CHAPTER IX

THE VIRGINIA HOUSE OF LORDS

Though the members of the Council must have been surprised when Nicholson read Secretary Hedges' letter, they did not let it disturb them. They were rid of him, and that was what really mattered. No more could he bully them in the Council meetings, no more could he thwart them in the General Court by packing juries, no more could he ignore them in appointing officers, no more could he insult and revile them. As they sat around the table with the mild-mannered Nott, they realized with satisfaction that his personality was in strong contrast with that of his predecessor. Perhaps it would be easy to control him and keep the power in their own hands.

To a large extent this is just what they did. Though Nott was no weakling, he was anxious to live in peace with both Council and Assembly. It was said of him that his "whole study was to do everybody justice."[1] Like other Governors when they first arrived and were unacquainted with men and conditions in the colony, he was dependent upon the Councillors for advice and guidance. Before he could learn the ropes, he died. Since four years elapsed before a new Governor arrived to take his place, the Council remained for half a decade the controlling power in the colony. From August, 1705, to July, 1710, the government was neither despotic nor democratic, but aristocratic.

Nathaniel Bacon, Nicholson, Spotswood, and others derided the "mighty dons" of the Council, pointing out that they came from humble families in England. These critics did not stop to consider that it was more to their credit to have won by their own efforts positions of wealth and power than to have inherited them. Virginia itself offered them the opportunity, but it was they who seized it.

The group of well-to-do planters whom the Council represented, in the early years of the eighteenth century were far from numerous. "In every river there are from ten to thirty men who by trade and industry have gotten very competent estates," wrote Colonel Quary. "Out of this number are chosen her Majesty's Council, the Assembly, the justices, and officers of the government."[2]

It must have been a humiliation to such proud men as William Byrd II, "King" Carter, and Benjamin Harrison that they were not admitted to the English peerage. But though there were no dukes, nor lords, nor knights among the Councillors, they had the right to certain titles which carried great distinction. The term "esquire" was given to members of the Council, and was invariably used by them in signing legal documents. If a man were not a Councillor, yet was prominent and wealthy, he had the right to sign himself "gentleman." The holders of high office in the militia--colonels, lieutenant colonels, majors, and captains--prized their titles highly and used them in conjunction with "esquire," or "gentleman."[3]

Nor did the English nobility command greater respect than did the members of the Council in Virginia. When a certain Humphrey Chamberlaine, of Henrico County, became angry with William Byrd I, and, stripping off his coat, drew his sword as if to attack him, he was arrested and clapped into jail. At his trial he excused himself by saying he was a stranger in the country and ignorant of its laws and customs. But the court, ruling that no one "could be insensible of the respect and reverence due so honorable a person as Colonel Byrd," fined him five pounds sterling.[4]

Although the basis of the wealth of the aristocracy was land, the holding of large tracts did not in itself bring riches unless the owner could find the labor necessary to work them. During most of the seventeenth century indentured workers were used extensively. But their cost and the fact that they served but four or five years limited the return they brought their masters. With the importing of slaves in large numbers in the last two decades of the seventeenth century and the first third of the eighteenth century, the cost of raising tobacco was greatly lowered. This not only doubled or tripled existing fortunes, but created many new ones. It is this which explains why the Virginia aristocracy, which so late as the last decade of the seventeenth century was little more than a group, by the mid-eighteenth century had become a numerous class.[5]

In their mode of life the aristocracy consciously imitated the English country squires. The large libraries which they accumulated served practical as well as cultural ends. The wealthy man who wished to build a residence pored over James Gibbs' _A Book of Architecture_, or Abraham Swan's _The British Architect_. In laying out his garden he consulted Kip's _English Houses and Gardens_, or John James' _The Theory and Practice of Gardening_. On his shelves were English books on law, medicine, religion, agriculture.

Fortunately some of the mansions of colonial Virginia have survived the ravages of time, fires, and wars, to bear witness to the charm and dignity of the plantation life of two centuries ago. Carter's Grove, Mount Airy, Gunston Hall, Westover, Brandon, and others constitute history in brick and wood. The lovely gardens, some of which have been restored in recent years, are in the formal style of Le Notre and Rose. The mansions were furnished with tables, chairs, bookcases by the English masters; on the tables were pitchers, goblets, and candlesticks by English silversmiths. The aristocrat dressed himself and his family in the latest English fashions, owned an English-made coach, imported English race horses, perhaps sent his son to Oxford, when he visited England had his portrait painted by Lely or Kneller.

It was inevitable that in so small a group as the early Virginia aristocracy there should be frequent intermarriages. In 1717 half of the members of the Council were related to each other by blood or marriage. James Blair and Philip Ludwell were brothers-in-law of Nathaniel Harrison; William Byrd's wife was the niece of Ludwell; William Bassett and Edmund Berkeley had married half-nieces of Ludwell; Ludwell's wife was Harrison's sister. Governor Spotswood habitually referred to them as "the family."

It was wrong, Spotswood pointed out, that a group of relatives should wield such power. Since they all sat on the General Court, it was to be expected that they would vote as a unit if the interests of any one of them were involved. "Whoever has lived here and frequented the General Courts held of late in Virginia, has abundant reason to know that there is a strong link of relatives on the bench, who by their majority have the determination of all causes," he wrote in 1718. "When one of their kindred is charged with enormous crimes, clerks may safely keep back the examination, and sheriffs keep back the witnesses.... When the King has been plaintiff in a civil action against one of that family, the cause could not be tried for want of judges to make up a bench exclusive of those who were akin to the defendant."[6]

One wonders how long Governor Nott would have put up with this kind of thing had not death overtaken him. Despite his desire to work in harmony with the Council, there is evidence that he had no intention of letting them ride over him roughshod. This became evident when they tried to take the patronage out of his hands. "I do believe the Council have a mind to dispute with me the making of the collectors of the two shillings per hogshead," he wrote the Lords of Trade. "Their pretence is that it is said in my instructions I shall not make them but by advice of Council. Now they have a mind to turn several out and put in their own relatives. And that is not my turn of temper."[7]

When he asked the advice of the Council before reappointing naval officers, they objected to Major Arthur Allen, Colonel Miles Gary, and Colonel William Wilson. But when nothing of consequence was brought against them, the Governor insisted on continuing them. At the same time he shook off responsibility by refusing to renew their commissions until he had instructions to do so from the Lord Treasurer.[8]

Whatever resentment the Councillors bore him for this was forgotten when he championed their plea that they should not be forbidden to become naval officers. "I think this instruction very strange," he wrote the Lords of Trade. "To be deprived of those few places of profit ... brings the consequence that the good men are very indifferent to being one of the Council. I hope you are of opinion that this restriction may be taken off."[9]

The Governor thought it his duty to defer to the Council in most of his appointments to lesser offices. "I have directed new commissioners of peace," he wrote the Lords of Trade, "and not knowing persons yet, I left the nomination of justices solely to the Council. I have continued the former escheators since there was no objection to them."[10]

When Nott first took over the government, he found the colony divided against itself. The people as a whole were overjoyed to get rid of Nicholson, but a group made up no doubt of men who had received favors at his hands, resented his removal. When an election was held for a new Assembly, opposing candidates were put up by the pro-Nicholson and anti-Nicholson factions. Although the latter won an overwhelming victory, enough Nicholson men were returned to continue the old feuds and hatreds. Governor Nott made his opening address an appeal for peace. It was his earnest hope, he said, that all animosities be laid aside, and that the only contention be as to who should be most obedient to the Queen and most serviceable to the country.[11]

Despite this plea the pro-Nicholson faction presented under the guise of a grievance a resolution which was in reality a reproof of the six members of the Council who had presented the charges against the Governor. No one should take upon himself to represent to the Queen the grievances of the colony without the consent of the House of Burgesses, it said. No thanks, but rather a check should be given to those that had done so against the late Governor. But they met with a severe rebuff. So far from approving, the House ordered the so-called grievance to "be burnt under the gallows by the sheriff of York County as a mutinous, seditious, and scandalous paper."[12]

Though there is no evidence that Nott tried to render the Burgesses submissive to his will by bribing them with offices, the Assembly thought this a golden opportunity to weaken the Governor's appointive power. Some could recall Berkeley's Long Assembly, and all had been witnesses of the shameless way in which Nicholson had handed out jobs. So they passed a bill requiring each county court to nominate three men, all of them justices, from whom the Governor was to select one as sheriff, who was to serve not more than two years. Had not Nott been so anxious to avoid any conflict with the Assembly, he would certainly have vetoed this bill, for not only did it restrict his power of appointment, but it infringed upon the royal prerogative.

But he balked when the House sent up a bill to require the Governor, in appointing the justices of the peace, to secure the assent of the Council, or at least five of them. He thought they were going too far in this attempt to deprive the Governor of the patronage, leave him at the mercy of the Council and Assembly, and make him a mere figurehead. When the Lords of Trade heard that he had vetoed this bill, they wrote congratulating him. "The restraining Governors from making justices ... is entrenching on prerogative, and you may be assured it will not be approved here. In all other plantations the power of appointing and removing justices of the peace is solely in the Governor.... But it would be prudence in the Governor to advise for his better information."[13]

When the Assembly met again, in April, 1706, they made a daring attempt to weaken the Governor's power by passing a substitute law for the famous Act of 1680 which gave a perpetual revenue to the Crown. The new bill bore the disarming title of "An Act for raising a public revenue for the better support of the government ... and for ascertaining the salary of the Council." Nott apparently saw nothing alarming in it, but Colonel Quary at once suspected that it was intended to weaken the Act of 1680, and perhaps set a precedent which would eventually give the House control of the revenue from the export duty on tobacco.

"These topping men" were merely waiting an opportunity to have the old law damned, he wrote the Lords of Trade. "Had the Assembly only designed to have augmented and added to the Queen's revenue, why could they not make an act of it without damning and destroying the former act? And that your Lordships may see the snake in the grass, please observe that the Assembly are pleased to appropriate the Queen's revenue as they think fit, a thing never pretended to before, and to limit and confine her Majesty from disposing of her own money.... Whereas in a former act the Queen was graciously pleased to appropriate L370 to be divided among the Council for attendance, in this act they have ordered otherwise ... by which they have tied up the Queen's hands from giving any part of her bounty but according to their pleasure."[14]

When this bill came before the Board of Trade they referred it to Attorney General Harcourt and Solicitor General Montague. Although these astute men, as we have seen, gave it as their opinion that the old act had been passed in a way "contrary to the present method," and should be superseded by a new one, the Board decided to let sleeping dogs lie. So they advised the Queen to veto the Act of 1716. "'Tis hoped it will never be revived by any Governor who has at heart the interests of the Crown, and wishes that people should distinguish between what they owe to the indulgence of the Sovereign and what they may claim as their right by the laws of Virginia," wrote Governor Spotswood several years later.[15]

The climate of Virginia, which was fatal to so many newcomers from England, took a heavy toll of Governors. Lord De la Warr fell a victim to the Virginia sickness; Herbert Jeffreys died after having been in the colony only a few months. Now, on August 23, 1706, death ended the brief administration of Governor Nott. He was mourned by the people, and was buried in Bruton Parish churchyard with all the solemnity the colony was capable of. "Had it pleased God to have spared him but a little time longer amongst us, he would have healed all those unhappy differences that have of late made us uneasy, and united us again to be one people," wrote William Bassett.[16]

When the Council met after Nott's death they opened his commission and listened intently as it was read. And there was great satisfaction when they found that in the event of a Governor's death the Council was to take on themselves the administration of the government. But they were far from happy that Colonel Edmund Jenings, as the senior Councillor, was to preside at their meetings with such powers as were necessary in "carrying on the public service." They insisted that the Attorney General of the colony, in drawing up the first proclamation under the new government, should issue it, not under the name of the President alone, but of the President and Council.[17]

Jenings wrote to the Lords of Trade to ask just what his status should be. Their answer was decisive. The instruction that the Council should take over the government upon the death of a Governor had caused many controversies between the President and the Councillors and had greatly hindered public business. So they altered it to read: "The eldest Councillor do take upon him the administration of the government ... in the same manner ... as other our Governor should do."[18]

Francis Nicholson had written the Lords of Trade some years previously expressing doubts as to the wisdom of making any member of the Council the chief executive. "There may happen great disputes about the person of the President and his powers. And may be when the President and the Council are all natives or else entirely settled here, nature and self-interest may sway them to do some things and pass some acts that may be (as they will imagine) for the good of their country and make and secure an interest with the people. This may be prejudicial to their Majesties' service."[19] No doubt the Lords of Trade saw the force of this reasoning, but they were not prepared to keep a Lieutenant Governor in Virginia whose only function it would be to wait around ready to step in when the Governor died or was recalled.

Although the other members of the Council seem to have regarded Jenings with something like scorn, and one of them had spoken of him as "the right noble little Colonel Jenings," the man had had a distinguished career. He had been clerk of the York County court, collector of the York River district, commissioner for the College of William and Mary, member of the Council, Attorney General, and Secretary. And now, as President of the Council, he seems to have laid aside former animosities, and considered himself merely first among equals.

It was taken for granted that Jenings' administration would be brief, and that a new Governor would come over as soon as one could be appointed. Word had come that a commission had been drawn up for Colonel Robert Hunter, and that he had sailed from Portsmouth in June, 1707. But month after month passed and he failed to appear. As late as March, 1708, the Council was wondering what had become of him. At last they heard that the vessel in which he had shipped had been taken by the French, and that he was held captive in France. So they had to wait two more years before a Governor arrived.[20]

This suited President Jenings and the Council, for it left them in undisputed control of the government. They even refused to hold an Assembly for fear it might question their proceedings. It is true that six times they set the date for a meeting of the Assembly, but six times they postponed it. At last, when people began to question whether these frequent postponements did not put an end to the Assembly, the Council settled all doubts by dissolving them by proclamation.

This was a dangerous thing to do, for it was in the midst of the War of the Spanish Succession, and an Assembly was needed to provide funds for the defense of the colony. But the Council gambled that no French fleet would appear in the Chesapeake Bay. The normal expenses of the government--their own salaries and those of the President, Auditor, Attorney General, and other officials--they paid out of the export duty on tobacco and the quit rent fund. In September, 1708, Jenings wrote that privateers had come in between the capes and had chased a merchant vessel up the York River, that the Indians were threatening the frontier, that the Governor's house was unfinished, and that the quit rent fund was "much drained," but that despite all, the Council would not call an Assembly.[21]

In December, 1709, Lord George Hamilton, Earl of Orkney, was appointed Governor General of Virginia. Orkney had been trained as a soldier, and had distinguished himself at Namur, Blenheim, Malplaquet, and elsewhere. It is probable that it was intended from the first that the office should be a sinecure, and though Orkney held it for years he never set foot on Virginia soil. But Virginia had to pay his salary, for his L1,000 a year was taken out of the export duty on tobacco. To carry on the administration in the colony Colonel Alexander Spotswood was made Lieutenant Governor.

It would seem that in the years from the recall of Nicholson to the arrival of Spotswood, the danger to liberty in Virginia came less from the Throne than from the Council. A free people could not be quiet under the rule of a body of twelve men, not chosen by the voters but appointed by the sovereign.

The average planter, not only the owner of only a few acres, but the man of means had reason to be alarmed. Was it consistent with the principles of English liberty, they must have asked, for a clique of wealthy men, many of them united in one family, to have such power over their lives and their property? If the people were to rule, final authority must be vested in the House of Burgesses, not the Council.

FOOTNOTES:

[1] CO5-1315, Bassett to Perry & Co., Aug. 30, 1706.

[2] CO5-1314, Doc. 63iv.

[3] Hugh Jones, _The present state of Virginia_, ed. R. L. Morton, 93.

[4] P. A. Bruce, _Social life of Virginia_, 133

[5] T. J. Wertenbaker, _The planters of colonial Virginia_, 155-160.

[6] CO5-1318, Spotswood to Lords of Trade, March 20, 1718.

[7] CO5-1340, Doc. 15.

[8] _Ibid._

[9] _Ibid._, Doc. 19.

[10] CO5-1316, p. 450.

[11] _Journals of the House of Burgesses_, 1702-1712: 131.

[12] _Ibid._, 147.

[13] CO5-1362, March 26, 1707.

[14] CO5-1315, Quary to Lordships, Sept. 1, 1706.

[15] CO5-1317.

[16] CO5-1315, Aug. 30, 1706.

[17] _Executive journals of the Council_ 3: 119, 120.

[18] CO5-1362, p. 121.

[19] CO5-1314, Doc. 15.

[20] CO5-1362, pp. 336-340.

[21] CO5-1362, pp. 318, 325.

##