Order in Virginia courts

Doubling down on the records

Reader Steven Morrison worked hard to find an answer — but didn’t come up with a good explanation for a perplexing question: What in the world was meant by the use of the term “order books” for some early Virginia court records?

“Living on the west coast ‘order books’ was a term I never came across,” he said, and “… they seem to be an eclectic collection of actions by the county and its justices.”

It’s a good question, since that name for that type of record is pretty much confined to Virginia. Just about everywhere outside of Virginia, an order book is a type of court record where specific court orders are recorded: an order entering judgment, for example, or ordering a litigant to pay costs, or allowing someone to sell property while a probate case was pending.

But in Virginia, order books do have a whole lot more — reporting all kinds of actions by the courts and their justices. And that’s the kind of information that, in most other jurisdictions, you’d expect to find in the minute books of the court.

Which, just to make things really confusing, Virginia also has.

So we really have two questions here, don’t we? What’s an order book in Virginia and, The Legal Genealogist would add, why do early Virginia courts often have both minute books and order books — and what was the difference between them?

The Library of Virginia (LVA) — Virginia’s State Archives and State Library combined under one roof (“the commonwealth’s library at the seat of government and the state archives”¹) — doesn’t provide a whole lot of guidance on its website.

In describing County Court Order Books while explaining how to use court records at LVA, it simply says: “County court order books or minute books have survived for many Virginia counties. They record all matters brought before the court when it was in session and may contain important information not found anywhere else. Generally minute books contain brief entries, while order books provide synopses of cases in a neater, more organized form.”²

Okay, so that suggests the difference, doesn’t it? It suggests that the minutes were the on-the-scene quick notes of the clerks during a court session and order books were created from the minutes, written out “in a neater, more organized form.”

Sounds reasonable — but are we right about that?

It sure seems so. In 1827, in the case of Commonwealth v. Winstons, the Virginia Court of Appeals repeatedly said that the minutes were not the final, official records of a case in Virginia. One judge wrote, “the minutes of the clerk are not a part of the record.”³ Wrote another: “the minutes of the clerk are no part of the record; they are generally taken hastily, and often inaccurately, and cannot, of themselves, be safely relied on for correcting errors in the order book…”⁴

So the minutes are an early rough draft and the order book the final version.

How did that happen?

Well, I’m not going to bet the ranch entirely on it, but to me it looks like it came about in Virginia because of the way the records of the courts of the Virginia Company of London were kept. That, you’ll recall from your history books, was the joint-stock company chartered in 1606 by King James I to settle the new land of Virginia.⁵

The directions set in 1622 were to follow a two-step process: “the court book was first drawn up by the secretary, was approved by the deputy, and later accepted or corrected by the court.”⁶

And that’s pretty much the same as the minutes-to-order books process later: the clerk drew up the first set on the scene and then made a better, more complete record when he had time. It was that later set that the court accepted as its official record.

That doesn’t mean that both sets of records survive in any particular Virginia county — or that any of the records survive, given the records loss in that state. It doesn’t even mean that the terminology is going to be used consistently in Virginia.⁷

But it sure does mean a researcher should look at any and every surviving record set for those early Virginia courts — understanding what the difference is likely to be, between minutes and order books, at that time and place.

Double down in those records, if you can — look at both minutes and orders books in Virginia, or whatever survives of either.

Cite/link to this post: Judy G. Russell, “Order in Virginia courts,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 2 Apr 2019).

SOURCES