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.