Virginia Judiciary in the Colonial Period

Patrick Henry gained fame initially as a lawyer arguing in Hanover County court
Patrick Henry gained fame initially as a lawyer arguing in Hanover County court
Source: Virginia Museum of History and Culture, Patrick Henry Arguing The Parsons’ Cause

The initial settlement at Jamestown was led by a council, whose members were appointed by the managers of the Virginia Company in London. The settlers had no role in choosing the council. Members were not revealed until after the Susan Constant, Godspeed, Discovery had crossed the Atlantic Ocean and reached Virginia, a technique that ensured Captain Christopher Newport was clearly in charge of the three ships and their passengers during the trip.

The members of the council conducted the first English election in the colony, choosing Edward Maria Wingfield as their president in May 1607. John Smith reported later that the Virginia Company gave the council full responsibility for implementing justice in the colony. The President had two votes on that seven-person council, but not a veto:1

Matters of moment were to be examined by a Jury, but determined by the major part of the Councell, in which the President had two voyces.

One of the first decisions of the council was to exclude John Smith from his appointed position on the council, and to allow him to join officially two months later. Smith was a voting member during the trial and execution of Captain George Kendall as a spy, and for the decision to expel Wingfield from the Council and imprison him on the Discovery until the ships of the First Supply returned to England in April, 1608.

The Virginia Company struggled to find effective leaders to manage the colonists. The company sent people across the Atlantic Ocean as indentured servants of the company, or as employees hired for specific services (such as the glassmakers and soldiers). The council members were jealous of each other, contentious in their discussions, and rarely able to reach a consensus and pursue a policy consistently. As a governing body, the council was ineffective at directing the work of the company employees and in resolving conflicts. The disruptive behavior demonstrated by the leaders in Jamestown set a bad example, and few colonists worked hard to obey inconsistent orders that might be countermanded soon.

At one point John Smith operated as a strongman, usurping all authority from the other councilors. He warned the colonists that he controlled the storehouse of food, which was a company asset. Unless he was satisfied with a colonist's work, there would be no food rations issued. Smith was blunt in announcing he had centralized legal and political authority. As president of the council between September 1608-1609, he was the judge, jury, and executioner - and there was no appeal from his decisions:2

You see now that power rests wholly in myself: you must obey this now for a Law, that he that will not work shall not eat (except by sickness he be disabled) for the labors of thirty or forty honest and industrious men shall not be consumed to maintain an hundred and fifty idle loiterers.

And though you presume the authority here is but a shadow, and that I dare not touch the lives of any but my own must answer it: the Letters patents shall each week be read to you, whose Contents will tell you the contrary.

I would wish you therefore without contempt seek to observe these orders set down, for there are now no more Councilors to protect you, nor curb my endeavors. Therefore he that offends, let him assuredly expect his due punishment.

Smith left Virginia in October 1609, after he was wounded in a gunpowder explosion in what may have been an assassination attempt.

During the Starving Time of 1609-1610 after Smith left, one man murdered his wife and ate portions of her body. The official report from the Virginia Company said he was investigated, arraigned, and then "burned for his horrible villainy." Arraignment was a traditional part of English justice, but burning a condemned man to death was an unusual form of punishment in Virginia.3

Indentured servants may have wished that they were governed by English common law in the colony. The 1606 charter was clear that all persons:4

which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.

John Smith is the only colonist honored with a statute at Jamestown
John Smith is the only colonist honored with a statute at Jamestown

Nonetheless, far across the ocean from the king's justice, the Virginia Company issued and enforced all the rules. Basic common law provisions such as trial by jury were not provided to Virginia colonists until 1618.

The company obtained a revised charter in 1609 that allowed it to appoint a military governor. Sir Thomas Gates finally arrived in 1610 as the new governor, after having spent the Starving Time winter stranded on Bermuda. Lord De La Warr arrived soon afterwards as the replacement for Gates, who was presumed lost at sea. De La Warr served a year before returning to England. Sir Thomas Gates was governor, with Sir Thomas Dale serving as first High Marshal, between 1611-1616.

Harsh company policies issued by Gates, De La Warr, and Dale became known as the "Lawes Divine, Morall and Martiall." Dale's strict controls over the soldiers in the colony were a form of martial law. Behavior by the settlers was also constrained by sanitary regulations, limits on trade with Native Americans, and other directives that established order in the company's Virginia outpost.

Imprisonment was an expensive punishment, requiring the colony to provide food for someone unable to work, so those caught breaking the rules normally suffered one-time corporal punishments such as whippings. The company-appointed governor was the local judge with final authority to rule on guilt and to impose punishments.

Those who were found guilty had only one alternative to accepting the punishment: flee into the wilderness and hope for better treatment from the Native Americans. Though the odds of a better or longer life among Powhatan's people were thin, flight was a reasonable option because many crimes were punishable by death, including stealing food:5

What man or woman soever, shall rob any garden, publike or private, being set to weed the same, or wilfully pluck up therin any roote, herbe, or flower, to spoile and wast or steale the same, or robbe any vineyard, or gather up the grapes, or steale any eares of the corne growing, whether in the ground belonging to the same fort or towne where he dwelleth, or in any other, shall be punished with death.

As the first indentured servants completed their terms of service, the Virginia Company had to deal with freed men with less obligation to follow the company's direction. In addition, "private plantations" were developed separate from the Governor and his council's total control. Tobacco farming finally provided an economic basis for settling in Virginia, but the Virginia Company lost the ability to monopolize production. It could not direct profits exclusively to the investors who had adventured capital and bought company stock.

Complaints from former and current indentured servants in Virginia came back to England on every returning ship. The company found it harder and harder to recruit new indentured servants. The solution, adopted after internal strife among the investors, was to offer both economic and social incentives.

In 1617 the Virginia Company promised 50 acres of land to new immigrants or, most typically, to the person who financed the shipment of a new indentured servant to Virginia. The "headright" grants were a major incentive for many people in England. Few, other than the children of the already-wealthy elite, had the opportunity to become a landowner and gain economic independence.

Virginia Company investors replaced their leadership in 1618. Sir Thomas Smythe lost his position as Treasurer, a position comparable to a combination of the modern Chair of the Board and Chief Executive Officer roles. Sir Edwin Sandys became the new leader.

To make migration more attractive, the company changed the strategy for managing people in Virginia. It adopted more lenient laws that, together with a new governor, made the life of a colonist more attractive. New instructions were sent with Governor de la Warre, known as the Great Charter or "Charter of Orders, Lawes, and Privileges," to replace the harsh "Lawes Divine, Morall and Martiall." A representative assembly was authorized and the colonists gained a role in governing themselves. The decision to offer greater self-rule to the colonists was not based on a philosophical debate about the role of government. The Virginia Company changed the form of government because it sought to encourage more people to migrate to Virginia.

At the same time, the company ameliorated the burden of traveling to Jamestown for government decisions. It initiated monthly courts "in convenient places," meaning near the different settlements already scattered along the James River. Formal boundaries defining the jurisdiction of each court were not established; but precincts for each court included adjacent plantations. Minor civil cases were settled in the monthly courts, while the significant criminal cases were still tried by company officials in Jamestown.

The Great Charter replaced the council-elected President with a Governor chosen by the Virginia Company officials. The company-appointed council initiated first in 1607 was retained as an advisory body, and became the Governor's Council. The Governor's power to serve as the final authority to make decisions was diminished after the first General Assembly met in 1619. The governor, his advisory Governor's Council, and the burgesses met as a single Grand Assembly. The governor and the members of his council served as judges, and the Governor's Council morphed into the highest judicial body in the colony.

King James I cancelled the charter for the Virginia Company and made Virginia into a royal colony in 1624. A year later Charles I became king, and he allowed the General Assembly to continue meeting. Starting in 1643, the Governor's Council and the House of Burgesses began to operate as a bicameral legislature, with meetings at separate places and times.

When colonists died, a formal legal body was needed to officially transfer ownership of land and personal assets. Efforts by Acting Governor Samuel Argall to steal the assets of Lord De le Warr demonstrated the need for oversight. The General Assembly met only once a year, so it could not deal with routine procedures within a reasonable time. The governor of the colony began to designate local leaders to serve as local commissioners. They were authorized to manage the "proving" of wills and deal with other minor cases. Commissioners became known later as justices of the peace.

The first local courts were created in Charles City and Elizabeth City in 1624. Warwicke River, Warrosquyoke, and Accawmacke were added in 1632. The General Assembly passed a law changing the name of monthly courts to county courts in 1642.

The governor also assigned people to serve as local military commanders. The General Assembly finally formalized local government authority by creating county courts in 1634. The judges on county courts were appointed by the governor until a new state constitution went into effect in 1851, with a brief exception in 1652 during the English Civil War when the General Assembly assumed that responsibility.

A royal proclamation from Charles I in 1642 required the General Assembly to designate where each monthly court would meet. New counties were created as the colonists spread westward, with a meeting site for the county court near the center of the county. When trips for western settlers to county courts became excessively long and required overnight stays that were expensive, residents would petition the General Assembly to divide an existing county. It was common to establish a new location for court sessions of the old county, if the new boundaries resulted in the old meeting location being far from the center.

the General Assembly created new counties between 1634-1880 to ensure local residents could get to sessions of court without making excessively-long trips on foot or by horse
the General Assembly created new counties between 1634-1880 to ensure local residents could get to sessions of court without making excessively-long trips on foot or by horse
Source: New York Public Library Art and Picture Collection, Judges, Lawyers, And Clients Going To Court Through Western Woods (1876)

Members on the monthly courts dealt with minor offenses and civil cases, and managed local government services such as caring for orphans and recording land deeds.

In England, ecclesiastical courts processed wills and settled estates. Virginia never created ecclesiastical courts, largely because no Church of England bishop ever appeared in the colony to create a church-based bureaucracy, so county courts filled the void. Even blasphemy and failure to attend church services were offenses tried in county courts. The first "commissary" appointed by the Bishop of London proposed creating such courts, but gained no support from the governor or General Assembly.

The members of the county court served for as long as they desired until resigning or dying. Local justices recommended replacements, and the governor typically accepted those recommendations. Royal governors were not familiar with the young members of the gentry, ready to take their first positions of responsibility by serving on a county court. By the 1660's the county courts typically had eight justices

The justices of the court assembled once each month. Court proceedings were delayed if there were not four justices present, including at least one member of the "quorum." The quorum was a select group of experienced members of the county court. Having a member of the quorum present enhanced continuity of justice. Before the American Revolution, there was limited access to documentation regarding laws of the colonies or precedents from previous court decisions. Oral history and human memory were essential in making decisions consistent with colonial laws and previous cases.

To reduce their workload of hearing petty cases, and to speed the decision process, the 1642 General Assembly authorized an individual magistrate to make a decision on disputes involving no more than 200 pounds of tobacco or 20 shillings.

In 1657-58, the threshold was raised to 350 pounds, and to 1,000 pounds if two magistrates heard the case together. The amount of tobacco that one man could raise in a year was roughly 1,000 pounds. If one of the parties in a case was not satisfied, a magistrate's decision could be appealed to the monthly meeting of the county court.

In addition, indentured servants could appeal to the nearest magistrate if they were mistreated by their owner or retained beyond the term of their indenture. However, restrictions on enslaved people were tightened. In 1692, the General Assembly allowed local officials to gather as special courts of oyer and terminer, to rule on cases involving enslaved people without a jury trial.

Members of the Governor's Council and even the governor participated in some of the initial county court sessions. The 1661-62 General Assembly assigned members of the Council to sit in on county court sessions annually in August, essentially "riding circuit" as a visiting judge. That oversight by the Council members was expected to encouraged the local justices of the peace to be more engaged, and gave local residents an opportunity to express their displeasure at the quality of justice being administered by local magistrates. Members of the Council managed to avoid this duty unless they had a particular interest in a case due to the complicated logistics of travel. Counties did not encourage their participation due to the cost of hosting visiting judges.

The Governor's Council, together with the royal governor, served as the one appeals court in the colony when participants in a case objected to a decision made by the county courts. Modern procedures where a judge might recuse themselves for a conflict of interest were not standard practice in colonial Virginia.

In 1632, the General Assembly required the Governor and his Council to hold court four times a year. The pattern of meeting in March, June, September, and December led to calling those meetings the Quarter Court. By 1661 the seasonal pattern had changed, and the Quarter Court was renamed the General Court. The General Assembly had the authority to hear appeals from the General Court until King James II issued new royal orders in 1683, after which the General Court was the court of last resort in the colony. Starting in 1710, the governor and council began to meet as a General Court in March and September, while the June and December meetings were held as a Regular Court of Oyer and Terminer to try cases involving free people accused of serious crimes.

Throughout the colonial era, the Privy Council in London was always empowered to hear appeals. Few people had the wealth and time required to take a case to the Privy Council; perhaps the most famous case was brought by Lord Fairfax, in his efforts to define the boundaries of his land grant in northern Virginia. The Privy Council ruled in favor of Lord Fairfax, adopting his interpretation of the location of the "headsprings" of the Potomac and Rappahannock rivers.6

Lord Fairfax was then forced into a Virginia court in 1749. Jost Hite sued to clear title to land grants issued by the colonial governor in the 1730's, but final land transfers ("patents") had been blocked by Lord Fairfax's land agent. That suit, filed in 1749, was not resolved until after the American Revolution.

The Hite v. Fairfax suit was extraordinary, but the General Court traditionally required years to resolve a case. In the 1700's, the General Court met twice annually. Each session lasted just 18 days until 1745, when sessions were extended to 24 days. Only a few lawyers practiced before the court, and the procedures allowed for lengthy delays. For the one-third of cases brought by creditors against debtors, delay gave the debtor an opportunity to avoid payment or negotiate a deal.

As described by one scholar, cases moved slowly through preliminary stages before being placed on the "ready docket" at the General Court. The preliminary "at the rules" stage typically consumed three-five years, and another five years were required between the time the General Court proceedings began and the judges issued a decision.7

The laws passed by the General Assembly are organized in the Code of Virginia. The first effort to codify laws occurred in 1620. The Virginia Company tasked Sir Edwyn Sandys to identify the laws of England that were appropriate for use in the colony, in addition to the common law. The Virginia Company overturned Deputy Governor Argall's court-martial of Captain William Brewster in 1619 because it was done consistent with English law. Brewster had interfered with Argall's plundering of the estate of Lord de la Warre, who had died on his journey to England.

The General Assembly systemized the laws again in 1660, after the restoration of Sir William Berkeley as royal governor. Soon afterward, Gov. Berkeley made clear that justice in the colony required passing acts which were inconsistent with laws passed in England, to reflect the unique circumstances in Virginia. The King had the power to block laws passed by the General Assembly, but his royal assent also authorized those laws adopted in Virginia which differed from their English counterparts.8

In addition to the county courts and General Court, there were also courts of admiralty with jurisdiction in Virginia during the colonial era. English officials created a Vice-Admiralty court in Virginia in 1698, plus nine other courts to cover all the colonies. They had authority over cases of smuggling and violations of the Navigation Acts passed in the 1660's, but:9

They were not effective in enforcing trade laws due to bribery of officials, smuggling, salutary neglect on the part of England, and poor appointments. As a result, after the French and Indian War, when tax revenue was needed to cover the debt incurred by the war, England shut down the ten courts and created a single court in Halifax, Nova Scotia.

The Vice-Admiralty court was effective in processing lawsuits involving claims from sailors that they had not been paid by merchants. The court also handled insurance claims and minor crimes not committed on land, which county courts had resolved until 1698. In addition, it auctioned off vessels and cargo captured by privateers with a "letter of marque." Such letters authorized seizure of enemy ships during times of war, essentially creating a fleet of mercenaries to augment England's Royal Navy. The Vice-Admiralty court collected the revenue from the sale of "prizes," then distributed the funds according to a formula to the judges, the owners of the privateer ship, and its captain and crew.

The judges in a Vice-Admiralty court assumed the captured ship and cargo was guilty, and the owner had to prove it was not a legitimate prize. The judges also assumed defendants were guilty until proven innocent. There were no juries, and judges did not need to justify their decisions with written opinions.

English officials felt that the admiralty court judges, though appointed by royal governors, showed excessive support for colonists after the French and Indian War. English officials were losing smuggling cases, as the colonists moved closer to rebellion. One solution was to bring cases in the Vice-Admiralty court located at Halifax, Nova Scotia. Colonists were unable to appear and defend themselves, so it was easy for judges to enter a guilty verdict.

The unfairness of the English legal processes led to adoption of the Fourth Amendment to the United States Constitution in the Bill of Rights:10

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Code of Virginia

Virginia Judiciary After 1776



1. John Smith, The General History, The Third Book, 1624, p.87, (last checked December 22, 2014)
2. John Smith, quoted in Dennis Montgomery, "Captain John Smith," Colonial Williamsburg Journal, Spring 1994, (last checked January 6, 2016)
3. Dennis Montgomery, "Such a dish as powdered wife I never heard of," Colonial Williamsburg Journal, Winter 2007, (last checked January 9, 2016)
4. "The First Charter of Virginia; April 10, 1606," The Avalon Project, Yale Law School, (last checked January 9, 2016)
5. Warren Billings, John E. Selby, Thad W. Tate, Colonial Virginia: A History, KTO Press, 1986, p.39; Brent Tarter, "Lawes Divine, Morall and Martiall," Encyclopedia Virginia, Virginia Foundation for the Humanities, January 20, 2012; "For The Colony in Virginea Britannia. Lawes Divine, Morall and Martiall, &c," Colonial Williamsburg Journal, Summer 2011, (last checked January 9, 2016)
6. Brent Tartar, "The Governor's Council," Encyclopedia Virginia, October 7, 2019,; Philip Alexander Bruce, Institutional History of Virginia in the Seventeenth Century, G. P. Putnam's Sons, 1910, pp.478-480, pp.485-486, pp.496-498,; "Jamestown to Richmond: Judicial Authority in Virginia since 1619," Supreme Court of Virginia,; Emily Jones Salmon, "County Formation during the Colonial Period," Encyclopedia Virginia, Virginia Humanities, August 30, 2012,; D S. Rubenstein, "A history of the county court in Virginia," University of Richmond, Honors Theses, 1937, pp.4-7, (last checked February 15, 2021)
7. Frank L. Dewey, "William and Mary Bicentennial Commemoration: New Light on the General Court of Colonial Virginia," William and Mary Law Review, Volume 21, Issue 1 (October 1979), (last checked February 13, 2021)
8. Philip Alexander Bruce, Institutional History of Virginia in the Seventeenth Century, G. P. Putnam's Sons, 1910, pp.463-464, p.467, pp.470-471, (last checked February 13, 2021)
9. "Vice-Admiralty Courts And Writs Of Assistance," Journal of the American Revolution, January 28, 2015, (last checked February 13, 2021)
10. "Vice-Admiralty Courts And Writs Of Assistance," Journal of the American Revolution, January 28, 2015,; "Constitution Annotated," US Congress, (last checked February 13, 2021)

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