(b).—The Officers.

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The county court appointed its own clerk who, as elsewhere, performed also the usual duties of county recorder.' The sheriff was the executive officer, and one of the most important functionaries of the county. Originally, by a curi

1" He renews that commission commonly each year, for that brings new fees, and likewise gives him an opportunity to admit into it new favorites, and exclude others that have not been so zealous in his service: An Account of Va.: 1 Mass. Hist. Coll., V, 149.

2 Beverley, Hist. of Va., 208 f.; see various acts in Hening, especially that of 1748, Vol. V, 489.

3 But in 1655/6 it was ordered that criminal suits should be tried in the quarter courts or in the assembly-" which of them should happen first:" Hening, I, 397-8.

But in 1748 the lower limit was fixed at 25 shillings: Hening, V, 491. "Hening, I, 303; V, 491.

"Hening, I, 435.

'Hening, I, 302-3, 447.

See complaints that courts are not properly kept, in Calendar Va. State Papers, I, 106, 195; An Account of Va.: 1 Mass. Hist. Col., V, 150. On the county, see also Campbell, History of Va., 352-3; Hildreth, I, 337; Lodge, Short History, 48-9.

In 1645 the appointment was vested in the governor; but in 1657/8 the court recovered the right: Hening, I, 305, 448.