Realizing that he had brought down on himself the hostility of the Councillors, Spotswood now tried to undermine their power by setting up courts of oyer and terminer to which he appointed persons other than themselves. The General Court, on which all members of the Council and none else sat, had long been the court of last appeal in the colony. The Councillors prized their seats in this court not less than their seats in the Upper House of Assembly or around the Council table. Spotswood claimed that their power over the lives and property of the people made all regard them with awe, and "kept the country in subjection to their party."[26] "They know that they have now lodged wholly in their hands that power that Absalom wanted for effectually securing the people in his interest, when he longed to be the judge of every man's cause."[27]
It was to be expected, then, that they should insist that none but themselves should sit on the new court of oyer and terminer. In May, 1717, eight of them met in secret and drew up a letter to the Lords of Trade defending their position. The charter of 1676 expressly stated that the Governor and Council had authority to try "all treasons, murders, felonies." The laws of Virginia made the Governor and Council the supreme court. They could not believe that a Governor could "break through laws and charters and alter all the ancient usage and tradition of the government."[28]
Spotswood also appealed to the Lords of Trade. And he was overjoyed when this body wrote him that they could not see what reason the Council had to insist upon being the sole judges of the new court since his commission empowered him to "appoint judges."[29] They were backed by Attorney General Edward Northy in his opinion of December 24, 1717. Northy advised, however, that Governors be instructed not to hold courts of oyer and terminer except in cases of "extraordinary emergency."[30]
The test came in December, 1718, when the court of oyer and terminer was about to begin its session. Several Councillors had taken their seats when Spotswood announced that he was joining with them Mr. Cole Digges and Mr. Peter Beverley. Since neither was a member of the Council, Ludwell and four others got up and left. The five then drew up a remonstrance, which Ludwell presented to Spotswood in court, with a "long harangue." Noticing that people were gathering, he turned around, and raising his voice, addressed them. "The Governor's power of naming other judges than the Councillors in life and death cases is of dangerous consequence to the lives and liberties of free subjects," he said. "For that reason I refuse to sit in the court of oyer and terminer with those gentlemen."[31]
In London, Byrd pleaded the cause of the Council before the Lords of Trade. It would be fatal, he argued, to permit a Governor to try any person by what judges he thought proper. "Whoever has had the fortune to live in the plantations knows that Governors are not in the least exempt from human frailties, such as passionate love of money, resentment against such as presume to oppose their designs, particularly to their creatures and favorites."[32] To this Spotswood retorted: "What else could tempt the ruling party in the Council so strenuously to insist on a right, never claimed before, of being judges of oyer and terminer, but the desire of gaining to one family an entire power over the lives, as they now have over the estates, of the people of Virginia?"[33]
To the Earl of Orkney, Spotswood wrote bitterly. If he lost his battle with the Council, future Governors would think it folly to oppose them. "I take the power, interest, and reputation of the King's Governor in this dominion to be now reduced to a desperate gasp, and if the present efforts of the country cannot add new vigor to the same, then the haughtiness of a Carter, the hypocrisy of a Blair, the inveteracy of a Ludwell, the brutishness of a Smith, the malice of a Byrd, the conceitedness of a Grymes, and the scurrility of a Corbin, with about a score of base disloyalists and ungrateful Creolians for their adherents, must for the future rule the province."[34]
Since the Virginia treasury was now overflowing as a result of peace in Europe and the shipping out of vast quantities of tobacco, Spotswood managed to get along without an Assembly for three years. He would probably have continued to do so indefinitely, had he not wanted an act to reimburse the Indian Company which had been dissolved by order of the King. The trade with the Indians had recently become a mere trickle, because South Carolina had confiscated the goods of some Virginia traders, and lawless savages had robbed others. So an act was passed in 1714 under which a monopoly of the trade with the southern tribes was lodged in the Virginia Indian Company.
In return the company was required to contribute £100 towards building a public magazine at Williamsburg, to garrison and keep in repair a fort at Christanna on the frontier, and erect a schoolhouse there for Indian children. Some of the leading men in the colony became stockholders, among them William Cocke, Mann Page, William Cole, Nathaniel Harrison, and Cole Digges. They had spent large sums "in purchasing servants, taking up land and making settlements on the frontier, clearing roads, and building warehouses," when word came that the act under which they operated had been vetoed by the King.[35] Since they were now left holding the bag, they asked that the Assembly reimburse them.
The election which followed was one of the bitterest in Virginia history. Spotswood made full use of the patronage. "Commissions flew about to every fellow that could make two or three votes," wrote Joshua Gee. "He gave the power to his friends to make a discreet use of [them]. And indeed never fouler play was by men, than at most of our elections."[36] Political pamphlets were distributed at every courthouse. One of them began: "Having seen a rascally paper which contained advice to freeholders in favor of a court party and tools of arbitrary power to enslave and ruin a free born people ... to prevent which I thought it my duty to open your eyes.... You are to know, brother electors, that this Assembly is called for no other reason but to pay to the Indian Company their charges on Fort Christanna, if they can get a set of men fit for that purpose to gull into that unjust payment."[37]
The outcome of the election was another defeat for the Governor. No less than thirty-four members of the hostile House of Burgesses of 1715 were returned. Of the new members Gawin Corbin, John Grymes, Archibald Blair, and others were bitter enemies of Spotswood. During the session the Governor kept his temper, since he had been ordered to do so by the Lords of Trade, but the Burgesses, remembering his former insults, did everything they could to annoy him. Though his opening address was conciliatory, it was greeted with "violent censures." One wrathful member "shot his bolt" and cried out: "It is all stuff and calculated only for the latitude of Whitehall." When Spotswood laid before the House several letters from New York in regard to renewing a treaty with the Indians, "they made it their jest, and setting up a great laugh ... cried out in their vulgar language, 'A bite!'"[38]