twelve years acts were passed to increase the efficiency of the militia on account either of Indian troubles or pressure from abroad. But there were frequent complaints of the neglect of muster duties, the difficulties in the way of summoning the militia, and the partial futility of the laws. The whole system may be summed up as follows: Officers similar to those in England, a colonel, lieutenant-colonel, major, captain, were commissioned by the Governor or commander in the county, the cornets for cavalry, ensigns for infantry, sergeants, corporals, and other minor officers being appointed by the colonel or the captain. Indians and negroes were allowed to act as drummers, trumpeters, pioneers on a march, "hewers of wood and drawers of water." The number of men in a company ranged from fifty to seventy-five, and there were from seven to ten companies in a county. An examination of militia accounts gives a fair idea of the state of the colonial militia. Payments were claimed for horses, cattle and articles impressed for provisions and ammunition supplied. It was the custom to draft soldiers in the eastern counties and to conduct them under guard to Fredericksburg or Winchester. The guards were paid, as was also the sheriff, “for maintaining drafted soldiers in Gaol."*

Connected with the militia was an interesting institution which began to take form in 1738. The number of slaves had by that time become very great, and occasionally there arose from this source slight troubles causing anxiety to owners and rulers. As early as 1710 a negro slave was freed by the Assembly for having discovered to the authorities a conspiracy among negroes of Surrey county looking to insurrection. Even at that early date were brewing troubles that afterward did occur, as Gabriel's War in 1800 and Nat Turner's Rebellion in 1831. To prevent insurrections, unauthorized meetings, wandering from one plantation to another without passes, measures had to be taken by the government. The chief of militia in each county was ordered to appoint an officer and four men, called patrollers, to visit at any time negro quarters or places suspected of harboring unlaw

*

*

*

* In 1758 a bill was presented by Abraham Maury for "28 days service in riding to forts and settling townships." In Virginia before the Revolution there were no townships in the New England sense, but the use of the word by Maury is explained in a letter written in the same year by him to Colonel Theoderick Bland, Sr., as follows: "I took a tour to the forts those who had land of their own freely embraced so fair an opportunity to defend their possessions and readily agree to associate and collect themselves together in small townships, but when I went to fix upon the most convenient places to erect the said townships every person insisted that his own place was most convenient * and I accordingly made choice of Mayo Fort, Hickey's, Black Water, and Snow Creek as the most proper places for the said township(s) I have since my return heard that Blair township at Snow Creek is in great forwardness, but that the others are

*

not yet begun, the people being yet too busy about tending corn 80 men to garrison the said townships." Bland Papers, i., p. II.

*

*

*

*

*

I demanded

ful assemblies. These "paterollers," as the negroes learned to call them, could arrest offenders and send them to the nearest justice, who, if the offenders deserved it, could have them whipped.

At the outbreak of the Revolution the militia was reorganized and nomination of officers was placed in the hands of the committees in counties, and their appointment came from the Committee of Safety. From the militia and volunteer troops were raised minute men, and the militia was drafted into the Continental Army. The subject of the militia has been treated first, because it naturally preceded local courts as protection against outside foes, was at first more necessary than protection. against each other, and as long as men were fearful of attacks from without, internal disputes had to be laid aside for the general welfare.

But monthly courts were established, but as they were changed in 1643 to county courts, and the commissioners changed to commissioners of county courts, it is best to study them under the latter title. The number of commissioners, who were afterward called justices, and in 1770 magistrates, was for some years undetermined; in 1661, in view of the contempt in which the place was held, and on account of disorders arising from the large number, the court was reduced to eight men in each county who should in succession exercise the sheriffalty. This law was not successfully carried out and fell into disuse, and there were often as many as fifteen justices in a single county. As a rule the courts nominated their successors, who were appointed by the Governor. Not always, however, did he follow their suggestion, though neglect to do so was met by such. vigorous protests as: "But yt now we despair of M' Stapleton being a member of our Court, a person most notorious by abusive, profane, and Imoral Qualities so misbecoming the seat of Justice, y we humbly desire to be excused Setting wth him, beleiving him designedly represented to make both us and ye County in generall uneasie.

The rest of ye Gents we should have comply'd with, and would not have presum'd to have given yr Excy. this trouble at this time had we not Just reason," "Wm Johnston, Gent. being asked whether he would accept & swear to the Commission of the Peace; now Produced, Answered, That he would not accept and Swear to sd: Commission because Anthony Struther, William Hunter, and William Lyne are put in the Commission without a Recommendation from the Court." Six other members of the same court refused to serve for similar reasons, one of them expressing the belief that Lyne had begged for the Commission.* These extracts show the sentiments of justices about their associates, and insomuch as

#Palmer. Calendar, Va., State Papers, i., pp. 88, 237.

there was no compensation for serving, right seems to have been on the side of those justices who set up a high standard of admission to their membership. The courts were commissioned at their own request or at the Governor's pleasure. An account of Virginia, written about 1698, by one evidently hostile to the Governor, states that "he renews that commission commonly every 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."* Four of this court constituted the quorum, and met at the court-house monthly, or if necessary more frequently. Court-day was a holiday for all the country side-especially in the fall and spring. From all directions came in the people, on horseback, in wagons, and afoot. On the court-house green assembled in indiscriminate confusion people of all classes-the hunter with his backwoods air, the owner of a few acres, the grand proprietor, and the grinning, heedless negro. Old debts were settled and new ones made; there were auctions, transfers of property, and if election time were near, stump-speaking. Virginia had no town meeting as New England, but had its familiar court-day.

When they had been commissioned the justices took the oaths of allegiance, of office, etc. In 1634 it was directed that one member of the Council should assist at the monthly courts; this rule was changed in 1662, when the Governor undertook for himself and the Council to visit all the county courts, that he might be able to give the King an exact account of the government. It was enacted, therefore, that he and one of the Council, or two of the Council commissioned by him for every river, should "sitt judge in all the county courts, and there hear and determine all causes then depending in them by action or reference from any other preceding court in that county Provided noe councellors be appointed to goe the circuite in the river wherein he doth inhabit." But in a few months the institution was abolished on account of expense. Though short-lived, it is interesting as a phase of the system of itinerant justices whose existence has been traced back to Alfred's time, through the eyres, the provincial circuits of the officers of the Exchequer, and the visitations of Edgar and Canute. The system arose and was continued for centuries for purposes of taxation, but the judicial features were added from time to time and tended to absorb the financial.

County courts could hear no cases for debts involving less than 20 shillings, and to prevent the expense of traveling to Jamestown they had final jurisdiction of causes under £16 sterling. But needs of the colony

*Mass. Hist. Coll. Series i., vol. v., p. 150.

increased the powers and duties of the county courts, and at the Revolution they settled all cases at common law or chancery, except when loss of life or limb or law protection were involved. They were also courts of administration, had the care of orphans, and appeal was from them to the general court. The general court was originally the quarter court held by the Governor and Council in March, June, September and November. The June term was abolished in 1659, and on account of the absurdity of calling a court meeting three times only in the year a quarter court, the name general court was adopted in 1662. But November was too late in the year to allow planters to attend court with any degree of comfort, and September was too early, inasmuch as trading vessels did not arrive until later, and the tobacco trade was dull; hence, after 1684 the terms were held in April and October.

To return to the county court, probably one of its most important functions was the laying of the county levy, for Virginians paid three kinds of taxes-parish, county and public. For the laying of county taxes the court met and ascertained the county expenses for roads, bridges, buildings, burgesses' salaries, etc. To determine each man's proportion, the whole sum was divided by the number of tithables, for after a brief experiment during the years 1645-48 of taxes directly upon property, the authorities reverted to the poll system.* The court established rates of ordinances or inns, recommended attorneys to the governor, and paid fees for the destruction of wild beasts. Jones wrote in 1724: "The wolves of late are much destroyed by Virtue of a Law which allows good Rewards for their Heads, with the Ears on, to prevent Imposition and cheating the Public, for the Ears are crop'd when a Head is produced." The court had the yearly appointment of surveyors of highways, for whom it divided the county into precincts, that all county and church roads “might be kept clear, respect being had to the course used in England." ‡ But waterways were used in preference to land routes, and the road system of Virginia was for a long time imperfect. The surveyor-general of the colony was appointed by the president of William and Mary College. The land surveyors were in general examined and recommended by the same person

* The following is a list of tax rates in 1645, taken from Hening's Statutes: 1 cow 3 years old 4 lbs. tobacco, horses, mares, and geldings, at 32 lbs. a piece, a breeding sheep 4 lbs., a breeding goat 2 lbs., a tithable person 20 lbs.

Hugh Jones. Present State of Va., p. 51.

In the bill for the Fairfax survey of shelter for horses, lodging, meals, etc.,

It is rather curious to note the expenses of a survey. 1736 among the items of expenditures embracing feed and amounting in all to £37, are found claret, madeira wine, beer, punch for gentlemen, tea for gentlemen, and liquors for surveyors, costing over £11.

VOL. XII.-No. 6.-35

or by the surveyor-general, and having been approved of by the Governor and Council took the oath of office before the court of the county where they were to serve. Although at one time there was a statute allowing county courts, with the consent of a majority of the inhabitants, to divide counties into parishes, it was the custom for parishes to be created by act of Assembly. The court made its own by-laws, and with representatives from the parishes could make by-laws for the county; it nominated inspectors of tobacco, granted divorces, regulated the relations of whites to the Indians, tried cases of piracy, erected ducking stools, pillories, whipping-posts and stocks, appointed collectors of county levies, and regulated the relations of master to servant. For instance, in August, 1751, the sheriff of Augusta County "having informed the court that Henry Witherington, a servant boy belonging to John Stevenson, was in jail and that he had an iron lock in his mouth, it was ordered by the court that he immediately take off the same."

When an Assembly had been called and the county had elected its two burgesses, the court sat as a court of claims, to take proof of debts and complaints which were to be presented to the Assembly by the burgesses, "and to know the pressures, humours, common talk, and designs of the people of that country, perhaps there is no better way than to peruse the journals of the house of burgesses, and of the committee of grievances and propositions." When circumstances arose for which laws were not expressly provided, the court was empowered to attend to them. Thus in Lancaster county, in the lack of a vestry, the court with the minister of a parish appointed churchwardens and sidesmen or assistants. The jurisdiction of this court over slaves was varying. The court of Isle of Wight County had a slave, in 1709, receive forty lashes upon his bare back for being accessory to a negro insurrection; and a free negro, who had entertained some of the runaway negroes at his house, received twenty-nine lashes "well laid on." Information of offenses was laid before the court by the grand jury, consisting of impaneled freeholders possessed of at least fifty pounds in real or personal estate, or by churchwardens. An idea of the state of justice in the eighteenth century may be derived from the records of grand jury presentments: "We present Thomas Sims, for travelling on the road on the Sabbath day with a loaded beast;""William Montague and Garrett Minor for bringing oysters ashore on the Sabbath," etc. Persons were also presented for cursing, swearing, bastardy, and one for "drinking a health to King James and refusing to drink a health to * Virginia Historical Register, iii., p. 76. Mass. Historical Coll. Series v., p. 149.