University of Virginia Library

CHAPTER XXXV

INSTITUTIONAL CONDITIONS

The parish was the local unit in the administration of the
religious concerns of the community. Such a unit was often
spread over so wide an area as to give rise to the complaint
that the services in its church were neglected. In 1661, there
were fifty parishes in Virginia, but, through consolidation,
they had, by 1700, fallen off to forty-nine, in spite of the fact
that the frontier had been pressed out so far on all sides. The
management of each parish's affairs was in the hands of a
body known as the vestry, which was composed of the first
men of the community. Chosen by the people, they were truly
representative of the people, except during the period of Berkeley's
autocracy. They elected the clergymen, laid the parish
levy to meet the parochial charges, presented all persons who
followed a profane and ungodly life, or slighted their religious
duties; kept the church edifice in repair; provided for orphans;
and called attention to every case of bastardy or extreme poverty.
Their principal agents were the church-wardens, who
were chosen from among their own number, and who, in turn,
were assisted by two officers known as sidesmen.

The first religious services held in Virginia were held at
Jamestown under a sail cloth. The first church was built of
roughly hewn plank or unhewn logs, in the shape of a barn,
and its roof was made up of rafts, sedge, and dirt. The whole
structure rested on crotchets. The majority of the edifices
were constructed of wood; but there were a few made of brick.
All had been erected by means of a parish levy or private
donations. The plate and ornaments belonging to many of the
congregations were both handsome and costly, and, as a rule,

had been the gifts of wealthy communicants. The church
building was situated at some convenient spot; and near it a
graveyard had been laid off.

So far as known, not a clergyman of the seventeenth
century was a native of Virginia. Most of them had been born
in England; a few in Scotland. The demand for ministers of

the Gospel was never full met,—in 1650, a reward was offered
by the Assembly to every ship-master who would bring over a
clergyman; at times, a special messenger was sent to England
to obtain incumbents for the vacant pulpits; or they were procured
by earnest letters addressed to the Bishop of London.
Parishes were often supplied by deacons. The commissary
who represented the Bishop towards the end of the century
could neither ordain nor confirm,—his duty was confined to
visitations and making recommendations. The right of selection
and presentation asserted and enforced by the vestries
was formally confirmed by an Act of Assembly in 1643. They
next usurped the right to appoint the clergymen from year to
year; a step that made the occupants of the pulpits dependent
on the good will of their congregations and thus indirectly
assured their good behavior.

In 1623, the salary of an incumbent consisted of ten pounds
of tobacco and a bushel of corn for every tithable in his parish.
His remuneration fluctuated with the rise and fall in the value
of each of these commodities. By 1695, the amount had been
fixed at sixteen thousand pounds,—a sum that ranged in purchasing
power from eighty to one hundred pounds sterling,—
and in addition, he was granted the use of a glebe and a rectory.
Some of the clergy were in possession of good estates, either
by inheritance or through their own providence,—the inventory
of Rev. Thomas Teakle, for instance, fell little short of
fifty thousand dollars in modern values. In character, the
clergy did not sink below the standard of conscientiousness
observed in the same class in England; and as a rule, they were
graduates of English universities, and of excellent social connections
in their native country.

Severe penalties were imposed for a denial of the existence
of the Deity or of the Trinity, or for the assertion that the
Christian religion was not of divine origin. Atheism was less
frequently noted than the belief in witchcraft; but the Colony's
annals were not stained by bloodshed, as in Massachusetts, in
the suppression of sorcery. The harshest punishment was a
flogging or a ducking.[1]

Popular instruction in the modern sense did not, owing to
the dispersal of the plantations, take root in Virginia; its communities,
however, were not lacking in a public school here
and there; and there were numerous private schools. Some
of the wealthy citizens sent their youthful sons and daughters

overseas for an education, but the risks of the voyage, the
length of the separation, and the fear of sickness during the
absence, made it seem to most parents preferable to look for
the desired instruction in the Colony. When the planter's
family was a large one, the tutor employed by him was entirely
occupied with the teaching of his children alone, but in many
cases the neighbors' children participated in the lessons. Most
of these domestic tutors were natives of England; a few were
Huguenots; and, occasionally, they were servants under indenture
who had acquired a respectable culture. The children,
after leaving the private tutor, sought instruction of a higher
grade in the old field school which usually occupied a central
site in the neighborhood. The teacher here was generally the
incumbent of the nearest pulpit,—a man who had been trained
in one of the foremost English universities. The next step,
towards the end of the century, was to matriculate in the College
of William and Mary.

An endowed free school was established by Benjamin
Symmes about 1634-5, the earliest in the history of America;
and his example was followed by Thomas Eaton. These two
schools, which enjoyed a good income, were subject to the
supervision of the most experienced men in their several communities.
There were at least five other similar schools in
different parts of Virginia. The existence of these seven free
foundations was a complete refutation of Berkeley's groundless
and senseless assertion that the Colony possessed no
schools of that character.

Previous to 1680, there does not seem to have been a single
printing press in Virginia, but in the course of that year,
such a press was imported by John Buckner. The large number
of volumes in the principal residences indicates that the
planters were not indifferent to the recreation of reading.
Their interest in books was revealed in the numerous gifts of
special volumes which were recorded in their wills, and also
by the very respectable collections so often listed in their
inventories. These collections sometimes contained such a

number and variety of titles as would have made them private
libraries of importance in any age. Not an inconsiderable
proportion of the books were printed in the Latin or Greek
language, and were copies of celebrated ancient classics. Many
of the volumes related to the subjects of history, biography,
and belles-lettres; others bore upon moral subjects; and others
still on law or medicine, divinity or seamanship.

From the beginning, there was a determination to maintain
both the spirit and the letter of the English law in Virginia. All
laws adopted in the Colony in opposition to English common
or statutory law had their origin in local convenience or economy.
They were radically different only in a few cases. The
Acts of Assembly were binding until formally annulled by
the King or repealed by the body itself.

The courts that interpreted the law consisted of the Magistrate's
Court, the Monthly or County Court, the General
Court, and the General Assembly. In the enforcement of local
justice, the county court was the most important of these
tribunals. This court was instituted as early as 1618 before
a single shire had been created. By that time, it had become
inconvenient to try every case in the General Court. The justices
were drawn from the body of the most respected citizens
in the community, and owed their appointment to the governor
of the Colony. Their number was generally limited to eight;
no salary was paid to them; nor were there any perquisites of
value growing out of their position. They were always jealous
of the dignity of the bench,—permitted, for instance, no
smoking of pipes or wearing of hats in the court-room, and
punished severely any drunkenness exhibited in their official
presence. The court-room was generally a large apartment
well lighted at every season and well heated in winter, with a
high platform for the seats of the judges and a balustrade to
restrain the pressure of the spectators.

The jurisdiction of the court,—which was both civil and
criminal,—extended over the ground covered by all the higher
courts of England, whether in common law or chancery, with

the right of appeal to the General Court. The procedure followed
in a general way the recognized English precedents, but
is said to have disregarded "unnecessary impertinence of form
or nicety," and avoided all the "trickery and foppery of the
law." Besides the guidance of text-books and Acts of Assembly,
the justices enjoyed the advice of trained attorneys, among
whom the clerk of the court was not the least important. In
1645-6, the practicing lawyer was barred from the court-room,
but in a few years he forced his way in again as indispensable,
and was not afterwards subjected to expulsion. By 1680, the
bar of the Colony possessed numerous members of ability and
learning,—like William Sherwood and Arthur Spicer, for
instance,—who were active in their profession alone, and who
owned law libraries of great value.

In Virginia, the number of offenses punishable with death
was so small as to be in striking contrast with the list of those
so punishable in England, where three hundred led to the gallows.
The simplest sentence was condemnation to the stocks;
the next, to the ducking stool, reserved, as a rule, for witches
and termagants; the next, to the lash. Some misdemeanors
were expiated by the guilty person appearing in a white sheet
in the church at the hour of service, or by kneeling in the
presence of the court. Murderers and pirates were tried by
special courts known as Courts of Oyer and Terminer.

The highest tribunal was the General Court, which convened
at least four times each year. Its members embraced
the governor and his council. The councillors belonged to the
same wealthy and responsible class of planters as the justices
of the county courts. While they did not pretend to be trained
lawyers, they were nevertheless men of enlarged experience
of life; were familiar with all the conditions prevailing in the
Colony; and had already sat on the county bench. The proceedings
were carried on without formal pleadings. The jurisdiction
of this court was both original and appellate. The
original jurisdiction was both civil and criminal,—civil where
the amount involved in a case exceeded a certain high figure;

criminal where there had been a loss of life or limb. The appellate
related to cases that had come up from the county courts,
and these often pertained to a question of personal right.
During Culpeper's term as governor, the right of appeal from
the General Court to the General Assembly was taken away by
the English Government, which desired to diminish the burgesses'
importance. It was not until 1697-8 that an admiralty
court was established. A separate court of chancery erected
by Effingham was soon abolished.

The military system of the Colony was based altogether
on a militia. The only corps in regular service was the rangers,
which was a very small body. All male freemen in Virginia
below a definite age were subjected to military training; in
1639, the indentured servants were also summoned to the muster
field; but as the turbulent elements among them increased
in number, it was decided to be unsafe to drill them. Moreover,
the maneuvres occurred at a season when the tobacco
plant required the closest scrutiny, and at that time, the laborers
could only be withdrawn from the fields at a heavy pecuniary
loss. The negro slave was always exempted. In 1671, it
was estimated that at least eight thousand horsemen might, by
extraordinary exertions, be enrolled in the ranks; ten years
later, this number is thought to have increased to fifteen thousand;
but this last enumeration probably included the men then
serving under indentures. In 1700, there were about eighteen
thousand militiamen.

In the early history of the Colony, all the military officers
seemed to have been appointed by the commanders or lieutenants
of the counties; and the latter apparently supervised
the drills also, besides acting as custodians of the supplies of
arms and ammunition. After the Restoration, the country
was divided into four military districts, each subject to the
control of a major-general, assisted by two adjutants. In
every county of each district, there was a regiment of foot
commanded by a colonel and subordinate officers; and in some
of the counties there was also a troop of horse. The governor

was the commander-in-chief. The arms relied on by the
soldiers for attack or defense were snaphaunce pieces, matchlocks,
muskets, pistols, petronels, swords, rapiers, and daggers.
In the several counties, at a later period, there was a
commissioner to furnish the shot and powder needed by its
militia. This had been paid for by the county.

The muster was held on the holidays of Easter, Whitsuntide,

and Christmas, should the weather be favorable; and in
the interval, every captain of horse or foot was required to
drill his troop or company at least once in the course of ninety
days. At the end of the century, a general muster was held in
each county once a year, while special musters were held at
least four times. Most of the wars were waged with the
Indians, and were fought in the woods without regard to the
lessons of the ordinary drill; but there is reason to think that
provision was made for special training in this peculiar kind
of battle. The commonest of all aggressive military operations
was known as the "march" against the savages. Such
an expedition was organized by a group of counties entering
into a military association, which was subject to the supervision
of a council of war. The expense of each expedition was
met by a special tax. The guns, shot, and powder, as well as
the horses, saddles, meat, and bread, were impressed at current
prices; and during the soldiers' absence, their fields of
tobacco and maize were worked by the neighbors. Whenever
the entire Colony was threatened with an Indian invasion, the
General Assembly alone adopted the measures necessary for
repelling it. Previous to 1680, the militia could be called out in
such an invasion only by the governor's order; but afterwards
the right was bestowed in an emergency on certain officers in
each military district without first obtaining permission from
Jamestown.

In the beginning, the first barrier raised against Indian
attack was the palisade; but this in time was abandoned in
favor of small forts placed at strategic points. From these
forts, the expeditions started out; and thither they retreated
in case of failure. They were, in dangerous times, always
occupied by trained garrisons; but by 1682, the forts then in
existence had been allowed to fall into disrepair and the companies
of soldiers formerly holding them had been disbanded.
In the place of the latter, companies of light troops known as
rangers were organized by the General Assembly to patrol the
frontiers. These soldiers were selected from the militia of the
outlying counties, which were always the first to feel the
Indian impact; and so soon as they detected a trace of the presence
of the prowling foe, a messenger was despatched by them
to the nearest military officer for immediate assistance.

The precautions to meet the assaults of a foreign foe were
more costly but less effective. The defenses consisted of forts
erected on the banks of the principal streams; and it was
intended that each of them should be so eligibly situated that
every ship in the neighboring waters could quickly find full
protection under its guns. As the intervals of peace were

protracted in length, these fortifications were rarely in a state
even of partial repair. Indeed, for many years the heavy
ordnance belonging to them reposed in the contiguous sand,
only to be lifted up to a new platform by some zealous governor,
to remain there until this platform too had been allowed
to rot. The forts at Point Comfort, Tyndall Point, and Jamestown,
were the most important of all; and even they had a
precarious existence, chiefly on account of the expense of maintaining
them continuously. A more efficient instrument was
the guardship, which was always stationed on the coast; but
there were emergencies in which, as we have seen, this man-of-war
offered no real resistance to the enemy.

The principal political officer of the Colony was the governor.
In his absence, a deputy or lieutenant-governor or the
President of the Council filled his seat and performed his
duties. As a rule, his term continued until his successor was
appointed, and this might occur after a short or after a long
incumbency of the position. His powers were precisely defined
by the clauses of his commission, and always covered a broad
ground. During the seventeenth century, there was no single
mansion occupied by each governor in turn. Berkeley resided
at Green Spring, while his successors passed their time in
the homes of wealthy planters, or in lodgings in Jamestown,
for the rent of which, one hundred and fifty pounds sterling
was annually allowed. At first, the salary attached to the office
did not exceed one thousand pounds sterling; but that sum, as
we have already stated elsewhere, was subsequently increased
to two thousand pounds; and this was sometimes supplemented
by special gifts from the Assembly. Only one-half of
this sum, however, ever reached the pocket of a deputy or
lieutenant-governor.

The governor was assisted by a council composed of the
most prominent citizens of the Colony, who eagerly accepted
a seat in this body because of the numerous important offices
which accompanied it; for instance, they were members of the
upper house of Assembly and also of the General Court; but

it was as collectors of customs that they enjoyed the most
lucrative emoluments. For a long period, they were also
relieved of the heavy burden of taxation, with the single
exception of church dues. This privilege, however, was withdrawn
when they came to be paid a definite though small
remuneration for their services as councillors. Another office
of dignity was the Secretaryship of State, which was filled by
the King on the governor's recommendation. It was from
time to time occupied by men of great distinction in the
affairs of the community—men like John Rolfe, William
Claiborne, Richard Lee, Nicholas Spencer, and Ralph
Wormeley.

The principal legislative body was the House of Burgesses,
which was convoked by a writ of summons running in the
name of the governor, and addressed to the sheriff of each
county. In the beginning, the writ was read to the congregations
of the parishes by their respective clergymen at least
two Sundays in succession beforehand; but at the end of the
century, notice was given to all the householders individually
by the constables. In 1645, every freeman possessed the
right to vote; in 1654, all householders; but, in the following
year, the former regulation was restored—only to be again
repealed in 1670, on the ground that many of the voters, being
penniless, had no stake in the community. The suffrage in
that year was restricted to freeholders and householders—
which was no real hardship in a country where land was so
easily acquired and tenants so much valued. The Assembly
that carried out Bacon's views restored the former regulation
of unqualified suffrage, but, in 1684, the right to vote was for
the third time restricted. It was now confined to freeholders,
to the exclusion even of householders. It is probable that at
first the ballot was used; but, at a later period, the viva voce
method was adopted. The votes were originally cast at the
sheriff's dwelling-house; afterwards at the court-house.

The membership of the House was drawn for the most
part from the ranks of the first gentlemen in the Colony.

Each county furnished two representatives. Unlike their fellows
in England, they received a fixed remuneration for their
services, which, during certain periods of the Colony's history,
was so high as to cause popular discontent, although, in
theory, payment was made to cover the expenses of attendance
alone. There was a state-house previous to 1643. This was
destroyed by fire, and so was the second building. Another
was burned down by Bacon's order, and the structure that
was erected in its place also fell, in 1698, a prey to the flames
—the fourth to be destroyed in the same way. No other
was erected at Jamestown.

The officers of the Burgesses were the speaker, the clerk,
and the messenger. The proceedings were modeled on those
of the House of Commons. There were three great committees
upon which devolved the main transaction of business, and
their functions can be inferred from their names: the Committee
on Election Returns, the Committee on Propositions
and Grievances, and the Committee on Claims. No act of the
General Assembly—which was composed of the governor and
council sitting as the Upper Chamber and the Burgesses
sitting as the Lower—became law until it had been signed by
the governor. All the enactments were, at the end of the
session, forwarded to the King and Privy Council, who, on
receiving them, submitted them to the Board of Trade and
Plantations; and this Board, in its turn, referred all involving
a law question to the attorney general, and all involving a
question of revenue to the commissioners of the customs. If
the respective decisions of these officers were adverse to the
validity of some of the acts, the governor was required to
issue a proclamation repealing these—otherwise all became
a part of the permanent statutes of the Colony.

We have already alluded incidentally in previous chapters
to the exclusive right of the Assembly to impose taxes, and
the failure of all attempts to deprive its members of this
right. The tax levies were three in number, namely, the
parish, the county, and the public, according to the character

of the expenses which had to be met. The parish levy was
laid by the vestry; the county, by the justices of the county
court; the public, by the General Assembly. The parish taxes
were devoted to the building and repair of churches, the
purchase of glebes, and the payment of the clergy's salaries
and similar charges; the county taxes, to the erection of
court-houses, stocks, whipping-posts, bridges, and the like, or
to awards for the destruction of wild animals, or to the
remuneration of the burgesses, and other performers of local
services; the public taxes, to all expenses approved by the
House Committee on Claims, such as the salaries of public
officials, repairs to the state-house, the cost of election writs,
the fees due numerous messengers, and the outlay in recovering
runaway servants. All these funds were raised by
practically one form of taxation, namely, taxation by the
poll. Taxation of land was deemed inadvisable because it
was already burdened with the quitrents; trade was exempted
because of the export duty on tobacco and of the English
customs, while personal property went free because the ownership
of livestock was thought to be precarious owing to
the wide forest areas. In taxing the tithable, the chief source
of the planter's wealth was mulcted; and as the slaves
increased in number, the burden fell more and more on the
rich. The taxes were collected by the sheriffs.

The only other form of direct taxation was the quitrent.
Its amount was one shilling for every fifty acres that had
been patented and occupied. Vast areas of land in its
primæval state owned by affluent colonists paid no tax of
any kind. Among the indirect taxes were the duty on liquors,
the impost on furs, and the charge laid on all iron exported
during certain periods. But the most profitable of all these
indirect taxes was the duty of two shillings on every hogshead
of tobacco shipped out of the country. This was collected in
Virginia. And so was the duty of one penny the pound
imposed on the same commodity sent off to the other colonies.
The tonnage and head taxes payable on incoming ships and

arriving settlers was, from year to year, of considerable
proportions. Additional sources of income were found in
fines, forfeitures, and compositions for escheated plantations
or chattels; and, finally, in the proceeds from the sales of
public lands, when it became allowable to purchase such lands
with coin or tobacco.