Volume 14 , Issue 48

History of Rockbridge County, Virginia - Civil Government (1737-1852)

This week we continue with the civil government of Colonial Virginia (1732-1852). For about forty years after the beginning of settlement, the laws and institutions under which the people of Rockbridge lived were those of Colonial Virginia. For almost twice as long a period, or until the constitution of 1851 went into effect, there was no very striking change. The coming in of the new order was an illustration of the fact that progress is ordinarily by easy steps and not by jumps.

After independence, the law-making body was the General assembly, but it was the House of Burgesses under a new name. There was still a Governor's Council, and it was very much like the old one. The governor was now a Virginian instead of a Briton, but like the colonial governor he lived in style, attending to his official business he followed much the same routine. The Constitution of 1776 left things a good deal as it found them. There was a re-statement of the source of Virginia law, so that there might be a definite recognition of the fact that the state was no longer a part of the British Empire. Juries no longer said that "we find for our Lord the King."

The independence party had a conservative and a progressive wing. The former wanted independence, but with the least possible change otherwise. The latter also wanted independence, but it also wanted to make Virginia a republic, so that it might be no longer a constitutional monarchy. The early years of independence showed that the conservative element was in control and that the progressives had scored only a few points in their program. As the years went by, there was a slow but rather steady yielding in the conservative viewpoint.

The dis-establishment of the state church came early, yet only after strenuous opposition. The penal code was ameliorated. Modifications crept here and there into the working of the machinery of government. But the constitution of 1829 was dictated by the conservatives, whose stronghold lay east of the Blue Ridge. To the progressives the new instrument was like a stone instead of a loaf of bread. It was not until 1852, when the third constitution came into effect, that the progressives won anything like a general victory.

Until that date, and with respect to economics as well as institutions, the people of Virginia continued to live under conditions that were essentially colonial. The modern era was not fairly under way until the middle of the later century.

Until 1776, the common law of England, supplemented by the enactments of the House of Burgesses, was the law of Virginia. The statutes passed by the colonial legislature were expected to conform to the British practice. The king's veto, which was dictated by the Board of Trade, was freely used, and it went so far as to frustrate the attempt to incorporate some town or village. After independence these annoyances were a thing of the past.

Under the foreign regime, the governor was an appointee of the British crown and acted as its personal representative. Sometimes he remained in England and enjoyed the actual title, the duties of the office being performed by a deputy. But the official that appeared in Virginia lived in pomp and drew a very large salary, even for that age. He was able to wield a great influence, although he was commonly an overbearing aristocrat, who took little pains to acquire the Virginian point of view. After 1776 and until 1852, the governor was an appointee of the Assembly and was not elected by the people. The royal governor could remit fines and forfeitures, and he could veto any bill. He could grant pardon for any crime except treason or willful murder, and in these instance he could reprieve.

In colonial times there was a Council of eight members, who were appointed and not elected. They served an indefinite time and had a monopoly of most places of honor and trust. They assisted the governor and acted as a supreme court. This council of eight was continued a after independence. The members of the House of Burgesses were chosen by popular vote, and there were two from each county. Until 1830, there were likewise two members from each county in the House of Delegates, regardless of the matter of population. After 1830 there was a more equitable arrangement, and it was based on the number of people in the various counties. The Senate of 1776 contained twenty-four members.

Under colonial rule the elective franchise was much restricted, and this continued to be the case until 1852. In effect, there is as much restriction now as there was then, even among the whites. But whereas the small vote now polled in the average county of this state is largely due to indifference, it was formerly due to a property qualification. Voting was viva voce. Until 1852 the burgess or delegate was almost the only public official, state or local, who was dependent on popular vote.

For a long while there was no higher judicial tribunal than the Council, Under independence, there was a State Court of Appeals, any three of its five members constitution a minor court. Rockbridge formed with Augusta, Rockingham, and Pendleton a judicial circuit, its judges having full jurisdiction in civil and criminal causes, and original jurisdiction in all causes involving a consideration of more than 100 pounds. The affairs of each county were looked after by the county court, a body which until 1852 was almost the same thing that it was in 1737. It was a self-perpetuating, close corporation, and had more extensive powers than those of the present Board of Supervisors. When a new county was established, its first board of worshipful justices was nominated by the court of the parent county. When vacancies occurred, or when there was a desire to increase the membership, nominations were made by the court and commissions were issued therefrom by the governor. The county court was therefore not responsible tot he people.

The system was not democratic. The justices were chosen from the most influential families, and were often related to one another. The office often descended from father to son. It was in the power of the court to use partiality toward its friends and its own membership, and to be arbitrary and tyrannical. But in practice the working of the system was in the direction of good government. The justices felt the responsibility of their position and were in touch wight he people. They were not only justices of the peace, but acted collectively, or by classes, as a board of county commissioners. They served without pay. They held office for an indefinite time, but the governor might remove a justice for cause. Until 1830 there was no positive limitation on the number of justices. Four justices made a quorum and opinions were decided by a majority vote.

Jurors were ordinarily chosen from the locality of the issue they were to pass upon. Tavern-keepers, surveyors of roads, and millers were exempt from gran-jury service. IN 1793 the allowance to a witness was fifty-three cents a day, in addition to four cents for each mile of travel. In 1808 the court day for Rockbridge was changed to the Monday after the first Tuesday in each month.

A petition of 1802 complains that the recovery of small debts is difficult, and asked that the jurisdiction of single magistrates e extended to $20. It also asked that constables be required to give security for the faithful discharge of their duty, and for the same service as a sheriff to be allowed the same fee.

Each year the court sent to the governor the names of one to three of the senior members, one of whom was commissioned by him as sheriff. But the high sheriff sold out the office to the highest bidder, sometimes at auction, so that the actual work was done by his deputies, while he enjoyed the honor and something of the emoluments.

The county lieutenant was an appointee of the governor and might be regarded as his deputy. He had charge of the militia of the county, and ranked as a colonel in time of war.

The courthouse known to the people of Rockbridge in 1746 was the one first built in Augusta. It was of hewed logs, and was eighteen by thirty-sight feet in size. There were two little windows unprovided with glass or shutters, but some light came in through unchinked spaces between the logs, a number of these openings being several feet long and several inches wide. The jail was smaller and not very secure. The first courthouse authorized a Lexington was almost as primitive as the one at Staunton. Prisoners might walk about within the jail limits, which covered five to ten acres. A prisoner for debt might live in a house if it were within such limits.

The laws of the colonial era were harsh. Virginia was more humane in this respect than England, and yet twenty-seven offenses were recognized as punishable by death. In 1796 this number was reduced to one. Lashes at the public whipping-post, on the bare back and well laid on, were frequently ordered, thirty-nine being the limit at any one time. Women were thus punished as well as men. Imprisonment for debt continued until the middle of the nineteenth century. By this time the pillory, the whipping-post, and the practice of branding the hand had become relics of a past age. The spirit of the time demanded amore humane administration of the criminal code.

Each year several men were appointed by the court to list the tithables, this term being given to those individuals who were subject to head-tax. Aged men, any men who were objects of charity, and boys under the age of sixteen were exempt. Old or infirm servants were also exempt, but a widow who was the head of a household was subject to levy.

British law followed the Roman in holding that the crown was a personification of the state. Therefore, by virtue of a legal fiction all public lands were held to be the property of the king. Patents for them were made out in his name and signed by the royal governor as the king's deputy. The Revolution swept away this rubbish and recognized the public domain as belonging to the state instead of a theoretical person. The land seeker, armed with a warrant from the state treasury, perhaps the result of military service, applied tot he county surveyor and had a tract set off. This survey was the basis on which a patent was issued after the lapse of one or two years or perhaps a much longer period.< The survey might be assigned to another man, and several assignments might precede the patent. A transfer of this sort had to be attested by two witnesses. There was much trading in land warrants, and some money was made in these transactions. Regularity in surveying was seldom observed. The first comer ran his lines in any fashion that would give him a maximum of good land and minimum of cull land. The surveyor held office during good behavior.

In land conveyances before the Revolution, there was followed the English practice of drawing two instruments for the same transaction; a deed of lease and a deed of release, so that deeds are recorded in paris in the deed-book. The consideration named in the first is usually five shillings. The deed of release, which was the real and effective instrument, is dated one day later and names the actual consideration. There was sometime mention of the purchaser receiving from the seller a twig in token of possession. The revolution also did away with this clumsy practice of issuing deeds in paris, each one stuffed full of verbose legal technicalities.

Until 1776, a quitrent of one shilling for each fifty acres was exacted from purchasers of the public domain. This requirement was very much disliked, and was regarded as a cloud on the title. After American independence was declared, the quitrent was speedily abolished.

The processioning of private holdings of land was begun in 1747. Every four years, men appointed for that purpose by the vestry, and afterward by the county court, makes the corners of the surveys. This had to be done between October 1st and April 1st. In 1797 the payment per day for this service was fifty cents. The practice fell into disuse, but was revived by a law of 1865-66.

Religion was not free in Virginia until just after the close of the revolution. The established church was the Church of England, known to us as the Episcopalian. It was supported by general taxation, and each parish owned a farm known as a glebe. On this the rector lived. In theory, and to a limited extent in fact, attendance at the parish chapel was compulsory. Other Protestants were known as Dissenters. Their houses of worship had to be licensed and registered by the county court, and their ministers and to take various oaths. But west of the Blue Ridge, where few people adhered to the Establishment, there was and could be no persecution of the Dissenters. To learn the attitude of the Virginia government, the presbyterian Synod of Ireland addressed a memorial to Governor Gooch in 1738. It brought this reply:

As I have been inclined to favor the people who have lately removed from other provinces to settle on the western side of our great mountains, so you may be assured that no interruption shall be given to any minister of your profession, who shall come among them, so as they conform themselves to the rules prescribed by the Act of Toleration in England, by taking the oaths enjoined thereby,a nd registering the place of their meeting, and behave themselves peaceably toward the government.

The governor promised nothing to the Ulstermen that the laws did not already permit. He merely said in effect that the newcomers would be let alone, so long as they obeyed the laws. There was no limitation on the number of their houses of worship, yet they had to contribute to the support of the Establishment just the same as if they had settled on the otter side of the Blue Ridge. Their ministers were not permitted until the close of 1781 to untie couples in marriage. John Brown married two couples in 1755, but finding he was violating a law, he did not again perform a marriage ceremony for twenty-six years. The people of the Valley were restive under the disabilities imposed on them, and were nearly unanimous in helping to secure religious freedom for Virginia, this end being accomplished in 1784. It was claimed, and probably with reason, that the lack of express toleration kept thousands of intending immigrants out of colonial Virginia.

The ruling element in colonial Virginia held that education was a private and not a public interest, and that schooling was rob e purchased like clothing or groceries. The constitution of 1776 is silent on the subject. The mention of schools in the public records was accordingly very meager and incidental. We find mention of a schoolhouse in 1753, which was sixteen years after the coming of the McDowells. It was not at all probable that it was the only one, or that it had just been built.

During the colonial time a marriage was solemnized by the parish minister or parish reader, but the certificate he gave was not deposited with the county clerk. The public recording of marriages did not begin until about the close of 1781, and it was therefor difficult to secure definite knowledge of unions that took place before that date. By the new practice, the groom was required to sign a bond of fifty pounds. His surety was commonly the bride's father. If eighteen groom or bride were under the age of twenty-one, and this was very often the case, the consent of the parent or parents had to accompany the bond, which served as a license. The consent was ordinarily written on a narrow scrap of paper, and often with poor ink. The signature, if not in the form of a mark, was usually crabbed and more or less difficult to make out. This scrap, not always unsoiled, was folded into a small compass, making it look like a paper of epsom salts as put up by a doctor before tablets and capsules came into use. The bonds were filed away in bundles. This system was in force until 1852.

Personal liberty was so highly prized on the old frontier that a certain statute of 1661 must have seemed irksome tot he settlers. This law made it illegal for any person to remove out of his county until after setting up his name for three Sundays at the door of the church or chapel of his parish. This notice had to express his intention and certify where he was about to go. It was then attested by the minister or reader and the church-wardens, who gave him license to go. The order-books of Augusta indicate that this law was not a dead letter.

The house of entertainment was called an "Ordinary." The prices the tavern-keeper might charge were regulated by the county court with great exactness. These rates had rob e posted in the public room and not above a specified height front he floor. This care was not needless. Extortion would otherwise have been more possible.

Money was computed, as in England, in pounds, shillings, and pence. But on this side of the Atlantic these names applied to values and not to coins. Because of the depreciation of the colonial money, British coins did not freely circulate here. The hard money in actual use came from the West Indies, and was of Spanish, French and Portugese coinage. It was by way of the West Indies that the Americans became acquainted with the "piece of eight," or Mexican dollar. The ear lies mention of the dollar by name, in the Augusta records, was in 1752. The fact that the Mexican dollar subdivided so readily into the terms used in computing the colonial money, is the leading reason why the dollar, a well known coin, became the unit of Federal money. Under the names of "levy" and "tip," the real and half-real were legal tender in the United States until near the beginning of the war of 1861.

We find that copper pennies were coined for Virginia in 1733. This coin was worth almost exactly one cent. Paper money of colonial issue began to appear in the colony in 1755. The ten-pound note was not quite one-half the size of a postal card, was crudely engraved, and was to easy to counterfeit. Warehouse certificates for tobacco also passed from hand to hand as money and did not need endorsement. There were no banks, and whn a large stock of money was on hand it was secreted.

Money, whether of metal or paper, could be counterfeited with more impunity than was possible today. We not infrequently find mention of bad bills and suspicious doubloon certificates.   |  View or Add Comments (0 Comments)   |   Receive updates ( subscribers)  |   Unsubscribe

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