Chapter 10:
How the Stuarts Rewarded the Loyalty of Virginia

FROM 1652 to 1660, "THE PEOPLE OF VIRGINIA" had governed themselves. In England, triennial parliaments had been established by law; the Virginians, imitating the "act of 1640 for preventing inconveniences happening by the long intermission of parliament," provided for a biennial election of their legislators. In its forms and in its legislation, Virginia was a representative democracy; it insisted on universality of suffrage; it would not tolerate "mercenary" ministers of the law; it left each parish to take care of itself; every officer was, directly or indirectly, chosen by the people.

This result grew naturally out of the character of the early settlers, who were, most of them, adventurers, bringing to the New World no wealth but enterprise, no privileges but those of Englishmen. A new and undefined increase of freedom was gained by the universal prevalence of the spirit of personal independence. An instinctive aversion to too much government was a trait of southern character, expressed in the solitary manner of settling the country, in the indisposition of the inhabitants to collect in towns, or to associate for the creation of organizations for local self-rule. As a consequence, there was little commercial industry or accumulation of commercial wealth. The exchanges were made almost entirely—and it continued so for more than a century—by factors of British merchants. The influence of wealth, under the form of stocks and dealings in money, was always inconsiderable, and men were so widely dispersed that far the smallest number were within easy reach of the direct influence of the established church or of civil authority. In Virginia, except in matters that related to foreign commerce, a man’s own will went far toward being his law.

Yet the seeds of privilege existed, and there was already a disposition to obtain for it the sanction of colonial legislation. Virginia was a continuation of English society. Its history is the development of the principle of English liberty under other conditions than in England. The first colonists were not fugitives from persecution; they came, rather, under the auspices of the nobility, the church, and the mercantile interests of England; they brought with them an attachment to monarchy, a reverence for the Anglican church, a love for England and English institutions. Their faith had never been shaken by the inroads of skepticism; no new ideas of natural rights had as yet inclined them to "faction." The Anglican church was, without repugnance, sanctioned as the religion of the State. The development of the plebeian sects, to which there was already a tendency, had not come, and unity of worship, with few exceptions, continued to the end of the century. The principle of the English law which granted real estate to the eldest born was respected, though the rule was modified in many counties by the custom of gavelkind. From the beginning, for every person, whom a planter should at his own charge transport into Virginia, he could claim fifty acres of land. Thus a body of large proprietors grew up from the infancy of the settlement.

The power of the favored class was increased by the want of the means of popular education. The great mass of the rising generation could receive little literary culture; its higher degrees were confined to the few. Many of the royalists who came over after the death of Charles I brought the breeding of the English gentry of that day, and the direction of affairs fell into their hands. But others had reached the shores of Virginia as servants, doomed to a temporary bondage. Some of them, even, were convicts; but the charges of which they were convicted were chiefly political. The number transported to Virginia for crime was never considerable.

Servants were emancipated when the years of their indenture were ended, and the laws were designed to secure and to hasten their enfranchisement. In 1663, a few bond men, soldiers of Cromwell and probably Roundheads, impatient of servitude and excited by the nature of life in the wilderness, indulged once more in vague aspirations for a purer church and a happier condition; but their conspiracy did not extend beyond a scheme to anticipate the period of their freedom, and was easily suppressed. The facility of escape compelled humane treatment of white servants, who formed one fifth of the adult population.

In 1671, the number of blacks in a population of forty thousand was estimated at two thousand not above two or three ships of negroes arrived in seven years. The statute of the previous year, which declares who are slaves, followed an idea long prevalent through Christendom: "All servants, not being Christians, imported into this country by shipping, shall be slaves." In 1652, it was added: "Conversion to the Christian faith doth not make free." The early Anglo-Saxon rule, interpreting every doubtful question in favor of liberty, declared the children of freemen to be free. Doubts arose if the offspring of an Englishman by a negro woman should be bond or free, and, by the law of 1662, the rule of the Roman law prevailed over the Anglo-Saxon. The offspring followed the condition of its mother. In 1664, Maryland, by "the major vote" of its lower house, decided that "the issue of such marriages should serve thirty years." The female slave was not subject to taxation; in 1665, the emancipated negress was "a tithable." "The death of a slave from extremity of correction was not accounted felony, since it cannot be presumed," such is the language of the statute of 1669, "that prepensed malice, which alone makes murther felony, should induce any man to destroy his own estate." Finally, in 1672, it was made lawful for "persons pursuing fugitive colored slaves to wound, or even to kill them." The master was absolute lord over the slave, and the slave’s posterity were his bondmen. As property in Virginia consisted mainly of land and laborers, the increase of negro slaves was grateful to the large landed proprietors.

The aristocracy, which was thus confirmed in its influence by the extent of its domains, by its superior intelligence, and by the character of a large part of the laboring class, aspired to the government of the country; from among them the council was selected; many of them were returned as members of the legislature; and they held commissions in the militia. The absence of local municipal governments led to an anomalous extension of the power of the magistrates. The justices of the peace for each county fixed the amount of county taxes, assessed and collected them, and superintended their disbursement; so that military, judicial, legislative, and executive powers were in their hands.

At the restoration, two elements were contending for the mastery in the political life of Virginia: on the one hand, there was in the Old Dominion a people; on the other, a forming aristocracy. The present decision of the contest would depend on the side to which the sovereign of the country would incline. During the few years of the interruption of monarchy in England, that sovereign had been the people of Virginia; and their legislation had begun to loosen the cords of religious bigotry, to confirm equality of franchises, to foster colonial industry by freedom of traffic with the world. The restoration of monarchy took from them the power which was not to be recovered for more than a century, and gave to the superior class an ally in the royal government and its officers.

The emigrant royalists had hitherto not acted as a political party. If one assembly had, what Massachusetts never did, submitted to Richard Cromwell; if another had elected Berkeley as governor, the power of the people still controlled legislative action. But, on the tidings of the restoration of Charles II, Virginia shared the joy of England. In the mother country, the spirit of popular liberty, contending with ancient institutions which it could not overthrow, had been productive of much calamity, and had overwhelmed the tenets of popular enfranchisement in disgust and abhorrence: in Virginia, where no such ancient abuses existed, the same spirit had been productive only of benefits. Yet to the colony England seemed a home; and loyalty to the king pervaded the plantations along the Chesapeake. With the people it was a generous enthusiasm; to many of the leading men it opened a career for ambition; and, with general consent, Sir William Berkeley, assuming such powers as his royal commission bestowed, issued writs for an assembly in the name of the king. The sovereignty over itself, which Virginia had exercised so well, was at an end.

The assembly, chosen in 1661, was composed of large landholders and cavaliers, in whom attachment to colonial life had not mastered the force of English usages. Of the assembly of 1654, not more than two members were elected; of the assembly of March, 1660, of which an adjourned meeting was held in October, the last assembly elected during the interruption, only eight were re-elected to the first legislature of Charles II, and, of these eight, not more that five retained their places. New men came in, bringing with them new principles. The restoration was, for Virginia, a political revolution.

The "first session" of the royalist assembly was held in March, 1661. One of its earliest acts disfranchised a magistrate "for factious and schismatical demeanors."

The assembly, alarmed at the open violation of the natural and prescriptive "freedoms" of the colony by the navigation act, appointed Sir William Berkeley its agent, to present its grievances and procure their redress through the favor of its sovereign. The New England states, from the perpetual dread of royal interference, persevered in soliciting charters, till they were obtained; Virginia, unhappy in her confidence, lost irrevocably the opportunity of obtaining a liberal patent.

The Ancient Dominion was equally unfortunate in the selection of its agent. Sir William Berkeley did not, even after years of experience, understand the act against which he was deputed to expostulate. We have seen that he had obtained for himself and partners a dismemberment of the territory of Virginia; for the colony he did not secure one franchise; the king employed its loyalty to its injury. At the hands of Charles II, the democratic colonies of Rhode Island and Connecticut received greater favor.

For more than a year the navigation act was virtually evaded; mariners of New England, lading their vessels with tobacco, did but touch at a New England harbor on the sound, and immediately sail for New Amsterdam. But this relief was partial and transient. The act of navigation could easily be executed in Virginia, because it had few ships of its own, and no foreign vessel dared to enter its ports. The unequal legislation pressed upon its interests with intense severity. The number of the purchasers of its tobacco was diminished; and the English factors, sure of their market, grew careless about the quality of their supplies. To the colonist as consumer, the price of foreign goods was enhanced; to the colonist as producer, the opportunity of a market was narrowed.

Virginia long but vainly attempted to devise a remedy against the commercial oppression of England. It was the selfishness of the strong exercising tyranny over the weak; no remedy could be found so long as the state of dependence continued. The burden was the more intolerable, because it was established exclusively to favor the monopoly of the English merchant; and its avails were all abandoned to the officers to stimulate their vigilance.

Thus, while the rising aristocracy of Virginia was seeking the aid of royal influence to confirm its supremacy, the policy of the English government oppressed colonial industry so severely as to unite the province in opposition. The party which joined with the king in its desire to gain a triumph over democratic influences was always on the point of reconciling itself with the people, and making a common cause against the tyranny of the metropolis.

At the restoration, the extreme royalist party acquired the ascendency; and the assembly effected a radical change in the features of the constitution. The committee which was appointed in 1662 to reduce the laws of Virginia to a code repealed the milder laws that she had adopted when she governed herself. The English Episcopal church became once more the religion of the state; and though there were not ministers in above a fifth part of the parishes, so that "it was scattered in the desolate places of the wilderness without comeliness," yet the laws demanded strict conformity, and required of every one to contribute to its support. For assessing parish taxes, twelve vestrymen were to be chosen in each parish, with power to fill all vacancies in their own body. The control in church affairs passed from the parish to a close corporation, which the parish could henceforward neither alter nor overrule. The whole liturgy was required to be thoroughly read; no non-conformist might teach, even in private, under pain of banishment; no reader might expound the catechism or the scriptures. The obsolete severity of the laws of Queen Elizabeth was revived against the Quakers; their absence from church was made punishable by a monthly fine of twenty pounds sterling. To meet in conventicles of their own was forbidden under further penalties. In April, 1662, they were arraigned before the court as recusants. "Tender consciences," said Owen, "must obey the law of God, however they suffer." "There is no toleration for wicked consciences," was the reply of the court. The reformation had diminished the power of the clergy by declaring marriage a civil contract, not a sacrament; Virginia suffered no marriage to be celebrated but according to the rubric in the Book of Common Prayer.

Among the plebeian sects of Christianity, the single-minded simplicity with which the Baptists had, from their origin, asserted the enfranchisement of mind and the equal rights of the humblest classes of society, naturally won converts in America. In December, 1662, the legislature of Virginia, assembling soon after the return of Berkeley from a voyage that had been fruitless to the colony, declared to the world that there were scattered among the rude settlements of the Ancient Dominion "many schismatical persons, so averse to the established religion, and so filled with the new-fangled conceits of their own heretical inventions, as to refuse to have their children baptized;" and the novelty was punished by a heavy mulct. The freedom of the forests favored originality of thought; in spite of legislation, men listened to the voice within themselves as to the highest authority; and Quakers continued to multiply. In September, 1663, Virginia, as if resolved to hasten the colonization of North Carolina, sharpened her laws against all separatists, punished their meetings by heavy fines, and ordered the more affluent to pay the forfeitures of the poor. The colony that should have opened its doors wide to all the persecuted, punished the ship-master that received non-conformists as passengers, and threatened resident dissenters with banishment. John Porter, the burgess for Lower Norfolk, was expelled from the assembly, "because he was well affected to the Quakers."

The legislature was equally friendly to the power of the crown. In every colony where Puritanism prevailed, there was a uniform disposition to refuse a fixed salary to the royal governor. Virginia, in 1658, when the chief magistrate was elected by its own citizens, had voted a fixed salary for that magistrate; but the measure, even then, was so little agreeable to the people that its next assembly repealed the law. In 1662, the royalist legislature, by a permanent imposition on all exported tobacco, established a perpetual revenue for the purpose of well paying the royal officers, who were thus made independent of colonial legislation. From that epoch, the country was governed according to royal instructions, which did indeed recognise the existence of colonial assemblies, but offered no guarantee for their continuance. The permanent salary of the governor of Virginia, increased by a special grant from the colonial legislature, exceeded the whole annual expenditure of Connecticut; but Berkeley was dissatisfied. A thousand pounds a year would not, he used to say, "maintain the port of his place; no government of ten years’ standing but has thrice as much allowed him. But I am supported by my hopes that his gracious majesty will one day consider me."

All branches of the judicial power were appointed, directly or indirectly, by the crown. In each county eight unpaid justices of the peace were commissioned by the governor during his pleasure. These justices held monthly courts in their respective counties. The governor himself and his executive council constituted the highest court, and had cognizance of all classes of causes. Was an appeal made to chancery, it was but for another hearing before the same men; and only a few years longer were appeals permitted from the governor and council to the assembly. The place of sheriff in each county was conferred in rotation on one of the justices for that county.

The county courts, thus independent of the people, possessed and exercised the arbitrary power of levying county taxes, which, in their amount, usually exceeded the public levy. This system proceeded so far that the commissioners of themselves levied taxes to meet their own expenses. In like manner, the self-perpetuating vestries made out their lists of tithables, and assessed taxes without regard to the consent of the parish. These private levies were unequal and oppressive; were seldom, it is said never, brought to audit, and were, in some cases at least, managed by men who combined to defraud the public.

A series of innovations gradually effected the overthrow of the ancient system of representation. By the members of the first assembly, elected after the restoration for a period of two years only, the law, which limited the duration of their legislative Service, and secured the benefits of frequent elections and swift responsibility, was, in 1662, "utterly abrogated and repealed." The parliament of England, chosen on the restoration, was not dissolved for eighteen years; the legislature of Virginia showed its determination to retain power for an indefinite period. Meantime, "the people, at the usual places of election," could not elect burgesses, but only present their grievances to the adjourned assembly.

The pay of the burgesses had been defrayed by their respective counties; and was thus controlled by their constituents. The self-continued legislature, in a law which fixed both the number and the charge of the burgesses, established the daily pay of its own members who had usurped an indefinite period of office, not less than that of its successors, at an amount of tobacco of the value of nine dollars in coin. The burden was intolerable in a new country, where at that time one dollar was equal at least to four in the present day. Discontent was increased by the exemption of councillors from the levies.

The freedom of elections was further impaired by "frequent false returns" made by the sheriffs. Against these the people had no redress, for the sheriffs were responsible neither to them nor to officers of their appointment.

No direct taxes were levied in those days except on polls. Berkeley, in 1663, had urged "a levy upon lands, and not upon heads." If lands should be taxed, none but landholders should elect the legislature, answered the assembly; and added: "The other freemen, who are the more in number, may repine to be bound to those laws they have no representations to assent to the making of. And we are so well acquainted with the temper of the people that we have reason to believe they had rather pay their tax than lose that privilege."

But the system of universal suffrage could not permanently find favor with a usurping assembly which labored to reproduce in the new world the inequalities of English legislation. It was discovered that "the usual way of chusing burgesses by the votes of all freemen" produced "tumults and disturbance," and would lead to the "choyce of persons not fitly qualified for so greate a trust." The restrictions adopted in England were cited as a fit precedent for English colonies; and, in 1670, it was enacted that "none but freeholders and housekeepers shall hereafter have a voice in the election of any burgesses." The majority of the people of Virginia were disfranchised by the act of self-constituted representatives.

The unright holders of legislative power in the Old Dominion took care to do nothing for the culture of its people. "The almost general want of schools for their children was of most sad consideration, most of all bewailed of the parents there." "Every man," said Sir William Berkeley, in 1661, "instructs his children according to his ability;" a method which left the children of the ignorant to hopeless ignorance. "The ministers," continued Sir William, "should pray oftener and preach less. But, I thank God, there are no free schools nor printing; and I hope we shall not have, these hundred years; for learning has brought disobedience and heresy and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both."

An assembly by its own vote continuing for an indefinite period at the pleasure of the governor, and decreeing to its members extravagant and burdensome emoluments; a royal governor, whose salary was established by a permanent system of taxation; a constituency restricted and diminished; religious liberty taken away almost as soon as it had been won; arbitrary taxation, in the parishes by close vestries, in the counties by uncontrolled magistrates; a hostility to popular education and to the press—these were the changes which, in a period of ten years, had been wrought by a usurping government.

Meantime, the beauty and richness of the province were becoming better known. Toward the end of May, 1670, the governor of Virginia sent out an exploring party to discover the country beyond the mountains, which, it was believed, would open a way to the South sea. The Blue Ridge they found high and rocky, and thickly grown with wood. Early in June they were stopped by a river, which they guessed to be four hundred and fifty yards wide. It was very rapid and full of rocks, running, so far as they could see, due north between the hills, "with banks in most places," according to their computation, "one thousand yards high." Beyond the river they reported other hills, naked of wood, broken by white cliffs, which in the morning were covered with a thick fog. The report of the explorers did not destroy the confidence that those mountains contained silver or gold, nor that there were rivers "falling the other way into the ocean." In the autumn of the next year the exploration of the valley of Kanawha was continued.

The restoration of Charles II was to Virginia a political revolution, reversing, in the interests of monarchy, the principles of popular and religious liberty, and the course of humane legislation on which she had entered during the period of the republic. It seemed to have gained a title to the favor of the king, and yet they found themselves more shamelessly neglected than any one of the more stubborn and less loyal colonies. Their rights and their property were unscrupulously trifled away by the wantonly careless and disreputable exercise of the royal prerogative. In 1649, just after the execution of Charles I, during the despair of the royalists, a patent for the Northern Neck, that is, for the country between the Rappahannock and the Potomac, had been granted to a company of cavaliers as a refuge. About nine years after the restoration, this patent was surrendered, that a new one might be issued to Lord Culpepper, who had succeeded in acquiring the shares of all the associates. The grant was extremely oppressive, for it included plantations which had long been cultivated. But the prodigality of the king was not exhausted. To Lord Culpepper, one of the most cunning and most covetous men in England, at the time a member of the commission for trade and plantations, and to Henry, earl of Arlington, the best-bred person at the royal court, father-in-law to the king’s son by Lady Castlemaine, ever in debt exceedingly, and passionately fond of things rich, polite, and princely, he gave, in 1673, "all the dominion of land and water called Virginia," for the term of thirty-one years.

The usurping assembly, composed in a great part of opulent landholders, was roused by these thoughtless grants; and, in September, 1674, Francis Moryson, Thomas Ludwell, and Robert Smith, were appointed agents to sail for England, and enter on the difficult duty of recovering for the king the supremacy which he had so foolishly dallied away. "We are unwilling," said the assembly, "and conceive we ought not to submit to those to whom his majesty, upon misinformation, hath granted the dominion over us, who do most contentedly pay to his majesty more than we have ourselves for our labor. Whilst we labor for the advantage of the crown, and do wish we could be yet more advantageous to the king and nation, we humbly request not to be subjected to our fellow-subjects, but, for the future, to be secured from our fears of being enslaved." Berkeley’s commission as governor had expired; the legislature, which had already voted him a special increase of salary, and which had continued itself in power by his connivance, solicited his appointment as governor for life.

The envoys of Virginia were instructed to ask for the colony the immunities of a corporation which could resist further encroachments, and, according to the forms of English law, purchase of the grantees their rights to the country. The agents fulfilled their instructions, and asserted the natural liberties of the colonists.

We arrive at the moment when almost for the last time the old spirit of English liberty, such as had been cherished by Sir Edwin Sandys and Southampton and Ferrar, flashed up in the government of the Stuarts. Among the heads of the charter which the agents of Virginia were commanded by their instructions to entreat of the king, it was proposed "that there should be no tax or imposition laid on the people of Virginia but by their own consent, expressed by their representatives in assembly as formerly provided by many acts." "This," wrote Lord Coventry, or one who expressed his opinion, "this I judge absolutely necessary for their well-being, and what in effect Magna Charta gives; and besides, as they conceive, will secure them from being subject to a double jurisdiction, viz., the ]awes of all English parliament where they have noe representatives." The subject was referred by an order in council to Sir William Jones and Francis Winnington, the attorney and solicitor general; and, in their report of the twelfth of October, 1675, they adopted the clause in its fullest extent, with no restriction except the provision "that the concession bee noe bar to any imposition that may bee laid by acts of parliament here," that is, in England," on the commodities which come from that country." At Whitehall, on the nineteenth of November, this report was submitted to the king in council, who declared himself inclined to give his subjects in Virginia all due encouragement; and directed letters-patent to be prepared confirming all things in the report. The charter was prepared as decreed, and, on the nineteenth of April, 1676, it was ordered by the king in council "that the lord chancellor doe cause the said grant to pass under the great seale of England accordingly." In the progress of their suit, the agents of Virginia were thankful for the support of Coventry, whom they extolled as one of the worthiest of men. They owned the aid of Jones and Winnington; and they had the voices "of many great friends," won by a sense of humanity, or submitting to be bribed. But a stronger influence was secretly and permanently embodied in favor of a despotic administration of the colonies, with the consequent chances of great emoluments to courtiers. On the thirty-first of May, the king in council reversed his decree, and ordered that "the lord high chancellor of England doe forbeare putting the great seale to the patent concerning Virginia, notwithstanding the late order of the nineteenth April last past."

The irrevocable decision against the grant of a charter was made before the news reached England of events which involved the Ancient Dominion in gloom.