Statute Law in Colonial Virginia: Governors, Assemblymen, and the Revisals That Forged the Old Dominion

By Adam J. Davis

Between 1632 and 1748, Virginia’s General Assembly revised the colony’s statutes seven times. These revisals provide an invaluable opportunity to gauge how governors, councilors, and burgesses created a hybrid body of colonial statute law that would become the longest strand in the American legal fabric. In Statute Law in Colonial Virginia, Warren Billings presents a series of snapshots that depict the seven revisions of the corpus juris the General Assembly undertook. In so doing, he highlights the good, the corrupt, and the loathsome applications of broad legislative authority throughout the colonial era. Each revision was built on prior written law and embodies the members’ legal knowledge and statutory craftsmanship, revealing their use of an unbridled discretion to further the interests they represented. Statutes undergirded Virginia’s evolving legal culture, and by examining these revisals and their links, Billings casts light on the hybrid nature of Virginia statute law and its relation to English laws.

• Language: English
• Publisher: University of Virginia Press
• Release date: Feb 22, 2021
• ISBN: 9780813945651

Adam J. Davis

Warren M. Billings is Distinguished Professor of History Emeritus at the University of New Orleans. He has written extensively about seventeenth-century Virginia and early Louisiana law. He is editor of The Papers of Sir William Berkeley, historian of the Supreme Court of Louisiana, a member of the Federal Jamestown 400th Commemoration Commission, and chair of the Jamestown Rediscovery Project Advisory Board.

Book preview

STATUTE LAW IN COLONIAL VIRGINIA

EARLY AMERICAN HISTORIES

Douglas Bradburn, John C. Coombs, and S. Max Edelson, Editors

Statute Law in Colonial Virginia

Governors, Assemblymen, and the Revisals That Forged the Old Dominion

Warren M. Billings

UNIVERSITY OF VIRGINIA PRESS

Charlottesville and London

University of Virginia Press

© 2021 by the Rector and Visitors of the University of Virginia

All rights reserved

First published 2021

Library of Congress Cataloging-in-Publication Data

Names: Billings, Warren M., author.

Title: Statute law in colonial Virginia : governors, assemblymen, and the revisals that forged the Old Dominion / by Warren M. Billings.

Description: Charlottesville : University of Virginia Press, [2021] | Includes bibliographical references and index.

Identifiers: LCCN 2020024741 (print) | LCCN 2020024742 (ebook) | ISBN 9780813945644 (hardcover) | ISBN 9780813945651 (epub)

Subjects: LCSH: Virginia. General Assembly—History—17th century. | Virginia. General Assembly—History—18th century. | Statutes—Virginia—History—17th century. | Statutes—Virginia—History—18th century. | Legislation—Virginia—History—17th century. | Legislation—Virginia—History—18th century. | Virginia—History—Colonial period, ca. 1600–1775.

Classification: LCC KFV2478 .B55 2021 (print) | LCC KFV2478 (ebook) | DDC 349.75509/032—dc23

LC record available at https://lccn.loc.gov/2020024741

LC ebook record available at https://lccn.loc.gov/2020024742

Frontispiece: Title page to Hening’s Statutes at Large (Wolf Law Library, William & Mary Law School)

Cover art: Elizabeth O’Neill Verner, The governor’s palace Williamsburg, pencil drawing, 1936.

Prints & Photographs Division, Library of Congress

© 2020 Estate of Elizabeth O’Neill Verner

Licensed by VAGA at Artists Rights Society (ARS), NY

For Charlotte Warren Schafer

CONTENTS

Acknowledgments

Preface

Author’s Note

1. Beginnings and the Acts of 1623/24

2. Sir John Harvey and the Revisal of 1632

3. Sir William Berkeley and the Revisal of 1643

4. A New Constitutional Order: The Revisals of 1652 and 1658

5. Safeguarding Virginia’s Autonomy: Sir William Berkeley, Francis Moryson, Henry Randolph, and the Revisal of 1662

6. The Long Road to the Revisal of 1705

7. Sir William Gooch’s Gift: The Revisal of 1748

8. Endings

Notes

Bibliographic Essay

Index

ACKNOWLEDGMENTS

Richard Holway and the late E. Lee Shepard offered encouragement at an early stage of my research. Mary Sara Bilder, Carol Dunlap Billings, W. Hamilton Bryson, Marilyn Campbell, Carl Childs, Mark K. Greenough, John Ruston Pagan, Brent Tarter, Linda K. Tesar, and Nadine Zimmerli commented on various iterations of the manuscript. The Colonial Williamsburg Foundation awarded me a Jack Miller Fellowship, which enabled the research that I undertook in the John D. Rockefeller Jr. Library in 2018 and 2019. The library staff were most welcoming and uncommonly helpful while I was in residence. Thanks to John McClure at the Virginia Museum of History and Culture and to Sandra Gioia Treadway, Trenton Hizer, and Audrey McElinney at the Library of Virginia for their assistance. Thanks as well to the Wolf Law Library at the William & Mary Law School for permission to reprint the title page to William Waller Hening’s Statutes at Large as the frontispiece to the book.

I dedicate the book to my granddaughter Charlotte Warren Schafer.

PREFACE

An idea for this book came to me some years ago when I wrote an article about southern colonial legal culture for the Journal of Southern History.¹ I made the point in that article that statutes constituted a vital element in the legal cultures of the settler societies that sprang up between the 1560s and the 1750s from the Chesapeake Bay to Florida and the Gulf Coast. Their inspirations, their designs, and their relationships to the laws of the mother countries figured prominently, if differently, in the development of each colony. They were, I argued, obscure subjects that ought to be studied more methodically than had been the case heretofore. The idea stuck, and this book is the realization of how I worked it out. Virginia seemed an appropriate place to test the premise. Its General Assembly was the first representative legislature in the Western Hemisphere whose members were the first legislators to begin routines for enacting statutes that defined their colony and regulated its people.

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Acts of the colonial Virginia General Assembly are compelling in themselves for an understanding of a legal environment that was always in stages of being and becoming. When first fashioned they were few, but as the Old Dominion grew from a tiny outpost to the largest province in British North America, the number of statutes expanded until they regulated most facets of the colony’s internal affairs. Products of the times and social conditions that brought them into being, they arose from a blend of necessity with memory, borrowing, and inventiveness. They spoke to their creators’ outlook on the right order of things, which was upheld through the good, the bad, and the ugly applications of an extraordinary legislative power.

Historians have written copiously about these matters in relation to the adaptation of English law to a Virginia setting, although none of them ever attempted a comprehensive enquiry into how the acts came to be during colonial times.² Arguably that is because the long arc of the colony’s statutory evolution has always been difficult to re-create. Much about the origins of the acts—political upheavals, royal intervention, settler petitions, gubernatorial communications, legislative journals, draft bills, higher court records—was lost to carelessness or burned to smoke and ash in the Richmond fire of April 1865. Thanks to William Waller Hening (1767–1828) the acts themselves escaped a similar fate.

Hening identified most of the acts and compiled them into The Statutes at Large; Being a Collection of all the Laws of Virginia, From the First Session of the Legislature in the Year 1619, which he published in a thirteen-volume set between 1809 and 1823. The importance he ascribed to the statutes as a guide to understanding colonial Virginia underscored the observation of his contemporary, the English polymath Dr. Joseph Priestley, that The laws of a country are necessarily connected with every thing belonging to the people of it; so that a thorough knowledge of them, and of their progress, would inform us of everything that was useful to be known about them.³ Hening went far to reconcile his sources. He incorporated supplementary documents that no longer exist elsewhere, and he annotated everything without editorial extravagance. A purist when it came to textual fidelity, nothing was more inappropriate to him than changing the spelling of the words, to suit the fluctuations of a living language. That approach, he insisted, would be as improper as an artist who copied the likeness of a hirsute Turk with his mustachoes, [but gave] him the beardless face of a modern American Indian. Constraints of time, difficulties of travel, and shortages of money stymied his quest for thoroughness and frustrated his goal of producing at the end of the work . . . a correct history of our several laws from the earliest period to the present time. Those limitations do not minimize his achievement, which remains a model of documentary editing. Hening’s great work stands as the major compilation of the acts of the Assembly adopted between 1619 and 1792, although it has been repeatedly augmented by finds that have been unearthed since the 1820s.⁴

The Statutes at Large and its supplements provide a fund of documentary evidence about the colony’s legal order that is not to be found elsewhere. These collections share an attribute that can act as an avenue around the stumbling block created by the 1865 fire: they are the sole record of seven occasions when the General Assembly overhauled the written corpus juris. The first revisal happened in 1632; the last in 1748. Each was undertaken at a particular moment. Each was linked to the singular circumstances that begot it. Each affords an insight into legislative proceedings that built on prior written law. Each embodied the Assembly members’ legal knowledge and statutory craftsmanship. Each shows the members’ use of their unbridled discretion to further the interests of the grandees of government they represented.⁵ Each notes reactions of the home government. Collectively, they resemble a series of snapshots that depict the ongoing construction of Just laws for the happy guiding and governing of the people.⁶ Each revisal resulted from a legislative process that abolished the existing statutes in force and replaced them. These replacements then constituted a new corpus juris, and so it continued until the next revisal annulled it. In other words, Virginia legislators came to equate revisals with codes, which is an equation that endures to this day.⁷

Losses of personal papers bar deep analyses of the various hands that members were dealt and played in the process. In those instances where journals of the House of Burgesses and the Council of State exist in quantity, it is possible to follow the course of the revisals from beginning to end, but only in a general way. They disclose the introduction of the draft acts, their referrals to committees of the whole, and their eventual passage. Occasionally they even contain limited indications of the political alignments of the members in both houses. The destruction of virtually all the higher court archives prevents exploring how the revisals were interpreted and how those interpretations promoted statutory revisions.

The very first overhaul, the Revisal of 1632, grew out of the uncertainties bred by the downfall of the Virginia Company of London and King Charles I’s proclaiming the colony a royal dominion led by Governor Sir John Harvey. The revisal responded to settler concerns about religion, food, defense, land, labor, tobacco, and governance—local concerns that remained at the heart of legislative agendas deep into future years. Moreover, the method of its making established a precedent for the later overhauls into the eighteenth century.

By the 1640s, Virginia’s features as an unequal society based on tobacco, bound laborers, and commerce around the rim of the Atlantic were set and were now increasingly matters of written law. Frequent additions to the Revisal of 1632 had defined those traits in often contradictory or redundant ways that heightened the difficulties of administering the acts in force. The need for another renovation was in order. Governor Sir William Berkeley seized the moment and maneuvered the more wide-ranging Revisal of 1642 through a newly bicameral General Assembly, which he invented. The revised statutes left few areas of the colony’s polity untouched. They also symbolized the Assembly’s centrality as Virginia’s primary lawgiver and its members’ growing abilities as lawmakers.

The execution of King Charles I and the overthrow of the monarchy ushered in an interlude of republican rule that produced the next two revisals. Hurriedly cobbled together, the Revisal of 1652 established a constitutional order that centered authority in the House of Burgesses and ditched most of the acts adopted after 1643. Prepared in 1658, the second revisal improved on the first, but it set off a splenetic row between Governor Samuel Mathews Jr. and the House of Burgesses, which the members won with an impressive demonstration of legislative craftsmanship and adroit parliamentary choreography.

The return to royal government was the impetus for the Revisal of 1662. Deputy Governor Francis Moryson and Clerk of the House of Burgesses Henry Randolph drew it up at the behest of the restored Governor Berkeley, who also had it printed in London. Unquestionably, it was the most far-reaching of the seventeenth-century revised codes. It was a bold iteration of the relative autonomy the General Assembly had enjoyed from the 1620s, and it became the snapshot of the General Assembly at the peak of its ascendency as a little Parliament.

There would not be another overhaul until 1705. Royal intervention in the affairs of the General Assembly contributed to the forty-year interval between the two. So did the inability of the governors, councillors, and burgesses to agree on how to reform the statutes. Persistent prodding eventually resulted in an approach that modified past methods of redoing the corpus juris. That breakthrough cleared the way to the sixth revisal. The record of the Revisal of 1705 is more abundant than the others, which makes it the most detailed snapshot of all.

Lieutenant Governor Sir William Gooch inspired the Revisal of 1748. Unlike the other six, it was primarily a modernized version of the statutory status quo instead of a blueprint for sweeping structural reforms. Its review by royal officials provoked a rancorous quarrel between the General Assembly in Williamsburg and a revivified, authoritarian Board of Trade in London that threatened the scope of the Assembly’s legislative powers. The threat receded, but the Virginians began to see the home government’s management of colonial affairs in a new and revolutionary light.

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• • •

In spite of an immense accumulation of literature about early Virginia law, nothing re-created the sweep of its statutory development. This book does. Its analysis of the seven revisals offers a systematic, if limited, narrative of the General Assembly at work fulfilling the purpose of legislatures—legislating. It uncovers unparalleled insights for gauging how codes of statute law were created. Some of the snapshots offer more detail than others, but when seen in succession they portray the ways governors and assemblymen used them to forge the Old Dominion.

AUTHOR’S NOTE

Dates are Old Style, meaning they are rendered according to the ancient Julian calendar, which was ten days behind the Gregorian calendar that is in use today. The English began the year on 25 March, and it was therefore customary for them to write both years, that is, 1 January 1600/01, in the interval between 1 January and 24 March 1601. That usage is retained here, although 1 January is taken as the start of any given year. Quotations are regularized only to the extent that modern orthography is imposed on proper names; archaic abbreviations or symbols are spelled out; sentences begin with capitals and end in periods, question marks, or exclamation points; and use of i, j, u, and w conforms to modern practice. Everything else remains as found.

1

Beginnings and the Acts of 1623/24

Representatives gathered in the church at Jamestown on a sultry July day in 1619. Summoned by Governor Sir George Yeardley, they sat as a general Assemblie. Following instructions from the Virginia Company of London, they enacted laws that for the first time extended a measure of self-governance throughout the English settlements. Following that initial meeting, the General Assembly worked more or less as Company executives envisioned but its future and its authority fell into question after the Company bankrupted and Virginia became a royal dominion in 1625. The loss of the Company charter undercut the Assembly constitutionally whereas King Charles I’s failure to recognize it cast it in legal limbo as well and effectively left the colonists on their own. Seeking a measure of stability amid war with the Indians, Governor Sir Francis Wyatt and leading colonists in the General Assembly of February 1623/24 took it upon themselves to adopt a body of statutes to exert order across the English settlements. In so doing, they claimed an unbridled legislative authority and commenced the Assembly’s journey from a corporate adjunct to a little Parliament. The acts, which were meant as temporary measures, were foundational as they and the additions to them became the basis of the Revisal of 1632.

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• • •

Developing Jamestown turned out to be a more difficult undertaking than the investors in the Virginia Company could ever have imagined in 1607. It limped along unprofitably until it verged on collapse. All the while backers and colonists squabbled over a way forward. Company treasurer Sir Thomas Smythe (ca. 1558–1625); his principal ally Robert Rich, second earl of Warwick (1587–1658); and Sir Edwin Sandys (1561–1629) each headed factions with decidedly different visions of ways to make Virginia prosper. Even the Crown evinced an interest in Virginia’s survival because the burgeoning tobacco trade held the promise of replenishing the royal coffers. Sandys eventually outmaneuvered Smythe and Warwick and became treasurer. He scrapped the existing martial model of settlement in favor of one that would develop a diversified economy and transplant as much of an English commonwealth as conditions in Virginia would allow. To that end, in 1618, he set forth a scheme in a series of management documents.¹

Those papers reformed land tenures and promoted the production of staples. There were provisions for improvements to local administration, one of which substituted elements of English common law for the much-hated Lawes Divine, Morall and Martiall, a stern regime of military regulations that constituted Virginia’s earliest statute law.² To create a more palatable resident government, a new governor also received orders to convene a general assembly comprised of him, Company-appointed councillors of state, and representatives elected by the freemen of the colony. That body would sit annually. It was empowered to enact local laws, grounded in the Company’s corporate rights, that addressed local needs or implemented directives from London, any of which the governor might veto or Company officers might reject. That so-called Great Charter also authorized the Assembly to act as a court of justice from time to time.³

Sometime around 25 June 1619, Governor Sir George Yeardley issued writs to the freemen and Tenants, ordering them by pluralitie of voices to make election of two sufficient men from each settlement to meet with him and the Council of State as a "generall Assemblie. (These representatives would be called burgesses from that day until 1776 when their successors took the title of delegate," which is still in use.) Qualifications to vote or to sit in the Assembly were looser than those that applied in elections to the House of Commons. A candidate or an elector had only to be English, free, male, and above twenty-one years of age, and did not have to own or rent real estate.⁴

The General Assembly convened on 30 July 1619, at the Jamestown church, which was the only building in the colony big enough to accommodate large gatherings. Twenty burgesses, who represented eleven constituencies; six councillors of state; and the governor, comprised the body. We know little of the burgesses individually; most never sat in a subsequent Assembly, but more can be said about the councillors. Three of them, Francis West, Nathaniel Powell, and Samuel Maycock, had lived in Virginia for much of its first decade, and they were notable chiefly for their knowledge of matters military and their successes as colonizers. John Rolfe, the fourth councillor, had pointed the way to the colony’s eventual economic survival through tobacco culture. Whatever memory of him lingers now, however, has less to do with a weed than with his marriage to a young Indian woman the English knew as Pocahontas. The Reverend William Wickham is remarkable only because he was the first one of only three clerics who sat as a councillor of state before the American Revolution.⁵ Secretary of the Colony John Pory was the sixth councillor, and more can be told about him than anyone else.

Pory (bap. 1572–ca. 1636) came from people who sat much higher up the social ladder than all save Francis West. Educated at the University of Cambridge, he was one of those Jacobean wanderers the historian Alison Games styled cosmopolitans.⁶ That is to say, he was a well-traveled Englishman who traversed the globe in search of adventure, glory for God, king, country, and personal fulfillment. After going down from Cambridge, he assisted the Reverend Richard Hakluyt the Younger, that most influential of late Tudor publicists of English colonizing in the Americas, who aroused Pory’s own curiosity about exploring new worlds. By the early 1600s, Pory’s reputation for honesty, erudition, and diligence produced exceptional political connections and a seat in the House of Commons during the Parliament of 1604–1611. The latter mark distinguished him as one of only three seventeenth-century members of the General Assembly ever to sit in the Commons or the House of Lords. A pronounced weakness for drink neither dulled his wits unduly nor prevented Sir Edwin Sandys’s enemies from engineering Pory’s appointment as secretary of the colony in order to keep an eye on Governor Yeardley. Pory would be instrumental in launching the General Assembly before he returned to England in 1623, where he lived out his days as an intelligencer for his patrons.⁷

For his part, Governor Sir George Yeardley (bap. 1588–1627), was a son of a middling London merchant tailor. Like countless other British lads of his class, he shunned his father’s calling and in his case traded