SELF-GOVERNMENT
With the calling of the Assembly of 1627 Virginia entered a new epoch.
The people no longer looked to a commercial company for instructions and
the appointment of the Governor and other officials, but to the King.
On the whole this was a fortunate change. The Company could not finance
the enterprise, and it might have bled the colony to make good its own
losses. The reactionary group in the Company might in time have won
control, and have gone back to the original form of government.
It was this which made the people of Virginia resist all attempts to
re-establish the Company. They were greatly alarmed in 1631 when word
reached them that some of the former members had "continually importuned
his Majesty to renew the charter," and that the King had actually given
orders that a new one be drawn up. Someone, no doubt an agent for the
colony, protested vigorously. The Governor and Council had "oftentimes
petitioned ... against the renewing of any such corporation," he said,
and he pleaded that nothing be done until they were heard from.
But though the Virginians wished to remain under the jurisdiction of the
King, and not be "subjects to their fellow subjects," they wanted to
place their government upon a firmer basis as a guarantee that there
would be no renewal of the "illegal proceedings and barbarous tortures"
of former years. On three separate occasions they tried to secure a
charter guaranteeing their liberties. In 1639, George Sandys, whom they
appointed agent to petition for a charter, seems to have misunderstood
his instructions, for instead of doing so he attempted to revive the
Company. When this news reached Virginia, the Assembly hastened to
disavow his action, and to beg the King to let them remain a royal
colony. Their yearly Assemblies, authorized in his instructions, insured
their present happiness, they said. So they were much relieved when
Charles told them that he had not the least intention of placing any
corporation over them.
This satisfied the Virginians for the moment, but during the Restoration
period, on learning that the King had made a series of grants in the
colony to favorites, they once more petitioned for a charter. And
though, after prolonged negotiations, a charter was passed under the
Great Seal,[1] it was so unsatisfactory that in 1691 they made still
another attempt. When this failed, the colony was forced to remain under
its unwritten constitution, based on precedents, royal letters,
proclamations, and instructions.
This constitution provided that the Governor be appointed by the King.
Consequently he represented the authority of the Crown, and through the
Crown the interests of England. If he failed to uphold the royal
prerogative against the assaults of the Burgesses and the Council he was
sure to incur the frowns of his royal master. If the King were bent on
ruling the colony with as little interference from the Assembly as
possible, it was the Governor who tried to carry out his orders. In
other words, in the century long battle between the King and the
representatives of the people, it was the Governor who bore the royal
banner.
The Governors varied widely in character and ability. Sir John Harvey
and Francis Nicholson were egocentric men, who tried to lash all who
surrounded them into obedience to their will. Alexander Spotswood and
Robert Dinwiddie, though not friends of representative government, were
able administrators. Hugh Drysdale, William Gooch, and Lord Botetourt,
because of their amiable dispositions, won lasting popularity. Culpeper
and Effingham were hated as instruments in the hands of Charles II and
James II in imposing the Second Stuart Despotism on the colony. Dunmore
was detested for his role in the opening years of the Revolutionary War.
It is strange that Nicholson, who was in many respects one of the worst
of the Governors, should have given an excellent description of the
ideal colonial executive. "It is absolutely necessary ... that the
Governor ... may be esteemed by the people, ... to be a lover of them
and their country ... and above all distributes equal justice."[2] Had
he followed his own advice his second administration would not have
ended in failure.
The powers of the Governor were great, so great that even the British
government at times thought they should be used with caution. "All
things are made so entirely dependent on the Governor's single will and
pleasure, that whenever there may happen an ill man in that post, it
cannot reasonably be expected any person ... should either oppose such
an one in whatever he may attempt or so much as give any advice," wrote
the Lords of Trade in 1698.[3]
The Governor's powers differed from time to time, depending upon the
situation in England, upon developments in the colony, and upon the
character of the Governor. Sir William Berkeley based his power chiefly
on the use of the patronage; Effingham's authority was but a reflection
of the despotism of the late Stuart Kings. On the whole, the Governors
of the seventeenth century exercised more power than those of the
eighteenth century.
At all times the Governor was respected because back of him was the
awe-inspiring figure of the monarch. If the Councillors or the Burgesses
defied him, he might report their "disobedience" to the King with
serious consequences. On more than one occasion the King ordered the
Governor to rebuke the Burgesses for their "presumption" in disregarding
his wishes.
The Burgesses seem not to have hung their heads at these reprimands, and
it was only when the King tried to abridge their privileges that they
were deeply concerned. But the greatest danger lay, not in overriding
the House, but in undermining it by political bribery. The Governor had
in his hands many lucrative offices with which to reward those who voted
as he wished. "Don't you know there is a sheriff and a clerk in every
county, besides other offices of profit in the country?" Benjamin
Harrison wrote Philip Ludwell, in 1703. "Is it not the wise man's phrase
that a gift will blind the eyes of the wise?... Places are now shifted
as often as the occasion requires, to put out or in, as men will or will
not serve a turn. Sheriffs are turned out in the middle of their
collection. Clerks are turned out without ever knowing why and so are
other officers.... I need not tell you what men too many of our House of
Burgesses are, how greedy they are to catch at any little place of
profit, without considering the ill consequence that attends it; like
the poor harmless fish that eagerly catches at the bait without
considering the hook of destruction is under it.... Add a sheriff, a
clerk, or a naval officer's place, and pray who would consider the
Queen's service, the interest of the country, or the discharging a
Burgess's oath!"[4]
The most tempting plum was a seat in the Council. Though this was in the
gift of the King, he almost invariably named the man recommended by the
Governor. So the Burgess who aspired to it was a patriot indeed if he
set the welfare of the country above his own ambition by opposing the
Governor in the House.
It was not necessary for the Governor to make a direct promise; every
man of prominence and wealth knew that he was being watched. But in one
case at least a bargain was struck. In 1683 Governor Culpeper wrote the
Privy Council that Isaac Allerton had assured him "of his utmost
services in whatsoever the King should command him by his Governor," and
he had promised in return "that he should be of the Council ... though
not to be declared till after the session of the next Assembly."[5] One
wonders whether Allerton's conscience hurt him when, several years
later, he took the seat which he had gained by betraying the interests
of those who had elected him.
In February, 1691, Governor Nicholson wrote the Lords of Trade
explaining why he had deferred sending a list of recommendations for
appointment to the Council until after a meeting of the Assembly. "I
think it a proper time to try men in, especially considering how many of
his Majesty's affairs are to be transacted there."[6]
Even when a Carter, or a Byrd, or a Ludwell had taken his seat in the
Council, he had to watch his step. If he opposed the Governor too
vigorously he might be suspended. In 1677 Deputy Governor Herbert
Jeffreys reported that "one Ballard of the Council" was "a fellow of a
turbulent, mutinous spirit," and that he had "found very just cause of
suspending him at present both from the Council and collectorship ...
and advancing others more loyal, fit, and honest in his place."[7]
The Governor could crack the whip over the head of any Councillor who
defied him by threatening to kick him out of certain places of profit
and honor. The Councillors "have all along held the places of profit in
Virginia by the Governor's gift and during his pleasure," Henry
Hartwell reported to the Lords of Trade, "which I have always observed
has restrained them from due freedom of ... debate."[8] It was taken for
granted that as soon as a man became a Councillor he was to have the
next vacancy as colonel of militia, or collector of the export duty, or
naval officer. In the Council of 1692 all save three were colonels. And
if a Councillor were in high favor with the Governor, he might be in
line as Secretary or Auditor.[9]
It was the Governor who appointed sheriffs, justices of the peace, and
other local officers. Since the county court had legislative and
administrative as well as judicial powers it was the ruling body in the
county. It even had the right to tax. That the justices were not elected
by the people not only made local government undemocratic, but added
greatly to the Governor's power. He could always appoint men who were
favorable to his policies or turn out those who opposed him.
Although the Governor was directed by his instructions to secure the
advice of the Council before making appointments, he claimed that he did
not have to accept it, and he often ignored it. Nicholson was bitterly
assailed for appointing sheriffs "without the advice of the Council,"
and for putting in and turning out "colonels, lieutenant colonels,
majors, captains, and other officers of the militia."
On the other hand, as the decades passed it became more and more the
custom for the Governor to accept the recommendations of the Councillors
in making appointments, until it assumed almost the character of an
unwritten law that he must do so. In fact it was a colonial precedent
for Senatorial courtesy in the government of the United States.[10]
The Governor had the right to summon, to prorogue, and to dissolve the
Assembly. But he was usually instructed to hold an Assembly at least
once a year. On the arrival of a new Governor, or the accession of a
King or Queen, the Assembly was automatically dissolved. The power of
prorogation made it possible for a Governor, when he had a House of
Burgesses to his liking, to continue them indefinitely. That Sir William
Berkeley refused for at least fourteen years to hold a general election
prior to Bacon's Rebellion was bitterly resented by the people.
The Governor's veto over legislation, though absolute, was not
frequently used. If he objected to a bill which came up from the House,
he could, except on rare occasions, influence the Council to kill it. If
the Council insisted on passing it, he might affix his signature but
advise the King to disallow it.
The handing out of fat jobs gave the Governor a strangle hold on the
courts, if we may believe the testimony of Philip Ludwell and Stephen
Fouace. "The influence of a Governor will be great both on judges and
witnesses, particularly by the multitude of places and other favors he
has to promise in case they favor him in the trial.... There is little
possibility of having a fair examination."[11] Robert Beverley testified
to the bribing of a grand jury by Governor Nicholson. "The foreman was
favored with a naval officer's place, ... others had sheriff's places,
etc."[12]
Nicholson was accused, also, of bullying witnesses, lawyers, and juries.
"I have heard him at trials, when judges have asked a question or argued
or voted contrary to his humor, snap them up and revile them in a very
contemptible manner," reported Robert Beverley. In the case of Swan
versus Wilson "he did so grosely abuse Mr. Benjamin Harrison, who was
counsel for Swan, that everybody cried out shame on it." Finally, James
Blair, who was a member of the court, could stand it no longer. So,
taking off his hat, he rose and said:
"If Mr. Harrison has done any ill thing ... I hope your Excellency
will find another time to call him to an account for it.... I am
sorry to see so much of the court's time taken up ... by reason of
your Excellency's prejudice against him."
"Sir, I deny the prejudice, put it down in writing," shouted
Nicholson.
"I hope I have liberty to speak my opinion," replied Blair.
"Who hinders you?"
"I am ashamed to sit here and see people so used," retorted Blair.
"Get you gone then. It had been good for the country if they had
never seen your face."[13]
The Governor was the legal head of the Church, though his authority was
disputed after the appointment of a Commissary for the Bishop of London.
And both Governor and Commissary exercised very limited powers because
of the resistance of the vestries. The Governor had the right to induct
ministers after they had been presented by the vestries, but in most
cases they refused to do so. The Governor's power of collation to vacant
parishes remained throughout the colonial period practically a dead
letter.
The Council of State exercised administrative, legislative, and judicial
powers. Hartwell, Blair, and Chilton, in their _The Present State of
Virginia_, thus describe their functions: "They are the Council of State
under the Governor, who always presides; and in the vacancy of a
Governor and Lieutenant Governor, the eldest of the Council is
President. They are the Upper House of Assembly, answering to the House
of Peers in England. They are by custom, but without commission, the
supreme judges (together with the Governor who presides) in all causes
... and there lies no appeal from them but to the King in Council."[14]
As the advisory body to the Governor, the Council wielded great
influence. A Governor who had just taken office and was ignorant of
conditions in the colony had to turn to them for information and advice.
Later, when he was better informed, he still relied upon them for
support in upholding the King's authority. If he were confronted with a
mutiny, or an invasion by a hostile fleet, or an Indian war, or a
decline in the price of tobacco, he was glad to get their views on what
he should do.
The members of the Council originally sat with the Burgesses during
sessions of the Assembly, and did not constitute a separate house.
Though this denied them an equal voice with the Burgesses, since they
could always be outvoted, it permitted them to enter into debates with
the Burgesses and serve on committees. It was at the suggestion of
Governor Culpeper that the King, in 1680, gave orders that the Council
should sit as a separate house.
No doubt Culpeper did this so that he could preside at their legislative
sessions as he did when they sat as a Privy Council or as a court. In
this way he could keep an eye on them, could argue with them, and bring
pressure on them to vote as he wished. It also created a buffer between
him and the Burgesses, behind which he could take refuge against popular
criticism. The position of the Councillors was not an easy one since as
appointees of the King they were supposed to defend the royal authority,
and as natives of Virginia they wished to defend her interests. Often
they found a way out of this difficulty by voting one way and privately
urging the Burgesses to vote the other.
The members of the Council all sat on the General Court. Hartwell,
Blair, and Chilton thus describe this body: "It is strange that they
never had a commission for holding of this court, nor never took the
oath of judges, perhaps it was not designed by the Crown that they
should hold it, since besides that they are unskilful in law, it is
thought an inconvenient thing in all governments that the justice and
policy of the government should be lodged in the same persons, who ought
indeed to be a check upon one another."[15] It was as though the United
States Senate were also the Supreme Court. In other words, in colonial
Virginia the same men who, as members of the Upper House of Assembly,
had voted on a law were called upon to interpret it. Prior to 1680 if a
man thought himself injured in point of law or equity by a decision of
this court he could appeal his case to the Assembly. But after that
date, when the judicial powers of the Assembly were voided, his only
appeal was to the King and Privy Council, a step seldom taken because of
the difficulty "of either prosecuting or defending matters at such a
distance."
The judicial function of the Councillors added greatly to their power
and prestige. "They are the sole judges of law and property, which makes
all depend on them," reported Colonel Quary.[16] The Councillors were
well aware of the power and prestige which their judicial position gave
them. This is shown by the bitterness with which they resisted when
Governor Spotswood tried to weaken it by setting up a court of oyer and
terminer with others than Councillors on the bench.
The members of the Council were invariably selected from the wealthiest
men in the colony. In their own counties they were respected and feared.
To insult a Byrd, or a Custis, or a Carter would land one in jail. But
if we may believe Governor Nicholson, the poor man would not cringe
before them. "The ordinary sort of planters that have land of their own,
though not much, look upon themselves to be as good as the best of
them, for they know, at least have heard, from whence these mighty dons
derive their originals." They know that they or their "ancestors were
their equals if not their superiors, and that their getting such estates
and places of honor was more by accident than any extraordinary honesty
or ability in them."[17]
The Council reached the height of its power during the first thirty or
thirty-five years after the Glorious Revolution. Then it was that they
defied the Governors, and in three cases were largely responsible for
their removal. Nicholson complained that they "set up to have the power
and interest of turning out and putting in Governors, and affect the
title that the great Earl of Warwick had." Quary said they "had vanity
enough to think themselves almost upon equal terms with the House of
Lords." "They have by degrees endeavored to lessen the prerogative and
render the Governor little better than a cypher, and in truth they have
in effect gained their point."[18]
The Burgesses were the representatives of the people. They were expected
by all, wealthy landholders and owners of but a few acres, carpenters,
coopers, clergymen, to uphold the liberties of all against the assaults
of the King or the Governor. The poor turned to them for protection
against the rich. Any attempt by the Governor to rule despotically or
illegally was sure to arouse their stubborn resistance. They were in
effect the House of Commons of Virginia, claimed the same privileges,
and observed the same form in their proceedings. Since each county
normally sent two Burgesses to the Assembly, the House grew in numbers
as new counties were organized.
The Assembly, during its century and a half of existence, was often
forced to meet in private houses or taverns because of the burning of
the statehouses, now at Green Spring, the residence of Sir William
Berkeley, now at William Sherwood's house; now at the ordinary of Thomas
Woodhouse. The first statehouse, which occupied a double row of little
buildings, went up in flames in 1656, the second, which was also the
Governor's residence, burned in 1660. The third statehouse was more
pretentious than its predecessors, being two stories high, with a
medieval porch in front, the tile-covered roof dominated by chimney
stacks probably in the Tudor style. It was burned by Bacon's rebels in
1676. The fourth statehouse, which seems to have been built on the
foundations of the third, was destroyed by fire in 1698. It was after
this last disaster that the seat of government was moved to
Williamsburg, where a lovely Capitol, which has been accurately restored
by Colonial Williamsburg Inc. in recent years, was completed in 1704.
The sessions of the Burgesses in the hall provided for them in this
building presented a picturesque scene. The Speaker, in his gown, sat in
a high chair on a raised platform at the semicircular end of the room.
Before him, in the center of the hall, was a table covered with green
cloth, resting on it the mace, the emblem of the authority of the House.
Here sat the clerk, pen in hand, jotting down notes for the journal.
Along either side of the room were two rows of benches covered with
green serge, where sat the Burgesses. All wore their hats. A strange
medley they were, with the "handsome, well dressed, complete" gentlemen
from the tidewater contrasting with the roughly clad frontiersmen.
The House was quick to resent any disrespect to themselves as
individuals or as a body. It was in October, 1693, that Mr. Matthew Kemp
rose to complain of insults offered him and the House by a certain
Thomas Rooke. We do not know whether he displayed a bloody nose or a
black eye, but he accused Rooke of striking him. Thereupon a committee
was appointed to look into the matter, Rooke was arrested and forced on
his bended knees to apologize. "Having now a deep sense and abhorrence,
and out of a true and unfeigned sorrow and repentence," he repeated, he
asked forgiveness.[19] After they had released him he may have cursed
them all under his breath, but for the future he kept his resentment to
himself.
The qualifications for the right to vote changed from time to time. On
the whole they were liberal, for throughout the colonial period most
freemen could voice their choice when the candidates for the House of
Burgesses were presented. The constitution of 1621 stated that Burgesses
were to be chosen by the "inhabitants." If this was interpreted to mean
that all men, including indentured workers, enjoyed the franchise, it
was later modified by a law restricting the right to vote to those who
paid taxes. It is revealing of the high value placed on representative
government even by the humblest, that when Governor Berkeley suggested
that taxes be assessed, not by the poll, but only on landholders, the
Burgesses protested that this would disfranchise great numbers of
freemen who owned no land at all. "We are so well acquainted with the
temper of the people that we have reason to believe they had rather pay
their tax than lose their privilege."
Seven years later another attempt to restrict the suffrage was more
successful. Probably at Berkeley's suggestion the Assembly passed a law
that no man should vote unless he were a landholder or housekeeper. At
this time poor men who were apt to "make tumults at the elections" were
pouring in, and the Governor thought it the part of wisdom to deny them
any participation in the government. In England only property owners
could vote, he argued, why have a different practice in Virginia?
Unfortunately this happened at a time when the people were "ripe for
rebellion," and it merely added to their resentment against the Governor
and his puppet Assembly. It was in an effort to appease them that
Berkeley called for a new election, in 1676, and, ignoring the law, took
it on himself to extend the franchise to "every free born man." When
this Assembly met, and when Bacon's army was marching on Jamestown, they
confirmed this ruling by passing a law to give the right to vote to all
freemen. But with the repeal of Bacon's Laws in 1677, the franchise was
once more restricted to landowners and housekeepers.
When Culpeper was appointed Governor in 1679, he was ordered to make a
vigorous assault upon liberty in the colony. Among other repressive
measures he was instructed to deprive mere housekeepers of the suffrage
and limit it to freeholders. Although this measure was unjust to the
large and intelligent artisan class--carpenters, masons, coopers, house
painters, shipwrights, saddlers, gunsmiths, etc., it seems to have
remained in force throughout the remainder of the colonial period.
The wages of the Burgesses changed from time to time. At one time the
pay was ten shillings a day, at another thirteen shillings, at still
another 130 pounds of tobacco. In 1718 it was thirty shillings, a sum
which Governor Spotswood thought far too much. His criticisms of the
politicians of his day show that the species has not changed greatly in
the past two and a half centuries. The salary "makes needy men try for
the place who are not qualified for a Senate house," he said. "Those
upon an approaching election set themselves to inventing most false and
malicious stories.... The country to be sure is ever represented as if
it was to be undone, and none can be judged capable of saving it but
some of their own mobbish politicians, who engage to pursue the wild
schemes of the electors."[20] But when he tried to cut the ground from
under these false patriots by urging a law requiring the Burgesses to
serve without salary, and restricting further the qualifications for
voters and for candidates for office, it was overwhelmingly voted down.
It was customary for each county to pay the salaries of its two
Burgesses. This was unjust, for it made the burden fall much more
heavily upon the taxpayer in a small county than one in a large county.
It was harmful, also, as implying that the Burgess was concerned with
the interests of his county rather than those of the colony as a whole.
So the people of the thinly settled counties rejoiced when, in the
mid-eighteenth century the Burgesses were paid from the revenue from the
duty on the imports of liquors whenever there was a surplus in this
fund.
The Burgesses elected their own Speaker. This officer presided over the
deliberations of the House, voiced their determinations, and issued
warrants to execute their orders. In case of a tie he cast the deciding
vote. The office was eagerly sought after, for it carried great
influence. In 1699, when Robert Carter was elected, he said in his
address of acceptance: "The House of Burgesses, consisting of the better
sort of gentlemen from all parts of the country, to be in this fashion
the object of their choice I take to be of no small reputation to
me."[21]
The prestige of the office grew with the increasing power of the House,
until the Speaker became, next to the Governor, the most influential man
in the colony. It became a fixed custom for the Burgesses to enhance his
pay by making him Treasurer. In 1758, when Governor Fauquier was
instructed to separate the two offices, he was greatly perplexed. The
Speaker, Mr. John Robinson, is "the most popular man in the country," he
wrote the Lords of Trade, "beloved by the gentlemen and the idol of the
people." Any slight to him would put a stop to all legislative
business.[22]
With the growth of the House of Burgesses its business more and more was
transacted by committees. The most important were the committees on
Propositions and Grievances, Elections and Privileges, and on
Proportioning the Levy. To the first of these came all manner of
complaints. One county asks that ship captains be forbidden to throw
ballast into the rivers, another wants a ceiling put on doctors' bills,
still another objects to having taverns extend credit to sailors.
The House kept a close watch on elections, and the Committee on
Elections and Privileges always went over the writs in search of
irregularities. If a sheriff should fail to make a return or should make
an imperfect return, the messenger was sent to bring him before the
House to explain why. Should he take it upon himself to judge who was
eligible or not eligible for election, he was certain to receive a stern
reprimand. In 1692 a resolution "that the House of Burgesses are the
sole and only judges of the capacity or incapacity of their own members"
passed unanimously.[23]
The Committee on Private Causes prior to 1680 was in effect the supreme
court of Virginia, to which appeals were made, for the House invariably
accepted its findings. But it ceased to function when the Assembly was
deprived of its judicial power.
The Burgesses were wary of bills of attainder, the weapon used with such
great effect by Parliament. They realized the danger in condemning
persons without trial, especially when the colony had so much at stake
in preserving liberty and justice. But the Assembly of February, 1677,
which had been "hand picked" by Governor Berkeley, did attaint Bacon and
fifteen of his followers in defiance of the King's pardon.[24] Since all
of the victims were dead, the attaint affected only their property. When
Charles II heard what had been done, he promptly nullified the law.[25]
The Burgesses were well aware from the first that the universally
accepted principle that no Englishman could be legally taxed without his
own consent was the basis of liberty. They alone, as the representatives
of the people, could take their property. If a Governor, as the
substitute for the King, so far stretched his authority as to attempt to
lay a levy, they were quick to call him to order. As early as 1624 the
Assembly passed a law "that the Governor shall not lay any taxes or
impositions upon the colony, their lands or commodities, other way than
by the authority of the General Assembly, to be levied and imployed as
the said Assembly shall appoint."[26] Similar laws were passed in 1631,
1632, 1642, and 1645.
Several times the Governor and Council requested the Burgesses to
authorize them to lay taxes not to exceed a specified sum and for a
limited period. In 1661 the House did grant such a power, but
thereafter, despite several attempts, the Governor and Council met with
emphatic refusals. In 1680, when Charles II was aiming deadly blows at
liberty in the colonies, the Burgesses yielded to threats, and
surrendered a part of the people's birthright by voting a perpetual
revenue to the King.
When the Parliamentary fleet came into the James in 1652 to force the
Virginians to recognize the Commonwealth, the Assembly insisted on
inserting in the articles of surrender the promise "that Virginia shall
be free from all taxes, customs, and impositions whatsoever, and none to
be imposed on them without the consent of the General Assembly."[27]
In 1675, when the Virginia Assembly sent agents to England to petition
for a charter, they took pains to point out that "neither his Majesty
nor any of his ancestors or predecessors had ever offered to impose any
tax upon this plantation without the consent of his subjects here."[28]
It was so universally accepted that only the Assembly could tax the
people, that the agents thought it necessary to explain why they
considered it wise to insert an article confirming this right. "Not
being taxed but by the General Assembly, as it hath been ever the
practice there and the other plantations, so it is a power given them by
royal instructions, which we conceive ought to be confirmed under the
Great Seal, for though it might be taken for granted that as they never
have been, so they never should be otherwise taxed, and that as of right
they ought to be; yet the power of the Assembly being only in
instructions, we ordered this further confirmation of it."[29]
Certain historians have assumed that the Americans a century later
annunciated a new principle in claiming that taxation without
representation is tyranny. The fact is that the principle was older than
the colonies themselves. All the Revolutionary patriots did was to give
it a new and more striking wording. When Parliament passed the Stamp Act
they were taking an unprecedented step, a step which violated the
age-old rights of Englishmen. And in so doing, they struck a deadly blow
at liberty in America.
The most common and the most hated source of income in Virginia was the
poll tax. It was not entirely unequal since it was imposed on all male
whites over sixteen, all white women over sixteen who worked in the
fields, and all slaves old enough to work. Thus the poor man paid only
for himself and members of his family, while the rich man paid for his
servants and slaves as well. The poll tax provided revenue, not only for
the general government, but for the counties and parishes.
Though the poll tax usually was not excessive, it was a source of
constant irritation. The poor planter who had worked hard to raise a
crop of tobacco just large enough to buy necessities for his family,
thought it hard indeed when the sheriff took the government's share.
The quit rents paid to the King for all land were an even greater source
of trouble. It was impossible to make men of large estates pay in full,
there were frauds in disposing of the tobacco in which the rents were
paid, at times the people were so far behind that to enforce payment of
arrears would ruin them. The quit rent fund was drawn upon for war
purposes, building of forts, paying salaries, etc. In 1693 Commissary
Blair received a grant of L1985.14.10 from the quit rent fund to found
the College of William and Mary. When Attorney General Seymour objected
to paying the money, Blair explained that it was the chief purpose of
the college to train young men for the ministry, and begged him to
consider that they in Virginia had souls to be saved as well as those in
England. "Souls! Damn your souls! Make tobacco," snapped Seymour.[30]
Local government was administered by the county courts. Hartwell, Blair,
and Chilton wrote: "There is a county court in every county, which
consists of eight or ten gentlemen ... to whom the Governor gives a
commission during pleasure to be justices of the peace for that county.
He renews that commission commonly every year, for that ... gives him
an opportunity to admit into it new favorites and exclude others that
have not been so zealous in his service.... They have court once a
month, ... and have a power of deciding all sorts of causes."[31] But
they did not have jurisdiction in cases involving loss of life or limb.
That the people had no voice in selecting the justices was greatly
resented, especially since the courts had the power of levying taxes.
The people of Charles City County complained in 1677 that the justices
had "illegally ... taken upon them without our consent from time to time
to impose, raise, assess, and levy what taxes, levies, and impositions
upon us ... they liked, great part of which they have converted to their
own use."[32] The people of Surry County made a similar complaint: "It
has been the custom of the county courts at the laying of the levy to
withdraw into a private room by which the poor people not knowing for
what they paid their levy did always admire how their taxes could be so
high."[33]
In each county was one or more parishes, presided over by a vestry of
twelve men each. Since the vestry had the right to lay the parish levy,
it was of great importance that they should be elected by the people.
This was the practice until Berkeley's second administration, when it
became the custom for a vestry, when once chosen at the establishing of
a new parish, themselves to fill vacancies in their ranks, and thus to
become self-perpetuating.
Hartwell, Blair, and Chilton thought it deplorable that the vestries
habitually refused to present their ministers for induction, so that
they could "keep them in more subjection." This was such a hardship on
the clergy that none who "were informed of it would come into the
country." When one did come, he would have to be wary of preaching
against any vices "that any great man of his vestry was guilty of," for
fear of losing his place.[34] Yet the vestries themselves were supposed
to be the guardians of the morals of the parishioners. In 1648 a vestry
in Northampton found the wife of a prominent citizen guilty of adultery,
and ordered the minister and church warden to present her to the county
court for punishment.
The most eagerly sought after offices in the colony were those of
President of the Council, Secretary of State, Attorney General, Auditor,
and Treasurer. It was the custom for the senior member of the Council in
point of service to become President when the office of the Governor was
temporarily vacant.[35] This was an unsatisfactory arrangement since it
might happen that the senior Councillor was too old to take on important
and arduous duties. In 1749, when Governor Gooch was about to leave for
England, it was decided by the Council that Colonel John Custis, the
senior member, was "utterly incapable of managing the business of the
government."[36] At their request the Governor suspended him from the
Council, so that Thomas Lee, next in order of seniority, could become
President.
The Secretary of State was appointed by the King. Until 1723 he held
office only "during the pleasure" of the Governor, but thereafter for
life. The Secretary claimed the right to appoint the clerks of the
county courts, who acted as his deputies, and paid him a percentage of
the income from fees arising from lawsuits and other court proceedings.
But he seldom made an appointment "without the Governor's knowledge and
good liking."
Contemporary writers agree that the Secretary's office was a jungle of
court records, surveys, commissions, deeds for land, probates of wills,
writs of elections, marriage certificates, etc. If we may believe
Benjamin Harrison it was usually in wild confusion. "Nothing hath been
more common of late years than to hear people complain that they could
not find the records of their patents or other deeds for their
lands."[37] Apparently all kinds of documents were piled up together
instead of being sorted and filed separately. "It is almost impossible
to give a full and perfect account of the Secretary's office, there is
such a medley in it that its scarce credible," wrote Hartwell, Blair,
and Chilton.
The Auditor for Virginia was appointed by the Auditor of the
Plantations, usually upon the recommendation of the Governor. This
officer audited the accounts of the quit rents, the export duty,
escheats, etc., certified their accuracy, and reported to England. He
received 7-1/2 per cent of all the monies passing through his hands.
There seems to have been great laxness at times in the handling of
funds. When Auditor William Byrd died in December, 1704, it was found
that the account was overdrawn by L7,698.9.10.[38] It is not surprising
that Governor Nicholson, while waiting for William Blathwait, the
Auditor of the Plantations, to appoint Byrd's successor, decided to
"take that trouble" on himself.[39]
Philip Ludwell, who was made Auditor in 1712, seems to have been just as
careless as Byrd. In December, 1715, Governor Spotswood called the
attention of the Council to the confusion in his office. "Only gross
sums are entered in one general account," he said, "and the particular
accounts of the receivers ... only kept in loose papers."[40] When he
recommended several reforms, Ludwell told him in effect to mind his own
business, and that he would take orders only from the Auditor General.
Thereupon Spotswood suspended him from his office. Ludwell came back
with a letter "stuffed with virulent invectives," denying the legality
of this action.
Prior to 1691 the Treasurer was appointed by the Governor, but that year
the Burgesses claimed the right of naming him, and despite the
opposition of the Governors, eventually had their way. The Treasurer
received the funds from various taxes and made up the accounts. He
received six per cent of the money collected.
Outwardly the government of Virginia changed little during the century
and a half from the fall of the London Company to the Declaration of
Independence. Actually throughout the colonial period vital developments
were taking place. Both the Council and the House of Burgesses were
tireless in whittling away at the King's prerogative; the Council
gradually took out of the Governor's hands the right of naming local
officials; the control of the purse by the Burgesses was used to such
good effect that by the middle of the eighteenth century their influence
was greater than that of either Governor or Council.
We gain glimpses of the changes which were taking place, not by changes
in the laws, but by seemingly unimportant incidents, and by the spirit
of the times. What would Charles II have thought had Sir William
Berkeley written him, boasting of his influence with the Speaker of the
House of Burgesses? Yet that is just what Governor Fauquier did in
1758.
It was the determined, unflagging, bitter battle for self-government
which brought victory to the people. We see them putting Governor John
Harvey aboard a vessel and sending him back to England, when he tried to
play the despot; we see them rising in wild rebellion against the
misgovernment of Sir William Berkeley; we see them defending their
liberty against the assaults of Charles II and James II.
The English government was warned repeatedly of what was going on. "I
may truly say that now or never is the only time to maintain the Queen's
just prerogative and put a stop to these wrong, pernicious notions which
are improving daily, not only in Virginia, but in all her Majesty's
other governments," wrote Colonel Robert Quary, in 1705. "A frown now
from her Majesty will do more than perhaps an army hereafter."[41] In
another report he said that the Assembly "conclude themselves entitled
to all the rights and privileges of an English Parliament." Nicholson
said that the Virginians wished to set up a commonwealth.
But Nicholson was wrong. The Virginians of his day, and their sons and
grandsons after them were loyal to the British Kings, wished to remain
in the British Empire. But they were determined to govern themselves in
all except imperial matters. What they wanted was liberty, not
independence. And liberty they attained decades before the Stamp Act,
decades before Patrick Henry said: "Give me liberty or give me death."
FOOTNOTES:
[1] W. W. Hening, _Statutes at large_ 2: 531-533.
[2] CO5-1359, p. 344.
[3] CO5-1359, p. 255.
[4] CO5-1314, Doc. 15G.
[5] CO5-1356, pp. 125, 126.
[6] CO5-1359, p. 320.
[7] CO1-40, p. 104.
[8] CO5-1359, pp. 95, 96.
[9] _Ibid._, 97, 98.
[10] H. J. Ford, _Rise and growth of American politics_, 267.
[11] CO5-1314, Doc. 17.
[12] _Ibid._, Doc. 10.
[13] CO5-1314, Doc. 23.
[14] P. 34.
[15] P. 46.
[16] CO5-1315, Sept. 1, 1706.
[17] CO5-1314, Doc. 43.
[18] CO5-1315, Sept. 1, 1706.
[19] _Journals of the House of Burgesses_, 1659-1693: 477.
[20] CO5-1318.
[21] _Journals of the House of Burgesses_, 1695-1702: 133.
[22] June 28, 1758.
[23] _Journals of the House of Burgesses_, 1659-1693, 381.
[24] W. W. Hening, _Statutes at large_ 2: 363, 369.
[25] CO1-41, p. 118.
[26] W. W. Hening, _Statutes at large_ 1.
[27] W. W. Hening, _Statutes at large_ 1: 363-365.
[28] _Bath papers_, IIa, 44.
[29] _Ibid._, 142.
[30] _The complete works of Benjamin Franklin_, J. Bigelow, ed., 10:
369.
[31] _The present state of Virginia_, 44, 45.
[32] _Virginia Magazine_, 3: 142.
[33] _Ibid._ 2: 172.
[34] _The present state of Virginia_, 66, 67.
[35] CO5-1359, 344.
[36] _Executive journals of the Council_ 5: 299.
[37] CO5-1361, p. 426.
[38] _Executive journals of the Council_ 2: 406.
[39] _Ibid._, 407.
[40] _Ibid._ 3: 421.
[41] CO5-1314, Doc. 63I.