F 229 
 .F6S 
 Copy 2 
 
 WINNOWINGS IN AMERICAN HISTORY. 
 
 VIRGINIA TRACTS. 
 
 No. II. 
 
 .no?ri!o!» 
 
WIMOWINGS IN AMERICAN HISTORY. 
 
 VIRGINIA TRACTS. 
 No. II. 
 
 250 copies printed. 
 No. ^/ 
 
The Controversy between 
 Lieutenan t-G o v e r n o r 
 Spotsvvood, and his Coun- 
 cil and the House of Bur- 
 gesses, on the appointment 
 of Judges on Commissions 
 of Oyer and Terminer. 
 1718. 
 
 EDITKD BY 
 
 WORTHINGTON CHAUNCEY FORD. 
 
 BROOKLYN, N. Y. : 
 
 Historical Printing Ci.uu. 
 
 1891. 
 

 ij 
 
 
The address to the King, and the Or- 
 ders of the House of Burgesses to its 
 agent, are now printed for the first time 
 from a MS. found among the Ludwell Pa- 
 pers. The plea of WilUam Byrd is taken 
 from the Calendar of Virginia State Pa- 
 pers, I., 190. The Council's representa- 
 tion is taken from the Spotswood Letters, 
 II., 221. 
 
 Among the instructions given by the 
 English ministers to Lieutenant Governor 
 Spotswood was one that enjoined the ap- 
 pointing of courts of Oyer and Terminer 
 at least once every half year. Such courts 
 had only recently been provided for in the 
 colony, as the first law on the subject had 
 been passed in 1692 ;* and was intended 
 to provide for the more speedy prosecu- 
 tion of negroes and other slaves for capi- 
 tal offences. By this act the Governor, 
 upon information of the offence and of the 
 
 * Hening's Statutes at Large, III., 102. 
 
 (5) 
 
offender's imprisonment, was to issue a 
 commission of oyer and terminer directed 
 to such persons of the county in which the 
 crime was committed as he shall think fit. 
 The trial was then made without jury, and 
 the criminal, if convicted, was to be pun- 
 ished according to the English law. By a 
 second act passed seven years later, the 
 governor could issue like commissions, 
 directed to the admiralty judges, and " to 
 such other substantial persons as he shall 
 think fit to nominate and appoint," to 
 punish piracy.* In 1705 the law of 1692 
 was re-enacted so far as the issue of com- 
 missions was concerned, the intention of 
 the statutes being to secure speedy justice 
 without the extraordinary charges attend- 
 ing the process of the other courts. 
 
 When Spotswood undertook to carry 
 out his instructions, he was met by the 
 assertion of the Council that the matter 
 was sufficiently provided for by the Act of 
 1705, estabHshing the General Court, by 
 
 * Henin^, III., 179. 
 
which criminals were appointed to be 
 brought to tryal on the fourth day of the 
 General Court, held twice a year.* Spots- 
 wood was correct in his intention, as the 
 authorities in England had raised objec- 
 tions to some of the provisions of that act. 
 To quiet these objections a law was passed 
 in the October session (1710) expressly 
 disclaiming that anything in the law of 
 1705 should be "construed, deemed, or 
 taken to derogate from, lessen, or abridge 
 the roial power, prerogative, and authority 
 of her Majest}', her heirs and successors, 
 of granting commission or commissions of 
 oier and terminer, or of constituting and 
 erecting such other court or courts of rec- 
 ord, as her Majesty, her heirs or succes- 
 sors, by her or their commission or com- 
 missions, instruction or instructions to her 
 or their governor or commander in chief 
 of this colony and dominion, for the time 
 being, shall direct, order or appoint."! 
 
 * Hening, III., 293; Spotswoud Letters, I., 8. 
 \ Hening,\\\., A,^<); Calendar of the J'irgijtia 
 State Papers, I., 143, 144. 
 
This act gave the governor all the author- 
 ity he needed, and accordingly he ap- 
 pointed the first court to be held at 
 Williamsburg, the second Tuesday of De- 
 cember, and proposed to recommend to 
 the Assembly to make the same provision 
 for defraying the charge of the juries and 
 witnesses attending this court as was made 
 for the trial of criminals at the General 
 Court.* 
 
 The utility of such tribunals became so 
 evident, that the Council in 1 7 1 2 did not 
 hesitate to express their unanimous opin- 
 ion that they should be held, whether 
 there was any criminal to be tried or not. 
 Pohtical differences intervened and raised 
 a more serious question as to the appoint- 
 ment of the judges. In December, 1712, 
 when a man was to be tried for his life, 
 the governor, believing that he could not 
 count upon more than four of the council 
 to sit, joined with them the Speaker, and 
 " two others of the most eminent members 
 
 *SpofszL<Pod Letters, I., 24. 
 
of the House of Burgesses." The Coun- 
 cil held that the judges should be taken 
 only from their number, as was the case 
 with the General Court ; and, regretting 
 their excessive liberality, also determined 
 that commissions of oyer and terminer 
 should issue only where a criminal was to 
 be tried.* 
 
 The differences were determined for 
 the time by mutual concessions. The 
 Governor agreed in future to appoint only 
 members of the Council, and the Council 
 adopted the Governor's opinion as to 
 holding the courts. Yet the Governor 
 was not convinced ; and he wrote to 
 his superiors : " I cannot give up my 
 judgment withal upon this last point [ap- 
 l)ointment of judges] unless I find your 
 Lordships concur with these gentlemen in 
 their sentiments, which are, that since the 
 Gen'l Court has hitherto been the only 
 stated Court of Judicature in this colony, 
 which hath had cognizance of hfe and 
 
 * Spots-wood Letters, II., 25. 
 
Member, the Council, who are constituted 
 the Judges thereof, look upon that same 
 jurisdiction to be confined to them, and 
 cannot submit to share it with other per- 
 sons ; that some Governors might make a 
 very dangerous use of this precedent, and 
 bring thereby men's Lives and libertys 
 under less security than their Estates ; 
 that the Gentlemen of England are never 
 added to the Judges in Commissions of 
 Oyer and Terminer, but in their Circuits ; 
 and that it is done, because in those pro- 
 gresses there is but one Judge to sit on 
 the Pleas of the Crown ; and lastly, that 
 such affairs should proceed in the usual 
 method, except where unusual accidents 
 shall require an extraordinary exertion of 
 the royal Power. This, ray Lords, is 
 faithfully the sum of their Arguments, and 
 if it shall be judged that there is no need 
 of a Governor's giving now and then an 
 instance to undeceive people here, and 
 manifest the Prerogative of the Crown, 
 and particularly in this point to convince 
 
some that the General Court Law passed 
 here in 1705 has not estabhshed the 
 Council to be the only Judges of Life and 
 Death that her Majesty may appoint ; or 
 if after all, your Lordships shall determine 
 that the Members of the Council, and no 
 others, ought to be the Commissioners of 
 those Courts of Oyer and Terminer, which 
 her Majesty orders me to constitute, I 
 shall then most willingly continue to ap- 
 point them solely, according as I have 
 already promised them, shall, for the 
 future, be done, till I am otherwise com- 
 manded."* 
 
 In raising the question of prerogative, 
 the Governor touched an extremely sensi- 
 tive point of the administration, and one 
 that was sure to respond on the side of 
 the royal representative. Although Spots- 
 wood had submitted his case in June, 
 1 7 13, and sent over the Council's repre- 
 sentation (printed post), it does not ap- 
 pear to have been decided in England 
 
 * Spotswood Letters, II., 26. 
 
till June, 1 716, when the full weight of 
 authority was given to the governor's 
 position. 
 
 He was told that he had power to ap- 
 point a particular court of Oyer and 
 Terminer, and constitute the Judges 
 thereof, unless it be otherwise directed by 
 Act of Assembly. This opinion was fully 
 supported by the law of 17 10, already 
 cited. 
 
 An opportunity to test his strength soon 
 occurred, and to " remove that wrong no- 
 tion, which has been carefully infused 
 into the people here, that his Majesty has 
 not the same power of constituting Judges 
 here as in England, I thought it necessary 
 to appoint five of the Council and four 
 other of the principal Gentlemen of the 
 Country to be the Judges, but some of the 
 former resolving still to adhere to their 
 former opinion that ye Council ought to 
 be ye sole judges in all criminal matters, 
 refused to sitt, tho' it might have been 
 expected they would have acquiesced in 
 
13 
 
 your Lordships determination of that 
 matter, since they have little to plead for 
 themselves, but what your Lordships have 
 had already under consideration, and that 
 his Majesty's Attorney General and all ye 
 other eminent Lawyers here are clearly of 
 opinion that there is not authority, either 
 in the Laws of the Colony or in the 
 Charter of King Charles the IL, that favors 
 their pretensions. I should not have 
 troubled your Lordships upon this head, 
 (seeing the Council have made nore pre- 
 sentation to me as they did before), but 
 that it [has] becom.e a practice of late to 
 hand Secret Remonstrances of the affairs 
 of Government, v/ithout any [my ?] know- 
 ledge to private Agents, to be of use for 
 concealed Designs, and I am apprehensive 
 some such may be made on this occasion, 
 and, therefore, I was willing to give your 
 Lordships some intimation of this Dispute 
 that you may not be surprised into any 
 alteration of what you have already de- 
 clared to [be] your sentiments thereof, 
 
14 
 
 nor made to believe that while I am con- 
 tending for the legal Rights of the Crown 
 I'm lessening the just privileges of the 
 Council. For, whatever specious Argu- 
 ments they may use, it is certain their 
 pretensions are now as frivolous ; the Con- 
 stitution of England, the laws of this Coun- 
 try, and ye Constant practice of former 
 Causes ( ?) , are entirely against them, and 
 I hope your Lordships will give no Coun- 
 tenance to any thing that* shall be urged 
 in their behalf till I have an opportunity 
 of setting forth what may be justly offered 
 in support of his Majesty's prerogative, 
 and of the power his Majesty has been 
 pleased to grant to his Governor for the 
 Nomination of such Judges, which is now 
 called in question."* 
 
 The question once opened, it was not 
 long before Spotswood began to urge im- 
 proper motives on the part of the Council, 
 and explained their attitude by their desire 
 to abuse the generosity of the King, and to 
 
 ^Spotsivood Letters, II., 259, 260. 
 
15 
 
 share in the public revenue. Councillors 
 were formerly willing to sit with common 
 Justices of the Peace in commissions, and 
 never raised a doubt on the legaHty or 
 propriety. But when a salary of ^loo 
 was attached to each court, they claimed 
 the sole power of judicature, and advanced 
 the pretension of being the sole judges of 
 those courts on their birth. Why, asked 
 Spotswood, would not a repeal of this 
 grant be the simplest solution of the prob- 
 lem?* 
 
 The friction between the Governor and 
 the Council increased, and as the Bur- 
 gesses supported the Council, the latter 
 body came in for a share of his suspicion 
 and displeasure. In 1710, when the path 
 of the Governor was by no means an easy 
 one to tread, he had sharply criticised the 
 Burgesses, from whom he had at first 
 received approval of his conduct : " That 
 unhappy humor of the Country in choosing 
 for their Representatives, persons of mean 
 
 * Spotswood Letters, II., 270 ; March, 1718. 
 
i6 
 
 understandings." " I cannot yet see what 
 will be the temper of this Assembly, the 
 inclinations of the country being rendered 
 more mysterious by a new and unaccount- 
 able humor which had obtained in several 
 counties of excluding the Gentlemen from 
 being Burgesses, and choosing only per- 
 sons of mean figure and character." 
 *' Such people being rarely possessed with 
 a publick spirit, and generally bringing 
 along with them the same pernicious tem- 
 per in their public transactions that gov- 
 erns them in their private capacitys."* 
 
 It v/as, however, against the Assembly 
 that began its first session in April, 1718, 
 that he levelled his severest criticisms. 
 The same leaven or humor was at work, 
 and during the elections every attempt 
 was made to inspire the people with a 
 dread of the enormous expenditures to be 
 made if they supported the Governor. 
 
 *Spotswood Papers, I., 19, 132. To the Board 
 of Trade, 24 October, 1710, and 28 December, 
 1711. 
 
17 
 
 They would be ruined by the executive's 
 extiavagance, and no one should receive 
 their suffrage who had an affection for the 
 Governor. " To encrease the disaffection 
 toward the friends of y^ Government, 
 great care was also taken to possess the 
 people with a partial account of the late 
 Dispute about the Courts of Oyer and 
 Terminer, to represent to them that great 
 Infraction of their Charter, and the dan- 
 gerous Consequences of allowing the Gov- 
 ernor a power of nominating Judges to 
 try men for their Lives ; a Paper was 
 drawn up in the nature of a Grievance 
 against these Courts, and sent all over the 
 Country to be signed by the People, and 
 in order to make this go down the better, 
 some other popular Propositions were 
 coupled with it, such as the ascertaining 
 ofificers' fees by Law — this being what 
 every one desired to see regulated. But 
 this Train would not take, the people 
 generally refusing to concern themselves 
 therein, and choosing rather to drop the 
 
i8 
 
 Article of y! officers' fees than sign to that 
 which they knew to be only calculated to 
 enlarge the power of a party in the Coun- 
 cil. So that the Grievance of the Oyer 
 and Terminer Judges came only recom- 
 mended from two Countys, and was 
 signed in one but by i8 and in the other 
 by no more than ii, and all very obscure 
 fellows." 
 
 The result of these election manoeuvres 
 was to return a House in which a majority 
 was opposed to the Governor, and one 
 that soon began to show its opposition. 
 The '•' first remarkable step the Assembly 
 proceeded in," was to prepare the address 
 to the King that is printed in the following 
 pages. "To solicit this address, they 
 thought fitt to have a particular agent, and 
 to this purpose prepared a Bill whereby 
 the Burgesses were of themselves impow- 
 ered to name, (barely by a Resolve of 
 their House,) any person to be their 
 agent ; by the like Resolve, change him 
 and put in another, and by the same 
 
19 
 
 power to pay such agents what sums they 
 thought fitt, without any concurrence of 
 the Governor or Council. This power, 
 tho' strenuously contended for by such of 
 the Council who sett the Burgesses to 
 work, was, nevertheless, so ill relished by 
 the soberer men of the same party, and so 
 exclaimed against by the other Gentlemen 
 of the Council who are not in their Inter- 
 est, that it was at last thrown out in the 
 Council, and soon after a Vote passed in 
 ye Burgesses House appointing Mr. Byrd 
 their agent, and assuring him of a suitable 
 gratification for his trouble, and a select 
 Committee appointed to prepare Instruc- 
 tions for him, a copy of which as they 
 passed the House, I here send. By which 
 your Lordships will perceive what mighty 
 occasion they have for throwing away the 
 Country's money upon such an agent, 
 when they have so little Business for him 
 to regulate, and when they were told that 
 the transmitting addresses to the sover- 
 aign by any other manner than through 
 
the hands of the Governor had been dis- 
 approved of by the late Queen, upon a 
 [report?] from the Lordships Board in a 
 case wherein the very Gentleman was im- 
 ployed as [agent] in 1702. But the truth 
 is, the main aim of constituting an agent 
 was disappointed by the Miscarriages of 
 their Bill, which would have enabled that 
 party, (if they were so weak as to imagine 
 I would pass it,) to dispose of every farth- 
 ing of the publick Money at their pleasure 
 and to their Friends, for by the same 
 power of making and gratifying agents by 
 the Resolve of their House, they might, 
 from time to time, have nominated one 
 another, and given what sums they thought 
 fitt for no semces at all. That this is no 
 unreasonable conjecture, will appear from 
 another step taken after their Agents' Bill 
 miscarried. A Bill was prepared by the 
 Burgesses and sent up to ye council and 
 passed there, whereby ^^^4000 of the pub- 
 lick money was ordered to be put into the 
 hands of Mr. Arch'd Blair, under pretence 
 
of intrusting him to put it out at Interest 
 for 4 per cent, per annum, of which he 
 was to be allowed one-half for his trouble ; 
 but with this express Condition, that if he 
 did not lend it, he should pay no interest 
 at all. This Gentleman, now a member 
 of the House of Burgesses, is brother to 
 Mr. Com'ry Blair,* one of the Council, 
 and they are in Partnership with Colo. 
 Ludwelljt and are concerned in one of the 
 most considerable Trading Stores in this 
 country. And as this money, being once 
 placed in his hands by Act of Assembly, 
 could not have been called out of his 
 hands but by the same authority, and as 
 there is in the Council a great majority of 
 the Relations of those Genderaen, should 
 they have refused their Concurrence to the 
 recalling that Money, it must remain in 
 his hands without any interest to the 
 country as long as they pleased. And for 
 
 * James Blair. 
 t Philip Ludvvell. 
 
this Reason I have resolved to reject that 
 Bill.* 
 
 All this trouble Spotswood laid at the 
 door of the eight councillors who had 
 signed a remonstrance against the Courts 
 of Oyer and Terminer.! "A Governor 
 cannot contrive a surer way of gaining 
 their disfavor than by strictly pursuing his 
 Duty and faithfully discharging his Trust. 
 Your Lordships' Determination about the 
 Disputes of the Courts of Oyer and 
 Terminer remains deeply rooted in their 
 minds, and they have pubUckly declared 
 at the Council •Board that though they 
 could not help acquiescing therein, they 
 were not convinced of the Legality of that 
 Decision," And he urges that the mem- 
 bers of the Council be changed, that his 
 Majesty's authority may be settled upon a 
 solid Basis. Political differences led to 
 social separation, and the recalcitrant 
 
 *Spolswood Leitei-s, II., 277, 278. To Board of 
 Trade, 24 June, 171 8. 
 t Only seven councillors signed. 
 
23 
 
 Councillors celebrated by themselves, not 
 attending the entertainments given by the 
 Lieutenant-Governor, nor inviting him to 
 their own. Fortunately this strained situa- 
 tion was relieved by the recall of Spots- 
 wood ; but it is doubtful if Virginia ever 
 had a Governor who had the interests of 
 the Colony more at heart. The same 
 difficulty hampered him as weighed upon 
 the endeavors of every loyal representa- 
 tive who wished to advance the welfare of 
 his charge. It was impossible to reconcile 
 the demands of prerogative with the ex- 
 panding energies of a State essentially 
 democratic. 
 
 The composition and functions of the 
 Council were sufficient to invite the op- 
 position of Governor and even of people, 
 for they were somewhat anomalous. The 
 members were appointed in England upon 
 the nomination and recommendation of 
 the Governor. Naturally he would seek 
 to give support to his master's authority 
 by selecting the ablest men ; but his ov/n 
 
24 
 
 power and influence were not to be 
 neglected. E) nominating sucli as were 
 rich, politically influential, and of wide and 
 powerful connections, he could not only 
 gain their favor and voice, but add to their 
 importance as well. The position of 
 councillor served as well to conciliate an 
 enemy as to strengthen a friend, and it 
 was not infrequently used as a bribe, and 
 frequently as a favor. Considering the 
 temptation thus offered, it is as remarkable 
 as it is creditable, to find so many able, 
 honest and patriotic councillors, and so 
 few of the self seeking and unscrupulous 
 element. This Council gave advice to the 
 governor on public measures, and in this 
 function it acted as a branch of the execu- 
 tive. Members of the Council were col- 
 lectors, naval officers, secretary of the col- 
 ony, auditors and farmers of the revenue. 
 The Council was also the Upper House of 
 the Assembly, taking its share in legislation, 
 and quite as important a share as the Bur- 
 gesses exercised. Its members were the 
 
25 
 
 Judges of the General Court, the highest 
 court in the colony. Was not this an ex- 
 tremely centrahzed power? As legisla- 
 tors, they framed and passed measures ; 
 as judges, they interpreted them ; and as 
 councillors they assisted in their execu- 
 tion. Their social position gave them a 
 great influence with the people and the 
 Burgesses, and their official standing mag- 
 nified this influence. Was it strange that a 
 Governor should have a wholesome fear of 
 such a body, if he were so unfortunate as 
 to invite its opposition ? Spotswood as- 
 serted that his immediate predecessors 
 had been recalled through the intrigues of 
 the Council ; and to save his own head, he 
 sought to oust the Council, that another, 
 friendly to himself, might be appointed in 
 its stead. 
 
 Some of the members of the Governor's 
 Council drew very refined distinctions in 
 defence of their apparent inconsistency, 
 holding that they might as councillors re- 
 ject or deem unfit a measure which in the 
 
26 
 
 capacity of legislator they might support. 
 And this, too, when their right to vote in 
 the Upper House rested entirely upon 
 their being sworn in as Councillors. In 
 the Council they were bound by oath to 
 assist the Governor, and to defend all 
 jurisdictions and authorities appertaining 
 to his Majesty ; in the Assembly they 
 would naturally be on the side of the peo- 
 ple, and regard only what was for the 
 good of the colony. But sometimes the 
 two positions would differ radically, and 
 the Governor with chagrin saw the meas- 
 ures which he had prepared with the as- 
 sistance and advice of his Council op- 
 posed and rejected by this same Council 
 when sitting in assembly. More than that, 
 some held that, as councillors, they were 
 not expected to express an opinion on 
 the legality of an act, for the same ques- 
 tion might come before them as judges, 
 and it would be awkward to have pre- 
 viously given their decision. If the Gov- 
 ernor was to receive no assistance from 
 
27 
 
 the Council, wrote Spotswood, " I must 
 confess I don't see of what use they are 
 to the service of the Crown, since, in the 
 passing of Laws they are not bound to 
 consider his Majesty's interest nor in the 
 execution of 'em to give their orders, and 
 that on all unpopular occasions, a governor 
 may not expect the assistance of his 
 Council, but he may assuredly depend on 
 all the blame." 
 
 It must be admitted that in the con- 
 troversy over the Oyer and Terminer 
 commissions, either side had a fair argu- 
 ment to support its claims. Spotswood 
 was too greatly impressed by a fear of an 
 oligarchy, and saw with distrust the ex- 
 tensive interest centered in the hands of a 
 few famihes. He was bound also to pro- 
 tect the rights of the Crown, and espec- 
 ially to guard that very elastic and sensi- 
 tive attribute of royalty — prerogative. In 
 performing what he regarded his duty he 
 naturally found it difficult to maintain a 
 consistent policy. To break down the in- 
 
fluence of the aristocracy, he needed 
 democratic instruments ; and to defend 
 prerogative, he must be on the side of 
 absolute power, controlled as little as pos- 
 sible by popular measures. He ahenated 
 his Council, and he antagonized the Bur- 
 gesses ; yet his policy was, on the whole, 
 in favor of the people. But a distrust or 
 jealously prevented him from carrying out 
 his plans. The appointment of the Judges 
 was but one point of antagonism. He 
 was denied the privilege of appointing 
 the clerks of the County Courts, on the 
 ground that as these clerks were frequently 
 elected Burgesses, the influence of the 
 Governor in that House might become too 
 strong, for these would hold their clerk- 
 ships at his pleasure. The alternative 
 scheme, whereby these clerks would hold 
 their office at the hands of the Justices, 
 offered quite as serious an objection, as 
 these Justices were the members of the 
 Governor's Council, and constituted the 
 Upper House of Assembly. It was merely 
 a choice of masters. 
 
29 
 
 On the other hand, there was danger 
 that the commissions to hold such courts, 
 coupled with a power of nominating the 
 Judges, might be so employed as to be- 
 come an engine of tyranny. The mur- 
 ders, committed under the form of law, 
 but none the less murders, perpetrated 
 after Bacon's rebellion in Virginia, and 
 after Leisler's administration in New York, 
 were still fresh in the minds of the people, 
 and furnished terrible examples of the 
 abuse of power, of the travesty of justice, 
 in the hands of an unscrupulous execu- 
 tive. 
 
 Byrd went over to England about 1716, 
 where he pleaded the cause of Philip Lud- 
 well in his controversy with Governor 
 Spotswood. He was then Receiver Gen- 
 eral of his Majesty's revenue in Virginia, 
 and it was in part official questions that 
 led to his journey, which from one cause 
 and another was so prolonged, that Byrd 
 must have suspected Spotswood would 
 seek to oust him from the Council. In 
 
30 
 
 September, 1718, Spotswood did write, 
 saying : " Mr. Byrd, one of the Council 
 here, having been gone from hence three 
 years and a half, and seeming, by his 
 Letters and the new Employm't he has got 
 into of being constituted Agent for the 
 House of Bing's, to incline to a much 
 longer continuance in England I hope Y'r 
 Lo'ps will think fitt to move his Maj'ty to 
 appoint another Counsellor in his room "* 
 — and he recommended Mr. Cole Digges. 
 Byrd soon heard of the attempted change, 
 but understood that Peter Beverly, for 
 several years Speaker of the Burgesses 
 and County Treasurer, was the gentleman 
 nominated as his successor. And he 
 pleaded his cause so well before the Lords 
 Commissioners of Trade, that he obtained 
 an order of Council restoring him to the 
 Council and his former rank therein.! 
 Armed with this he sailed at an early 
 
 * Spo/swood Letters, II., 304. 
 
 t Calendar of the Virginia State Papers, I., 195. 
 
31 
 
 day for Virginia, and took his place in 
 the Council. 
 
 WORTHINGTON ChAUNCEY FoRD. 
 
 Brooklyn, N. V., April, i8gi. 
 
N. 
 
Tlie Councils Representation to the 
 Governor touching Commissions of 
 Oyer and Terminer. Received May 
 ye I St, 1 71 3. 
 
 May it please your Honor : 
 
 As the constant civil itys your Honor 
 has on all occasions exprest to the 
 Council raised in us a suitable degree 
 of gratitude, so the Experience we 
 have of y^our Justice and Moderation 
 makes us hope you will not be dis- 
 pleased with this, our Just and neces- 
 sary Representation. It was not with- 
 out some uneasiness to us that were 
 present to find in the Last Commis- 
 sion of 0\'er and Terminer some other 
 persons joyned with the Council. But 
 in r-egard no criminal was then to be 
 tryed, and because we were unwilling 
 to show a publique disapprobation of 
 (33) 
 
34 
 
 what you had then been pleased to 
 determine, we thought it most respect- 
 ful to your Honor not to absent our- 
 selves. However, we must now' beg 
 leave in a more decent, and, we hope, 
 in a more agreeable manner, to make 
 our Exceptions to such Commission, 
 and we hope you will not think it al- 
 together without reason. When your 
 honor was pleased to cause her Ma- 
 jestye's Instructions to be read in 
 Council relating to this matter, and 
 after some debates had arisen about it, 
 you were pleased to declare, (if those 
 that were present remember rightly,) 
 that you had no intention to appoint 
 any other persons but the Council in 
 that Commission; and if it should be 
 otherwise, we beseech your Honor to 
 reflect how much the General Court 
 will be divested of its Jurisdiction, 
 which is not only founded on the late 
 Law, but also upon the constant usage 
 
35 
 
 of this Dominion, no Instance being 
 upon Record that any other stated 
 Court of Judicature hath had cogni- 
 zance of Life and member but the 
 General Court only, and, with humble 
 submission, there is great reason that 
 it should be so ; for it would be hard 
 that men's lives should be try'd by 
 more Inferior Judges than their For- 
 tunes, of which the last Resort in this 
 Country is in the General Court. Tho' 
 we have the most entire confidence in 
 your Honor's Justice, and do firmly 
 believe that in all things you will act 
 according to the nicest Rules of In- 
 tegrity and honor, yet in times to 
 come it may be our misfortune, in 
 your stead, to have a Governor who 
 may make a very dangerous use of 
 this Precedent. In such a Case we 
 submit it to your Honor's penetration 
 how much less security men's Lives 
 and Libertys will be under than their 
 
36 
 
 Estates, whenever it shall please God, 
 for the punishment of this Country, to 
 put it under the direction of a pas- 
 sionate and resenting Governor. It is 
 possible some may object that in Eng- 
 land other Gentlemen are frequently 
 added to the Commissions in Oyer 
 and Terminer in their Circuits thro' 
 the severall Countys, and also that in 
 this Country some Commissions of 
 this kind have been issued for Tryal of 
 the Pirates and Indians in Extraordi- 
 nary cases. To both these objections 
 we beg leave to answer as follows: 
 
 We own the Judges in England do 
 carry with them in their Circuits Com- 
 missions of Oyer and Terminer, where- 
 in some Gentlemen of the respective 
 Countys are named Associates with 
 them. But this is purely for the ease 
 of the Country, that Prisoners may be 
 tryed without the Trouble of sending 
 them up to the King's Bench. In the 
 
37 
 
 Circuits there is but one Judge to sit 
 on the Pleas of the Crown, and there- 
 fore it may be thought necessary to 
 join some other Persons in Commis- 
 sion with him. But there is no In- 
 stance of such an addition to the 
 Judges when they set upon Life and 
 Death in the King's Bench. 
 
 Those Commissions which have is- 
 sued in Virginia were sent out for the 
 Tryal of very uncommon and enor- 
 mous Crimes, but Ave humbly presume 
 that such Extraordinary Courts can't, 
 with much reason, be compared to a 
 settled Court that hath its constant 
 Returns twice every year, that holds 
 its Sessions in the Metropolis of the 
 Colony and in the very seat of the 
 General Court, and hath cognizance 
 of all breaches of the Peace, as well as 
 of Pleas that concern life and member. 
 
 Since it hath been insinuated to 
 your honor that the Council, in advis- 
 
38 
 
 ing the Continuance of this Court, had 
 too much regard for the allowance for 
 that purpose, we humbly beg leave to 
 repeat the same Explanation of our 
 meaning, that some of us made use of 
 at the time it was debated, to-wit, That 
 if we were obliged to leave our affairs 
 at home and come to attend this Court, 
 we had a fair claime to the Salary; 
 but if your Honor would please to de- 
 spatch a timely notice to us that no 
 Criminals are to be tryed, that then, 
 being put to no trouble, we should 
 -not expect any pay. Upon the whole 
 matter, we entreat your Honor to ob- 
 serve, that when we were appointed 
 members of the Council, we found 
 this Jurisdiction confined only to the 
 Judges of the General Court, and we 
 should be unwilling that our success- 
 ors should reproach us with having 
 willingly departed from it; however 
 we don't presume to measure the pre- 
 
39 
 
 rogative of the Crown in such mat- 
 ters, but humbly hope that her Ma- 
 jesty will be graciously pleased to 
 suffer such affairs to proceed in the 
 usual Method, except where unusual 
 accidents shall require an extraordi- 
 nary Exertion of her royal power. 
 However, if your honor shall see 
 cause to be of a different opinion, and 
 shall still be pleased in these Courts 
 to joyn other persons with the Coun- 
 cil, we humbly beg you will have the 
 goodness to dispence with our atten- 
 dance on such occasions for the future, 
 and shall think ourselves very unfor- 
 tunate in having Sentiments in this only 
 business opposite to your Honor's, be- 
 ing with all the duty and respect in the 
 world, Your Honor's most faithfull 
 and Most humble servants, 
 
 Jno. Custis, Robert Carter, 
 John Lew^is, Phill. Ludwell, 
 W. Byrd, Hen. Duke, 
 
 John Smith. 
 
TO THE KINGS MOST EXCEL- 
 LENT MAJESTY. 
 
 The Humble Address of the House 
 
 OF Burgesses of Virginia. 
 Alost Gracious Sovereign : 
 
 We your Majestys niost dutifull 
 and Loyall subjects the Burgesses of 
 this your Ancient Colony and Domin- 
 ion of Virginia now Assembled do 
 heartily embrace this first opportunity 
 humbly to congratulate [}'Our] Sacred 
 Majesty on the Success of your Arms 
 against those Dangerous Re[bels] who 
 blinded with party fury made such 
 desperate Efforts, for the Subvertion 
 of your Religion and Libertys and 
 Likewise to return our unfeigned 
 thanks for )-our great care of the 
 Trade of our Mother Country, of 
 which we (tho' very remote) feell the 
 (41) 
 
42 
 
 happy Influences, and do Firmly be- 
 lieve the present flourishing condition 
 of this Country is next to the Divine 
 goodness owing to the Wisdom of 
 your Majestys Councells and glorious 
 Administration. 
 
 Your great goodness displayed in 
 the tender regard you shew for all 
 your Subjects, gives us boldness at 
 this time to approach your sacred 
 person and most humbly to represent, 
 That the Honblf Alexander Spotswood 
 your Majestys Lieutenant Governor 
 pursuant to your Royall Comands 
 hath laid before this house your order 
 in Council bearing date at Hampton 
 Court the 31 of July 17 17, and also 
 your Royall Instruction dated the 27 
 of September last upon consideration 
 of which we are humbly of opinion 
 That by the said Instruction your 
 Majestys Subjects may be depriv'd of 
 the best means of raising a revenue 
 
43 
 
 for the Support of this your great and 
 most Ancient Colony, let the Emer- 
 gency be never so great, till your roy- 
 all pleasure is known therein, "Which 
 through our Naturall Scituation we 
 conceive may prove of dangerous Con- 
 sequence to the Future Safety of all 
 your good [subjjects residing here — . 
 
 Wherefore we most Humbly Im- 
 plore your Majesty that you will be 
 graciously pleased to allow us the 
 Liberty of making Laws, for the good 
 and support of this Colony as formerly 
 it being often needfull that Laws 
 should take place imediately, and as 
 the Dependance we have on Trade 
 will always make us cautious of Lay- 
 ing unnecessary burthens upon it, so 
 the Negative with which your Govern- 
 our is vested may alwayes be an • Ef- 
 fectual! Barr thereto — . 
 
 We further begg leave to represent 
 to your Majesty that the Judges of 
 
44 
 
 your General Courts have from the 
 first Settlement of this Colony had 
 Congnizance of all Criminal cases, 
 which Jurisdiction was granted to 
 them by the Letters Pattents of your 
 Majestys Royall predecessors and con- 
 firmed to them by Act of Assembly, 
 And whereas her late Majesty Queen 
 Anne was pleased by her Royall In- 
 struction to appoint two Courts of 
 Oyer and Terminer to be held in this 
 Colony every Year with the gracious 
 view that all persons Accused of any 
 Crime might be brought to a speedy 
 Tryall, The Hon^f the Lieu*. Gov- 
 ernor pursuant to the said Instruction 
 is Impowered to appoint in the said 
 Courts Avhat Judges he pleases exclus- 
 ive of the constant Judges above men- 
 tioned, Nor doth he hold himself 
 obliged so much as to take the advice 
 of his Council in the Nomination of 
 "the said Judges whereby we appre- 
 
45 
 
 hend the Governor may have the Lives 
 and Estates of your Majestys good 
 Subjects of this Colony very much in 
 his power and will be able to defeat 
 the Jurisdiction of your Majestys said 
 Generall Court whenever he shall 
 think fitt— 
 
 Therefore we most Earnestly pray 
 that your Majesty out of your great 
 goodness will direct by your royall 
 Instruction to your Governor that the 
 Judges of your Generall Court (who 
 being appointed by your Majesty out 
 of the ablest and Discreetest of your 
 Subjects in this Colony and holding 
 their places during your Royall pleas- 
 ure, have alwayes with great Honour 
 and Justice and to the General Satis- 
 faction of your people discharged that 
 great Trust) may be declared the only 
 Justices of the said Courts of Oyer 
 and Terminer, or that your Majesty 
 will be pleased to restrain this dan- 
 
46 
 
 gerous power, in such other manner 
 as you in your great Wisdom shall 
 think most proper. 
 
 To you Great Sir we fly for Succour 
 and Support, our Safety is bound up 
 in yours. Whilst you sit secure on the 
 Throne of your Ancestors [the op]- 
 pressed can never want a powerfull 
 and ready Defender and therefore for 
 our own and Countrys sake, we must 
 never cease to Implore the divine pro- 
 tection over you, That the almighty 
 would Effectually give you the hearts 
 of all your Subjects, and defeat the 
 Designes of your Knemys and con- 
 tinew the Crown in your Truly protes- 
 tant Family to all Posterity. 
 
 Mr. Corbin * reported that a Dupli- 
 cate of the Address to the King had 
 
 *Col. Gawin Corbin, of King and Queen 
 
 county. 
 
47 
 
 been examined and that the same was 
 fairly Transcribed. 
 
 Ordered 
 . That the DupHcate of the said Ad- 
 dress be signed by the Speaker. * 
 
 Resolved 
 
 That it is of absolute Necessity that 
 an Agent be appointed to Solicit the 
 Affairs of this Colony in Great Brittain 
 and particularly to present the Ad- 
 dress of this House to his Majesty. 
 
 Resolved 
 
 That VVill"^ Byrd Esq"", be and is 
 hereby appointed Agent for this Col- 
 ony and that he be desired by the 
 vSpeaker to take upon him to Execute 
 the said office pursuant to the Re- 
 solves of this House, 
 
 Resolved 
 
 That the said Agent shall be al- 
 lowed out of the Publick Treasury of 
 
 * Daniel McCarty, of Westmoreland. 
 
48 
 
 this Colony full Satisfaction for all his 
 Disbursemtf and Trouble in Negotiat- 
 ing the Address to his Majesty and 
 other Affairs of this Colony. 
 
 Ordered 
 
 That the Clark of this House pre- 
 pare two Copys of the Journalls of this 
 Session so soon as may be conveni- 
 ently done and Deliver the same to 
 the Speaker. 
 
 Ordered 
 
 That Mr Corbin, M^ Harrison,* 
 M\ Grymes,t*Mr Blair.J M^ Cono- 
 way and M'; Ethridge prepare Instruc- 
 tions to the said Agent and report the 
 same to the House and that M'; Cary 
 attend them as Clerk. 
 
 Resolved 
 
 That tis the desire of this House 
 
 * Benjamin, the son of Benjamin Harrison, of 
 Surry, and fatlier of the Signer. 
 Ijohn Grymes. 
 
 X Archibald Blair. 
 
49 
 
 that M\ Speaker Transmit to the said 
 Agent the two Copys of the Journalls 
 aforesaid, the Duplicates of the Ad- 
 dress to the King, together with such 
 Instructions as shall be agreed to by 
 this house. 
 
 Endorsed: B^ Address to y^ K. 
 and some orders, May, 1718, about 
 theyre Agent. 
 
Remonstrance of William Byrd to the 
 
 Lords Commissioners of Trade and 
 
 Plantations. 
 My Lords, 
 
 The great diligence which your 
 Lord'ps employ to rectify whatever 
 you find amiss in the Plantations, en- 
 courages me to lay before you an un- 
 happy difference betwixt the Governor 
 and the Council of Virginia, on occas- 
 ion of his haveing joined several Per- 
 sons with the Council in a Commis- 
 sion of Oyer & Terminer, which I 
 humbly conceive he could not regu- 
 larly do, for the following Reasons: — 
 
 I. The laws of that Colony, and 
 particularly the 24th in the Printed 
 Book, have most expressly limited, 
 the Tryals of life and Limb to the 
 General Court, and 'til laws shall be 
 (51)- 
 
52 
 
 repeal'd either by subsequent acts, or 
 by His Majesty's Proclamation, I 
 humbly conceive they are binding 
 against all Governors whatever. 
 
 2. King Charles the 2nd by His 
 Roial Charter, bearing date the loth 
 day of October 1676, was graciously 
 pleas'd to grant, amongst other Privi- 
 ledges to that Colony, that the Gov- 
 ernour and Council for the time being 
 should have full power and Authority 
 to hear and determine (the very Eng- 
 lish of Oyer and Terminer) all Trea- 
 sons, Murthers, Felonys, &c., to be 
 Committed within that Government. 
 Now if they were to hear or determine 
 all Pleas of the Crown, there can be 
 no room for the Lieutenant-Govern- 
 our to Constitute any other Judges of 
 Oyer and Terminer for that purpose. 
 
 3. All Criminal Cases, have by the 
 constant usage of that Colony ever 
 since its first Settlement, been heard 
 
53 
 
 and determined by the Governour and 
 Council for the time being. A cus 
 tome therefore establisht by so long 
 practice, and to which no manner of 
 Inconvenience has ever been objected, 
 ought not in reason or justice to be 
 overturned, to gratify the humour, or 
 perhaps the passions of any Gov- 
 ernour. 
 
 4. The Custome Confineing all 
 Tryals in Criminal Cases to the Gov- 
 ernour and Council, hath been founded 
 on reason and Justice, because as no 
 body must doubt of the Governours 
 being well qualifyed, so likewise the 
 Council is by His Majesty's express 
 Instruction, to be appointed out of the 
 Gentlemen of the greatest abilitys and 
 best Estates in the Country, who are 
 certainly most capable, and most 
 likely to do impartial justice betwixt 
 His Majesty, and all His Subjects. 
 Besides the Council are always ap- 
 
54 
 
 pointed by the King himself, whereas 
 the persons join'd to them in these 
 Commissions of Oyer and Terminer, 
 are only nam'd by the Lieut. Gover- 
 nour, without the advice of any body, 
 for a particular time and (it may easily 
 happen) for a particular purpose. 
 
 5. To the foregoing Reasons, may 
 be added the very fatal inconvenience 
 that may follow upon the putting it 
 into the Sole power of a Governour, to 
 try any person by what Judges he may 
 think most proper: who ever has had 
 the fortune to live in the Plantations, 
 has abundant reason to know, that 
 Governours are not in the least exempt 
 from humane frailtys. Such as a pas- 
 sionate love for money, Resentment 
 against such as presume to oppose 
 their designes, partiality to their 
 Creatures and Favorites, and many 
 other Passions, to which men in power 
 are more Subject than other people. 
 
55 
 
 Now supposeing this to be true, I 
 most humbly submit it to your Lord- 
 s'ps, whether a Governour will not 
 have it too much in his power, either 
 to condemn the Innocent, or acquit 
 the guilty, if he have the sole author- 
 ity of appointing his Judges: or 
 whether it be reasonable, that a Gov- 
 ernour, who by a most express In- 
 struction, can't appoint so much as a 
 Justice of the peace, to decide the 
 smallest property, without the advice 
 of the Council, Should yet take upon 
 him, by his own absolute will and 
 pleasure, without any advice in the 
 world, to appoint Judges, who without 
 appeal are to determine not only con- 
 cerning the Lives and Libertys, but 
 also concerning the whole Estates of 
 all those unhappy persons who shall 
 be brought before them. 
 
 6. Another great Inconvenience is 
 the bad Understanding, this Innova- 
 
56 
 
 tion must needs create betwixt the 
 Governour and Council for his en- 
 deavoring to take from them a Juris- 
 diction which they have held from the 
 first Settlement of that Colony, not to 
 mention the unhappy Disquiet it must 
 needs beget in the minds of His 
 Majestys subjects there, when they 
 find their lives and fortunes left so 
 entirely at the mercy of this Lieut.- 
 Governor, and of all the Governours 
 that may hereafter be appointed to 
 succeed him. Tis possible, my Lords, 
 that 2 objections may be rais'd to jus- 
 tify this extraordinary proceeding of 
 the Lieut.-Governour, which I beg 
 leave to lay before your Lord'ps, and 
 to answer in the following manner: — 
 Obj. 1st. — That the Governour of 
 Virginia is by His Majesty's Commis- 
 sion, authorized to appoint Courts of 
 Oyer and Terminer for the Tryal of 
 Criminals. 
 
57 
 
 Ans. The Council of Virginia are 
 very far from presumeing to dispute 
 His Majesty's Prerogative of erecting 
 what Courts he pleases in His Colonys 
 and Plantations. They only intreat 
 your Lord'ps to observe, that altho' 
 the Governour's Commission doth 
 authorize him to appoint Courts of 
 Oyer and Terminer, yet it doth not 
 empower him to Constitute such 
 Judges in those Courts, as are ex- 
 cluded by the Roil Charter, as well 
 as by the laws and constant practice 
 of that Colony : it is a known maxim 
 in law, that all grants and Commis- 
 sions issued by the King must ever 
 be constant in such a manner, as to 
 make them consist with law and jus- 
 tice. Such a construction as this, the 
 Commission to the Governor of Vir- 
 ginia may naturally receive, for the 
 Governour may doubtless appoint 
 Courts of Oyer and Terminer and 
 
58 
 
 name the Judges of those Courts out 
 of the Council, (which ought to con- 
 sist of twelve of the best qualified 
 Gentlemen of that Country,) from 
 amongst whom he may appoint a 
 competent number, without trans- 
 gressing any law, or incurring any 
 inconvenience whatever, by which 
 means, both His Majesty's Commis- 
 sion on the one hand, and the Royal 
 Charter, as well as the laws of the 
 Colony, on the other, will remain in 
 their full force and virtue. 
 
 Obj. 2nd. — Just after Bacon's Re- 
 bellion, there was a Commission of 
 Oyer and Terminer, wherein Sir John 
 Berry, Colo. Jeffreys, and Colo. Mor- 
 rison were join'd to the Council, and 
 since that there have been other Com- 
 missions issued, wherein the respective 
 Governours have nam'd other persons 
 for Judges, besides the Council, for 
 the Tryal of Pyrates and Indians, 
 
59 
 
 Ans. As to the first of these Com- 
 missions, it was issued just after a 
 RebelHon wherein several! of the 
 Council were suspected to be involved, 
 which I thank God, is now very far 
 from being the case, all the Councill 
 being as firm to the Interest of His 
 Majesty, as any the most loyal of His 
 Subjects. There was in that case, a 
 necessity of chooseing other Judges; 
 which might justify the stepping out 
 of the common road for that time; but 
 it can never be drawn into Precedent 
 to countenance the doeing it in ordi- 
 nary cases. And then, My Lords, as 
 to the few Instances of Commissions 
 granted for the tryal of Pyrates and 
 Indians, your Lords'ps will easily dis- 
 cern, that neither of these Kind of 
 Criminals could with any propriety be 
 accounted Inhabitants of that Colony, 
 and consequently were not entitled to 
 the benefit of the Roial Charter, which 
 
6o 
 
 was granted in express terms only to 
 His Majesty's Subjects, Inhabitants 
 within the Colony of Virginia. But 
 whether even these Courts of Oyer 
 and Terminer were consistent with the 
 laws of that Country, I must submit 
 to your Lords'ps. If they were not, 
 'tis certain that the violation of any 
 law in times past, can't excuse the 
 Transgressing of it now. But suppos- 
 ing the best, that these Commissions 
 were not contrary to law; yet such 
 extraordinary cases can never be set 
 up as Precedent to justify the joining 
 other persons with the Council in a 
 Regular Court, that by His Majestys- 
 Instructions, is to have its returns 
 twice every year, and which taketh 
 cognizance of Breaches of the Peace, 
 as well as of picas that concern life 
 and member. 
 
 Upon the whole matter, in regard 
 that this step of the Lieut.-Governour 
 
6i 
 
 has been made, contrary to the Ex- 
 press terms of the Royal Charter, in 
 violation of the laws of that Colony, 
 and against a constant usage, founded 
 on reason and justice, and since such 
 fatal Inconveniences may attend the 
 Governour's being invested with so 
 absolute power, from which no advan- 
 tage can accrue to His Majesty's, I 
 make no doubt, but your Lords'ps 
 will please to give such directions, as 
 may put a stop to this Innovation and 
 prevent its being drawn into precedent 
 for the future, lest that which was gra- 
 ciously intended by His Majesty for a 
 privilege and advantage to the good 
 Inhabitants of that Colony, may be 
 turned to their apparent danger and 
 oppression. 
 
 End. 
 
LIBRftRY OF CONGRESS