Part 5 (1/2)
Under the provisions of the charter of 1606 Virginia had been, in all but form, a royal colony. The King had drawn up the const.i.tution, had appointed the Council in England, and had controlled their policies.
This charter had granted no semblance of self-government to the settlers. But it was declared ”They shall have and enjoy all the liberties, franchises, and immunities ... to all intents and purposes, as if they had been abiding and born, within ... this realm of England”.[135] This promise was not kept by the Kings of England.
Several of the provisions of the charter itself were not consistent with it. In later years it was disregarded again and again by the royal commissions and instructions. Yet it was of the utmost importance, for it set a goal which the colonists were determined to attain. Throughout the entire colonial period they contended for all the rights of native Englishmen, and it was the denial of their claim that caused them to revolt from the mother country and make good their independence.
Provision had also been made for trial by jury. James had decreed that in all cases the Council should sit as a court, but in matters of ”tumults, rebellion, conspiracies, mutiny, and seditions ... murther, manslaughter”, and other crimes punishable with death, guilt or innocence was to be determined by a jury of twelve. To what extent the Council made use of the jury system it is impossible to say, but Wingfield states that on one occasion he was tried before a jury for slander, and fined 300.[136]
The second charter had been granted in 1609. This doc.u.ment is of great importance because through it the King resigned the actual control of the colony into the hands of the Virginia Company. And although this did not result immediately in the establishment of representative government, it strengthened the hands of Sandys and made it possible for him to carry out his designs at a future date. Under this charter the Company might have set up liberal inst.i.tutions at once in Virginia, but conditions were not ripe, either in England or in America, for so radical a change.
In 1612 the third charter had been granted. This had still further strengthened the Company and made them more independent of the King. It gave them the important privilege of holding great quarterly meetings or a.s.semblies, where all matters relating to the government of the colony could be openly discussed. Still Virginia remained under the autocratic rule of Dale and Gates.
In 1617 or 1618, however, when the liberals were in full control of the Company, it was decided to grant the colonists the privilege of a parliament.[137] In April, 1618, Lord De la Warr sailed for Virginia to rea.s.sume active control of affairs there, bringing with him instructions to establish a new form of government. What this government was to have been is not known, but it was designed by Sir Edwin Sandys, and beyond doubt, was liberal in form.[138] Possibly it was a duplicate of that established the next year by Governor Yeardley. Most unfortunately, Lord De la Warr, whose health had been shattered by his first visit to Virginia, died during the voyage across the Atlantic, and it became necessary to continue the old const.i.tution until the Company could appoint a successor.[139]
In November, 1618, George Yeardley was chosen Governor-General of Virginia, and was intrusted with several doc.u.ments by whose authority he was to establish representative government in the colony.[140] These papers, which became known as the Virginia Magna Charta, were the very corner-stone of liberty in the colony and in all America. Their importance can hardly be exaggerated, for they inst.i.tuted the first representative a.s.sembly of the New World, and established a government which proved a bulwark against royal prerogative for a century and a half.
Governor Yeardley sailed from England January, 1619, and reached Virginia on the 29th of April. After some weeks of preparation, he issued a general proclamation setting in operation the Company's orders.
It was decreed, ”that all those who were resident here before the departure of Sir Thomas Dale should be freed and acquitted from such publique services and labors which formerly they suffered, and that those cruel laws by which we had so long been governed were now abrogated, and that now we were to be governed by those free laws which his Majesty's subjects live under in Englande.... And that they might have a hand in the governing of themselves, it was granted that a General a.s.sembly should be held yearly once, whereat were to be present the Governor and Counsell, with two Burgesses from each plantation freely to be elected by the inhabitants thereof; this a.s.sembly to have power to make and ordaine whatsoever lawes and orders should by them be thought good and proffittable for our subsistence.”[141]
The exact date of the election for Burgesses is not known.[142] The statement that the representatives were to be ”chosen by the inhabitants” seems to indicate that the franchise was at once given to all male adults, or at least to all freemen. ”All princ.i.p.all officers in Virginia were to be chosen by ye balloting box.” From the very first there were parties, and it is possible that the factions of the London Company were reflected at the polls in the early elections. The Magna Charta made provision for the establishment of boroughs, which were to serve both as units for local government and as electoral districts. No attempt was made to secure absolute uniformity of population in the boroughs, but there were no glaring inequalities. With the regard for the practical which has always been characteristic of Englishmen, the Company seized upon the existing units, such as towns, plantations and hundreds, as the basis of their boroughs. In some cases several of these units were merged to form one borough, in others, a plantation or a town or a hundred as it stood const.i.tuted a borough. As there were eleven of these districts and as each district chose two Burgesses, the first General a.s.sembly was to contain twenty-two representatives.[143]
The a.s.sembly convened at Jamestown, August 9th, 1619. ”The most convenient place we could finde to sitt in,” says the minutes, ”was the Quire of the Churche Where Sir George Yeardley, the Governor, being sett down in his accustomed place, those of the Counsel of Estate sate nexte him on both hands excepte onely the Secretary then appointed Speaker, who sate right before him, John Twine, the clerk of the General a.s.sembly, being placed nexte the Speaker, and Thomas Pierse, the Sergeant, standing at the barre, to be ready for any service the a.s.sembly shoulde comand him. But forasmuche as men's affaires doe little prosper where G.o.d's service is neglected, all the Burgesses tooke their places in the Quire till a prayer was said by Mr. Bucke, the Minister.... Prayer being ended,... all the Burgesses were intreatted to retyre themselves into the body of the Churche, which being done, before they were fully admitted, they were called in order and by name, and so every man tooke the oathe of Supremacy and entered the a.s.sembly.”[144]
The body at once claimed and made good its right to exclude Burgesses who they thought were not ent.i.tled to seats. The Speaker himself raised an objection to admitting the representatives of Warde's plantation, because that settlement had been made without a commission from the London Company. But Captain Warde promised to secure a patent as soon as possible, and the objection was waived. The a.s.sembly refused absolutely, however, to seat the Burgesses from Martin's Hundred. Captain Martin had been one of the first Council for Virginia, and as a reward for his long services had been granted privileges that rendered him almost independent of the government at Jamestown. He was summoned before the a.s.sembly and requested to relinquish these extraordinary rights, but he refused to do so. ”I hold my patent,” he said, ”for my service don, which noe newe or late comer can meritt or challenge.”[145] So the a.s.sembly, feeling that it would be mockery to permit the Burgesses from Martin's Hundred to a.s.sist in the making of laws which their own const.i.tuents, because of their especial charter, might with impunity disobey, refused to admit them.[146]
The legislative powers granted the Virginia a.s.sembly in the Magna Charta, and continued with slight alterations after the revocation of the charter of the London Company, were very extensive. The a.s.sembly could pa.s.s laws dealing with a vast variety of matters appertaining to the safety and welfare of the colony. Statutes were enacted in the session of 1619 touching upon Indian affairs, the Church, land patents, the relations of servants and landlords, the planting of crops, general morality in Virginia, the price of tobacco, foreign trade, etc. The collected laws of the entire colonial period fill many volumes, and cover a vast variety of subjects. But there were three things which limited strictly the a.s.sembly's field of action. They must pa.s.s no statutes contravening first, the laws of England; secondly, the charters; thirdly, the instructions sent them by the London Company.
When the colony pa.s.sed into the hands of the King, all statutes were forbidden that conflicted with the charters, or with the instructions of the Crown. These restrictions lasted during the entire colonial period, but they were not always carefully regarded. The Company, and later the King, retained two ways of nullifying legislation which was unauthorized, or was distasteful to them. First, there was the veto of the Governor. As the guardian of the interests of England and his monarch, this officer could block all legislation. Secondly, the Company, and later the King, could veto laws even though the Governor had consented to them.
But the most important power exercised by the a.s.sembly was its control over taxation in Virginia. In the very first session it made use of this privilege by ordering, ”That every man and manservant of above 16 years of age shall pay into the handes and Custody of the Burgesses of every Incorporation and plantation one pound of the best Tobacco”.[147] The funds thus raised were utilized for the payment of the officers of the a.s.sembly.
The levy by the poll, here used, was continued for many years, and became the chief support of the government. As the colony grew, however, and the need for greater revenues was felt, customs duties and other forms of taxation were resorted to. Large sums were raised by an export duty upon tobacco. At times tariffs were placed upon the importation of liquors, slaves and other articles. But these duties had to be used with great care, for the carrying of the colony was done chiefly by English merchants, and Parliament would permit nothing detrimental to their interests.
The a.s.sembly claimed the exclusive right to levy general taxes. The Governor and Council time and again tried to wrest this privilege from them, but never with success.[148] The Burgesses, realizing that their hold upon the exchequer was the chief source of their power, were most careful never to relinquish it. From time to time the Governors sought to evade this restraint by levying taxes under the guise of fees. But this expedient invariably excited intense irritation, and yielded a revenue so small that most Governors thought it best to avoid it entirely. Of more importance were the quit-rents, a tax on land, paid to the King by all freeholders. But this was frequently avoided, and, except at rare intervals, the funds raised by it were left in Virginia to be expended for local purposes. The greatest blow to the power of the Burgesses was struck by the King in 1680, when he forced through the a.s.sembly a law granting to the government a perpetual income from the export duty on tobacco. This revenue, although not large, was usually sufficient to pay the Governor's salary, and thus to render him less dependent upon the a.s.sembly. Finally, it must not be forgotten that the English government, although it refrained from taxing the colony directly, imposed an enormous indirect tax by means of a tariff upon tobacco brought into England. These duties were collected in England, but there can be no doubt that the incidence of the tax rested partly upon the Virginia planters. Despite these various duties, all levied without its consent, the a.s.sembly exercised a very real control over taxation in Virginia, and used it as an effective weapon against the encroachments of the Governors.
From the very first the General a.s.sembly showed itself an energetic and determined champion of the rights of the people. Time and again it braved the anger of the Governor and of the King himself, rather than yield the slightest part of its privileges. During the decade preceding the English Revolution only the heroic resistance of this body saved the liberal inst.i.tutions of the colony from destruction at the hands of Charles II and James II.
The General a.s.sembly was not only a legislative body, it was also a court of justice, and for many years served as the highest tribunal of the colony. The judicial function was entrusted to a joint committee from the two houses, whose recommendations were usually accepted without question. Since this committee invariably contained more Burgesses than Councillors, the supreme court was practically controlled by the representatives of the people. During the reign of Charles II, however, the a.s.sembly was deprived of this function by royal proclamation, and the judiciary fell almost entirely into the hands of the Governor and Council.
The General a.s.sembly consisted of two chambers--the House of Burgesses and the Council. In the early sessions the houses sat together and probably voted as one body.[149] Later, however, they were divided and voted separately. The Burgesses, as time went on, gradually increased in numbers until they became a large body, but the Council was always small.
The Councillors were royal appointees. But since the King could not always know personally the prominent men of the colony, he habitually confirmed without question the nominations of the Governor. The members of the Council were usually persons of wealth, influence and ability. As they were subject to removal by the King and invariably held one or more lucrative governmental offices, it was customary for them to display great servility to the wishes of his Majesty or of the Governor. It was very unusual for them to oppose in the a.s.sembly any measure recommended by the King, or in accord with his expressed wishes. Although the Councillors were, with rare exceptions, natives of Virginia, they were in no sense representative of the people of the colony.
As the upper house of the a.s.sembly, the Council exercised a powerful influence upon legislation. After the separation of the chambers their consent became necessary for the pa.s.sage of all bills, even money bills.
Their legislative influence declined during the eighteenth century, however, because of the growing spirit of liberalism in Virginia, and the increasing size of the House of Burgesses.
The executive powers entrusted to the Council were also of very great importance. The Governor was compelled by his instructions to secure its a.s.sistance and consent in the most important matters. And since the chief executive was always a native of England, and often entirely ignorant of conditions in the colony, he was constantly forced to rely upon the advice of his Council. This tendency was made more p.r.o.nounced by the frequent changes of Governors that marked the last quarter of the seventeenth century. So habitually did the Council exercise certain functions, not legally within their jurisdiction, that they began to claim them as theirs by right. And the Governor was compelled to respect these claims as scrupulously as the King of England respects the conventions that hedge in and limit his authority.
Before the end of the seventeenth century the Council had acquired extraordinary influence in the government. With the right to initiate and to block legislation, with almost complete control over the judiciary, with great influence in administrative matters, it threatened to become an oligarchy of almost unlimited power.
But it must not be supposed that the influence of the Council rendered impotent the King's Governor. Great powers were lodged in the hands of this officer by his various instructions and commissions. He was commander of the militia, was the head of the colonial church, he appointed most of the officers, attended to foreign affairs, and put the laws into execution. His influence, however, resulted chiefly from the fact that he was the representative of the King. In the days of Charles I, in the Restoration Period and under James II, when the Stuarts were combating liberal inst.i.tutions, both in England and in the colonies, the Governor exercised a powerful and dangerous control over affairs in Virginia. But after the English Revolution his power declined. As the people of England no longer dreaded a monarch whose authority now rested solely upon acts of Parliament, so the Virginians ceased to fear his viceroy.
The powers officially vested in the Governor were by no means solely executive. He frequently made recommendations to the a.s.sembly, either in his own name or the name of the King, and these recommendations at times a.s.sumed the nature of commands. If the Burgesses were reluctant to obey, he had numerous weapons at hand with which to intimidate them and whip them into line. Unscrupulous use of the patronage and threats of the King's dire displeasure were frequently resorted to. The Governor presided over the upper house, and voted there as any other member.
Moreover, he could veto all bills, even those upon which he had voted in the affirmative in the Council. Thus he had a large influence in shaping the laws of the colony, and an absolute power to block all legislation.