Writ of Habeas Corpus; William and Mary College Quarterly Historical Magazine, Vol. 3, No. 3. Transcribed by Kathy Merrill for the USGenWeb Archives Special Collections Project ************************************************************************ USGENWEB ARCHIVES NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. Persons or organizations desiring to use this material, must obtain the written consent of the contributor, or the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. http://www.usgwarchives.net *********************************************************************** Writ of Habeas Corpus William and Mary College Quarterly Historical Magazine, Vol. 3, No. 3. (Jan., 1895), pp. 149-154. WILLIAM AND MARY COLLEGE QUARTERLY HISTORICAL MAGAZINE VOL. III. JANUARY 1895 NO. 3 WRIT OF HABEAS CORPUS. UNDER the charter granted April 6, 1606, to Sir Thomas Gates and others, for the planting of Virginia, the early settlers were declared entitled to all the liberties of British sub- jects. Except during the period of the martial laws introduced by Sir Thomas Smythe and Sir Thomas Dale, the common law and English statutes of a general character were in full force in the Colony, as is shown by the records of the County and General Courts. So when Robert Beverley was arrested by Sir Henry Chicheley in May, 1682, for complicity in the plant cutting in Middlesex, and he applied for the proper mandate, though the writ was at first denied, on the pretext that the subject of his confinement had been transmitted for the decision of his Majesty, it was subsequently granted, and the said Beverley was produced in court by the sheriff of York County, on whom the writ had been served, and was bailed in the penalty of L2,000 sterling(1). Beverley's lawyer, William Fitzhugh, descants to his client, in his letters of May 29, 1682, and January 8, 1682-'83, of the effect on his case of Magna Charta, the Petition of Right, the Habeas Corpus, and the other English statutes protecting the liberty of the subject, and fully recognized in Virginia. In York county the Governor, acting as Chief-Justice, granted the writ in a civil case pending at nearly the same time, of which the following is the record(2): "York County: "Complaint being made to mee by ffrancis Page(3) Late Sheriff, that Mrs. Elisheba Vaulx(4) standeth indebted to him y sum of three thousand and odd hundred pounds of tobacco & forty shillings sterl. by account for fees and shee by a writt of Habeas Corpus from ye Rt Honble ye Governr being delivered to ye sheriff of James Citty & process according to Law not to bee had agt her in this county, "These are therefore in his Matys name to will & require you to attach soe much of the Estate of ye above named Elisheba Vaulx as you shall find in the hands of Coll William Cole & y same soe attached yt you detayne in yor hands Page 150. or otherwise soe provide itt may be forthcoming, hereof you are not faile as alsoe to make due returne of this precept. Given under my hand this 22d day of May, 1682. OTHO THORPE(5) "To the sherriff of York or his Deptys" "May y 22d 1682 "Then served this Attachmt Coll Cole(5) promising yt what hee had hin his hands should re- maine for y same, wch Coll Cole acknowledged to bee four pounds nine shillings & seven pence P Samll Bainton(7), Bailiff of York County. "26 June, 1682, Recorded P E. Jennings(8) Cl. Cur." All the powers of the writ were exercised by the justices, who were invested with full common-law and chancery jurisdiction. This might be inferred from the broad language of their commissions. The commission granted by Governor Edmund Andros in 1682 to the justices em- powered them, jointly or severally, "to keepe the peace for their county and to keepe or cause to be kept all ordinances, statutes of England & lawes of this Country made for ye good of ye peace, & for conservation of ye same & for quiett Rule and Governmt of ye people in all & every Artickles thereof in ye said County according to ye force forme & effect of ye Same. And to Chastise & punish all Psons offending agt the forme of these Ordinances, Satutes of England, & lawes of this Country or any of them in the County aforesaid, And to cause to come before you or any of you all those Psons who shall threten any of their Maties liedge people eyther in their bodyes or burning their houses to finde sufficient security for ye peace and for ye good behavior towards our soveraigne Lord & Lady ye King & Queen, And all their people. And if they shall refuse to finde such security then to be kept safe in prisson untill they fine such security." The commission then proceeded to constitute the county court by any four of the justices, whereof one of four certain justices called the Quorum should be one, to meet at the usual place on certain days, according to law, "to hear and determine all suites & Controversies between pty and pty, doeing therein what Justice apptaines according to ye lawes of England, & this Country, with power likewise to you & every of you to take deposicons & examinacons upon oath for the better manifestacon of the truth of all such matters & causes. And to keep or cause to be kept all ordors of Cort ordors of Councill & proclamacons directed to you or coming to your hands from me & ye Councell. And to punish ye offendors & breakers of ye same according to ye lawes of England & this Country & further to keepe or cause ye Clarke of yor Cort to keep Records of all Judgmts & controversies decided & agreed upon by you or any four or more of you." Page 151. Many instances occur in the county courts of the interference of single justices to protect the liberty of the person - the interference going to making the party holding another in restraint to give bond till the next court, or actually to taking the party restrained (gen- erally a servant) out of custody, and remitting him to the care of the constable until the next county court. An instance of the former is at hand in the case of Mary Rawlins, who was maltreated by her master, John Russell(9), and asked the protection of Governor Berkeley. He addressed the following note to Major Joseph Croshaw, one of the justices of York County: "Majr Corshaw. Here hath been a woman servant wth mee who hath been most unchristianly & cruelly used by hir master one Jno Russell. I desyre you to call him before you & if hee will not give security for his better using of hir, then you are to bind him over to the County Court, when I doubt ot but the Comrs will take care that servants shall be Christianly used. "Yor freind & servant WM. BERKELEY." "May 2d A 1661. Major Croshaw bound Russell in the sum of forty pounds sterling to keep the peace until the next court. At this term the court declared the bond forfeited, as Russell had broken the bond by using "uncivill, contemptuous & rude language towards Majr Joseph Croshaw to the abuse of all Magistrates & Magistracy", and he was put under a new bond. But at the court ensuing, "John Russell, craving the benefit of ye Kings most gratious pardon & humbly ac- knowledging his faults & begging the Courts forgiveness alsoe is discharged from his bond for ye good behaviour & from ye order of ye last Court. It is evident that Spotswood introduced no new writ into Virginia, but merely gave solemn expression to the Queen's endorsement of the ancient practice. As I do not remember having seen his proclamation in print, I introduce it here from the records of York County: Virginia BY THE HONBLE THE LEIUT GOVERNOUR A PROCLAMATION. Whereas her Majesty, out of her Royall grace & Favour to all her Subjects of this her Instructions to Signify unto me her Royall will & Pleasure for preserving unto them their Legal Rights & properties wch said Instructions are as followeth: Whereas we are above all things desirous that all our Subjects may enjoy their Legal Rights & propertys you are to take especiall Care that if any person be Comitted for any Criminal matters (unless for treason or felony plainly & Especially Expressed in the Warrant of Committmt) he have free Liberty to petition by himself or otherwise the Chief Barron or any one of the Judges of the Comon Page 152. pleas for a writt of habeas Corpus wch upon Such application Shall be granted & Served on the Provost Marshall Gaoler or other officer haveing the Custody of Such Prisoner or Shall be left at the Goal or place where the prisoner is Confined & the said Provost Marshall or other officer Shall within three days after such Service (on the petrs paying the fees & Charges & giveing Security that he will not Escape by the way) make return of the writt & prisoner before the Judge who granted out the sd Writt and there Certify the true Cause of the Im- prisonmt & the sd Barron or Judge Shall discharge Such Prisoner takeing his Recognizance & Suretys for his appearance at the Court where the offence is Cognizable & Certify the sd Writt & recognizance into the Court unelss Such offence appear to the sd Barron or Judge not bailable by the Law of England And in Case the said Barron or Judge Shall refuse to grant a writt of Habeas Corpus on View of the copy of Committment or upon Oath made of Such Copy haveing been denyed the said Prisoner or any person requireing the Same In his behalf or Shall delay to discharge the prisoners after the granting Such Writt the sd Barron or Judge Shall incurr the forfeiture of his place. You are likewise to declare our pleasure that in Case the Provost marshall or other officer Shall imprison any person above twelve hours Except by a mittimus Setting forth the cause thereof he be removed from his said office. And upon the applicacon of any person wrongfully Committed the barron or Judge Shall issue his warrant to the Provost Marshall or other officer to bring the Prisoner before him who Shall be dis- charged without bail or paying fees & the provost Marshall or other officer refuseing obedience to Such Warrant Shall be thereupon removed & if the sd Barron or Judge denies his warrant he Shall Likewise incurr the forfeiture of his place. You shall give directions that no pri- soner being Sett at Large by an Habeas Corpus be recommitted for the Same offence but by the Court where he is bound to appear & if any Barron Judge Provost Marshall or other officer Contrary hereunto Shall Recommitt Such person so bailed or delivered you are to remove him from his place and if the provost Marshall or other officer haveing the Custody of the Prisoner neglects to return the Habeas Corpus or refuses a Copy of the Commitmt within Six hours after demand made by the Prisoner or any other in his behalf Shall likewise incurr the forfeiture of his place, & for the better prevention of long imprisonmt. You are to appoint two Courts of Oyer & Terminer to be held yearly Vizt On the Second Tuesday in December & the Second tuesday in June the Charge whereof to be paid by the Publick treasury of our said Colony not Exceeding L100 Each Session. You are to take Care that all prisoners in Cases of Treason or felony have the Liberty to petition in open Court for their tryall that they may be indicted at the first Court of Oyer & Terminer unless it appears upon Oath that the Wit- nesses against them could not be produced & that they be tryed the Second Court or discharged. And the Barron or Judge upon motion made the last day of the Sessions in open Court is to bail the Prisoner or upon the Refusall of the said Barron or Judge & Provost Marshall or other officer to do their Respective dutys herein they Shall be Removed from their Places, Provided always that no person be discharged out of Prison who Stands Committed for debt for any decree of chancery or any Legal proceedings of any Court of Record. And for the Pre- venting any Exactions that may be made upon Prisoners you are to declare our pleasure that no Barron or Judge Shall Receive for himself or Clerks for granting a writt of Habeas Page 153. Corpus more than two Shillg Six pence & the like Sum for takeing a Recognizance & that the provost Marshall Shall not Receive more than five Shillings for every Committmt One Shilling three pence for the bond the prisoner is to sign One Shilling three pence for every Copy of a Mittimus & one Shilling three pence for every mile he bringeth back the Prisoner. In Obedience to her Majtys Commands & to the intent that all her Subjects may be fully Informed how much they owe to her Majtys Royall favour for these her gratious Consessions I Alexander Spottswood Esqr her Majtys Leiut: Governr of her Colony & dominion of Virga have thought fitt by & with the advice of her Majtys Councill to issue this my Proclamation hereby Commanding in her Majtys name the Sheriffs of the Respective Countys within this Colony to Cause this Significacon of her Majtys will & Pleasure to be openly read & Published at the Court houses of their Respective Countys at the next Court after the Receipt hereof and I do further with the advice aforesd require & Comand the Justices of the Respective County Courts to Cause the Same to be Registered in the Records of their said Countys & to observe these her Majestys Commands as they will answer the Contrary at their Perill. Given at Willsburgh under my hand & the Seale of the Colony this 6th day of July 1710 in the ninth year of her Majestys Reign. God Save the Queen A. SPOTTSWOOD York County August 24th 1710 Published in Court & admitted to Record Test: PHIL LIGHTFOOT Cl Cur NOTES. (1) Hen. Statutes, iii., 541-571. Hening errs in saying that "the immediate actors in the plant-cutting escaped prosecution". Some were executed. See ibid., page 563. (2) Va. Mag. of Hist. and Biog., Vol. I., paged 48, 109. (3) Francis Page, eldest son of John Page, of the Council, was born in 1657, and died May 10, 1692. He was a justice of the peace of York county, and the first clerk of the House of Burgesses appointed by the Governor. He married Mary, daughter of Governor Edward Digges. (4) Elisehba Vaulx was wife of James Vaulx, merchant of London in 1663, justice of York county in Virginia in 1760, and died in 1681-2. His son, Robert, removed to Dorchester county, Md., and his wife married there one John Franke. James Vaulx was brother of Robert, Humphrey, and Thomas Vauls, whose descendants located in Westmoreland County Va. (5) Otho Thorpe was doubtless of the family of George Thorpe, Esq., of the King's Privy Council, and who was massacred by the Indians in 1622, while acting as superintendent of the college land. He married, 1st, Elizabeth, the widow of his kinsman, Richard Thorpe (died in York county in 1660), who had two sons, Richard and George. He married,2ndly, Dorothy, widow of Samuel Fenn; 3rd, Frances, who survived him, and married John Annesley, of Westminster, England. His step-daughter, Sarah Fenn, married Thomas Claiborne, Thorpe died in the parish of All-Hallows-the-Wall in London in 1686-7. His devisees were: Thomas Thorpe, his nephew, and his wife Catharine, daughter of Francis Seaton, of Polebrook, in Northampton county, Eng- Page 154. land; his cousin, John Grice, justice of the peace of James City county; and his niece, Hannah Thorpe, who married John Pell, citizen and cooper of London. In 1700 Hannah Pell and her husband conveyed "Powhatan", in James City County, and other property of Thorpe's, to James Whaley, in whose honor Mary, wife of James Whaley, established in 1706 the free school in Bruton parish known as the "Mattey School", now attached to William and Mary College as a model school. (6) For an account of Col. William Cole and his descendants, see QUARTERLY, Volume I, January, 1893. (7) Samuel Bainton, "Gent", died about September, 1690; and his will, after leaving 500 pounds of tobacco to his brother-in-law, Thomas Hicks, in London, an equal amount to his wife, and twenty shillings to William Sedgwick, gave the residue to Mr. thomas Thorpe and Catharine, his wife. (8) Edmund Jenings, son of Sir Edmund Jenings, of Ripon, was clerk of York County, Attorney-general, Secretary of State, and President of the Council. (Richmond Critic, Novem. 19, 1888). He died June 2, 1727. (Bruton Register). Peter Jenings was aged 27 in November, 1658. (York County records.) He was Attorney-General of Virginia, and died in 1671. He married Catharine, daughter of Sir Thomas Lunsford. (Va. Mag. of Hist and Biog., Vol. I., p. 115). She died May 17, 1685, having married 2ndly Ralph Wormeley. (Parish register.) Peter Jenings, of Gloucester County, mentioned in the register of Abingdon Parish, must have been a son of the first Peter Jenings. The following entries occur in that register relative to the children of Peter and Sarah Jenings: Philip bapt. April ye ---- 1678; Elizabeth born Feb. 23, 1684; Thomas, bapt. Feb. 20, 1686; and Rebecca bapt. May 18, 1690. "Col." Peter Jenings, first named, was undoubtedly a kinsman of Edmund Jenings, he having a brother named Peter. (Le Neve's Pedigrees of Knights. See also N.Y. Curie for Jenings' pedigree, Vol. I., p. 60.) (9) Henry Taylor, of Bruton parish, in 1674-5 left the proceeds of forty hogsheads of tobaco "to be equally divided between the children of John Russell deced, formerly servant to the old Countess of Bedford, when they shall meet together and not before". John Russell's will was proved in York county, January 24, 1667-68, and it devises his land to his son John, and requires his daughter Elizabeth "to be kept to schoole soe long as she keepes herselfe wthout a husband". Considerable estate in cattle, furniture, etc.