University of Virginia Library

JUDICIARY.

A distinguished historian has said that "the laws of a country
are necessarily connected with everything belonging to the people
of it, so that a thorough knowledge of them and their progress
would inform us of everything that was most useful to be known
about them, and one of the greatest imperfections of historians in
general is owing to their ignorance of law."[16]

While a thorough knowledge of the law is necessary to a complete
understanding of the history of a country, at this point we
regret the necessity that compels to a brief notice of the courts that
have administered the law in this Commonwealth and county.

Prior to the Revolutionary war, the laws of this Commonwealth
were administered in the county or monthly courts and in
a general court which was held first at Jamestown and afterwards
at Williamsburg.

The county or monthly courts were composed of a number of
persons commissioned by the Governor and Council, and theirs
was an extensive jurisdiction, while the general court was composed
of the Governor and Council, any five constituting a court, and it
had jurisdiction to hear and determine all causes whatsoever relating
to or concerning any person or persons, ecclesiastical or civil, or to
any person or thing of any nature whatsoever, whether brought
before them by original process, appeal from an inferior court or
by any other way or means, its jurisdiction being limited only to
controversies of the value of ten pounds sterling or 2,000 pounds
of tobacco and upwards. It had exclusive criminal jurisdiction of
all cases of free persons wherein the judgment on conviction was
loss of life or member.

After the Revolution, the county courts were continued and a
Court of Appeals, High Court of Chancery, a General Court and a
Court of Admiralty were established. The judges of said courts
were chosen by the General Assembly and commissioned by the
Governor.

The Court of Appeals was established in May, 1779, and was
composed of the judges of the High Court of Chancery, General

Court and Court of Admiralty, until 1788, when five judges were
chosen by the General Assembly and commissioned by the Governor.
This court, from the time of its establishment until 1830, was the
supreme civil tribunal of the State, and since that time it has been
the supreme civil and criminal tribunal of the State.

The first president of this court was Edmund Pendleton. The
General Court was composed of ten judges and was the supreme
criminal tribunal of the State until 1830, when it was abolished.
The Admiralty Court ceased to exist upon the adoption of the Federal
Constitution.

County Courts.

"The institution of the County Court originated as early as
1623-4; and as it is the most ancient, so it has ever been one of the
most important, of our institutions, not only in respect of the
administration of justice, but for police and economy. They were
first called monthly courts. At first only two of them were established,
and their jurisdiction was jealously limited to petty controversies,
reserving for the party cast the right of appeal to the Governor
and Council, who were the judges of what were then called
quarter courts. In 1642-3, the style of monthly courts was changed
to that of county courts, the colonial assembly having previously
begun and continuing thenceforward to enlarge their duties, powers
and jurisdictions and to extend the system to every county, as it
was laid off. As early as 1645 they had been matured into courts
of general jurisdiction, in law and equity, and the most important
duties in the matters of police and economy were confided to them.
In 1661-2, the Governor and Council were constituted itinerant justices,
to sit in the county courts, but that provision was repealed the
next year. Hitherto the judges of the county courts had been styled
commissioners of the county courts, but in 1661-2 it was enacted
that they should take the oath of justices of the peace and be called
justices of the peace. These tribunals now assumed a perfectly
regular form and their functions were ever after so important
that their institution may well be considered as a part of the Constitution,
both of the colonial and the present government. No
material change was introduced by the revolution in their jurisdiction
or general powers or duties of any kind."[17]

The county court remained unchanged until the year 1850, and

it is impossible for any man to estimate the character and utility of
this system without actual experience of its operation. The members
of this court, prior to 1850, were recommended to the Governor
by the county courts of their respective counties, were commissioned
by the Governor and held office during good behavior.
They served without pay and were selected by reason of their character
and ability.

The Constitution of 1850 made the members of this court elective
by the people, and they were allowed a small fee for their services.
From this time until the year 1870, we find a great deterioration in
the character of the members of this court, and its efficacy was to a
great extent destroyed. This court was abolished by the Constitution
of 1868.

Can anyone question the character and efficiency of a court presided
over by such men as Arthur Campbell, William Campbell,
Daniel Smith, William Edmiston, James Dysart, John Kinkead,
Robert Craig, James White, John Goodson, Robert Davis, John
Gibson, Reuben Bradley, James Cummings, John Preston, Jr.,
Francis Preston, Charles Tate, William P. Thompson, Thomas
McChesney, John M. Preston, John Eakin, M. B. Tate, Tobias
Smith, Henry Davenport and many others, presiding justices of this
court during its existence?

Upon the abolition of the old county court by the Constitution
of 1868, a new institution came into existence, to-wit: the county
court of the present time. This court exercised a criminal jurisdiction
concurrent with the Circuit Court and a limited civil jurisdiction.
The first session of this court in this county was held on the
25th day of April, 1870, Judge R. M. Page presiding, Leonidas
Baugh clerk, and Beverly R. Johnston Commonwealth's Attorney.

This court has been abolished by the Constitution of 1902, and
will cease to exist on the first day of February, 1904, and such a
thing as a county court will no longer be heard of in this Commonwealth,
after an existence of nearly 300 years.

The judges presiding in this court since the date of its formation
in 1870 are as follows:

1870-1880, R. M. Page.

1880-1881, George W. Ward.

1882-1886, William F. Rhea.

1886-1887, Francis B. Hutton.

1887-1897, George W. Ward.

1897-1904, David C. Cummings, Jr.

The attorneys representing the Commonwealth in this county
from the organization of the county until the year 1850 were
appointed first by the Attorney-General of the State, upon the
recommendation of the county court, and were after that time
elected by the county court.

The first Commonwealth's Attorney of Washington county, being
the first lawyer qualifying to practise in the courts of this county,
was Ephraim Dunlop, who came from Pennsylvania. He had but
one leg, the other having been amputated above the middle of the
thigh. He had some capacity, but was a drunkard. He was
appointed prosecuting attorney for this county in the year 1777, and
was pretty severe upon the Tories, many of whom had taken refuge
in the mountains. On one occasion Dr. Brooks, whose right arm
was palsied, was passing along the road below town when he found
Dunlop, who had fallen from his horse, lying with his foot in the
stirrup and his head on the ground, the horse standing perfectly still
and quiet. The Doctor having no use of his right arm and Dunlop
having but one leg, made the case a difficult one to decide what he
should do. He dismounted, however, and succeeded in getting Dunlop
into his saddle, intending to take him to the next house. After
balancing and straightening Dunlop as well as he could in his saddle,
he mounted his own horse and they started, but in a few yards
Dunlop made a move in his saddle and down he went again. The
horse seemed to be conscious of the state of things and stood still
again. The Doctor dismounted again and raised him to his horse's
back, then, by riding close to him on his leg side, he kept him
from falling until he brought him to a house, half a mile from
where he fell.

When sober, Dunlop was interesting. At the bar he would rise
and place his stump of a thigh on the bar and in that manner steady
himself and then proceed with whatever he had to say to the court.
He was listened to with attention.

After the courts were organized in Sullivan county, he attended
them, and some ten or fifteen years afterwards died on the road
between Abingdon and Blountville. I believe he had no family.[18]

Since the year 1852, the attorneys representing the Commonwealth

in this county have been elected by the people. The attorneys
representing the Commonwealth in this county since the organization
of the county have been as follows:

1777, Ephraim Dunlop.

...., Benjamin Estill.

1831, Henry St. John Dixon.

1831-1837, Edward Campbell.

1837-1855, Samuel Logan.

1855-...., George Eakin Naff.

1855-1863, John H. Ernest.

1863-1865, Joseph T. Campbell.

1865-1869, Rees B. Edmondson.

1869-...., Henry C. Auvil.

1869-1870, J. S. Slater.

1870-...., Beverly R. Johnston.

1870-1872, James L. White.

1872-1884, Connally F. Trigg.

1884-1885, George W. Ward.

1885-1887, John L. Rowan.

1887-1891, John C. Summers.

1891-1895, Francis B. Hutton.

1895-1904, Peter J. Davenport.

The clerks of the county court from the organization of the government
of this county until the year 1852, were elected by the
county court, and since the year 1852, they have been elected by
the people. The clerks of this court from its first organization until
the present time have been as follows:

1777-1779, David Campbell.

1779-1824, John Campbell.

1824-1837, David Campbell.

1837-1858, Jacob Lynch.

1858-1865, John G. Kreger.

1865-1869, James C. Campbell.

1869-1870, Charles McDougal.

1870-1871, Leonidas Baugh.

1871-1887, William G. G. Lowry.

1887-1897, David C. Cummings, Jr.

1897-1904, Robert Preston Cummings.

District Courts.

The General Assembly at its session in the year 1784, for the purpose
of rendering the administration of justice more expeditious
and convenient and less burthensome to individuals and to the
Commonwealth, passed an Act establishing courts of assize throughout
the Commonwealth, for the trial of issues and inquiry of damages,
in suits then pending in the General Court, and such as may
thereafter be brought, and also for the trial of all treasons, felonies
and other crimes and misdemeanors that should be brought before
the court. This court was to be held by two judges of the General
Court, and it was directed that all verdicts of said court should be
certified to the General Court at Richmond. The State was divided
into districts. The counties of Montgomery and Washington
formed one district, and it was directed that this court of assize
should meet at Washington Courthouse and Fort Chiswell, alternately,
on the 10th day of May and on the 11th day of October of
each year. This Act never went into operation, but after several
suspensions it was succeeded by an Act of the Assembly, in the year
1788, establishing district courts.

The Act establishing the district courts became a law on the 22d
day of December, 1788, and directed that the Commonwealth, except
the district of Kentucky, should be divided into districts, and a
superior court held in each on the 9th of June and the 9th of
November in each year.

The counties of Washington, Montgomery and Russell composed
one district, and it was directed that a court should be held at Washington
and Montgomery courthouses alternately, on the 2d day of
May and the 2d day of October in each year. This court was to
be held by two judges of the General Court assigned for that purpose.
The jurisdiction of the district courts, as fixed by this Act,
was as follows: "Over all persons in all causes, matters or things at
common law, then cognizable in the General Court, amounting to
thirty pounds sterling money or 3,000 pounds of tobacco, whether
brought before the court by original process or by appeal from the
County Court." This court was given the power to hear and determine
all treasons, murders, felonies and other crimes and misdemeanors
committed within their district.

Claiborne Watkins was the first clerk of this court, and lived at
Abingdon and discharged the duties of this office for many years.

The Act establishing the district courts was amended in December,

1789, and it was directed that Washington, Wythe and Russell
counties should form a district, that the next court for said
district should be held at the courthouse of the county of Wythe,
late the courthouse of the county of Montgomery (Fort Chiswell),
and that, thereafter, every court for said district should be held at
Washington courthouse. This court continued to exist until it was
succeeded by the Superior Court of Laws, established in the year
1808.

The General Assembly in the year 1777, established a High Court
of Chancery composed of three judges selected by the General
Assembly and commissioned by the Governor, to hold office during
good behavior. This court was held at Williamsburg and afterwards
at Richmond, in the months of April and September of each year,
with a general jurisdiction over all persons and causes in chancery,
whether by original process or appeal, where the amount in controversy
exceeded ten pounds. The judges of this court were afterwards
reduced to one, George Wythe, who was the president of the
first court.

On the 23d of January, 1802, the General Assembly of Virginia
divided the State into three districts and established a superior
court of chancery in each. The county of Washington was included
in the Western District, and the High Court of Chancery for this
district was directed to be held at Staunton on the 12th of March,
the 1st of July and the 15th of November of each year. This court
exercised the jurisdiction formerly exercised by the High Court of
Chancery as originally established, and was to be held by a judge
selected by the General Assembly and commissioned by the Governor.

The Honorable John Brown, of Staunton, was elected judge of
this court and discharged the duties of the same until the year 1827,
when he was succeeded by the Honorable Allen Taylor, of Botetourt
county, who discharged the duties of this office until the year 1831,
when this court was merged into the Circuit Superior Court of
Law and Chancery.

The General Assembly in 1818 divided the Commonwealth into
nine districts, instead of three districts as formerly, and directed
that a Superior Court of Chancery should be held in each of said
districts.

The counties of Lee, Russell, Scott, Washington, Tazewell, Wythe,
Grayson, Giles and Montgomery composed the Eighth District, and

a Superior Court of Chancery was held at Wythe courthouse on the
Monday first succeeding each term of the Superior Court of Law
for the said county in every year, and after this time a Superior
Court of Chancery was held at Wythe courthouse, by Judge Brown
until 1827, and by Judge Taylor until 1831.

A portion of the records of this court are still to be found at
Wythe courthouse, and present to the practicing attorney at this
day a clear idea of the proceedings of the court of that time.

During the existence of this court, every paper connected with a
chancery cause was recorded in the minute book of the court, and
in one case decided by this court the process, bill, answer, depositions
of witnesses and other papers connected with the suit fill one
entire book of several hundred pages.[19]

The General Assembly, on the 1st of February, 1808, amended
the Act of 1789 establishing the district courts, divided the Commonwealth
into twelve districts, established a superior court of law
in each of said districts and directed that a judge of the General
Court should be allotted to each of said districts and should hold a
superior court of law twice a year at the courthouse of each county
in said district.

The counties of Grayson, Washington, Lee, Russell, Tazewell,
Giles, Montgomery and Wythe composed the Fourth Circuit, and
the Hon. William Brockenbrough, a judge of the General Court,
was assigned to this district and discharged the duties of the same
with marked ability until May, 1811, when he was succeeded by the
Hon. Peter Johnson,[20] a judge of the General Court, who discharged
the duties of the office until June 6th, 1831, when the Superior Court
of Law was merged into the Circuit Superior Court of Law and
Chancery.

The General Assembly of Virginia, pursuant to the provisions of
the Constitution of 1829-1830, rearranged the courts of the Commonwealth
and established the Circuit Superior Court of Law and
Chancery, which court superseded the Superior Court of Law and
the Superior Court of Chancery.

The first session of this court was held at Abingdon on the 6th

of June, 1831, Benjamin Estill presiding. This court continued to
be the principal court of this section until the year 1870, when some
alterations were made in the jurisdiction of the court and the name
was changed to the Circuit Court.

The judges presiding in this court during its existence have been

1831-1852, Benjamin Estill.

1852-1857, George W. Hopkins.

1857-1862, Samuel V. Fulkerson.

1862-1869, John A. Campbell.

1869-1870, John W. Johnston.

1870-1895, John A. Kelly.

1895-1904, John P. Sheffey.

Judge Fulkerson, in the spring of the year 1861, was elected colonel
of the Thirty-seventh Virginia Regiment of Volunteer Infantry,
in which capacity he served until the fall of 1862, when he
was shot and killed in one of the battles near Richmond. During his
absence in the army Judges Andrew S. Fulton, David McComas and
G. D. Camden presided over the courts held at Abingdon.

The Constitution adopted in the year 1902 made some alterations
in the courts of the State, and the General Assembly of Virginia on
the 12th day of February, 1903, elected Francis B. Hutton, of
Abingdon, judge of the Twenty-third Circuit, composed of the counties
of Russell, Washington and Smyth.

Upon the organization of the district court in the year 1788,
Claiborne Watkins was appointed clerk of the court, and, as far
as I can ascertain, he and Andrew Russell performed the duties of
this office until the year 1830.

The clerks of the old District Court, the Superior Court of Law,
the Superior Court of Chancery and the Circuit Superior Court of
Law and Chancery were appointed by the court until the year 1852,
and from that time they have been elected by the people. The clerks
of the Circuit Superior Court of Law and Chancery and the Circuit
Court have been as follows:

1831-1838, Andrew Russell.

1838-1852, Connally F. Trigg, Sr.

1852-1865, Peter J. Branch.

1865-1869, David Campbell Cummings, Sr.

1869-1870, John O'Neal.

1870-1871, Dr. A. R. Preston.

1871-1887, L. Thomson Cosby.

1887-1893, John G. Kreger.

1893-1904, John M. Kreger.

When an effort was made to secure the photographs of the
deceased judges of this court for use in this history, the propriety of
securing and placing their photographs in the courthouse of this
county was discussed by several members of the bar, and, as a result,
a meeting of the bar was called for the 8th of October, 1901, which
meeting, after discussing the matter, appointed Daniel Trigg, James
L. White, F. B. Hutton, R. M. Page and L. P. Summers, a committee
to secure the portraits of the deceased judges of this court and to
make the necessary arrangements for hanging said portraits in the
court-room of the court, and to wait upon the Board of Supervisors
of this county and request that they place the court-room in a suitable
condition for said portraits. This action of the bar was made an
order of the Circuit Court. The committee appointed proceeded to
the discharge of their duties and secured portraits of Judges Peter
Johnston and John W. Johnston from Dr. George Ben Johnston,
of Richmond, photographs of Judges Samuel V. Fulkerson and
John A. Kelly from Colonel Samuel V. Fulkerson and Joseph L.
Kelly, of Bristol, and photographs of Judges Estill, Hopkins and
Campbell from friends.

The Board of Supervisors in answer to the request of this committee
appointed J. D. Williams, J. O. Susong and J. C. Hayter, of
the board, and James L. White, W. I. Newton and F. B. Hutton
outside thereof, a committee to superintend the repairs to the courthouse,
and by the spring of the year 1903 the repairs were completed
and the committee reported their proceedings to the judge of the
Circuit Court. Their report was received and entered of record,[21]
and thereupon the court appointed L. P. Summers, Preston W.
Campbell, John W. Neal, W. H. Robertson and John J. Stuart a
committee to arrange a program for the exercises attending the presentation
of the portraits of the deceased judges to the county of
Washington.

This committee arranged a program and reported their action to
the court, which report was received and made a matter of record.[22]

The presentation exercises were held on the 11th day of May,
1903, and the following program was rendered on that occasion:

Chairman, Judge John P. Sheffey.

Secretary, John M. Kreger.

Portrait of Judge Peter Johnston.

Speech of presentation by Captain J. L. Whit

Portrait of Judge Benj. Estill.

Speech of presentation by L. P. Summers, Esquire.

Portrait of Judge G. W. Hopkins.

Speech of presentation by Daniel Trigg, Esquire.

Portrait of Judge S. V. Fulkerson.

Speech of presentation by Judge R. M. Page.

Portrait of Judge John A. Campbell.

Speech of presentation by William E. Burns, Esquire.

Portrait of Judge John W. Johnston.

Speech of presentation by D. F. Bailey, Esquire.

Portrait of Judge John A. Kelly.

Speech of presentation by Judge John A. Buchanan.

Manuscript remarks of Hon. Patrick Hagan read by John J.
Stuart, Esquire.

Speech of acceptance on behalf of the Supervisors of Washington
county, Judge F. B. Hutton.

United States Circuit and District Courts.

In the year 18—, the Congress of the United States created a
district in Western Virginia, to which was given the name of the
Western District of Virginia, and soon thereafter the court of said
district was organized. For many years this court was held at
Wytheville, but it was subsequently removed to Abingdon. This
district at the present time is composed of the following counties:
Alleghany, Albemarle, Amherst, Appomattox, Augusta, Bath, Bedford,
Bland, Botetourt, Buchanan, Buckingham, Campbell, Carroll,
Charlotte, Clarke, Craig, Cumberland, Dickenson, Floyd, Fluvanna,
Franklin, Frederick, Giles, Grayson, Greene, Halifax, Henry, Highland,
Lee, Madison, Montgomery, Nelson, Page, Patrick, Pulaski,
Pittsylvania, Rappahannock, Roanoke, Rockbridge, Rockingham,
Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington,
Wise and Wythe.

Courts are held at five points in the district, semi-annually, towit:
Abingdon, Roanoke, Harrisonburg, Lynchburg and Danville.

The jurisdiction of this court is confined to matters arising under
the Constitution and laws of the United States.

This court, from the time of its first meeting in Abingdon until
the year 1891, held its sessions on the second floor of the county
courthouse of this county.

Some time previous to the year 1884, through the efforts of Colonel
Abram Fulkerson and General William Mahone, the Congress
of the United States appropriated money sufficient to erect
a handsome courthouse in Abingdon for the accommodation of the
United States courts, which courthouse was completed in the year
1891, at an expense to the United States of $85,000, including the
furnishing of the same, and was occupied the same year.

The judges of this court, so far as I have been able to ascertain,
have been:

18—, Judge Caldwell, of Wheeling.

1839-1846, Isaac S. Pennypacker, of Harrisonburg.

1846-1871, John W. Brockenbrough, of Lexington.

1871-1883, Alexander Rives, of Albemarle.

1883-1900, John Paul, of Harrisonburg.

1900—, Henry Clay McDowell, of Big Stone Gap.

The clerks of this court have been as follows:

1839—, Thomas L. Moore.

1839-1846, R. W. Moore.

1846-18—, Erasmus Stribling.

1861—, Joseph W. Caldwell.

1871-1874, E. S. Watson.

1874-1884, Benjamin Gildersleeve.

1884—, Isaac Chapman Fowler.

The attorneys representing the United States in this court since
1871 are as follows:

1871—, Robert W. Hughes.

1871-1882, Warren S. Lurty.

1882-1885, Daniel Sheffey Lewis.

1885-1889, Henry C. Allen.

1889-1893, William E. Craig.

1893-1897, A. J. Montague.

1897-1901, T. M. Alderson.

1901-1905, Thomas Lee Moore.

The marshals of this court since 1855 have been as follows:

1855—, Jefferson T. Martin.

1871-1878, Algernon S. Gray.

1878-1882, John F. Lewis.

1882-1886, John G. Watts.

1886-1887, Samuel L. Graham.

1887-1890, James R. Jordan.

1890-1893, John G. Watts.

1893-1898, George W. Levi.

1898-190-, S. Brown Allen.

In addition to the officers above named, several of the citizens of
this county and district, to-wit: F. B. Hutton, David F. Bailey,
John J. Stuart and John C. Blair, have discharged the duties of
assistant district attorney in this court with distinguished ability.