« PreviousContinue »
THE COMMONWEALTH OF VIRGINIA,
WITH A VARIETY OF USEFUL PRECEDENTS,
ADAPTED TO THE LAWS NOW IN FORCE.
TO WHICH IS ADDED
ALL THE MOST APPROVED FORMS IN CONVEYANCING:
DEEDS OF BARGAIN AND SALE, OF LEASE AND RELEASE; OF TRUST, MORTGAGES,
BILLS OF SALE, &c.
THE DUTIES OF A JUSTICE OF THE PEACE,
ARISING UNDER THE LAWS OF THE UNITED STATES.
BY WILLIAM WALLE
ATTORNEY AT LAWW.
THE SECOND EDITION ,
REVISED, CORRECTED, GREATLY ENLARGED, WND BROUGHT DOWN TO THE
PUBLISHED BY JOHNSON & WARNER.
K K H39 1810 087037
DISTRICT OF VIRGINIA, TO WIT:
BE it remembered, that on the seventh day of October, in the thirty-fourth year of the Independ. ence of the United States of America, William W. Hening, of the said district hath deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit: " THE NEW VIRGINIA JUSTICE, comprising the Office and Authority of a Justice of the Peace,
in the Commonwealth of Virginia, together with a variety of useful precedents adapted to the laws "now in force. To which is added an Appendix, containing all the most approved forms in conveyancing, such as Deeds of Bargain and Sale, of Lease and Release of Trust, Mortgages, Bills of
Sale, &c. Also, the Duties of a Justice of the Peace, arising under the laws of the United States. " By William Waller Hening, attorney at law. The second edition, revised, corrected, greatly en“ larged, and brought down to the present time, by the author.” In conformity to the act of the Congress of the United States, entitled " An act for the encouragement of learning, by securing the
copies of maps, charts, and books, to the authors and proprietors of such copies during the times
therein mentioned.” And also to an act, entitlel * An act supplementary to an act, "eptitled an " act for the encouragement of learning, by securing the copies of maps, charts, and books, to the "authors and proprietors of such copies, during the times therein mentioned....
And extending the " benefits thereof to the arts of designing, engraving, and etching, historical and other prints."
Clerk of the District of Virginia.
PREFACE TO THE SECOND EDITION.
A NEW edition of this treatise having been rendered necessary, by the numerous and important changes in our laws which have taken place since the publication of the last impression (particularly in the penal code, by the adoption of the Penitentiary System) I have endeavoured, in preparing it for the press, to manifest my gratitude to the public for the very extensive patronage which the early editions experienced.
The whole work has been carefully revised; every authority cited has been minutely examined, and errors in typography as well as in doctrine corrected; new titles and additional matter have been introduced ; and the larv, as settled by the latest judicial decisions, or prescribed by the legislature, has been given.
In citing authorities, I have not confined myself wholly to the determinations of the courts of Virginia ; nor have I adopted implicitly the decisions of the courts of Westminster-Hall, whether pronounced before or since the revolution. I have endeavoured to make common sense and common honesty my guide, and whithersoever they lead me, whether to the courts of England, of Virginia, or of any of our sister states, I have invariably pursued their steps. I have not supposed that I was bound to reject a decision of the Court of King's Bench in England, merely because it was pronounced since the revolution, although it over ruled a decision made before manifestly erroneous, and which all the judges have repeatedly said they would long since have decided otherwise, had it been a case of the first impression. Nor have I conceived that the decisions of the several courts in the United States are entitled to less weight, because they were neither delivered nor published in England, nor have crossed the Atlantic. All judicial determinations, to be regarded as authority, must be brought to the standard of justice and common sense.....None other will be long respected. It must come to this at last, that the opinions of good and enlightened men, in whatever quarter of the globe they may be, will alone be considered as settling the law. In some of the states in the union, the decisions of the courts of England, posterior to the revolution, have been proscribed by express act of the legislature ; in others they are generally received. In some of the state courts, while a part of the judges profess to consider
the decisions prior to the revolution, as alone to be regarded as binding authority, and others receive none as authority which do not conform to their own ideas of propriety, all the judges are in the daily habit of citing them indiscriminately,
Judges will listen, with raptures, at an opinion delivered by a chief justice of the court of king's bench, who would startle at the recital of the most luminous opinions, if delivered by an American judge. He would exclaim “quis novus hic hospes ?” “ What stranger is this?” when he ought to know no judge but through the medium of sound sense, and correct legal principles.
While I profess and feel the highest veneration for the virtue and talents which have adorned the English Benches of Justice (with one or two solitary exceptions) I am free to own, that, in my judgment, too much respect has been paid to their decisions, and too little to those of the American courts. Among the judges in the United States, there are men who would cast a lustre on any tribunal upon earth. On what principle, then, is it that their opinions are so seldom quoted, while those of men inferior in legal attainments, are received as the standard of correctness? It can only be ascribed to the inveteracy of habit, and the prejudices of education.
Again, it must be admitted, that the leading principles of every government, naturally infuse themselves into the laws of the country. In England, the government is monarchical, and the policy of their laws has been to support an order in society distinct from the great body of the people, and to invest them with certain peculiàr privileges. Hence the doctrine of primogenitureship, and the affection for the heir at law has been perpetuated, though it took its rise in feudal principles. In America, all the features of our governments are strongly republican, and the policy of our laws directs to an equal distribution of property. In England the judges may, and too often have, leaned to the prerogatives of the crown: in the United States we have no privileges, no prerogatives. Is it not, therefore, much more likely that the decisions of our judges should conform to the principles of our governments, than that we should be able to trace them in the decisions of the courts of England ? 'And is it not much more probable that, by an interchange of ideas, on questions of law, among the American judges, they will establish a system of laws more congenial to our republican institutions ? Let every dispassionate man decide.
WILLIAM WALLER HENING.
Richmond, October 14th, 1802.
PREFACE TO THE FIRST EDITION.
THE importance of the subject, of which the author has treated in the following work, has created, in him, an unusual share of diffidence, in submitting it to the public. He is sensible that even on the most extensive plan, it would have been a work of immense difficulty to convey the necessary information on all the various objects which fall under the jurisdiction of a magistrate, both as a conservator of the peace, and as a judge of record. But when, in attempting this, he was confined to the narrow limits of a single octavo volume of six hundred pages, the difficulty became considerably greater, and his hopes of attaining to any degree of perfection, were proportionably diminished. It may, indeed, be asked, why was the plan of the work so limited, as to preclude the admission of every thing which related to the office of a Justice of the Peace in his several capacities? To those, who consider, that, in this state, the only compensation which a magistrate receives for his services, is, a consciousness of having acted from patriotic motives, in the acceptance of a laborious office, and thus discharging his duty as a member of society, the answer is obvious.. Frugality, then, became an essential part of the plan. But the author would by no means infer that his attention to that point, has drawn him into a neglect of the more useful parts of the publication. He is well assured that in comparing this treatise with any other now extant, it will be found to contain not only more useful information on the same subjects, but a greater variety of precedents, besides several additional titles, unnoticed in other book of the kind hitherto published either in Great Britain or America.
Doctor Burn's Justice published in England, and Mr. Starke's in Virginia, have long afforded considerable assistance to our Magistrates. But as the former was calculated for the meridian of the country in which it was written, and the latter was pubtished during our subjection to a regal government, and before our laws had acquired any degree of stability; it could not escape the observation, of any person, from the most superficial view of those books, that some other guide was indispensably necessary. The defects of these writers, then, as they respect the present situation of America, are rather to be ascribed to the materials