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GIVE ME LIBERTY

Memoirs of the

AMERICAN PHILOSOPHICAL SOCIETY

held at Philadelphia
for Promoting Useful Knowledge

Volume 46

Thomas Jefferson. Portrait by Thomas Sully in the Hall of the American Philosophical Society.

GIVE ME LIBERTY

The Struggle for Self-Government
in
Virginia

THOMAS J. WERTENBAKER
Edwards Professor Emeritus of American History
Princeton University
THE AMERICAN PHILOSOPHICAL SOCIETY
INDEPENDENCE SQUARE
PHILADELPHIA
1958

Copyright 1958 by the American Philosophical Society
Library of Congress Catalog
Card Number: 58-9093
PRINTED IN THE UNITED STATES OF AMERICA
BY J. H. FURST COMPANY, BALTIMORE, MARYLAND

Preface

None of the American colonies "will ever submit to the loss of those valuable rights and privileges which are essential to the happiness of every free state," George Washington wrote in October, 1774. Perhaps the British officer to whom he made this statement was startled to have him speak of the colonies as free. Yet at the time the American people were the freest in the world, freer even than the people of England. It was to defend this freedom, not to gain new rights, that the colonists rebelled against Great Britain. For decades they had been governing themselves, so when the British Ministry tried to govern them from London, they would not submit.

To understand what was in the minds and hearts of George Washington, Samuel Adams, Patrick Henry, and the other patriots, it is necessary to know how the colonies became self-governing. One must follow the political battles and hard-earned victories of their fathers, and grandfathers, and great-grandfathers in the colonial Assemblies.

This volume treats of the struggle for self-government in Virginia from the founding of Jamestown in 1607 to the Declaration of Independence. The story of the gradual lessening of the King's prerogative, of the weakening of the power of the Governor, of the emergence of the Assembly as the ruling body could be paralleled in other colonies. But it is of especial importance in Virginia, where was held the first representative Assembly in the New World, and which gave so many leaders to the American Revolution.

I wish to express my appreciation to my Alma Mater, the University of Virginia, for its award of a Thomas Jefferson Research Fellowship, without which this volume would not have been written.

Thomas J. Wertenbaker.

Princeton, N. J.
April 1, 1957.

Contents

Illustrations

CHAPTER I
THE CORNERSTONE OF LIBERTY

Three little vessels—the Susan Constant, the Godspeed, and the Discovery—left England in December, 1606, under the command of Captain Christopher Newport, to found a colony on the distant shores of Virginia. Two decades earlier Sir Walter Raleigh had sent out a group of settlers to what is now North Carolina, and they had disappeared mysteriously. What had happened to them? men asked. Had they been killed by the Indians? Had they fallen victims to disease? Had they starved? Those who shared in this new venture must have wondered if a like fate awaited them in this strange new land.

But their spirits rose when they entered Chesapeake Bay. Landing parties were delighted with the "fair meddowes ... full of flowers of divers kinds and colors," the "goodly tall trees," and the streams of fresh water. It was a smiling country which seemed to bid them welcome. But when they entered the mouth of a broad river, which they called the James in honor of their King, and made their way up into the country, new doubts must have assailed them. They knew that savages lived in the dense forests which lined both banks; might not strange wild beasts live there also? Might there not be fatal diseases unknown in Europe?

Possibly they wondered what type of government Englishmen would live under here. In the charter granted the Virginia Company of London in 1606 it was promised that they should "enjoy all the liberties, franchises, and immunities" of Englishmen, "as if they had been abiding" in England. Even without this promise they would have taken it for granted that they were not surrendering the freedom derived from their ancestors. This was the view taken six decades later by Francis Moryson and Thomas Ludwell, agents for the colony. If the King planted a colony of Englishmen, they and their heirs ought by law to enjoy the "same liberties and privileges as Englishmen in England." After all, the colony would be but "an extension or dilation of the realm of England."[1]

The men who came to Virginia had, in the mother country, participated in the government through representatives of their own choosing, so they insisted upon this right in their new home. They claimed, also, the habeas corpus, jury trial, and freedom from taxation save by their own consent. In England not even the King could take a man's money legally until it had been granted by the House of Commons. Upon this recognized principle English liberty was chiefly based; upon its acceptance in America depended the future of liberty there.

Yet when the first band of settlers stepped ashore at Jamestown, liberty in England still hung in the balance. At the conclusion of the Wars of the Roses the King was almost absolute. The people were desperately tired of anarchy; they were tired also of the oppressions of the barons. So long as the King put an end to both they had no desire to limit his power. The Commons ate out of his hand. Henry VIII might tear the Church from the Roman see, Mary might restore it, Edward might once more break with Rome—in each case the people submitted. Those who dared resist faced the headsman's block or the pyre.

But in time the memory of the Wars of the Roses grew dim. And the growth of the artisan class, the development of trade, the birth of a great literature, the work of the universities, the expansion of world horizons fired the imagination and awakened men to their own potentialities. Self-government is a tender plant which withers in the soil of poverty and ignorance, and it was the advance of prosperity and enlightenment under the Tudors which made possible the flowering of liberty under the Stuarts.

James I had been on the throne only three years when the little town which bore his name was founded. James has been called the wisest fool in Christendom; but he was neither wise nor a fool. His conception of the King's office was logical and simple. It was his function to rule; the duty of the people was to obey. If they did not, like bad children they should be scolded and perhaps punished, since it was not only illegal but wicked to question the King's authority. "As to dispute what God may do is blasphemy, so it is sedition in subjects to dispute what a King may do," he said. Parliament he considered a nuisance. "I am surprised that my ancestors should have permitted such an institution to come into existence," he said. "I am a stranger and found it here when I arrived, so that I am obliged to put up with what I cannot get rid of."[2]

The House of Commons were not inclined to accept the King's theory of the relations between himself and Parliament. When James told them that they had no privileges save by royal grace, they replied that he had been misinformed. When in answer to James' demand that they refrain from meddling in foreign affairs, they entered on their journal a protestation of their right of free speech, he was so enraged that he sent for the book and with his own hands tore out the page.

The Commons considered it a precious privilege to be "governed by certain rules of law ... and not by uncertain or arbitrary form of government." There is a general fear among the people, they told James, that royal proclamations might eventually assume the nature of laws. Then their ancient freedom would be abridged, "if not quite taken away," and "a new form of arbitrary government" brought on the realm.

The conflict between King and Parliament foreshadowed the conflict between the Governors and the people of the colonies. The provincial Assemblies were not less determined to resist any infringement on their rights than was Parliament. And the fortunes of the contending forces in the mother country affected profoundly those in the colonies. Echoes of the First Stuart Despotism, the Civil War and Commonwealth, the Restoration, the Second Stuart Despotism, the Glorious Revolution, the laissez-faire period, and the reaction under George III reverberated in the colonies.

But the development of self-government in America was by no means entirely dependent upon events in England. There were forces in the New World which favored democracy. The wide spaces of the frontier made men self-reliant and resourceful and impatient of control by a distant monarch, ever ready to defend old rights, quick to demand new ones. "People remote from the seat of government are always remarkable for their disobedience," wrote Governor Gooch, in 1732.[3] As the historian Foote has pointed out, they and "their children were republicans; in England they would have been styled rebels."

The creating of a vast middle class in the colonies also tended toward democracy. The men who turned their backs on the homes of their ancestors to start life over again in the tobacco fields of Virginia were, most of them, desperately poor. Many came under terms of indenture. But they had, prior to the introduction of slaves in large numbers, every opportunity to rise. As a result there emerged a vigorous, intelligent, freedom-loving yeomanry, who had a profound influence in winning self-government.

But the victory at first seemed to be with the King. When James granted a charter to the Virginia Company of London, he took care that it should include no provision for representative government. Instead he kept the control of the proposed colony in his own hands. There was to be a Council resident in England appointed by him and responsible to him. This body was to name another Council which was to reside in Virginia and administer the "Articles, Instructions, and Orders" which the King drew up with his own hand. In practice this body assumed administrative, legislative, and judicial powers, and ruled the infant colony by their own arbitrary will.[4]

Not only was this constitution undemocratic, but it proved inefficient. Had the Council in England made better selections for the Council in Virginia, the colony would have been saved much disorder and suffering. But never was there a more quarrelsome set of men. The fleet had been at sea but a few days when Captain John Smith was accused of plotting to overthrow the government and murder his associates, and was kept in prison below decks. Only some weeks after the landing at Jamestown was he released and permitted to take his seat on the Council.[5]

On the Council with him were Captain Christopher Newport, Edward Wingfield, Bartholomew Gosnold, George Kendall, John Ratcliffe, and John Martin. One would think that this little group, set down in the wilderness and faced with many perils, would have occupied their time better than with plotting against each other. They had enough to do to defend themselves against the Indians, for in a sudden attack four of them were wounded and another had a narrow escape when an arrow passed through his beard.[6]

Kendall was the first to be expelled from the Council. Gosnold died. Wingfield, who was President of the Council, was accused of being an atheist, of plotting to desert the colony, and of misappropriating public funds, and was ousted from his seat. Since Newport had sailed with the fleet for England, Ratcliffe, Smith, and Martin were now the only remaining Councillors. But this did not bring harmony. Kendall was accused of plotting against the other two, tried, and hanged. Smith, too, was in danger of the gallows, when he was held responsible for the death of two men who had been killed by the Indians. Were the "whipping, lawing, beating, and hanging in Virginia known in England, I fear it would drive many well affected minds from this honorable action," Wingfield stated after his return to England. With the drowning of two new Councillors, Captain John Smith alone remained, and for several months was the sole ruler of the colony.[7]

When word of what was going on in Virginia reached the London Company it was obvious to all that the original plan of government had proved a failure. So they secured a new charter empowering them to change it. But for a remedy they turned, not to self-government, but to despotism. They abolished the old Council, and turned the colony over to a Governor who, within the limits of his instructions, was to "rule and govern by his own discretion or by such laws" as he should decree. To assist him he was to choose an advisory Council.

The danger of this system was at first obscured by the wise choice of a Governor. Thomas Lord De la Warr was a man of distinction and ability. He had studied at the Queen's College, Oxford, had served with Essex in Ireland, and had been a member of the Privy Council under both Elizabeth and James.[8]

Upon landing at Jamestown, De la Warr listened to a sermon by the good minister, Mr. Buck. He then addressed the people, "laying some blames on them," and promising, if forced to it, to draw the sword of justice. But there seems to have been no need for this. The people, forgetting former quarrels, were united in their efforts to serve their Governor and bring a degree of prosperity to the colony. The sound of hammering and sawing was heard on all sides as little houses were built, the fort repaired, the church restored. "Every Sunday, when the Lord Governor went to church, he was accompanied by all the Councillors, Captains, and other officers, and all the gentlemen, and with a band of fifty halberdiers in his Lordships livery, fair red cloaks, on each side and behind him. The Lord Governor sat in the choir in a green velvet chair, with a velvet cushion before him on which he knelt."[9]

But that Lord De la Warr proved to be a mild and just Governor by no means obscures the evils inherent in absolutism. A good ruler may be succeeded by a bad one. In ancient Rome the people benefited by the establishing of law and order under the great Augustus, but they suffered from the cruelty of the insane Caligula and the dissolute Nero. So it boded no good for Virginia when De la Warr fell ill. "I was welcomed by a hot and violent ague," he tells us. This was followed by an attack of dysentery. "Then the cramp assaulted my weak body with strong pains, and afterward the gout." Finally scurvy came to add to his woes, so that he "was upon the point to leave this world." In desperation he set sail for the West Indies in the hope of recovering his health.[10]

A few weeks after De la Warr's departure Sir Thomas Gates assumed command of the colony. In 1614 he, in turn, was followed by Sir Thomas Dale, Dale by Captain George Yeardley, and Yeardley by Samuel Argall. When Gates was in Virginia in 1610 he had brought with him certain laws, orders, and instructions which he posted in the church at Jamestown. As the people crowded into the little building to read them they must have expressed their resentment and horror, for the laws were more suited to a penal colony than to a community of free Englishmen. In 1611 Dale brought additional laws, and the whole body was revised in England and published. Gates and Dale had both served with the English army in the Netherlands, and these laws were "chiefly extracted out of the laws for governing the army" there.

It was ordered that "every man and woman daily twice a day upon the first tolling of the bell shall upon the working days repair into the church to hear divine service upon pain of losing his or her day's allowance for the first omission, for the second to be whipped, for the third to be condemned to the galleys for six months." Equally severe was the law that "no man shall give any disgraceful words or commit any act to the disgrace of any person ... upon pain of being tied head and feet together upon the guard every night for the space of one month." To kill any cattle, or horse, goat, or pig, or chicken without leave was punishable with death. No doubt conducive to health but not to liberty was the order that no man or woman should wash linen or pots and pans "within twenty foot of the old well ... upon pain of whipping."[11]

De la Warr was a humane man, who thought that order could be maintained without cruelty. Gates, also, seems not to have enforced the severe laws. But the situation changed when Dale, and after him Argall assumed power. These two men were guilty of reigns of terror that would have shamed an Ivan the Terrible or a Hitler. The Virginia Assembly of 1624 testified that the colony suffered "under most severe and cruel laws sent over in print," contrary to the King's promise. And these laws were "mercilessly executed, often times without trial or judgment." Some who sought relief by fleeing to the Indians were captured and executed, either by hanging, or shooting, or even by being broken on the wheel. One man who had stolen some oatmeal had a knife thrust through his tongue, and then was tied to a tree where he was left to starve. In 1612 several men tried to steal a barge and a shallop in order to risk their lives in a desperate attempt to reach England. For this they were "shot to death, hanged and broken upon the wheel."[12]

But better things were in store. Many of the leading spirits of the London Company, who "stood best affected to religion and liberty" were "distasted with the proceedings of the Court." This group began now to dream of migrating to Virginia to set up a government there which would be sympathetic with their views. "Many worthy patriots, lords, knights, gentlemen, merchants, and others ... laid hold on ... Virginia as a providence cast before them."[13] Had not the Pilgrim fathers shown the way to New England a few years later, it might have been in Virginia rather than in Massachusetts that the Bible commonwealth was established.

Prominent among the liberal faction in the Company was Sir Edwin Sandys. In his youth he had studied at Corpus Christi, Oxford, under Richard Hooker, the future founder of Connecticut, and this ardent Puritan influenced profoundly his views and career. It was from Hooker that he got the theory that the King derived his authority from a contract with the people, and not by divine right. Later, when as a member of the Commons he enunciated this theory, he drew down on his head James' bitter hatred. Sandys, who had long been a member of the Council of the London Company, was elected to the important post of Treasurer in 1617. To prevent his re-election three years later, the King sent the names of four other men to the Company with the demand that they elect one of them. When the Company sent a delegation to him to protest against this interference with their affairs, James blurted out: "Choose the devil if you will, but not Sir Edwin Sandys."

Sandys seems to have planned to secure successive charters, each granting the Company greater powers than its predecessor, under the pretext that this was necessary for the success of the enterprise. The second charter, granted in 1609, is of especial importance because by it the King resigned the immediate control of the colony into the hands of the Company. The charter of 1612 still further strengthened their hands.

But the Sandys faction met strenuous opposition in the Company itself. Many of the stockholders thought it a mistake to involve the Company in the political and religious struggle which was convulsing the nation. At times the Quarter Courts resounded with the angry debates of the contending parties. A momentous struggle it was, since upon the outcome depended the establishing of self-government in America. So there was rejoicing among the liberal party when Sandys was victorious.

It is probable that Sandys drew up with his own hand what has been called the Magna Carta of Virginia in the fall of 1617, granting the colony the right to representative government. Lord De la Warr, who was still the Governor, had expected to leave at that time with this famous document. But his sailing was delayed until April, 1618. Unfortunately De la Warr, who probably had never fully recovered his health, became ill during the voyage and died.

When news of De la Warr's death reached the London Company, they chose Captain George Yeardley to be his successor. In January, 1619, Yeardley sailed from England with several documents, probably duplicates of the Magna Carta, authorizing him to hold an election for a General Assembly.[14] His instructions have been preserved, but his commission, or constitution for the colony, has been lost. Yet undoubtedly it was similar to, if not identical with the Magna Carta of 1617, and with the "Ordinance and Constitution" of July 24, 1621, given Sir Francis Wyatt.

This constitution called for a Council to be chosen from time to time by the Company to assist the Governor in maintaining the "people in justice and Christian conversation amongst themselves, and in strength and ability to withstand their enemies." Another body "to be called by the Governor once yearly and no oftener but for very extraordinary and important occasions, shall consist for the present of the said Council of State, and two Burgesses out of every town, hundred, or other particular plantation, to be respectively chosen by the inhabitants." This body, which was called the General Assembly, was to "have free power to treat, consult, and conclude, as well of all emergent occasions concerning the public weal of the said colony ... as also to make, ordain, and enact such general laws and orders ... as shall from time to time appear necessary." To the Governor was reserved a negative voice.

The Governor and Assembly were directed "to imitate and follow the form of government, laws, customs, and manner of trial, and other ministration of justice used in the realm of England." And a limit was put to the authority of the Assembly by a provision that no law should "continue in force" unless ratified by the Company. But a degree of independence was granted in the instruction that "after the government of the said colony shall once have been framed ... no orders of court afterwards shall bind the said colony, unless they be ratified in like manner in the General Assemblies."[15]

There must have been rejoicing in Virginia when Yeardley arrived with orders "for the better establishing a commonwealth." Perhaps there were cheers, perhaps tears of joy in the crowd which assembled in Jamestown to listen to his proclamation. It promised that those cruel laws by which they had so long been governed were now abrogated, and that they were to be governed by those free laws which his Majesty's subjects in England lived under.[16]

On August 9, 1619, the first representative assembly in American history met in the crude little church at Jamestown. When Governor Yeardley had taken his seat in the choir, the members of the Council sat beside him, some on one side, some on the other. "But forasmuch as men's affairs do little prosper when God's service is neglected, all the Burgesses took their places in the choir till a prayer was said by Mr. Buck, the minister." Then the Burgesses were called in order by name, and so every man took the oath of supremacy.[17]

The Assembly assumed from the first that it was to be the Parliament of Virginia. But they realized that they must make no laws which contravened those of England, or the charter, or the instructions of the London Company. During the first session, acts were passed concerning the Church, Indian affairs, land patents, morality, prices, trade, etc. But by far the most important law was one ordering "that every man and man servant above sixteen years of age shall pay into the hands and custody of the Burgesses ... one pound of the best tobacco."[18]

The control of taxation by the representatives of the people was to play a vital role in the development of self-government in America. It was based on the fact, universally recognized by Englishmen, that no power had the right to take a man's property without his own consent. A century after the first session of the Virginia Assembly the New York Assembly reminded Governor Robert Hunter that their inherent right "to dispose of the money of the freemen" did "not proceed from any commission, letters patent, or other grant from the Crown, but from the free choice and election of the people, who ought not to be divested of their property (nor justly can) without their consent." Similarly the Virginia House of Burgesses declared: "The rights of the subjects are so secured by law that they cannot be deprived of the least part of their property but by their own consent."

The Virginia Assembly of 1619, when they assumed the right to tax the people, probably did not realize that they were laying the cornerstone of the structure of American liberty. Yet it was the control of taxation by the representatives of the people in all the colonies which made it possible to win victory after victory over the royal Governors. It is an old saying that one dare not quarrel with one's paymaster. Yet that was just what most of the Governors had to do. They needed money, money to cover their own salaries, money with which to pay other government officials, money to raise and equip men to fight the Indians, or the Dutch, or the French. The price they had to pay was a part of the royal prerogative.

It is to be noted that the money raised by the levy of 1619 in Virginia was to be paid, not to the Governor or to a Treasurer appointed by the Governor, but to the Burgesses. The question of who was to receive the revenues and who to decide upon their use was second in importance only to who had the right to levy taxes. It was to give rise to many disputes between Governors and Burgesses.

The people of Virginia in their happiness in the setting up of representative government seem to have overlooked the King's hostility. But they could not have expected him to assent meekly to the duplication in the infant colony of the Parliament, the body which was causing him so much trouble and vexation. They might have been warned of what was coming when James threw Sir Edwin Sandys in the Tower.

This was followed by a frontal assault on the London Company. John Ferrar wrote: "The King, notwithstanding his royal word and honor pledged to the contrary ... was now determined with all his force to ... give the death blow...."[19] He began by ordering a certain Nathaniel Butler to write a pamphlet describing conditions in Virginia. In his Unmasking of Virginia, as he called it, Butler drew a vivid picture of the suffering of the people from disease, hunger, and the Indians. In reply the Company published A True Answer, explaining the misfortunes which had plagued the colony, and denying responsibility for them.[20]

The King now appointed a commission to inquire into "all abuses and grievances" in Virginia. In July, 1623, this body reported that most of the people sent to the colony were now dead, and that the blame must rest on the Company. "If his Majesty's first grant of April 10, 1606, ... had been pursued, much better effects had been produced than had been by the alteration thereof into so popular a course."[21] The King was elated. He was determined, he said, to "resume the government, and ... reduce that popular form so as to make it agree with the monarchical form."

Should the Company agree, he was willing for them to retain their charter. But he told them that he was resolved "by a new charter to appoint a Governor and twelve assistants, resident here in England, unto whom shall be committed the government." These assistants were to appoint a Governor and twelve assistants to reside in Virginia, "whereby all matters of importance may be directed by his Majesty."[22] In essence this was the original plan of 1606. There was "hot debate" in the Company when they met to consider this proposal. Every man present knew that the fate of the Company hung in the balance. Yet when the King's offer was put to the vote, it was rejected by an overwhelming majority.[23]

The Company now appealed to the House of Commons. But before the Commons could act a message came from the King warning them not to meddle in the affair. "Ourselves will make it our work to settle the quiet and welfare of the plantations," he said. So, with some "soft mutterings," they submitted.

The people of Virginia waited impatiently for the outcome of the struggle which concerned them so deeply. When in March, 1624, the Southampton arrived with word that James was determined to change the government, they were in despair. Was liberty to be overthrown? Were they to be subjected again to the brutality of a Dale or an Argall? They wrote the Privy Council praying that future Governors should not have absolute authority. "But above all we humbly entreat your Lordships that we may retain the liberty of our General Assembly, than which nothing can more conduce to our satisfaction or the public utility."[24]

If this letter ever reached the Privy Council, it did not stay the King's hand. Attorney General Coventry had already issued a quo warranto against the Company. Sandys and others fought the case before the King's Bench, but the outcome was foregone. On June 26, 1624, the charter was overthrown and Virginia became a royal colony.

Certain historians have contended that, in destroying the Company, James was actuated chiefly by economic motives. They point out that the Company was divided into factions, that the situation in Virginia was desperate, and that the Company was practically bankrupt. Nothing was left to show for the £100,000 which had been expended, and unless this charge was wiped off the books by dissolving the Company, it would remain for decades as a burden on the colony. No doubt this may have influenced James in his decision. But he himself said that it had not been his intention to revoke the charters until the Company drove him to it by refusing to resign the government into his hands. He had resolved, he said, "by altering the charters ... as to point of government ... to settle such a course as might cause the said plantation to flourish, ... But because the said Treasurer and Company did not submit their charters to be reformed, our proceedings therein were stayed for a time until ... the said charters ... were ... avoided."

The future of the colony was now left in doubt. James declared his intention of issuing a new charter. But since this would require "much time and care," he appointed a commission headed by Lord Henry Mandeville, to manage the colony in the meanwhile. This body's first step was to reappoint Governor Francis Wyatt and his Council, and to authorize them to exercise all the powers granted to Yeardley and his Council. But they made no mention of an Assembly.

James, in issuing the new charter, no doubt intended to make it conform to the charter of 1606. Had he done so, he might have delayed the development of self-government in Virginia by decades. But before he could complete the draft, death overtook him. This dissolved the Mandeville commission, and postponed indefinitely a final settlement of Virginia affairs.

Charles I was in sympathy with his father's plans for the colony, but he seems not to have been deeply concerned about carrying them out. His first step was to place the matter before the Privy Council. The Council called on Sir Edwin Sandys for his opinion. Sir Edwin replied in a long document entitled "The Discourse of the Old Company of Virginia," advising the King to restore the Company. This Charles had no intention of doing. On May 23, 1625, he issued a proclamation declaring "that his intention was that the government of Virginia should immediately depend" upon himself. It might be proper to commit matters of trade and commerce to a corporation, but not state affairs. He next outlined a plan of government for the colony which was essentially the same as that under the charter of 1606.

In the meanwhile, the people of Virginia awaited anxiously. Would the King abolish the Assembly? Would another Dale or Argall be sent over for a new reign of terror? They had opposed the dissolution of the Company because they feared it might lead to the abolishing of representative government. Now that the Company no longer existed they pleaded earnestly to be permitted to keep the Assembly. In June, 1625, the Governor and Council wrote the Privy Council asking that the "liberty, of General Assembleys" be continued in order "to avoid the oppressions of Governors." This letter they entrusted to Sir George Yeardley, who sailed with it for England and laid it before the Privy Council.[25]

This body hastened to assure the Virginians that the King "doth take all the country and people into his royal protection and government," and that they were to enjoy all their former privileges. Still they made no promise that the people should have a voice in the government. And the King, because of "many other urgent occasions," still delayed making a permanent settlement of Virginia affairs. At last, in March, 1626, he appointed Yeardley to succeed Wyatt, with orders to "continue the same means that was formerly thought fit for the maintenance of the said colony."

Wyatt and Yeardley were men of a different stamp from Dale and Argall. Had they chosen to do so, they could have ruled the colony with no restraint save from the Council. But they preferred to keep alive the spark of representative government. So they called together unofficial gatherings of leading citizens to sit with the Governor and the Council instead of the House of Burgesses. This body they called the "Governor, Council, and the colony of Virginia assembled together."[26]

The Assembly of 1624 was automatically dissolved by the death of James I. So there must have been a new election, since the unofficial House of Burgesses, had they been appointed by the Governor and Council, would not have presumed to tax the people for the funds necessary for carrying on the government. As there was no legal authority for the gatherings their acts were translated into proclamations.[27]

Legal authority came in an unexpected way. With the demonstration by John Rolfe, the man who married Pocahontas, that tobacco could be raised in Virginia, the Indian weed had become more and more the staple of the colony. Had it been assured of a monopoly of the English market by the exclusion of foreign tobacco and the prohibition of tobacco planting in England, and not hampered by high custom duties, it would have brought prosperity and rapid growth.[28] But both James and Charles were constantly in need of money, and the revenue from the duty on Spanish tobacco had been important to them. So in excluding all foreign leaf they sought to make good their losses from Virginia tobacco.

In 1627 Charles decided to buy the entire colonial crop in the hope of selling it at a profit. But this he did not venture to do without securing the consent of the planters. That would have violated the principle that a man's property must not be taken without his consent, either directly or through his representative. So he directed the Governor to hold a general election of Burgesses, summon an Assembly, and place his proposition before them. Thus he gave official recognition to the House of Burgesses, and it was upon this recognition that its authority rested.[29] The Virginians rejected the King's proposal, but they kept their Assembly. From this date it became habitual for the Kings to insert in the instructions to a new Governor that he hold an election of Burgesses.

The setting up of representative government in the first English colony in America has a double significance. It may be viewed as a part of the struggle for supremacy between King and Parliament. Sir Edwin Sandys, the champion of liberty in Virginia, was also a champion of liberty in the mother country. Had absolutism won in England, its victory in the colony would have been certain. And had the King succeeded in ruling the colony unrestrained by any representative body there, it would have strengthened his hand in England, would have been a defeat for the liberal group in Parliament.

When the first Assembly met in Jamestown, the year before the Pilgrims landed on Cape Cod, they established a precedent which was followed in future English settlements. Had absolutism been firmly rooted in Virginia, the Stuart Kings might have tried to set it up in all the colonies. The Massachusetts Bay charter might have been voided, the charters of Connecticut and Rhode Island might have had no provision for representative government.

On the other hand, as it was the need for money which forced the hand of Charles I and gave legality to the House of Burgesses, so the needs of all the colonial governments made necessary the calling of legislatures which had the right to levy taxes. It is this which forced the Duke of York to call an Assembly in New York in 1684. When the American patriots of 1775 took up arms because Parliament insisted on taxing them, they were not defending some new principle. The principle that one's property could be taken only with one's consent antedated the founding of Jamestown. And upon it American liberty was based from the first.

FOOTNOTES:

[1] Bath papers II, p. 44.

[2] R. W. K. Hinton, Government and liberty under James I, Cambridge Historical Journal 11 (I).

[3] Gooch to the Lords of Trade, March 30, 1732.

[4] A. Brown, Genesis of the United States 1: 55, 56.

[5] Edward Arber, Works of Captain John Smith, 91.

[6] Ibid., lii.

[7] Ibid., lxxxiv.

[8] A. Brown, The first republic, 84.

[9] Ibid., 130.

[10] A. Brown, Genesis of the United States 1: 479.

[11] Peter Force, Tracts 3(2).

[12] A. Brown, The first republic, 148, 172.

[13] Ibid., 85.

[14] A. Brown, The first republic, 293.

[15] Bath papers I.

[16] A. Brown, The first republic, 312.

[17] L. G. Tyler, Narratives of early Virginia, 257.

[18] Journals of the House of Burgesses, 1619-1659, 16.

[19] A. Brown, The first republic, 531, 532.

[20] Ibid., 524.

[21] Ibid., 541.

[22] Ibid., 542.

[23] Ibid., 554.

[24] William Stith, History of Virginia, 313, 315.

[25] A. Brown, The first republic, 573.

[26] CO1-3, p. 5. This and similar notations all refer to documents in the British Public Record Office.

[27] W. W. Hening, Statutes at large 1: 129, 130.

[28] CO1-4.

[29] CO1-20.

CHAPTER II
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 £1985.14.10 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 7½ 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 £7,698.9.10.[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.

CHAPTER III
WE PREFER ANOTHER GOVERNOR

The people of Jamestown in the years from 1626 to 1640, when they saw a vessel coming up the river, must have crowded around the landing place to ask sailors and passengers for the latest news from England. Was King Charles still raising funds with which to run the government by means of forced loans? Was he still billeting his soldiers on the people? Was martial law in force? They must have been thrilled to hear of the Petition of Rights in which the House of Commons protested against Charles' arbitrary rule.

When the Burgesses came to town for a session of the Assembly, the struggle between King and Parliament must have been the chief topic of conversation around the table in each crude little tavern. Now it was the jailing of nine members of the House of Commons; now the granting of monopolies; now the collecting of ship money; now the suppression of free speech; now the proceedings of the Star Chamber; now the efforts of Archbishop Laud to enforce religious conformity.

The Virginians were fully aware that these events affected them profoundly. They had just won a degree of self-government. If the King succeeded in his efforts to make himself absolute in England, all their gains might be lost. Might he not overthrow their Assembly? If he could imprison men arbitrarily in England, he would not hesitate to do so in Virginia. If he could tax the people of England under the thin veil of loans, or the revival of ancient laws, would he hesitate to tax the colonists without their own consent? Might he not place over them another Dale or Argall to hang men or break them on the wheel?

So when Sir George Yeardley, their liberal Governor, died in November, 1627, they were filled with grief. They remembered that it was he who had brought over the Virginia Magna Carta, and had called the first Assembly. We have lost "a main pillar of this our building and thereby a support to the whole body," wrote the Council.[1]

Their concern must have been all the greater because Yeardley's commission of March 14, 1626, named John Harvey as his successor. The Virginians knew this man well. He had been one of the King's commissioners who came to the colony in 1624 to draw up a report on conditions there to be used in overthrowing the charter of the Company. Just why it was thought that he was the right man to act as Governor is not apparent, for he was a mariner by vocation and had served as captain of a ship which went to the East Indies in 1617. In November, 1625, we find him in command of a ship in the expedition against Cadiz. He may have owed his appointment as Governor to Viscount Dorchester, the Secretary of State, whom he thanked for his "wonted nobleness" to him.

But Virginia was to have a breathing space before Harvey's arrival. Yeardley's commission had specified that in the absence of Harvey the Council should elect one of their number to act in his place. They chose Captain Francis West, brother of Lord De la Warr.[2] West was a seasoned Virginian, for he had come to the colony in 1608 with Captain Newport. He had been commander of Jamestown many years, and a member of the Council since 1619. It was during his brief administration that the first legal Assembly since the dissolution of the London Company was called together, the Assembly which rejected the King's proposal for a tobacco contract.

In March, 1629, West was appointed agent for the colony and sent to England. To serve as Governor until his return or the arrival of Harvey, the Council chose Dr. John Pott. This man had been in Virginia since 1621, when he came over as "Physician to the Company" and member of the Council. He was described as "a Master of Arts ... well practiced in chirurgery and physic, and expert in distilling of waters, besides many other ingenious devices."[3] He seems to have consumed a goodly quantity of "distilled waters" himself, for he was fond of his cups and jovial company. George Sandys wrote of him that "he kept company too much with his inferiors, who hung upon him while his good liquor lasted."[4]

The most notable of Pott's "ingenious devices" was the poisoning of a large number of Indians after the massacre of 1622. In justification of this act, his friends explained that the barbarous and perfidious savages knew nothing about the rules of war, so it was fair play to resort to anything that tended to their ruin. But this did not save Pott from criticism in England. The Earl of Warwick was so shocked that at his request Pott was left out of the Council because "he was the poisoner of the savages there." But he seems to have been forgiven, for in 1626 we find him once more in his seat.

It was during Pott's administration that Lord Baltimore visited Virginia. In 1623 he had received a grant of land in Newfoundland, and had planted a colony of English Catholics there. But when four years later he visited the place, he found "the air so intolerable cold as it is hardly to be endured." He wrote King Charles that he had decided to move with some forty persons to Virginia, and petitioned for "a precinct of land there."

On October 1, 1629, he, with his wife and children, arrived at Jamestown. Here he met with a cool reception. A certain Thomas Tindall got into an altercation with him, called him a liar, and threatened to knock him down. The Virginians did not want in their midst a group of Catholics who were trying to lop off one of the most fertile parts of their territory. So to get rid of them the Governor and Council tendered my Lord the oath of supremacy, knowing that as a Catholic he could not take it, for to do so was to acknowledge the King as the supreme authority in ecclesiastical matters. When he refused they asked him to leave. This he did, but since he left his family in Virginia, it was obvious that he intended to return. So William Claiborne was sent after him as agent for the colony to oppose his designs.

To add to the troubles of the people, in the early spring of 1630 Harvey arrived and took his seat as Governor. He had lingered in England to make sure that the office would yield a good return. Only after the King had promised him the fines imposed by any of the courts did he set sail. His voyage was far from being pleasant, for his ship was leaky, he was delayed at the Cape Verde Islands by a Dutch fleet, and he was laid low by "a great sickness" that attacked him at sea.[5]

After landing it was several weeks before he was able to take over his duties. But after he had done so, his intentions at once became apparent. The man was by nature a despot. The despotism of Sir Edmund Andros in New England and of Lord Howard of Effingham in Virginia in the years just preceding the Glorious Revolution stemmed, not so much from the character of these men, as from the deliberate policy of Charles II. There is no evidence that Charles I ordered Harvey to make himself absolute. He had too many troubles at home to give much thought to Virginia.

It may have been Harvey's training as a sea captain which made him impatient of restraint. In Virginia he acted as though he were still on the deck of his ship thundering out commands which no one must question. If the King were in Virginia, would not his orders be obeyed? Then why not the orders of his Governor? He never tired of reminding the members of the Council and others that he was the King's substitute. When to his passion for power are added his rudeness and violence, his avarice and disregard for the rights of others, we have the picture of one utterly unsuited to be the chief executive of a liberty loving people.

Harvey was accused of diverting public funds to his own pocket, but of this we have no direct proof. It is probable that he tried to levy taxes without the consent of the Assembly. Otherwise one wonders why the Assembly should have thought it necessary to order "that the Governor and Council shall not lay any taxes or impositions upon the colony ... otherwise than by the authority of the Grand Assembly."[6]

But it was chiefly through the courts that he carried out his designs. He himself presided over the quarter court, and it was he who appointed the commissioners or justices who sat on the local courts. Thus it was not difficult for him to secure any verdict he wished. So he had at hand an instrument to satisfy his lust for power by crushing those who resisted him, and his lust for money by imposing heavy fines. It should have been obvious to Charles I when he agreed to give Harvey all fines and amercements, that it was a dangerous thing to permit a judge, or one who appointed judges, to profit from his or their decisions.

The most notorious abuse of the judicial power by Harvey was his prosecution of Dr. Pott. Charging the pleasure-loving physician with pardoning murder and marking other men's cattle for his own, he suspended him from the Council, and confined him to his plantation pending the day of his trial. When Pott defied the Governor's order and came to Elizabeth City, Harvey put him in prison and set a guard around it. In July, 1630, he was put on trial.

We have only one detail of the proceedings, but that like a flash is revealing of Pott's character and of the farcical character of the prosecution. When a certain Richard Kingswell testified against him, Pott declared that he was as great a liar and hypocrite as Gusman of Alfrach. He was referring to the book by Mateo Alemán, of Seville, in which Gusman is shown first as a scullion, then as an errand boy, then as a thief, then as a pretended gentleman who cheated his creditors.[7] But this thrust did not save him. He was convicted, and his entire estate confiscated.[8]

It would seem that in this case Harvey was actuated more by a desire to show his power than by avarice. If he could humble so prominent a man as Pott, one who had been acting Governor, others would stand in awe of him. "It will be a means to bring people to ... hold a better respect to the Governor than hitherto they have done," he wrote.[9] But having shown his power to ruin, he now sought to show that he could also restore. So he wrote the King suggesting clemency. "For as much as he is the only physician in the colony, and skilled in the epidemical diseases of the planters ... I am bound to entreat" your Majesty to pardon him.[10]

A more sincere plea came from the doctor's wife, Elizabeth. Getting up from a sick bed, she made the long and dangerous voyage to England to complain to the King "touching the wrong" done her husband. Charles referred the case to the Virginia Commissioners, who listened sympathetically as she poured out the story of injustice and persecution.[11] They concluded that there had been "some hard usage against" Pott, and recommended that the King pardon him. Accordingly, Charles forgave his "offences" and restored his property.[12] But the jovial doctor never regained his seat in the Council.

The prosecution of Pott set the example for others. "The Governor usurped the whole power in all causes without any respect to the votes of the Council," reported Samuel Mathews, "whereby justice was done but so far as suited his will to the great loss of many men's estates and a general fear in all." If other members of the court opposed him, he would revile them and tell them they were there merely to advise him. He could accept or reject their opinions as he liked, since "the power lay in himself to dispose of all matters as his Majesty's substitute."[13]

With the General Court dominated by the overbearing and avaricious Governor no man was safe. At any moment one might be hauled before the bar, charged with some petty offence, found guilty, and given a ruinous fine. Mathews said that there were an "infinite number of particular men's grievances."[14] William Claiborne thought it strange that Harvey "should so demean himself," for "all men were wronged, and even good and bad had forsaken him."[15] It was in every man's mouth that "no justice was done." When a report of these things reached England, Sir John Wolstenholm, one of the Virginia Commissioners, said that "Sir John Harvey stunk in Court and city."[16]

Harvey's attempts to make himself absolute, his disregard of other men's rights, his perversion of justice did not go unchallenged. Soon the meetings of the Council became stormy. The Governor insisted that he, as the King's substitute, had a right to determine all things. The Councillors were merely his assistants, whose duty it was to advise him, but not to oppose him. But the Councillors dissented vigorously. Look at your commission, they told him, and you will see that it directs that all matters must be determined by the majority of voices. Does it not say that the King grants to the Governor and Council "and the greater number of you respectively full power and authority to execute" the duties of the executive body?

Soon Harvey was filling his letters with complaints of the opposition of the Council. "For instead of giving me assistance, they stand contesting and disputing my authority, averring that I can do nothing but what they shall advise me, and that my power extendeth no further than a bare casting voice."[17] He had shown them a letter from the King strengthening his commission, but they refused to budge from their position. He would be grateful if his Majesty would be so explicit "that the place of Governor and the duty of Councillors may be known and distinguished."[18]

The Privy Council answered by warning both sides to put an end to their disputes and cooperate with each other in advancing the good of the colony. So they drew up and signed a formal reconciliation. They promised "to swallow up and bury" all complaints, and to turn their "alienated and distempered" minds to thoughts of love and peace. The Councillors vowed to give the Governor "all the service, honor, and due respect which belongs to him as his Majesty's substitute."[19]

The reconciliation proved a sham. Harvey continued to be overbearing and arbitrary; the Councillors were as bitter as ever. When one of them, Thomas Hinton, in an outburst of anger gave Harvey some "ill words," he ousted him from his seat. Love and peace were far indeed from the Governor's mind when he responded to some "ill language" from Captain Richard Stevens by landing a blow in his face with a cudgel and knocking out some of his teeth.[20]

In 1634 a certain Captain Thomas Young arrived in Virginia with a commission from the King authorizing him to discover and search the unexplored parts of the colony. Needing two shallops, and hearing that one of the planters had an indentured worker who was a skilled shipwright, he seized him and put him to work. In this violation of property rights he was supported by the Governor. But it aroused the anger of the Council, and several of them came to Harvey to demand an explanation.

Harvey may have had in mind the Forced Loans as a precedent for taking the property of the subject, when he replied that his Majesty had given Young "authority to make use of any persons he found there." Young needed the shipwright "to prosecute with speed the King's service," he said. Speaking for the others, Samuel Mathews retorted angrily that if things were done in that fashion it would breed ill blood in Virginia. Turning his back he whirled a truncheon he carried in his hand, and lashed off the heads of some high weeds.[21] The Governor, ignoring this, said: "Come, gentlemen, let us go to supper, and for the night leave this discourse." But they were in no humor to be appeased. With one accord they turned their backs and left "in a very irreverent manner."

The Virginians were further embittered against Harvey for the aid he gave to Lord Baltimore's settlers. It was on February 27, 1634, that the Ark and the Dove, with Leonard and George Calvert, twenty "gentlemen adventurers," and three-hundred laborers, arrived at Point Comfort. They bore a letter to the Governor from the King requiring him to treat them with courtesy and respect, permit them to buy cattle and other commodities, and do all he could to advance their settlement.

Harvey did his best to comply. He sent them some of his own cows and promised to procure more. But this was not easy. The planters were so outraged at having a part of their territory torn away for a colony of Catholics that they swore they would knock their cattle on the head rather than sell them to the Marylanders. Some of the members of the Council had been informed by letters from England of Lord Baltimore's plans. When Samuel Mathews opened one of them, he threw his hat on the ground in a fury, stamped, and cried: "A pox upon Maryland!"[22] He, with William Claiborne and other members of the Council, held many secret meetings to decide upon a course of action. But they were powerless to prevent the Ark and the Dove from moving up the Chesapeake Bay with the newcomers, and the founding of a little town near the mouth of the Potomac.

Three years before their arrival Claiborne had made a settlement on Kent Island in the Chesapeake near the site of Annapolis. So now he found himself torn from Virginia and handed over to another government. The result was open warfare. It was prophetic of the battle between the Merrimac and the Monitor in Chesapeake waters more than two centuries later, when two pinnaces full of armed men captured an armed vessel sent out by the Kent Islanders.

When this news reached Jamestown there was great indignation. Harvey tried to justify the Marylanders, but this merely intensified the people's hatred of him. So he not only aids in the dismemberment of Virginia, it was said, but upholds the intruders in murdering our people. Is it right that one who is Governor of the colony should side with her enemies?

The crisis came in 1635. King Charles, ever pressed for money, tried once more to secure a tobacco contract. So he wrote Harvey directing him to call an Assembly and to ask for "the sole pre-emption of all tobacco," at a lower price and a reduced quantity. The members of the Council, especially Samuel Mathews, John Utie, and William Pierce, opposed the contract "very saucily."[23] As for the Burgesses, they hated all contracts. So they drew up an answer which was in effect a refusal. In order to give the paper the character of a petition they all signed it. This they gave to Harvey to send to the King.

But instead of forwarding it, the Governor detained it. In excuse of this arbitrary action he said he feared the King "would not take well the matter thereof, and that they should make it a popular business by subscribing a multitude of hands thereto, as thinking thereby to give it countenance."[24] The people were outraged. So our Governor takes it on himself to decide what or what not we shall say to our King. Is it not the right of all Englishmen to address their sovereign? "The wrong done by the Governor to the whole colony in detaining the foresaid letters to his Majesty did exceedingly perplex them, whereby they were made sensible of the condition of the present government," wrote Samuel Mathews.[25]

Things had now come to a head. A petition demanding a redress of grievances was drawn up, which Francis Pott, brother of Dr. John Pott, took about the country. Everywhere he found the people tired of Harvey's arbitrary conduct, tired of his injustice to individual persons. So they pressed forward eagerly to sign the petition. Harvey says that only in Accomac did they refuse.[26]

It was in April, 1635, that Pott, Captain Nicholas Martian, and William English, the sheriff of York County, addressed a gathering at the house of William Warren. This meeting has a special significance in the long struggle for American liberty, for Warren's house was on or near the site of the Moore House, at Yorktown, where the British army under Lord Cornwallis surrendered a century and a half later. The speakers were denouncing Harvey's despotic government when some friends of the Governor tried to enter. A servant kept them out, but they hung around outside and "bended themselves to hearken to the discourse among them."[27] When the speeches were concluded those present gathered around the petition and affixed their signatures.

When this was reported to Harvey, he flew into a rage. Calling the Council, he issued warrants for the arrest of Francis Pott, English, and Martian. They were brought up in irons. Pott handed over the petition and declared that if he had offended he appealed to the King. "He was sure of no justice from Sir John Harvey." When the prisoners asked why they were arrested, the Governor told them that they would be told at the gallows. So they were hustled off to prison.[28]

Harvey then called the Council together again and told them that it was necessary to try the prisoners by martial law. But the Councillors insisted on a legal trial. In the dispute which followed Harvey became violently angry. Finally, he sat down and ordered the others to sit. Looking around with a frown, he said: "I am to propound a question to you.... What do you think they deserve that have gone about to persuade the people from their obedience to his Majesty's substitute?"

Turning to George Menefie, he said, "I begin with you." Menefie answered that since he was but a young lawyer he did not dare give an opinion "upon the sudden." Here Nicholas Farrar interposed to protest against this method of proceeding. But Harvey cut him short with the command to hold his tongue until he was spoken to. Thereupon Samuel Mathews spoke up to enter his protest. But instantly, in the King's name, he was told to be silent. Mathews insisted there was no precedent for this attempt to make men incriminate themselves unless it was that by a tyrant. Here he was alluding to the passage in Shakespeare's King Richard III in which Richard asked Lord Hastings what should be done to the women who had bewitched him. Hastings replied that if they had done so they ought to die. "Talk'st thou to me of ifs," replied Richard, "thou art a traitor. Off with his head." Harvey evidently did not relish being compared to Richard, and so retorted with many "bitter languages."[29]

The Councillors were now determined to bring their dispute with the Governor to an issue. The next time he summoned them to meet, they brought with them fifty musketeers and concealed them near the house. Harvey asked them with a stern look what they thought was the reason for the petition against him. "The chief cause was the detaining of the letters to his Majesty," replied Mr. Menefie. This infuriated Harvey. Rising from his chair, he struck Menefie a resounding blow on the shoulder, saying: "I arrest you on suspicion of treason to his Majesty." But now he had gone too far. Utie and Mathews seized him, exclaiming: "And we you upon suspicion of treason to his Majesty."[30]

At this juncture Dr. Pott, who was standing near the door, held up his hand as a signal, and the musketeers came running up "with their pieces presented." "Stay here until there be use of you," Pott commanded. In the meanwhile, Mathews had forced Harvey down into a chair. "Sir, there is no harm intended against you only to acquaint you with the grievances of the inhabitants," he told him. So he poured out the recital of the wrongs done the colony and demanded that they be redressed. But the Governor, who was in no mood for making concessions, denied that any wrong had been done. After an ominous pause Mathews said: "Sir, the people's fury is up against you and to appease it is beyond our power, unless you please to go for England." Harvey replied that the King had sent him to Virginia to be Governor, and he would not leave until he ordered him to do so.

But he soon changed his mind. That night a courier came riding up with a letter to Harvey from Thomas Purifie, who seems to have been one of his few friends in the Council, giving an alarming report of the threatening attitude of the people. At first the Governor said he would defy them to do their worst. Would it not be better to remain, though he be cut in a thousand pieces, than to desert his charge? he asked Secretary Richard Kemp. Kemp replied that for him to remain might "hazard the King's service" by provoking the infuriated people to further acts of violence. So at last he yielded and promised to leave.[31]

The rebellious Councillors now took over the government. They released English, Martian, and Francis Pott, forced Harvey to deliver his commission and instructions to Secretary Kemp, set an armed guard around him ostensibly to protect him from violence, posted armed men in "all ways and passages," called a General Assembly, and sent out a proclamation inviting the people to lay their grievances before it, and appointed their senior member, John West, a brother of Lord De la Warr, acting Governor.[32]

In the meanwhile, Harvey had left Jamestown to seek refuge in the house of Mr. William Brocas, "whose wife was generally suspected to have more familiarity with him than befitted a modest woman." Here he thought himself secure enough to dismiss his guard. And from here he wrote a threatening letter to the members of the Assembly, commanding them in the King's name to disperse. He also wrote Secretary Kemp demanding the return of his commission and instructions. The Councillors seized the first letter, refused to read it to the Burgesses, and the Assembly went on with the consideration of the grievances, "which were innumerable." As for the commission and the instructions, they had taken them from Kemp and turned them over to Menefie for safe keeping.[33]

The Assembly now passed resolutions accusing Harvey of misgovernment and injustice, and explaining why the people had been driven to the extreme expedient of sending him back to England. As their agent to deliver these papers to the King they appointed one of the Burgesses, Thomas Harwood. With him went Francis Pott to plead his case before the King. Since it would be several months before the tobacco ships sailed for England, there seems to have been only one vessel leaving at the time. So Harvey, as well as Pott and Harwood, had to embark on it.

As events turned out this was unfortunate. Not that Harvey's frowns and threats frightened Pott and Harwood, but that it gave him a chance to frustrate their plans when they landed at Plymouth. Hardly had the ship touched dock when he hastened to see the mayor of the city to tell him of the "late mutiny and rebellion" in Virginia. So the mayor put Pott under arrest "as a principal author and agent thereof," and seized the trunk containing the papers entrusted to Harwood. Pott was dragged off to London and locked up in the old debtors' prison called the Fleet.[34]

In the meanwhile, Harwood had set off post haste to get to London ahead of Harvey so as to make friends and tell of his misgovernment. He got a ride with the postman who was carrying the mail. At Exeter he stopped at the Sign of the Valiant Soldier, and drank a pint of wine with the proprietor. This seems to have loosened his tongue, for he poured out the story of Harvey's misdeeds to this stranger, told him of his mission, and added that if Harvey ever returned to Virginia "he would be pistolled or shot."[35]

We do not know whether Harwood or Harvey won the race to London. But it was the Governor who succeeded in gaining the support of the King and the Privy Council. It is possible that his accusation that Harwood "was one of the chief of the mutineer Burgesses that opposed his Majesty's service in the tobacco contract and in stirring up the country to this mutiny," may have landed him in prison. At all events, when the Privy Council met, the Governor had things his own way.

The King was greatly surprised that the Virginians had dared defy him by ousting their duly appointed Governor. He was determined to send Harvey back if but for one day, he said. And should he clear himself of the charges against him, he would keep him there longer than he had intended. As a further vindication of his authority, he gave orders that West, Mathews, Utie, and Pierce, the leaders of the mutiny, be brought to England "to answer their misdemeanors." He also directed the Attorney General to draw up a new commission for Harvey with an enlargement of his powers.[36]

Though Harvey may have been a bit nervous over the threat of "pistoling," he was too anxious to regain his confiscated property and get revenge on his enemies to hesitate to return to Virginia. He made no secret of his intention to confiscate the property of those who had so humiliated him. As for Samuel Mathews, whose estate consisted largely of cattle, he vowed he would leave him not worth a cow's tail.[37] Yet he thought it prudent to ask for one of the King's ships, explaining that this would "much abate the boldness of the offenders." So on October 2, 1636, he set forth proudly in the Black George. But he did not get very far. The Black George proved so leaky that for a while it seemed that it might prove a Godsend to Virginia by taking Sir John to the bottom. But it turned back and succeeded in reaching port. The Governor set sail again, this time on a merchant vessel.

When he reached Virginia, in January, 1637, Harvey could not wait for the ship to wend its way up to Jamestown before asserting his authority, but landed at Point Comfort and established a temporary capital at Elizabeth City. Here he began immediately to turn sheriffs and justices out of office and replace them with men more to his liking.[38] Messengers were sent to summon the Council to meet in the Elizabeth City church. It must have been with an air of triumph that he greeted the Councillors, for now the day of retribution had come.