Give Me Liberty: The Struggle for Self-Government in Virginia

by Thomas Jefferson Wertenbaker

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.