Throwback Thursday: Suing in Colonial America

books-608984_640I really am a nerd.

I stopped at the library this past week to make sure I got two books that I had on hold in case I had time to peruse them over the weekend. Here’s the nerdy part:

They were both on colonial law, and one would have barely fit in my kitchen sink.

The librarian looked at me, looked at the book, looked at me again and said “Do you need more than two weeks with these?”

I laughed.

I am delving into law in 18th century Virginia for Binding Fire.  I am finding out some interesting things.

For example, did you know that even if you did commit a crime, unless the aggrieved wished to prosecute, you might go free? That’s right. It took money to take people to court, and the plaintiff had to pay the costs. This was everything from the confinement of the prison to the jurors, if that route was chosen. (That’s right – a jury triala was a choice. It was not an automatic right.)

The defendant could also request a jury trial, but few individuals did so. Not only were they not likely to be able to afford it, but most people believed they would get a fairer hearing from a magistrate.

These days, our court system is pretty well defined. We are entitled to legal representation if we are accused of a crime. We are entitled to a trial by a jury of our peers, and the jurors are chosen from a pool with both sides agreeing to those that are seated. Things were not so cut and dried in the 18th century.

In colonial America, if you were accused of a crime, you were generally expected to represent yourself. A defendant having a lawyer was a very odd thing to say the least, and lawyers were still distrusted as a whole. By the mid-18th century their reputation was on the upswing, but their high fees made hiring one prohibitive for the average colonial citizen.

Jurors were not chosen, they were more or less rounded up by the sheriff and were “required” to appear for court day. To not appear could result in a fine, but the individuals were paid for their duty. If someone did not appear, the sheriff was required to find someone immediately and press them into jury service. A lawyer could request someone be unseated, but since lawyers were few and far between, that rarely happened.

Oh, and only white males who owned property (meaning land or housing) served. Women, Negroes, indentured servants, and poor whites did not.

Last but not least, some individuals could plead “benefit of clergy” at the eleventh hour even if they were facing a conviction. By some, I mean those that could read.

Benefit of clergy originated in England in the Middle Ages and carried over to the colonies from English Common Law. It had been transformed and adjusted a number times (originally it was for clergy but later extended to those who could read), and by the mid-18th century had become more of a loophole for the rich and a few intelligent individuals. The jest of the law was that if an individual could read then their sentence was lessened from a capital punishment (usually death by hanging) to a burning on the hand.

The problem?

The Bible was always open to Psalms 51, and a smart person could always memorize the passage.

Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions.

What does any of this have to do with Binding Fire?

Well, obviously someone is going to be accused of a crime, but you’ll have to wait to find out who.



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