72

CHAPTER IV

BEGINNINGS OF ROYAL GOVERNMENT IN VIRGINIA

As has already been stated, the transition from a chartered colony to a royal province involved in every case the substitution of royal officials for those of the proprietor, or for those who had been elected by the freemen of the colony. In other words, a royal executive took the place of an executive which consisted of the king’s grantee and of the officials whom that grantee had either appointed or elected. The province thenceforth stood in immediate, instead of mediate, relation to the crown. The territory within its bounds, so far as it had not already been granted to private parties, became again a part of the royal domain. Private rights, as they existed in the colony, were so guarantied that they were not diminished as the result of the transition. But the affairs of the province came in part to be managed by officials and servants of the king in England, while the administrative officers who resided in the province were royal appointees.

We are now concerned with the very beginnings of English colonial administration, as applied to the province of Virginia. The forms and precedents by which it was in future to be guided were then in the initial stages of their development. And yet under the early Stuarts the official connection between Virginia and England was in some respects more intimate than at any later period, or than they were in the case of any other royal province. Communications were regularly sent back and forth, filled with details, not only about official doings, but about the tobacco industry and other phases of social life. Instructions to the early governors abounded in requirements which of course would apply only to Virginia. In details of this kind the home government took more direct interest than at later times.

73

As colonies multiplied and their diverse interests demanded consideration, control became generalized and details were left to be worked out more by merchants, planters, and local officials. Virginia then fell into its place among the rest. At the time of which we are speaking agents, as we shall see, were occasionally sent from Virginia to England. The acts of its assembly were sent to the privy council for its allowance.¹ A few instances appear of civil suits in Virginia being heard in England, and of colonial cases coming at this period before the court of the lord high admiral in England;² but suits of the latter class concerned other colonies even more than Virginia.³

Some of the earliest utterances of the crown upon the subject of government in Virginia indicated a purpose to revive the system of 1606, retaining the patentees and leaving rights of trade in their hands, but revoking all rights of government.⁴ But the leaders of the majority in the old company were unable to reconcile themselves to anything but its restoration, with all the powers which it possessed under the charters of 1609⁵ and 1612. This the colonists would at the time have preferred, for the recent administration of the province, on the whole, had been satisfactory to them. But the government, if it had ever intended to retain the patentees, soon abandoned such thought, and, in the famous proclamation of 1625, seemed to commit itself to the royal province as a form of organization.

In the case of Virginia the process of establishing royal government began before the judges had declared the charter of the company to be null and void. On July 5, 1624, under an act of council of the previous month, the king

74

appointed a large commission,¹ with Viscount Mandeville, Lord President of the Council at its head, to regulate the affairs of Virginia and give orders for its government. The commission consisted of ministers of state, the law officers of the crown, knights, clergymen, and merchants. It contained many who had been members of the company, but they were selected largely from the party of Smith and Johnson. Though its powers were large, it can hardly be considered as a predecessor of the later boards of trade and plantations, because its work was expressly confined to one colony. It rather involved a return to the arrangement of 1606. Authority was given the commission to take charge of the public property of the Virginia company and colony and to exercise the powers which had been conveyed to the company by royal charter. For these purposes it might consult both adventurers and planters. It was closely connected with the privy council, and was to act under instructions from that body and the king. The meetings of this commission were held weekly at the house of Sir Thomas Smith. There they made use of the records of the company, heard testimony concerning the condition and needs of Virginia, received applications from those who were going or sending thither, and considered what policy it was best to pursue. Wyatt was temporarily continued in his office as governor, and with him was associated a council consisting of Yeardley, Francis West, George Sandys, Ralph Hamor, Mathews, Peirsy, Claiborne, and others.²

The members of the old company were consulted concerning the best form of government for the province, and returned the reply to which reference has already been made. They took a pessimistic view of the situation and belittled the work of all except the Sandys-Southampton party. They insisted that the system which had just been brought to an end by the quo warranto was the only true one. They referred to one discouraging result which the establishment of

75

royal government was sure to have on Virginia. Large sums had been expended by the company in aiding emigration to the province, in promoting industry there, in furnishing supplies and relieving distress. If the English government intended to continue this policy and to meet out of public revenues the expense which it entailed, it was most proper, said the writers¹ of the memorial, that the province should be administered through a royal council. But if, when royal government was established, all aid was withdrawn; if assistance to emigration ceased, and the plantation was left to support itself, both planters and adventurers would be discouraged, and many would abandon the enterprise. Though the temporary discouragement did not result so disastrously as the memorialists predicted, the substitution of government by the crown for government by the company threw the colonists more on their own resources.

At first the colonists, as well as the former adventurers, feared that they might suffer both in bodies and estates from the establishment of royal government. In July, 1624,² the governor, council, and assembly sent by John Pountis, their agent, and vice admiral of Virginia, a petition to the king, entreating that credit might not be given to the malicious imputations which had been circulated against the late government, or the statements believed that the condition of Virginia under the administration of Sir Thomas Smith had been a happy one. In order to show that the opposite was true they presented an elaborate statement contrasting the oppressiveness of the government under Smith, and the sufferings of the colony at that time, with the liberality of the regime that followed and the progress which the colony had then made. Its prosperity, however, had been cut short by the massacre, which had “almost defaced the beauty of the whole colony,” and prevented the continuance of “those excellent works wherein they had made so fair a beginning.” Famine had followed for a year, but severe blows had been inflicted on the savages, and it was hoped that they would be driven

76

from the lower parts of the colony. The chief objects of the petition were to pray the king not to deliver the province over again to Sir Thomas Smith and his associates, and to grant to Virginia and the Somers islands the monopoly of the importation of tobacco, “not as an end to affect that contemptible weed, but as a present means to set up staple commodities.”

Five months later¹ the governor and council were able to report that in a two days’ battle a great victory had been won over the Pamunkeys and their confederates. Many of the Indians were slain and sufficient corn destroyed to keep four hundred men for a twelvemonth, and that with small loss to the English. The health of the colonists was good; a plentiful harvest of corn had been gathered. In view of these facts it was possible for them to state, though probably with exaggeration, that the colony had “worn out the scars of the massacre.”

That their confidence was somewhat premature is indicated by a petition from the same source, which is supposed to have been sent the following June.² Acting on the supposition that, because of the death of Mr. Pountis, the previous petition had not been delivered, the governor, council, and assembly again express a fear that they are to be delivered into the hands of Sir Thomas Smith. Their fears on this subject had been aroused by the information that the persons of whom they had so justly complained had been appointed members of the commission for regulating the affairs of the colony. The colonists had come through the winter with scanty supplies, and, because of what seemed to be the desperate state of the colony, some of the planters had resolved to return to England and petition for redress and protection. Lest the clamors of so many should be troublesome, Sir George Yeardley had been selected by the governor, council, and assembly to present their grievances, and a favorable hearing for him was solicited.

Yeardley, who was now returning as agent from Virginia, asked for a hearing before the privy council in October,

77

1625.¹ He referred to the distress which existed in the colony because of lack of supplies, and to the discouragement which had been caused by the uncertainty as to the government. A supply of munitions, apparel, tools, and other commodities was what they first needed, and these should be sent at once. With this petition appears the earliest demand on the part of American colonists that the king should send troops to their relief. The former petition concerning tobacco was repeated, and in addition general freedom of trade was insisted upon and also the necessity of exempting staple commodities for a time from the collection of duties on their importation into England. The state of political feeling among the colonists was indicated by the request not only that those against whom they had complained should have no share in the government, but that by a new patent, confirmed by parliament, the possession of their estates should be guarantied to the colonists; also that the continuance of free general assemblies should be assured, and that the people should have a voice in the election of their officers.

In April and May² of the following year, additional communications were sent to England by the Virginia magistrates, repeating their requests concerning the tobacco trade, and stating that, if the plans for defence which were under discussion were executed, four hundred men must be sent to the colony with engineers and full equipment and supplies. The plan included the building of a palisade for a distance of six miles, between Martin’s Hundred and Kiskiack, furnished at intervals with blockhouses. This, it was hoped, would secure from Indian attack a tract of 300,000 acres, where the principal settlements in the province lay, and thus insure its peaceful economic growth. For the construction of the palisade and guard houses £1200 in ready money would be needed, and their maintenance would cost £100 a year. Forts and fortified towns must also be built and garrisoned, while the offensive war should be continued against

78

the Indians. Discovery on a large scale toward the South Sea should also be undertaken, and emigration encouraged to fill up the country. A public magazine should be maintained, which adventurers would probably be found ready to furnish at twenty-five per cent profit, accepting tobacco in payment at 3s. per pound. “But the ground work of all,” wrote Wyatt and his associates, “is that their bee a sufficient publique stock to goe through with soe greate a work, which wee cannot compute to bee lesse then £20,000 a yeare, certaine for some yeares; for by itt must bee maintained the Governer and counsell and other officers here, the forrest wonne and stockt with cattle, fortifications raysed, a running armye mainetayned, discoveries made by Sea and land, and all other things requisitt in soe mainefould a business.” For a considerable part of this the governor and council looked to the home government.

Large plans of this nature might have appealed to Sandys, and under his leadership, if unopposed, there might have been some prospect of their realization. But to the government of Charles I, which was not only inherently weak but paralyzed by a conflict with parliament and consequent lack of supplies at home, it was useless to suggest such measures as this. At Whitehall they fell on deaf ears. Whether or not Sir George Yeardley secured a hearing before the council in the fall of 1625, what discussion went on, and what was its result, we are not informed. But that any concession was made which involved expenditure or special sacrifice on the part of the home government is not probable. Yeardley received an appointment as governor, and a royal command was issued that judgments, decrees, and important acts should be determined by the governor with the majority of the council, and all done in the name of the king. The proclamation of May 13, 1625, declared that the government of Virginia should be administered through two councils, one resident in England, and the other in the province, and that both should depend immediately on the king. This system continued as long as the commission of 1624 was in existence, and was renewed in June, 1631, by the appointment of a commission of which the lord chamberlain, the Earl of

79

Dorset, was the first member. Associated with him was a distinguished array of officials, merchants, and former members of the company, in rank much like those who made up the commission of 1624.¹ It recommended the reëstablishment of the company and the issue of a new charter. This should provide for a president and council who as the appointees of the king should administer from England the government of the colony. The resident governor and council in Virginia should likewise be royal appointees. All other rights and privileges pertaining to the enterprise, except those of government, should be again intrusted to the patentees. This was clearly a plan for a revival of the system of 1606. But it appears to have met with no favor. A memorial was presented in opposition to the reëstablishment of the company in any form; and it is difficult to see how the proposal of the commissioners could have satisfied the majority of the old patentees. Not only was it dropped, but the commission itself soon disappeared from view. This was the end of projects for the administration of Virginia alone, and the next experiment—that of the commissioners of 1634, which has already been described—was directed toward the control of the affairs of the colonies as a whole.

So far as its internal affairs were concerned, Virginia passed through the transition from proprietary to royal government without any violent or sweeping change. The policy of the company, together with the Indian massacre, had previously removed much that was peculiar in the land system of the province. With the development of counties the plantation as a form of grant disappeared. The ordinary system of patents to individuals, subject to a quit rent of 2s. per hundred acres, which had been established by the company, was continued.² These were made partly in recognition of personal adventures and partly as head

80

rights. In many of the early grants under the crown express reference was made to the plans and authority of the company as confirmed by royal patents issued to the governor and council. Grants continued to be made as parts of first dividends, to be increased when the grantee, his heirs or assigns, had properly settled the land. Tracts of land belonging to the company continued for a time to exist in Accomac, Elizabeth City, and possibly elsewhere, and these were subject to lease. The forms used in making grants and the officials concerned were much the same as those of the later period of the company. As county government developed, applications for land were made before the county justices, and the clerk made a certificate of the amount which the applicant claimed or to which he was entitled. This was sent to the office of the secretary of the province, whence a warrant was issued for the survey. On the basis of the return of the surveyor the patent was made out and issued in the name of the king and under the immediate authority of the governor and council. As a rule, grants were required to be settled within three years, or they lapsed. From the earliest times details relating to the granting, bounding, fencing, and settlement of land were specified by legislation,¹ but the authority to grant it was always vested in the governor and council. Grants of moderate size were the rule, the great majority of them being limited to a few scores or hundreds of acres, and only in a small minority of instances did they exceed one thousand.² Large plantations were, as a rule, acquired by accumulations and purchases of head rights, by inheritance and transfers of estates, the process of enlargement being steadily favored by the economic system of the province.

Prior to 1630 settlement in Virginia had been confined to

81

Accomac peninsula and the valley of the James.¹ By 1634 that region had been divided into counties, the original eight being James City, Henrico, Charles City, Elizabeth City, Warwick, Isle of Wight, Charles River (later York), and Accomac (later Northampton). These were the outgrowth of local settlements (some of them for a time called “corporations “)² which had their origin under the company. In 1630 the first settlements were made on the south side of York river, at Kiskiack and York. The quarrel between the Maryland government and Claiborne occasioned, a few years later, the removal of a part of the inhabitants of Kent island to the neck between the Potomac and the Rappahannock rivers, which in 1648 became Northumberland county. An Indian war in 1647 for a time checked migration into that region, but by 1651 enough settlers had come thither to justify the formation of Gloucester and Lancaster counties. Out of the western part of Northumberland county Westmoreland was formed in 1653. Three years later the upper part of Lancaster was set off as Rappahannock county. In 1654 the upper part of York became New Kent.³ Meantime, on the south side of the James, Upper and Lower Norfolk counties and Surry were organized, the name of Upper Norfolk being changed to Nansemond in 1646.⁴

Whether in every case authority for the organization of counties was given by act of the grand assembly, is not quite certain. But, at any rate, the assembly at an early date began the creation of these subdivisions by its own acts and continued this course regularly thereafter.⁵ As in other colonies, the fixing of the bounds of the county and the establishment of its court, with legislation concerning the jurisdiction of this body, were the important administrative acts connected with the founding of a county. Provision for these matters appears at large among the Virginia

82

statutes, even from the earliest dates. In the year of the dissolution of the company the grand assembly defined the jurisdiction of the monthly courts in Charles City and Elizabeth City counties.¹ Thus the extension of the county system kept pace with the expansion of settlement, and in it all the assembly bore a share which, as a rule, was scarcely equalled in the early history of the proprietary provinces. The counties in turn, with a few exceptions, became the units of representation in the assembly.

The establishment of parishes, organized after the English model and a mark of the exclusive supremacy of Anglicanism in Virginia, proceeded under the authority of acts of assembly in much the same manner as did that of counties. Sometimes their bounds coincided with those of a county, again they were separately organized, and still again they were formed by the subdivision of counties. As in the case of counties their bounds were specified by acts of assembly, while the administrative bodies in each were gradually developed under the authority of statute. Their growth was closely connected with the development of the ecclesiastical, the judicial, and the military institutions of the province, and with elections as well, for, though the unit of representation in the house of burgesses was regularly the county, occasionally a parish was allowed to send members; and as the larger towns were incorporated as boroughs they too became entitled to separate representation in the assembly.²

Conditions were no more favorable to the development of towns in Virginia than they were in Maryland, or in the provinces farther south. After 1655 efforts were repeatedly made to encourage their growth by legislation, and the argument derived from trade facilities was strongly urged in their favor. But overland traffic was too difficult and the private wharves of the tobacco planters on the river banks were too accessible for all parties concerned to admit of change. Therefore, with the exception of Jamestown

83

and a borough or two elsewhere, nothing resembling a town existed in Virginia in the seventeenth century. In the few which were founded the territorial and other arrangements were such as have already been referred to as existing throughout the southern colonies.

The judicial system of Virginia consisted of the general or quarter court and the county courts, while the general assembly also heard appeals, though, during much of the period, in cases which could not be brought under known laws or precedents. The general court¹ consisted of the governor and council in judicial session, and met quarterly at Jamestown. It was the highest distinctively judicial body in the province, and had jurisdiction over civil suits involving more than 1600 pounds of tobacco and over criminal cases involving life or member. The records of the governor and council as general court in early times were not kept very distinct, for in those which have survived appear many matters of a purely administrative nature.

The courts of the counties—called until 1643 monthly courts—consisted of the commissioners of the counties, who soon came generally to be known as justices. Their powers and procedure approximated to those of the county justices of England.² In 1643 their original jurisdiction in civil suits was limited to those which involved less than 1600 pounds of tobacco but more than 20s. sterling. Their criminal jurisdiction was limited to cases which did not involve life or member; but they tried a variety of crimes for which imprisonment, whipping, the pillory, tying neck and heels, and a variety of other penalties³ were imposed. They probated wills, recorded inventories, and had the care of orphans. Like the county courts in England and in the colonies generally, they did a large amount of administrative business and that of a very miscellaneous character. This made them a most important part of the

84

political and administrative system of the province. As was stated in their commission, the comprehensive duty of the county justices was to keep the peace, to see that all orders and acts of the assembly were obeyed, to guaranty the quiet and security of the people within their jurisdiction. Petty cases were heard by a single magistrate, while from the decisions of the justice the right of appeal lay to the general court.

Over the county justices the governor and council exercised the right of appointment and control. From the county justices and the families of the leading planters with which as a class the justices were connected, the council itself was recruited. This relationship was being established during the period with which we are now concerned, but it was not perfected until after the Restoration. At that time clearly appeared the intimate political and social relationship between the governor and council on the one hand and the county families and magistrates on the other which constituted the essence of Virginia government. In no province was the combination so perfect and harmonious as in Virginia. To it the aristocracy of that colony owed its origin. It was buttressed on the one side by the plantation system and on the other by commercial, social, and political relations with England.

After royal government had been once established, not so close attention was paid by the crown to the interests of Virginia as had been shown by the company. Only indirectly and to a very small extent did it incur expense for the colony. In 1634 Harvey writes that the king had granted him by privy seal £1000¹ per annum out of the Virginia customs, but he had received nothing as yet from that source, though he had been in office about five years. In June, 1638, he reported the arrears due him to be £4000. Apparently, like his predecessors, he was forced to look for support to fees and judicial fines, which had been granted to the governors by orders of the king from the outset.² We know also that the governors received considerable

85

grants of land in the province. Through a variety of indirect channels they probably managed to secure a respectable income, but it did not assume the form of a salary or come out of the English exchequer. Still more was this true of the other officers. The home government insisted that even the royal provinces should be self-supporting, that their expenditures should be met out of colonial revenues.

Apparently for more than a decade after the fall of the company little or no effort was made to collect the quit rent of 2s. per hundred acres, which, as we have seen, was affixed as a condition to grants of land. But with a view to its collection, in 1636 Jerome Hawley,¹ a man also prominent in Maryland history, was appointed treasurer of Virginia. He was also instructed to secure all the revenue which had originally belonged to the company and now was the right of the crown. Hawley did not enter upon his duties until late in 1637, but in May, 1638,² he wrote that he hoped to so improve the revenue as to make it defray the governor’s “pension” of £1000 a year. Henceforth a royal treasurer and receiver general held a place among the officials of Virginia, the office becoming elective in 1693.³ The efforts of these officers, together with the growth of the province, ultimately resulted in such a development of the quit rents that from them the salaries of later governors were paid.

Since necessarily the relations between the royal provinces and the English government lay chiefly within the sphere of the executive, the character of the colonial administration depended very largely upon the appointments that were made. At no time did such appointments seem specially attractive. They were least so in the early stages of colonial development. They involved, for indefinite periods, removal on the part of the appointees from England to small and remote settlements, which must have seemed much like places of exile. The privations to which officials, as well as

86

planters, were subjected at the outset in Virginia and New England have already been indicated. They continued, though in less acute form, after Virginia became a royal province. Though in the beginning it seemed possible that the home government might provide salaries for royal governors, it failed to do so, and they were thrown back upon the uncertain returns from the quit rents or the still more precarious appropriations of the assemblies. Fees, perquisites, and land grants offered chances for dishonesty and extortion, which always made them obnoxious to the colonists at large. One illustration, among many, of the situation in which governors found themselves is furnished by a letter of Harvey from Virginia, dated May, 1632.¹ “I conclude with my humble prayers unto your honors to take unto your compationate cares my nowe almost three years service uppon the place without any means or annual entertainment to support my great expense, who may as well be called the hoste as gouvernor of Virginia, all the country affayres being prosecuted at my house in James Island where is no other hospitalitie for all commers, and if some speedie remedie and reliefe be not found for me, not onlie my creditt but my hart will breake.”

In their relations with the council the early appointees of the crown to the governorship of Virginia held a position intermediate between that which led to the humiliation of Wingfield and the autocracy of Delaware and Dale; it was neither so weak as the former nor so strong as the latter. The commissions of the governors prior to the Restoration were in form analogous to those of justices of the peace and quorum in England. Authority² was given to the governor and council jointly. It was to be exercised by the greater number of them, among whom the governor was always to be one. “You, the said John Harvey,” runs the commission of March, 1628,

87

“and the rest afore mentioned, to be the present Council of and for the Colony and Plantation in Virginia, Giving and by these presents granting unto you and the greater number of you respectively, full power and authority to execute and perform the places, powers and authorities incident to a governor and council of Virginia.” Apparently the only distinction given to Harvey was this, that his name appeared at the head of the list and he was designated as governor. Discretion was not granted to the governor alone, after he had taken the advice of the council, as was the case in proprietary commissions and in royal commissions at least after the Restoration, and above all in the relations between the king and the privy council. Instead, the early commissions bound the governor by the advice of the council and were intended to necessitate his full cooperation with them. As compared with the other system, it lessened the prestige of the governor and increased the political authority of the councillors. As we shall see, it was an important cause of the civil troubles of Harvey’s administration, that governor exerting himself to the utmost to get free from the restraints which it imposed.

Owing to the failure of the crown for a number of years after the dissolution of the company to call an assembly, the governor and council, with the officials dependent upon them, constituted the only organs of government in Virginia. With the governor the councillors, of course, shared in all the larger executive concerns of the province. When the assembly was revived, they formed its upper house, and that gave to the council a large part in legislation. As in all the provinces where the executive was vigorous, they constituted a group of social and political leaders both in their respective counties and in the colony at large, among whom traditions of government grew up and were perpetuated. Through the governor and council official connection was chiefly maintained with England. They faced, as it were, in two directions—toward the colony and toward the parent country, and in various ways mediated between them.

Owing to the lack of records, it is impossible to speak in detail of the work of the executive and of its relations with

88

the assembly during the early history of Virginia as a royal province. It is even less possible than was the case under the company, for the records are now of a dry official character and they have been preserved in very fragmentary form. Statutes and isolated facts, with glimpses of the status of affairs at intervals, are all that now is available. The records of the general court which have survived are equally fragmentary, while the county records throw only an indirect light on the workings of the general executive of the province. But in this respect Virginia is not peculiar, for we have found the same thing true of Maryland and the Carolinas, and especially of the early executive records in all the colonies. In the case of none of the colonies is it possible to give a connected view of the doings of the executives or of its early relations with the legislature.

After the lapse of the period of four years which immediately followed the dissolution of the company, during which no assembly was called, the system of annual sessions was established and followed with great regularity. They were indeed required by the instructions issued to Wyatt in 1639, and by those given two years later to Berkeley. Abundant precedents were also established in favor of frequent elections. As in all royal provinces, legislation was subject to a double veto—by the governor and by the crown. Both executives frequently recommended the passage of laws and the adoption of specific lines of policy—especially those which affected the production of staple commodities, trade, and defence; but only slight evidence appears in the records of the time of the exercise of the veto either by the executive in Virginia or that in England. Until near the close of the seventeenth century the governor, council, and burgesses continued to sit together in one house, as they had done under the company. The long continuance of this primitive arrangement is at once a proof and an occasion of the maintenance of general good feeling. Except in the administration of Harvey, we find in early Virginia no instances of prolonged strife between the different branches of the legislature, which were so characteristic of the proprietary provinces and of the royal provinces in later times.

89

At first the number of representatives who should be returned to the assembly from each county was not specified. In 1645 it was restricted to four, except in the case of James City county, which was permitted to send five, with one in addition for the borough itself. In 1669 and 1670 the number of burgesses was finally fixed at two for each county, with one additional from Jamestown. A similar privilege was bestowed in the eighteenth century on Norfolk, Williamsburg, and William and Mary College.¹ With the exception of the year 1655 all freemen who were twenty-one years of age had the right to vote for burgesses. During those years the suffrage was restricted to freeholders, leaseholders, and tenants.² But neither in the act of 1655 nor in that of 1670 was any attempt made to define the amount of the freehold or leasehold, and therefore, under the social conditions which existed, their provisions could not have made a radical change in the suffrage.

The writs of election were issued by the governor through the office of the secretary, and were published by the sheriffs in the counties. Elections were held at the county court houses, the sheriffs acting as inspectors and returning officers.

Enough has been said to indicate that in Virginia the assembly, from a very early period, held a prominent and well established position. It cooperated fully with the governor and council in the development of the law and constitution of the province. In this way a tradition was early established which was to have a powerful influence on colonial development and on the degree of self government to which the colonists laid claim. So far as the provinces in general were concerned, and especially the royal provinces, it was as significant in its way as was the constitution of the corporate colonies for New England. In the sphere of taxation the assembly asserted its claim repeatedly and with much thoroughness. In 1624, twice in 1632, and again in 1643, it was provided by statute that the governor and council should not levy any taxes, but that this power belonged exclusively to the grand assembly; and also that the expenditure

90

of revenue should be as it directed.¹ So far as we are informed, this principle was very consistently enforced.

The form of direct taxation which was levied during the early period was in general the same which had existed during the later years of the company. It was a poll tax imposed at a uniform rate upon the tithables of the province and made payable in tobacco. In 1645, to meet the expense of an Indian war, the poll tax was dropped because it was found to rest too heavily on the poor, and a general tax on property was substituted. This continued until 1648, when the poll tax was restored. Various devices were enforced for determining lists of tithables, but in 1649 the term was defined so as to include all male servants thereafter to be imported and all native servants and freemen of both sexes who were sixteen years of age. Lists were to be made yearly by the sheriff. By a later act, of 1658, heads of families were made to report their tithables to the clerk of the county court and he was bound to make² an annual list of them. Beginning with 1643, in obedience to Governor Berkeley’s instructions, councillors were exempted from all public charges, church dues only excepted.³

In 1632 a tonnage duty, payable in powder, was introduced, the earliest example of a tax of that kind in the colonies. This was continued by later enactment and was collected by the commander of the fort at Point Comfort. In 1645, because of the war then in progress in England, an addition was made to the amount of this duty and it was made payable to the governor.⁴ In 1658, because of the inequality of the poll tax, a duty of 2s. per hogshead was levied for one year on the export of tobacco. Collectors of this duty were appointed by the assembly for the several rivers and other localities whence tobacco was exported, and their commissions were issued by the governor.⁵

As in the other colonies, the expenditures were made for a variety of personal services and for supplies, chiefly connected

91

in both cases with the defence of the province.¹ These, when stated in itemized lists, were allowed by the assembly and paid on the strength of this allowance by the treasurer. The wages of burgesses were paid by their counties. Officials received their reward chiefly in the form of fees and perquisites. The councillors were negatively rewarded, as we have seen, by exemption from taxes. In 1645 the assembly undertook to dispose of the quit rents,² assigning a salary out of them to the treasurer and providing that the surplus should go to the governor and council, “and thence to be disposed of by the Assembly as they shall think fitt.” But this was probably a temporary measure, resorted to because the civil war in England had left the quit rents for the time undisposed of. In the case of many officers the amount of fees which they were to receive was early regulated by acts of assembly. Those which were so regulated prior to 1660 were the fees of the secretary, the secretary’s clerk, the marshal, the clerks of the county courts, sheriffs, attorneys, surveyors, and the clerk of the assembly.³

So far as we know, the only feature which was peculiar to the Virginia executive was the dependent relation toward the council, already referred to, in which the governor was placed by his commission. This made him a member of the council, even when it was in legislative session. When taken in connection with special personal and political conditions which existed in Governor Harvey’s administration, it helped to bring about an acute crisis. The accounts which have been preserved of this event are unusually full, and they throw more light on the political conditions of the time in Virginia than any other material which is at our command. In view of our fragmentary knowledge of the period in general, a full account of this episode becomes especially necessary.

The relations of Harvey, not only with the council but with the inhabitants of Virginia at large, were influenced to such a degree by the grant of Maryland to the Calverts, that without an explanation of the bearing of this act on Virginia rights and interests, the uprising against Harvey cannot be understood. The English government, as we have stated,

92

always held that ungranted and unsettled land within a royal province was royal domain, and hence was subject to grant by the king. It considered the unsettled parts of Virginia after the dissolution of the company as in this condition. The Virginians, however, insisted or were inclined to insist that the members of the late company had been tenants in common of the province, and that the territory extending two hundred miles north and south of Point Comfort was one and indivisible. They were proud of the old dominion with its magnificent proportions, and viewed with dislike any plan to divide it. Though the opinion that it could not be divided was untenable, it led the Virginians to actively oppose projects of division, especially if the interests of any of their number were likely to suffer thereby. The existence of this feeling was first revealed by the grant of Maryland to Lord Baltimore.

Special force was given to the argument of the Virginians by the interest which William Claiborne and his partners had in Kent island in Chesapeake bay.¹ Claiborne, who came from a north of England family, emigrated to Virginia in 1621, under appointment from the company as surveyor. His ability gained him immediate success and promotion. He became a member of the council and secretary of the province. These positions he held when Harvey was appointed governor.

In 1627, and again in 1628, Claiborne received license from governors of Virginia to trade and explore along the shores of the upper Chesapeake, and also in other unsettled parts of the province. In 1629 he was appointed to command an expedition to punish the Indians for ravages which they had committed. As a member of the council Claiborne had been one of those who tendered the oaths of allegiance and supremacy to Lord Baltimore, when he visited Virginia in 1629. The interests which as a trader Claiborne was developing were menaced by the plans of that Catholic nobleman to procure a grant somewhere in the unoccupied regions of Virginia. Claiborne went to England and opposed

93

the grant of Maryland by such means as he could command.

Though his efforts in that direction failed, he interested Cloberry and Company, a firm of London merchants, in his schemes, and was appointed their agent. Sir William Alexander also took a hand in the business, and apparently with his assistance Claiborne and his associates, in 1631, procured from the king a license to trade to any part of the North American coast where a monopoly of traffic had not been granted. Early in 1632 Governor Harvey granted Claiborne a license to trade with the Dutch plantations. As the result of this enterprise Kent island was taken possession of and stocked with servants and cattle. It remained in the possession of Claiborne until 1637, but not by virtue of any grant of land or any authority to be there except that which came from the licenses to trade which had been issued by the governors of Virginia.

In the meantime, by a perfectly legitimate exercise of royal power, the territory of which Kent island was a part had been granted to Lord Baltimore and the settlement of it had begun. The Virginians petitioned the king against this grant, but the privy council decided, after hearing the case, that Lord Baltimore should be left to his patent and the other party to the course of the law. The Virginians never instituted suit.¹ Governor Harvey was instructed to give such assistance to Lord Baltimore’s colonists in establishing themselves north of the Potomac as lay within his power. He and Governor Calvert met as soon as the first body of colonists reached Virginia waters, and courtesies were duly exchanged. Claiborne was also informed that his rights on Kent island would be protected and his enterprise there encouraged, but he must acknowledge himself a tenant of Lord Baltimore as proprietor.² If he wished to trade further along the upper shore of Chesapeake bay, he must procure a license from Maryland.

Claiborne at once submitted this question to his colleagues

94

in the Virginia council.¹ They had been irritated by the issue of the Maryland charter, because it curtailed their domain. The appearance within the Chesapeake of commercial rivals, and they, too, of the Catholic faith, was anything but welcome to the Virginians. Therefore the council of Virginia expressed wonder that Claiborne should raise the question of recognizing Baltimore as his overlord. They would not surrender their right to Kent island until the validity of Baltimore’s claim to it was determined by the king. Meanwhile, however, they would live on good terms with the Marylanders, and expected similar treatment in return. Encouraged by this support, Claiborne refused to acknowledge the superior rights of Lord Baltimore.

Before many months had passed the Patuxent Indians began to grow restive, and when inquiry was made for the cause, the Indians, through Henry Fleet as interpreter, charged Claiborne with having told them that the settlers at St. Mary’s were Spaniards and enemies of the English.² As Fleet was a rival of Claiborne in the Indian trade, the truth of this testimony is seriously weakened. Later statements of the Indians also tended to invalidate it. But it led to the issue, in September, 1634, of an instruction by Lord Baltimore that, if Claiborne continued his refusal to acknowledge Maryland authority, he should be arrested and imprisoned. A few months later a pinnace belonging to Claiborne, which was trading in Maryland waters without a license from Calvert, was captured. Thereupon Claiborne manned a shallop under Lieutenant Ratcliffe Warren³ and commissioned him to seize any vessels which belonged to the Maryland government. Upon hearing of this, the Maryland governor sent out two armed pinnaces under Captain Thomas Cornwallis. In the spring of 1635 two encounters occurred between these forces, in the first of which four men were killed and several wounded. Among the killed was Warren, Claiborne’s commander.

Virginia was much aroused over this affair, and it doubtless

¹ Md. Arch., Proceedings of Council, 1667-1688, 164; Neill, 100.

² Md. Arch., Proceedings of Council, 1667-1683, 165-168.

³ Bozman, I. 34.

95

contributed strongly toward the resistance which forced Harvey to leave the province. But, though Virginia sympathized with Claiborne, it was forced to send commissioners to Maryland, who assisted in arranging a temporary peace.

Near the close of 1636 George Evelyn¹ arrived in Maryland. He was sent over as the attorney of Cloberry and Company, with instructions to take charge of the settlement on Kent island and to request Claiborne to come to England to explain his doings and adjust accounts. Though Evelyn at first declared his belief that Baltimore was not legally entitled to jurisdiction over Kent island, Claiborne, before he left, in the presence of the servants tried to induce him to give a bond of £3000 that he would not deliver the island over to the Marylanders.² But the bond was not given and Claiborne left the island in the hands of Evelyn. The latter, whether led by conviction or interest, soon opened relations with Governor Calvert. The governor appointed him commander of Kent island, and he then tried to persuade its inhabitants to freely submit to the Maryland government. Failing in this, he persuaded Governor Calvert to reduce the island by armed force. This was accomplished in December, 1637, and was accompanied with not a little harshness toward the faithful adherents of Claiborne. Against Claiborne, who was still absent in England, the Maryland assembly passed an act of attainder in March, 1638.³ All his lands and goods within Maryland were declared forfeited to the proprietor. This was the end of his proceedings in that province until they became merged with the religious and political struggle of the next decade.

In England suit was brought by Cloberry and Company against Claiborne. It came to trial in 1640, but the result does not appear in extant records. Cloberry and Company acknowledged the jurisdiction of Lord Baltimore over Kent

96

island by serving out warrants against certain debtors there.¹ Claiborne, still pursuing his plans as a trader, petitioned the king that Baltimore might be restrained from interfering with his trade. He also urged that a tract of land extending the breadth of twelve leagues on each bank of the Susquehanna river from its mouth to its source, a grant of which he sought, should also be extended northward to the Saint Lawrence and be prolonged southward from the mouth of the Susquehanna toward the sea. The fact that this grant, if made, would have cut in twain the possessions of the crown, and that it would have given to Claiborne a considerable part of Maryland, sufficiently indicates its extravagant character. Its object evidently was to enable Claiborne to get access to the fur-producing regions of the northwest and to the Indian tribes which dwelt there. All these advantages he hoped to receive for a rent of £50 per year. It is needless to say that this grant was never made, but plans suggested by the proposal were cherished for some years, while with a view to perpetuating his influence in the upper Chesapeake, Claiborne bought Palmer’s island from the Indians.

For some years before the crisis in the affairs of Claiborne was reached, a feeling of irritation on the part of Virginians toward Governor Harvey had been growing. This was partly due to the offensive manners and arbitrary conduct of the governor. Owing to the lack of records, we have little first-hand information concerning the details of his misgovernment; but of the fact in general there is sufficient evidence. Appointments under the English government throughout our colonial period were secured largely through privilege, influence, and favoritism. Merit, impersonally considered, played some part, but in a large proportion of cases it was subordinate. In most cases it could be but roughly ascertained, and figured only in connection with motives of a more personal sort. These considerations go far to explain the inferior character of many colonial appointments. They were part and parcel of the British civil service and exhibit its defects. In many cases military and naval officers of inferior rank, or persons who had held lower

97

positions at court or were relatives of some influential nobleman were selected to be governors. In too many cases they lacked the proper experience, or were narrow and selfish in their aims. They too often came for gain rather than service. Sometimes they followed in civil life the methods of the camp or the quarter-deck. Again, while laboring zealously to uphold the legal rights of the crown, they often failed to win the loyalty of the colonists by the pursuit of measures which were clearly for their benefit. On the other hand not a few of the royal governors rendered excellent service both to the crown and the colonists. Of the less acceptable class among them, John Harvey of Virginia was an example.

Previous to his appointment as governor in 1628, Harvey had served in the English navy. He had also been at the head of the commission which was sent to Virginia in 1623 to collect information for the use of the government in its prosecution of the London company. After his appointment as governor, if we are to credit the statements of his opponents, he exhibited the two worst qualities which a governor could possess, greed and an arbitrary temper. He is charged with multiplying fines and levying excessive fees, and even with appropriating money which belonged in the treasury of the province. Already fees had been to an extent regulated by law in Virginia, though this had not been done in the case of those which went directly to the governor. The custom of making appropriation bills specific was already being followed by the Virginia legislature, and in two acts before Harvey’s time¹ a general requirement that public moneys should be levied and employed as the assembly directed had found a place. But in neither case do the provisions appear to have been so precise and exhaustive as to have prevented the governor from using his discretion. The complaint of Harvey’s opponents that he had refused to account for the expenditure of public money might therefore, if we had the records, be susceptible of an explanation in harmony with law, or at least with current practice.

There is no doubt that Harvey was arrogant and even

98

brutal in conduct, and that at times he tried to play the petty tyrant. He admitted having assaulted one of the members of the council. He was charged with failure to show respect for the votes of the council. It was said that he had reviled the councillors in open court, and had told them that their part was simply to advise, the decision resting wholly with himself as the representative of the king. Finally, he had detained the original of a letter which the council was sending to the king to protest against one of the proposed tobacco contracts,¹ though he did send a copy. In his letters home Harvey complained of the powerlessness in the council to which by the terms of his commission² he was condemned, and he was probably attempting by assumption of power to escape from that condition. A man of his character would have found limitations, even if he had possessed the power which belonged to royal governors in later times. But in his treatment of Dr. Pott, his predecessor, who was found guilty of retaining some cattle which did not belong to him and also of having pardoned a murderer, Harvey showed a sense of fairness and justice. He sent a petition to the king that Pott, though his estates were justly forfeit, might yet be pardoned. The reasons assigned were his long residence in the province, his penitence, and the value of his services as a physician. The petition was successful and the pardon was duly issued.³

When, in May, 1635, news came of the defeat of Claiborne’s force by Thomas Cornwallis, the accumulated grievances of the Virginians against Maryland and against Harvey, both as governor and as the patron of Maryland, became too heavy for longer endurance. For some time past those who had ventured to speak well of Maryland had

99

been regarded almost as criminals. Planters had explained that they had rather knock their cattle on the head than sell them to Marylanders. Captain Samuel Mathews, on receiving what was presumably unfavorable news from England concerning Claiborne’s suit, is reported to have thrown his hat upon the ground and, stamping in fury, to have exclaimed, “A pox upon Maryland!” When Governor Harvey removed Claiborne from the secretaryship and put Kemp in his place, Rev. Anthony Panton is said to have called the latter a “jackanapes,” and to have told him that he was unfit for the place of secretary. Harvey knew of many conferences being held by the foes of Maryland, of many letters being sent to and fro, but unlike some New England governors under similar circumstances, he respected the secrecy¹ of the mail.

On April 27 a meeting was held at the house of William Warren in York, when speeches of protest against the misgovernment of Harvey were made. The next morning Captain Nicholas Martin, Francis Pott—a brother of the doctor,—and William English, sheriff of York, were arrested on the governor’s² warrant for the share which they had taken in the meeting. When they asked the reason for their arrest, they were told, in language which reminds one of the utterances of Governor Berkeley forty years later, that they should know at the gallows. When the council met the governor declared that the prisoners should be proceeded against by martial law, but the councillors insisted that they should have a legal trial. Harvey then became very angry, and after sitting down and bidding the councillors be seated, put to them the question, “What do you think they deserve that have gone about to persuade the people from their obedience to his Majesty’s substitute?” An immediate answer was required. The first individual to whom the question was directly put was George Menefie. He replied sarcastically that he was only a young lawyer and dared not

100

“upon the sudden” deliver his opinion. William Ferrar and Captain Mathews then objected to the proceeding of the governor as strange and unprecedented. Mathews compared it to the accusation by Richard III against Lord Hastings before the council. After this the rest of the councillors found their voices, and opposed the governor’s course. “Then followed many bitter languages from him [the governor] until the sitting ended.”

At the next session the governor sternly demanded the reason why a petition against him had recently been drawn in the province. Menefie replied that its chief cause was the fact that letters which had been prepared for the king had been detained. Upon this the governor, rising in a rage, struck Menefie on the shoulder, exclaiming, “I arrest you for suspicion of Treason to his Majestie.” Captain Utie, who stood near, said, “And wee the like to you, sir.” “ Whereupon I,” writes Mathews, “seeing him in a rage, took him¹ in my armes and said, ‘Sir, there is no harm intended against you, save only to acquaint you with the grievances of the Inhabitants, and to that end I desire you to sitt down in your chayre.’” Then Mathews stated to him what the grievances were, and asked that they might in some way be redressed. Mathews and the other councillors told Harvey that he must go to England and answer complaints which would be made there against him.

In the midst of these occurrences, on a signal from Dr. Pott, the governor’s house, where the council was sitting, was surrounded by armed men. The three men whom Harvey had arrested were now released. The governor found his protests of no avail. So imminent seemed the danger of personal injury to him that a guard was appointed. The council also took possession of his commission and instructions. The burgesses of the late assembly were called together by the insurgents. When the burgesses met, they approved the doings of the council, and recorded the fact that Sir John Harvey was thrust out of his government. Captain John West was chosen to act as governor until the king’s pleasure was known. Charges were formulated against

101

Harvey, and their conveyance to England was intrusted to Francis Pott and Thomas Harwood. Harvey sailed on the same vessel with them.

In July, 1635, Harvey and his two accusers landed at Plymouth. But so tumultuous and extraordinary had been the proceedings in Virginia, that the arrest of Pott and Harwood at Plymouth and their detention at the instance of Harvey should not awaken surprise. Harvey proceeded to London and submitted a statement in his own defence to the commissioners of foreign plantations.¹ In the following December the case was heard by the privy council, the king being present.² Before the hearing began the king declared that the expulsion of the governor was an assumption of royal power, and that it was necessary to send him back if he stayed but a day. Harvey denied several of the charges which had been made against him, though he admitted that he had assumed the power to make and remove councillors. No one appeared against the governor,—Pott being still in prison,—and after Harvey had remained in England eight or ten months, he returned to Virginia. West, Mathews, Utie, Menefie, and Pierce, the leading accusers of the governor, were summoned³ to England to answer charges before Star Chamber. After a detention there for a year or more without trial, they were allowed to return under security for good behavior.

Harvey continued to hold the office of governor in Virginia until 1639. During those years Secretary Kemp was closely associated with him in the management of affairs. The two were still the objects of many loud complaints, and, if reports are true, were guilty of some arbitrary acts. The Rev. Anthony Panton, minister of the parishes of York and Kiskiack, because he made some contemptuous remarks about the secretary, and perhaps in other ways had offended both him and the governor, was severely punished by them. Both his property and his parochial dues were seized, and he was banished from the province under threat of the death penalty if he ever returned. The Virginia merchants also

102

complained against Harvey and Kemp because they collected certain fees and a powder duty. The fees consisted of 6d. for every passenger who was landed in the province and 2d. for every hogshead of tobacco that was exported. They were used for the payment of the officers who kept the lists of exported commodities, the registrar of immigrants, and him who administered to the immigrants the oaths of supremacy and allegiance. The officer in each case was Kemp himself, or some one connected with his office. Complaint was also made because Jamestown was declared the only port of entry, though not of clearance. From these charges, however, the governor and secretary were able to clear themselves by showing that they had acted in accordance with some law or instruction.¹ But both of these officials were believed to be seeking their own interests rather than those of the province. Panton, the banished clergyman, carried his case on appeal to the privy council,² and upon its consideration facts were doubtless stated which revealed the arbitrariness of Harvey and some of the councillors. We know also that the other charges were submitted to the ministers in England, and that Harvey and Kemp presented a long defence. But the government determined to recall Harvey, and appointed Francis Wyatt to fill his place. Wyatt and his council were ordered to inquire into the case of Mr. Panton in Virginia. This they did with the result that Panton was reinstated in his living and full restitution of his property was made. Kemp left Virginia for a time, but in Berkeley’s administration he was restored to the office of secretary and on one occasion was acting governor.³

Wyatt’s second term of two years passed without notable event. In 1641 Sir William Berkeley was commissioned as governor, and held the office for ten years, when, as the result of the submission of the province to the commissioners of parliament, the government was reorganized. Berkeley was an Oxford graduate, and, though in no sense

103

a scholar or a patron of learning, was a man of sound practical judgment. He had been connected with the court of Charles I, and was a strong supporter of the royalist cause. He discouraged efforts of certain New England ministers to settle in the Nansemond region, and in the end coöperated in the removal of a considerable body of Puritans from that district to Maryland. Under the lead of the governor, Virginia was kept steadily loyal to the cause of the king, while by his loyalty the success of Berkeley as an executive was enhanced. Virginia never had a more popular or successful governor than was Berkeley during this administration.

With the appointments of Wyatt and Berkeley, Virginia may be considered to have attained substantially its full development as a royal province. The commissions and instructions which were issued to these governors, especially those of Berkeley, were much more complete than any which had preceded them, though they did not change the relation in which the chief executive stood to his councillors. That was left to be effected after the Restoration.¹ But in these documents a comprehensive plan was sketched for the guidance of the executive. He should not permit any to settle in the province unless they took the oaths of allegiance and supremacy. He should foster and support worship according to the forms of the Established Church, should exercise care in the appointment of ministers, should see that houses were built for them and glebes provided. Good morals should be promoted, especially by the suppression of drunkenness and regulation of the import and sale of strong waters. Justice should be administered, both in the quarter courts of the governor and council and in the county courts, in accordance with the forms of the English tribunals. Offending councillors might be brought to justice before the quarter courts or before special sessions of the council. Assemblies should be called annually, while by the exercise of the veto and in other ways the governor should keep their legislation in proper conformity with that of England. To the governor should belong the appointment of all officials below the rank of councillors, the captain of the fort, the muster master

104

general and surveyor general. As an indirect form of reward for their services, every councillor, together with ten of his servants, was exempted from taxation, save in case of a defensive war and of contributions for the building of towns and churches and for ministers’ dues. This was a feature of the system that was peculiar to Virginia, and in the end it was destined to have unfortunate effects.

The governor was to see that the obligation of the assize of arms was fully enforced by the muster master general; that the colonists were properly trained, and that a garrison of ten men be stationed at Point Comfort. The limits of age for military service were fixed, as in most of the other colonies, at sixteen and sixty, and newcomers were for the first year exempted from all service except the defence of the places where they dwelt. Provision was made for a system of alarms, while intercourse with the Indians was to be strictly regulated, partly as a means of defence. Special care should also be given to the regulation of trade and industry. The building of towns should be constantly encouraged. Unimproved lands should be granted to actual settlers. Constant effort should be made to diversify the industry of the province by restricting the growth of tobacco and encouraging the production of corn, wheat, hemp, flax, pitch, tar, the wine and silk industries, and the raising of cattle. In order to avoid forestalling and engrossing, ships were not to be allowed to break bulk until they reached Jamestown. Intercourse between colonists and the crews of merchant vessels at that port were to be regulated by license. Trade with the vessels of foreigners was forbidden, save in extremity. In the case of all exports from Virginia, bond must be given that they would be landed within the king’s dominions; in the case of foreign vessels, that they be landed at the port of London.

Not perfectly, but, as the times went, with a fair degree of fidelity, the Virginia executive adhered to this programme. In doing so he was supported by the legislature, in whose enactments detailed provisions will often be found for the enforcement of the principles which were set forth in the royal instructions.

← Vol. III, Pt. IV, Ch. III   Table of Contents   Vol. III, Pt. IV, Ch. V →