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Colonial Courts and Secured Credit:
Early American Commercial Litigation and Shays’ Rebellion
Claire Priest
Yale Law School
“Justices of the peace, also appointed by the governor, individually decided debt suits worth less than forty shillings. Justices of the peace offered a less formal and less expensive forum for obtaining judgments.
They usually resided within the same town as the litigants, and heard cases year-round in their homes or in taverns." The fees of justices of the peace were also set by statute on a per-service basis, but were much lower than those of the county courts. Litigants could, however, appeal decisions of the justices of the peace to the common pleas courts, which would increase total litigation fees and delay the execution process.”
The above is potentially a lead on the competition between adaptive forms of common law (original) versus “Common Law” (summary justice) counterfeit in pre-Nationalism U.S.A.
Moving back to:
Chapter 14
COURTS TO BE OPEN; SUITS AGAINST THE COMMONWEALTH
Article I, Section 11
BY DONALD MARRITZ
https://www.pabar.org/public/committees/lspublic/atj/Chapter14-final.pdf
“That justice may be speedily as well as impartially done, and that to prevent tedious and expensive pilgrimages to obtain it, I do for me and mine hereby declare and establish . . . that monthly sessions shall be held in every country in which all sorts of causes belonging to that county shall be heard and finally determined, whether relating to civil or criminal acts. And . . . that every person may freely plead his own cause or bring his friend to do it for him. And the judges are hereby obliged to inform him or her what they can to his or her assistance in the matter before him, that none be prejudiced through ignorance in their own business . . .”
Moving back to:
Colonial Courts and Secured Credit:
Early American Commercial Litigation and Shays’ Rebellion
Claire Priest
Yale Law School
“Colonial courts had a fee structure entirely different from ours today. First, litigants compensated the various actors in the judicial system sheriffs, judges, clerks, and witnesses-for each service they performed. According to the 1742 Massachusetts fee schedule, for example, when initiating a suit in one of the inferior courts, plaintiffs paid the judge five shillings for entering the action and the constable six pence for serving the summons (and double all fees if the plaintiff was not a freeholder). Fee schedules required reimbursement for travel and a per-day attendance fee to all clerks, judges, constables, and witnesses. Litigants paid clerks for each page written, constables for each witness sworn, and the cryer for each jury called. Conclusion of the case led to additional charges, whether for the trial, for default or confession of judgment (six pence to the judges, six pence to the clerk for recording the outcome), or for imprisonment of the debtor (two shillings and six pence for "turning the key on each prisoner committed" ). The colonial fee structure was regressive; costs were the same, no matter how large the amount in question. Moreover, colonial law defined court costs as well as attorneys' fees as an element of damages. As a consequence, the losing party bore the burden of paying all fees.”
Moving to:
Notes On The State Of Virginia
by Thomas Jefferson
The state is divided into counties. In every county are appointed magistrates, called justices 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, and 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 a 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 arising on it to the decision of the judges. But this division of the subject lies
with their discretion only. And if the question relate to any point of public liberty, or if 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 afflicting to the loser, than one which makes part of a regular and uniform system.
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 an 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 verdict, which must be unanimous, he is acquitted or
condemned without appeal. If the criminal be a slave, the trial by the county court is final. In
every case, however, except that of high treason, there resides in the governor a 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
admiralty. This jurisdiction is twofold. If the matter in dispute be of less value than 4⅙ dollars, 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 court of admiralty. 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 lands. The jurisdiction of the admiralty is original altogether. 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 business civil and criminal, and twice more for criminal only. The court of admiralty sits at Williamsburg 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 superior courts, and determines them finally. But it has
no original jurisdiction.
If a controversy arise between two foreigners 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.
If one of the parties only be such a foreigner, it is triable before the courts of justice 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.
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, dissatisfied 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 shown, by letters-patent of March the 9th, 1607, in the 4th 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 all together. 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 them, said the judges and other partisans of the crown, but named or not named, said those who reflected freely. It will be unnecessary to attempt a description of the laws of England, as that may be found in English publications. To those which were established here, by the adoption of the legislature, have been since added a number of acts of assembly passed during the monarchy, and ordinances of convention and acts of assembly enacted since the establishment of the republic. The following variations from the British model are perhaps worthy of being specified:
Debtors unable to pay their debts, and making faithful delivery of their whole effects, are released from confinement, and their persons forever discharged from restraint for such previous debts: but any property they may afterwards acquire will be subject to their creditors.
The poor, unable to support themselves, are maintained by an assessment on the titheable persons in their parish. This assessment is levied and administered by twelve persons in each parish, called vestrymen, originally chosen by the housekeepers of the parish, but afterwards filling vacancies in their own body by their own choice. These are usually the most discreet farmers, so distributed through their parish, that every part of it may be under the immediate eye of some one of them. They are well acquainted with the details and œconomy of private life, and they find sufficient inducements to execute [242] their charge well, in their philanthropy, in the approbation of their neighbors, and the distinction which that gives them. The poor who have neither property, friends, nor strength to labour, are boarded in the houses of good farmers, to whom a stipulated sum is annually paid. To those who are able to help themselves a little, or have friends from whom they derive some succours, inadequate however to their full maintenance, supplementary aids are given which enable them to live comfortably in their own houses, or in the houses of their friends. Vagabonds without visible property or vocation, are placed in work houses, where they are well clothed, fed, lodged, and made to labour. Nearly the same methods of providing for the poor prevails through all our states; and from Savannah to Portsmouth you will seldom meet a beggar. In the larger towns, indeed, they sometimes present themselves. These are usually foreigners, who have never obtained a settlement in any parish. I never yet saw a native American begging in the streets or highways. A subsistence is easily gained here: and if, by misfortunes, they are thrown on the charities of the world, those provided by their own country are so comfortable and so certain, [243] that they never think of relinquishing them to become strolling beggars. Their situation too, when sick, in the family of a good farmer, where every member is emulous to do them kind offices, where they are visited by all the neighbors, who bring them the little rarities which their sickly appetites may crave, and who take by rotation the nightly watch over them, when their condition requires it, is without comparison better than in a general hospital, where the sick, the dying and the dead are crammed together in the same rooms, and often in the same beds. The disadvantages, inseparable from general hospitals, are such as can never be counterpoised by all the regularities of medicine and regimen. Nature and kind nursing save a much greater proportion in our plain way, at a smaller expense, and with less abuse. One branch only of hospital institution is wanting with us; that is a general establishment for those laboring under difficult cases of chirurgery. The aids of this art are not equivocal. But an able chirurgeon cannot be had in every parish. Such a receptacle should therefore be provided for those patients: but no others should be admitted.