FOOTNOTES:

FOOTNOTES:[1]Bath papersII, p. 44.[2]R. W. K. Hinton, Government and liberty under James I,Cambridge Historical Journal11 (I).[3]Gooch to the Lords of Trade, March 30, 1732.[4]A. Brown,Genesis of the United States1: 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 States1: 479.[11]Peter Force,Tracts3(2).[12]A. Brown,The first republic, 148, 172.[13]Ibid., 85.[14]A. Brown,The first republic, 293.[15]Bath papersI.[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 large1: 129, 130.[28]CO1-4.[29]CO1-20.

[1]Bath papersII, p. 44.

[2]R. W. K. Hinton, Government and liberty under James I,Cambridge Historical Journal11 (I).

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

[4]A. Brown,Genesis of the United States1: 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 States1: 479.

[11]Peter Force,Tracts3(2).

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

[13]Ibid., 85.

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

[15]Bath papersI.

[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 large1: 129, 130.

[28]CO1-4.

[29]CO1-20.

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 catchesat 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'sgift 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]

"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 hisauthority 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 theirThe 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 inCouncil."[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 hewished. 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, thoughnot 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 tohave 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 thepoll, 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. "Thoseupon 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 werequick 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 attimes 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."

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