History of West Virginia, Old and New - Chapter IV INSTITUTIONAL HERITAGE FROM OLD VIRGINIA

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From The History of West Virginia,
Old and New, by James Morton Callahan, 1923, 
Vol. I, pg. 40-48

CHAPTER IV
INSTITUTIONAL HERITAGE FROM OLD VIRGINIA

(FROM ARTICLES BY DR. O. P. CHITWOOD AND JUDGE JOHN W. MASON)

West Virginia history at its beginning and throughout its course was
influenced by centuries of continuous institutional development or evolu-
tion, resulting from permanent and changing needs of organized society,
and from long experience in adjustments to secure these needs. It owes
a debt to the past from which its people inherited their manners and
customs of living, their social and religious ideals, their system of govern-
ment, and their laws. Its heritage from Old Virginia is well illustrated
by the earlier development of courts and laws.

On April 10, 1606, King James I granted to the Virginia Company
letters-patent for the establishment of two colonies in America, one to
be planted in northern and the other in southern Virginia. There was
to be a general council in England which was to exercise a supervisory
control over both the northern and southern colonies. The effort to
plant a colony in the north in the year 1607 proved a failure; but a like
attempt in the south the same year resulted in the establishment of a
permanent settlement at Jamestown. The local government of this colony
was entrusted to a council of seven men selected by the general council
in England.

In this council were vested all the powers of local government, legisla-
tive, executive, and judicial. In 1609 by a change in the charter, the
local council was displaced by a governor, who had almost absolute
power. The first governor, Lord De La Warr, arrived in Virginia in
June, 1610, and superseded Sir Thomas Gates, who had been governing
the colony for about a month as the former's deputy. Lord De La Warr's
council, consisting of six men chosen by himself, differed from the first
one in being only an advisory body.

Another important change was made in the government of the colony
when Sir George Yeardley became governor. In obedience to instruc-
tions issued by the company the previous year, he called together in
the church at Jamestown on July 30, 1619, the first representative
legislative assembly that ever convened in English America. This as-
sembly was composed of the governor and his council together with two
representatives from each of the eleven plantations. These representa-
tives of the boroughs, or plantations, were elected by the people and were
known as Burgesses. The Burgesses, after having been received by
the governor and council in the choir, retired to the body of the church
and entered upon their work. This was the beginning of the General
Assembly, which by 1680 had become a bicameral legislature. It corre-
sponded to its prototype, the English Parliament, and its lineal de- 
scendant, our present legislature. The governor and his council were
the upper house and the Burgesses, chosen by the qualified voters, con-
stituted the lower house. After 1661 the laws provided that each county
should send two representatives to the House of Burgesses. The towns
of Williamsburg, Norfolk and Jamestown and the College of William
and Mary also had one representative each.  Measures passed bythe
Assembly could be vetoed by the company up until 1624, and by the
king after that time. The Assembly met at the call of the governor, who
had power to prorogue or dissolve it. Besides being a law-making body,
the Assembly was also for some time a court of justice. In the early
years it had original and appellate jurisdiction in both civil and criminal
cases, and was the highest court of appeal in the colony. In 1682 the
Assembly lost its right to hear appeals, but after this we find it exercising
the privilege of passing bills of attainder. At no time during the colonial
period were the acts of the Assembly subject to review by the courts.

The infant colony was governed by the Company until 1624, at which
time the charter was annulled and Virginia became a royal province.
No change, however, seems to have been made in the local governmental
machinery except that the governor and other officials that had been
chosen by the Company were now appointed by the King.

By 1682, the Virginia constitution had begun to crystalize into its
permanent form. The chief executive officer was the governor, who was
appointed by the company until 1624 and by the king after that time.
His duties from the beginning were pretty much the same as those that
engage the attention of our chief executive to-day. Besides being at the
head of the administration, he was commander in chief of the militia,
made numerous appointments to office, and exercised the power of pardon
and reprieve. He also had power to remit fines and forfeitures and
could pardon all crimes except willful murder and treason. Those
could be pardoned only by the king.

Next to the governor in the administration came the council, a body
of varying size but usually numbering about twelve or thirteen. The
councillors of the first governor, as we have seen, were chosen by him-
self. Appointments to the later councils were made on the recommenda-
tion of the governor by the company in the earliest years and by the king
after the company's charter had been annulled. They were usually men
of means and influence, for a high property qualification ruled out
all but the well-to-do. They were not chosen for any definite period but
were re-commissioned whenever a new governor was appointed or a
new king came to the throne. The old councillors, however, were usually
continued in office by the new commissions and so they virtually held
their positions by life tenure. They not only received pay for their
services but also had a monopoly of most of the places of honor and profit
in the colony. Each one was usually the commander of the militia in
his own county with the rank of colonel. While the council was theo-
retically only an advisory body, yet it was frequently able to curb the
power of the governor. The councillors were also judges of the superior
court, and we have already seen that they constituted the upper house
of the Assembly. There is nothing in the governmental machinery of
West Virginia to-day that corresponds exactly to the old colonial council,
but to it our senate, our supreme court of appeals, and the governor's
staff all owe their origin.

The colonial judiciary developed into its final form at a pretty early
date. When the colony was first settled, the local council tried all
causes except certain ones specified in the charter. These were to be sent
to England for trial, and appeals to the council and company in England
were to be allowed in certain other cases. Ordinary cases were decided
by a majority vote, but all capital offenses were tried by a jury of twelve
men. When the local council was superseded by the governor and his
council, the power of dispensing justice was probably passed on from
the former to the latter body. At any rate, we find the governor and
council acting as a court of justice from 1619 to the end of the colonial
period. During the first years, the meetings of the council for the trial
of causes were held at irregular intervals. It was not many years, how-
ever, before a system of regular quarterly terms had been evolved, and
the council court had received the name of Quarter Court. In 1659, the
sessions of the Quarter Court were reduced to three a year. The term
Quarter Court had now become a misnomer, and in a few years that of
General Court was substituted for it. In 1684, the sessions were made
semi-annual, and from that time until the Revolution the court met
regularly in April and October.

The Quarter or General Court took cognizance of both civil and
criminal causes, and its jurisdiction was both original and appellate.
At first the governor and council decided causes of all kinds; but after
the county courts had grown into importance their jurisdiction was
restricted to the more important civil and criminal cases. The governor
presided over the court and passed sentence on convicted criminals.
Trial by jury was employed in important criminal cases; other decisions
were made by a majority of the judges present. The court held its
sittings at the capital, first at Jamestown and later at Williamsburg.
There seems to have been no state-house in Virginia for a long time, and
the business of government was for a while transacted in the house of
the governor. Later in 1663, we find that the sessions of the General
Court and Assembly were being held in ale-houses. However, a fine
state-house was built when Williamsburg became the capital, and the
General Court and Assembly were comfortably housed in this magnificent
building.

After the sessions of the General Court were reduced to two a year,
criminals were sometimes necessarily kept in prison six months before
they could be tried. The need for a more speedy administration of
justice led to the formation of a new criminal tribunal, the Court of Oyer
and Terminer. The establishment of this court as a permanent tribunal
dates from the first quarter of the eighteenth century. The governor
named the judges of this court, but in making out the list, he usually,
and after 1755 always, confined himself to councillors. The sessions of
the Court of Oyer and Terminer were held twice a year, and at such
times as to divide equally the intervals between the terms of the General
Court. Its jurisdiction was confined to important criminal cases. After
appeals to the Assembly were discontinued in 1682, these two courts
were the highest tribunals in the colony. The only appeal from their
decisions after that time was to the king and the Privy Council.

It had general original jurisdiction, and appellate jurisdiction from
the county courts. It was a court of last resort except as to certain
causes which might be appealed to the Courts of England and, for a
time, certain causes which might be reheard by the General Assembly of
the Colony.

The Judiciary System of Virginia was radically changed by the con-
stitution of 1776 and the laws made under it. The General Court
remained in name, but was deprived of much of its jurisdiction. A
Chancery Court was then created and equity jurisdiction taken from
the General Court.

By the act of the General Assembly of 1777, five judges were au-
thorized, and they were required to hold two terms of court every year.
By the act of December 22, 1788, the state was divided into districts.
The number of judges was increased and one of these judges was re-
quired to hold a term of court every year in each district. These terms
were in addition to the two sessions to be held by all the judges annually.
These district courts were courts of general jurisdiction except that they
had no chancery powers. In 1809 the district court was abolished and the
Circuit Superior Court of Law, substituted. The state was divided into
circuits, and courts held in every county of the circuit by a judge of
the Grand Court.

When the Chancery Court was abolished by the constitution of 1831,
the Circuit Superior Court of Law was superseded by the Circuit Su-
perior Court of Law and Chancery. These courts were also held by
judges of the General Court, one being assigned to each circuit. For
many years, the General Court had exclusive appellate jurisdiction in
criminal cases. It will be observed that prior to the constitution of
1851 all judges except those of the court of appeals were judges of the
General Court. After an existence of 190 years, this most important
of all Virginia courts was abolished by the constitution of 1851.

By the act of General Assembly of 1788, District Courts were created
and held by judges of the General Court. These courts were superseded
by the Circuit Superior Court of Common Law in 1809.

It has been the policy of the people of Virginia since the earliest
times to keep separate common law and chancery jurisdiction. In
colonial times chancery was considered as a separate jurisdiction but was
exercised by the ordinary courts sitting as courts of chancery.

The constitution of 1776 authorized the General Assembly to appoint
"Judges in Chancery." From that time until 1831 the two jurisdictions
were not only kept entirely separate but were exercised by separate
courts, except that County and Corporation Courts had jurisdiction in
both Common Law and Chancery, and even in these courts separate
"order books" were required. In 1777, three chancellors were au-
thorized to hold the "High Court of Chancery," but only one chancellor
(George Wythe) was appointed. He held this court until 1802 when
two additional chancellors were added and subsequently the state was
divided into four districts. The chancellors' court was abolished by
the constitution of 1831, and chancery jurisdiction given to the judges
of the Circuit Superior Court of Law and Chancery.

In 1851 when the General Court was abolished the Circuit Court was
established. This court had substantially the same jurisdiction as the
Circuit Superior Court of Law and Chancery. The constitution of
1851 established a somewhat complex judicial system, and made some
very radical changes. Under this constitution, for the first time in the
history of Virginia, judges were elected by the people and the term of
office limited to a certain number of years. The state was divided into
twenty-one judicial circuits, ten districts, and five sections. A judge
was to be elected for every circuit and required to hold at least two
terms of court a year in every county in his circuit. A district court
was to be held at least once a year in every district by the judges of the
circuits constituting the sections and the judge of the Supreme Court of
Appeals for the section of which the district formed a part; this was an
appellate court. For each section a judge of the Supreme Court was
to be elected by the voters therein.

The one important unit of local government in colonial Virginia
was the county, and the most important part of the local governmental
machinery was the monthly or county court. In 1634, the colony was
divided into eight shires, or counties, in each of which a court was to
be held every month. But this was not the beginning of the monthly
courts. We find that as early as 1624, two local courts had been estab-
lished, which were to meet every month and decide petty cases coming
up from the precincts adjacent to them. New counties were formed
from time to time and each was given a court as soon as it was organized.

The judges were at first known as commissioners of the monthly
courts, but were afterwards honored with the title of justice of the peace.
The office was one of dignity and was usually filled by men of influence
and ability. Except for a short time during the Commonwealth period,
the justices were always appointed by the governor. They were not
chosen for any definite period, and it seems that their commissions could
be terminated at the discretion of the governor. But it was the usual
practice for the governor in issuing new commissions to name the old
members. So the court was practically a self-perpetuating body. Since
the adoption of the constitution of 1851 justices have been elected by
the people for a number of years instead of being appointed for an indef-
inite term by the governor. They received no fees or salaries until recent
years. The number of justices to a county varied at different times and
in different counties, but usually ranged from eight to eighteen.

The justices after 1643 could decide certain minor civil and criminal
cases individually and their jurisdiction has remained substantially the
same from that time until the present. When they met together as a
county court they had a wider jurisdiction in both civil and criminal
cases. This local tribunal consisted of all the justices of the county,
though four was the necessary quorum for the transaction of business.
All decisions were governed by the opinion of the majority of the jus-
tices present. In some cases questions of fact were decided by a petit
Jury. The local tribunals were at first known as monthly courts be-
cause they convened once a month. But by a statute of 1643 they were
to sit only once in two months, and were henceforth known as county
courts. By the end of the seventeenth century, it had again become the
custom to meet every month, and this practice continued until the end
of the colonial period.

There was no lack of variety in the penalties that the early justices
enforced against offenders. Whipping was a very common mode of
punishment. As a rule the number of stripes given did not exceed
thirty-nine, but they were generally made on the bare back. In the rec-
ords of one county three cases have been found in which culprits received
one hundred lashes each on the the bare shoulders; and in another
county the sheriff was ordered to give a law-breaker one hundred and
twenty lashes on the bare shoulders. Other ways of punishing offenders
were to require them to sit in the stocks, lie neck and heels together, or
make public confession in church. Fornication and adultery were very
much frowned upon by the county courts. In the early years, men and
women who had committed those sins were sometimes whipped, and
sometimes were compelled to acknowledge their fault in church before
the whole congregation. A few instances are recorded in which women
who had erred from the path of virtue or had slandered their neighbors
were compelled to make public confession while standing on stools in
the church, with white sheets wrapped around them and white wands in
their hands.

The justices had many duties to perform in addition to those of trying
cases. They ordered the opening of new roads and saw that surveyors
appointed by them kept the highways opened and cleared. The levy
of the county was apportioned by them, and the list of tithables was some-
times taken either by themselves or by officers chosen by them for that
purpose. The justices licensed taverns and regulated the prices at which
drinks could be sold. All grievances and claims against the general
government were heard and examined by the county courts. During
a considerable part of the seventeenth century, they also had the power
to make or assist in making the by-laws of their respective counties.
The court "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."

The Virginia courts were governed in their decisions by the com-
mon law of England and by the Parliamentary statutes that were enacted
before the colony was settled, but not by any of the latter that were
enacted after that event except those that made mention of the planta-
tions. The first act of assembly that has been found in which the
common law of England is recognized as being in force in Virginia was
passed in 1662; but in all-probability the common law was to some extent
observed by courts during the entire colonial period with the exception
of the time during which the colony was under military rule.

The benefit of the writ of habeas corpus was not formally extended
to Virginia until 1710, when this privilege was brought over by Lieu-
tenant-Governor Spotswood. But the right was enjoyed in Virginia
before this formal recognition of it was made by the crown; for a writ
of habeas corpus was granted to Major Robert Beverley in 1682.

It was not to be expected that the common law of England could be
adapted to conditions in the new world without modification either by
statutory enactment or by judicial interpretation. As a matter of fact,
both methods were employed. A good many laws were passed by the
assembly dealing with local conditions, and the courts exhibited marked
originality in devising penalties for offenses. Some of these penalties
seem unduly harsh as judged by modern canons, but they were quite
in harmony with the sentiment and practice of the age. The number of
capital offenses was very much larger in colonial times than to-day, and
many of these severe laws were still in force after the Revolution. The
stealing of a hogshead of tobacco lying by the public highway, forgery
and the making of counterfeit were still punishable by death as late
as 1792.

The severity of the criminal laws was mitigated by the custom of
allowing the "benefit of clergy." When the court granted the benefit
to an offender, it substituted burning in the hand for the death penalty.
The old English custom required that the letter "M" be branded in
the hands of murderers and "T" in those of other felons. This imprint
was burned into the hand not merely to punish the offender, but also to
put a mark on him which would show that he had received the benefit of
clergy and thus keep him from deceiving the court into granting the
privilege a second time. Clergy was allowed to a criminal only once
during his life time.

The county court system remained substantially as it was organized
in the colonial period until 1851 when by the constitution of that date
changes were made in the selection of justices.

These changes had an injurious effect upon the "County Courts."
This marks the beginning of the down-fall of a system which had been,
for nearly two centuries, exceedingly popular. Many distinguished men
had served on this court, among whom was John Tyler, afterwards a
district judge of the United States, and the father of President John
Tyler. President Thomas Jefferson's first office was that of a justice
of the peace and member of the county court. An effort was made in
the constitutional convention of 1829-30 to abolish this court, but it was
resisted by such distinguished lawyers as Chief Justice John Marshall,
Governor Giles, Ex-President Madison, Benjamin Watkins Leigh, Philip
P. Barbour and others. The system was attacked on the grounds that
the appointment of members by the governor for life upon the recom-
mendation of the court itself, was not in harmony with republican princi-
ples - that being self-chosen for life, they could perpetuate their own
body according to their liking for ever. In addition to this it was
insisted that a court with such extensive jurisdiction should not be
selected from among men who had but little or no knowledge of law,
as was the case with a large number of the justices, or as was aptly ex-
pressed in a debate in that convention by Mr. Henderson of Loudoun
county: "the Magistrates were, in general, worthy men but they were
not acquainted with law and were not capable of duly discharging the
duties that were required at their hands." The convention, however,
endorsed the system and continued it in the constitution. The question
again arose in the convention of 1851, and although the court was not
abolished, its usefulness was, to a great extent, destroyed. In 1869 the
decisive step was taken by Virginia of radically changing this ancient
tribunal, by requiring the court to be held by a judge learned in the law.
The County Court system was not embraced in the first constitution of
"West Virginia, adopted in 1863, but was restored in almost its original
form by the constitution of 1872. It was very unpopular in West Vir-
ginia, and was abolished by a constitutional amendment in 1879.

There were no cities in Virginia in the seventeenth century. The
first town to grow into such importance as to need a local government
of its own was Williamsburg, the capital. In 1722, Williamsburg re-
ceived a charter from the king which constituted it a city and gave it
a separate government. The management of the affairs of the city
was entrusted to a mayor, recorder, six aldermen and twelve council-
men. The king appointed the first mayor, recorder and aldermen, who
were to elect twelve councilmen to hold office during good behavior.
These officials were to be a self-perpetuating body, as all vacancies
were to be filled by cooptation. They were to meet every year to choose
one of the aldermen as mayor for the ensuing year. The mayor, re-
corder, and aldermen were the judges of the Court of Hustings, and were
also justices of the peace in Williamsburg. The jurisdiction of this court
was enlarged from time to time, and by 1736 it was equal to that of the
county courts. In 1722, Norfolk was granted a city charter and a form
of government that was almost an exact copy of that of Williamsburg.
There were no other incorporated cities in Virginia before the Revolution.
The Assembly appointed trustees for the unincorporated towns whose
duties were "to attend to the surveying, letting and selling of the town-
land."

In every county there was a regiment of militia composed of all
the able-bodied men between the ages of sixteen, eighteen or twenty,
and sixty (these were the different limits at different times), except
certain classes of persons who were exempted from militia duty by law.
There were usually from eight to ten companies in a county, the number
of men in each ranging from fifty to seventy-five. Every captain called
his company together for drilling four times a year or oftener, and once
or twice a year all the militiamen of the county came together for a
general muster. The whole regiment was commanded by a colonel or
inferior officer, who was appointed by the governor and was usually
a member of his council.

When the shires were organized in 1634, sheriffs were appointed,
apparently for the first time. Before this time the duties of the sheriff
were performed mainly by the provost marshal, though the com-
mander of the hundred also sometimes executed the orders of the gov-
ernor. It seems that the sheriffs were appointed at first by the monthly
courts, but during the eighteenth century they were appointed by the
governor. The appointment was generally made on the recommendation
of the justices, and so they virtually made the selections. The sheriff
was one of the justices, though he did not act as such during his year
of office. His fees were paid in the fluctuating currency of that day,
tobacco, and when the price of tobacco was low, the place was by no
means a lucrative one. In 1710 the remuneration was so small that the
assembly deemed it necessary to pass a law making the office compulsory.
The duties of the colonial sheriff were not very different from what they
are now. He executed the orders and sentences of the courts and as-
sembly, made arrests, and summoned jurors and others to court. He
also usually collected the taxes, and sometimes took the lists of tithables,
that is, acted as assessor. The sheriff was also the keeper of the county
prison. Prison rules were in one respect more humane in colonial times
than they are now. The prisoners were not all shut off from the ad-
vantages of fresh air and exercise, but most of them were allowed to
walk about during the day time within a certain area around the jail.
By an act of 1765, the limits within which prisoners were allowed their
freedom were to include an area of not less than five nor more than ten
acres. Many persons sent to jail for debt used to take houses within the
prison limits and thus lived at home while serving out their terms of
imprisonment.

The office of constable was established early in the history of the
colony. We cannot say exactly when constables were first appointed,
but we know that by 1657 the office was an established part of the gov-
ernmental machinery of the counties. Every county was divided into
precincts, in each of which a constable was elected by the county court.
Any person elected constable could be forced to serve for one year. The
duties performed by the colonial constable were about the same as those
that have engaged his successors up to the present time.

Another important office was that of clerk of the county court.
County clerks were usually appointed by the secretary of state, and
were regarded as his deputies. The appointments were not made for
any definite period but were revocable at the pleasure of the secretary.
This patronage not only extended the influence of the secretary through-
out the colony, but also proved a source of considerable revenue to him,
as it was the custom for all the clerks to pay him a fee every year.

Prior to 1662, there was not a notary public in Virginia. Owing to
the lack of such an officer to attest oaths, statements sworn to in Virginia
were not given the credit in foreign countries to which they were entitled.
For this reason the Assembly in 1662 appointed one notary public for
the colony, and some years later authorized him to choose deputies
throughout the colony.

The legal profession was not, as a rule, encouraged by the legislation
of the colonial period. In 1643, it was enacted that all lawyers must
be licensed in the Quarter Court before being allowed to practice their
profession. Their fees were restricted to twenty pounds of tobacco for
every cause pleaded in the monthly courts and to fifty pounds for every
one in the Quarter Court. Within two years the assembly repented of
having allowed lawyers this amount of liberty, and passed a law pro-
hibiting attorneys from practicing in the courts for money. The reason
given for this action was that suits had been unnecessarily multiplied
by the "unskillfulness and covetousness of attorneys." The prohibition
of "mercenary attorneys" was repealed in 1656 and re-enacted in 1658.
The courts must have gotten along badly without the assistance of paid
attorneys, for in 1680 the assembly again passed a law which recognized
the right of lawyers to charge for their services. This law was soon
afterwards repealed, but professional attorneys had been again admitted
to the courts by 1718. During the eighteenth century we find no statutes
forbidding lawyers to receive compensation for their services, but the
fees charged by them continued to be restricted by the assembly.

It was not, perhaps, until 1732 that a license to practice law was
required. In May, 1732, the governor and council were authorized to
license persons to practice law who had been examined by men learned
in the law. * * * This act was repealed in 1742 but revived in 1745.
It was required by these acts that no persons should be licensed to
practice law unless found worthy in morals and in legal learning. This
precaution has, by the letter of the law, been observed ever since, although
as a distinguished law writer has remarked, "It is very loosely applied
in practice." No one can now obtain a license to practice law in this
state without first having a certificate from the county court of the
county in which he has resided for a year that he is man of good moral
character; and he must also have passed a satisfactory examination under
the rules and regulations prescribed by the Supreme Court of Appeals
or shall have diploma of graduation from the law school of the West
Virginia University.

During the first years of the colony's history, there was no attorney-
general in Virginia to give legal advice to the Quarter Court. But the
governor and council could send to England for an opinion if a cause
came before them involving a question of law which they felt incapable
of deciding. The first attorney general mentioned in the records was
Richard Lee, who was appointed in 1643. The attorneys-general were
appointed by the governor, and sometimes with the consent of the king.
He had to prosecute criminals before the General Court and the oyer
and terminer court, and to give his advice to these courts whenever
it was needful.

In 1711, it was found necessary to appoint prosecuting attorneys for
the counties. Before that time breaches of the penal laws were prose-
cuted in the counties by those persons who had reported them to the
courts, and informers were given one-half of all fines imposed for of-
fenses reported by them. It sometimes happened that an informer would
compound with the accused for his half of the fines and would then stop
the prosecution. This would cause the case to be thrown out of court,
and so the crown would fail to receive its half of the fine. There was
need, therefore, of a better method of prosecuting offenders in the
counties, and Governor Spotswood issued a proclamation appointing
prosecuting attorneys for the counties. These new officers came to stay,
and from this time on we find them performing their duties in the county
courts. They were deputies of the attorney-general and had to prosecute
offenders in the county courts as the attorney-general did in the General
Court and oyer and terminer court.

The right of jury trial was one of the privileges that the first settlers
brought with them from England, and this right was put in practice
before the settlement was a year old. In Dale's scheme of military gov-
ernment there was no provision for juries; but when the regime of free-
dom was inaugurated by Governor Yeardley, the people began again to
enjoy the right of trial by jury. In both the General Court and the
oyer and terminer courts, important criminal offenses were tried by a
petit jury after indictments had been made by the grand jury. The petit
jury in both courts was usually composed of twelve men.  The
petit jury came into the county courts as early as 1642. The grand jury
did not make its appearance in the county courts until 1645, and ap-
parently was not permanently established there until more than thirty
years later. A part of the work that now falls to the grand jury was
done in the colonial period, especially the early part of it, by the church-
wardens. They were required to present such offenses as adultery,
drunkenness, swearing, absence from church, and other offenses of like
character. There was a property qualification for jury service in both
the higher and lower courts. In the early years, it was the practice for
juries to be kept from food until after they had rendered their verdict.
A few cases are recorded in which juries of women were called on to
decide questions of fact in cases in which women were charged with
witchcraft or of concealing bastard children. In the seventeenth century
perplexed coroners in a few cases appealed to the ordeal of touch to
decide the guilt or innocence of persons accused of murder.

Up until 1732, the Virginia laws did not recognize the right of a
layman to claim the benefit of clergy unless he could read. In that year
the Assembly extended the benefit of clergy to negroes, Indians, and
mulattoes, and ordered that the reading test should thereafter never be
required of anyone who should claim the privilege. In the eighteenth
century, branding seems to have been regarded as a mere act of form
in Virginia, for it could be done with a cold iron.