lodged partly in the governor, who held the place of the sovereign; partly in a council of state named by the company, which possessed some of the distinctions and exercised some of the functions belonging to the peerage; partly in a general council or assembly, composed of the representatives of the people, in which were vested powers and privileges similar to those of the house of

In both those councils all questions were to be determined by the majority of voices, and a negative was reserved to the governor ; but no law or ordinance, though approved by all the three members of the legislature, was to be of force until it was ratified in England by a general court of the company, and returned under its seal. The ordinance further required the general assembly, as also the council of state, "to imitate and follow the policy of the form of government, laws, customs, and manner of trial, and other administration of justice, used in the realms of England, as near as may be.” Thus the constitution of the colony became fixed, and the members of it thenceforth, were considered not merely as servants of a commercial company, dependent on the will and order of their superiors, but as freemen and citizens.(a)

§ 31. In May, 1623, King James, without regard to the rights conveyed to the company by their charter, or without the formality of judicial proceedings, appointed certain commissioners, of whoin Sir William Jones was one, to examine into the transactions of the company, and lay the result of their inquiry before him.(6) Aster their departure a quo warranto was issued from the King's Bench, which terminated, as was usual in that

(a) Story on Cons., Vol. i. Book 1, ch. 2, p. 26 ; Robt. Am., Vo!. i. Book 9, p. 413; Holme's Amer. Annals, Vol. i. pp. 214, 215.

(6) Robt. Amer., Vol. i. Book 9, p. 416.


reign, in a decision perfectly consonant to the wishes of the monarch. The charter was declared forfeited, and the company dissolved in June, 1624; and all the privileges conferred upon it reverted to the king:(a) James then issued a new commission for the government of Virginia, constituting Sir Francis Wyall governor, with eleven assistants, or counsellors. The governor and council were appointed during the pleasure of the king, and no assembly was mentioned or allowed.(6) James indeed purposed to provide and draw a form of government, but before it was done, death put an end to his

Robertson conveys the impression, that on the accession of Charles I., March 27, 1625, he declared the colony as annexed to the crown, and immediately subordinate to its jurisdiction. Under the administration of Governor Yeardly, and a council of twelve and a secretary, was delegated to them the exercise of supreme authority, under an injunction from the king to conform in every point to such instructions as should, from time to time be received from him.(c) From the term of the king's commission, as well as from the known spirit of his policy, it seems manifest that it was his intention to invest every power of government, both legislative and executive, in the governor and council, without recourse to the representatives of the people. During a great part of this king's reign, the colonists knew no other law than the will of the sovereign. Statutes were published, and even taxes imposed, without once assembling the representatives of the people to authorize or sanction them.(d)

(a) Robt. Amer., Vol. i., Book 9, p. 417; Holme's Amer. Annals, Vol. i.,

p. 233.

(6) Holme's Annals, p. 234 ; Robt. America, p. 418. (c) Robt. Am., 418.

(d) Ibid.


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§ 32. During the period that intervened between the appointment of Yeardly, and the appointment of Sir William Berkley in 1659, under Yeardly and the tyrannical and most odious Sir John Harvey, the colonists had not only to submit to the degradation of being deprived of the exercise of the dearest rights of the citizen, but they were subjected to the most cruel and tyrannical laws, by which not only the personal rights of the citizens were(a) disregarded, but private property was violently invaded. Robertson also asserts, that under governors appointed by the commonwealth, or Cromwell when he usurped the supreme power, Virginia remained almost nine years in perfect tranquility ; that upon the death of Mathews, the last governor named by Cromwell, the sentiments and inclinations of the people, no longer under the control of authority, burst out with violence. They forced Sir William Berkley to quit his retirement; they unanimously elected him governor of the colony, and, as he refused to act under usurped authority, they boldly erected the royal standard, and acknowledged Charles II. to be their lawful sovereign. Mr. Hening, in his preface to the statutes at large of Virginia, thus refutes the assertion of this great historian. He says : “ There is not one word of truth in any part of this relation. Not a single governor was appointed either by the parliament or by Cromwell. But they were elected by the House of Burgesses, in

pursuance of the powers vested in them by the provisional articles of government adopted at the surrender of the country to the commissioners appointed in behalf of the parliament.

So far were the assembly from erecting the royal standard, and proclaiming Charles II. at the time when

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(a) Robertson's America, p. 418.

they elected Sir William Berkley governor, that by the very first act of the same session, they expressly took the powers of government into their own hands; and declared that all writs should issue in the name of the Grand Assembly.(a) By the second act, they appointed Sir William Berkley governor; enforced it on him to call an assembly once in two years at least, or oftener if necessary; gave him the power of making a secretary and counsellor of state, with the approbation of the assembly, and restrained him from dissolving the assembly, without the consent of the major part of the house. These acts passed at an assembly held in March, 1659-60, between the resignation of Richard Cromwell, (on 22d April, 1659,) and the restoration of Charles II., (on 29th May, 1660,) at a time when, as the assembly express themselves, There was no resident, absolute, and general confessed power in England.' (6)

Mr. Hening is certainly sustained in these views by the acts published in his edition of the statutes at large.

§ 33. It appears to be doubtful whether any assembly was held during the year 1620: one was held in 1621. From that period to 1629, the acts of the legislature of Virginia are scarcely noticed in the minutes of the company; the proclamation of the governor supplying, in almost every instance, the place of the legislative act. But from 1629, with but little intermission for a series of years, the acts of each session are accurately epitomacised.(c)

It has been supposed by many-even by historians of England and America—that during the administration of

(6) See act of March, 1659-60, p. 550, 1st Vol. Statutes. (6) Preface to Hening's Stat. at Large, Vol. i. pp. 13, 14. (c) i Hen. Stat. at Large, p. 119.


Sir John Harvey, there was no attempt made to convene the colonial assembly. It is evident, however, that from 1630 to 1642, the Virginians did enjoy the benefits of an independent colonial legislature ; and, that through the agency of their representatives, they levied and appropriated taxes, secured the free industry of their citizens, and gave to their statutes the greatest possible publicity; and that as early as 1632, the defects and inconveniences of an infant legislature were remedied by a revised code, which was published by the approbation of the governor and council, and in which all the privileges which the assembly had ever claimed, were carefully confirmed. Indeed, it seems they had never been questioned, for the instructions to Sir William Berkley do not first order assemblies, but speak of them as a thing established. At the first session of Berkley's legislature, the assembly declared its meeting as “exceeding customary limits in this place used.” This is a plain declaration that assemblies were the custom and usage of Virginia, at the time of Berkley's arrival. By reference to the first volume of Hening's Statutes at large, it will appear most conclusive, that assemblies were convened for every year, except 1631, from 1630 to 1642, inclusive.(a)

From this period down to that of the revolution, the laws appear to have been enacted by the representatives of the people, subject to the final assent of the

The bill of rights was unanimously adopted on 12th June, 1776.

§ 34. The constitution of Virginia, adopted on the 29th of June, 1776, provided that the legislature should be formed of two distinct branches, who together should


(a) Bancroft's History, vol. i. ch. 6, pp. 199, 200. i Hen. Stat. at Large, pp. 147, 257, 153, 177, 178 to 202, 209, 222, 223, 227, 229, 230, 268, 259, 262, 267, 230, 269, 171, 172, 175, 177, 179.

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