Colonial Williamsburg Digital Library

1. Removal of Seat of Government from Jamestown, 1699

The destruction of the State House at Jamestown by fire in 1698 led the Assembly to consider a more salubrious location inland, away from possible bombardment by enemy fleets. Middle Plantation, where the College of William and Mary had been established, was finally selected. An act in 1699 directed the building of a new state house, to be called "the Capitoll,"^** at Middle Plantation, which 6 was to be laid out as a city and renamed Williamsburg in honor of the reigning king, William III (1689-1702).

2.The Capitol, 1699-1747

The building, described in detail in the act of 1699, was actually begun in 1701 and completed in 1705. During its erection, the General Assembly met in the College building. In 1704, the Assembly held its first session in the yet unfinished Capitol. The next year when the structure was completed, the builder's master keys were broken in the presence of the Speaker of the House of Burgesses, and Henry Gary, the master builder or "overseer," was discharged.

Probably to minimize the danger of fire, which had destroyed several of its predecessors at Jamestown, the new Capitol was built without chimneys and the use of fire, candles, and tobacco in it prohibited. In time, however, these precautions were abandoned. In 1723 two chimneys were added to the northern end of the building, the Clerk having complained that the records were "Exposed by the Damps." Candles were ordered brought in, and in all probability smoking soon followed.

3. The Burning of the Capitol, January 30, 1747

From some unknown cause the Capitol caught fire between 7 and 8 o'clock in the morning and was ruined. The inhabitants were able to save "all the Records deposited in the Capitol,…the Pictures of the Royal Family, and several other Things." But the building was completely gutted by fire, so that only the brick walls were left standing.

4. Rebuilding of the Capitol, 1751-53

Governor William Gooch, in an address to the General Assembly immediately after the fire, urged the Burgesses to "apply the most effectual Means for restoring that Royal Fabric to its former Beauty and Magnificence, with the like elegant and capacious Apartments, so well adapted to all the weighty Purposes of Government." There was, however, a strong sentiment in the Assembly favoring the removal of the seat of government to a more central location and a place "commodious for Trade and Navigation." It was by a vote of 40 to 38 that "An Act for Rebuilding the Capitol, in the City of Williamsburg" was passed in 1748.

The Capitol was rebuilt (1751-53), incorporating the existing walls that survived the fire but with a different architectural facade. The apsidal south ends of the H-shaped building were squared, and the west facade was made the main front and adorned with a two-story portico surmounted by a pediment bearing the royal arms. In the interests of symmetry, the west door had to be moved slightly to the south.

Between the burning of the Capitol on January 30, 1747, and the completion of the new building on November 1, 1753, the General Assembly met at the College, and the General Court sat in the Williamsburg Court of Hustings (then located in the former playhouse on Palace Green). Also as a result of the fire, a separate Public Records 8 Office was built to house the official papers of the Colony.

5. The Capitol, 1753-1780

It was in the second building that the most historic events associated with the Williamsburg Capitol took place. In 1759 George Washington took his seat as a Burgess from Frederick County and was publicly thanked by the Speaker "for his brave and steady Behaviour, from the Encroachments and Hostilities of the French and their Indians, to his Resignation, after the happy Reduction of Fort DuQuesne." On May 29, 1765, Patrick Henry defended his fiery resolutions against the Stamp Act in his famous "Caesar-Brutus" speech. Later, this second Capitol witnessed such stirring events as the May 15, 1776 resolution calling upon the Continental Congress to declare the United Colonies free and independent, and the unanimous adoption on June 12, 1776, of George Mason's world-famous Virginia Declaration of Rights.

Ebenezer Hazard, a northern visitor to Williamsburg in 1777, described the building as it looked during the Revolution: "The Capitol is a large two Story Brick Building in the Form of an H: it is surrounded with a Brick Wall.; you enter the Court Yard by an elegant Iron Gate. In the Front of the Building is a Portico & Balcony, each supported by four Pillars; above these the King's Arms (elegantly carved & gilt) were formerly placed, but 9 upon Independence being declared they were taken down & burned."

Jefferson, in his Notes on Virginia (1781), described the Williamsburg Capitol as "a light and airy structure, with a portico in front of two orders, the lower of which, being Doric, is tolerably just in its proportions and ornaments, save only that the intercolonations are too large. The upper is Ionic, much too small for that on which it is mounted, its ornaments not proper to the order, nor proportioned within them-selves. It is crowned with a pediment, which id too high for its span. Yet, on the whole, it is the most pleasing piece of architecture we have…."

N.B. CW has reconstructed the first Capitol; when we interpret the second, we should make this point clear to our visitors.

6. Removal of the Seat of Government, 1779-80

In the course of the Revolution, it became increasingly clear that Williamsburg was easily accessible to the attack of the enemy, who enjoyed naval supremacy throughout most of the war. The plan for moving the capital of the Commonwealth to a more central location to the westward was revived. The Assembly on June 12, 1779, passed "An Act for the Removal of the Seat of Government" to Richmond, which was considered "more safe and central than any other Town situated on navigable Water." On December 24th the Assembly met for its last session in Williamsburg, and the Clerk was ordered to transport the books, papers, and records to the new seat 10 of government. The change was made during the next five months. On March 25, 1780, notice was published in the Virginia Gazette "that the Business of Government, in the Executive Department, will cease to be transacted at Williamsburg from the 7th. of April next, and will commence at Richmond on the 24th of the same Month." The 1780 session of the Assembly sat at Richmond.

7. The Subsequent History of the Capitol, 1780-1832

After 1780 the former Capitol served variously as a meeting place of the Court of Admiralty and of the district Chancery Court, as a law school, a military hospital, and a grammar school. In 1793 the Assembly authorized the sale of the east wing of the building to raise funds for the repair of the west wing. On April 10, 1832, the remaining portion was destroyed by fire.

Wythe's Mock Trials

Of special interest is George Wythe's use of the old building. While he was Professor of Law at the College of William and Mary, he held mock trials and assemblies there to teach his students judicial and legislative procedures. In 1780, Jefferson wrote to Madison: "Wythe's school is numerous, they hold weekly Courts & Assemblies in the Capitol. The professors join in it, and the young men dispute with elegance', method & learning."

Wythe's Mock Assemblies

Another of Wythe's students, Thomas Lee Shippen of Philadelphia, informed his father in a letter of February 5, 1784, "Last Saturday was the day of my political birth, if I may call so, the day on which I first assumed the character of a Legislator: for then I delivered an 11 oration for the first time in our grand and august Assembly." He added a remark that may explain the curious long-legged chair now in the anteroom of the Council Chamber: "Lately Mr. Wythe has had a lofty presidential Seat erected, which adds much to his dignity and may with great propriety be called his hobby horse, this entre nous. This throne has a greater effect in throwing a damp upon the spirits of the speaker, than you can imagine."

It is not known which room Wythe used for these exercises; presumably he held mock trials in the General Courtroom and mock Assemblies in the Hall of the House of Burgesses. The necessity for erecting a "presidential Seat" may have been the result of the removal of the Speaker's Chair to Richmond in 1780.

1. Representatives

Apportionment of Representation

During the first half-century of its existence, the representative branch of the Virginia Assembly on several occasions altered its composition. At first the boroughs or corporations (individual plantations like Flowerdieu Hundred) were represented.

17th-century Experiments

Then, after the creation of counties in 1634, the county became the normal geographical unit of representation, although occasional instances occur of parishes sending their own burgesses. It was many years before the number of burgesses for a county became finally fixed at two. At one time three were permitted from populous counties, two from middling ones, and one from newly-settled frontier counties. Then, for a while,'each county was at liberty to choose one or two burgesses at its discretion. But in cases where only one was sent, his occasional sickness or other unavoidable absence deprived the county of its representation when important measures remained were voted on.

Two Burgesses per County 1669-1776

Consequently, in 1669, each county was obliged by law to send two burgesses--and that the rule for the rest of the colonial period.

Borough Representation

In addition to the counties, a few towns, in accordance with English parliamentary custom, were granted the right of sending a representative to the House of Burgesses.

One Burgess Each: Jamestown, 1661 Williamsburg, 1722

James City (Jamestown) received this privilege by act of the Assembly in 1661. The City of Williamsburg

Norfolk 1736

received it in its royal charter of 1722. And the Borough of Norfolk obtained it in its charter, bestowed by the Assembly in 1736. Each of these towns was entitled to return one burgess. After the capital of the colony was moved to Williamsburg in 1699, Jamestown declined in population, and half a century later had only two or three families. Thus it became an early American counterpart of the "rotten boroughs" of England.

College Representation. One Burgess 1693-1776

In addition to the county and borough representatives, the House of Burgesses had one member representing the College of William and Mary. This conformed to English custom by which the Universities of Oxford and Cambridge have been entitled, from the Middle Ages until recently, to a representative in the House of Commons. This was the only instance of an American college being similarly privileged in a colonial assembly. The right was specifically bestowed by the royal charter creating the College in 1693.

2. Increasing Numbers of Burgesses

The first Virginia Assembly of 1619 had but twenty burgesses. With the rapid westward expansion of the colony, particularly after Bacon's Rebellion (1676), the number of counties grew apace, and with it the number of members of the House of Burgesses. In 1705, at the time the first Capitol was completed, there were about 52 burgesses--a fact which is important, because the hall 14 was intended to accommodate burgesses to about that number.

Hall of the Burgesses Enlarged 1736

But by 1736, when their number had increased to 70, the hall in which they met must have been terribly overcrowded. Indeed, in that very year the House ordered the Speaker to "employ Workmen to enlarge the Chamber of the Burgesses, and to make the same more commodious, before the next Session of Assembly." This was done, but it proved to be only a temporary solution to the problem. After its restoration in 1751-53, the Capitol must have contained a much larger chamber for the burgesses, because on the eve of the Revolution their number had grown to about 130¹²⁶.

3. Attendance, Salaries, and Allowances of Members

A Duty Grudgingly Performed

In discussing the subject of attendance, it is well to understand, at the outset, that the seventeenth-century view of membership in the legislature differs substantially from the nineteenth-century view. Latterly it has come to be regarded as a great honor to be chosen of one's fellow citizens to represent them, But in the seventeenth century it was regarded rather as a grievous burden than an honor. In many cases prominent men no doubt accepted membership as a kind of unpleasant duty they owed to the community. But they often attended somewhat grudgingly, And when they did go to Jamestown for sessions, their sense of duty was not so strong as to prevent their putting their private business before the affairs of the country.

In the seventeenth century the counties were some-times equally unenthusiastic about sending their representatives to the Assembly. They preferred that sessions should not occur too frequently. A petition from Stafford County in 1677 stated: "We find ourselves very much oppressed through these annual Assemblies, and do humbly conceive that, were they triennial and new elections, our burden might be lessened, and we altogether furnished with good laws." The people of James City County made a similar complaint the same year. Moreover, the counties were not always willing to bear the expense of sending two burgesses to a session of the Assembly, even though a law of 1670 levied a fine of 10,000 pounds of tobacco against any county that failed to do so. Henrico and Middlesex were both fined the year that the law went into operation.

To enforce attendance the laws of the colony also provided for fines against individual burgesses for unauthorized absences. Initially a small fine was levied for each day's absence. In 1663, when the Burgesses received a salary of 150 pounds of tobacco for each day of the session plus travelling expenses, the fine was 20 pounds of tobacco; but the amount was increased in later years. There was a more severe fine for an unauthorized absence at the opening of the session--an effort to assemble a quorum rapidly and not delay the election of a speaker. In 1659 this stood at 300 pounds of tobacco 16 for each day. The Burgesses also assessed heavier fines (a hogshead of tobacco in 1663 and 200 pounds in 1684) for an absence on Monday morning; proving that the problem of the "long week-end" may be age-old.

Roll calls

In order to check attendance, the House of Burgesses had a daily roll call in the 1680's. In 1693 it had a roll call every Monday morning at 10:00 A.M. to make sure that members who had left Jamestown for the week-end were back in their places. In addition, unexpected roll calls, made on the motion of any member of the House, served to expose unauthorized absentees.

Authorized Leaves

If a member desired to absent himself from the Assembly, he petitioned the House for leave and set forth his reasons. If the House was convinced that it was "same extraordinary and emergent occasion," it granted the request. Frequently the request was denied. In either case--but especially where leave was granted--the excuses were inserted in full in the journal.

Modification in 18th century

In the course of the eighteenth century, however, as the dignity of the House of Burgesses perceptibly increased, members began to take more pride in their position and to consider it a privilege to participate in the debates, committee work, and legislation of the Assembly. Concurrently, absences became less serious, and the need for rigid enforcement of attendance declined.

Fines for absence declined in amount, and became little more than fees to be paid the messenger sent to 17 apprehend the erring burgess. Roll calls became less frequent, and advance notice of them was given. Moreover, the House became much more disposed to excuse absences.

This change, however, was relative, not absolute. Leave was occasionally denied, and absentee members were occasionally brought back by force and reprimanded "for neglecting the service of the house." Severity was generally reserved for failure to be present when important measures were voted on and for which arple advance notice had been given.

French and Indian War - Leniency

Unprecedented conditions during the French and Indian War (1755-1763) resulted in even greater leniency with respect to absences of burgesses. The exigencies of providing supplies for the troops kept the Assembly in session at abnormal seasons, often conflicting with the sessions of the county courts. In consequence, many burgesses divided their time between the two. The quorum for business in the House of Burgesses was, normally, about 45 percent of its total membership. In 1756 it fell to 24 percent, absences being condoned on a large scale.

Post-War Leniency

The practice of leniency during the war years continued after the return of peace in 1763. From that time until the Revolution, roll calls were rare, members were seldom taken into custody, and excuses for absence were usually accepted without scrutiny.

Conclusion

The same development occurred during this period in the British House of Commons. Both the House of Burgesses 18 and the House of Commons, by 1770, had come to the conclusion that attendance could not be enforced. either by fines, roll calls, or taking members into custody. Even so, the nineteenth-century idea that absence was more detrimental to the member and his constituency than to the House had not yet entirely superseded the older view.

Allowances and Salaries

As it was considered a public duty to serve as a burgess, it was only right that all expenses connected with sojourning at the capital and travel to and from it be paid by the public. Therefore, at first the salaries of burgesses were in the nature of expense accounts rather than rewards or remuneration for their services. But in 1661 the House of Burgesses granted each of its members a salary of 150 lbs. of tobacco per day during the session of the Assembly over and above the allowances made to them by the counties they represented for travelling expenses. In 1677 this daily salary was reduced to 120 lbs. of tobacco, and in 1723 it was made payable in current money of Virginia at the rate of ten shillings per hundred pounds of tobacco, or 12 shillings currency per day. This was later reduced to a fixed sun of 10 shillings currency per day.

This salary was paid to each burgess by the Treasurer of Virginia by order of the Governor and a certificate of the Speaker of the House.

Payment Delayed

From 1736 until the Revolution the payment of the burgesses' salaries was quite commonly postponed for periods from several months to two years. The reason for 19 this was the "low circumstances of the treasury." There was normally an arrears in the collection of duties on liquors and slaves imported (the colony's principal source of cash revenue), and during these years Virginia was put to heavy expenditure for military purposes (King George's War 1740-48; French and Indian War 1754-63); and for rebuilding the Capitol, 1748-53. Moreover, the number of counties rapidly increased at this time, and with them, the number of burgesses, so that the public charge of the Assembly increased considerably just as the colony faced heavy military expenditures and, as a result of wartime disruption of its trade, a decline in its revenues.

Salary of the Speaker

The Speaker of the House of Burgesses received a salary in the seventeenth century, but it was apparently fixed by each Assembly. In 1656 and again in 1661 it was 6,000 lbs. of tobacco. On at least one occasion, in 1695, the Speaker's salary was discontinued. But in 1702 the Burgesses voted 10,000 lbs. to the Speaker that year. (As will be seen, page 55, this was the occasion for a conflict between the Council and the House of Burgesses.) From 1699 until 1766, when the offices of Speaker and Treasurer were combined, the incumbent normally received 5 percent of the money he handled. After 1734 he also received £50 a year for auditing the accounts of the tobacco inspectors throughout the colony. This was such a chore that the remuneration was gradually increased until it reached the sum of £150.

After 1766, when the two offices were separated, the 20 Speaker received an annual salary of £500 sterling, later (1769) changed to £625 current money of Virginia.

Clerk

The salary of the Clerk of the House of Burgesses was determined by the length of the session. It varied from £50 to £300, and avergged about £125 per session.

Sergeant-At-Arms

The Sergeant-At-Arms, who also served as the official messenger of the House, received a salary that varied from £20 to £80, and averaged about £30 a session.

Door-Keepers

The four door-keepers of the House of Burgesses received from £5 to £80, with an average of about £30 a session. (The door-keeper of the Council got from £5 to £20, with an average of £10.)

Chaplain

The Chaplain of the House got from £10 to £60, with an average of about £25 a session.

Other Clerks

In addition, the clerks of the more important commit-tees received salaries varying from £30 to £60 a session.

Public Printer

Near the end of the colonial period a public printer was regularly paid by the Assembly. Since he was appointed by the House of Burgesses he may be considered an employee of that body. His salary, on the eve of the Revolution, was £450 a year.

4. Duration and Frequency of Assemblies

Life of an Assembly

In the early seventeenth century the life of an Assembly was confined to one session, or at least to one year. In March, 1655, however, the Assembly adjourned until March, 1656, and was then prorogued to December 1, 1656. Thereafter adjournment of the Assembly from session to session, probably to avoid the expenses of a new 21 election, became more common.

Biennial Act 1659

There was, it is true, an act of 1659 requiring the election of a new Assembly every second year. But it occurred at a time (during the Interregnum) when the Assembly had the responsibility of electing the governor every two years and was passed to insure that there would. be a new Assembly to choose the governor rather than to secure frequent elections.

This 1659 law was technically repealed after the Restoration by being omitted from the general revision of the laws--perhaps because the Crown once more appointed the governor.

Virginia's "Long Parliament"

The first Assembly elected after Charles II came to the throne sat for 10 or 15 years without a new election. But there was probably more indifference than hostility to this development.

Biennial Elections Normal

Subsequently King Charles II confirmed the act of 1659, instructing the royal governors thereafter to call a new Assembly once in two years. Although there were a few exceptions--one Assembly lasted six years (1728-1734)--the election of a new Assembly at least as often as every two years remained the normal practice down to the Revolution.

Septennial Act 1762

When the Assembly in 1762 enacted that the maximum duration of an Assembly should not exceed seven years, the action was designed to bring Virginia law into conformity with that of Great Britain, rather than to correct existing evils. In reality, no Virginia Assembly after 1676 lasted longer than seven years.

Frequency of Sessions

An Assembly often held several sessions during its life. In the eighteenth century there were normally one or two sessions a year. Occasionally a year elapsed with none: of the 75 years that Williamsburg was the colonial capital of Virginia, only eleven years witnessed no sessions of the Assembly.

Intervals between Sessions

The two longest intervals in which there were no sessions of the Assembly were four years (1736-40) and three years (1723-26) respectively.

Length of all Sessions of a Given Assembly

Taking the colonial period as a whole, the individual sessions of the Assembly varied in length from one to 123 days. Based on the number of days of actual sitting, the average length tended to increase during the eighteenth century. The average for the period before 1728 was 89 days for each Assembly (regardless of the number of separate sessions). Between 1728 and 1749 it was 157 days. And it rose to 176 days during the French and Indian War (1754-1763). The Assembly of 1728-1734 was the longest-lived and sat for 259 days. The shortest-lived Assembly to meet in Williamsburg, that of 1769, sat for nine days.

1. The Franchise--County, Borough, & College

A clear distinction was made between the electorate and office-holders in colonial Virginia, and more exacting qualifications set up for the latter. Here we shall confine our attention to the requirements for voting for members of the House of Burgesses.

County Electorate

In the first half of the seventeenth century all freemen (that is, all men who were neither slaves, con victs, or servants under terms of indenture) were allowed to vote for burgesses. But the large numbers of settlers from the lower classes--who had come as indentured servants, served their term of four or five years, and obtained their freedom--resulted in tumultuous elections.

1670

In 1670, therefore, the suffrage franchise following English practice was restricted to freeholders (landowners) who alone, the Assembly asserted, had "interest enough to tye them to the endeavor of the publique good."

Exclusions 1699

An act in 1699 specifically excluded from the privilege of voting, all women, "infants under the age of twenty-one years," and Roman Catholics.

1723

A similar act in 1723 (probably as a result of an attempted Negro insurrection) excluded free Negroes, mulattoes, and Indians.

Even so the electorate was considered to include many ill qualified voters. Governor Spotswood declared that the giving of votes to everyone "tho' just out of the Condition of a Servant, and can but purchase half an acre of Land" was a serious "defeat in the Constitution."

1736

And in 1736 the franchise was further restricted by the establishment of a minimum freehold. Formerly a voter merely had to be a freeholder (even if he owned but a fraction of an acre). Now he had to own at least 100 acres of undeveloped land or 25 acres with a house and plantation. By a subsequent act the Assembly attempted in 1762 to 24 reduce this requirement to 50 acres of undeveloped land or 25 acres with a house at least 12 feet square. However, thie act was not confirmed in England and did not become law until 1785. (For suffrage requirements of town dwellers, see page 25.)

No Residency Requirement in the Counties

A freeholder who owned the requisite number of acres did not have to be a resident of the county in which he voted. Robert Beverley, in his History of Virginia (London, 1722), wrote: "The freeholders are the only electors, and wherever they have a, freehold … they have a vote in the election." It was, apparently, permissible for a freeholder to vote in each county in which he owned land. But as he had to vote in person, there was a practical limit to the number of counties he could visit during a single election. Possibly a freeholder occasionally voted in two or three adjoining counties, particularly when the elections took place on successive days. But multiple voting was never sufficiently common to become a bone of contention between the large and small freeholders.

Inhabitants of Other Colonies Allowed to Vote in Virginia

It is interesting that even freeholders who were not Virginians were entitled to vote for members of the House of Burgesses. In 1734 the Committee on Elections of the House, in deciding a disputed election, held that an inhabitant of Maryland who owned land in Virginia could vote in the election of burgesses for the county in which his land was situated.

Borough Franchise

The requirements for voting for a burgess from Jamestown, the only "rotten borough" in colonial Virginia, were the same as in the counties. But in the other two cities which had representation in the Assembly, the suffrage was more widely distributed.

Williamsburg 1722

The Royal Charter of the City of Williamsburg, granted in 1722, extended the privilege of voting for the city's burgess to the following group of inhabitants:

• (1) the mayor, recorder, alderman, and common councillors
• (2) all actual inhabitants and residents of the city who had a visible estate of £50 currency
• (3) all freeholders owning one entire lot (½ acre) of ground with a house on it
• (4) all persons who had served five years in a trade in the city and after expiration of their service were actual housekeepers and inhabitants of the city

Norfolk 1736

The charter of the Borough of Norfolk, granted by the Assembly in 1736, laid down substantially the same qualifications for voting for that borough's member of the House of Burgesses.

Jamestown, Williamsburg, and Norfolk were the only Virginia towns that enjoyed special representation in the Assembly before the Revolution.

The College Electorate

The Royal Charter of the College of William and Mary, dated 1693, authorized that institution to send one burgess to the Virginia Assembly. The charter also prescribed that he should be chosen by the President and six Professors of the College from among their own number, 26 or from among the Board of Visitors, or from among the citizens of the colony at large. As the President and Professors were usually in Holy Orders and as clergymen (for reasons explained on page 31) were ineligible to sit in the House of Burgesses, their choice generally fell, not upon one of themselves, but upon some gentleman of the laity who resided in or near Williamsburg (thereby saving the College the cost of transportation and board for its burgess during the sessions of the Assembly).

It is worth noting, as a commentary on our post-revolutionary rejection of allowing universities to elect representatives, that the College burgess in colonial days was invariably one of the most competent and distinguished members of the House of Burgesses. Among them were Sir John Randolph, Edward Barradall, Beverley Randolph, Peyton Randolph, George Wythe, Mann Page, John Blair and John Randolph the "Tory."

Participation in Elections (General)

The prevalent theory about participation in elections in the eighteenth century was that only those who had a "stake in society" through the ownership of landed property ought to vote. As the first state constitution of Virginia expressed it, the franchise belonged to those who gave "sufficient evidence of permanent common interest with, and attachment to, the community." To those who live in a modern, urbanized culture, where property owners are often a small percentage of the population, the requirement in the laws of colonial Virginia that 27 voters possess a minimum amount of landed property may seem unduly restrictive. Put eighteenth-century conditions were far different from those of the twentieth. Land was cheap and abundantly available in the colony; it was not difficult for men, at least for free white men, to obtain the vote.

Exact statistics about the percentage of men who were eligible to vote and who exercised their privilege are difficult to obtain in quantity. At the present time historical scholarship about this point is in a state of flux, but it is taking the direction of expanding our estimate of the size of the electorate in eighteenth-century Virginia. In the best account yet published the late Charles S. Sydnor estimated that in 1790--when the suffrage qualification did not differ radically from that before the Revolution--between one-third and one-half of the adult white male population possessed the qualifications for voting. But the electorate included about seven out of every eight heads of families.

Another point to consider is how many of the eligible voters usually took the trouble--it might mean travelling 20 or 25 miles to the county courthouse--to cast their ballots. Professor Eydnor thought, again basing his figures upon the 1780's and 1790's, that about half of the qualified voters came to the polls. From 1662 there was a compulsory voting law levelling fines against all who failed to exercise their ballot; 28 but it was not well enforced.

Participation in Elections (Local)

In the choice of county, borough, and parish officials no popular election took place in colonial Virginia. These offices were all either appointive or self-perpetuating; but there is no substantial evidence that the people at large protested their lack of a voice in the selection of such officials.

When a new parish was created, all the freeman assembled to elect a vestry of twelve men. But these vestrymen served for life and were, by the end of the seventeenth century, empowered to fill vacancies in their ranks. Thus, by the eighteenth century, the parish vestries of Virginia were self-perpetuating bodies in which, because of the aristocratic mold of Virginia society, membership had in practice become hereditary. The officials of the next larger governmental unit, the county, were all appointive: the sheriffs, colonels of militia, and justices of the county court held office at the pleasure of the royal governor. Not one of them was responsible to the people in the sense of depending upon them for election. And the mayor, recorder, aldermen, and common councillors of the two incorporated cities, Williamsburg and Norfolk, were named in the charter and empowered to choose their successors. Thus, like the parish vestries, the municipal officials of colonial Virginia constituted a self-perpetuating, closed corporation, who did not have to be passed upon by the people in periodic elections.

In the event of corruption, dereliction of duty, or any other malfeasance on the part of vestries or municipal corporations, the people had recourse to the General Assembly ^{What about the General Court?}which alone had power to dissolve those bodies and appoint, a new election. This, however, was seldom done in the case of parish vestries, and never in the case of city officials.

2. Qualifications for Office-Holding

Character and Moral Rectitude

Perhaps the most conspicuous difference between colonial and modern legislatures, as far as qualifications for office-holding are concerned, is the stress placed by the former on the character and moral rectitude of its members. The House of Burgesses, on occasion, expelled a lawfully-elected member for notoriety as a "scandalous person," for disturbing the peace, for bribery, drunkenness, adultery, fornication, and blasphemy. In 1655 the Assembly endorsed the principle that burgesses "shall be such and no other than such as are persons of known integrity and of good conversation." By an act of 1705 anyone convicted of treason, murder, felony, blasphemy, perjury, forgery, or any other crime normally punishable by dismemberment or death, even though pardoned, was forever disqualified from holding any civil, military, or ecclesiastical office in Virginia.

Expulsion of Members

These laws were fairly rigidly enforced--there are numerous instances of burgesses being investigated by the House for bad reputation and, if the suspicions were confirmed, expelled.

After an investigation by the Committee of Privileges 30 and Elections, which habitually handled such matters, a member of the House of Burgesses in 1742 was expelled for stealing sheep in Maryland twenty-one years before. In cases of expulsion, the county that lost a representative was permitted to hold another election to replace him by a more acceptable burgess.

Residence Requirements

Another difference between colonial and present-day requirements in the Virginia Assembly is that the colonial burgess did not have to reside in the city or county he represented. Thus George Washington of Fairfax County was a burgess for Frederick County from 1758 to 1765, and Patrick Henry, while living in Hanover County, represented Louisa County from 1765 to 1769. In this respect Virginia colonial practice followed English precedent, where to this day a member of the House of Commons need not reside in the district he represents.

Qualifications for Burgesses

Apart from character and moral rectitude, the requirements for office-holders were the same as for voting--with this difference,

Oaths

that office-holders were obliged to take certain oaths affirming their loyalty to the Crown and to conform to the Church of England.

Property

In order to be eligible to be a burgess, a man had to own enough land in a county to qualify him to vote.

Exclusions from Office-Holding

As in the case of the suffrage franchise, certain groups and classes were totally excluded from office-holding because of race, creed, and sex.

Negroes Mulattoes Indians Roman Catholics Women Children

Negroes (even when free), mulattoes, Indians, Roman Catholics, women and children were all debarred from office-holding. The 31 first three groups were thought to be insufficiently attuned to western civilization, women and children were considered deficient in understanding, and "popish recusants" (as Roman Catholics were frequently called) were thought to be disaffected toward the Crown, subversive toward the Established Church, and secret sympathizers of Great Britain's arch rivals, Spain and France.

Clergymen Excluded from House of Burgesses

Similarly, but for different reasons, Anglican priests were also incapable of being members of the House of Burgesses. This was not, of course, because of any supposed defect of character, loyalty, or under-standing, but simply in order to conform to English custom. As "Lords Spiritual," English bishops sat (and still sit) in the House of Lords along with secular peers, "Lords Temporal," but as the lesser clergy were represented in ecclesiastical convocations, it was thought proper to reserve membership in their secular counterpart, the

Clergy on the Council

House of Commons, to the laity. In colonial Virginia the clergy were eligible to sit in the upper house of the legislature, the Council, if appointed by the King. In general, only the Commissary of the Bishop of London. (who was commonly the President of William and Mary as well) was a Councillor. The Rev. Dr. James Blair was a councillor for many years, and served in 1740 as acting governor during the temporary absence of Governor Gooch on the military expedition against Cartagena. The rest of the Anglican clergy in Virginia had the right to sit

Convocations

in the ecclesiastical convocations that were convened from time to time, usually at the College in Williams burg.

Religious Qualifications for Holding Office

For those who were otherwise eligible for office-holding there were stringent religious qualifications to be met. All persons elected to the House of Burgesses or holding any other office under the Crown in Virginia had to take the oath of allegiance to the King, reject the authority of All foreign princes and prelates over England and her colonies, deny "transubstantiation" (a doctrine of the Holy Eucharist that is peculiar to the Church of Rome, and regarded as heretical by the Church of England), and subscribe to the "Test" which, in effect, amounted to acceptance of the validity of the Anglican priesthood and sacraments.

The "Test"

To the twentieth century it seems strange that sacred religious rites should have been employed as a political test. But it did not appear anomalous in colonial days. The practice originated in the idea that the magistrates of a Christian state ought to be members in good standing of the established church in that state. Its theological basis was that others might be spiritually frail and unworthy to be entrusted with the responsibility of administering the affairs of state for the good of the nation and the greater glory of God. But an established church like the Church of England was to some extent subservient to the purposes of the state; hence the religious qualification for office also became a measurement of 33 one's political soundness.

In religion, as in so many other things, the temper of eighteenth-century Virginia was entirely too moderate for narrow enforcement of the test. A number of Protestant dissenters served in the House of Burgesses, usually representing frontier counties where genuine Anglicans were scarce. The Anglican political leader-ship of the colony either overlooked the test for these men or, what is more likely, dial not object to their subscribing for obviously political reasons. This attitude illustrated the practical compromising spirit of Virginia Anglicanism, which permitted a wide degree of toleration within a framework of outward conformity.

Eligibility of Crown Officers to Sit in the House of Burgesses

The laws of Virginia also placed restrictions on the eligibility of Crown officials to sit in the House of Burgesses, although the exclusions were less severe than those governing the membership of the English Parliament. By a 1730 law no sheriff was allowed to be a burgess. If one were elected, the law required that a writ be issued for electing a new member in his place. Presumably this exclusion could be attributed to the fact that the sheriff presided over the election of burgesses in each county. The 1736 law also excluded tobacco inspectors from the Burgesses.

The statutes record only one other restriction on the right of Crown officials to sit in the House. In the same 1730 law that pertained to the sheriffs there is a stipulation that, if any person, while a member of 34 the House of Burgesses, should "accept any office of pro-fit whatsoever, in this government…," he should be held incapable of sitting or voting and a writ issued for the election of a new member in his place. However, the law also stated that, if he were subsequently re-elected, he could be seated. Thus, holding an office other than that of sheriff or tobacco inspector did not disqualify a man as a burgess, unless he were appointed to the office wile servina in the House.

The intent of this law is plain. It did not seek to attack plural office-holding, nor did it seek to bar all royal officials from the House of Burgesses. What it sought to do was to prevent the governor, or any other person with appointive powers, from buying up votes in the House by bribing. members with appointments to lucrative offices. If the boters wished to accept a royal official in the full knowledge that he held such an office, the law did not forbid his serving.

A good example of the operation of this law is the fact that four Attorneys General, John Clayton, Edward Barradall, Peyton Randolph, and John Randolph served as burgesses. All four were elected (or chosen to fill the College seat) after they had been appointed Attorney General.

Treasurer and County Court Justices as Exceptions

The restriction did not apply to county court justices, because they served without pay and therefore did not hold "places of profit." The Treasurer of the Colony, who handled the proceeds of taxes and disbursed 35 money voted by the House of Burgesses, was also an exception, because he received his appointment by act of the Assembly. John Robinson was both Speaker of the House of Burgesses and Treasurer of Virginia from 1738 until 1766. His successor, Robert Carter Nicholas was Treasurer from 1766-1776 and, concurrently, a burgess for James City County.

3. Character of the Men who were Burgesses

The men who sat as members of the House of Burgesses in the eighteenth century came predominantly from the well-to-do planter aristocracy. But custom and public opinion father than strict property qualifications decreed that the gentry should have a near monopoly of the major offices. Ordinary men were content with the power of dePermining which of the eligible members of the gentry they would elect as burgesses. The leading planters possessed a strong sense of political obligation. As the most important men in the community with a large stake in its welfare, they felt a responsibility for good government. Consequently, almost every prominent Virginian served at one time or another as vestryman of his parish, justice of his county, and, ultimately, as a member of the House of Burgesses or of the Council.

For a man who aspired to a seat in the House of Burgesses membership in the right social class was, there-fore, a virtual necessity; but it alone was no assurance of success. Even within the aristocracy, the right family connections helped. It was a distinct advantage to belong 36 to a family with a member already in public life and with great influence in the affairs of the colony. The approval of the other gentry in the county where one stood for office was also vital. They usually controlled the selection of new vestrymen, county justices, and militia officers; and through these lesser positions lay the surest route to the Burgesses. Moreover the support of the leading men of the county at an election of burgesses was likely to be a decisive influence on the outcome. Ability also counted for something. Incompetent men might be chosen burgesses, but they seldom rose to positions of power in the House. Finally the aspiring burgess could not be too haughty an aristocrat, for the ordinary voters would not support a planter who evidenced no concern for their problems. Thus, while the typical burgess was a man of wealth, family, and social position, he was also likely to be able, respected by his neighbors both great and small, and possessed of a sense of responsibility.

But although in colonial Virginia, as in England, the elected members of the legislature in the eighteenth century came mostly from families of the gentry, some did not. Some were of middle class origin, men who had accumulated ample estates or had risen via the learned professions into the upper class. And in a few instances, former indentured servants and other men of rude beginnings ultimately became substantial planters and obtained a seat in the House of Burgesses. When this happened in the 37 long-settled Tidewater counties, these men usually became adjusted to their new social environment and assumed the habit and demeanor of gentlemen "to the manner born." But an increasing number of burgesses came from the newly-settled areas of the west. In consequence, there was always a sprinkling of somewhat less sophisticated burgesses from the frontier counties, whose less fashionable dress and less refined deportment contrasted sharply with the correct attire and polished manners of the Tidewater gentry.

4. Virginia and Democracy

Meaning of Democracy

There is a great deal of loose talk about "democracy" in connection with colonial Virginia. One must, however, define the term strictly before applying it, for the word now has a wider meaning than it had in the colonial period. It also now has a wider connotation, based on the belief that democracy is a desirable, if not a necessary, element in good government. The basic meaning of democracy--and what our colonial ancestors understood by it-is, simply, the rule of the common people (demos).

Was Virginia Democratic

Virginia was democratic only in the purely political sense, and then only accidentally. An abundance of cheap land made it possible for many colonists to obtain voting privileges which, by English law and custom, were based on land ownership.

Virginia Sought Home Rule and Civil Rights not Democracy

But no serious attempt was made deliberately to extend the suffrage franchise until well along in the nineteenth century (1830). The real objectives of Virginians of the colonial and revolutionary 38 period were civil rights and home rule, not democracy. Indeed.. with a few exceptions like Henry and Jefferson, the Virginia ruling class took an extremely unfavorable view of democracy (in the sense of deliberately extending the suffrage), and. had no patience at all with fantastic notions of social equality or a classless society.

The Council Rejects the Vestry Bill 1706

An interesting example of this is the reply of the Council to the House of Burgesses in 1706 in connection with the former's rejection of a bill providing for the periodic election of the vestries by the freeman of each parish. This, the Council said, would occasion "partys and Factions throughout all the parishes in the Country, and lay a foundation for renewing such broils and Factions every 6th year, when there must be new Canvassing for Elections." Moreover, as these elections were not confined to landowners, "the greater part" of the voters being "mean people, and not always the most considerate, they will be like enough to carry the Election in favour of such as themselves."

That, of course, would never do in a society that firmly-believed that the burden of political administration should be entrusted only to the best people, i.e. the most educated, most refined, and most enlightened men of the colony. In that sense Virginia was aristocratic.

In addition to being aristocratic, the ruling classes of Virginia were also conservative. They believed firmly in the principle, to use the words of the Council in 39 1706, "that the alteration of an established. Constitution where the same is not generally complained of, is dangerous and the consequences cannot be foreseen."

Spotswood 1712

Another instance of the prevailing view of democracy is a letter of Governor Spotswood to the Board of Trade in 1712: "The Mob of this Country having tryed their Strength in the late Election and finding themselves able to carry whom they please, have generally chosen representatives of their own Class." This, he said, was "owing to a defect in the constitution, which allows to every one, tho' just out of the Condition of a Servant, and that can but purchase half an acre of Land, an equal vote with the Man of the best Estate in the Country."

1718

In 1718 Spotswood, complaining to the Board of Trade about the poor quality of Virginia naval stores, attributed it to the dishonesty of the "meanest of the people." As these people had "great influence in the election of Burgesses," he said, "it is difficult to perswade those who receive a benefite by their votes, to pass an Act so prejudicial to their interest, as that of obliging them to a greater honesty would be…"

1. Parliamentary Privilege

"Parliamentary privilege" consists of rights claimed and exercised by the English--and, after 1707, by the British--Parliament, especially by the House of Commons. By extension the term is applied to similar rights of representative Assemblies elsewhere.

In general it includes freedom from arrest and molestation, freedom of speech, the right to decide disputed elections, the power to discipline its own members, and the authority to punish outsiders for any insult or injury to the house or to its members.

Having been won gradually through the centuries, the privileges of Parliament were looked upon by seventeenth-century Englishmen as bulwarks of their rights. It is not surprising, therefore, that the Virginia Assembly (and, indeed, the other colonial Assemblies) began almost from the start to claim, and in many instances to obtain, the traditional privileges of the House of Commons.

As early as 1623 the House of Burgesses secured for its members immunity from arrest. Later (1705) this was extended to include their servants and estates as well as their persons. This immunity, however was limited to the actual sessions of the Assembly and ten days before and after. Moreover, it did not cover serious offences like treason, felony, and breach of the peace. Its purpose was to protect the public business from interruption for trifling reasons, or by factions or vindictive persons. Thus the governor or an irate inhabitant of the colony was restrained from bringing suit against a burgess in order to prevent him from attending the Assembly.

A similar privilege was Immunity from compulsory service in the militia or as sheriff of a county. 41 The former might be used by the local militia commander and appointment as sheriff by the governor as a means of eliminating burgesses who were politically at variance with themselves.

In addition, burgesses were protected by the House against slander and assaults on them or their families and servants. Such offences were considered a breach of parliamentary privilege, and the guilty persons were summoned to the bar of the House, reprimanded, sentenced, or discharged after investigation. In one instance, in 1756, the slanderer proving the truth of his charge was released, and the prosecuting assemblyman expelled and forever disqualified to be a burgess.

2. Officials

Among the officials elected by the House were:

• (1) The Speaker
• (2) Clerk of the House
• (3) Chaplain
• (4) Sergeant-at-arms
• (5) Clerks of the Standing Committees
• (6) Four doorkeepers
• (7) The Public Printer (after 1732)

Of these, the Speaker, the Clerk of the House and the Sergeant-at-arms were chosen by the Burgesses, but actually appointed by the Governor. All the others received their appointment as well as their election from the Burgesses and were responsible only to the House. The Treasurer, alone of all the colonial officials, was appointed by act of the Assembly, which, of course, required the concurrence 42 of the House, the Council, and the Governor (See page 31).

Oaths

All the officials of the House (as also the Treasurer of the colony) had to take the oaths appointed by law, subscribe to the test, and swear not to divulge private debates.

The Clerk

The Clerk of the House, being the appointee of the governor, could inform the governor of "resolves and votes" of the House, but like other officials chosen by the Burgesses, was honor bound not to divulge private debates.

The Chaplain

The Chaplain was sometimes a dignitary, e.g. Commissary Blair or Dawson, and sometimes the Rector of Bruton or a neighboring parish or a professor at the College of William and Mary, e.g. the Rev. Hugh Jones. The Chaplain's duty was to read the Order for Morning Prayer in the Conference Room at the beginning of each day's session. The council was invited to attend, and usually did so.

Visiting Preachers

Often a visiting clergyman who happened to be in Williamsburg while the Assembly was in session was invited to attend Divine Service--either in Bruton Church or in the Capitol--and preach a sermon before the Assembly. One of them, the Rev. Chicheley Thacker, Rector of Blisland Parish, preached so fervently in 1738 that the House of Burgesses ordered a thousand copies of the sermon printed and distributed throughout 43 Virginia "for the comfort of Christians, against the groundless Objections to the Divinity and Dignity of the Blessed Jesus."

Election Sermons

The practice of preaching election sermons on the opening day of a new Assembly was known in the seventeenth century, but disappeared in Virginia after 1686.

Sergeant at-arms

The sergeant-at-arms was to the House what a bailiff is to a court of justice; he carried out the orders of the House, executed writs, made arrests, summoned witnesses and malefactors to the bar of the House, and quelled disturbances of the peace in the Capitol. Because he required a commission as a legal basis for the execution of writs and for making arrests, he was appointed by the governor, although chosen by the Burgesses.

Doorkeepers

The four doorkeepers guarded the entrances of the House of Burgesses and wore clothes and badges of office provided by the Assembly. [Unfortunately, we do not know what the clothing or badges were like.]

Election of Officials

Throughout most of the colonial period all these officials were elected openly. After 1766, however, they were chosen by ballot. [For a description of the ballot system, see page 47, "Methods of Voting.")

Salaries

The salaries of the various officials of the House have been dealt with on pages 19-20.

3. Opening Ceremony

The ceremony of the opening of a new Assembly was 44 closely patterned after the traditional state opening of Parliament.

State Coach 1769

Lord Botetourt, when governor, added greatly to the ceremonial on these occasions by riding from the Palace to the Capitol in a handsome coach drawn by six white horses. Probably the most elegant equipage known to colonial America, this "superbly finished" coach was presented to him by William, Duke of Cumberland, uncle of George III, whose state carriage it was to have been. The Virginia arms were emblazoned on its doors in lieu of the royal arms of Great Britain.

4. Oaths of Office

Parliament in the eighteenth century was sovereign; but the Virginia Assembly still sat by permission of the king. Therefore, the House of Burgesses could not legally assemble until its members had been sworn in by the royal governor or his deputies.

Upon reaching the Capitol on the opening day of a new Assembly, the burgesses assembled in the Council Chamber and took their oaths of office in the presence of the governor or one or more councillors duly commissioned by the governor for the purpose.

The oaths they were required to take were those of Allegiance and Supremacy, appointed by Act of Parliament in 1688, and required of all office-holders in Virginia from governor to doorkeeper.

Oath of Allegiance

"I, A.B., do sincerely promise and swear, That I will be faithful, and bear true Allegiance to their Majesties King William and Queen Mary; So help me God."

Oath of Supremacy

"I, A.B., do swear That I do from my heart abhor, detest, and abjure, as impious and heretical, that damnable Doctrine and Position, that Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be deposed or murdered by their Subjects, or any other whatsoever. That no foreign Prince, Person, Prelate, State or Potentate hath, or ought to have any power, Jurisdiction, Superiority, Pre-eminence or Authority, Ecclesiastical or Spiritual, within this Realm; So help me God."

Test Acts 1673

In addition, they had to qualify under the terms of the Test Act of 1673, which required holders of any office, civil or military, to receive within three months of their taking office the Sacrament of Holy Communion according to the rite of the Church of England "in some publick Church, upon some Lord's Day, commonly called Sunday, immediately after Divine Service and Sermon," and to deliver a certificate of their having done so, signed by the priest, churchwarden, and two credible witnesses.

1678 Declaration against Transubstantiation, etc.

Also, by the terms of the Test Act of 1678 they were obliged to make, sign, and audibly repeat the following declaration:

"I, A.B., do solemnly and sincerely, in the presence of God, profess, testify, and declare, That I do believe that in the Sacrament of the Lord's Supper there is not any Transubstantiation of the Elements of Bread and Wine into the Body and Blood of Christ at or after the Consecration thereof by any Person whatsoever: and that the Invocation or Adoration of the Virgin' Mary, or any other Saint, and the Sacrifice of 46 the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous. And I do solemnly, in the presence of God, profess, testify, and declare, that I do make this Declaration and every part thereof, in the plain and ordinary sense of the Words read unto me, as they are commonly understood by English Protestants, without any evasion, equivocation, or mental reservation whatsoever, and without any Dispensation already granted me for this purpose by the Pope, or any other Authority of Person whatsoever, or without any hope of any such Dispensation from any Person or Authority whatsoever, or without thinking that I am or can be acquitted before God or Man, or absolved of this Declaration, or any part thereof, although the Pope, or any other Person or Persons, or Power whatsoever, should dispense with or annul the same, or declare that it was null or void from the beginning."

An explanation of the purpose of this oath is seen in the fact that the Church of England at the Reformation retained the ancient catholic doctrine of the "real presence" of Christ in the Holy Communion, but rejected as heretical the distinctively Roman doctrine called "transubstantiation," which asserts that the bread and wine at the instant of consecration cease to be bread and wine and miraculously become the actual corporeal body and blood of Christ. Belief in transubstantiation after 1570, therefore, served as a kind of shibboleth whereby anyone who secretly was a Roman Catholic might be forced to reveal his ecclesiastical affiliation.

Burgesses' Oath 1652-1738

In addition to the above, which were prescribed by Acts of Parliament, the Burgesses also assented to the following oath, drawn up in 1652 and authorized by the Virginia Assembly: 47

"YOU and every of you shall swear upon the holy Evangelist, and in the sight of God to deliver your opinions faithfully and honestly, according to your best under-standing and conscience, for the generall good and proeperitie of this country and every perticular member thereof, and to do your utmost endeavor to prosecute that without mingling with it any perticular interest of any person or persons whatsoever."

But in 1738 this oath was discontinued on the grounds that it arose out of the particular situation existing in 1652 and was intended to oblige burgesses to consult the general good of the colony, without regard to the particular interest of either the Cavalier or Roundhead parties.

5. Speaker's Election and the Governor's Speech

Burgesses "Attend" upon the Governor

When the burgesses were duly sworn, they returned to the chamber of the House, and awaited the summons of the governor, who, in due course, "commanded" them to attend him. When they complied, the governor ordered them to return to their chamber and elect a Speaker.

Clerk Presides

Back in their own chamber for the second time, the burgesses proceeded to elect a Speaker in this way. The Clerk of the House took the chair and presided over the election, but legislative custom permitted him to designate the member who had the floor by gesture only: he was not allowed to speak. This followed English practice.

Speaker-Elect's Self Abasement until 1734

Until 1734 another curious English custom was observed by the House of Burgesses. The Speaker-elect 48 repeatedly declared his unsuitability for the office and begged the House to reconsider its decision and choose someone wore fit to preside over its counsels.

House Over-rides Speaker Elect's Objections

Everyone, of course, including the Speaker-elect, understood that this was merely a gracious formality characteristic of early eighteenth-century notions of courtliness. The House, therefore, always Overrode the Speaker-elect's protestations and confirmed its original choice.

Speaker-Elect Thanks the House

Thereupon the Speaker-elect formally thanked the House for its kindness and condescension and solemnly promised to execute his office faithfully.

An Example from the Journal of the House 1700

When the House chose Mr. Peter Beverly for its Speaker he was conducted to the chair by two members. Whereupon he arose and said:

"Gentlemen. Being best acquainted with my owne Infirmitys I think it not just to receive this Testimony of your Affections without letting you know That It is my Opinion there are many Worthy Members here present capable of doeing you far greater Service in your Chaire then my weak abilitys will reach. This I hope will prove a Motive to divert your Inclinations and prevaile with you to recede from your first Intencions I acknowledge it a Sufficient Honor that you have named me in this matter And because the due Performance of the work of a Speaker greatly concerns your Honor and the Interest of the Publick I pray you will be pleased to wave me and to proceed to the choice of another person more propper to Sit in your Chaire and better accomplished for the weighty work pertaining to it."

"Gentlemen. My reasons not proveing prevalent to alter your Choice it behoves me not to press you farther but greatfully to accept and acknowledge your favours. I'le assure you I take them with a Resolution to study your Service and to discharge my duty with Integrity and faithfulness. As for such unwilling Slips as I may hapnen to make in the management thro' my owne weakness or inadvertencie I doubt not of your Goodness and Assistance to pardon and correct. It is that confidence which now Supports my Spiritts and the Experience will keep me alwaies chearfull in the greatest difficultys of this Mace given by your favor and held at your pleasure."

Mace Brought In

At this point in the ceremonial, the mace of the House of Burgesses was brought into the Chamber and placed under the table, for the House was not considered fully constituted until the governor gave formal approval to the Speaker's election.

Governor Ratifies the Choice of Speaker

Then, after an exchange of messages, the Burgesses went for the third time before the governor, to present their choice of Speaker. The governor then formally ratified the House's choice, and the Speaker-elect officially became the Speaker.

Confirmation of Privileges

So soon as his election was approved the new Speaker-begged the governor to confirm and continue the "ancient rights and privileges" of the House of Burgesses. These varied slightly from time to time, but after 1700 consisted principally of the three main elements of parliamentary privilege:

• (1) freedom of debate
• (2) freedom from arrest for their persons and servants, and
• (3) protection for their estates

A fourth, in use before 1705 and again after John Robinson became Speaker in 1738, was that the Speaker's mistakes might not be imputed to the House of Burgesses.

Governor's Speech

The governor graciously confirmed the privileges of the House and then proceeded to read a speech which set forth his reasons for calling the assembly and laid down the principal agenda for the public business of the session.

The burgesses then returned to their own chamber, where the mace was placed on the table and the Speaker read a copy of the governor's speech, so that its contents might be considered more carefully.

Congratulatory Reply

Regardless what the burgesses thought of the governor's speech and the proposals it contained for remedying existing evils in the colony, they invariably, in good eighteenth-century fashion, sent him a humble address of thanks and congratulations couched in deferential terms.

With that the traditional ceremonial of opening a new Assembly was complete, and the House of Burgesses, as well as the governor and Council, proceeded with its legislative business.

6. Legislative Procedure

We know a great deal less about the procedures by which the House of Burgesses carried on its most important function--the passage of legislation--than we do about the procedures of the more ceremonial opening of 51 a session. The only real sources of information are the journals of the House, which upon close reading yield a certain number of clues about the way in which the members transacted business. As in nearly everything else, the burgesses followed the procedures in the English Parliament closely. Lack of party discipline and insulation from a daily accounting 'to their constituents by virtue of distance and poor communications placed a greater premium on oratory and skilled political debate than is customary in modern legislative bodies.

Once a bill had been prepared, the House of Burgesses followed the practice of the House of Commons in reading all bills three times. There might be some debate after the first reading, but consideration of a bill in detail came after the second reading. Then it might be referred to a committee of the whole house, a standing committee, the committee that had prepared it, or to a special group. Bills were sometimes passed without going to a committee at all and, of course, they could be rejected at the second reading. But if the bill went to committee, it received additional consideration there and then care back to the House for a third reading. Here the full membership had another opportunity to debate the bill and to pass, reject, amend, or recommit it. All amendments had to be read as many times as the original bill.

7. Other Legislative Customs

1. Between Burgesses and Council

The relations between the Burgesses and the Council were not always smooth. In 1702, for example, the Burgesses included in the book of claims an item of 10,000 lbs. of tobacco as salary for the Speaker of the House. When the book of claims came before the Council for approval two councillors, Harrison and. Carter, objected to this item on the grounds that it was too heavy a burden on the taxpayers. The Council, acting in its legislative capacity, sustained this objection. Governor Nicholson asserted that the Burgesses were the proper judges of 56 the merits and remuneration of their own officers and urged the Council to avoid an unnecessary dispute with the House. But the Council remained adamant and resolutely refused to approve the item.

2. Between Burgesses and Governor

Although Virginia was spared the violent and prolonged conflicts between its colonial governor and assembly that mark the history of New York, Massachusetts, and New Hampshire, there were occasional instances of disagreement. This was, in large measure, because the colonial and the British concept of the nature and authority of the colonial legislatures became increasingly divergent after the "Glorious Revolution" of 1688, which permanently established the English Parliament as supreme in the government of the kingdom. The colonists considered that, as Englishmen, they were entitled to a voice in the making of laws and levying of taxes; and that their own legislatures were equivalent to the British Parliament, and heirs to all the rights and powers over the governor that Parliament had acquired over the king. But the British authorities held a different view. The colonial legislatures, they maintained, were by no means equal in "might, majesty, power, and dominion" to Parliament, but were subordinate bodies, rather like municipal councils in England. The colonists asserted, with a good deal of justice, that before 57 1689 Parliament seldom enacted legislation touching the colonies--except in matters pertaining to trade (the Navigation Acts)--and that English authority over the colonies was vested exclusively is the Crown, not in Parliament. But the British authorities countered, also with much justice, that after 1689 the power of the Crown was constitutionally wielded by the Ministry, which in the course of the eighteenth century came to be responsible to Parliament.

In view of this basic disagreement, it is not surprising that governor and burgesses occasionally came into conflict over matters pertaining to the extent of the constitutional authority of each.

Postal Rates 1718

An interesting precursor of the protest against taxation without representation occurred in 1718 when the Postmaster General of America endeavored to extend the postal system to Williamsburg. As the fee for carrying letters was authorized by an act of Parliament in 1711, the people of Virginia raised a "great clamour" against it on the grounds that Parliament could not "lay any tax… on them without the consent of the General Assembly."

Pistole Fee Controversy 1753

Another example of conflict was the pistole fee that Governor Dinwiddie tried to collect for land grants. Finding upon his arrival in Virginia in 1751 about one thousand patents for land already made out and awaiting the governor's authorization 58 Dinwiddie established a fee of one pistole (a Spanish gold piece worth about $3.50) for signing each patent. This action was neither in violation of any existing Virginia law, nor of his instructions from the Crown. He did it solely to line his pockets, and had no idea that it would cause such a storm of protest. The Council assented to Dinwiddie's action and so did the British Board of Trade (which then had general supervision of colonial affairs). But it was extremely unpopular throughout Virginia and it was denounced by the Burgesses at their next session. On November 27, 1753, the House sent an address to the governor asking him whether the pistole fee was established by his directions and if so then by what authority. Dinwiddie replied the next day that he had given the order in accordance with the authority granted him by his instructions from the Crown and with the unanimous advice and consent of the Council. The tone of the reply seems to imply that Dinwiddie did not consider that the matter of the fee fell within the constitutional sphere of the House. The Burgesses replied to him the next day that it was their undoubted right to inquire into the grievances of the people; that "The Rights of the Subject are so secured by Law, that they cannot he deprived of the least Part of their Property, but by their own Consent: Upon this excellent Principle is our Constitution 59 founded"; and that the pistole fee was not warranted by any known law, and therefore was an infringement of the rights of the people and "a Greivance highly to be complained of." The Burgesses went on to rehearse the history of the land grant system in Virginia, how 50 acres were given free to every settler by the Virginia Company; how this was continued by the Crown after 1624; how Governor Lord Howard of Effingham in 1685 tried to collect a fee for land patents; and how upon representation of the House of Burgesses King William III by order-in council in 1639¹⁶⁹³ discontinued the collection of fees for that purpose.

Dinwiddie countered on December 4 with the assertion that "The establishment of the Fee complained of, relates solely to the Disposal of the King's Land, and which, it is conceiv'd, may be deemed a Matter of Favour from the Crown, and not a Matter relative to the Administration of Government." In other words, Dinwiddie considered it an executive, not a legislative matter and, therefore, none of the business of the House of Burgesses.

The House unanimously defended its position and declared the governor's replies to its addresses to be both "unsatisfactory and a Means to create Fears and Uneasiness in the Minds of his Majesty's faithful Subjects." The House then resolved that the fee was "illegal and arbitrary" and that it "manifestly 6o tends to the subverting the Laws and Constitution of this Government," and voted to appeal to the King to overrule Dinwiddie. The same day the House resolved "That whoever shall hereafter pay a Pistole, as a Fee to the Governor, for the Use of the Seal to Patents for Lands, shall he deemed a Betrayer of the Rights and Privileges of the People."

In order to carry the appeal to the King, the House decided to appoint a special agent who was voted £2,500 for his services. The choice of the Burgesses for this post of envoy extraordinary fell upon the highly-esteemed attorney-general of Virginia, Peyton Randolph.^? The next day the governor prorogued the Assembly.

The Merits of the Case

In this dispute Governor Dinwiddie was technically in the right. The unoccupied lands of the colony belonged by law to the Crown and could be administered and disposed of by the King and his appointees in Virginia without regard to the House of Burgesses. The pistole fee, therefore, was not illegal. But Dinwiddie's action in establishing it was ill-advised, and his resolution in clinging to it in the face of such opposition on the part of the people was productive of more harm than good, for it put him and the Crown whose agent he was in a tyrannical light, and served as a wedge between the prerogative of the British Crown and the "faithful Subjects" of the King in Virginia.

Dinwiddie's View, 1754

Writing of the matter in 1754, Dinwiddie summed it up in these words, "If I had known that this affair would have created so much uneasiness to me and trouble to my friends at home, I would not have taken that fee; but when it was established by the Council here, and approved by the Lords of Trade [The British Board of Trade], I could not in honor to the Board submit to the unjust clamors of our House of Burgesses, who, by the opinion of Sir Dudley Rider [the British attorney-general], had no cognizance of it."

House of Burgesses Justified

On the other hand the fee was unusual and burdensome. And since it was generally complained of by the people and therefore was a grievance, there is no reason why the House of Burgesses could not take cognizance of it to the extent, at least, of petitioning the governor to desist, and, upon his refusal to do so, to petition the Crown.

Pistole Fee in Retrospect

The truth is that conditions were changing faster than the constitution. Virginia was becoming politically mature, and, therefore, increasingly restive under the cumbersome and seemingly arbitrary (or, at least, unrealistic) trans-oceanic control of internal affairs of the colony. The pistole fee contest was but one incident in the long conflict between royal prerogative and American aspirations for home rule that eventually produced the war for independence.

The Outcome

The outcome of the pistole fee controversy is an excellent example of the genius of the British government for shrewdly evaluating all the elements involved in a particular case and clearly differentiating between principle and expediency. The King-in-Council held that Dinwiddie was right in principle and ordered the Board of Trade to regulate such matters in the future. The Board instructed the governor of Virginia to take no fee for a patent for less than 100 acres, or for land grants to recent immigrants, or for lands granted west of the mountains. The Board also limited single land grants to a maximum of 1,000 acres and ordered that Peyton Randolph, who naturally had incurred the enmity of Governor Dinwiddie for serving as the special agent of the House, he rein-stated in the office of attorney-general of Virginia.

As in the case of the repeal of the Stamp Act in 1766, the British Government in connection with the pistole fee in Virginia yielded in substance to the wishes of the colonists, yet at the same time maintained the principle of its rightful authority.

3. Between Tidewater and the West

The standard accounts of Virginia's colonial history have for some time stressed the existence of a sectional political controversy among three separate areas of the colony: (1) the Tidewater with its plantations and aristocratic leadership; (2) the Piedmont, where some large planters lived but where 63 there was also a more numerous and more vocal small farmer class than in the east; and (3) the Shenandoah Valley and mountain areas, where small farmers who had emigrated through Pennsylvania composed most of the population. As in the case of the extent of voting in colonial Virginia, this matter of sectional alignments is in the process of re-study by scholars; and a new interpretation in time seems likely to emerge. The sectional controversy in all probability will prove to be both more complex and less intense than the older accounts suggest. By the 1780's for instance, there are evidences within the area east of the mountains of a north-south rather than an east-west division. And a look at the history of the House of Burgesses indicates that, while there were certainly rivalries, Tidewater delegates and those from the newer parts of the colony were usually able to resolve their differences.

At present the most balanced account of sectionalism, particularly as it related to the Burgesses, occurs on pages 105-308 of Charles S. Sydnor's Gentlemen Freeholder. Taking as his starting point the well-known clash between Patrick Henry and the older members in 1765, Professor Sydnor went on to point out how sectional barriers did not prevent cooperation. Sometimes a western county like Frederick chose an Eastern planter like George Washington as one of its burgesses. 64 And by valuing their land higher and by taxing slaves the eastern counties were willing to bear a larger share of the tax burden than the west. Moreover, the Piedmont section north of the James River did not differ radically from the Tidewater. There land and slaves continued to be the main elements of material success and leadership often came from members of the same families that dominated the Tidewater.

The tensions caused by sectionalism did not produce permanent party alignments in the House of Burgesses. The older, eastern leadership gave ground where necessary and showed a willingness to take some of the younger members into its inner councils. Between 1765 and 1776 such sectional feelings as existed probably lessened, and we need not here be concerned with whatever resurgence it displayed in the 1780's.

1. Appointment of Committees

Committees were appointed by the House of Burgesses as a whole, although after 1682 the Speaker was accorded the privilege of making the first nomination. His nomination, however, was not binding upon the House but was "allowed or 65 disallowed as the house pleases." In practice the Speaker's nominees were frequently elected--but not always. Additional nominations could be made by any burgess subject to confirmation by the House.

2. Names of Committees

English Background

Like its English model, the House of Commons, the Virginia House of Burgesses early developed committees for expediting the work of legislation. But Virginia produced a variant. In England by the end of the seventeenth century, most committees, except that for privileges and elections, were of unlimited size--any member of the House who chose could sit in them. Committees of the Commons were generally well attended, and, therefore, approximated committees of the whole.

Virginia Practice

In Virginia, however, the system early reached its logical development, and the committees were restricted to limited and well-defined membership.

Standing Committees of the House of Burgesses

Prior to 1727 the House of Burgesses had three standing committees:

• (1) Elections and Privileges;
• (2) Public Claims; and
• (3) Propositions and Grievances.

Membership

The chief members of the House generally sat on the Committee of Privileges and Elections and on that for Propositions and Grievances. After the middle of the eighteenth century the chairman of every 66 committee had a seat on one or the other of these two leading committees.

As the House of Burgesses grew in numbers, the membership of the committees gradually increased.

3. Their Function

• (1) The Committee of Privileges and Elections at the beginning of each new assembly examined the writs for the return of members for any discrepancies and handled all matters pertaining to the ancient privileges of the House. In its former capacity it judged contested elections and from time to time handed down decisions affecting the exercise and limitation of the franchise.
• (2) The Committee of Public Claims handled money matters. In colonial days money was seldom voted in advance (i.e. "appropriated") except for large-scale undertakings such as building the Governor's Palace, or raising troops for the French and Indian Wars. In lesser matters, the House gave orders what was to be done, and after the completion of the work, the House received petitions asking for payment. These were referred to this committee for consideration and recommendation. All 67 the items approved of by the committee were enrolled in a book which the committee presented to the House in the closing days of the session. After discussion--and perhaps some revision of the amount--the House passed the book of claims. It then went to the Council for concurrence.
• (3) The Committee of Propositions and Grievances was the place where remedial legislation was initiated. At the beginning of each session petitions from the several counties for the remedy of evils by changing existing laws or the meeting of a novel situation by new legislation were referred to this committee. If persuaded this committee drew up and introduced bills to the House that answered the request. We should not think of this committee as handling only grievances. The "propositions" in its title covered a wide range of constructive legislation, designed to meet the needs of a growing colony. Indeed the amount of work assigned to this committee became extremely heavy.
• (4) The Committee for Courts and Justice (created in 1727) was originally designed to examine the procedure of county courts and discover reasons for delays in the administration of justice. In the course of time, however, this committee came to be a subsidiary of the overworked committee of Propositions and Grievances. To it was assigned the examination of laws that had expired or were about to expire and required 68 re-enactment. It also handled the vexed^vexing problemof duties on imported slaves, servants, and liquors and on exported furs and skins--all of which is a far cry from courts and justice. (No committee by this name ever existed in the British House of Commons.)
• (5)The Committee on Trade (created 1742) handled all matters pertaining to the trade of the colony.
• (6)The Committee for Religion (created 1769) framed a bill for granting toleration, and thereafter devoted most of its time to investigating petitions and counter-petitions for the division of parishes.

Special Committees

In addition to the standing committees which handled certain types of business, special committees were created from time to time to deal with matters of a peculiar nature that fell outside the sphere of the standing committees. These fall roughly into three categories:

• 1. formal, customary committees for such matters as the preparation of an address in reply to the governor's speech, the proportioning of the public levy, and the examination of en-rolled bills.
• 2. various committees to examine the allegations of petitions for private bills.
• 3. all others, including, for example, committees to inspect the treasurer's accounts, to examine the state of the construction work on the Capitol or the Governor's Palace, or to search for precedents in the records of the Assembly.

4.Joint Committees

In addition to the standing committees and the 69 special committees of the House of Burgesses, there was a third category of committees. On occasion, joint committees with the council were appointed to deal with some matter of considerable importance that concerned both houses of the General Assembly.

Just such a committee in 1700 and again in 1748 performed the task of revising the laws and preparing for presentation to the House of Burgesses during the following session rills for re-enacting such laws as were still desirable.

In 1705 a joint committee of twelve burgesses and six councillors was created to investigate the causes and results of the burning of the College of William and Mary.

1. Its Evolution

As originally planned, the two buildings that comprised the Capitol were to he connected by a "cross Gallery" thirty feet long and fifteen feet wile. (Act Directing the Building the Capitoll and the City of Williamsburg, 1699). In 1701, however before the foundation of the Capitol was laid, the Assembly passed an act "giveing further directions in building the Capitoll" which revised the original specifications so that "the cross building betwixt the two main buildings" was enlarged from fifteen to twenty-five feet in breadth.

As a result of this change the "cross Gallery" became 70 a commodious chamber rather than merely a connecting passage. And from 1703 onwards the House of Burgesses ordered "the Conference room [to] be furnished with an Oval table fourteen foot long and six foot broad"; this served as a joint committee or conference room for the Council and House of Burgesses.

2. Its Use as a Chapel

It also served as a chapel for the Assembly. When the Reverend Hugh Jones M.A. was appointed chaplain in 1718 the House of Burgesses ordered him to "attend in the Conference room every morning at Eight of the Clock and read Divine Service." In 1720 he petitioned the House to purchase a surplice, Prayer Books, and kneeling hassocks "for the use of the House of Burgesses when they go to Prayer." This was finally done in 1722 when the House ordered from England a folio Holy Bible and a folio Prayer Book for the chaplain, forty octavo Prayer Books, and five dozen "Cushions of Green Cloth" for the Burgesses. In 1734 twelve additional Prayer Books were ordered for use of the Councillors.

3. Precedent for Joint Committees of Congress

The decision in 1703 to fit out a special room for joint committee meetings is interesting evidence of the extent of Virginia legislative development. Even this early it was apparent that the smooth operation of a bicameral assembly depended upon the maintenance of harmonious relations between the Council and House of 71 Burgesses. And as a result of the experience of the Virginia Assembly in the years after its division into two separate houses, it was realized that such relations could best be maintained by conferences between representatives of the two houses while bills were in the committee stage.

The wisdom of this decision has been justified by subsequent American legislative history. The "Conference Room" of the colonial Virginia Capitol is an early precursor of the joint committee system that occupies such an important place in legislative practice of the U. S. Congress today.

Position

At the apex of the official pyramid of Virginia was the royal Governor, who was chief magistrate, captain general, vice-admiral, and chief justice of the colony--the personal representative of the Crown and the chief agent whereby the British government made its will effective in the Old Dominion. His office was therefore two-fold in character: he was both the guiding executive of a local government and the central link in the chain that bound the colony politically to the mother country.

Bearing in mind the nature of the office, the relatively small financial return, and the Crown's concept of political office in the colonies as a reward for service at home, we are surprised today to note the high quality of the men who served as colonial governors.

Responsibilities

As the King's representative, the Governor's duties were executive, legislative, judicial, and ecclesiastical^*. In his executive capacity he made appointments to the more important public offices, called and dissolved or prorogued the Assembly, made peace or declared war, granted patents to public lands, and administered oaths of allegiance. As commander-in-chief of the military forces he levied, 73 armed, mustered and commanded the militia, commissioned military officers, executed martial law in time of invasion or insurrection, and built forts and fortifications. As vice-admiral he took account of maritime prizes, imposed or removed embargoes, and controlled ships and seamen.

His power to issue proclamations, the requirement of his signature on all acts of the Assembly, and his position as presiding officer of the Council when it sat as the upper house of the Assembly gave him important legislative authority.

In his capacity of chief justice he presided over the General Court, established local courts of justice, and appointed local judges and other court officers. He could remit fines, grant reprieves, and pardon all criminals except those convicted of treason or willful murder.

As the King's ecclesiastical representative he settled disputes involving the Church and its ministers, appointed church officials in case of vacancy, and sometimes issued special marriage licenses.

In nearly all these capacities he acted with the advice and upon the approval of the Council and with the assistance of other appointed officials--the Secretary, for example, or the Commissary. His ability to work harmoniously with his Councillors, to control them, or to ignore them depended of course upon the strength and interests of all the individual personalities at 74 any given time. The long story of the up-and-down struggle for preeminence between royal Governor and Virginia leaders--prerogative vs. self-determination, court party vs. country party, or what have you--can usually be told in terms of the relationship between Governor and Council; only at times (especially after about 1760), was it Governor and Burgesses.

Appointment

After 1624 the colonial Governor was appointed by the Crown--except during the period of the Commonwealth (1652-1660). His term of office was indefinite; he served during the King's pleasure.

In the 18th century the King sometimes gave the appointment to a court favorite whom he wished to honor, one who had no intention of exchanging the comfortable elegance of the royal court for duties in remote Virginia. Four such non-resident Governors held office--Orkney, Albemarle, Loudoun, and Amherst. They received half the salary of the office, but a Lieutenant-Governor, appointed also by the Crown, went to the colony and performed the duties of Governor.

• Norborne Berkeley, Lord Botetourt, 1768-1770
• John Murray, Earl of Dunmore, 1771-1775

Presidents of the Council as Acting Governors

When a resident Governor died in office, or left the colony before the arrival of his successor, the authority vested in him devolved upon the senior member of the Council, who bore the title "President of the Council." Thus, for example, when Governor Gooch left the colony in 1740 to command the Virginia regiment in the expedition against Cartagena, the authority of the governorship was temporarily exercised by the Rev. Dr. James Blair, Commissary of the Bishop of London and President of the College of William and Mary, by virtue of the fact that he was the senior member of the Council.

The Presidents of the Council who served as acting Governors were:

Salary

By the end of the seventeenth century the salary of the Governor of Virginia had become more-or-less 76 stabilized at 22,000 sterling a year, plus certain perquisites. This money was granted to him, not by the Virginia Assembly, but by the King, and was paid out of a permanent duty of two shillings sterling on each hogshead of tobacco exported from the colony. The duty, it is true, was granted by act of the Assembly, in 1658, but it had become perpetual by 1680, and it could not be amended or repealed by the Assembly except with the consent of the Crown.

It is significant that in Virginia (as distinguished from many of the other royal and proprietary colonies) the Governor's salary was beyond the power of the Assembly to withhold or diminish whenever the Governor's actions met with its disapproval. Thus the Governor of Virginia had a much freer hand in dealing with the Assembly in matters of disagreement than would otherwise have been the case. The Governors of New York, New Jersey, Massachusetts, South Carolina, and New Hampshire had to rely for their salaries upon temporary grants from the Assembly--a dependence which placed the Governor at a great disadvantage by enabling the Assembly to coerce him by withholding his salary until he assented to its proposed legislation.

Perquisites

The principal perquisites of the Governor were fees that had come to be established by custom rather than law. Below is a list of the fees usually allowed: 77

In addition, the Governor was entitled by custom to receive as his perquisite the beaver skins that various Indian tribes annually rendered to the Virginia Colony as tribute in recognition of the suzerainty or the King. The tribute beaver was valued at about £50 a year.

By the eve of the Revolution, salary and perquisites amounted to about £4,000 a year.

Magnificence of Royal Governors 1769-75

After 1769, when the Governor actually resided in Virginia, he enjoyed an affluence unknown by his immediate predecessors, who had to share the salary and perquisites of the office. The last two Governors, Botetourt and Dunmore, moreover, were peers--the former a baron, the latter an earl--and men of considerable estate in their own right. Botetourt with his fine clothes, courtly manners, and gilded state coach drawn by six white horses introduced a note of magnificence into life in Williamsburg that had been wanting before his time. Lord Dunmore, though perhaps less gracious 78 and diplomatic than Lord Botetourt, was not less stately in his public appearances and greatly impressed the colonial Virginians by his private yacht, the Lady Gower, and by the splendor that characterized the formal balls at the Palace during his administration.

Romanticism and Williamsburg's "Grand Manner" at the Palace during his administration.

Williamsburg had come a long way from 1699 to 1775 along the road to sophistication and material well-being. The colonial--royal--period of Virginia history ended, fittingly enough, in a burst of official magnificence under Botetourt and Dunmore, which loomed ever grander in the memories of Virginians who survived the dreary war of independence and the postwar depression, and who lived to taste the simplicity and colorlessness of the early republican officialdom. This contrast put republican simplicity in a bad light--particularly during the "romantic period" of the mid-nineteenth century, when it added fuel to the fire of the "cavalier myth" in the generation before the Civil War.

Membership

To assist the Governor in the administration of colonial affairs, there was a Council of State, analagous to the King's Privy Council. The Virginia Council was the stronghold of the Virginia aristocracy; membership in this body was evidence of wealth and of social and political influence. The importance of the family in the colonial Virginian way of life is seen as clearly 79 here, perhaps, as in county courts and vestries--Page, Burwell, Byrd, Carter, Custis, Harrison, Lee, Ludwell, Wormeley, Beverley, Blair, Corbin, Digges, Fairfax, Grymes, Lewis, Lightfoot, Nelson, Robinson, Smith, and Tayloe predominating. Extensive intermarriage with-in the ranks of the aristocracy made the Council itself a sort of family group. Leonard W. Labaree, in his Conservatism in Early America History (1948) was especially impressed with the circumstance that one-sixth of all Virginia Councillors after 1680 could have referred to one 17th-century woman, Lucy Higginson, as "Grandmother Lucy." When the Revolution came, ten of the, twelve Councillors were related to one or more of their colleagues, and all but two were sons or grandsons of former Councillors.

This political aristocracy was home grown, but its development was encouraged in England. Governors were regularly instructed to select as Councillors men of the greatest capability and experience in public life, responsible citizens important in the business and social life of the community. "People much in debt" or "in narrow circumstances" were not to be recommended because they were not considered responsible; the Council as a whole dealt with financial policies affecting the economy of the entire colony, and individual Councillors otter handled large sums of public money. Furthermore, the salary of a Councillor was in reality a sort of ex- 80 pense account,^* and this compensation was not large enough to pay for the time lost from private business. Financial rewards came from their practical, monopoly of the offices that paid the largest salaries or offered the best opportunities for profitable business ventures. A Councillor might become Secretary of the Colony, for example, or even chief executive in the absence of the Governor. As collectors of the customs or farmers of quitrents they might collect sizeable fortunes in fees. Private land speculation might yield handsome returns, for the Council controlled the distribution of Crown lands, and individual Councillors were as eligible for large grants as anyone else and better able to develop them for quick settlement.

Another factor that had bearing upon the selection of Councillors was their principal place of residence. Governors often complained in emergencies that they were unable to collect a quorum of Councillors in time for quick decisions, and gradually the convenience of having advisers within a day's journey of the capital became an important consideration to the Governor. In consequence, gentlemen of rank and fortune who lived near Williamsburg had a much better chance of obtaining appointment to the Council than equally qualified 81 gentlemen living a greater distance from the capital. Robert Carter of Nomini Hall, on the Northern Neck, had difficulty in securing his appointment largely because of the distance of his principal seat from Williamsburg. But he had the support of his wife's influential relatives in Maryland and England, and ultimately got the cherished post. The work it entailed, however, finally led him to purchase the present Carter-Saunders House and to transfer his residence from Nomini Hall to Williamsburg. Similarly, Col. John Tayloe of Mt. Airy, Col. William Byrd, III of Westover, and Philip Lightfoot of Yorktown, as well as other Councillors, found it expedient to purchase or rent Williamsburg houses.

Number

The number of Councillors varied from time to time: In 1607 there were seven; later in the 17th century the number rose to eighteen and then dropped to nine; usually there were twelve. During the 18th century, five were required for a quorum.

Appointment

After 1625 members of the Council were appointed by the King on the advice of the Governor and with the approval of the Board of Trade. In practice, powerful London merchants often had enough influence on the Board to push their candidates into position, and both Governor and Virginia planter assiduously cultivated their mercantile connections in the interest of friends desiring colonial office. Gooch and Fauquier, for example, often complained that their own influence was negligible when compared with that of London merchants 82 like the Perrys.

Term

Councillors were appointed for life or during good behavior, but their commissions and oaths of office had to be renewed when a new Governor arrived in the colony or a new King came to the throne. In the 18th century the Governor might remove a Councillor on his own authority, but he was required to make a full report of his reasons to the Crown.

Governor and Council - Executive Functions

Whereas Governors were always sent over from England, Councillors were generally native Virginians, or they had lived here long enough to identify themselves with the colony and its interests. Then, too, the Council enjoyed continuity and accumulated a working knowledge of the Virginia economy and society that was well beyond the reach of a newly-arrived Governor. Hence new Governors were forced, whether they liked it or not, to rely heavily upon the advice of their Council.

The Governor in Council considered petitions of every nature, reports of all revenue officers, land grants, and all matters pertaining to Indian affairs. The appointment of all public officers holding commissions from the Governor, the conduct of the Anglican clergy, controversies between vestries and rectors of parishes, the expenses of the colony all were discussed and decided here. Matters bearing on intercolonial relations. and practically all official correspondence of the Governor were laid before the Council, and he could not put into execution any article of war or declare martial law 83 without the advice and consent of that body.

Consequently, the Governor strove to avoid controversy with members of the Council because the orderly conduct of government was impossible without their co-operation. In cases where a serious rift developed, the Governor was likely to be deemed an unprofitable servant of the Crown and to be recalled. Nicholson and Spotswood, for instance, were removed from office principally because of the indomitable opposition of the Council.

Conflicts with Governors Nicholson and Spotswood

Both Governors were men of strong character and inclined to resent any opposition to their well-defined and somewhat grandiose imperialism. To the more conservative and more provincial Councillors, their bold actions smacked of dictatorship. Spotswood countered by charging that the Councillors "enjoyed considerable authority and aimed at greater,"

Harmony under Governors Fauquier and Gooch

Spotswood's charge was true only when an aggressive Governor like himself provoked their opposition. Under more tactful administrators, like Gooch and Fauquier, harmony reigned, and the Council made no persistent attempts to usurp any of the functions of the Governor.

Legislative Function--Upper House of the General Assembly

Since the constitutional concept of the separation of legislative, executive, and judicial powers first came into American practice after the Revolution, when it was written into the new state governments, we should not be surprised to find that the Governor was not the only colonial official who served in more than one of 84 these capacities. Councillors, too, had other duties than administrative ones. Like the House of Lords in Parliament, the Virginia Council was the upper house of the General Assembly.

At first, the Governor always presided over the Council in legislative session. By the middle of the 18th century, he was regularly present for the formal opening of the General Assembly; then, the President of the Council substituted for him as presiding officer of the upper house for the remainder of the session until he needed to return to affix his signature to bills that became laws and to dismiss the Assembly. (The same thing was happening in England, where the King presided over the House of Lords only at the opening of Parliament.)

While the General Assembly was in session, the Council met each day to act on bills sent up to them from the House of Burgesses--either passing the bills, amending them, or rejecting them--and to frame bills of their own to be sent down to the Burgesses for their consideration. During the 17th century it had become the custom for the Burgesses to initiate all money bills and those that grew out of petitions of their constituents. During the course of the 18th century Councillors found their time more and more taken up with administrative and judicial duties, and the work (as distinguished from the power) of framing bills passed more and more 85 into the hands of the Burgesses.

But Governor and Council continued to exert influence on legislative initiative in the time-honored English way. At the opening of each session the Governor addressed the Assembly,^* explaining his instructions and requesting specific legislation. Of course, he had already discussed policy with his Council in executive meetings, and his address expressed their administrative decisions. The chief legislative function of the Council was to act as a link or buffer between the royal prerogative, British commercial interests, and empire policy on the one hand, and the particularism of colonial Virginia interests on the other.

Judicial Function

Like the Governor, the Council had judicial functions when they sat as the General Court.

1. Opening of Sessions

The oath to be taken by Councillors when serving as judges of the General Court was provided by an act in 1705:

"You shall swear, that you will well and truly serve our sovereign lady the queen, and her people, in the office of a judge or justice of the general court of Virginia; and you shall not council or assent to any thing, the which might turn to the hurt or disheriting of the queen, by any way or colour; and you shall do equal law, and execution of right, to all the queen's subjects, rich and poor, without having regard to any person: You shall not take, by yourself,, or by any other person: any gift or reward, of gold, silver, or any other thing, (except meat and drink, and that but of small value:) You shall not take any fees, or other gratuity, of any person, great or small, except such salary as shall be by law appointed: You shall not maintain, by yourself, or any other, privily or opebly, any plea or quarrel hanging in any of the queen's courts: You shall not delay any person of common right for the letters of the queen, her governor of this county, or of any other person, nor for any other cause: And in case any letter come to you, contrary to the law, you shall nothing do for such letter, but you shall proceed to do the law, the said letters notwithstanding: And lastly, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly, and truly, according to the best of your skill and judgement, do equal and impartial justice, without fraud. So help you God."

An act of 1684 provided that at the opening of the session, silence was to be commanded in this fashion: "lett the cryer or under sherriffe make proclamation and say '0 yes 0 yes 0 yes silence is commanded in the court while his Majesties Governor and Councell are sitting, upon paine of imprisonment.'"

"After silence comanded Lett the cryer make proclamation sayings 'All manner of persons that have any thing to doe at this court draw neer and give your attendance and if any one have any plaint to enter or suite to prosecute lett them come forth and they shall be heard.'"

"When silence is thus comanded & proclamation upon calling the dockett the cryer shall call for the plaintiffe."

"'A.B. come forth and prosecute the action against C.D. or else thou will be nonsuit.' And the plaintiffe putting in his declaration the cryer shall call for the defendant."

"'C.D. come forth and save the[e] and thy bayles or else thou wilt forfeit thy recognizance.'"

2. Officers of the Court

3. Lawyers

4. Jury

5. Felony Trials

1. Court of Oyer and Terminer (after 1711)

As the population of Virginia grew, so did the number of criminal offences. And since the General Court met only twice a year (in April and October), a person charged with a crime would often be required to languish in jail for periods up to six months before being brought to trial, and this, of course, applied to those subsequently found innocent as well as to those proven guilty. In time the Court of Oyer and Terminer (so-called from the Norman French words for hear and decide) 101 came to serve as an interim criminal court.

Oyer and Terminer courts were first authorized in 1662 by royal instructions to Gov. William Berkeley for the trial of special cases involving treason, piracy, and capital crimes committed by Indians. Commissioned at first by the Governor or by the Governor and Council, the courts met at irregular intervals--the time, place, and duration being prescribed by the terms of the commission. After 1711, however, in response to royal instructions to Governor Spotswood, the Oyer and Terminer Court was placed on a permanent footing with regular semiannual sessions, on the second Tuesdays in June and December.^*

Spotswood held that he had a right to appoint anyone he chose to be a judge of this court, and secured the concurrence of the London authorities. But he encountered serious opposition from Councillors who stoutly maintained that only members of the Council were eligible for such appointments. Spotswood refused to accede in principle to this view, but in practice avoided a conflict by voluntarily confining his appointments to Councillors. Since his successors followed, his precedent, judges in the Court of Oyer and Terminer were always members of the Council and, as such, 102 also judges in the General Court. In effect, then, the Court of Oyer and Terminer was the General Court--minus the Governor--sitting in June and December on criminal cases only. The presiding judge was one of the Councillors (often the President), so named in the commission. Otherwise, procedure was exactly like that described above for felony trials in the General Court.

2. Court of Vice-Admiralty

Admiralty Law

Cases involving ships, mariners, crimes on the high seas, piracy, and privateering were not tried by the common law courts but by special courts that applied the principles of admiralty law, rather than common law.

Admiralty law had its rise in Mediterranean maritime codes, especially that of the Island of Rhodes; and it followed Roman procedure, which did not use a jury. As England increased her seafaring activities, she adopted admiralty law and set up special courts for the purpose of applying it.

Early Virginia Admiralty Courts

As early as 1660 the Virginia Assembly enacted legislation authorizing the Governor and Council to sit as a court of admiralty when necessary. But the need for such a court seldom arose in the seventeenth century, when few Virginians engaged in privateering. Besides, both Governor and Council were generally unfamiliar with admiralty law, and their decisions were often ignored or overruled in England.

Court of Vice-Admiralty

In order to correct this chaotic situation, Parliament passed an act in 1696 authorizing the High Court of Admiralty in England to commission subsidiary or "vice admiralty courts" in the colonies, and to keep their judges informed by issuing periodic instructions to them.

These courts had a permanent staff consisting of a judge, an advocate, a register, and a marshal, but they met only when called into session by the Governor to try a specific case that had come up. Instead of salaries, the court officials received a certain percentage of the value of the ship or goods adjudicated. For example, the judge received 5% of the value of a condemned vessel, the register 2½%, and the marshal 2½%. During the several Anglo-French wars of the eighteenth century, Virginians increasingly participated in privateering; then the officers of the Court of Vice-Admiralty found their work handsomely rewarding.

1. The Commissary of the Bishop of London - The highest ecclesiastical official in Virginia was known as the "Commissary" and received his appointment from the Bishop of London in whose spiritual jurisdiction lay Virginia (and all the other British colonies). Created in 1689, this office was generally held by the President of the College of William and Mary.

Only Robinson was Commissary without being President of the College. Only the Rev. William Stith (1752-55) and the Rev. William Yates (1761-64) were Presidents of the College without being Commissaries.

The duties of the office included the general supervision of the clergy and a seat on the Council. But since the Commissary was not a bishop, he could do little except report to the Bishop of London and make recommendations. He did convene and preside over periodic convocations of the Virginia clergy, which generally met at the College, but he never succeeded in maintaining the right of deposing an incumbent of a parish. Writing in 1725, the Rev. Hugh Jones said that his powers were "few, limited and disputed," for 106 he was but a "shadow of a bishop." But what he lacked in power, he made up in influence. Dr. Blair, an extreme example, was undoubtedly the most powerful man in the Virginia of his day, having dominated several governors and procured the recall of those whom he could not control. Also, no Virginian could be a candidate for Holy Orders in England without the Commissary's recommendation.

2. The Secretary - Invariably held by a Councillor, the office of Secretary was a royal appointment made on the governor's recommendation. Since the seal of the colony was in his keeping, the Secretary was analogous to the Lord Chancellor in England and the Secretary of State in the Federal government. All patents and most other documents requiring the seal--such as proclamations, commissions, marriage licenses---issued from his office. He was, moreover, the custodian of the records of the colony, including lists of births and deaths, journals of the General Court and Vice-Admiralty court, and lists of all tithables in each county. Land grants required the seal to make them valid, and the Secretary operated the land office for the colony. Similarly, he issued naturalization papers to foreigners who had lived seven years in America and were prepared to swear allegiance to the British Crown and subscribe to the Test, and he issued passes (the forerunner of out passports) to 107 anyone who desired to leave the colony. In return for these services, the Secretary received compensation in the form of fees (established and regulated by law). These amounted to £400 or £500 a year in 1696, but rose to about £1,000 a year by 1763. He also had the power of appointing the clerk of the General Court (who was really his deputy) and the clerks of all the county courts in Virginia. Next to the governor, the Secretary exercised the greatest power of appointment in the colony.

The Secretaries of Virginia during the period that Williamsburg was capital of the Colony were:

3. The Auditor - This office was created in 1664 by the Virginia Assembly. Its incumbent, however, received his commission from the Crown, and was considered a deputy of the Auditor-General, a London official who had financial supervision of all the colonies. The Auditor examined all the revenue accounts of the Virginia Colony, including those of the royal collectors and customs officials, the quitrents, the public claims, and fines and forfeitures. He swore to his accounts before the Governor and Council in April and October each year, and forwarded them with vouchers for each item to the Auditor-General and Treasury officials in London.

The Auditors of Virginia:

4. The Receiver General - Originally the offices of Auditor and Receiver General of the Royal Revenues were held by the same person. In 1705, however, they were separated because of the growing royal revenues and the possibility of fraud when the same person who received the money also audited the accounts. The Receiver General handled the royal quitrents, the revenue from the export duty of two shillings on each hogshead of tobacco, the one penny per pound on tobacco exported from Virginia to any other British colony, and the port duty of 1s. 3d. per ton paid by every vessel trading to the colony, as well as all other revenues not handled by the Treasurer. The difference between the Receiver General and the Treasurer was that the former received and disbursed "royal revenues" over which the Assembly had no control; the latter received and disbursed "colonial revenues" arising from taxes, duties, and appropriations enacted by the Assembly.

The Receiver General was compensated by a percentage of the funds he handled--at first 4%, 109 later 7%, and finally 5%. The proceeds of this office amounted to about £800 sterling a year in 1763.

5. The Attorney General - The first Attorney General of Virginia was appointed in 1643 by the King. About 1700, however, the Attorney General was appointed and commissioned by the Governor under the seal of the colony. Shortly before the Revolution the earlier method of appointment was revived. The last Attorney General of the colony, John Randolph "the Tory," was commissioned by the King. Unlike the office of Secretary, Auditor, and Receiver General, that of Attorney General was usually not held by a Councillor; in fact, four of them were prominent Burgesses.

The Attorney General had to be learned in the law. He prosecuted criminals in the General Court and the Court of Oyer and Terminer, and also landholders who refused to pay quitrents to the Crown. In addition, he gave legal opinion, when requested to do so by the Council, on matters requiring a knowledge of law and explained the meaning of instructions received from the home government. He also prepared proclamations and commissions to be issued by the Governor and 110 Council. The salary attached to the office in 1680 was £40 a year out of the royal revenue plus £80 a year voted by the Assembly. It was increased several times, and amounted to £200 in 1767 (all paid out of royal revenues). After 1703, he was required to re-side permanently in Williamsburg in order to be readily available for consultation by the Governor and other officials of the Colony.

6. The Surveyor General - Created in 1621. This office was attached to the College of William and Mary by its charter in 1693, and thereafter this official received his appointment from the President and Trustees or Visitors of the College. In actual practice, however, the College generally appointed the nominee of the Governor and Council, because the President of the College in his capacity of Commissary of the Bishop of London was a member of the Council, and the Visitors of the College were frequently Councillors too.

The Surveyor General appointed and commissioned (with the assent of the Governor and Council) the county surveyor for each county. In a day when the 111 process of settlement was rapid and new lands were continuously being patented, the task of surveying was of the utmost importance and the position one of great influence. Besides, boundary disputes between landholders were much more common in a new country like Virginia than in an old, settled one like England where estates rarely changed hands and where the boundaries had been fixed "time out of mind."

The Surveyor General (as well as the Secretary of Virginia) kept a record of all land surveyed. The office paid about £50 a year to its incumbent.

The Surveyors General who held office after its attachment to the College of William and Mary in 1693 were:

Information concerning later incumbents of this office is, strangely, lacking--possibly because of the destruction of most of the College records.