Roles in the Court

Program Information
Transcript
Virginia Standards

Program Information

Program: Judicial Independence in the New World
Segment Number: 8 (Watch entire program)
Duration: 00:07:30
Year Produced: 2009
Description:

There is this idea that yes, England is far off. To some degree, Williamsburg is far off, but the people who serve in the local community are the connection with those far off governments. And the people who are appointed to serve on the court are from that community.

The court system is an ever-changing and evolving entity, and there are key moments of history when Virginia's people and its judicial system made everlasting impressions on the country. JUDICIAL INDEPENDENCE IN THE NEW WORLD tells the story of the development of the court system in the early years of our nation's history. Historians take us back to the Court Days and Pre-Revolution and Post-Revolution periods to explain the rule of law and the basics of the court system we know today.

For more information visit: http://www.ideastations.org

Transcript

Holton:
We think today of the courthouse with all the staff working there and the clerk’s office, and so forth. Well there was a clerk, but there was really not much of a clerk’s office. That is that most of the clerks had maybe one employee in the bigger counties, or zero employees in other counties. The court system, I would like to say, didn’t exist. You had part-time judges, people who were, spent most of their time growing tobacco, supervising slaves who were growing tobacco. Few of them were merchants, some of them were lawyers. This was sort of something they did for a couple of days a month.

Hobson:
They were of the planters, landed gentry, the justices of the peace in the counties, or the magistrates as they were called. The kind of substantial men of affairs and the leading men of the various counties sat on these courts and they were virtually self-perpetuating. Some of the same families appeared over and over again, as members of these courts. The county courts, and the general court, were not just courts of law, they were actually the government. They had executive, legislative and judicial responsibilities. It was a system in which, you know, it was run by amateurs, and I don’t mean that disparagingly. But they were not trained professional lawyers themselves, the judges weren’t. There were certainly no requirements.

And on the superior court level and the general court, same thing just on a more substantial scale, the more substantial leading men of the colony sat on the Governor’s Counsel, which was an executive counsel, was also the upper house of the legislature, the General Assembly and the supreme, superior court of the colony too. So it was the same people.

Howard:
In the 17th century the profession of being a lawyer was held largely in disrespect. I think that changed in the 18th century. In America, for example, the bar grew in stature and respect.

Shepard:
Most of the attorneys that are practicing in the 18th century have learned more or less on the job, as apprentices. They’ve learned in Virginia and then gone to the bar. And it’s important to understand too that they did not have bar associations like we do now. They didn’t have bar examinations. There was no control over who came to the bar. The assumption was, if you were good, you would get business, and if you weren’t you would find another profession because you wouldn’t get business. But there was a rising understanding of what it meant to be a practicing attorney.

Most of the lawyers in that time period would be going county to county, and they would be essentially riding circuit from courthouse to courthouse. And the legislature, which did have attorneys in it as members of the House of Burgesses, were very careful to make sure when they created new counties that the Court Days that they assigned did not conflict with the Court Days in any of the adjacent counties. So that the attorneys would be able to move from one courthouse to another courthouse and have business in all those different localities. That gave them a good living. And you would often find then the same attorneys facing each other from courthouse to courthouse in different trials. There would be a certain a fraternity developing among them, and even though they would oppose each other in cases there was this pretty strong professionalism developing with them.

Pagan:
Lawyers came about because you need someone who knows how to fill out the pleadings. You had to fill out a, in Virginia, it was called a petition, stating what your cause of action was. I have a dispute with you, well I have to describe it in legal terms, and I have to use the kind of language that will prevent my suit from being thrown out of court. And you will sometimes see that, even the local judges, dismissing a case because it didn’t comply with English standards of pleading. So you need somebody to help you fill out that piece of paper. Here you have a guy who is serving as a lawyer, says “Here’s what you need to say, here’s what you need to prove in order to succeed in this case.” If somebody could afford the lawyer then they would help them plead and present the case, make arguments of why the other side’s claim was inadequate and so forth.

Bryson:
The person who had the claim would sue an action at law against the person who he claimed owed him the money or stole his pig or whatever. The jury would decide the issues of facts and the judges would decide the issues of legal proceedings and law, always with an eye to the clerk of court to make sure that things were on the right track.

The clerk kept the county court on the straight and narrow in terms of legal procedure. It was the clerk who sort of managed the docket and sent out all the notices in the name of the court. But ultimately it was the lay magistrates who voted on guilt or innocence or ruled on motions in court ultimately. But, of course, the county courts, unlike today, had juries and you had a right to a jury trial in the county court. So the lay magistrates, of course, were controlled not only by the clerk on issues of law but by the jury on issues of fact.

Narration:
Juries were formed from among the people attending Court Day. And although there were basic requirements for becoming a member of the jury, these requirements were often ignored when proper candidates were scarce. Anyone not participating in the jury or involved with a case would either watch the proceedings or simply socialize with other members of their community. The monthly court sessions became a source for Virginia’s residents to get their news and learn about their government.

Shepard:
There is this idea that yes, England is far off. To some degree, Williamsburg is far off, but the people who serve in the local community are the connection with those far off governments. And the people who are appointed to serve on the court are from that community. They are families that are known. They may not be the kinds of families that I sit down to dinner with, but I, at least I know them, may even have business with them. And they are the ones sitting on the bench and administering the justice. So there is this connection that people have on a local level that they don’t have necessarily with Williamsburg or they certainly don’t have with London. For most of them, the way it is getting to them is the fact that they are all getting together when the court meets and that becomes the centrality to their communal life. That’s where the information comes from, that’s where they have this interaction, that’s where they get an understanding of what Virginia, and Virginia’s government is all about.

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