Page images

for precedents to rule us hy, for what oppres. sion may not a precedent be found in this world of the ballum omnium in omnia ?... Searching for the foundations of this proposition, I can find none which may pretend a colour of right or reason, but the defect before developed, that there being no barrier between the legislative, executive, and judiciary departments, the legislature may seize the whole : that having seized it, and possessing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, speaker, dictator, or by any other name they please..... Our situation is indeed perilous, and I hope my country men will be sensible of it, and will apply, at a proper season the proper remedy ; which is a convention to fix the constitution, to amend its defects, to bind up the several branches of government by certain laws, which when they transgress their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall

be construed into an intention to surrender those rights.


THE administration of justice and the description of the laws ?

The state is divided into counties. In eve.. sy county are appointed magistrates, called jus. tices of the peace, usually from eight to thirty or forty in. number, in proportion to the size of the county, of the most discreet and honest inhabitants. They are nominated by their fellows, but commissioned by the governor, ancl act without reward. These magistrates have jurisdiction both criminal and civil. If the question before them be a question of law only, they decide on it themselves : but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arri. sing on it to the decision of the judges, But this division of the subject lies with their discretion only. And if the question relates to any point of public liberty, or is it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the state, and less affisting to the loser, than one which makes part of a regular and uniform sys. tem. In truth it is better to toss up cross

and pile in a cause, than to refer it to a judge whose mind is warped by any motive whatever, in that particular case.

But the common sense of

twelve honest men gives still a better chance of just decision, than the hazard of cross and pile. These judges execute their process by the sheriff or coroner of the county, or by constables of their own appointment. If any free person commit offence against the commonwealth, if it be below the degree of felony, he is bound by a justice to appear before their court, to answer it on indictment or information. If it amount to felony, he is committed to jail; a court of these justices is called : if they on examination think him guilty, they send him to the jail of the general court, before which court he is to be tried first by a grand jury of 24, of whom 13 must concur in opinion ; if they find him guilty, he is then tried by a jury of 12 men of the county where the offence was committed, and by their virdiet, which must be unanimous, he is acquitted or condemned without appeal. If the criminal be a slave, the trial by a county court is final. In every case, however, except that of high treason, there resides in the governor å power of pardon. In high' treason, the

pardon can only flow from the general assembly. In civil matters these justices have jurisdiction in all cases of whatever value, not appertaining to the department of the aclmiralty. This jurisdiction is twofold. If the matter in dispute be of less' value than four dollars and one sixth, a single member may try it at any time and place within his county, and may award execution on the goods of the party cast. If it be of that or greater value, it is determinable, before the county court, which consists of four at the least of those justices, and assembles at the

court house of the county on a certain day in every month. From their determination, if the matter be of the value of ten pounds sterling, or concern the title or bounds of lands, an appeal lies to one of the superior courts.

There are three superior courts, to wit, the high court of Chancery, the general court, and the court of aclmiralty. The first and second of these receive appeals from the county courts, and also have original jurisdiction, where the subject of controversy is of the value of ten pounds sterling, or where it concerns the title or bounds of land. The jurisdiction of the admiralty is original altogeiher. The high court of chancery is composed of three judges, the general court of five, and the court of admiralty of three. The two first hold their sessions at Richmond at stated times, the chancery twice in the year, and the general court twice for bosiness civil and criminal, and twice more for criminal only. The court of admiralty sits at Williamsburgh whenever a controversy arises.

There is one supreme court, called the court of appeals, composed of the judges of the three superior courts, assembling twice a year at stated times at Richmond. This court receives appeals in all civil cases from each of the supe. rior courts, and determines them finally. But it has no original jurisdi&tion:

If a controversy arise between two forrigners of a nation in alliance with the United States, it is decided by the Consul for their state, or,

if both parties chuse it, by the ordinary courts of justice. H one of the parties only be such a foreigner, it is triable before the courts of jus:

[ocr errors]

tice of the country. But if it shall have been instituted in a county court, the foreigner may remove it into the general court, or court of chancery, who are to determine it at their first sessions, as they must also do if it be originally commenced before them. In cases of life and death, such foreigners have a right to be tried by a jury, the one-half foreigners, the other natives. bri All public accounts are settled with a board of auditors, consisting of three members, appointed by the general assembly, any two of whom may act. But an individual, disatisfied with the determination of that board, may carry his case into the proper superior court. - A description of the laws. ;* ... The general assembly was constituted, as has been already shewn, by letters patent of March the ninth, 1607, in the fourth year of the reign of James the first. The laws of England seem to have been adopted by consent of the settlers, which might easily enough be done whilst they were few and living altogether. Of such adoption, however, we have no other proof than

their practice till the year 1661, when they * Were expressly adopted by an act of the assembly, except so far as 'a difference of condition' rendered them inapplicable. Under this adoption, the rule in our courts of judicature was, that the common law of England, and the general statutes previous to the 4th of James, were in force here ; but that no subsequent statutes were, unless we were named in tbem, said the judges and other partizans of the crown, but named or not named, said those who reflected

« ՆախորդըՇարունակել »