The Publick Gaol in Williamsburg represents the actual administration of justice as it was carried out in Colonial Virginia. A year after the gaol was put into use, the General Assembly enacted An act for establishing the General Court, and for regulating and settling the proceedings therein, which included, as part of the oath of a judge of the General Court, the promise that
"...you shall do equal law, and execution of right, to all the queen's subjects, rich and poor, without having regard to any person..." (Hening, III, p. 290)There is ample evidence in the records that the courts throughout the colony followed this injunction to the best of their abilities.
It is dangerous and unfair to assess the actions and accomplishments of eighteenth century Virginians on the basis of twentieth century opinion and practice, or to attempt to pass value judgments on the past. For this reason, I have chosen to avoid drawing conclusions or intruding my own opinions and have permitted the colonists, through the written records they left, to speak of their justice in their own words. I have attempted to remain within the perspective of the eighteenth century, rather than that of our own century.ii
|Americana||The Encyclopedia Americana, New York: Americana Corporation, 1960.|
|Col. Va. State||Palmer, W. P., & Palmer, M. D. (Eds.) Calendar of Virginia State Papers and Other Manuscripts. Richmond: Virginia state Library, 1875.|
|EJCCVa||McIlwaine, H. R., & Hall, W. L. (Eds.) Executive Journals of the Council of Colonial Virginia. Richmond: Virginia State Library, 1925-1945.|
|JCSVa||McIlwaine, H. R. (Ed.) Journals of the Council of State of Virginia. Richmond: Virginia State Library, 1931.|
|JHB||McIlwaine, H. R. (Ed.) Journals of the House of Burgesses of Virginia. Williamsburg, 1778, 1781.|
|LJCCVa||McIlwaine, H. R. (Ed.) Legislative Journals of the Council of Colonial Virginia. Richmond: Virginia State Library, 1918-1919.|
|OED||Murray, J. A. H., Bradley, H., Craigie, W. A., Onions, C. T. Oxford English Dictionary, Oxford, England: University Press, 1933.|
|Research||Department of Research and Record. Data on the Public Gaol. Williamsburg: Colonial Williamsburg, Inc., 1934.|
|Va. Gazette||The Virginia Gazette. Williamsburg, 1736-1780. Editors as follows:|
|Purdie and Dixon, 1766-1733. (Listed PD).|
|Rind, 1766-1777. (Listed Rind).|
|Dixon and Hunter, 1775-1776. (Listed DH).|
|Pinkney, 1775-1776. (listed Pi).|
|Purdie, 1775-1778. (Listed P).|
|Dixon, Hunter, and Nicholson, 1778-1779. (Listed DHN).|
|Dixon and Nicholson, 1780. (Listed DN).|
|Va. Mag.||Virginia Magazine of History and Biography|
|W & M Quarterly||William and Mary Quarterly Review, Series 1.|
In the Letters of Patent for the colony of Virginia issued by James I on April 10, 1606, the King granted
"...that all and every the persons, being our subject, which shall dwell and inhabit within every or any of the said several colonies and plantations, and every of their children, which shall happen to be born within any of the limits and precincts of the said several colonies and plantations, shall have and enjoy all liberties, franchises, and immunities,... to all intents and purposes, as if they had been abiding and born, within this our realm of England..." (Hening, I, p. 64)The rights so granted were essentially those provided by the Magna Carta, although as other rights were granted to Englishmen through act of Parliament during the colonial period, these were also extended to the colonists.
The Magna Carta, enforced on King John in 1215 by the feudal barons, was in a large measure a formalization of the feudal contract, and as such no longer applied in 1606. However, two chapters dealt with more abiding rights which are still claimed by people. Chapter 12 stated that the King could not levy taxes or revenue without "the common counsel of our realm," i.e., without the approval of some assembly representing the people. (Americana, XVIII, p. 123a) Chapter 39 stated that
"No freeman shall be seized, or 2 imprisoned, or dispossessed, or outlawed, or in any way destroyed, nor will we condemn him nor will we convict him to prison, excepting by the legal judgment of his peers or by the laws of the land." (Americana, XIII, p. 604)Thus, the concepts of taxation only with representation, trial by jury, and due process of law are specified in the Magna Carta. Although the writ of habeas corpus is not directly specified, the concept is embodied in this document in that the primary purpose of habeas corpus is to obtain relief in cases of confinement or restraint without due process.
Parliament compelled Charles I to accept the Petition of Right in 1628. This reiterated the need for "due process" and the requirement of Parliament's consent to taxes. It also forbade the billeting of soldiers upon citizens without payment, stated that martial law could not be proclaimed except in time of war, and allowed the right to petition Parliament for redress of a grievance.
In 1679 Parliament passed the Habeas Corpus act. This act provided for the issuing of a writ directed to a person detaining another, commanding him to produce the imprisoned individual at a designated time and place. Its purpose was to permit a judge to determine whether the person was being detained without due process. Although the writ had been in use for some time in England, the Crown did not always permit it to be granted. The act merely compelled the King to accept its use at all times. The Act was not mentioned in the colony until 1710, when, in his opening speech to the General Assembly, Governor Spotswood stated that
"I am now glad to Tell you her 3 Late Royall Instructions to me Contain Such an Indulgance to her Subjects here by granting Them ye benefit of The Habeus Corpus Act..." (JHB, IV, p. 240)The privilege is not actually mentioned in Virginia statute until 1736, when an act provided that anyone confined in a county gaol in a civil action which came under the jurisdiction of the General Court
"it shall and may be lawful for such person to sue out a habeas corpus, cum causa, to remove his or her body to the public gaol at Williamsburg, and the cause of such commitment into the general court..." (Hening, IV, p. 489)
In 1688 William and Mary accepted the Toleration act which provided freedom of worship to Protestant dissenters who would make a declaration against transubstantiation and take the oaths of allegiance and supremacy. It also provided that Quakers could affirm rather than swear whenever an oath was required by law, and that this would be considered adequate.
"An Act declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown," was passed by Parliament and signed into law by William and Mary on December 16, 1689. This was essentially a statement of the conditions under which the new monarchs were invited to the throne.
"It declared it illegal, without the consent of parliament, to suspend or dispense with laws, to erect commission courts, to levy money for the use of the crown without the consent of Parliament, and to raise and maintain a standing army in time of peace. It declared that subjects had the right to petition the king, and if Protestant, to carry arms for defense; also that elections of 4 members of Parliament should be free, and that freedom of speech and debate in Parliament should not be impeached or questioned out of Parliament. It further condemned excessive bail and fines and cruel and unusual punishments, and declared that jurors should be duly empaneled, and, in trials for treason, should be freeholders. It denounced grants of fines before conviction and declared that, for the redress of grievances and the preservation of law, Parliament should be convoked frequently." (Americana, III, p. 703)
The 1606 Letters of Patent also granted one other privilege of Englishmen to the colonists, the right to benefit of clergy for felonies punishable by death, except
"tumults, rebellion, conspiracies, mutiny, and seditions,... together with murther,...incest, rapes, and adulteries." (Hening, I, p. 69)Benefit of clergy was originally the right of clerics to be tried only in ecclesiastical courts, regardless of the crime, and implied avoidance of the death penalty which the ecclesiastical courts did not use. It was eventually extended to include avoidance of the death penalty for all who could prove that they could read, but Parliament by statute then limited the crimes for which clergy could be granted. In 1732, the General Assembly, followed the lead of Parliament, in passing a law which granted that
"where a man, being convicted of any felony, may demand the benefit of his clergy, if a woman be convicted of the same or like offence, upon her prayer to have the benefit of this act, judgment of death shall not be given against her upon such conviction,...but she will suffer the same punishment as a man should suffer in the like case; That is to say, shall be 5 burnt in the hand by the Jailor in open court..." (Hening, IV, p. 336)This law also did away with the reading requirement for benefit, and was extended to negroes, mulattoes, and Indians, but in these cases, the law provided that the felon would
"be burnt in the hand in open court, by the jailor, and suffer such other corporal punishment, as the court shall think fit to inflict..." (Hening, IV, p. 335)Furthermore, the law specified that clergy was not to be granted to negroes, mulattoes, or Indians found guilty of manslaughter, breaking and entering at night, and breaking and entering in the day if more than five shillings were stolen. In actuality, benefit had been previously extended to the various groups mentioned in the act, but without the grounding in statute now provided. The case which brought about the statute was one involving a negro woman;
"Mary Aggie, a Christian Slave belonging to Anne Sullivan of the City of Williamsburgh widow was at a court of Oyer & Terminer held in York County Convicted of Felony for which if she was a Free woman she ought to have the Benefit of the Statute made in the 3d & 4th of King William & Queen Mary It is ordered that a pardon be prepar'd for her upon condition that she be transported out of this colony to some other of his Majesties plantations there to be sold as a Slave." (EJCCVa, IV, p. 243)This case was decided by the Council in 1731 and was the case that necessitated the actual passing of a statute to avoid further confusion.
The acts of the General Assembly not only give evidence of their reliance on these various rights, but include many instances in which they extended the interpretation placed on the 6 original documents. In 1645 the Assembly claimed the right to taxation only be representation when they
"enacted and confirmed that no leavies be raised within the collony but by a Generall Grand Assembly." (Hening, I, pp. 319-320)This came up for discussion in 1666, when "The honourable governour sent knowledge of his pleasure to the house that two or more of the councel might join with the house in granting and confirming the sums of the levy.
"The humble answer of the house is, that they conceive it their privilege to lay the levy in the house, and that the house will admit nothing without reference from the honourable governour and councel unless it be before adjudged and confirmed by act or order, and after passing in the house shall be humbly presented to their honours for approbation or dissent." To this, Governor Berkeley answered that
"This is willingly assented to and desired to remain on record for a rule to walk by for the future, which will be satisfactory to all." (Hening, II, p. 254)Underneath the flowery language, the house had "humbly" announced that only they would decide the levy, based on the fact that they were the representative assembly, although the governor and council would retain a veto.
In England the right to elect these representatives was limited to freeholders, men possessed of a certain amount of property. The colonists initially granted voting rights on a more liberal basis, and in 1646 suffrage extended to all freemen. (Hening, I, p. 333) From that time, however, the Assembly vacilated between limiting it to "all housekeepers whether ffreeholders, lease holders, or otherwise tenants," or extending 7 it to all freemen. (Hening, I, p. 203; I, p. 412; I, p. 475; II, p. 280; II, p. 356) The controversy was finally settled in 1677 by the instructions of Charles II to Governor Berkeley:
"You shall take care that the members of the assembly be elected only by ffreeholders, as being more agreeable to the custome of England, to which you are as nigh as conveniently you can to conforme yourselfe." (Hening, II, p. 425)In 1699, the Assembly specified a further set of restrictions on who could vote:
"noe woman sole or covert, infants under the age of twenty one years, or recusant convict [popish] being freeholders shall be enabled to give a vote..." (Hening, III, p. 172)Beginning in 1736 a specific amount of property necessary to qualify one as a freeholder allowed to vote was stated by statute, and this remained in effect throughout the remainder of the colonial period. (Hening, IV, p. 475; VII, pp. 517-530; VIII, pp. 305-317) The 1736 law also extended the vote to Quaker freeholders who could affirm rather than swear to their holdings. In 1762, the law further disqualified convicts under sentence, and free negroes, mulattoes, and Indians from voting.
The qualifications of office holders in the colony were also rather restrictive. They did, of course, have to be members of the established church. Furthermore, in 1654 the Assembly decided that Burgesses
"shall be such and no other then such as are persons of knowne integrity and of good conversation and of the age of one & twenty yeares-" (Hening, I, p. 412)In 1676 the law further extended the qualifications, by requiring that no person hold two civil offices at the same time, that persons who were not native born had to establish residency during a 8 period of three years, and that
"no person or persons whatsoever convicted of any notorious crime, shall be capable of having, holding or enjoying any office..." (Hening, II, p. 353-355)
The right of the accused to be tried by a jury in criminal cases was provided for in the Letters of Patent of 1606. (Hening, I, p. 70) In 1657, the Assembly reasoned that "because it is very requsite that parte of the jury at least should come from thence who by reason of their neere acquaintance with the busines may give information of diverse circumstances to the rest of the jury," the clerk of the General Court should "send a venire facias to the said sherriffe to impannell six men of the ablest and nearest of the inhabitants of his county to that place where the fact was committed to be of the jury for the tryall of that cause..." and that these were to be joined by six or more bystanders. (Hening, II, pp. 63-64) As the defendant in a criminal case was allowed a certain number of peremptory challenges, and both the defendant and the Crown were allowed a number of challenges with cause, there were not always six men from the vicinity of the crime on the final jury to be formally empanneled. In 1699, the Assembly made an attempt to assure the high quality of men serving jury duty by requiring that
"no person or persons shall be enabled or capable to serve as jury men in and upon any jury or juries in the generall court..., but those who are ffreeholders, and whose lands and goods, that is to say reall and personall estate are visibly or the reputed value of one hundred pounds sterling and not under and that noe person or persons shall be enabled or capable to serve as jurymen in and upon any jury in any county court..., 9 but those whose lands and goods...are visible or the reputed value of fifty pounds sterling and not under." (Hening, III, p. 176)This act applied to both civil and criminal cases, and went farther than the English Bill of Rights passed ten years previous which only required jurors to be freeholders in trials for treason. This property requirement for freeholders to serve on juries remained in effect throughout the colonial period, and strict fines were imposed on freeholders who failed to answer a summons for jury duty. (Hening, III, p. 367-371; IV, pp. 403-405; V, pp. 523-526) In 1734, an act was passed "for the better defending of the right of the subject, to be tried by twelve jurors of his vicinage," which required twelve persons to be summoned from the county where the crime was committed,
"which twelve freeholders so returned, or so many of them as appear, not being challenged, together with so many other good and lawful freeholders of the by standers as shall make up the number of twelve men, shall be...a lawful jury..." (Hening, IV, pp. 403-404)In 1738, taking into consideration the fact that the colony paid travel expenses for juries summoned to the General Court from distant counties, the Assembly decided that
"most of the felonies, and other capital offences committed in this colony, are perpetrated and done by persons who have been convicted of felony, or other crimes in great Britain or Ireland, and there sentenced to be transported for the same. And it can be no benefit or advantage to such persons, who are commonly servants, and little known in the neighborhood where they live, to have a jury of the vicinage; but they may be as fairly and impartially tried by a jury of the by-standers..." (Hening, V, 10 pp. 24-26)However, these bystanders were still required to fulfill the property requirements for jury duty, and it was only in case of a convict whose sentence was still in effect that this procedure was to be used.
In 1642, the General Assembly provided that in civil cases, "if either plt. or deft. shall desire the verdict of a jury for the determining of any suite depending within any of the courts of this collony, he or they shall signifie therein their desire by petition under his or their hands unto the said courts..." and the privilege should be granted. (Hening, I, pp. 273-274) In 1661 the Assembly reviewed this requirement that one must petition in advance to have a case heard by a jury, and concluded that this
"restriction is quite contrary to the law of England, by which tryalls of all matters of fact is as appropriate and inherent in the jury as matters of law is in judges; for which cause...every morning the court sitts, whether the generall or the county court, the sherriffes of the county which it sitts shall empannell a jury to attend the court that day, to try such causes as the court shall find proper to be referred to them, And that when ever a jury is sent out, an officer sworn to that purpose shall keep them from meat and drink until they have agreed upon their verdict." (Hening, II, p. 73)The last provision must have done away with any problems of hung juries during the colonial period. This provision for juries to be summoned whenever court was in session to hear civil cases remained in effect throughout the remainder of the colonial period. (Hening, III, pp. 367,371; V, pp. 523-526; VI, p. 349) 11
The colonists also believed that persons involved in either civil or criminal trials had the right to have witnesses testify for and against them. In criminal cases, the law required
"the countie to pay the charge of the evidences." (Hening, I, p.449)The law also provided
"alwayes that in criminal cases all witnesses be bound over to give their evidences viva voce at the tryall in the general court." (Hening, II, p. 67; III, pp. 287-302; V, pp. 467-488; VI, pp. 325-350)Witnesses in civil cases were summoned by the clerk of the court, could give their evidence by deposition if old or infirm, and were to be paid, if traveling far, as a part of the court costs paid by the loser in the case. (Hening, II, pp. 23-24, 67; III, pp. 287-302; pp. 504-516; IV, pp. 182-197, p. 523; V, pp. 467-508; VI, pp. 325-350) Witnesses who failed to appear were severely fined, and
"all witnesses subpened to give in his or their evidences in any cause, and refuseing to give in his evidence upon oath shall be comitted to prison there to remayne untill he doe take his oath and give in his evidence." (Hening, II, pp. 23-24, 69, 167-168; III, pp. 287-302)Finally, the law provided that
"all persons subpoened as evidences or witnesses in any cause or matter depending in any court in Virginia, shall be free from arrests for any debt or trespass (except at the kings suite) during their attendance att courts and their direct comeing to court and returning him, &c." (Hening, II, p. 503)In 1677, the Assembly offered an explanation of the laws compelling witnesses to testify, as follows: "Upon a motion from Acomack county, sent by their burgesses, It is answered and declared, that the law was provided that a person summoned as a witnes 12 against another, ought to answer upon oath, but noe law can compell a man to sweare against himselfe in any matter wherein he is lyable to corporall punishment." This is the first known record that the privilege against self-incrimination was granted in Virginia during the colonial period.
The right to be represented by an attorney was defended by an act providing
"that no attorney licensed as aforesaid shall refuse to be entertayned in any cause as aforesaid, provided he be not entertayned by the adverse party..." (Hening, I, p. 285-6)Attornies fees were ascertained by law, and strict fines were imposed on those who attempted to charge more. (Hening, I, pp. 275-276; II, pp. 478-479; IV, p. 59, 182-197, 340-353; Vi, pp. 181-182; VI, pp. 371-372; VII, pp. 397-401)
Throughout the colonial period, the House of Burgesses maintained a standing committee to hear grievances. At first there was no formal procedure to be followed in submitting such grievances, but by 1680 it was felt necessary that the law specify that "the sherrife of each county shall before every session of assembly appoint a tyme and place for presenting, giving and receiving all county grievances which shall be signed by the partyes giving the same and attested by the clarke of the county court, or chief magistrate" before they could be submitted to the Assembly. (Hening, II, p. 482)
There is no record that billeting soldiers was ever practiced in Virginia, nor are there any laws on record which govern such. The major reason for this is that there was never a standing army maintained in Virginia. The militia, composed of every able-bodied man between 16 and 60 not otherwise exempt, lived at home 13 and was only called up in time of emergency. As most of these emergencies consisted of frontier skirmishes with Indians, there would never have been any occasion requiring such billeting. Impressment was practiced during the colonial period, and did come up for criticism at least once. In 1648,
"this Assembly having knowledge that divers persons upon occasion of a presse of souldiers by warrant from the Govern'r or by order from the Gov'r. and council out of a mistake in opinion thereby infringed and themselves particularly injured, the authority of an Assembly not concurring therein, It is therefore thought fitt not by law to establish, but to declare the judgment of this Assembly uppon perusall of his ma'ts. commission and instructions that be vertue of the said com'on and instructions full and ample power is derived from his Majesty to the Governour and Council to make peace and warr, and as a necessary consequent to levy or presse men or other provisions for the warr upon any emergent occasion to which power in the commission litterally expressed, we may not presume to conceive that any act of Assembly can add strength or vigor." (Hening, I, p. 355)In 1677, the form of due process for such impressments was specified as follows:
"noe person whatsoever shall presume to impresse any sloope, shallop, boat, or other vessell, horses, carts, armes, provisions, goods or merchandizes whatsoever without suffitient warrant..." (Hening, II, p. 416)This act further stated that all such goods were to be appraised by two independent men, and their value was to be paid the owner by the county.
The local administration in the colonial period was largely in the hands of the churchwardens and vestries of the Anglican parishes. In 1642, the General Assembly directed that
"there be a vestrie held in each parish, for the making of the leavies and assessments...and that there be yearly chosen two or more churchwardens in ever parish. That the most sufficient and selected men be chosen and joyned to the minister and churchwardens to be of the Vestrie." (Hening, I, pp. 290-291)In 1644, it was established "that the election of every vestry be in the power of the major part of the parishioners who being warned will appear to make choice of such men as by pluralitie of voices shall be thought fitt." (Hening, I, pp. 290-191) In 1661-2, the duties of the vestry were more clearly specified by law: "That for the making and proportioning the levyes and assessments for building and repayring the churches, and chapells, provision for the poore, maintenance of the minister, and such other necessary duties for the more orderly manageing all parociall affaires, Be it enacted that twelve of the most able men of each parish be by the major part of the said parish, chosen to be vestrymen." (Hening, II, pp. 44-45) The vestry was in addition, responsible for selecting and paying the minister of the parish.
Most of the actual civil and judicial duties of the parish were performed by the churchwardens who were selected from among 15 the vestry. As early as 1623, churchwardens were required by law to make presentments against those committing the sins of swearing and drunkenness. (Hening, I, p. 126). The presentments were of the force of similar presentments by grand juries, and had the effect of binding the accused over to trial. (Hening, III, pp. 71-75, 137-140) In 1631, further duties relevant to the parish register, were added to the responsibilities of the wardens:
"...one of the church-wardens at least, of ever parish be present yearlie at midsomer quarter court holden on the first day of June; and theire to make theire presentments uppon oath, togeather with a register of all burialls, christenings, & marriages, as likewise their accounts of all levys, collections and disbursements..." (Hening, I, p. 155)The General Court eventually stopped hearing the presentments of the wardens, which were then referred either to the magistrate courts or to the county courts, and the number of crimes to be presented grew to include "profaneing Gods holy name, or sabbath abuseing or contemning his holy word or sacrements or absenting themselves from the exercises thereof, As alsoe of those foule and abominable sins of...fornication and adultery, and of all malitious and envious slandering and backbiting..." Wardens were also responsible for caring for the poor of the parish, and for taking care of any bastards born in the parish. To this end, the fines imposed by the courts on the various persons commiting the offences which the wardens were impowered to present were turned over to the wardens to use as needed. (Hening, III, pp. 137-140, pp. 358-362; IV, pp. 208-214, pp. 244-246; VI, pp. 29-33) In the case of bastards, the father if known, or the mother if not, was required to post bond 16 with the wardens to prevent the child becoming a burden on the parish. The wardens were also for a time required to collect the levy, but this duty was eventually given to the sheriffs.
Magistrate courts were not "courts of record" and the decisions made therein could not be used as precedent in later trials. The magistrate court consisted of one, or on occasion two Justices of the Peace, who were regularly members of the county courts, and it was empowered to deal with a variety of petty suits and offences and to bind over criminals to superior courts. The Justices of the Peace for the various counties were appointed by the Governor with the approval of the Council, but as the County Courts recommended new members and appointment was for life the bodies became self-perpetuating. (Hening, I, p. 125, pp. 168-169, p. 462; II, pp. 69-70; III, pp. 504-516)
The Magistrate court per se was first established in 1642-3 when the assembly ruled that "no court of justice within the colony shall proceed to determine or adjudge or at all take cognizance of any suite hereafter to be commenced for or concerning any debt under the value of 20 s. sterling or two hundred pounds of tobacco, but in such case, the next adjoyning comiss. to creditor to summon the debtor or deft. by warrant before him upon complaint to him made and to determine the same by order in writing under his hand which order shall be binding, And in case of non-performance, The said commiss's is authorised to comitt to prison the person who shall be refractory to such order as aforesaid." (Hening, I, pp. 271-273) For a brief period in 17 1657 this jurisdiction was raised to 350 pounds of tobacco if one justice heard the case, and 1000 pounds of tobacco if two or more justices heard the case, (Hening, I, p. 435) but for the rest of the colonial period the jurisdiction remained constant at 20 s.
The single justice of the peace was also empowered to issue warrants for criminals to bind them over to the county court for examination, and to grant attachments against debtors who were absconding out of the country. (Hening, I, p. 70; III, pp. 504-516) They were to hear complaints of indentured servants against their masters, and to bind the master over to the county court to answer the charges. (Hening, I, p. 117-118; III, pp. 447-462) As Bruce (1910, p. 481) described this function: "One of the most important duties falling within the magistrate's jurisdiction was to protect the liberty of the person; this question naturally came up most frequently in connection with servants detained beyond the time set down in their articles of indenture, or without any articles having been drawn at all." The justice of the peace was authorized to try cases of swearing, cursing, drunkenness, and sabbath violations and levy the appropriate fines. These cases were also tried by the County Courts. (Hening, III, pp. 358-362) Thus, as the assembly stated, the essential duties of the justice of the peace were
"to maintain and keep the peace within their respective counties." (Hening, III, p. 504-516)
Finally, the justices of the peace has some non-judicial duties prescribed by law. They were to serve as coroners in cases where the county did not have such an official, (Hening, 18 II, p. 325, p. 419) and were to rotate as sheriff of the county, and each serving in that capacity for a year at a time. (Hening, III, pp. 246-250, pp. 499-502)
In the 1710 Act for establishing County Courts, and for regulating and establishing the proceedings therein, the Assembly stated
"That in every County within this dominion, respectively, there shall be held a monthly court, according to the antient custom and usage heretofore in that behalf practised; which courts shall be called county courts, and shall be held in the several respective places already assigned for that purpose, or that use, and shall consist of eight or more justices for every court respectively, who shall be called justices of the peace, and shall be commisionated by the governor." (Hening, III, pp. 504-505)The county courts were courts of record. In his commission to such a court, the governor specified four of the eight Justices who were to be of the quorum, and for purposes of trying cases, the law specified that
"any four of which said justices (whereof one be of the quorum) shall be sufficient to hear and determine all causes which shall be depending in the said county courts respectively." (Hening, III, p. 505)
The jurisdiction of the county courts is best summarized by Bruce (1910, p. 543) as follows: "They were, first, to enforce the acts passed for the 'conservation of peace and preservation of good government,' and to punish everyone guilty of violating them; secondly, to arrest all persons who threatened 19 or actually assaulted the King's subjects; thirdly, to impanel juries, who were to inquire into all manner of felonies, with-crafts, forestallings, extortions, and the like; fourthly, to examine witnesses, take depositions, and decide suits between party and party; fifthly, to carry out all orders of the General Court and proclamations of the Governor and Council, and to punish anyone who disregarded them; and finally, to require their clerk to make a permanent record of all judgments in matters of controversy already determined." The law of 1710 specified the jurisdiction of the county courts within precise limits, as including:
"all causes whatsoever, cognizable at common law, or in chancery, within their respective counties, except such criminal causes, wherein the judgment, upon conviction, shall be for the loss of life, or member, and except the prosecution of all causes of less value than twenty shillings sterling, or two hundred pounds of tobacco." (Hening, III, p. 508)Proceedings in equity, heard by the justices sitting as a Court of Chancery, dealt with a variety of wrongs which could be righted more efficiently by a judicial order or injunction, than by a jury decision granting damages. This jurisdiction was originally specified by statute as being a part of the function of the county courts in 1645, although the courts had apparently sat in Chancery earlier. (Hening, I, p. 303)
The criminal jurisdiction of the county courts over cases in which loss of life and limb was involved was taken away in 1655-6. The Assembly explained this action as follows:
"Wee conceive it no ease nor benefitt to the people to have their lives taken away with too much ease, And although we confesse 20 the same to be done in England, yet wee know the disparity between them and us to be so great that wee cannot with safety follow the example,...And 'tis a maxim that no deliberation can be too much pondered that concernes the life of the meanest man; Be it therefore enacted, that from henceforth all criminall causes that concerne life or member be tried at quarter courts before the Governour and Council...where it is probable the ablest and most impartiall men will meet." (Hening, I, pp. 397-398)Appeal was from the County Court to the General Court, the person appealing being required to give security to abide by the decision of the General Court and pay costs if he lost the appeal.
The Assembly ordered "that every county court, shall cause at least four and twenty freeholders of their county, to be summoned to appear at May court, and November court, in every year; out of which, shall be impannelled a grand jury, who shall be sworn to make inquiry into the breach of the laws, and to make presentment of the offenders" to the county courts. (Hening, III, pp. 367-368) In the case of criminals when it appeared that the trial should be held by the General Court in Williamsburg, the County Court constituted itself an examining court to inquire into the case. If the court decided that the crime for which the person was to be tried involved a penalty affecting life or limb, the prisoner was remanded to the sheriff for removal to the public gaol in Williamsburg. (Hening, III, pp. 389-390) In lesser cases, the prisoner was tried and sentenced by the county court.
In addition to its judicial functions, the County Court served in a variety of essentially executive matters. It was a court 21 of record for land conveyances, was impowered to establish terms of indenture and to grant certificates of completion of indenture, (Hening, III, pp. 447-462), to supervise the collection of levys, (Hening, III, pp. 264-267), and to build county gaols and see to their operation. (Hening, I, pp. 264-265, pp. 340-341, pp. 460, 461; III, pp. 14-16, pp. 267-269) Also, before each session of the Assembly, they were to constitute themselves a Court of Claims,
"for proof of all such debts as are to be paid by the public." (Hening, III, pp. 261-263)In 1705, the County Courts were also given the responsibility of supervising the guardians of orphans' estates. (Hening, III, pp. 371-376) These duties were described in 1740 as follows:
"That every person heretofore appointed, or hereafter appointed, guardian to any orphan, by any county court, shall, at the court held for the county in the month of August, ...exhibit a true account of the profits of such orphans' estates, upon oath...And the said justices shall then also enquire into all abuses and mismanagements of guardians." (Hening, V, pp. 100-101)
The principal officers attached to the County Court were the Clerk of the Court and the Sheriff. The Clerk was appointed by the Secretary of the Colony, and held office for life. His duties were established by law, as were the fees he was permitted to charge. (Hening, I, pp. 176-177, p. 219; II, p. 145, pp. 486-489; III, pp. 153-164) He was to keep record of all decisions of the court, all juries empaneled, all writs issued, and all other process of the court. The sheriff was appointed by the Governor and Council from a list of three justices of the peace of the county submitted by the County Court, to hold office for 22 a year, and was required
"to give bond and security in the amount of at least £ 1000 sterling for his true and faithful performance of his office." (Hening, III, pp. 246-250)The law included, among the sheriff's duties that he "shall execute all such writs and precepts,...and also shall make due return thereof" to the issuing court. (Hening, III, p. 247) He was also in charge of keeping the county gaol and assuring that the prisoners remained confined as the law directed. Finally, in those counties where no other collectors had been appointed, he was to collect the levy. (Hening, III, pp. 264-317) In addition to these two officers, each county had one Constable per precinct. These officers were appointed by the County Court, and served as assistants to the county sheriff.
In 1705 the Assembly passed An Act for establishing ports and towns (Hening, III, pp. 404-419) which provided "that as soon and whenever a court of Hustings shall be established in any of the burghs to be constituted by virtue of this act, no inhabitants of such burghs shall thereafter be held to plead or go to court for nay summons or law business, without the burgh, except in local actions, where the cause shall arise without the jurisdiction of such town, or where the value of the thing in demand shall exceed thirty pounds sterling, or in the general court, or to bear evidence in some court as the laws of the country direct, neither shall they be forced to serve on a jury in any court without the burgh except in the generall court." The law further provided
"that the director for the time being, of 23 each of the burghs appointed by this act, or his substitute, and any three or more of the benchers of his burghs, shall be and hereby are appointed a quorum to hold court, every which court shall be held, deemed and taken to be a court of record within this colony,...shall have jurisdiction of all causes of meum and teum, bargain, traffique and trade within their town, and the road and harbour thereto belonging, or wherein any inhabitant of the town is or shall be concerned, not exceeding the value of thirty pounds sterling, and all penal statutes of this country, as also everything relating to the town lands, saving and reserving always a liberty to any party not content with their judgment, to have an appeal to the generall court, upon security given within four and twenty hours after any such judgment, to abide by the award of the said court." (Hening, III, pp. 409-410)Their jurisdiction also included cases of petty larceny, cursing, swearing, sabbath breaking, drunkenness, fornication, basterdy, etc, within the burgh, road, and harbour, and the power to bind criminals over to the General Court.
The first Hustings Court actually established in the colony was provided for in the 1722 Charter making Williamsburg an incorporated city, with a mayor, a recorder, six aldermen, and twelve common council men. The Court of Hustings was to be held monthly within the city by the mayor, recorder and alderman, with four persons including the mayor and the recorder adequate for hearing cases. In 1723, the Assembly passed An Act for enlarging the jurisdiction of the Court of Hustings, in the City of Williamsburg, within the limits thereof. (Hening, IV, pp. 138-141) The act stated that this court
"shall have jurisdiction and hold plea 24 of trespass and ejectment, and of all writs of dower for any lands and tenements within the said city, and of all other actions personal and mixt, arising within the said city; And as a court of record, any give judgment, and award execution thereon, according to the laws and statutes of England and of the said colony..." (Hening, IV, p. 139)This jurisdiction was limited to twenty pounds sterling or 4000 pounds of tobacco. The court was also given the power to regulate ordinaries, to hear the complaints of masters, servants, and apprentices within the city, and to examine and commit persons committing crimes cognizable by the General Court.
In 1736, the Assembly passed An Act to confirm the Charter of the Borough of Norfolk: And for enlarging the Jurisdiction of the Court of Hustings in the City of Williamsburg. (Hening, IV, pp. 541-2) This confirmed that Norfolk had a Hustings Court of the same membership and jurisdiction as the one originally established in Williamsburg. The same act ordered
"That the court of husting, in the city of Williamsburg, shall, from henceforth have jurisdiction, and hold plea of all actions, personal and mixt, and attachments, whereof any county court within this colony, by law, have, or can take cognisance: And that the maior, or recorder, and aldermen, of the said city, respectively, shall have, use, and exercise all the powers, jurisdictions, and authorities, out of court, which any justice or justices of the peace of a county, now have, or can, or may use and exercise." (Hening, IV, p. 542)The jurisdiction of the Hustings Court of Norfolk was similarly enlarged to equal that of a county court in 1765. (Hening, VIII, pp. 153-154) 25
The General Court was the superior court of the colony, and was composed of the Governor and Council. The judicial functions of the Council were first established in the 1606 Charter, which granted "that the said several presidents and councells, and the greater number of them,...shall have full power and authority, to hear and determine all and every the offences aforesaid...," referring to those crimes listed in the Charter as being punishable by death. (Hening, I, pp. 69-70) Jurisdiction over civil cases was also granted, and the Council given power to sentence offenders to
"reasonable corporal punishment and imprisonment, or else by a convenient fine, awarding damages or other satisfaction, to the party grieved." (Hening, I, p. 71)Misdemeanors were to be judged "according to their best discretions, and with such convenient punishment, as they or the most part of them shall think fitt." (Hening, I, p. 71)
The Quarter Court, which became the General Court, was established according to the "Instructions to the Governor and Council of State in Virginia" issued to Governor Yeardley in 1621. (Kingsbury, III, pp. 478-480) The Governor and Council were by these instructions to chose the most convenient four months for the quarterly meeting of the court. In 1631-2, these terms were established by statute as being the first day of September, December, March, and June. (Hening, I, p. 168) The June meeting of the Quarter Court was abolished in 1658 (Hening, I, p. 528) and the name changed from Quarter Courts to the General Court in 1661. (Hening, II, pp. 58-60)26
The existence of the General Court was again confirmed in the Charter issued by Charles II in 1676, which stated
"that the governour and council of Virginia for the time being, and in the absence of the governour, the deputy governour and council, or any five or more of them, whereof the governour or his deputy governour to be always one, shall hereby have full power and authority to hear and determine all treasons, murders, felonys, and other offences committed and done within the said government, so as they proceed therein, as near as may be to the laws and statutes of this kingdome of England." (Hening, II, p. 533)
In 1684, the number of sessions of the General Court were reduced to two, as follows: "that the first generall court in each yeare begin upon the fifteenth day of Aprill, if the same happen not upon a Sunday, and to be held and continued eighteen dayes, not accounting Sundayes in the number; and the other general court to begin upon the fifteenth day of October," also to continue eighteen days not including Sundays. (Hening, III, pp. 9-10) These times continued in effect until 1745 when it was decided that the press of business necessitated longer sessions. Accordingly, the Assembly ordered
"That for the future, one of the said courts shall begin upon the tenth day of April, if not a Sunday, and then on the Monday thereafter, and shall continue to be held twenty four natural days, Sundays exclusive; and the other curt shall begin upon the Tenth day of October, if not an Sunday, and then on the Monday thereafter; and shall continue to be held twenty four natural days, Sundays exclusive." (Hening, V, pp. 319-320)27
Governor Gooch, in answer to queries from the Lords of Trade in London, described the General court, its membership and jurisdiction as follows:
"The Gen. Ct. consist of ye Govr & Council and 5 of whom make a Quorum. This Court hath Jurisdiction of all causes Real, Pers'l & mixt at C. L. bro't thither originally not under £ 10 Ster: or by appeal or superseds (wch in ye nature of a writ of error from ye Inferior Courts.) All criminal offences are here tryable & it is also a Court of Canc. for matter of a great value but by act of A. as appeal lies from an Inferior Court unless ye Debt, Damage or thing in Demand Exclusive of cost exceed ye value of £ 5, excepting only wch the Titles or Bounds of Land are in question, and appeals lie to Kg in Cl for £ 300 ster; or upwards." (Va. Mag., III, p. 115)Thus, the General Court had jurisdiction over all criminal cases involving life or limb, (Hening, I, pp. 397-398), which, by the statute of 1705 were returnable to the General Court of the fourth day of court. (Hening, III, p. 295) They had original jurisdiction over matters at Common law above ten pounds sterling, (Hening, III, p. 289) except in land questions. The General Court also had appellate jurisdiction from both the County Courts and the Hustings Courts, provided the person appealing would give bond with good and sufficient security to prosecute his suit and to pay the costs and damages if the original decision were upheld. (Hening, III, p. 515; IV, pp. 138-141, pp. 541-542) Appeal from this court lay to the King in all criminal matters in which the governor could not issue pardon, but would issue a reprieve, and in all civil and chancery cases above three hundred pounds sterling. 28
The officers attached to the General Court included the Secretary of the Colony, the Clerk of the Court, the Sheriff and under sheriffs who attended, the cryer, the tipstaff, the chaplain, and the keeper of the public gaol. The Secretary of the Colony was appointed by the crown, although the Governor usually recommended someone for the position. This person was usually a member of the Council. The secretary was the keeper of the colony's records, and was charged with issuing commissions of oyer and terminer after they had been signed by the governor, was custodian of the Great Seal of the colony, and appointed the county court clerks.
The clerk of the General Court actually kept the records of the Court, took depositions, issued subpoenas, published court orders, and prepared the docket for the court. He performed these functions for both the general court and the courts of Oyer and Terminer which met in Williamsburg. He was appointed to his position by the Secretary.
The sheriff and under sheriffs of York County attended the General Court where they were charged with empaneling juries, executing the commands of the court, and collecting the fines imposed by the court.
The court cryer declared court to be in session, summoned parties to plead their suits, and was appointed to his position by the governor. The tipstaff was also appointed by the governor, and served as messenger, usher, and doorkeeper. The court chaplain preached or read prayers before each day's session of the court, and visited the condemned prisoners in gaol prior to their execution. The keeper of the public gaol attended the 29 General Court to be ready to follow the commands of the court, take prisoners into custody to return them to the gaol, and to burn in the hand any person granted clergy. He was appointed to his position by the Governor with the approval of the Council.
The use of courts of Oyer and Terminer for the trial of slaves was first established in 1692, when an act of Assembly ordered that
"every negro or other slave which shall...commit or perpetrate any capitall offence which the law of England requires to be satisfyed with the death of the offender or loss of member, after his commiting of the said offence, shall be forthwith committed to the common gaol of the county within which such offence shall be committed, there to be safely continued, well laden with irons, and that the sheriff of the said county doe forthwith signifie the same to the governour for the time being, who is desired and impowered to issue out a commission of oyer and terminer directed to such persons of the said county as he shall think fitt, which persons forthwith after the receipt of the said commission are required and commanded publicly at the courthouse of the said county to cause the offender to be arraigned and indicted, and to take for evidence the confession of the party or the oaths of two witnesses or of one with pregnant circumstances, without the sollemnitie of jury, and the offender being found guilty as aforesaid, to pass judgment s the law of England provides in the like case, and on such judgment to award execution." (Hening, III, pp. 102-103)In 1705, 30 the law establishing such courts also provided
"that the master or owner of any slave to be indicted or arraigned by virtue of this act, may appear at the tryall and make what just defence he can for such slave, so that such defence do only relate to matters of fact, and not to any formality in the indictment or other proceedings of the court." (Hening, III, pp. 269-270)In 1748, the law further provided
"that if at such trial the court be divided in opinion, whether the accused be guilty, or not guilty, in that case he, she, or they, shall be acquitted. Provided also, That when judgment of death shall be passed on any offender, there shall be ten days, at least, between the time of passing judgment, and the day of execution, except in cases of conspiracy, insurrection, or rebellion." (Hening, VI, p. 106)This law also acknowledged the 1732 extension of the benefit of clergy to negroes, and provided that judgment of death not be given in cases in which a negro could receive clergy, but that such offenders be burnt in the hand, except where they
"hath once had the benefit of this act." (Hening, VI, p. 106)
In 1710, at the request of the governor, the Council recorded that
"Upon consideration of her Majestys Instruction for establishing Courts of Oyer & Terminer for the more speedy tryal of Persons committed for Criminal mattes. It is the opinion of the Council that the said courts be held at the Capitol as the most proper place for the same and that publick notice be given that the first Court will be held according to her Majestys Instructions on the second Tuesday in December. (EJCCVa, III, p. 255)In 1712, the Council offered its opinion that whether criminals were in custody when it was time to issue the 31 commission of oyer and terminer, the commission should nevertheless be issued as usual, in that prisoners might be gaoled at the last minute who would then have to wait several months until the next General Court session before being tried or admitted to bail. (EJCCVa, III, pp. 313-314) There followed several years during which the governor and the council were in conflict over the commissions of oyer and terminer, and the court only met irregularly. However, by May of 1723 these differences appear to have been settled, and the Council again offered,
"The Governor desiring the opinion of the Council upon his Majesties Instruction directing the appointment of two Courts of Oyer and Terminer to be held Yearly in the months of June and Decr for the more speedy Tryal of persons committed for Capital Crimes. The Council taking the same into Consideration and being convinced by Experience that divers Criminals may be committed so late that Notice cannot be dispatcht to such of the Judges as live remote in due time to attend their Tryal, whereby great Inconveniences may happen to the Subjects & the intent of his Majtys Instruction for preventing long Imprisonments frustrated, are therefore unanimously of Opinion, that the said Courts of Oyer & Terminer be for the future constantly held on the Days appointed by his Majtys instructions whether there be prisoners to be Tried or not; and that the Judges give their Attendance without any Summons to be issued for that purpose." (EJCCVa, IV, pp. 41-42)From this time on, these courts appear to have met regularly to try such crimes as were also cognizable in the General Court and to have followed most of the procedures used in the General Court in criminal cases, including providing trial by jury. 32
The question over what court or courts should have jurisdiction over admiralty cases in the colony, or if any court should have such jurisdiction, caused considerable confusion during the colonial period. In 1657-8 the Assembly granted such jurisdiction to the County Courts, in stating that
"The Countie courts shall heare maritime causes, & the sherriffes shall have power to arrest on board shipps by warrant from the Governour or any one of the council, or under the hand of any two comissioners, whereof one be of the quorum, until it be otherwise setled," (Hening, I, pp. 466-467)In 1659-60 it was
"otherwise settled," "That the Governour and Council shall have full power and authority of a court of admiralty to cognoss, determine, and administer justice in all things pertaining to seafairing,...and to enquire by the oathes of twelve men upon all offences, (vizt). Against pyrats, their assistors or abettors, out-traders or receptors,..." (Hening, I, pp. 537-538)In 1699, the law provided
"that all treasons, fellonyes, piracyes, robberies, murders or other capitall offences that shall be committed upon the seas or in any river, haven, creek or bay where the admirall hath jurisdiction, shall be enquired, tried, heared, determined, judged and execution awarded and done within this his majestyes collony and dominion in such forme as if such offence had been comitted upon the land...And to that end and purpose the governor...is hereby desired and impowered to issue out commisions of oyer and terminer...to the judge or judges of the admiralty of this his majestys colony...and to such other 33 substanciall persons as he shall think fitt to nominate and appoint." (Hening, III, p. 178)This act was apparently suspended by a Commission issued under the Great Seal granted in accordance with an act for the More Effectual Supression of Piracy in the 11th and 12th year of King William. (EJCCVa, III, p. 484) This may be the commission refereed to be Governor Gooch, in his description of admiralty cases:
"For breaches of the act of Trade & for determining Controversies concerning salvage, mariners wages & other maritime affairs, there is a Court of Admiralty held before a Judge Constituted under ye Seal of ye High Cot of Admty of G. B.; to this Cot belongs and advocate, a Register & Marshal appointed by ye Govr who is also a * * Vice admiral of all ye seas, Rivrs, Creches & Coast within his Govmt. This Court is only held as occasion requires & an appeal lyes to ye K. Council. The Govr has also a Comn for trying pirates." (Va. Mag., III, p. 116)The famous cases tried at admiralty during the colonial period were the cases of pirates, particularly between 1714 and 1730, during which time Edward Teach himself was killed and several of his men were brought to Williamsburg for trial. 34
Officially, crimes in the eighteenth century were classified as felonies and misdemeanors, yet this classification is often misleading. By law felony was punishable by death, and this would imply that all crimes which did not carry the death penalty were misdemeanors. However there were many crimes of a serious nature which did not carry the death penalty. Furthermore, the penalty for several crimes changed during the colonial period, making correct classification even more difficult. Thus, it is more fruitful to consider each crime separately, rather than making any attempt at grouping crimes under headings according to punishment. It is possible, however, to arrange crimes in such a way as to reflect the severity of the action in the eyes of the eighteenth century, and this order has been adhered to wherever possible.
Although felony was punishable by death in Virginia in the eighteenth century, many persons accused of crimes did not reach the gallows. In one survey (Rankin, 1965, pp. 121-122) forty-seven court sessions were selected at random from the period between 1737 and 1772. At these sessions, 336 persons were brought to the bar accused of felony. The final disposition of these cases was as follows: 125 were sentenced to death by hanging, 95 were acquitted, 81 were granted their clergy and burnt in the hand, 5 were pardoned in court, 5 were imprisoned, 35 and 24 received other punishments. Of the 125 sentenced to death it is possible that some were convicted of murder and had their sentence reprieved "until his majesty's pleasure be known." Thus, nearly two-thirds of the persons accused of felonies during the sessions covered by this survey did not suffer the full lawful penalty of the crime of which they stood accused.
Rankin (1965, p. 223), "treason encompassed any rebellion, sedition, or speaking in a derogatory manner of the king or government."High treason was punishable by death, without benefit, and the blood of the traitor was attainted. In such cases where the blood was attainted, the person so judged was seen as having no ancestors and no heirs, and his entire estate, both lands and goods, were forfeited to the crown.
As the colony was not often involved in severe major wars, treason as we think of it was not even defined by statute until 1755 (Hening, VI, p. 546) when the law provided that "every person holding correspondence with, or giving intelligence to the enemy, during the time such militia is employed, in suppressing such invasion or insurrection, shall suffer death, as in cases of felony, without benefit of clergy, upon being thereof lawfully convicted by the general court." Counterfeiting was also considered an act of high treason, if the king's coin were involved, but this will be considered under another heading.
Instances of high treason were rare in the colony. Webb, writing in 1736 (p. 344) stated that "the only Instance of Trial and Conviction of Treason hitherto extant upon our Records, is 36 that of Nathaniel Bacon, Junior, and his Accomplices, who were attainted, executed and their estates forfeited, for Rebellion, and Treason, A. D. 1676. The Principal Traitor, Bacon, escaped legal Sentence and Execution, by a Natural Death, but was attainted by Act of Assembly, pass'd under the Great Seal of England."
Through some oversight, Webb omits the only other case of high treason during the period. The Council records for April 27, 1710 (EJCCVa, III, pp. 242-242) state that "Whereas Salvadore an Indian and Scipio an Negro Slaves have been Tried this General Court and found guilty of high Treason, and Sentence of death passed on them accordingly to the end therefore that their execution and exemplary punishment may have a due effect for detering other Slaves from entering into such dangerous Conspiracys It is Ordered that Salvadore be executed (according to the Sentence passed on him) at the Court house of Surry County on the first Tuesday in May and that his body be disposed of as follows Viz his head to be delivered to the Sherif of James City County and by him sett up at the City of Williamsburgh Two of his quarters likewise delivered to the sd Sherif of James City one whereof he is to cause to be sett up at the great guns in James City and the other to deliver to the Sherif of New Kent County to be sett up in the most publick place of the said County, and the other two quarters to be disposed of an sett up as the Justices of the County of Surry shall think fitt to direct And it is ordered that Scipio be executed at the Court house of Gloucester County at the next court to be held for the said County in May and his body disposed of in manner following Viz his head and one of his quarters sett up where the Justices of the said County of 37 Gloucester shall think fitt two of his quarters to be delivered to the Sherif of Middlesex one of which he is to cause to be put up in the most publick place of the sd County of Middlesex and the other to cause to be delivered to the Sherif of the County of Lancaster to be sett up in the most publick place of the said County And the Sherif of Gloucester is to cause the other quarter of the said Scipio to be delivered to the Sherif of King and Queen County to be sett up in the most publick place of the said County." There is no mention of attainder with these two, probably because slaves would not have any estate worth forfeiting to the crown.
Rankin (1965, p. 224) lists three possible conditions under which petit treason was committed: (1) a servant killing his master, (2) a wife killing her husband, and (3) a clergyman killing his ecclesiastical superior. In all instances, the question of obedience and allegiance to one's superior was involved. Servants and slaves were the only ones ever tried for this crime in the colony, and if convicted the men were sentenced to be drawn and hanged, the women to be strangled to insensibility and burned. Because of the difficulty of proving the use of poison during this period, a law passed in 1748 (Hening, VI, p. 105) stated that "if any Negro, or other Slave, shall prepare, exhibit, or administer any medicine whatsoever, he, or she so offending, shall be adjudged guilty of felony, and shall suffer death without benefit of clergy." This did not include those who administered medicine under the orders of their masters, and those whom the 38 court felt gave the medicine with good intentions were to granted clergy.
As cases of petit treason were usually committed by slaves, they were most often tried in the counties by courts of Oyer and Terminer. In 1630 the records of the Governor and Council (Hening, I, p. 146) show "William Matthewes servant to Henry Booth, indicted and found guilty of petit treason, by fourteen jurors. Judgment to be drawn and hanged." A slight variation in the punishment of a man convicted of petit treason appears in the later records. (Va. Mag., III, p. 309) "In June 1737, a Court of Oyer and terminer was held at old Orange Court house, and Peter a slave of John Riddle, was tried for the murder of his Master. Peter plead guilty, was condemned to be hung, and to have his head cut off and placed on a pole near the court house in order to deter others from committing such a crime." The Virginia Gazette (2/18/1736, p. 4, 1) reported that "The negro Woman who lately kill'd her Mistress, in Nansemond, upon her tryal confess'd the Fact, receiv'd Sentence of Death, and is since burnt." A similar case was reported in 1746 (Va. Mag., III, pp. 309-310) when "Zachary Lewis, attorney for the king,...informed the Court that Eve, a Negro slave woman lately belonging to Peter Montague, late of Orange County, Va., had on August 19th 1745, poisoned Mr. Montague, and that he had languished to Dec. 27th of the same year. Whereupon Eve was led to the bar under custody of Col. Thomas Chew, Gent., sheriff of Orange, and put on trial for his murder. She pleaded not guilty and put herself upon the court, upon which witnesses were produced, sworn and examined against her, and she was fully heard in her own defence. The court decided that she was guilty 39 of murder, and it was determined that she should be drawn upon a hurdle to the place of execution, and be there burnt." This was the last case of a woman being burnt in the colony. In 1772, Juday, a Negro woman slave belonging to Nathaniel Harrison was tried for "Feloniously administering Poisonous Medicines with intentions to destroy the Family of Lewis Scarbrough of the s'd County of Brunswick." Juday was given the same opportunity afforded Eve to be heard in her own defense, and the witnesses were presented against her. She, like Eve, had "said she was in no wise Guilty" of the crime. However, after hearing all the evidence, the court found otherwise and sentenced her to hang. (Va. Mag., XVIII, pp. 282-283)
The only known instance of petit treason in the colony involving a wife killing her husband did not come to trial as the woman, Mrs. Thompson, was found to have
"been long disordered in her senses." (Va. Gazette, Rind, 7/6/1769,p. 2, 3)
The Charter of 1606 (Hening, I, p. 69) provided that the crime of murder could be tried by the Governor and Council, and that it was to be punished by death without the benefit of clergy. The Governor was given the power to reprieve a sentence, but only the king could issue pardon for murder. Starke (1774, p. 194) defined this crime as follows: "Murder is, the Killing of any Person, within the Realm, upon Malice forethought, the Death ensuing within a Year and a Day after the Stroke given." Aside from the death sentence, murders also suffered corruption of blood, with the resulting forfeiture of all goods and lands to the crown.40
Rankin (1965, pp. 205-206) reported on the results of fifty-nine murder trials covered by the Virginia Gazette in which 32 received the death penalty, 24 were acquitted, and 2 had their original charge reduced to manslaughter. There were occasions, however, when acquittal did not free a man completely. On June 10, 1773, (p. 2, 1) the Virginia Gazette included the following note in its reports of cases tried by the court of Oyer and Terminer: "Robert Cook, from Henrico, for murder: Acquitted, but remanded to Jail, and to give Security for his Good Behavior."
One of the most widely debated murder cases in the colony never came to trial because the person charged with the deed died while a discussion of legal proceedings still raged. On June 3, 1766, Robert Routledge, a Scottish merchant, was drinking with a group of friends at Benjamin Mosby's tavern at Cumberland Courthouse. One of the group, Colonel John Chiswell, had over indulged, and was becoming noisy. Routlidge rebuked him for his use of profanity, at which point Chiswell became abusive. Routlidge, angered by Chiswell's slurs upon his honor and honesty, threw a glass of wine at Chiswell. Though restrained by others from returning the volley, Chiswell sent a servant for his sword, and the ordered Routlidge to leave. When Routlidge refused, Chiswell could no longer be held back, but stalked across the room and ran Routlidge through. He continued drinking and abusing the dead man until the justice of the peace arrived. Chiswell was committed to the county gaol without bail, and was ordered removed to the publick gaol by the examining court. As the prisoner and his escort arrived in Williamsburg, they were met by John Blair, William Byrd III, and Presley Thornton, members of the 41 Council, who held their own examining court and admitted the prisoner to bail. As murder was not an offense legally considered bailable, this action raised a storm of public protest. For several months, both sides took up considerable space in the Gazette to air and justify their views, and it was while all this continued that Chiswell died of nervous fits at his home in Williamsburg. (Rankin, 1965, p. 208-211)
In the case of David Ferguson, master of the Virginia ship, Betsy, a question of jurisdiction delayed the trial somewhat, and perhaps caused Ferguson to be placed in double jeopardy. Ferguson was accused of killing his Negro boy, Caesar, and three of his crew. The latter were killed on the high seas, and the General Court felt they had no jurisdiction, but they agreed to try the captain for Caesar's death which occurred within the Virginia capes. The Virginia Gazette (Rind, 4/19/1771, p. 3, 1) reported "David Ferguson, from Norfolk, for the murder of a negro boy, acquitted; but remanded back to prison for farther trial by a Commission from the Board of Admiralty of Great Britain, for the murder of three white, men, part of his crew, upon the High Seas." Ferguson was finally sent to England to stand trial for the murder of the crewmen, and it was then reported that he was also tried again for the murder of his cabin boy. He was found guilty of at least one of the charges (the record is not clear) and was hanged in London that January. (Rankin, 1965, pp. 212-214)
Felo de se, committed by
"a Person who, being of sound Mind, and of the Age of Discretion, voluntarily killeth himself," (Webb, 1736, p. 236)was considered murder, and was also punished by attainder and forfeiture of lands and goods. In a case in 42 Westmoreland County in 1661 (W & M Quarterly, XV, p. 181) the county court not only ordered the forfeiture but ordered that the body be "Buried at a crossroads with a stake driven through the middle of him in his grave-as required by law." However, this method of burial was apparently given up at a later date, for in 1707 the Council considered a suicide case in which the Attorney General reported that "by that inquest I find that the return is that the said Henry was compos mentis at the time of hanging himself," and the Council accordingly
"ordered that the Coroner of Warwick County Cause all the personal Estate which belonged to Henry Whittaker late of the sd County at the time of his laying violent hands on himself to be sold by way of outcry for money or bills of Excha to be accounted for by the said Sheriff to her Majtys Auditor and paid to the Receiver Genll at the next April genll Court." (EJCCVa, III, pp. 140-141)
One particular form of murder was especially troublesome to prove, and for this reason the burden of proof in cases of the murder of bastard children was shifted from the crown to the accused. To this end, a law passed in 1710 (Hening, III, pp. 516-517) provided "that if any white or other woman, not being a slave,...be delivered of any issue of her body, male or female, which being born alive, should by law be a bastard, & that she endeavor privately, either by drowning or secret burying thereof, or any other way, either by herself, or the procuring of others, so to conceal the death thereof, as that it may not come to light, whether it were born alive, or not, but be concealed, in every such case, the mother so offending, shall suffer death, as in case of murder, except such mother can make proof, by one witness 43 at least, that the child (whose death was by her so intended to be concealed) was born dead." Aside from avoiding the shame involved in giving birth to a bastard child, concealment was common prior the this law to avoid the penalties for having such a child. For a serving woman, these penalties included at least a year's extra service, and that the father, if free, pay the county for the support of the child. Furthermore, any white woman, bond or free, giving birth to a bastard by a negro, was required to pay the county fifteen pounds sterling, or be sold into servitude for five years. In 1630, "Wm Gallopin & June Champion wife of Percival Champion Indicted by Gd. Jury for murder & Concealing ye death of ye sd. June's Child supposed to be got by ye sd. Wm. pleaded, found guilty by petty Jury & sentenced to be hang'd." (Va. Mag., XIII, p. 390) In 1633 Margaret Hatch was indicted and convicted of manslaughter in the death of her bastard child. She "pleaded her belly," i.e., claimed she was pregnant, which if true could win her stay in execution until the birth of the child. As was the custom in such cases, a jury of matrons was empaneled to judge the validity of her claim. In this instance it was reported that the
"Jury of Matrons find her not pregnant." (Va. Mag., XIII, p. 391)In 1713, Jane Ham was tried in the General Court according to the provisions of the new law, and convicted. Whereupon, "the Judges of the Generall Court this day representing to the Governor that there did not appear on the tryal any proof of the said Jane Ham's having done any Violence to the said Child, to occasion its death, but only endeavored to Conceal her being delivered thereof; and further that the said Jane appeared to be a very ignorant person, 44 and not like to be apprised of the Law which makes such Concealment penal, And therefore recommending her as a fitt object of Mercy; The Governor declaring that the crime of which the said Jane Ham is found guilty, making her liable to the same punishment as in case of Wilfull Murder he was restrained by his Commission from pardoning the same." The Council then recommended a reprieve, which the Governor was pleased to grant. Unfortunately, for better than eighteen months, the governor's letters to London concerning the case went unanswered, and the Council in desperation finally prevailed on the governor to pardon the girl himself. (EJCCVa, III, p. 344; Rankin, 1965, pp. 138-140) A similar delay occurred between sentencing and the pardon being received in the colony in the case of Sarah Williamson, a married woman who had concealed the death of a child, and was convicted in 1727, but did not receive her pardon from the crown until 1730. (Rankin, 1965, pp. 140-141; EJCCVa, IV, p. 213) In 1751, the Virginia Gazette (6/13/1751), p. 3, 2) reported that "Martha Little, for the Murder of her Bastard Child, Acquitted by the petit Jury." In 1767, the Gazette (PD, 6/11/1767, p. 2, 2) reported that "On Friday last was executed, pursuant to her sentence, Martha Sharp, from Chesterfield, for Child murder. She denied the Crime for which she suffered, and laid it upon the father of the child."
It was not unusual for an original charge of murder to be reduced to manslaughter during the course of the trial, and thus allow the criminal to claim his benefit of clergy. For example, in 1771, reporting on the actions of the General Court, the Virginia Gazette (PD, 4/18/1771, p. 3, 1) noted "Henry Collier, 45 from Surry, for Murder: Guilty of Manslaughter." If the jury found the killing to have been accidental, the person might even be acquitted as in 1630 (Va. Mag., XIII, p. 390) when "Wm Musgrave Indicted for Murder found Chance medly by the petit Jury &acquitted, paying fees." Another variation on the punishment was administered in the case of Andrew Macclanahan who killed John Curry; and was convicted of manslaughter and sentenced to hang. He was pardoned
"on Condition that at his own cost and charges he transport himself out of the Colony &be excluded from the same for the space of seven years from the Date hereof." (Va. Mag., XIX, p. 263)The most common form of punishment for manslaughter was to grant the person clergy and brand them in the hand, with an "M". This was the punishment reported for Thomas Smith in 1751 (Va. Gazette, 5/9/1751, p. 2, 2 &3). However, it seems doubtful that this was much of a punishment, for in 1739 the Virginia Gazette (12/14/1739, p. 2, 3) noted "John Oldham, for Manslaughter; Convicted, and burn't in the hand with a cold Iron." This practice of branding with a cold iron, which was largely a ritual, seems to have become increasingly common.
The word conspiracy had a dread connotation of slave rebellion to eighteenth century Virginia. So great was this fear that in 1723 a law was passed (Hening, IV, p. 126) which provided "that if any number of negros, or other slaves, exceeding five, shall at any time hereafter consult, advise, or conspire, to rebel or make insurrection, or shall plot or conspire the murder of any person or persons whatsoever, every such consulting, 46 plotting, or conspiring, shall be adjudged and deemed felony; and the slave or slaves convicted thereof,...shall suffer death, and be utterly excluded the benefit of clergy." This law was re-enacted in 1748 (Hening, VI, p. 108) and remained in force throughout the colonial period. The most serious slave uprising was the one of 1710 which resulted in Salvadore and Scipio being tried for High Treason. As a result of this conspiracy, Will, a slave belonging to Robert Ruffin, was granted his freedom by act of Assembly (Hening, III, pp. 537-8) as a reward for his having discovered the conspiracy and informed the authorities. This possibility of gaining one's freedom by reporting conspiracies to the authorities must have made such conspiring doubly dangerous to slaves, who would have been constantly in jeopardy of being reported by one of their own kind who was more interested in gaining his freedom than in the possibility of hanging for conspiracy. Whatever the actual deterrent, slave conspiracies were fairly rare in the eighteenth century, and the few that were attempted had little effect. (Rankin, 1965, pp. 171-177)
As a further means of enforcing the provisions against slave conspiracies, meeting so five or more slaves were made unlawful, and masters or owners who permitted such gatherings on their land were liable to a fine of five shillings for each slave above the number of five so gathered. However the law specified that this did not prohibit masters from allowing their own slaves to gather in their own quarters, nor did it apply to slaves who 47 were working, who met at a public mill during the day if they were there on business, or who were attending divine service on Sunday. (Hening, IV, p. 129) The law also provided
"that if any white person, free negro, mulatto, or Indian, shall at any time hereafter be found in company with any such slaves, at any such unlawful meetings,...he, she, or they, so offending, upon being thereof lawfully convicted, shall forfeit and pay the sum of fifteen shillings,...to the informer...and upon failure to make present paiment, shall have and receive, on his, her, or their bare backs, for every such offence, twenty lashes, well laid on. And every negro, mulatto, or indian slaves, who shall come or assemble to such unlawful meetings, shall upon information thereof made to any justice of the peace of the county where such offence shall be committed, for every offence, have and receive, on his or her bare back, any number of lashes not exceeding thirty-nine." (Hening, IV, p. 129)As these offences were triable in a magistrate court, rather than a court of record, there is little indication of how strict or liberal the enforcement of this law may have been.
By the Charter of 1606 (Hening, I, p. 69) rape was punishable by death without benefit of clergy. A woman who was ravished was required by law to make her complaint within forty days,
"because Concealing it implies Consent before the Fact." (Webb 1736, p. 262)Consent was not a factor if the girl was under ten years of age, where the crime was always considered statutory rape. (Rankin, 1965, p. 220) Rankin found only eight 48 cases of rape tried by the General Court during the eighteenth century. Of these, five were acquitted, two were hanged, and one was convicted but received a pardon from the governor.
Slaves were of course, tried for rape in the county courts under a commission of Oyer and Terminer, as was at least one free Negro. The customary punishment for a slave ravishing or attempting to ravish a white woman was dismemberment. Initially, dismemberment was allowed in any cases where slaves were
"found notoriously guilty of going abroad in the night, or running away, and lying out, and cannot be reclaimed from such disorderly courses, by the common methods of punishment." (Hening, IV, p. 132)However, by 1769 the Assembly decided that this was causing unnecessarily cruel punishments to be used and the new law stated
"that it shall to be lawful for any county courts of order and direct castration of any slave, except such slave shall be convicted of an attempt to ravish a white woman." (Hening, VIII, p. 358)Dismembering may have been the punishment ordered in the case reported in the Gazette in 1738 (10/27/1758, p. 4, 1), though death might also have been the court's decision under the circumstances: "Col. Pepperel committed to committed to York Gaol an Indian Man Servant, for committing a Rape on a Child between 3 and 4 Years of Age, while the Parents, and the rest of the Family, were gone to Meeting last Sabbath Day. The Indian upon Examination confess'd the Fact charged against him: The Child has suffer'd to that Degree, that her Life is despair's of." A year earlier the Gazette reported a case involving a free Negro (8/26/1737, p. 4, 2): "A free Negro Man was try'd and convicted, at the 49 last Isle of Wight County Court, for several Times attempting to ravish a White Girl, about 7 Years old. He receiv'd Sentence to stand in the Pillory and Hour, to have 29 Lashes well laid on his bare Back, and to be sold for the Payment of his Fees. He was accordingly pillory'd and much pelted by the Populace; and afterwards smartly Whipp'd."
"Pyracy" and all other crimes committed on the high seas officially fell under the jurisdiction of the Admiral's Court in London. However, during the heyday of "pyracy" in Virginia and Carolina waters, it was no uncommon for such offenders to be tried either by the Genera Court or by a Court commissioned under the Great Seal of the Admiral and held in the colony. thus, between 1699 and about 1730 Williamsburg saw its fair share of pirates and privateers. Twice during this period, once in early 1717 and again in May of 1719, his majesty issued proclamations giving amnesty to all pirates who would surrender themselves to the governors of Virginia and North Carolina during the year, and would give up their way of life. How successful this attempt to stop the raids was can be judged by the use made of the pardon by the most famous pirate of the times.
In 1717 Edward Teach, also called Edward Thack, or Blackbeard, commanded a forty-gun frigate, the Queen Anne's Revenge, which he had seized from the French. When he virtually destroyed a Royal Navy frigate he and his crew gained quite a reputation of the high seas. In January, 1718 Teach brought his frigate and a sloop, the Revenge, into North Carolina, and surrendered to Governor Eden 50 at Bath. With what appears to have been the assistance of Tobias Knight, the Secretary of the Colony, Teach convinced the governor to allow him to keep the two ships, and a good part of the take aboard. Teach and his crew then put out to sea again, and by April had acquired two more sloops, and the crew numbered nearly 400 men. This apparently meant splitting the booty too many ways so on returning to North Carolina, Teach made plans to rid himself of most of the men. He grounded the Queen Anne's Revenge, thus putting her out of commission. At the same time, he sent Bonnet, captain of the sloop Revenge, and part of the crew over land to Governor Eden to sue out their pardon. He then dismissed a large part of the remaining crew, threatening to kill any who remained in the area. William Howard, his quarter master, who was later tried in Williamsburg, was one of those dismissed at this time.
Having cleared his crew out, Teach and the few remaining men, about 40 in all, swiftly loaded the Adventure, the best of the sloops, with all of the plunder, ammunition, and supplies, and they sailed on up the Carolina coast, and surrendered to Governor Eden for a second time. They shared the plunder and were again allowed to keep the sloop. Out again for a brief time, they returned towing a French ship which Teach claimed they found floating abandoned in the Atlantic. This ship was carrying a considerable quantity of sugar, of which Governor Eden received 60 hogsheads and Secretary Knight received 20 hogsheads. Teach and his crew then remained quite close to land, and so annoyed the people of North Carolina that they finally complained to Governor Spotswood as it was apparent that Governor Eden was not going to 51 do anything to destroy the pirate menace.
Spotswood consulted with Captains George Gordon and Ellis Brand, of his majesty's frigate Pearl and Lyme, stationed in Norfolk, The Pearl and the Lyme were too large to take into North Carolina coastal waters after Teach, but Gordon and Brand agreed to provide crew for two sloops if Spotswood would charter them. On November 17, 1718 the two sloops sailed, under the command of Lt. Robert Maynard of the Pearl. At the same time Captain Brand headed for North Carolina over land to arrest Teach if he were ashore. On the evening of November 21, the Adventure was sighted, and Robert Maynard stayed awake most of the night making careful plans for the next day. Neither of the king's sloops were outfitted with large guns, as time had been short, and Blackbeard's Adventure was fully armed. Blackbeard reportedly also spent a sleepless night, drinking and carousing aboard the Adventure.
The battle began the next morning. The Ranger, smaller of the two sloops out of Norfolk, went aground early and was of no use at all, except that in its helpless state it drew the first three of Blackbeard's volleys, and allowed Maynard a little time to bring the other sloop in close. Maynard had ordered most of his crew below decks where they were not injured by the volleys from the Adventure. As the two ships touched, Blackbeard and his men boarded what they hoped was a crippled ship with only a skeleton crew remaining. Instead they were confronted with lively hand-to-hand combat which only nine of their number survived. Six of these were Negro pirates, and one of the white men, Samuel Odell, had suffered so many wounds that Maynard doubted whether 52 they would bring him to trial alive. Blackbeard himself, dressed in full battle regalia, with his beard braided and tied in multi-colored ribbons, and strips of burning linstock woven into the strands, lay dead on the deck. His grisly head was cut off and hung on the bowsprit of Maynard's sloop as a sign of triumph.
Meanwhile, Captain Brand had had some luck with his mission ashore. Six of Teach's men, including Isreal Hands, the second in command, were arrested at Bath, and a considerable quantity of loot seized. Thus, fifteen pirates in all were returned to Williamsburg for trial. The trial was postponed until the April General Court in 1719, as it was hard to gather a full Council during the winter. Thirteen of the fifteen were hanged. Isreal Hands turned King's evidence and saved his neck, and Samuel Odell, who had rather miraculously survived his wounds was also granted pardon. This did not end "pyracy" along the Virginia coast, but with this hanging of thirteen men, the career of one of the most notorious pirates came to a close.
Fire fighting techniques being extremely crude in the eighteenth century, and most construction of both homes and warehouses being of wood, arson was both a personally and economically dangerous crime. For this reason, in 1730, the Assembly enacted a law which provided that nay person who should "Maliciously, unlawfully, and willingly, burn any tobacco-house, warehouse, or store house, or any house or place, where wheat, Indian corn, or other grain shall then be kept, or any other house whatsoever; or shall conform, aid , abet, assist, counsel, hire, or commanded, any 53 person or persons, to commit any of the said offences," should, upon conviction and attainder suffer death without benefit of clergy. (Hening, IV, pp. 271-272) However, despite the law, the cases of arson actually brought to trial were rare.
In 1704, in York County,
"Bridgett, a negro Woman Slave belonging to Mr. John Page of this County being Indicted for burning the buildings of ye sd John Page being arraigned pleaded guilty whereupon this Court award Judgment of Death upon her." (W & M Quarterly, XIX, p. 185)
In 1730 the House considered the Petition of
"William Harrison setting forth that he hath lately sustain'd a great loss by the burning of a Tobacco house wherein was a great quantity of Tobacco and other things where were burnt by several Negroes whom he had punished as a Justice of the Peace, for Assembling with great numbers of other Negroes against the Laws of the Colony, and praying relief." (JHB, VI, p. 63)A similar petition was submitted by William Southall:
"That a Negroe Slave of his set Fire to his Barn, and with it consumed all his Tobacco, Corn, Wheat, and Oats, and other Goods, and then hanged himselfe; by Means whereof the Petitioner with a large Family of small Children was utterly ruined, and praying Relief." (JHB, VIII, p. 239)Unfortunately for Mr. Southall, the House did not feel that they could use public funds to help him, and no legal action was required since the slave had already carried out the sentence himself.
Arson was occasionally used as a method of breaking gaol, as in 1739, when the Gazette (3/16/1739, p. 4, 1) reported that: "We hear from Brunswick, that about a Fortnight ago, the Prison of that County burnt down, and a man, who was in it a Prisoner 54 for Debt, was burnt to Death. It is suspected that he set the prison on fire, in Hopes of escaping thereby; he was heard crying out for help, but no Assistance came in Time enough to save him, or the prison." In 1772 a Negro did manage to escape from the gaol in Williamsburg by means of a fire, but the gaol itself was saved. (Va. Gazette, 11/19/1772, p. 2, 2)
In 1769, after a rash of fires, Governor Botetourt issued a proclamation promising pardon to any person concerned,
"(except him or her who actually set fire to the said houses) that shall make discovery of his or her accomplices, or any of them." (Va. Gazette, PD, 2/23/1769, p. 3, 2)This apparently had no effect as there are no records of subsequent trials for the miscreants.
According to an act of Assembly passed in 1727, (Hening, IV, pp. 218-220) "if any person or persons shall hereafter presume to coin, counterfeit, falsify, or debase any of the coins above mentioned, or shall be aiding, consenting, or counselling therein, he, she, or they, so offending, upon being thereof lawfully convicted, shall be deemed and adjudged as offenders in treason." The penalties for treason were death without benefit of clergy, the body to be quartered after hanging, and the blood attainted. Subsequent laws, concerning the counterfeiting of tobacco notes, (Hening, VII, pp. 167-168), treasury notes (Hening, VI, pp. 467-468), or other paper money (Hening, VIII, pp. 651-2) made such counterfeiting a felony without benefit of clergy, thus not including the quartering of the body.55
The most famous of Virginia's counterfeiters was Lowe Jackson, a twenty-two year old silversmith in Nansemond County, who with his brothers, John and James, and one Edward Rumney, engaged in coining. The ring had been under suspicion for some time, but the case did not break until Robert Lyon, a barber in Williamsburg was arrested for passing base doubloons. In the face of a promised pardon, Lyon confessed and implicated the Nansemond group. Despite guards stationed at all ferries, the gang managed to make their escape. However, only James appears to have remained at large. Rumney was soon jailed in Maryland for debt. John was committed to prison in Pennsylvania for still other crimes. And Lowe Jackson was spotted in Charleston, South Carolina, by two Williamsburg residents who had a warrant issued and claimed the reward. Jackson was returned to Williamsburg in December, 1750, but there was not enough time for the attorney general to prepare the case before the court of Oyer and Terminer, so the case was continued until the April court. The winter was hard on the prisoner's health and the gaoler finally allowed him the use of a debtor's cell where he fared much better.
At the trial in April Robert Lyon was the star witness, and all attempts by the attorney for the defendant failed to discredit his testimony. On May 6, 1751, Lowe Jackson was brought to the bar of the General Court and was sentenced to death. However, Jackson's friends, including Lewis Burwell, then President of the Council, filed for pardon, citing his young age, and stating that Rumney had led him astray. The case remained undecided when Governor Dinwiddie arrived in the colony in 1752. Having looked into the case, Dinwiddie recommended that pardon not be granted, and, 56 finally, on April 13, 1753, Lowe Jackson was drawn upon a sledge to the gallows outside of Williamsburg and hanged. His friends were allowed to claim his body and return it to Nansemond for burial. (Rankin, 1965, pp. 179-187)
Another large ring of counterfeiters was rounded up in 1773 and brought to trial in Williamsburg, where John Short, also a counterfeiter, testified for the crown. However, the counsel for the defense was able to sufficiently discredit Short's character that a perjury indictment against Short was considered, and the petit jury acquitted the defendants, in spite of evidence of presses, ink, plates, and counterfeit money seized at the same time the men were arrested. The problem of counterfeiting was not solved in the courts during this period, but by the office of the Treasurer, which issued new notes which were apparently much more difficult to reproduce. (Rankin, 1965, pp. 192-196)
Taking something from another person without their consent fell under various classifications during the eighteenth century, including burglary, robbery, larceny, picking pockets, hog-stealing, horse-stealing, and negro-stealing.
Burglary was defined as the
"breaking and entering a Mansion-house, in the Night Time, with an Intent to kill, or steal, though none be killed, nor any Thing stolen." (Webb, 1736, p. 63)Churches, public buildings, and all the outhouses belonging to a dwelling were classified as "Mansion houses" by eighteenth century law. The crime was considered felony without benefit of clergy if "money, goods, or chattels, wares, or merchandizes, of 57 the value of twenty shillings lawful money, or more" were taken. (Hening, IV, pp. 272-273)
The ways of justice in the eighteenth century sometimes seem a bit perplexing now. For example, in 1729, in Goochland County, a negro was tried for housebreaking, and acquitted,
"but as some of the stolen goods were found in his possession and he not accounting for them was ordered to received thirty-nine lashes." (Va. Mag., XIII, p. 213)Again in 1753, Charles, a negro slave, was tried for
"Feloniously breaking and Entering the house of Richard Hampton and Stealing and taking from thence Sundry goods," (Tyler's, IV, p. 235). The Court found "that the said Charles is not Guilty of the Felony above to him Imposed, (the Fact against him not being fully proved.) Ordered the sheriff take him to the Public Whipping Post and give him there on his bare back well laid on thirty nine lashes and then that he be discharged and sent back to his master's service."
In 1768, Purdie and Dixon published the following story,
(Va. Gazette, PD, 1/7/1768, p. 3, 3): "On Friday night last, about Nine O'Clock, the Post Office here was broke open and robbed of a sum of money, in silver; ...A Small quantity of paper currency was also taken...Not contented with the robbery, the Villains took a shovel full of red hot coals and threw on the bed which burnt through the clothes, but stopped at the feathers. If their design of setting fire to the office had taken place, not we only must have suffered, but there was a great probability of most of the houses on the same side of the street being consumed likewise."This note was accompanied by an offer of a reward of twenty pounds to the person discovering the perpetrator of the crime. 58
It was suggested that this may have been the work of Thomas Arthurnot Grayland of Williamsburg, later arrested for other crimes, but it does not really fit his pattern of work. The Gazette (3/26/1768, p. 2, 1 & 2) published the following account of Grayland's arrest: "Several smokehouses and cellars in the city having lately been robbed by means of false keys, on Monday last, upon some suspicion, the dwelling of one Thomas Arthurnot Grayland was searched, and in an outhouse was discovered a vault, covered over with earth, in which was deposited a chest containing a considerable quantity of bacon; also the skin and feet of a sheep, buried in the earth. The outhouse itself was well fitted up with tools necessary to pick locks, alter keys, and so forth; and there was a large bunch of keys, which upon examining the wards of many of them were discovered to be filed out. In his house was found, hid under cotton, half a cask of butter; and among a parcel of coin a key, which seemed to be a master one, as upon trial it opened all the doors of the places that had been robbed, and many more. Upon this discovery Mr. Grayland was carried before a magistrate, by whom he was ordered to be committed; and he now lodges in the Publick Prison, until released, one way or the other, by due course of law." Grayland was brought before the next court of Oyer and Terminer, found guilty, and sentenced to hang. However, he was apparently pardoned, for a similar series of robberies in Annapolis, Maryland, led Rind to speculate that Grayland was again
"pursuing his old occupation." (Va. Gazette, Rind, 9/22/1768, p. 3, 2)
In 1769, William Gahagan, having been remanded to the Public Gaol in Williamsburg, for trial for burglary, and "being on his 59 way to the public Gaol, in the Custody of one Daniel Neale, he the said Gahagan did in a most violent manner, make his escape from the said Neale," thus causing Governor Botetourt to issue a proclamation for his capture, offering a reward of twenty pounds. (Va. Gazette, Rind, 7/6/1769, p. 3, 2) Whether Gahagan was eventually brought to justice is unfortunately not a matter of record.
Starke (1774, p. 310) defined robbery as "the felonious and violent taking away from the Person of a Man, or from his House, Goods or Money to any Value, putting him in Fear." Thus, the use of force, and the presence of fear were the distinguishing characteristics of robbery. Robbery carried a sentence of death without benefit of clergy. Most of the acts of robbery in Virginia in the eighteenth century were committed by highwaymen. Thus, at the court of Oyer and Terminer held in December, 1752, "Alexander Gauling, for robbing on the Highways," was found guilty and sentenced to death. (Va. Gazette, 12/15/1752, p. 3, 1) Again in 1767, the Virginia Gazette (PD, 11/12, 1767, p. 2, 1) noted that, "On the 24th ult. was committed to the publick Gaol for robbing on the highway, William Connelly, from Fairfax." Connelly was tried by the December Court of Oyer and Terminer, found guilty, and sentenced to hang. (Va. Gazette, PD, 12/10/1767, p. 3, 1) In 1774, three men escaped from Peter Pelham at the Publick Gaol, and a proclamation for their arrest was issued by a York County justice who described one of the men, William Moore, as being
"about 5 feet six inches high had on a light coloured coat, has short red hair, appears to be about 22 year old, and has two biles on one of his wrists; from Charlotte, for robbery." (Va. 60 Gazette, Rind, 4/4/1774, p. 3, 3)Whether this robber was returned to justice is not known.
Larceny was felonious removal of goods from another, which did not involve fear, and which did not include the required intent to kill or steal at night which made the crime burglary. If the goods taken were above the value of twelve pence, the crime was grand larceny, and was a felony, although benefit of clergy could be granted to a first offender. There was an element of double jeopardy involved in this in that persons who could not be convicted of burglary in that the prosecution failed to prove intent could still be indicted for grand larceny. (Rankin, 1965, pp. 160-161) In 1773 John Payne was brought before the General Court on charges of burglary, acquitted and indicted for grand larceny which he was found guilty. (Va. Gazette, PD, 10/21/1773, p. 3, 1)
In 1751, Joseph Markham from Northumberland was tried and convicted of felony for stealing tobacco, and was granted his benefit of clergy and burnt in the hand. (Va. Gazette, 4/18/1751, p. 2, 2; 5/9/1751, p. 3, 2) Tried by the same court was
"John Boah, for Misdemeanour in receiving the said Tobacco, was fin'd Forty Shillings and ordered imprison for six months." (Va. Gazette, 4/18/1751, p. 2, 2)In 1771, reporting the disposition of cases tried before the general court, the Gazette (PD, 10/17/1771, p. 2, 2) noted "Margaret Turnbull (alias Sweeney) from Henrico, for Grand Larceny: Acquitted."
Webb (1736, p. 147) described picking pockets as "Stealing 61 from the Person, without putting him in Fear, for it is done clandestinely, and secretly, without his knowledge." The amount had to be above twelve pence for the crime to be capital. The crime was rare in the eighteenth century, both because it is a crime most readily practiced in crowds, which rarely gathered in eighteenth century Virginia, and because few people carried actual money with them, preferring to use the tobacco credit system. (Rankin, 1965, pp. 163-164) Among the court cases reported in 1752 was
"John Glifton, for Felony, in picking a Pocket, Guilty, Death." (Va. Gazette, 12/15/1752, p. 3, 1)The only other case of a pickpocket tried by the General Court was that of John Derby, alias Derby Finn, tried, convicted, and sentenced to hang in 1769 (Va. Gazette, 6/1/1769, p. 2, 3). One other pick-pocket is known to have operated in the colony for in 1771, after Derby was hanged, an advertisement in the Virginia Gazette (PD, 11/7/1771, p. 3, 3) stated that "A Gentleman this Day had his Pocket Book picked of Twenty Pounds, in five Pound Bills, of the new Paper Currency emitted last July. Should any Negro endeavor to pass such Bills, the Person who lost them will handsomely reward whoever detects the Pick-pocket, by applying to the Printers hereof." The felon, however, was apparently never brought to justice, as there is no record of such a trial.
The Act of Assembly of 1705 (Hening, III, pp. 333-335) declaring negro, mulatto, and Indian slaves to be real-estate, although intended to clarify problems of inheritance, caused great confusion in other ways. There were no laws in the colony governing the almost impossible crime of stealing real-estate. However, 62 stealing slaves was relatively easy as many of them left their masters willingly in company of the "thief." To correct this defect the Assembly, in 1732, enacted a law stating that
"if any person or persons, ...shall steal any negro, mulatto, or Indian Slave whatsoever, out of, or from the possession of the owner or overseer of such slave, the person or persons so offending, shall be and are hereby declared to be felons; and shall suffer death without benefit of clergy." (Hening, VI, p. 325; V, p. 558)
The Virginia Gazette (6/13/1751, p. 3, 2) reported that "At the Court of Oyer and Terminer, held here this week, Edward Young, convicted of Felony, in Stealing a slave, was sentenced to die." In 1772, Peter Gossegon was convicted for Negro stealing and sentenced to die, but along with Richard Thompson, convicted for Horse stealing,
"received his Excellency the Governour's most gracious pardon, upon their entering themselves on Board his Majesty's Ship the Hoston, Hyde Parker, Esquire, Commander, then bound for England." (Va. Gazette, PD, 6/11/1772, p. 3, 1)
Hog-stealing did not become a felony triable by the General Court until the third offence. The first two offences were tried by the county courts, and the offender was given "on his or her bare back, twenty five lashes, well laid on, at the public whipping post," Or fined ten pounds current money for the first offence. Slaves on their first offence received 39 lashes. On the second offence the thief stood two hours in the pillory on court day, with his ears nailed to the pillory, and these were cut loose at the end of the time. In both cases, the thief, or in case of a 63 servant, his owner, paid four hundred pounds of tobacco per hog stolen, to be shared by the owner of the hog and the informer. When a master paid this sum for a servant, the servant was required to work out the sum at the rate of 150 pounds of tobacco a month after his time of indenture. The third offence of hog-stealing was a felony punishable by death without benefit of clergy. (Hening, III, p. 179) However, it would appear that no one tried hog-stealing a third time, or at least none were caught, as there are no records of trials for this offence in the general court.
Horse-stealing was a felony punishable by death without benefit of clergy. To further aid in the prevention of this crime, the Assembly provided that persons instrumental in the capture and conviction of horse-thieves would be given a reward of ten pounds upon the conviction of the thief. (Hening, V, pp. 247-249) This law also provided that any person receiving a horse known to be stolen, or harboring a horse-thief would also be tried as a felon.
John Hill, alias Seale, was convicted of horse-stealing but prevailed upon the governor to grant him pardon. Hill, himself, describes the conditions surrounding this crime and his pardon in a letter petitioning for pardon following conviction in 1762 on a charge of passing counterfeit bills. (Va. Mag., XVII, pp. 389-392): "Your petitioner was born of honest and industrious parents in the County of Prince William where he married a Neighbors Daughter by whom he has a large family of children and always maintained an unsullied character till the Year Seventeen hundred and 64 fifty six having occasion to go upon some business to North Carolina in his return from thence in Company with one Peter Lehan and Oswald Adams, he had the misfortune to tire his Horse and was persuaded by his Companions to take the first Horse he met with which at first your petitioner refused to do, but they threatened to leave him if he did not and not caring to be left alone on a Road he was unacquainted with, at length was so imprudent as to follow their advice firmly resolved to leave the Horse he so took at the first publick House he came to and wait there till his own was Sufficiently refreshed to carry him Home, but the Owner pursuing him he was overtaken in a few miles and together with his Companions sent down to Williamsburg where they were all tried and Condemned but some circumstances appearing in favour of your petitioner his Honor the late Governor tho' he would not Grant a formal pardon Suffered your Petitioner to go at large upon Condition he would inlist as a Soldier upon this to free himself from a Nauseous Gaol and the sentence of Death, which hung over him." Hill goes on to relate that he accepted the enlistment money but decided not to go as a soldier, and so is also sought for desertion. It would appear that this particular plea availed him nought, and Mr. Hill, alias Seale was finally brought to the gallows in 1762.
In at least one instance, a horse-thief was not brought to trial, as a winter in the Publick Gaol exacted penalty first. In 1775 Peter Pelham placed the following advertisement in the Virginia Gazette (Pi, 3/30/1775, p. 3, 2): "Last Wednesday died, in the public gaol, James Carter, from Pittsylvania, who was Committed for horse-stealing. As he was the only Criminal from that county, the sheriff, witnesses, and Vinire, need not attend 65 the ensuing General Court."
The law passed in 1647 specifying that each county should build and maintain an adequate prison from which escape was only possible by in some way breaking in the building, further stated
"that all persons so offending whether debtors or others shall be pursued and adjuged and suffer as in case of fellony." (Hening, I, pp. 340-344)Death without benefit of clergy remained the penalty for gaol-breaking throughout the colonial period, but was not always enforced. For example, in 1751, Robert Howles from Hanover was tried by the General Court for breaking gaol, and was sentenced to be imprisoned for one year. (Va. Gazette, 10/17/1751 p. 3, 1)
John Sparks was not this lucky in his sentence. The Virginia Gazette (7/3/1752, p. 3, 1) reported that: "On Wednesday last John Sparks, Confin'd in the Public Gaol, under Sentence of Death, for the Murder of James Fox, Contriv'd to saw off his irons in the Day Time, and at Night, as soon as the Goaler open'd the prison Door, Knock'd him down with a quart Bottle, and made his Escape. He was apprehended Yesterday Evening and Brought to Town this morning, and to prevent a possibility to his escaping the justice his crime deserv'd, was this day executed at the Gallows."
Another group of escapees that did not fare too well was reported in 1768 in the
Virginia Gazette (Rind, 8/25/1768, p. 3, 1): "Last night, as the prisoners in the public Gaol here were going to be locked up in their respective rooms, four of them (who got their irons off, armed themselves with iron bars) 66 knocked down the person sent in for that purpose, and got into the woods, where they were pursued and taken not without one of them being well peppered about the legs with small shot."
In 1772 an escape involving accomplices on the outside was reported
(Va. Gazette, 11/19/1172, p. 2, 2): "The Utility of Watchmen was very visible last Monday Night, for had not that measure been lately adopted the Jail of this City would have been burnt to the ground, and in all likelihood some of the adjoining buildings; A Negro fellow who was committed there that Day having found a means to set the floor on fire and having accomplices without, escaped through a hold in the underpinning. The people upon Duty that night have had each a Reward of five pounds, Which we hope will encourage them to use the same Care and Vigilance in future."
Sedition was defined by Johnson in 1755 as
"a tumult; an insurrection; a popular commotion; an uproar." (OED, IX, p. 374)It also included the conduct or language which would incite such an insurrection or tumult. In 1680, a law was passed which provided that persons who
"malitiously and advisedly by writeing, speakeing or otherwise expresse, publick, utter, or declare any word, sentence or thing or things to incite or stir up the people to the dislike of any person appointed by his majestie to be governor or commander in chiefe of the said colony...and being thereof legally convicted shalbe imprisoned during one yeare without bayle or mainprize, and incurr such forfeiture as shalbe adjudged, not exceeding the sume of 500 1." (Hening, II, p. 463)The same law 67 provided that for persons convicted of such actions against members of the Council, judges, and other principal officers of the government, the penalty was to be three months in prison and a fine not to exceed one hundred pounds. This was a considerable reduction in penalty as in 1606 the various actions included under the heading of sedition were classed as felony without the benefit of clergy. (Hening, I, p. 69) The definition provided by this act would tend to make sedition more a matter of contempt of the governor, courts, etc.
One such case came before the General Court in 1674, with the following result
(Va. Mag., XX, p. 239): "Order of a General Court held at James City in reference to Complaint of Thos. Ludwell, Secretary of State against Giles Bland for Speaking Scandalously of the Council and ignominiously presumptuously and unworthily nailing one of Ludwell's gloves up at the State House Door with a most false and scandalous libel-that said Bland ask public pardon of the secretary, give security for his good behavior for the future, and payment of a fine of 500 lbs. sterling within two years unless he can get the same remitted by an order of the Privy Council."
The Council records note the disposition of another case
(EJCCVa, IV, p. 67): "Whereas Robert Jourdan Junr of the County of Nansemond, was convicted this General Court of Writing and publishing a scandalous Libel reflecting on the Laws of the Government and the established Church, and thereupon is by Sentence of the said Court Committed to the public Goal untill he enter into Bond with Security for his good Behavior for a Year and a Day; and whereas the said Jourdan being a Quaker doth alledge, 68 that he cannot in conscience enter into such Bond himself, nor engage any of his own profession to become bound for him, but is willing to find two sufficient suretys, being persons of the Church of England to become bound for him; It is the Opinion of this board, That upon the said Jourdans making such application to the governor as his Honr shall judge fitt and paying His fees a pardon issue remitting the Sentence of the General Court and that in lieu thereof the Security offerr'd in behalf of the said Jourdan be accepted for his Good Behavior."
In 1739 the Council considered what amounted to a case of contempt against a county court
(EJCCVa, IV, p. 443): "The Petition and Complaint of John Clavil Gent, Against John Mercer Gent. being this Day heard and divers Witnesses examined Whereupon It appearing That the said John Mercer had behaved himself very insolently to the Justices of the County Court of Prince William and excited the People to Condemn them and their Authority It is the Opinion of the Board & accordingly ordered that the said John Mercer be forever disabled to Practice as an Attorney in the County Court of Prince William and he is hereby disabled accordingly."No fine or gaol sentence was apparently imposed on Mercer, although both could have been so imposed by law.
In 1658 the laws of England against bigamy were
"put in execution in this countrie." (Hening, I, p. 434)These laws provided that bigamy was a felony but benefit of clergy was allowed. In cases where the husband or wife had been "beyond the seas" for a period of seven or more years, the remaining partner 69 was allowed to remarry as if the first spouse were actually known to be dead. Also, ecclesiastical courts could dissolve marriages, in which case both partners were free to remarry. (Rankin, 1965, pp. 146-147)
Since there was generally a shortage of women in the colony, bigamy does not appear to have been much of a problem in Virginia. Only two cases for bigamy were tried in the General Court, and both defendants, John Burgard and Stephen Hutchins, were acquitted. (Rankin, 1965, p. 147)
Only two forms of forgery proved to be any problem in Virginia in the eighteenth century. In 1748 (Hening, V, p. 552) the law provided that "if any runaway shall make use of forged certificate, such runaway, besides making reparation for loss of time and charges of recovery, ...shall stand two hours in the pillory, on a Court day, for making use of such forged...certificate; and the person forging the same shall forfeit and pay ten pounds current money, one moiety to the king,...and the other moiety to the owner of such runaway, or the informer." The other form of forgery which worried the colonists occurred when
"any person, not being a servant, or slave, shall forge or counterfeit any pass, in order to procure a transportation out of this colony." (Hening, VI, p. 44)The penalty for this, in the case of a free person, who would have been trying to escape from debts, was a fine of ten pounds, half to the crown and half to the informer, and the privilege of spending two hours in the pillory on court day. Servants or slaves forging such passes, as a means of escaping 70 the colony, were sentenced to two hours in the pillory, and thirty-nine lashes well laid on.
It is not always clear from the reports of the Virginia Gazette just what the particular defendant had forged. For example, among the court cases of 1771, the Gazette (PD, 10/17/1771, p. 2, 2) reported that of "Mills Mansfield, from Nansemond, for Forgery: Whipped and discharged." Gain in 1774 (Va. Gazette, Pi., 10/20/1774, p. 2, 3) they report: "Richard Brack from James City, for forgery; guilty: to stand in the pillory one hour, his right ear to be cut off the second Tuesday in December next, and to be imprisoned one whole year."
The punishment for perjury included a forfeit of £ 20 in addition to six months imprisonment. If the person so convicted were unable to pay the fine, he had to stand two hours in the pillory with his ears nailed to it. Furthermore, all persons convicted of perjury were disabled as witnesses in any court of record. (Rankin, 1965, pp. 215-216) In 1745, the Assembly stated
(Hening, V, p. 349) "That if any person,...shall take a false oath, and be thereof convicted, he shall be adjudged guilty of perjury, and shall suffer as a person convicted of wilful and corrupt perjury."Persons convicted of perjury in the colony were also disabled from holding office. (Hening, III, p. 250)
The only case of perjury in the eighteenth century was an outcome of a trial of counterfeiting ring in 1773, and it never came to trial. The Virginia Gazette (PD, 4/22/1773, p. 3, 1) reported the incident as follows: "The testimony of John Short, 71 the principal Evidence against the Prisoners, was invalidated by Sundry Evidences in their Behalf, who proved him a most atrocious Villain; and their Counsel even made a motion in Court to have him indicted for Perjury. N. B. He is since gone off; and his left behind him, in this City, a wife and six helpless Children in most pitiable Circumstances." Short was apparently never seen or heard from again in this colony.
In 1752 the Assembly (Hening, VI, p. 250) stated that, "Whereas many mischievous and ill disposed persons have of late, in a malicious and barbarous manner, maimed, wounded, and defaced, many of his majesty's Subjects,...if any person or persons,...on purpose, shall unlawfully cut out, or disable, the tongue, put out an eye, slit the nose, bite or cut off a nose or lip, or cut off or disable any limb, or member, of any subject of his majesty," such persons, if convicted, should suffer as felons, though benefit of clergy was allowed, and "no attainder of such felony shall extend to corrupt the blood, or forfeit the dower of the Wife, or the lands, goods, or chattels of the offender."
Under the provisions of this cat, the Virginia Gazette (PD, 10/25/1770, p. 2, 2) reported the trial of "Samuel Burns, from Prince Wm, for gouging, guilty." Burns received his clergy and on November 4 was burnt in the hand. (Va. Gazette, PD, 11/8/1770, p. 2, 2)
In 1771, Governor Dunmore issued the following proclamation,
(Va. Gazette, Rind, 11/21/1771, p. 3, 3): "Whereas Complaint has been made to me, upon Oath by Benjamin Clark, of the County 72 of Lunenburg, that Daniel Mackey, of the said County, did some time in the year 1770, Maliciously bite off one of the ears of the said Benjamin, and otherwise barbarously maim him, for which offence he was examined before a Magistrate, and while a recognizance of bail was making out for his appearance at court, to undergo an examination for the said offence, he found means to make his escape, appeared not at the Court appointed for the purpose, nor has yet surrendered himself, but goes armed against all legal authority, and in defiance of an escape warrant, which has been granted for apprehending him: I have therefore thought fit, by and with the consent and advice of his Majesty's Council, to issue this proclamation, in his Majesty's Name, hereby offering a reward of Ten Pounds to any person, who shall apprehend and bring to Justice the said Daniel Mackey."The loss of an ear in such a fight was particularly serious, as it was often taken as a sign of conviction for perjury, hog-stealing, or the like.
By the Charter of 1606, incest as a felony punishable by death without benefit of clergy, (Hening, I, p. 69) It seems unlikely that this penalty was ever enforced in the colony, and it is probable that the statute passed in 1730 (Hening, IV, pp. 244-246) merely made law what had been practice in the colony to that date. This act "for preventing incestuous marriages and copulations" provided that "if any persons whatsoever shall hereafter marry within the levitical degrees prohibited by the laws of England...every person or persons so unlawfully married, shall be separated by the difinitive sentence or judgement of the general 73 court; and the children proceeding or procreate under such unlawful marriages, shall be accounted illegitimate." The law also provided that the Court could "punish the parties by fine at their discretion; and if they see fit, many cause the parties so separated, to give bond, with sufficient surety that they will not thereafter cohabit; under such penalty as the said court shall judge reasonable." The levitical degrees were those degrees of blood relationship within which law forbade marriage, and included about the same relations as the law now covers. The same law provided that persons who should, "without marrying, carnally know or have copulation with any person within the degrees aforesaid," they could be tried in any court of record, and fined at the court's discretion. If they refused to pay the fine or provide surety for payment, "every person so refusing, shall, by order of the said court, be publickly whipt on his or her bare back, not exceeding thirty nine lashes." The court could also commit such parties to gaol until "they give bond with sufficient surety, for their future separation." Thus, during most of the eighteenth century, incest would merely have resulted in a severe fine. As incest was only triable in the General Court when a marriage that violated the law was in question, and as ministers were forbidden to marry such persons in the first place, the problem does not actually seem to have arisen in the eighteenth century. At least, no records of such a trial exist.
The forms of bribery which concerned the colonists and against which they enacted various laws were: bribing a tobacco inspector, 74 bribing a person who collected duty on liquors or slaves, and the possible cases of Burgesses buying votes within their constituencies.
In 1748, the law (Hening, VI, p. 185) stated that tobacco inspectors who accepted bribes, "shall forfeit and pay fifty pound current money," to be recovered, with costs, by the informer in an action for debt. Persons offering bribes to such officers were fined ten pounds current money, half to the crown and half to the inspector who refused the bribe and informed.
The law governing collectors of customs or duties provided that such collectors accepting bribes be fined one hundred pounds current money, and that persons offering bribes to such officials be fined the same amount. Furthermore, the collector convicted or accepting a bribe was disabled to hold any such position or any other office
"relating to the customs within this colony and dominion." (Hening, IV, p. 146; VII, p. 268)
Concerning Burgesses, the law (Hening, VIII, p. 313) stated "That no person hereafter to be elected a member of the general assembly, for any county, city, town, or corporation, within this dominion, shall..., before his election, either himself, or by any other person or persons on his behalf, and at his charge, directly or indirectly, except in his usual and ordinary course of hospitality in his own house, give present, or allow, to any person, or persons having voice or vote in such elections, any money, meat, drink, or entertainment, or any promise, agreement, obligation, or engagement, to or for any person or persons,...in order to be elected a burgess." The law further provided that any persons who offended against this law were to be considered "guilty of 75 bribery and corruption and rendered incapable to sit or vote, or of being re-elected to a member of the house of burgesses..."
In a law governing servants and slaves, (Hening, III, p. 451) the assembly provided "That no person whatsoever shall buy, sell, or receive of, to or from, any servant, or slave, any coin, or other commodity whatsoever, without the leave or licence as aforesaid, deal with any servant, or slave, he or she so offending, shall be imprisoned one calendar month, without bail or mainprize; and then also continue in prison, until he or she shall find good security, in the sum of ten pounds current money of Virginia, for the good behavior for one year following," and was required to pay four times the value of the goods so traded to the master or owner of the servant or slave. The law also provided that if persons did not give security for their good behavior following a breach of this act, they would receive "thirty nine lashes, well laid on, upon the bare back of such offender, at the common whipping post of the county." The precautions in this law were necessary in that it was rare that servants or slaves would have possessions of their own to deal in, and allowing persons to deal with them would merely be encouraging them to steal from their masters. Mainprize was a form of personal security in which another person in effect agreed to take the offender into protective custody and produce him or her in court when ordered to do so.76
The General Assembly passed divers laws
"to prevent gaming at ordinaries, and other public places, which must be often attended with quarrels, disputes, and controversies, the impoverishment of many people and their families, and the ruin of the health, and corruption of the manners of the youth, who upon such occasion frequently fail in company with lewd, idle, and dissolute persons, who have no other way of maintaining themselves but by gaming." (Hening, VI, p. 78)
In 1727, the law (Hening, IV, pp. 216-217) provided that if any person, "by any fraud or shift, cozenage, circumvention, deceit, or unlawful device, or ill practice whatsoever in playing at or with cards, dice, or any of the games aforesaid,...win, obtain, or acquire,... any sum or sums of money, or other valuable thing or things whatsoever," such person, upon conviction, "shall forfeit five times the value of the sum or sums of money, other things so won,... and be deemed infamous, and suffer such corporal punishment as in case of wilfull perjury." This law further provided "That in case any person or persons whatsoever, shall assault and beat, or shall challenge or provoke to fight any other person or persons whatsoever, upon account of any money, or other thing, won by gaming, playing, or betting," such persons upon conviction were to pay ten pounds current money to the party grieved. (Hening, IV, p. 218)
In 1740 (Hening, V, pp. 102-103) the law provided that all debts, "for any money or other valuable things whatsoever, won, laid, or betted at horse-races, cock-fights, or any other sports 77 or pastimes, or on any wager whatsoever," were not recoverable. As a further limitation, the law provided "That if any Ordinary Keeper, shall suffer or permit any person or persons whatsoever, to play at any game of cards or dice (except back gammon) in his house, either by night or by day, he, she, or they, shall forfeit and pay the sum of ten pounds, ...And moreover, upon conviction, as aforesaid the license of such ordinary-keeper shall be, ipso facto, void."
In 1744, for relief of losers at games, the law (Hening, V, pp. 229-230) provided that all such losses of forty shillings or more, already paid, could be recovered from the winner or winners in an action of debt filed within three months, and that if the loser failed to file his suit within three months, any other person could file and gain the losses plus costs. This law also provided a fine of five pounds current money to be levied against any persons gaming in public places such as ordinaries or race fields. The fine against ordinary keepers for permitting gaming was reduced to five pounds.
The purpose of these laws was largely to protect the poor person who could ill afford to gamble, and the fines imposed by the laws were used for the parish poor. The laws did not in any way infringe upon a popular pastime of the wealthy, who continued to place wagers on almost everything, but did avoid public places to carry out their wagers, and to make payment.
There were many other minor offences punishable by fines and forfeitures which could be committed in eighteenth century. However, most of these were triable in the county courts, and the 78 offenders did not arrive at the publick gaol. Also, most of these offences were largely intended to regulate the administration of the colony, such as the laws governing surveyors, ferries, etc. and do not constitute actual penal law.79
The Charter of 1606 (Hening, I, p. 69) included the instructions that "the true word and service of God and Christian faith be preached, planted, and used,...according to the doctrine, rights, and religion now professed and established within our realme of England." In these words, the Anglican Church was established in Virginia, and remained the established church until such were forbidden in Virginia in 1786. Having an established church meant several things. It meant that the church was supported by tax money, that the legislature could enact laws regulating church practice and the ministers of the church, that the church could enforce its moral and ecclesiastical teachings through acts of Assembly and trials in the courts of record, and that the Assembly could regulate, punish, and expel a variety of non-conformists who would not submit to the established church.
The Anglican Church in colonial Virginia was supported by the parish levy, a form of taxation to which every tithable person living within the physical boundaries of the parish was required to contribute a specified amount. The levy was collected under the supervision of the county courts, where various means to compel payment were lodged. Although during the later years of the colonial period, various protestant dissenters were permitted to worship according to their own persuasions, they were still required to support the established church through the parish levy.80
In 1623-4 the Assembly passed its first law governing church dogma and practice. This law stated
(Hening, I, p. 123) "that there be an uniformity in our church as neere as may be to the canons in England; both in substance and circumstance, and that all persons yield readie obedience unto them under paine of censure."In 1629-30 (Hening, I, p. 149) the Assembly ordered "that all ministers residing and beeing, or who hereafter shall reside and bee within this colony, shall conforme themselves in all things according to the cannons of the church of England. And if there shall bee any that, after notice given, shall refuse to conforme himselfe, hee shall undergoe such censure, as by the said cannons in such cases is provided for such delinquent." Both of these laws were reenacted steadily throughout the early colonial period. (Hening, I, p. 155, p. 180, p. 277)
In addition to establishing cannon law by act of Assembly, the Assembly specified many aspects of a minister's life and duties, and prescribed proper behavior for the clergy in all realms. Thus, in 1631-2, the Assembly ordered (Hening, I, p. 158) that "Mynisters shall not give themselves to excesse in drinkinge, or riott, spendinge their tyme idellye by day or night, playinge at dice, cards, or any other unlawful game; but at all tymes convenient they shall heare or reade somewhat of the holy scripture, or shall occupie themselves with some other honest study or exercise, alwayes doinge the thinges which shall apperteyne to honesty, and endeavor to profitt the church of God, alwayes having in mynd that they ought to excell all others in puritie of life, and should be examples to the people to live well and christianlie." Furthermore, the Assembly required that ministers be ordained by 81 a Bishop in England (Hening, II, p. 46), that they conform to English practice in baptism, prayer, and in visiting the sick of their parish (Hening, I, p. 144), that they regularly teach the catechism provided by the Anglican church (Hening, II, p. 47), and that they follow certain forms of marriage and only marry certain persons (Hening, III, pp. 441-446; IV, pp. 245-246; VI, pp. 81-85, p. 362). In his Declaration upon arrival as the new Lieutenant Governor in 1677, Jeffreys promised that
"to the high Pleasure and honour of Almighty God and in reverence to his Holy Church, I shall take and use all speedy and effectual means, possible for the defusive propagation of his glorious truth and Gospel here in this Country, by causing a strict Inquiry to be made into the lives, licence, abilities and qualifications, or the Clergy here, and by reporting home the same to the Rt. Reverand Father in God, Henry Lord Bishop of London (within whose Diocese Virginia is) who hath given express and pious admonition and charge in this behalf for suspending & removing such scandalous, unworthy Ministers and Pastors as, do now exercise and officiate in any the parishes, or precincts of this colony; and take care that others may be instituted in their places and shall use all possible means for the Holy Keeping, and strict observing the Lords day." (VA. Mag., XXII, p. 46)
Most offences of clergy which were not such violations of penal statutes that they would be triable in the General Court were tried by the Court of the Commissary of the Lord Bishop of London. Governor Gooch, in his answers to the Lords of Trade, (Va. Mag., III, p. 116) described this court as follows: "There is also a Cot of ye Comissary of ye Ld Bp of Londn wch only 82 meddles with the Punishment of the Immors of ye Clergy & proceeds by Monition, Suspension, or Deprivation according to the offence & an appeal lyes to the Delegates appd by Ks Com. in England." A record of one case which was recommended to this court remains in the Council records (EJCCVa, V, p. 100) where it was noted on October 22, 1742, that "Upon reading the Representation and Complaint of the Vestry of North farnham parish ag't the Rev'd Mr. Blewit the Minister of the said parish for Drunkenness and profain Swearing and other Immoralities and Misdemeanors in his Function as Minister. Upon the Examination of diverse Witnesses on the behalf of the Vestry and hearing the dense of Mr. Blewit, It is the Opinion of the board that he Charges in the said Complaint are fully proved, that he is a Scandal to his Function, and do therefore recommend it to Mr. Comissary as matter within his Jurisdiction, to Deprive the s'd Blewit and turn him out of his parish and desire the Governor will be pleased to Appoint in his room."
The Assembly, in concert with the churches, passed laws for the enforcement of moral behavior on the populace, and provided that the fines for the various offences covered under these laws should be appropriated for parish use. Included in these offences were absence from church, disturbing divine worship, sabbath breaking, blasphemy, swearing and cursing, drunkenness, fornication, adultery and witchcraft. All of these offences, with the exception of witchcraft, and after 1730, of blasphemy, were triable in the county courts on presentment either by the grand jury or the church wardens.83
In an early Sabbath law, (Hening, I, p. 123) the Assembly stated "That whosoever shall absent himselfe from divine service any Sunday without an allowable excuse shall forfeite a pound of tobacco, and he that absenteth himselfe a month shall forfeit 50 lb. of tobacco." In 1657-8 it was further provided
(Hening, I, p. 434) "That the Lord's day be kept holy, and that no journeys be made except in case of emergent necessitie on that day, that no goods bee laden in boates nor shooteing in gunns or the like tending to the prophanation of that day."These offences carried a hundred pound tobacco forfeiture, and time in the stocks. In 1680 (Hening, II, p. 483-484) the Assembly provided that disturbers of divine worship were to be restrained by the sheriff or a justice of the peace or constable, and were to be fined 200 pounds of tobacco for the first offence, and 500 pounds of tobacco for each succeeding offence. Although the amount of the fines did vary slightly over the colonial period, the Sabbath laws remained in effect throughout (Hening, I, p. 155, p. 434; II, p. 48; III, pp. 71-75, pp. 137-140, pp. 168-170, pp. 358-362; 1730, pp. 244-246; V, pp. 225-226). One such case came before the Governor and Council in 1634, when "Henry Coleman excommunicated for 40 days, for using scornful speeches and putting on his hat in church, when, according to an order of court, he was to acknowledge and ask forgiveness for an offence." (Hening, I, p. 223) In a survey of the county records for the Isle of Wight in the eleven year period from 1772 to 1783, sixteen presentments for violations of these laws were made: five for absence from church, and eleven for sabbath breaking. (W & M Quarterly, VII, p. 271) Thus, even late in the colonial period, the church wardens and county courts 84 were upholding these laws.
The offence of blasphemy was first defined, and punishment specified, in 1699 (Hening, III, pp. 168-9) as follows: "That if any person or persons brought upp in the christian religion shall by writeing printing, teaching or advisedly speaking, deny the being of a God or the holy Trinity or shall assert or maintaine that there are more Gods then one or shall deny the Christian religion to be true, or the holy scriptures of Old and New Testament to be of divine authority, and be thereof lawfully convicted upon indictment or information in the general court" they were to be disabled to hold civil, ecclesiastical or military office following the first offence, and were to lose all citizenship rights after the second conviction. The law also provided that such person could be discharged from the penalties if he renounced his opinion within six months, in the same court in which he was convicted. This law remained in effect throughout the colonial period (Hening, III, pp. 358-362; IV, pp. 244-246; V, pp. 225-226), with the act of 1730 again stressing that these cases must be tried in the General Court as loss of citizenship right was involved. However, the act was rarely exercised. In 1754, William Sherring was sentenced, following trial in the General Court, to die for "sacrilege." Other than this one case, most offences of an ecclesiastical nature were related to the behavior of clergymen, such as the case of Mr. Blewit, and seem to have been referred to the Commissary, following consideration by the Governor and Council. (Rankin, 1965, pp.142-145)
In 1691 the law (Hening, III, p. 72) provided "That no person or persons whatsoever shall from henceforth swear, curse, or 85 prophaine Gods holy name, and if any person or persons shall offend herein, and shall thereof be convicted by the oath of two witnesses, or by confession of the party, then every such offender shall for everytime soe offending forfeit and pay the summ of one shilling." Again, the amount of the fines changed occasionally, but the law remained in force throughout the colonial period. Often, presentments for swearing or profanity accompanied presentments for drunkenness, as in one returned in Brunswick County in July, 1765, of "The Reverend Gronow for getting drunk. The same for profane swearing. By the information of John Maclin Sen." Reverend Gronow was convicted and fined five shillings or fifty pounds of tobacco for the use of the Parish poor. (W & M Quarterly, XIX, p. 162). During the years between 1772 and 1783 the Isle of Wight County records show 29 presentments for profane swearing, and the only more frequently presented misdemeanor during the period in this county was against the surveyor of roads for neglect of his duty. (W & M Quarterly, VII, p. 271)
The Governor and Council were given "power and authority, by virtue of these presents, to punish all manner of excesse, through drunkennesse or otherwise," by the 1606 Charter (Hening, I, p. 71). In 1619, the Assembly passed their first law against drunkenness, (VA. Mag., II, p. 64), and in 1623-4 this act was confirmed (Hening, I, p. 125). In 1691, the penalty for drunkenness was set at ten shillings, "and if the offender or offenders of any or of all the aforesaid vices or crimes be not able to pay the said fines and forefeitures aforementioned, then every offender or offenders therein, shall be committed to the stocks for every offence, there to be and remaine for the space of three full hours." 86 (Hening, III, p. 73) Although Virginians leave a record of being fond of an occasional glass, the presentments against drunkenness are comparatively rare. For example, only nine such presentments were returned in the Isle of Wight County between 1772 and 1783. (W & M Quarterly, VII, p. 271)
The Charter of 1606 (Hening, pp. 70-71) gave the Governor and Council power to punish adultery with death, and in effect included fornication as a "Manner of excesse" to be dealt with according to their best discretions. In 1691, the law provided that "every person and persons committing fornication, being convicted as aforesaid, shall for every time so offending forfeit and pay the sum of ten pounds sterling, and that every person or persons committing adultery, and being convicted as aforesaid, shall for every time so offending forfeit and pay the sume of twenty pounds sterling," and that those who could not pay the fine would receive thirty lashes or three months in gaol. (Hening, II, p.74) The law also provided the persons frequenting the company of a lewd woman, after being admonished by the minister, could be punished as for adultery if they continued in their ways. The trials for these crimes are rare, either because Virginians were well behaved or because they were quite discreet. In 1630, the Governor and Council ordered
"Hugh Davis to be soundly whipped, before an assembly of Negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge on the Sabbath day." (Hening, I, p. 146)In 1661-2, following a trial before the Grand Assembly, (which still had judicial power at this point), it was ordered that
"Whereas William Burg hath been 87 proved to live scandously in ffornication with the relict of major John Billingsley, it is ordered that the said Burgh be committed and continued in prison until he give bond with good security, that he shall not keep company with the said Elizabeth, and if the said William Burgh shall without security given, offer to go beyond the bounds of prison, or if the said Elizabeth shall come to him there, then the sherriffe of Nanzemond by a habeus corpus to be removed to James Citty." (Hening, II, p. 162)
Witchcraft was not greatly feared in the Virginia colony, as evidenced by the infrequency with which the chare was made, or prosecuted. Had anyone actually been found guilty of witchcraft, they would have suffered death as a felon, without benefit of clergy, for this was the provision of English law. (Rankin, 1965, pp. 226-229) In one case, tried in the Accomac County Court, the Reverend Francis Doughty, pastor of Hungars Parish, accused Barbary Winbrough of witchcraft. However, she was acquitted by the County Court in 1657. (Va. Mag., VIII, p. 358) In one other case, Grace Sherwood was accused in Princess Anne County Court, and the case went to the General Court in 1698. The attorney general did not feel there was enough evidence to gain a conviction and sent the case back to the county for further investigation. No further action was apparently taken, as Grace Sherwood lived on until 1733. (Rankin, 1965, p. 228) This is the last case of witchcraft mentioned in Virginia records.
In addition to regulating the moral and religious behavior of those who belonged to the established church, the Assembly felt called upon to regulate and restrict the practices of any who chose to dissent. In 1642-3, the first law to specify a penalty for 88 nonconformity stated
"that the Gov. and Counsel do take care that all nonconformists upon notice of them shall be compelled to depart the collony with all convenience." (Hening, I, p. 277)"All convenience" seems to have been a liberally interpreted phrase, as in 1657 the Council and General Court records show "Thomas Thurston & Josias Cole, Quakers ordered to depart on a ship and in the mean time committed to custody, and not to have pen, ink or paper, or correspondence with citizens." (Va. Mag., VIII, pp. 353-354) In 1659-60 the Assembly passed An Act for the suppressing the Quakers, (Hening, I, pp. 532-533) which provided that whenever Quakers were found, "they be imprisoned without baile or mainprize till they do adjure this country, or putt in security with all speed to depart the collnie and not to return again: And if any should dare to presume to return hither after such departure to be proceeded against as contemners of the lawes and magistry and punished accordingly, and caused again to depart the country, And if they should a third time be so audacious as to returne hither to be proceeded against as ffelons." Felony was punishable by death unless benefit of clergy were granted, which would have been unlikely at this time for a Quaker. However, it is doubtful that any returned a third time while this law was in effect. Tow years later the penalties were reduced somewhat, being merely very heavy fines for their absence from established church. For a year's absence, a Quaker was required to put up security for his better behavior, and to pay £ 240 sterling for his absences. (Hening, II, p. 48) Further, this law also provided "that all Quakers for assembling in unlawfull assemblyes and conventicles be fined and pay each of them there taken, two hundred pounds of tobacco for 89 each time they shall be for such unlawful meeting taken or presented by the church wardens to the county court." The Act prohibiting the unlawfull assembling of Quakers passed in 1663 (Hening, II, pp. 180-183) reiterated this penalty for the first such unlawful meeting, and further stated that "if any such person or persons being once convicted shall againe offend therein, and shall in forme aforesaid be thereof lawfully convicted shall for the second offence forfeite and pay five hundred pounds of tobacco to be levyed by distress and sale of the goods of the party soe convicted,...and if any person after he or she in forme aforesaid hath bin twice convicted of any of the said offences shall offend the third time and be thereof lawfully convicted, that then every person soe offending and convict as aforesaid shall for his or her third offence be banished from this colony of Virginia." However, the law also provided that Quakers or other separatists so convicted could avoid the penalties by putting up sufficient security not to further so offend.
In 1663, the House considered the possible case of one Quaker (Hening, II, p. 19l8) as follows: "Whereas Mr. John Hill high sheriff of Lower Norfolk hath represented to the house that Mr. John Porter, one of the burgesses of that county was leving to the Quakers and stood well affected towards them, and had been at their meetings, and was so far an anabaptist as to be against the baptising of children, upon which representation the said Porter confessed himself to have and be well affected to the Quakers, but conceived his being at their meetings could not be proved, upon which the oaths of allegiance and supremacy were tendered to him which he refused to take: whereupon it is ordered that the said 90 Porter be dismissed this house."
However, the control of Quakers and other protestant dissenters was radically limited in 1688 by the passage of the Toleration act in England. Of course, it took a while for the act to see implementation in the colony. In 1699, a part of An act for the more effectuall supressing of Blasphemy, Swearing, Cursing, Drunkeness, and Sabbath Breaking provided that
"if any person or person dissenting from the church of England being every way qualified according to one act of parliament...entituled an act for exempting their majesties protestant subjects dissenting from the church of England from the penaltyes of certaine laws, shall resort and meet at any congregation or place of religious worship permitted and allowed by the said act of Parliament once in two months that then the said penaltyes and forfeitures imposed by the act for neglecting or refuseing to resort to their parish church or chappel as aforesaid shall not be taken to extend to such person or persons." (Hening, III, p. 171)In the same year, Quakers were given the right to vote for burgesses, provided they were freeholders, and were allowed to affirm their holdings rather than swearing them according to the usual oath. (Hening, III, pp. 172-175) In 1705 the Assembly further provided
"that the people called Quakers, shall have the same liberty of giving their evidence, by way of solemn affirmation and declaration, as is prescribed by one act of parliament,...intituled An act that the solemn affirmation and declaration of the people called Quakers, shall be accepted instead of an oath in the usual form." (Hening, III, p. 298)However, the passage of these various acts did not give full freedom to the protestant dissenters within the colony. 91 In order for a clergyman who was not a minister of the Church of England to preach in the colony, he was required to do so only in buildings built for that express purpose, with the approval of the county court. The Quakers and the Presbyterians apparently managed to remain within the limits of this law, but the Baptists often preferred to travel as itinerant preachers, and this resulted in at least one trial. Caroline County records provide the preliminary for this trial (Va. Mag., XX, p. 319), as follows: "July, 1771-Grand jury indicts 'John Young for Preaching the Gospel at Thomas Pitman's Contrary to Law." "November, 1771--John Young, being by virtue of a warrant brought before the court, acknowledged himself guilty of the charges in the warrant specified. It is therefore ordered that Charles Robinson, gent., Deputy King's Attorney, apply to the Attorney General desiring him to prosecute the recognizance entered by the said Young in the general court."
However, although life in Virginia became easier for protestant dissenters, this new benevolence did not extend to Catholics or non-Christians. By law in 1705, Catholics, or popish recusant convicts as they were referred to, were forbidden to vote in elections of burgesses. (Hening, III, pp. 236-246) This further meant that they could not hold office of any sort in the colony. In 1752 the law stated
"that popish recusants convict, shall be incapable to be witness in any cause whatsoever." (Hening, VI, p. 338)Finally, in 1756 An Act for disarming Papists, and reputed papists, refusing to take the oaths to the government was passed (Hening, VII, pp. 35-39). This law provided that persons suspected of being Papists were to be offered the oaths prescribed by Parliament, and, if they refused to take them, "that any two or more justices of the 92 peace, from time to time, by warrant under their hands and seals, may authorize and impower any person or persons in the day-time, with the assistance of the constables where the search shall be (who is hereby required to be aiding and assisting herein) to search for all arms, weapons, gunpowder or ammunition in the house, custody, or possession of any such Papist, or reputed Papist, and seize the same for the use of his majesty and his successors." Furthermore, such Papists or reputed Papists, were not allowed to "have or keep, in his own possession, or his disposition, any horse or horses, which shall be above the value of five pounds," but that these were also to be seized for his majesty's use. Persons concealing or aiding in the concealment of such horses were committed to prison for three months without bail or mainprize, and were fined treble the value of such horse or horses. This law was passed and put into effect during the second year of the French and Indian War, when Papists were virtually synonymous with the enemy, which may explain the particular provisions of this act. However, even in this instance, Papists who wished to recant and take the oaths indicating conformity were freed from the penalties of the law.
These, then were the various provisions which resulted from the existence of an established church within the colony. The provisions regulating dissenting groups were of course ended with the Bill of Rights, but those governing various kinds of behavior have, in many cases, lasted into the twentieth century.93
Creditors during the colonial period, as today, were given recourse through the courts for the collection of debts which they were in danger of losing through default by the debtor. Much of the debt actions in Virginia apparently arose because of the wide variety of specie which could be and was used as money, including pounds sterling, some foreign coins, the paper currency of the colony itself, and tobacco and corn. The law provided that
"every debtor under execution for debt, shall be deteyned in prison until he hath paid the debt in kind; but that a reall poor man laid under execution for a debt under one thousand pounds of tobacco shall still have liberty by part of their estate by some justice of the county,...and by appryzers ... sworne equally to apprize the said estate, shall make payment to their creditor thereof." (Hening, II, pp. 80-81)Thus, not having enough of the particular specie required in payment of a certain debt, and perhaps not being able to acquire any at the time, as in the case of tobacco following a crop failure, could lead a man into a debt action. To overcome some of the worst handicaps imposed by the regulation, the Assembly on several occasions enacted emergency measures following tobacco failures, which allowed money to be tendered in payment for tobacco debts (Hening, VI, pp. 568-9; VI, pp. 240-241). Furthermore, the law eventually allowed debts for sterling to be settled in common currency of the colony, according to a specified rate of exchange, (Hening, V, p. 539). These acts 94 were most beneficial to the well-to-do debtor who was not harmed by occasional fluctuations in the price of tobacco. The poor man, however, may in some years have had trouble acquiring enough tobacco at elevated prices to settle a tobacco debt, and would have been forced to default on the debt.
There were certain conditions which a creditor must satisfy in order to bring suit for the recovery of a debt. A law passed in 1642-3 (Hening, I, p. 264) stated that, "Whereas divers suits have been causelessly commenced when satisfaction hath been preferred, Yet creditors for sundry and sinister malicious ends have sued their debtors to the further charging of poor men and troubling of the government, Be it therefore enacted and confirmed that all plts. shall demand satisfaction for what the claim as due unto them from the partie they sue, and make sufficient and legal proofes of such demands a the tyme when they shall use." In 1645-6, (Hening, I, p. 317) the Assembly ruled that the creditor's oath would be sufficient proof of such a demand, although the defendant was still at liberty to prove perjury against a creditor for swearing such an oath falsely.
Creditors were required to bring suit within a specified period of time, usually five years for bills, bonds, and the like (Hening, I, p. 483-484; II, p. 22, pp. 88-89; III, pp. 145-146, pp. 377-381), and seven years on judgments of court, such as fines or forfeitures (Hening, III, pp. 145-146, pp. 377-381).
Furthermore, the creditor could only plead certain debts, according to law. Those which were pleadable included bills, bonds, specialities, and judgments of the court (Hening, I, p. 390, pp. 483-484; III, pp. 377-381; V, pp. 273-275; VI, pp. 85-87). In 95 1645 (Hening, I, p. 301) the law provided "that noe booke debts or acc'ts. (not already made) shall be pleadable in any court or courts of justice within this collony after 9 months from the original of the said debts, without speciality or writing under the hand or hands of any persons that shall be pleaded for the same." Thus, unless a debtor signed something at the time of purchase, store accounts were only pleadable for nine months. In 1657-8 the law was altered to provide that the debtor had to acknowledge the debt on oath before it was pleadable. (Hening, I, p. 496). Finally in 1732, (Hening, V, p. 328) the law provided that in cases where "the matter in dispute is a store account, and that he hath no means to prove the delivery of the articles therein contained, or any of them, but by his storebook, in that case such book shall and may be given in evidence upon the trial, if he shall make out by his own oath, that such book doth contain a true account of all the dealings between him and the defendant."
Certain debts were by law not pleadable. This included debts contracted with Indians (Hening, I, p. 514), all gambling debts, (Hening, V, pp. 102-103), and all debts for drinks sold to sailors in the pay of any ship at the time the debt was contracted (Hening, VI, p. 74). The law further stated that more than 20 shillings a year in liquor debts was not pleadable from any person.
The choice of the type of writ to be sued out in court was left up to the creditor. Thus, according to a law passed in 1726, (Hening, VI, p. 157) "all persons recovering any debt, damages, or costs, by the judgment of any court of record, may, at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum, within the year, for taking of the body, goods, 96 or lands of the person or persons against whom such judgment is obtained, to satisfy the same." Writs for the seizure and sale of land or goods were not uncommon, as a means of settling debts. For example, in 1639, the records of the General Court (Va. Mag., XIII, p. 392) include the judgment that "Sir John Harvey being in debt the Court Ord'd that all his land be sold to pay his debts but he is to have his life in it, and so is his personal estate to be sold excepting some stock & furniture for his subsistance." In the eighteenth century, advertisements of sales for debt often appeared in the Virginia Gazette, such as the following
(Rind, 3/22/1770, p. 3, 1): "On Monday the 16th of April, at Dinwiddie Court-house, being court day, will be SOLD to the highest bidder for ready money, FOUR hundred acres of LAND, belonging to Francis Eppes, of said county, in pursuance of a decree of Dinwiddie court, to satisfy a debt due to Peter Randolph Bland."The law provided that all goods taken in execution for the payment of a debt were to be appraised by a committee to which both the plaintiff and the defendant were allowed to appoint an equal number of persons. (Hening, I, p. 259, p. 346, p. 442; II, pp. 80-81, pp. 189-190; III, pp. 386-387).
The writ for taking the body of a person, the capias ad satisfaciendum,
"commands the sheriff or other officer to take the defendant's body, and it safely keep, to satisfy the plaintiff of his judgment, etc. In England, the defendant is kept in prison until he pays the debt or dies, unless he is discharged by consent of the plaintiff, which operates the discharge of the debt also. If so severe a policy ever prevailed in Virginia, it was soon abandoned." (Va. Mag., XXXV, p. 3). The writ served several 97 purposes. The writ to secure the body of a debtor was by law granted in cases of a debtor who had absconded from the county, or was believed to be planning such a departure, (Hening, I, p. 409, p. 471; III, p. 515). It was also, according to the latter laws for relief of poor debtors, the initial step in the process of seizing the estate of the debtor for payment of his debts. That the writ caused considerable inconvenience to debtors is evidenced in several petitions of such persons printed in the Gazette during the eighteenth century. For example, Richard Whitfield pointed out in his petition (Rind, 3/12/1767, p. 3, 3) that "Near two years ago, in which time I might, with Health, have earned money to pay all my Debts, I advertised by Willingness to deliver up, Upon Oath, all I then had, if my Creditors would have accepted it, and have givin me Liberty of working for more, to have paid the remaining Balance; but instead of that, I have been sued and imprisoned, from time to time, and at all Times, ever since, which has starved, crippl'd and forever disabled me for carrying on any work at all hereafter." Another petitioner, Benjamin Grymes, attempted in his advertisement, to encourage his creditors to limit the number of times he would have to go to gaol, (Rind, 5/12/1768, p. 2, 4) as follows: "and now I must request this my last favour I have to ask of my creditors,...which is for such creditors as have not fallen in, and have suits depending, to put a period to them next October, and either acquit my bail, or take my body, and let me take a discharge in 20 days after the end of the General Court; and such as are desirous of having judgments next October, in the General court, or sooner in the county, are welcome at any time; but I should be glad that one imprisonment could suffice for the whole, 98 to save time, trouble and expence."
In addition to the protection afforded to the creditor by the writ of capias ad satisfaciendum for preventing the escape of a debtor, the law also required that
"noe master or commander of any vessel, boat, barke, or shipp, shall transport any person or persons out of the collony except the said person or persons do produce a pass under the hand of the governour &attested by the secretary, upon the penalty to pay all such debts as any such person shall stand indebted to any person within the collony, at his or their departure." (Hening, I, p. 243)the laws governing such passes (Hening, I, p. 243, pp. 436-437; II, p. 130; III, pp. 270-275; VI, p. 44) further provided that such a pass could not be issued until the person demonstrated that he had notified his creditors of his intentions to leave the colony. The most common means of giving such notice during the eighteenth century was to run an advertisement in the Gazette, such as the following examples:
"I INTEND in a short time to go to Europe. EDANUS BURKE." (Rind, 3/22/1770, p. 3, 2). "HIGHGATE-HOUSE, Gloucester, Aug. 27, 1770. I INTEND for Great-Britain immediately, and to return as soon as possible. All those to whom I am indebted will please apply the next October court to James Cocke, Esq; at Williamsburg, or in the mean time to Mrs. Mary Delastre, at my house in Gloucester, who will take care the same be duly discharged. JONATHAN WATSON." As such notice was sufficient by law, the practice undoubtedly helped assure the Gazette of a large circulation, as creditors failing to follow the instructions provided for collecting their debts, or to contact the debtor before his departure forfeited his debt. 99
The laws regulating debts and their collection also provided considerable protection for the debtor. As early as 1644-5 (Hening, I, p. 296) it was required that in any suit, "if the defendant have either bill, bond, or accompt of the plt. wherein he proves him debtor, that in such cases the courts do balance acc's."
Furthermore, beginning in 1644-5, the Assembly passed a series of laws for the relief of insolvent debtors which provided the means for such debtors to redeem their bodies from prison, (Hening, I, p. 294, p. 346, pp. 453-463; II, p. 81, pp. 189-190; III, pp. 286-287; IV, pp. 151-167; V, pp. 526-240; VIII, pp. 326-332.) The provisions of the law passed in 1726 (Hening, IV, pp., 165-167) were the most commonly followed during the eighteenth century: "That if any person or persons now are or hereafter shall be taken or charged in execution, and shall have remained in prison by the space of twenty days, it shall and may be lawful for any justice,...to require the sheriff, goaler, or keeper,...to bring before the justices...the body of any person being in prison as aforesaid, together with a list of the several executions, with which he, she, or they, is or are charged,...And such prisoner or prisoners coming before the said justices, shall, in open court, subscribe and deliver in a schedule of his whole estate," upon his oath. The law then provided "That all the land, tenements, and heridaments, which shall be contained in such a schedule,... And also all goods and chattels whatsoever, in such schedule also contained, shall be vested in the sheriff," to be sold, "Saving to every such prisoner, his or her necessary apparel, and utensils of trade." However, the benefits of the law were only allowed to those 100 prisoners confined for a debt of less than £ 10 sterling, or 2000 pounds of tobacco. Many such imprisonments came about because of the requirement that payment be tendered in the specie involved in the original debt, as mentioned before, and the twenty days' imprisonment was the first step in the process by which a debtor of limited means could offer other satisfaction for a debt. A wealthier man stood a much better chance of having the required specie on hand, or of being able to convert some holdings into the required specie in time to meet the due date on the debt, so it was not felt that they needed the protection of the law.
For a brief period in the 1760's the law concerning insolvent debtors was altered, providing that a committee be chosen from among the creditors to handle the auctioning of the estate and the payment of the various creditors, either the amount of the debt, or whatever proportionate amount was possible. (Hening, VII, pp. 549-563). However, this system was found to be difficult and annoying to creditors, and the law was repealed in 1763 (Hening,, VII, p. 643). Similar arrangements were occasionally made privately between debtors and creditors to avoid going to court, as is evidenced in the following advertisement
(Va. Gazette, Rind, 6/1/1769, p. 3, 1): "PRINCE WILLIAM, May 21, 1769. WE have now possession of the several estates the John Ballendine is interested in, which are secured to us by mortgage for our indemnification, and in trust for the benefit of his other creditors, or such of them as will signify their approbation of the trust, within three months next ensuing, amongst whom the profits of the estates will faithfully be distributed, once in every year, in proportion to the amount of each respective debt, of the time and place of which 101 distribution public notice will be given; and the agent or manager will attend. The trust is to continue until we are fully indemnified, and the debts paid with interest. We therefore give this public notice of the nature of our trust, that such of the creditors as approve may signify their approbation, and ascertain the amount of their respective demands within the time above mentioned. THOMAS BLACKBURN, WILLIAM ELLZEY."
The General Court prison for debtors was ordered built in 1711 by an act of Assembly (Hening, IV, pp. 26-28) which provided that it should have all persons committed by the General Court "in execution of any civil cause or action, or for any contempt of the said curt;" and that the sheriff of York County, as keeper of the new prison, could "take and receive all such prisoner and prisoners so committed to his custody, such fee and fees as are settled and allowable by law." By this law, in cases where such prisoners were unable to pay their own fees, the fees were to be paid out of public funds. These fees included "For putting into prison and releasement. 20 lbs. tob.,...For keeping and providing for a person in goal each day. 10 lbs. tob." and fees for serving the writ or execution in the first place. (Hening, IV, pp. 59-74) However, this apparently proved to be expensive for the public, and in 1726 the law (Hening, IV, p. 167) provided that only the first twenty days expenses would be paid by the public, "And the sheriff, or goaler, may demand and recover of the party or parties, at whose suit such insolvent person shall be imprisoned, all such fees as shall become due, after the expiration of the said twenty days, until the creditor shall agree to release such prisoner out of prison." In 1736 the law further provided that if the creditor 102 refused to pay the fees or give security for payment, it was lawful for the gaoler to discharge such a debtor from prison. (Hening, V, p. 490).
In 1722, when the Publick Gaol was again expanded and some reorganizations made, the debtors cells included fireplaces, in which debtors were allowed fire in the winter, if they had means of supplying wood. Furthermore, the law provided that
"whereas by reason of the unwholesomeness of most prisons in this colony, certain rules or bounds have been laid out and appointed, wherein prisoners taken or charged in execution, may be permitted to walk for their health,...if any person or persons taken or charged in execution shall enter into bond, with good and sufficient securities, under a reasonable penalty, upon condition, that he or they shall not depart, or go out of the rules or bounds of the prison to which they are or they shall be committed, it shall and may be lawful for the sheriff, or other officer, in whose custody such prisoner or prisoners shall be, to permit him or them to go out of the prison, and to return at his or their pleasure." (Hening, IV, p. 163). Thus, for a prisoner for debt with some means, the only such prisoner who would have remained confined for more than twenty days, provisions were made to ease the discomfort of the experience. Even so, as the petitions of Whitfield and Grymes indicate, imprisonment for debt was at best uncomfortable, expensive, and inconvenient, and at worst injurious to one's health. As the century progressed, the practice fell into disuse, or was limited to the twenty days, and this continued to be the case until the writ of capias ad satisfaciendum passed out of existence in 1859. 103
The history of the care and treatment of the insane during the colonial period is characterized by trial and error experimentation as the colonists endeavored to learn both what was required by English law in relation to such persons, and to find methods of ameliorating their condition.
The first recorded case in the colony came to light through the
"Petition of Ambrose Harmer one of his Maj. Subjects in Virginia to the King. That Richard Buck, Minister of God's Word in James City, died about thirteen years since leaving three sons Gershon, Benoni, & Peleg. Two of which sons have ever since been in the tuition of the petitioner but Benoni who is 21 is an ideot & no way able to manage that small estate left him by his father. For as much as this is the first ideot found in that plantation and that there is to yet any provision made for the government of such persons and of their estates in that colony prays his Maj. to grant him the government of said ideot and of his poor estate and to grant his royal warrant to the Master and Council of his Maj.'s Court of Wards & Livories to issue a Commission for finding an office concerning said ideot in due form." (Va. Mag., IX, p. 178)This petition was filed in 1637. The usual approach to such problems was for the Master of the Wards to issue a Commission for a group of men to inquire into the idiocy of the person involved. If they found that they should certify him an idiot, a guardian was then appointed by the Master of the Wards to take care of the 104 estate for the benefit of the idiot, and to see to his well-being. This procedure only applied to those persons who had an estate which would support them if properly managed, and who were not violent or dangerous. Benoni Buck was apparently a congenital idiot as his first name is Hebrew and means "Son of my sorrows," and he died at the age of 23, in 1639. (Va. Mag., XII, pp. 390-393)
By the eighteenth century, such guardianship was apparently dealt with by the governor and council, with the attorney general handling the investigation which led to certification. Thus, in 1714, the Council (EJCCVa, III, p. 394) ordered that "The Petition of George Hunt praying that the Estate of Thomas Haynes of Charles City County a Lunatick may be committed to his care, is referred to Mr. Attorney Generall to consider &report his opinion thereon."
In 1660-1 (Hening, II, p. 39) the Assembly "Ordered, that Nicholas Perry be for the present released out of prison, and that he shall not be further prosecuted until wee have notice from the governour out of England next yeare whether a person in condition of a lunatick be suable or no." What answer was received in this particular case is not known but later evidence shows that such lunatics were not brought to trial for any crimes they committed, but were confined to prevent their doing further harm.
One example occurred in 1724, when the Council (EJCCVa, IV, p. 69) offered that, "Whereas Daniel Davis of the Court of King Wm Labourr was Indicted last General Court for the Murther of a Negro, and found to be a Lunatick and still continues under the same sanity of mind, It is the Opinion of this board, that for preventing his doing farther mischief he be confined in Goal at 105 the publick Charge, and that some Physician be employed for the Cure of his Lunacy."
The methods of treating and curing mental illness are still not very certain, and in the eighteenth century the techniques available to a physician undertaking such a cure would have been quite limited. These would have included surgery, specifically trepanning; various medications and herbal preparations; and the usual purges and bleedings. William Battie, M. D., writing in 1757 in London, (Battie, 1962, p. 79) recommended trepanning, or surgery to lift and remove a small portion of the skull, only in cases where the madness was caused by "fracture or interpression of the skull" on the medulla, or lower brain. One herbal preparation was recommended in 1643 in a letter written by Dr. Edward Stafford to a Mr. Winthrop in America
(Gordon, 1748, p. 63): "For Madness: Tke ye herbe Hypericon (: in English St. John's Wort) and biole it in Water or drinke, untill it be strong of it, and redd in colour: or else, putt a bundle of it in new drinke to Worke, and give it ye patient to drinke, permitting him to drinke nothing else. First purge him well with 2 or 3 seeds (: or more, according to ye strength of the partie:) of Spurge. Let them not eat much, but keepe dyet, and you shall see Wondrous effects in fewe dayes. I have known it to cure perfectly to admiration in five days."Battie (1962, p. 84) also mentions "the unaccountably narcotic virtues of the Poppy," but only recommends its use for the temporary relief of excessively strong passions. It is quite likely that any medications used for insanity in the eighteenth century, if at all effective, were merely tranquilizing agents, which are still commonly used in our hospitals. Finally, the 106 treatment most recommended by Battie and others at the time was a series of purges, forced vomitings, or bleedings. The reasoning offered for such treatment by Battie (1962, p. 78) was that the cause of all madness was "pressure of the medullary matter contained in the brain and nerves," Which he believed most commonly resulted from an excess of some bodily fluid building up near nervous tissues. The reasoning is not altogether faulty as it is known that pressure on various portions of the nervous systems can cause hallucinations or delirium. As cures for mental illness are still only experimental at best, it is not surprising that the eighteenth century practitioner was not more sophisticated.
In 1727, the Council sent the following message to the House of Burgesses:
"We have had under our Consideration the Book of Claims sent up from your House, and observing therein that you have rejected the Claim of the Executrix of James Shields late Keeper of the publick Goal, for the Commitment & maintenance of Griffith Bowen we think it necessary to acquaint you, that the said Bowen, being at that time under great insanity of mind, was by two of his Majesty's Council, committed to the publick Goal for preventing the mischiefs he might otherwise have done, wand which every body apprehended he would commit under that disorder. And tho' the Charge that hath accrued on this occasion is not strictly provided for by law, yet we doubt not, you will be of opinion it is fit to be defrayed at the publick Charge, since the publick safety required his being thus secured until he recovered his senses." (LJCCVa, II, pp. 743-744)
In 1751 the Virginia Gazette reported that "Yesterday was brought to the public Goal, George Kier, a Lunatic, for the 107 Murder of Samuel Milner of Nansemond, by shooting him through the head with a Pistol Ball. He has been disordered in his Senses for some Time, and is not in the least sensible that he committed the Murder." Whether such a prisoner received any attempted medical treatment is not known, but there are records that doctors were in attendance on the various prisoners throughout the colonial period, and the case of Davis would suggest that such a prisoner received whatever treatment the physician felt competent to administer.
"the following melancholy accident happened near York. One Mr. Thompson having been early out about his plantation affairs came home when it grew hot, and laid down upon a bed, and fell asleep, when his wife (who has been long disordered in her senses, and has been several times Confined) got an ax, with which she struck him on the head, and killed him as he lay." (Va. Gazette, Rind, 7/6/1769, p. 2, 3)The confinement referred to would have been imposed whenever it was felt that she would be dangerous, and would either have been in her own home, if such were possible, or in the local gaol.
In the reports of the cases heard by the December court of Oyer and Terminer, the Gazette (P. D., 12/10/1772, p. 2, 3) noted "Nathan Philips, from Hanover for Murder, acquitted, but remanded to Jail, being judged a Lunatick." This would have been one of the last occasions when such a person was remanded to gaol.
In 1769 consideration for making provision for all such lunatics was undertaken. In July of that year, in an editorial note following the report of Mr. Thompson's death at the hands of his wife, Purdie and Dixon (Va. Gazette, P. D. 7/6/1769, p. 3, 2) 108 commented that "It is really shocking to see the number of miserable people who have lost use of their reason, that are daily wandering about, for want of a proper house to keep them confined in. If there had been such a place this poor man would not have met with the above untimely end."
The editors were not the only one's concerned. On November 29 of the same year,
"Mr Treasurer presented to the House, by Direction of the Governor, a Letter from Mr. Thomas Willing, of Philadelphia, to the Honourable William Byrd, Esquire, relative to the Reception of the Persons to his Excellency the Governor, returning him the Thanks of this House, for his kind and humane Attention to the Piteous Situation of the four unhappy people, who are disordered in their Senses, and now confined in the Public Gaol of the Colony; desiring that his Lordship will be pleased, as he has proposed, to send them to the Hospital in Philadelphia, till a proper Provision can be made here, for Persons under the like unhappy Circumstances; and assuring his Lordship, that this House will cheerfully pay the Expenses that may attend their Support and maintenance." (JHB, XI, p. 304-305).
Also in 1769, the Assembly enacted a law (Hening, VIII, pp. 378-381) which provided that "Whereas several persons of insane and disordered minds have been frequently found wandering in different parts of this colony, and no certain provision having been yet made either towards effecting a cure for those whose cases are not becoming quite desperate, nor for restraining others 109 who may be dangerous to society, Be it therefore enacted,...That the honorable John Blair, William Nelson, Thomas Nelson, Robert Carter, and Peyton Randolph, esquires, and Robert Carter Nicolas, John Randolph, Benjamin Waller, John Blair, jun., Thomas Everard, and John Tazewell, esquires, be, and they are hereby constituted trustees for founding and establishing a public hospital for the reception of such persons as shall, from time to time,...be sent thereto. And the said trustees shall be called and known by the name and style of the Court of directors of the public hospital, for persons of insane and disordered minds...That the said Court of directors...are hereby impowered to purchase a piece or parcel of land,...and to contract for the building thereon a commodious house or houses, fit for the reception and accommodation of such disordered persons,...and to provide a proper keeper and matron of the said hospital, with necessary nurses and guards, and, as occasion may require, to call in any physicians or surgeons for the assistance and relief of such poor patients, and to provide all necessaries for their comfortable support and maintenance." The law further provided that potential patients living in any of the counties were to be brought before a board of three of the justices, who were to be brought before a board of three of the justices, who were to decide on their condition, and if they felt it necessary, remand such persons to the hospital. Also, that "If any friend of such person will appear...and give sufficient security that proper care shall be taken of such person, that he or she shall be restrained, or secured from going at large till he or she is restored to his or her senses, it shall and may be lawful for such justices, or such court, to deliver such person to his or her friend." Finally, the law provided 110 that for poor persons, twenty five pounds current money could be provided each year out of public funds for their support in the hospital. Persons having an estate which could support them in the hospital were not granted public funds, but their guardian could make arrangements for more luxuries by using extra money. In the case of cures, the law provided "That if any person who shall be taken in to the said hospital, shall recover his or her perfect senses, so that he or she, in the opinion of the said court of directors, may be safely released, it shall and may be lawful for the said Court of discharge such person, giving him or her a proper certificate thereof."
In 1773 the hospital was completed and James Galt, earlier Keeper of the Publick Gaol, was appointed as keeper. In October of that year the court committed the first patient, and appointed Dr. John de Sequeyra physician at the hospital. Dr. Sequeyra was succeeded in 1795 by Doctors John Minson Galt, a surgeon, local apothecary, and brother of the keeper, and Philip Barraud. (Tyler, 1907, pp. 242-244; Blanton, 1931, p. 294; Court of Director's Minutes, 1770-1801, p. 144) This was the first public hospital erected for this purpose in America. The hospital in Philadelphia included one wing in which the insane were housed and treated, but also treated all manner of other patients.
A letter written by St. George Tucker in 1795 to the Rev. Jedediah Morse, the author of the American Universal Geography provides the following description of the hospital:
"The hospital for lunatics is calculated to accommodate between twenty and thirty patients in separate rooms, or cells. They have, I believe, never been all fill at the same time; the house is neatly kept, and the 111 patients well attended; but convalescents have not sufficient room for free air, and exercise, without danger of making their escape." (W & M Quarterly, II, p. 195).
Another letter, written in 1800, adds a little more insight into the conditions of the hospital: "Mr. _________ is situated in the most commodious and agreeable part of that very incommodious and disagreeable place, the Hospital. Mr. Galt the keeper, is a man of much humanity. From these circumstances we may expect that Mr. _________ will pass his time, with as little inconvenience, as the nature of his disorder will permit. From the general opinion of the physicians and others who have seen him, we may hope, that the cause removed, the effects will be cured, and he shortly restored to his family."
Thus, although the treatment of insanity in the eighteenth century was not as knowledgeable as today, it was considered possible to cure persons whose minds were disordered, and efforts in this direction were made throughout the eighteenth century.112
Although negroes began to be imported into the colony early in the seventeenth century, the first law defining a slave was not enacted until 1662, and this provided that the children of Negro women were to serve according to the condition of the mother, (Hening, II, p. 170). This law was expanded in 1696, (Hening, III, p. 140) to provide "that all children born in this country be bond or free, according to the condition of the mother." This regulation remained in force with only minor variations in wording throughout the colonial period, (Hening, III, p. 460; V, p. 547-558; VI, pp. 356-357). In 1705 the law stated
"that all servants imported into this country, (except Turks and Moors in amity with her majesty, and others that can make due proof of their being free in England, or any other Christian country, before they were shipped, in order to transportation hither) shall be accounted and be slaves, and as such be here bought and sold, notwithstanding a conversion to christianity afterwards." (Hening, III, pp. 447-448). This remained the accepted definition of who would be slaves upon initial arrival for the remainder of the period when slaves were legally imported (Hening, V. pp. 547-558; VI, p. 357)
In 1705, a law passed "for the better settling and preservation of estates within this dominion," stated that
"all negro, mulatto, and Indian slaves, in all courts of judicature, and other places within this dominion, shall be held, taken, and 113 adjudged, to be real estate (and not chattels;) and shall descend unto the heirs and widows of persons departing this life, according to the manner and custom of land of inheritance." (Hening, III, p. 333). Unfortunately, this law, intended to clarify and simplify matters, caused considerable confusion. No laws covered the stealing of real estate, so a new law specifically dealing with the theft of Negro slaves was necessitated. (Hening, V, p. 557). Furthermore, the Assembly soon decided that there were occasions when it was not really convenient or practical to treat slaves as real estate, even for inheritance purposes. Therefore, in 1727, the Assembly passed an act stating the
"whenever any person shall, by bargain and sale, or gift, either with or without deed or by his last will and testament in writing, or by any noncupative will, bargain, sell, give, dispose, or bequeath, any slave or slaves, such bargain, sale, gift or bequest, shall transfer the absolute property of such slave or slaves,...in the same manner, as if such slave or slaves were a chattel." (Hening, IV, p. 223). This law eliminated the need for recording deed and title at the courthouse in slave sales as had to be done in real estate sales. Finally, in 1748, the Assembly declared that
"all slaves whatsoever shall be held, deemed, and taken to be chattels personal." (Hening, V, p. 439). This law, however, was repealed by the king's proclamation in 1751 and for the rest of the colonial period slaves were legally real estate, with the exceptions provided by the 1727 law.
To protect free persons the law also provided that
"if any person or persons shall hereafter sell as a slave within this colony or carry or cause to be carried out thereof and sell as 114 a slave, any such mullatto, or other servant, knowing him or her so to be, every such offender shall forfeit and pay the sum of fifty pounds to the purchaser of such servant or servants, over and above the money actually paid by such purchaser for the same; and moreover such offender shall be liable to the penalty of twenty pounds to any person who shall inform or sue for the same." (Hening, VIII, p. 133). Such a law, with varying provisions for punishment, had been in effect since 1705 (Hening, III, p. 44; V, pp. 547-558). A similar case was brought before the General Court in 1717:
"On Reading at this Board the Petition of John Coomee a Negro Setting forth that Michael Henry of Elizabeth City County detaining him as a Slave he Petd the Genl Court for his Freedom, who thereupon Ordered that Mr John Holloway should enquire what Pretensions he had to Sue for his liberty and accordingly the Petr by divers Witnesses before the Court of the said County of Elizabeth City made appear that he is a freeman, which he doubts not Mr Holloway will represent to the Genl Court but when the said Hearney heard the Petrs Witnesses he immediately carryed the Petr home shipt him and put him in Irons and afterwards carryed him to one Capt. Mead with whom he had communication about transporting the petr out of this colony, thereby to prevent his prosecuting his freedom, and praying relief therein, It is thereupon ordered yt. (in regard it appears to this Board the ye petr has a suit now depending before ye Genl Court for his Freedom) the Sheriff of Eliza City County take the said Coomee into his care and deliver him to his said Mr upon his giving bond not to correct, nor transport out of this colony until the Determination of the Suit before ye Genl Court, and that he will also Suffer the said Coomee to attend the 115 said Court for the better Prosecuting the said suit and in case of the said Hearney shall refuse to give such Bond that then the said Sherif do take charge of ye said Coomee so as he be not abused or Transported until upon a Legal Tryal it shall appear whether he be a slave or not." (EJCCVa., III, p. 442). The final decision in this case is not known but it is apparent that while his suit was being prosecuted, John Coomee was afforded every protection of the law.
The era of slave importation came to an end in Virginia in 1778 when the Assembly passed An act for preventing the further importation of Slaves, (Hening, IX, pp. 471-2). This law stated that "no slave or slaves shall hereafter be imported into this commonwealth by sea or land, nor shall any slaves so imported be sold or bought by any person whatsoever,...That every such slave imported into this commonwealth contrary to the true intent and meaning of this act, shall, upon such importation become free."
Various acts passed by the Assembly in the seventeenth century dealt with negroes as tithables. The tithe was a form of tax paid by or on those members of society whose labor was considered productive of material wealth. White women, who did not produce or earn money as a general rule, and children under certain ages were not tithable. In 1668 the law provided that Negro women, bond or free, were tithable, (Hening, II, p. 267). In 1680, the law (Hening, II, pp. 479-480) provided that "whereas it is deemed too hard and severe that children (as well christians as slaves) imported into this colony should by lyable to taxes before they are capable of working...all negroe children imported or to be imported into this colony shall within three months...be brought to the 116 county court, where there age shall be adjudged by the justices...,which said negroe, or other slave soe brought to court adjudged and recorded shall not be accompted tythable untill he attains the age of twelve yeares."
The law provided various forms of protection for negroes and for all slaves, including the possibility of being freed or manumitted, the same penalty being imposed in case of their murder, permission to bear arms in certain cases, and benefit of clergy and possibility of pardon if they committed a criminal act. There is also evidence of concern for the welfare of those who were bond. In 1681-2 the instructions from the crown to Lord Culpeper included the admonition that "You shall endeavor to get a Law passed for the restraining of any inhuman severity which by ill masters or overseers may be used towards their Christian Servants or Slaves." William Byrd II, in a letter to Lord Egrement written in 1736, expressed a different form of a like concern: "Another unhappy Effect of many Negroes is, the necessity of being severe. Numbers make them insolent & then foul Means must do what fair will not. We have however nothing like the Inhumanity here, that is practiced in the Island & God forbid we ever shou'd." (Va. Mag., XXXVI, p. 220). and early in the Revolution, Colonel Landon Carter noted in his diary that
"Much is said of the slavery of negroes, but how will servants be provided in these times?...If you free the slaves, you must send them out of the country or they must steal for their support." (W & M Quarterly, XX, p. 182)
During the eighteenth century, the law (Hening, IV, pp. 131-132) provided that slaves were to be manumitted only with the approval of the Council, and only if they had shown some meritorious 117 service. The first two cases of "manumition" under this law involved slaves whose service was to society in general. Thus, in 1710 the Assembly passed An act to set free Will, a Negro belonging to Robert Ruffin, (Hening, III, p. 537-538). Will was the slave who reported the conspiracy led by Scipio and Salvadore to the authorities. In 1729, the Council stated that
"Whereas upon consideration of the many extraordinary Cures perform'd by Papaw a Negro Slave belonging to Mris Frances Littlepage of the County of New Kent, it was resolved that means should be used to obtain from him a discovery of the secret whereby he performs the said cures; and the said Papaw having upon promise of his freedom now made an ample discovery of the several medicines made use of by him for that purpose to the satisfaction of the Governor and the Gentlemen appointed by him to inspect the application and operation of the said medicines, It is the opinion of this board and accordingly ordered that as a reward for so useful a discovery, which maybe of great benefit to mankind, and more particularly to the preservation of the lives of great numbers of the Slaves belonging to the Inhabitants of this county frequently infected by the Yaws, and other venereal distempers, the said Papaw be Set free." (EJCCVa., IV, p. 199). However, the interpretation of the law was soon extended to include meritorious service to a private individual. A common example occurred in 1745, when the Council records note that
"On the Petition of Rebecca Banton setting forth that Henry Fleet decd by his last Will and Testament left her a Negro Boy Slave christen'd James to serve her till he attained the Age of twenty Years and that she then obtain his Freedom the said Fleet having had a great regard for the Slave on account of his Fidelity 118 and good Service praying That the said Slave may be now set free Ordered That Leave be granted to the Petitioner to manumit and set free the said Negro named James immediately according to her Prayer." (EJCCVa., V. p. 193). Several interesting cases involved the "manumation" of a husband or wife. In 1745, the Council received
"the Petition of Abram Newton a Mulatto setting forth that he being Husband of Elizabeth Young a Free Mulatto was purchased by her and lived with her til her Death and that the said Elizabeth by a writing under her Hand gave the Petitioner his Discharge after her Death and praying that the Board grant or confirm to him his freedom Ordered That the Party who claims a Property in him be summoned to appear and shew Cause there upon why his prayer should not be granted." (EJCCVa., V, p. 196). If such a party appeared, they apparently did not show sufficient cause, for in June of 1746, the Council granted and confirmed Abram Newton's freedom. (EJCCVa., V, p. 215). One ambitious slave not only bought his own freedom, but eventually bought his wife and then had her manumitted. In 1761, the Council reported
"On the Petition of Talbot Thompson a Slave of Alexander McKensie Gentleman now residing in Great Britain, setting forth his long, faithful and extraordinary services; that his master directed Benjamin Waller Gentleman whom he impower'd to transact his business in this Colony, to sell him according to his the Petitioners own liking, that encouraged by Gentlemen who knew his services and promis'd to assist him to bargain for his freedom, he applied in 1758 to the said Benjamin Waller who agreed to set him free upon his paying Sixty Pounds in five years, and that he has paid the Money, and praying a License from this Board for his Freedom: and the said Benj: Waller having certified on the back 119 of the Petition that he believes the Allegations thereof to be true, and has no objections to it; It is order'd that he be permitted and authorized to manumit and set free the Petitioner according to his prayer." (EJCCVa., VI, p. 200). In 1769,
"On the Petition of Talbot Thompson a free Negro, setting forth that for many years last past he has lived with Jenny a Negro Woman Slave, formerly belonging to Col: Robert Tucker of Norfolk, deceas'd, as Man and Wife, that he purchas'd his said Wife at the sale of the said Tucker's Estate, and is desirous of releasing her from Slavery in consideration of her affectionate and faithful behaviour to him; and a Certificate annexed of Robert Tucker the Son confirming the truth of the said Allegations, and her fidelity, extraordinary Services, and constant Obedience; the Board being satisfied therein, were of opinion, that She was deserving of her freedom, and it was accordingly order'd, that the said Thompson be permitted to manumit and set her free." (EJCCVa., VI, p. 320). In one case, that of Mary, a slave to Charles Smith deceased, who had given "assiduous and painful Attendance on her said Master during a long lingering Illnesses," the Council confirmed both her freedom and the legacy left her by her master's last will. (EJCCVa., VI, pp. 551-552). However, not all such petitions to free slaves were granted. For example, in 1771,
"The Petition of Roe Cowper, for Leave to manumit his Negro Man Slave, named Will, was rejected; there not appearing to the Board any Proof of sufficient meritorious Service of the said Slave, to entitle him to his Freedom, within the Intention of the Act of Assembly in such Cases made and provided." (EJCCVa, VI, p. 437). 120
Although the law provided that if a slave died due to correction or an accidental blow, no charges were to be brought against the person striking the blow; the penalty if "such slave was killed wilfully, maliciously, or designedly," was death without benefit of clergy as it was in any other case of murder. (Hening, IV, pp. 132-133). Following the trial of such a case in 1729, the Council reported that
"Whereas Andrew Byrn at the Court of Oyer and Terminer held the 10th. instant, was convicted of the murder of a Negro Slave under his care, and is now under sentence of death, but foreasmuch as it appeared upon the evidence at his trial that the said Slave died by means of the correction given him for running away, and that the said Byrn who was his overseer, had no intention to kill him, the Council therefore humbly recommend his as a fit object to his Majesty's mercy..." (EJCCVa, IV, p. 206). At lest one person did not convince the Council of his innocent intentions, however, for in 1775, in a list of those "executed at the gallows, pursuant to their sentence," the Gazette included
"William Pittman, for murdering his negro lad." (Purdie, 5/12/1775, supplement, p. 2, 1).
In certain cases, negroes both bond and free were allowed to go armed according to law. Thus, in 1723, the law stated
"That every free negro, mulatto, or indian, being a house-keeper, or listed in the militia, may be permitted to keep one gun, powder, and shot; and that those who are not house-keepers, nor listed in the militia aforesaid, who are now possessed of any gun, powder, shot, or any weapon offensive or defensive, may sell and dispose thereof, at any time before the last day of October next ensuing. And that all negroes, mulattos, or indians, bond or free, living at any frontier 121 plantation, be permitted to keep and use guns, powder, and shot, or other weapons, offensive or defensive; having first obtained a licence for the same, from some justice of the peace of the county wherein such plantations lie." (Hening, IV, p. 131). Thus, any negroes whom the Assembly thought had a legitimate use for a weapon were permitted to keep and use one.
The right to benefit of clergy was extended to negroes in 1732 by the same law which removed the reading requirement (Hening, IV, pp. 325-327). This law, however excepted the extension of this right "where such negro, mulatto, or Indian, shall be convicted of manslaughter, or the felonious breaking and entring any house in the night-time, or for breaking and entring in the day time nay house and taking from thence any goods or chattels whatsoever, to the value of five shillings sterling; and where he or she hath once had benefit of this act." In 1765, the law provided
"That where any slave shall be convicted of manslaughter for killing a slave, such offender shall be allowed the benefit of the clergy." (Hening, VIII, p. 139). And in 1772, the law stated
"That a slave who shall break any house in the night time, shall not be excluded from clergy, unless the said breaking, in the case of a free man, would be burglary." (Hening, VIII, p. 522). Mary Aggie, who received benefit of clergy in 1731 was the first negro woman, and probably the first slave to receive such benefit. After the passing of the 1732 act, however, clergy was automatically granted in all cases where it was permitted to a slave convicted of felony. Slaves were also on many occasions granted pardon after convictions for felonies which did not carry the benefit of clergy. For such pardon to be granted, their masters usually had to intercede in their 122 behalf. In 1768 an advertisement in the Virginia Gazette underlined the contemporary attitude:
"THERE is in New Kent gaol three Negroes who are now under sentence of death for felony, two of whom say they came from North Carolina. One of them is about 5 feet 6 inches high, says he was born in Guadaloupe, can speak French, and that he belongs to Joseph Sutton, in Edenton county; another about the same height, a new Negro, cannot speak plain English, has errings in his ears, appears to be very simple, and says he belongs to Richard Saunders, in the said county; the other is a remarkable well made fellow, about 5 feet 8 inches high, has a bold countenance, is Virginia born, and says he belongs to Solomon Miller of Norfolk county, Virginia. A well set Mulatto fellow is also in the said gaol, who ways he was a freeman born in Antiqua, and is servant to a collier at Mr. Hunter's forge, upon Rappahannock; he was concerned with the above slaves in the act of felony, but has not yet had his trial. They all confess they broke Norfolk gaol together, some time in October last. The said slaves are not to be executed until the second Friday in January next, and it may be supposed if their masters would come and intercede for a pardon it might be granted." (PD, 12/22/1768, p. 3, 3). In 1771 the Council reported
"upon the Petition of Gavin Lawson, John Ashby, and Thomas Thrailhead, praying a Pardon for three Negro Men Slaves under Sentence of Death in King George County, for a Burglary by them committed on the Store-House of the said Gavin, at Falmouth in that County; that is to say, for James belonging to the said Gavin, George to the said John, and Roger, the Property of the said Thomas; urging in their Behalf their general good Behavior, the Temptation of a favorable Opportunity, and their Candour in confessing their 123 guilt when otherwise there could have been no sufficient evidence against them,...the Council advised his Honour to grant the Prayer of the Petition." (EJCCVa, VI, p. 390). It must, of course, be acknowledged that there was a financial as well as a humanitarian reason for granting benefit of clergy or pardon to a slave; in cases where a slave was executed for felony, the colony reimbursed the owner for the value of the slave, out of public funds.
Despite the various protections afforded free and slave Negroes by law, there were restrictions placed on them in many ways. Ships' masters were not allowed to transport them out of the colony without their having a pass or certificate from their owner or the courts. (Hening, III, p. 271; IV, p. 175). The law also provided
"That no negros, mulattos, or Indians, although Christians, or Jews, Moors, Mahometans, or other infidels, shall at any time purchase any christian servant, nor any other except of their own complexion, or such as are declared slaves by this act." (Hening, III, pp. 449-450). They were not permitted to hold office (Hening, III, pp. 250-251), nor to vote (Hening, VII, p. 517-530). Slaves were only allowed to testify in the case of another slave being tried for a capital offence, and free negroes, mulattos, or Indians who were Christian were only
"admitted in any court, or before a justice of the peace, to be sworn as a witness, and give evidence, against or between any other negroes, mulattos, or indians, slave or free, in any cause, civil or criminal." (Hening, VI, p. 107). In the militia, the law provided
"that all such free mulattoes, negroes, and Indians as are or shall be inlisted,...shall appear without arms, and may be employed as drummers, trumpeters, or pioneers, or in such other servile labor as they shall be directed 124 to perform." (Hening, VII, p. 95).
Finally, there were variations in both the method of trial and in some of the punishments prescribed by law for slaves when compared with freemen. In the first place, all slave offences were tried in the county courts. Misdemeanors were tried by the usual county courts as they were for freemen. Felonies, instead of being tried in the General Court or the Court of Oyer and Terminer held in Williamsburg, were tried by the county court under a commission of Oyer and Terminer issued by the Governor. (Hening, III, pp. 102-103, pp. 269-270; IV, pp. 126-134; VI, pp. 104-112; VIII, pp. 137-139). Many misdemeanors were punished by fines for those who could pay them, and in order to provide some punishment for the same offences when committed by servants or slaves, the law provided
"That in all cases of penal laws, whereby persons free are punishable by fine, servants shall be punished by whipping..." (Hening, III, p. 452). In some instances, the law defined crimes which could only be committed by slaves, such as slave insurrections which were punishable by death without benefit of clergy (Hening, IV, p. 126), unlawful assemblies of five or more slaves punishable by thirty-nine lashes (Hening, III, pp. 458-459; IV, p. 129; VI, p. 106), or owning dogs which traveled about the countryside with them which was punishable by twenty lashes, (Hening, VI, pp. 295-126). This latter law was passed "For preserving the breed of Sheep," apparently because such dogs were not well fed and were liable to kill sheep. There were also laws which specified different punishments for slaves than for others committing certain crimes. Thus, slaves convicted of an attempt to ravish a white woman could be castrated (Hening, VIII, p. 358). 125 Slaves outlying, and doing mischief, once a proclamation for their return had been issued, could be killed in the process of attempted capture without the person doing the killing being accused of any crime. (Hening, III, pp. 86-88, pp. 460-461). One such case of an outlying Negro had an interesting end in 1773. The Proclamation issued read as follows: "Whereas We are Credibly informed that One Negro Man Slave named Tom belonging to Thomas Patterson of the said County, Planter, After the Murdering of Glinre Viea Fitzgarrald the Ninth day of the present Month at Night, Runnaway and took with him his said Master's Arms & Ammunition, and is now lying out hid, lurking, and doing Mischief within this County: Therefore, in his Majesty's Name, We here by require the said slave forewith to surrender himself, or to return home to his said master: and we also require the sheriff of the County aforesaid to make diligent search, and to apprehend the said slave and carry before some Magistrate of this County to be examined touching the said murder and Felony: And the said sheriff is hereby impowered to raise and take with him such power of this county as he shall think fit and necessary for the effectual apprehending the said outlying slave: And we further declare if the said slave shall not surrender himself or return immediately after due Publication of these presents, that then any Person whatsoever may lawfully kill and distroy him without being liable to any Penalty for so doing. and hereof all persons are required to take due notice. Given under Our Hands & Seals this 18th Day of May, 1773. God Save the King John Nicholas (T. S.) Chas. May (Seal)" On May 12, 1774, the following Petition was presented to the House of Burgesses: "The Petition of Thomas Patterson of 126 Buckingham County, Humbly sheweth, that on the 18th of May, 1773, he had a Negro man Slave named Tom outlawed agreable to Law and due Publication made of the same and after which he the said Negro fellow was found Shott as supposed by himself to prevent being taken, he having before his running away committed a Murder on a white Woman upon which he absconded carrying with him two of your Petitioners Guns. Your Petitioner therefore Prays such relief as you in your Wisdom shall think just..." This petition was accompanied by the proclamation and the following certificate: "Buckingham Co. to Wit I do hereby Certify that the Within proclamation was publish'd at the several Churches in the County according to law-given under my hand this eleventh day of April 1774 Wm. Peasely, Rector of Tillotson Parish." The following account of the investigating court and court of claims was also attached to the petition:
"the Publick to Thomas Patterson Dr. To the Within Negro who was outlawed & found dead (adjudged by the Jury that he was the Cause of his own death). £ 85.0.0. At a Court held at the Courthouse of Buckingham County the 18th day of April 1774: For Proof of Publick Claims & for receiving & Certifying Propositions & Grievances, The above Account was presented in court & proved according to law which was ordered to be Certified to the next General Assembly (This Court being of opinion that the said Negro was of the value of Eighty five Pounds) teste Rolfe Eldridge C'l. Cour'." (Va. Mag., XVIII, pp. 279-281). Where the first two offences of hog-stealing and all offences of killing deer out of season were punishable by fine in the case of freemen, physical punishments were prescribed for slaves committing the same crimes. Thus, for the first offence of hog-stealing, a slave received thirty-nine 127 lashes, and for the second stood two hours in the pillory with his ears nailed to it and then had them cut free (Hening, VI, pp. 122-123); and for an offence of killing deer out of season received fifteen lashes (Hening, IV, p. 425).
Runaway or escaped slaves were another concern with which the law dealt. When such persons were taken up, the law provided that they be brought before the nearest justice of the peace, for an investigation. (Hening, IV, pp. 168-175). Then, at the option of the taker-up, who was granted a reward by law, the runaway was either returned directly to his owner if such were known, or sent to the local gaol and his description advertised in the Gazette. (Hening, VII, pp. 358-361). The law further provided that "if within the said space of two months, the owner of any such negro, slaves, or runaway, cannot be known, or doth not claim the same, that the sheriff of the said county, to whose custody such runaway shall be committed, shall cause the runaway to be delivered to the next constable, and so from constable to constable to the public gaol," being whipped up to thirty-nine lashes by each constable along the route. (Hening, IV, p. 169). This law also provided that such runaways as were in custody in the public gaol could, with the consent of the General Court, be hired out, the court setting the terms for hire. The money for such hire was to be used to cover the fees and maintenance of such a runaway in gaol. Furthermore, when such a runaway was let out for ire, he was to wear a strong iron collar stamped "P. G." and if this were provided the gaoler was not to be held responsible for any escape of such a runaway. (Hening, IV, pp. 170-171).128
That such runaways were a problem during the colonial period is amply proven by the advertisements which appear in every issue of the Virginia Gazette, either warning people to watch for a runaway, or listing one which had been taken into some gaol. Thus, in 1774, this listing appeared:
"RUN away from the Subscriber, in Caroline County, the 21st of May last, a likely Negro Fellow named SOLOMON, about 20 Years of Age, and will be free at 31, but he pretends to be free now. I do not remember what Clothes he had on. One of his Eyelids is slit with a Blow, but I cannot tell which. He has a Wife at Mr. John Bickerton's in Hanover County, and has been seen at Richmond. His Father, a Negro Fellow called Kitt, lives at Colonel Archibald Cary's in Chesterfiled. Any Person that will bring me the said Fellow, or secure him so as I may get him, shall have 3 1. Reward. BENJAMIN HUBBARD." (PD, 9/1/1774, p. 3, 2). In the same year the Gazette ran the following advertisement:
"COMMITTED to the Jail of Surry County, a Negro Woman who says her Name is JENNY, and that she belongs to William Hobbs; her Clothing is Negro Cotton. The Owner is desired to take her away and pay Charges. MICAJAH COGGAN, Jailor." (PD, 6/16/1774, p. 3, 1). In 1772 the following advertisement listed an entire family of runaways taken up:
"COMMITTED to Surry County Jail on the 8th Instant (November) three Negroes, namely, John, Emmanuel, Abb his Daughter, and Jack her Son. Emmanuel says he was born in Spain; he is much pitted with the Smallpox, about five feet seven or eight Inches high, and about fifty Years of Age. Abb is a well set Wench, about thirty five Years of Age, big with Child, and says she was born in Norfolk. Jack, her Son, is about nine Years old, a well set active Boy, and somewhat yellow. The owner is desired to take 129 them away, and pay charges to DRURY WARREN." (Va. Gazette, PD, 11/19/1772, p. 3, 1). That such miscreants were also likely to runaway from gaol is shown by the following advertisement: "WILLIAMSBURG, August, 21, 1776. MADE his escape from the publick jail a negro boy named JAMES, formerly the property of George Thomas of Hampton, but lately purchased by Mr. John Mayo. He is small, appears to be about 15 years old, and has round his neck an iron collar with G. Thomas inscribed on it. He was tried last Monday, by a court of Oyer and Terminer at York, for a felony committed by him in this town, and being convicted of the same, is now under sentence of death. Whoever apprehends the said boy, and recommits him to the publick jail in this city, shall be reasonable rewarded. PETER PELHAM." However, even negroes apprehended as runaways were on occasion lucky. According to the Council records of 1762,
"Upon a representation made to the Board that a Negro Man had been taken up at Norfolk about eighteen Months ago as a runaway, and brought to Williamsburg, and committed to the Public Gaol by the name of John Taylor, there confin'd to this time, and that no person had appear'd to claim any right to, or Property in him; it was the opinion of the Council that the said Negro ought to be discharged and have his Freedom, and it was accordingly ordered that he the said John Taylor be manumitted and set free." (EJCCVa, VI, p. 220). 130
In 1723, an act of Assembly outlined the composition and powers of a court martial, providing that it be composed of "the field officers and Captains of every County, or the major part of them, whereof the Colonel, lieutenant Colonel, or Major, shall be one." This group was "to meet yearly, at the Courthouse in their respective Counties, on the first Thursday in October," to assess fines on the various members of the militia guilty of various infractions. (Hening, IV, p. 123). Those who could not pay the fine in specie, could have their property of their bodies taken in execution. Those taken in execution were
"to be committed to the county goal, without bail or mainprize, until he shall satisfy the same fine, and all fees incident, in the same manner, as in executions served at common law." (Hening, IV, p. 124). This same act provided the following oath to be taken by Officers on a Court Martial:
"I A. B.. do swear, that I will do equal right and justice to all men, to the best of my judgment, according to the directions of an act, intituled, an act for the settling and better regulation of the militia." (Hening, IV, p. 124). In 1738, the powers of the court martial were enlarged to include enquiry into "the age and abilities of all persons listed, and to exempt such as they shall judge incapable of service." (Hening, V, p. 18). All fines levied by the court martial were to be used to equip the troops. A clerk of the court was to be appointed and paid a salary. If he failed to deliver the orders of the court to the sheriff of the county directly, he was to lose one year's salary and allowance for a year. (Hening, V, 131 p. 22). In 1755, the law specified that a court martial could administer such punishments "Not extending to life or member" in enforcing order. (Hening, VI, p. 546).
In addition to this court martial at the county which was held regularly every year, the Governor of the Colony was empowered to commission a Genera Court Martial. These General Court Martials were regulated as follows:
"No sentence of death shall be given against any offender in such case, by any general Court-martial, unless six officers present shall concur therein; and if there be more officers present than nine, then the judgment shall pass by the concurrence of two thirds of the officers present, and no proceeding or trial shall be had upon any offence, but between the hours of eight of the clock in the morning, and three in the afternoon, except in cases which require an immediate example." (Hening, VI, p. 562). The law also provided "that the party tried by any general court martial in this colony, shall be entitled to a copy of the sentence and proceeding of such court martial, upon demand thereof made by himself, or by any other person or persons on his behalf (He or they paying reasonably for the same) at any time not sooner than five days after such sentence." Furthermore, it provided that
"a transcript of the proceedings to be sent to the governor and execution suspended till the governor's pleasure be known." (Hening, VI, p. 562).
The number of men who sat on a court martial did vary from the minimum of nine provided in 1755 (Hening, VI, p. 562), to seven including at least one field officer or county lieutenant in 1777 (Hening, IX, p. 295), and thirteen commissioned officers of whom 132 one was a county lieutenant or field officer in trials for giving aid, intelligence or comfort to the enemy, or encouraging desertion. (Hening, X, p. 311).
In one case, the Governor not only reversed the decision of a court martial, but severely reprimanded the officer in charge:
"The Captain of the Kingfisher (a second MAD MONTAGUE) it is said, lately sized upon, and forced on board his ship, an inhabitant of Norfolk, or Portsmouth, for some trivial offence, who, after calling a Court-Martial, and giving him a fair trial (as they were pleased to term it) passed sentence upon him to receive thirty nine lashes, which would have been executed, had not his Excellency, the Governor, on being acquainted with the base and unmanly conduct, interposed, who severely reprimended the tyrant Montague, sent the man ashore, and desired he would take out a peace warrant against him." (Va. Gazette, DH, 10/14/1775, p. 3, 1).
The enormity of crimes triable by a court martial varied from military misdemeanors punishable by fines to treason and desertion which could be punished by death. In 1755 the law provided the following punishment for mutiny, desertion, and disobedience:
"death or such other punishment, as by a Court martial held according to the rules and directions herein after mentioned shall be inflicted. (Hening, VI, p. 560). Desertion was not uncommon during the Revolution, but was more commonly punished by a number of lashes, and the miscreant returned to his company. The punishment did not stop desertion, judging from the advertisements placed in the Gazette, such as the following:
"Deserted from my Company of the artillery, the following soldiers, viz. Thomas Moody, about twenty one years of age, of a brown complexion, and is from Lunenburg; had on when 133 he went away a blue coat turned up with yellow, blue waistcoat, and brown cloth breeches. Richard Asblick, about sixteen years of age, five feet six inches high, and is from Halifax; had on when he went away a large blue coat, and brown waistcoat. Whoever apprehends the said deserters and delivers them to the commanding officer at Williamsburg, or in York, where they deserted from, shall receive twenty dollars for each. Henry Quarles, Capt, S. Artil." (P, 3/27/1778, p. 2, 2). A similar advertisement had appeared in the Gazette two years earlier:
"FIVE POUNDS REWARD. Deserted from my Company of the 7th Regiment of Virginia Forces, at Gloucester Courthouse, on the 15th Day of April last, JOSEPH HASKINS about 5 Feet 10 Inches high, stout robust made, of a swarthy complexion, and wears his own dark hair.--Also, EPHRAIM TURPIN, a Lad about 14 or 18 Years old, about 5 Feet 9 Inches high, of a fair Complexion, wears his own Hair and is very indifferently dressed, without shoes or stockings. He was taken up some Time ago, and underwent a Trial by Court-Martial at Williamsburg, agreeable to whose Sentence he received 15 Lashes for the same offence, and was ordered to join his company, which he had failed to do. I will give 51. Reward for Haskins, and 50s. for Turpin, to any Person who will deliver them safe at Gloucester Courthouse. CHARLES FLEMMING." (D, 4/24/1776, p. 2, 3)That deserters were held in the publick gaol from time to time is evidenced by the following advertisement placed in the Gazette:
"Williamsburg May 23, 1777. Broke out of the Publick Jail, last Monday night, the following prisoners, Viz Adam Bell and Robert Lamb, two tories. Bell is well set, has a ruddy complexion, is of the middle height, speaks bold, and is pretty talkative. Lamb is tall Slender fellow, appears to be strong and hardy. Both may 134 be known as Scotsmen by their dialect, Whoever apprehends them will be entitled to a reward of 20 Dollars, and so in proportion for any one of them. At the same time made their escape four deserters, Viz. Robert Jackson in the Colonial service under sentence of death; John Smith, John Johnson, and John Fesier, of the Continental army. Whoever apprehends and delivers the said deserters to the keeper of the Publick Jail shall receive $1 for each. Peter Pelham." (PD, 5/23/1777, p. 2, 3)
The law initially provided a fine of £ 10 for persons who failed to appear when summoned as a part of the militia called out for an alarm or insurrection (Hening, IV, p. 122), but in 1755 this amount was raised to £ 20. (Hening, IV, p. 545). However, with the onset of the Revolutionary War, such persons were considered as deserters. (Hening, IX, p. 292).
In 1726, the law provided
"That if any such person or persons,...shall detain or imbezzle any arms, accoutrements, or ammunition,...it shall and may be lawful, to and for the respective county-lieutenants, or other chief commanding officer,...to cause to be imprisoned such person or persons, till he or they have made satisfaction for the arms, accoutrements, or ammunition, so by him or them detained or imbezzled." (Hening, IV, p. 203). A case of embezzlement of funds, rather than arms, was tried in 1777, and reported in the Gazette as follows:
"Capt. William Field, of the troops of this state, agreeable to the sentence of a Court Martial held upon him in this city the 3d instant, was unanimously sentenced to be cashiered, and rendered hereafter incapable of holding any office or employment in this or any of the United states; also, that he be compelled to refund all money by him embezzled or misapplied." 135 (P, 7/11/1777, p. 3, 3).
Initially, failure or refusal to obey one's commanding officers was punishable by a fine of fifty pounds tobacco or ten days in prison (Hening, III, p. 339), but to make an example of such offenders the law was soon amended to provide that on the first offence the offender be tied neck and heels at the muster, and then imprisoned for ten days. (Hening, IV, p. 18). By 1755, the law provided
"That if any inferior officer or soldier, during the time the militia shall be employed for suppressing any invasion or insurrection, as aforesaid, shall disobey the lawful commands of his superior officer, or behave himself refractorily, or shall be guilty of prophane swearing, drunkenness, or any other such like offence, every person so offending, shall pay such fine, or suffer such corporal punishment, not extending to life or member, as by a court martial,...shall be inflicted, or imposed." (Hening, VI, p. 547-548). Officers neglecting their duty, or failing to obey commands, were frequently cashiered as well as fined. This apparently was the hope of one officer whose trial was reported by the Gazette as follows:
"Jonathan Wentworth, of Somersworth in Strafford County, New Hampshire, late Captain in Col. Poor's regiment, is published to the world as a scoundrel, guilty of neglecting his duty, evidently with a design of obtaining discharge from the service of his country; a crime, till this day, unheard of: His countrymen, it is hoped, will treat him with the contempt merited by so infamous a conduct." (P, 10/11/1776, p. 1, 2)Although reports of courts martial for neglect of duty occur frequently, conviction appears to have been rare. For example, in 1776, the Gazette reported that
"At a general Court-Martial held in the City of Williamsburg, the 5th day of July, 1776, by order of 136 brigadier-general Andrew Lewis, for the trial of Capt. Burgess Ball of the 5th regiment (arrested for suffering the brig which was run aground on Willoughby's point to be retaken by the enemy) the Court upon hearing the evidence of Capt. John Willoughby, which was corroborated by the testimony of Capt. Nathaniel Boush, ensign Beale, and Mr. Cocke and Mr. Netherland, Cadets, were unanimously of opinion that the loss of the prize could in no wise be imputed to Capt. Ball, and therefore honourably acquitted him.-Which sentence of the Court-Martial was approved by the general." (P, 7/12/1776, p. 1, 3).
Most of the offences triable by a court martial were punishable by fines which ranged in amount from the £ 200 fine levied against all officers above the rank of Captain who refused to execute orders, (Hening, VI, p. 546) to the ten shillings levied against a man for failure to patrol when so ordered. (Hening, V, p. 21). Among these offences were: refusal to serve as a non-commissioned officer, (Hening, V, p. 21); failure to appear at musters, (Hening, V, p. 19); failure to provide oneself with a musket, shot, powder, and if a trooper, with a horse, (Hening, III, pp. 13-14); harboring deserters, (Hening, V, p. 404); failure of officers to call musters, (Hening, V, p. 20); appearing at a militia muster if one were exempted, (Hening, V, p. 24); and disrupting courts martial when a bystander, (Hening, IX, p. 27). Though such courts martial were undoubtedly frequent, they were not sufficiently newsworthy to be reported in the Gazette, and as these offences were tried by county-level courts martial, it would have been rare that the wrong-doers would have been held in the Publick Gaol.137
Confinement of spies, Tories, and other prisoners of war was not limited to any one specific prison in Virginia, but the Publick Gaol did receive a fair share of such persons. In addition to the Tories mentioned in Pelham's notice of escapes mentioned earlier, the Memoirs of Josias Rogers, Esq. mention several such prisoners, as follows:
"In a few weeks on the 9th of May he was ordered to Williamsburgh; and was carried across Chesapeak bay in a whaleboat, looking in vain around him for some English tender to intercept them. At Williamsburgh his confinement was more horrid than it had ever been: He was thrown into a vile jail, among criminals of all denominations. As he was meditating with horror the scene around him, a feeble voice, which he thought he knew, inquired who he was, and from whence he came. On mentioning his name, an old acquaintance, Mr. Goodrich, a royalist of New York, with all the expedition that a heavy chain would suffer, came up to him; who, with another old acquaintance, Mr. Blair, had been confined some months in that noisome place...The vault of the prison was full, and began to overflow; the weather became intolerably hot, the airhole was small, their food only bullock's lights and water; they were covered with vermin; and inveterate itch broke out among them, and the jail-fever began to appear. For the safety of the town it was now thought proper to pay a little more attention to the jail. The vault was cleaned, and the floor kept washed with vinegar, and strewed with wild mint, which had the desired effect, and checked the contagion.... While he was in this loathsome confinement, his attention was called off from his own sufferings, by his humanity, to a still greater sufferer. A poor boy was thrust into the prison, whom Mr. Rogers immediately knew. His name was Badcock, he belonged to Lymington, 138 and had sailed in the Otter. The party into whose hands he had fallen, had inhumanly made him walk above an hundred miles in a very short time. When he arrived at the prison, he was quite exhausted, and a high fever immediately came on...The poor boy languished two days, and on the third he died. Mr. Rogers and his friends, having been confined near two months in this prison, were marched away under a guard,..." (Research, 1934, p. 126). These events took place between May and July of 1776.
Records of one possible spy who was confined in the Publick Gaol remain from the year 1777. On April 17, of that year, the Council ordered
"that Duncan McCarter, who was taken up in Princess Anne County, and sent by the commanding Officer at Portsmouth to Williamsburg, under suspicion of his being a spy, be committed to the publick Jail, and treated as a prisoner of war till an enquiry can be made into the account he gives of himself, which if true, will entitle him to be considered such a prisoner." (JCSVa, I, p. 391). McCarter did not remain long confined, for on May 2nd, Pelham placed the following advertisement in the
Gazette: "Broke out of the publick jail last night, DUNCAN M'CARTER, who was taken up in Princess Anne County. As he did not give a good account of himself, he was supposed to be a spy, but pretended to be a soldier in a Scotch Highland regiment. He is about 5 feet 5 or 6 inches high, of a slender make, then visaged, and a very swarthy complexion, with black hair and eyes. He was dressed in a brown suit of clothes, with white buttons to the coat. Whoever apprehends and recommits to the publick jail the said Duncan M'Carter shall receive FIVE POUNDS reward. PETER PELHAM." (P, 5/2/1777, p. 1, 2). 139
There were also a variety of Negroes confined in the gaol after they were caught trying to escape to Lord Dunmore. One such negro is mentioned in the following petition
"of Edmund Ruffin, jun....setting forth, that in the month of October, 1775, a negro man slave named Dick, the property of the petitioner, was apprehanded in attempting to get on board Lord Dunmore's fleet, and committed to the public jail; that in the month of December following, he applied to the committee of Safety for the said slave; but they refused to deliver him, intending, as they informed the petitioner, to send the said slave either to the West Indies or the lead mines; but before that step was taken the said slave died; and praying such compensation as shall be thought just and reasonable." (JHD, II, p. 19).
The most famous of the prisoners of war held in the Publick Gaol was Henry Hamilton, British lieutenant governor in Detroit, often called "the Hair Buyer" by the Americans. He and a good number of his officers and men were confined in the gaol between June 15, 1779, and August 1, 1780. They had been captured at Vincennes by George Rogers Clark, and were transferred by stages to Williamsburg. Hamilton's own account of his incarceration survives, providing valuable information about conditions in the gaol at that time:
"June 15, 1779. About Sunset reached Williamsburgh, wet, jaded, dispirited...By the time we reached the Palace as it is called the Governor's residence our escort of curious persons had become very numerous. The Officer went in to give account of his mission, and we remained on Horseback before the door... We were however soon relieved from the painful state of uncertainty by the appearance of the Officer, who conducted us to the Common prison, distant a 140 small mile, our attendants increasing every step. At the Jail we were received by the Jailor, a character, however beneath other peoples notice... The opening and shutting doors and barriers, unbolting some cells, and giving direction in an authoritive voice perhaps were designed to appal us poor Devils, and bring us to a due sense of our situation...We traversed a small court 20 feet square, walled to the height of 30 feet. A Cell Door was opened when the first object that presented itself to my sight by a dim twilight was Mr. Dejean--...We had for our domicile a place not ten feet square by actual measurement, the only light admitted was through the grating of the door which opened in the court above mentioned. The light and air were nearly excluded for the bars of this grating were from three t four inches thick. In one corner of this snug mansion was fixed a kind of Throne which had been of use to such miscreants as us for 60 years past, and in certain points of wind rendered the air truly Mephytic--opposite the door and nearly adjoining the throne was a little skuttle 5 or six inches wide, through which our victual was thrust to us. It is not necessary to describe the furniture, as such folk as were designed to be residents here had no occasion for superfluities. The Jaylor had not been long gone when I heard the noise of a flint and steel a match was lighted, and by its light I espyed certain other persons...I must describe these persons as we shortly became acquainted. One was Mr. Collins who had been a Drummer in the British Service, but having deserted, no doubt for very prudential reasons, and finding the provincial pay insufficient for the support of a man of pleasure, had fallen upon a method of setting that matter right, by counterfeiting the current money of the State. The second was Mr. Spuss 141 who had been a Victualer in the borough of Southworth, he had his reasons for coming to America, and had an equal right with Mr. Collins to imitating the manner of the engravers employed by the Commonwealth for making what they called limber dollars. Mr. Spus he played on the fiddle, and perhaps to his enlivening stains I owe that I am able to write these Memoirs. A Sailor who did not like staying on board was a third. They were all very fond of Mirth and Rum,...These good people however had the charity to offer us some rum which were not so unwise as to refuse..." (Research, 1934, p. 145). A further description of Hamilton's arrival in Williamsburg was provided by the
Royal Gazette published in New York: "They were marched in great pomp through Williamsburg city, and committed to the dungeon with felons, murderers, and condemned criminals, not so much as a blanket allowed them, their hand-cuffs were knocked off, and heavy chains put on their legs before great numbers of people. Mr. Dejean, Justice of Peace of Detroit, was also put in irons for reasons of State-RETALIATION-and to prevent their acting with Indians, 75 days were they loaded with irons in a dungeon 9 feet by 10 feet, no one admitted to have access to them except the jailor's Cerebus-Major Hay, Lieytenant Shieffelin, &c. remained at Chesterfield, underguard until the 28th of August." (Research, 1934, p. 147). Their arrival is described by Hamilton in his diary: "Aug. 31. Major Hay with the other prisoners from Chesterfield arrived at Williamsburg, the soldiers were confined in the debtors rooms, the officers, five in number were put into the Dungeon with us...The door to our cell continuing shut for several days, the poor prisoners...offered to be locked up and debarred the use of the court, if we might be allowed that liberty which at 142 length we had.
"Oct. 9th. The soldiers were sent from the jail to the Barracks which being allowed to cut wood a part was sent to the jail for us. On Xmas day the soldiers were marched away to King William County. The weather at this time became so intensely cold, that we could not rise from the floor but continued day and night in our blankets...The jailer...took us to an upper room in the jail where prisoners had formerly been kept, this though it had no window but an open grate was more tolerable than the Dungeon, we could light a fire in the chimney and by sacrificing part of our blankets to stop the grated window and stuff the cracks in the ceiling we made shift to endure in the day time. At night we were remanded to our Dungeon..." (Research, 1934, pp. 148-149).
On July 13, 1780, the House
"Resolved, That the Governor be, and he is hereby desired to cause Governor Hamilton and the other prisoners of war, at this time confined in the jail in Williamsburg, to be immediately removed to some place of greater security." (JHD, II, p. 86). The last entry from Hamilton's diary concerning this period is
"Aug. 1, 1780. We were marched from Williamsburg." (Research, 1934, p. 148).
The British complained that Governor Hamilton received unusually cruel treatment at the hands of the Americans, and this complaint appear to have been justified when his lot is compared with that of other prisoners of war held by the Americans. Thomas Jefferson, in answer to these charges, gives two reasons for the treatment:
"When a uniform exercise of kindness to prisoners on our part, has been returned by as uniform severity on the part of our enemies, you must excuse me for saying it is high time, by other lessons, to 143 teach respect to the dictates of humanity. In such a case retaliation becomes an act of benevolence. But suppose Sir, we were willing, still longer to decline the drugery of general retaliation: Yet Governor Hamilton's conduct has been such as to call for exemplary punishment on him personally. In saying this I have not so much in view his particular cruelties to our Citizens, prisoners with him...as the general nature of the service he undertook at Detroit, and the extensive exercise of cruelties which that involved-Those who act together in war are answerable to each other. No distinction can be made between the principal and ally by those agst whom the war is waged--He who employs another to do a deed makes the Deed his own.... The known rule of warfare with the Indian Savages is an indiscriminate butchery of men women and children. Those Savages under this well known character are employed by the British Nation as allies in the War against the Americans. Governor Hamilton undertakes to be the conductor of the war. In the execution of that undertaking he associates small parties of white men under his immediate command with large parties of savages, & sends them to act, sometimes jointly, sometimes separately, no agst our Forts or armies in the filed, but the farming settlements on our frontiers. Governor Hamilton then is himself the butcher of men women and Children." (Cal. Va. State Papers, I, p. 321). Thus, both as an act of national retaliation and as particular vengeance against "The Hair Buyer," Henry Hamilton received treatment acknowledged by Jefferson to be of unusual severity, in comparison with the usual treatment of prisoners of war taken by Americans. 144
With the burning of the Statehouse at Jamestown on October 20, 1698, "Governor Nicholson removed the residence of the governor, with the meeting of General Courts and General Assemblies to Middle Plantation, seven miles from James Town, in a healthier and more convenient place, and freer from the annoyances of muskettoes." (Hugh Jones, in Carson, 1965, p. 6).
The removal of the General Court from Jamestown, caused the General Assembly to note that
"it is absolutely necessary that a publick prison be built near and convenient to the siting of the generall court for the reception of criminals of both sexes." (Hening, III, p. 215)To fulfill this purpose, the General Assembly in 1701 passed An Act giving further directions in building the Capitoll and for building a Public Prison, (Hening, III, pp. 213-215) which specified that "there be forthwith built convenient to the Capitoll and substantiall brick Prison, thirty foot long in the clear and twenty foot wide in the clear three rooms on the lower floor, vizt. one with the Chambers above for the goalers or prison keepers owne use and two smaller on the lower floor for goals for the criminals of both sexes, to be underlaid with timbers under ground to the foundations to prevent undermining and that at one end thereof there be walled in with a substantiall wall ten foot high, twenty foot square of ground for the prisoners to be let into to aire them as occasion shall require for preservation of their life and health till tryall whereby it will be convenient reception 145 for all criminals upon their commitments and save the charge which necessarily accrews in each county by keeping continuall guards upon them, and that the comittee for overseeing the building of the capitoll have power, and they are hereby impowered to send to England for iron barrs, bolts, and all such materials as shall be thought necessary for the same and direct the building thereof both in these and in all other things necessary thereunto." In 1702, following consideration of the governor's message, the House established the prison rules wherein prisoners not committed for felony could walk as
"the Lot that the said Prison stands upon and the said Square of 475 feet." (JHB, III, p. 395).
Henry Cary, the leading architect and builder of the period, already engaged to oversee the construction of the Capitol, undertook the construction of the gaol, according to these specifications.
By April of 1703, the construction of the Gaol was nearing completion and the House of Burgesses, (JHB, IV, p. 30) having considered several applicants, ordered "That John Redwood is ye most fit person of the severall petitioners to be imployed to look after and take care of the Capitol & ye furniture and to be Goaler of ye Country prison when they shall be ffinished. That thirty pounds per annu be the allowance given to those that shall hereafter be imployed therein, first Entering into Bond with good security for ye due and faithful performance of what shall be thought reasonable to enjoyn and oblige them to."
On July 20 of the same year Cary submitted a bill for the consideration of the General Assembly covering the joint construction project. The bill amounted to slightly over £ 3822, and covered most of the construction costs, although frequent improvements of 146 the plans for the Capitol delayed its completion for several years. At that time, Mr. Jennings, Mr. Barbar, and Mr. Ballard, the committee appointed to inspect the Gaol (Research, 1934, p. 11) reported that "The Prison walls are up & ye roof is this day raising & doubt not butt itt will be completely finnished in September next."
In 1704, based on a further suggestion of the governor, the House ordered (JHB, IV, pp. 64-65) "That ten acres of land be laid out for the bounds and rules of the Prison," and "That Stones be sent for and sett up to distinguish the bounds of the Square market out for the Capitol and the bounds and rules of the prison." A committee was appointed to view the square so marked out, and upon consideration of their report, the House (JHB, IV, p. 73) resolved, "That the Publick Prison be included within the Bounds appropriated to the Capitol and that the said bounds already ascertained for the said Capitol be continued from the said Capitol houses to the Extent of forty one poles to a Post, thence including the prison thirty two poles to a Post on the West side of the Spring, thence fourteen poles to the corner of a ditch, thence along the said Ditch thirty poles and half to a post by the said Ditch and from thence to the beginning place--" At this time the Gaol must have been adequately completed for An Act for removing Criminals from the Goals of the counties where they shall be apprehended, to the Public Goal at Williamsburg was being considered and was signed into law on May 12th, 1704. (LJCCVa, I, p. 407).
Furthermore, John Redwood, the Keeper of the Gaol, followed the normal procedure for
being paid out of public funds that spring when he petitioned for his allowance.
(JHB, IV, p. 51). Such petitions had to be approved by the House Committee for Publick Claims before
Publick Gaol of 1704 - Ground Floor
Publick Gaol of 1704 - Second Floor 147 payment could be made, but this was merely a matter of government red tape.
On May 9, 1704, John Redwood received custody of two Chicahominy Indians named James Mash and Coscohunk. These two had been brought in for examination by the Council, (EJCCVa, II, p. 367). As more time was needed, the Council ordered "that the further examination of the said Indians be deferred till tomorrow, and that in the mean time they be committed to ye Custody of John Redwood Keeper of the public Goal, and that the guard that brought them down be now discharged."
In September, 1704, the Council (EJCCVa, II, pp. 383-384) received a letter from Colonel William Tayloe of Richmond County, dated the 3rd of the month, "giving an accot that on the Wednesday before about ten in the forenoon, ten Indians came to the house of John Rowley of that County, and after staying sometime in a friendly manner...they fell upon him, and killed himself, his wife and son & wifes mother..." Evidence implicated some Nansiatico Indians and Colonel Tayloe was ordered to take the suspects into custody and see that they were safely transported to the Public Gaol in Williamsburg. It was further ordered
(EJCCVa, II, p. 385) "That John Redwood keeper of the Common Goal in Williamsburgh do immediately upon his receiving the Nasiatico Indians Prisoners, impress a good guard, not less than six in number for the better securing the said Indians...Redwood was asked for suggestions concerning feeding the Indians. Based on these suggestions, the Council (EJCCVa, II, p. 400) ordered that "He be allowed five pounds of Tobbacco per diem for every one of the said Indians; he engaging to furnish them sufficiently with such sort of Provisions as they are accustomed to, and give them 148 flesh once a week." They also ordered "that the clerk of the Council provide Match coats for such of the said Indians as shal be in want of Cloathing."
The Nansiaticos were tried by a court of Oyer and Terminer, and at least two of their number were found guilty, and condemned. The Governor referred the decision of the court to the Council, who, in October, 1704, answered as follows: "We have taken into consideration the opinion that the two Indians condemned by the Court of Oyer & Terminer & not yet executed are objects of mercy, and hope yor Excelly will change their Sentence into transportation. That as to the other Indians in Custody, there appearing no evidence of their being privy to or consenting to the murder; We think it is a matter of very great weight, & proper for the consideration of a Genl Assembly, and that in the meantime they be continued in custody." (EJCCVa, II, p. 396). It should be pointed out that at this time the threat of Indians was very real to the colonists and undoubtedly was considered when their fate was deliberated. It was finally decided that all the Nansiaticos held in custody should be transported, since they had all confessed to being present at the crime. Thus, in May 1705, the House (JHB, IV, p. 119) resolved "That John Martin have the Indians now in prison to Transport upon the Terms Laid Down in his Petition if he will Oblige himself to Return a Certificate under ye hand of ye Governour of The place to Which he Transports Them that he hath Sold Them According to The Time Limited in ye Act of Assembly."
A blacksmith, Thomas Whitby, had been employed for some time past, "for Putting on and Taking of the prisoners Irons & other 149 Services," for which he petitioned to receive his pay out of public moneys that spring. (JHB, IV, p. 94).
On May 10, 1705, the House, (JHB, IV, pp. 117-118), attending to the upkeep of the Gaol, resolved "That the Roofs of The Capitol & prison be Tarred again This Summer as often as ye Overseer of the Building Shall Think fitt. That ye Spring be Laid Round with ye pieces of ye broken fflagg Stones to keep it from filling up. That a pair of Stocks Pillory & Whipping post be built neer the Capitol." Later that same year, however, the House decided that the order concerning stocks and pillory needed altering, for it was then ordered (JHB, IV, p. 154) that "the Pillory and Stocks set up in the Court of the Capitol, be forthwith removed, it being placed there without the direction of any Person having authority for that purpose and in a very unfitt place." As no evidence is available, we can only guess that a more fit place would have been within the prison yard.
Although many of Redwood's prisoners during the period were Indians, some colonists also committed criminal acts. In November 1705, Redwood petitioned the General Assembly (JHB, IV p. 124), "praying to be Allowed his Fees for the Imprisonment of Daniel Macarty from the Sixth day of June Last to This time..." At the same time, Charles Chiswell, Clerk of the General Court, submitted a petition
(JHB, IV, p. 124) "Setting forth That one Daniel Macarty was The fourth day of The Last General Court Indicted and Arained for fellony and Burglary and That by The Said Court a Customary Fee of Five Hundred Pounds of Tobacco and Cask has allways been allowed The Clerk for his Services in Such Cases & the Said Macarty being Unable to pay The Same prays he May be paid The Said Fee as The Law Directs..."The law covering such costs as clerks' fees (Hening, 150 I, p. 449) stated that such fees "for criminal causes for life and death shall be defrayed by the severall counties respectively, where the ffact he was accused of was committed, in case the said prisoner shall be found guiltie, but if not guilty of any accusation not tending to his life, he shall beare his owne charges..." This would suggest that Macarty was either acquitted of the charges, or was granted benefit of clergy so that life and limb were not endangered, as the original expectation was that he would pay the fees.
In October, 1705, the original act for removing criminals to the public gaol was repealed and An act for removing criminals from the goals of the counties where they shall be apprehended, to the public goal in Williamsburg (Hening, III, pp. 389-392) was passed. This act provided for an examining court to be held by the county court "to consider whether, as the case shall appear to them, he or she may be tried in the county, or must be removed from thence, to be tried at the general court." If the examining court found it necessary to bind the prisoner over to trial in the General Court, he was returned to the custody of the sheriff, with a precept signifying the true cause of commitment, and the sheriff was to deliver both the prisoner and the precept to the keeper of the public gaol in Williamsburg as soon as he conveniently could. The sheriff was given the power to impress guards, horses, and boats as these were needed in order to safely transport the prisoner to Williamsburg. If the crime of which the prisoner stood accused were bailable, the law directed that "he or she shall not be removed out of the county, to the said public goal, in less than twenty days after such remanding; To the end, that in that time, bail may be procured and given in the county. Provided always, That nothing here in contained, shall 151 be construed so as to exclude or hinder any person from being admitted to bail, after his or her removal into the said public goal, in such case as by law he or she may be bailable." The law also provided a means for summons to be issued for witnesses on the prisoner's behalf to appear before the examining court or at the General Court. The keeper of the public gaol was empowered "to impress such and so many persons as shall be necessary for the guarding and safe keeping of all such prisoners as shall be and remain committed to his custody." Sheriffs were allowed one hundred pounds of tobacco for every twenty miles traveled in brining a prisoner to Williamsburg, and five pounds of tobacco a day were allowed to the sheriff and the keeper of the public gaol for keeping and dieting a prisoner.
In 1706 Redwood again had Indians in his gaol, for in May he submitted a petition (JHB, IV, p., 182) "praying to be allowed one pound four shillings for entertaining twelve Indians two dayes." He was also responsible for "the Negro bought for the use of the Country and now in prison for offering Violence to Mr Cary and standing out in Disobedience," who was finally ordered transported to some other of her Majesty's plantations and sold. (EJCCVa, III, p. 118). A runaway Indian servant was housed in the gaol for a while that year, and examined by the Council (EJCCVa, III, p. 138) with the following result: "John Marene an Indian being taken in Essex County & by mittimus from the justices of that County committed to the Publick Goal at Williamsburgh was this day brought before the Council Upon examination confessed that he was Servant to one John Reading of Mount amwell in New Jersey (there being also found a Collar about his neck with that inscription) and that he was taken 152 by some strange Indians & brought from jersey hither, but knows not what Indians they were It is ordered that the keeper of the Country Goal take and secure the said Indian untill his said Mr shall send for him and pay the usual Charges according to Law." It is probable that Redwood was responsible for other criminals and runaways during the year, but that their records have been lost or destroyed.
In September, 1707, the Council (EJCCVa, III, p. 154) ordered that "The consideration of the claime of Jno Redwood and others for dyating the French prisoners sent hither from Carolina is refd till the Genll Court." In October of the same year, the Council (EJCCVa, III, p. 160) "Ordered that all such of the Tuscaruro Indians guilty of the murder of Jeremiah Pate of New Kent County as shall be apprehended be Committed to the Publick Goal at Wmsburg in order to be brought to tryal for the crime whereof they stand acused and that such others of the Tuscaruro Indians as were in compa wth the said Murderers be likewise on the aforesd Tryal..." At the same time a commission of Oyer and Terminer was issued for the trial of the Indians, and the Council (EJCCVa, III, p. 161) "Ordered that such arms & other things as were taken with the Tuscaruro Indians be sent down to Williamsburgh & lodged with the keeper of the publick Goal." One of the Tuscaruros, having been convicted by the court of Oyer and Terminer, appealed the conviction, and as the Council found his reasons just, they sought her Majesty's mercy, and in the interim the Gaoler was ordered to
"cause the said Mason to be favorably treated and that he be provided with such necessarys as he shall want." (EJCCVa, III, p. 173). Also in October, 1707, one
"Arthur Johnson being convicted this General Court for the felonious 153 stealing a horse and sentence of death passed on him On the humble petition of the said Johnson It is the opinion of the Council & accordingly ordered that he be transported to one of her Majtys plantations in the West Indies and there sold as a servant for seven year." (EJCCVa, III, p. 163).
In the spring of 1708 the keeper of the public gaol had two murderers in custody, and on April 28, the Council records (EJCCVa, III, p. 179) state that, "Thomas Ashwell being convicted this Genll Court for the murder of Anthony Power and James Pertnock for the murder of Elizabeth Thrower warrants were this day signed in Council for their execution of the 21st of May next."
At some point in the late summer or early fall of 1708, John Redwood resigned his position as keeper of the public gaol. It has been suggested that this resignation was due to lack of salary, a possibility as the General Assembly was prorogued in 1705, thus making it impossible to follow the correct procedure of petitioning for the salary and allowances to be paid out of public moneys. Due both to widespread illness in the colony and to the absence of a governor, the Council decided not to summon an Assembly again until 1710. However, the financial hardship this may have worked on the keeper did not discourage everyone, for in September, 1708, the records (EJCCVa, III, p. 192) noted "Several petitions being presented to the Council for the office of Keeper of the Country Goal,..." It is also possible that Redwood resigned partly for health reasons, as he died in 1710.
In October, 1708, the Council (EJCCVa, III, p. 202) noted that "It is recommended to Mr President if he finds the present keeper capable and diligent to takeing care of the prison and Capitol to 154 continue him till further order otherwise to put in such person in that office as he finds most capable & can give best Security for keeping the same." The decision apparently was to retain the present keeper, as in February of the following year,
"Mr. John Ince having (on the Resignation of John Redwood) been appointed by Mr President to be Keeper of the publick Goal was this day approved by the Council and ordered that he give Security." (EJCCVa, III, p. 205). Ince did not hold his office very long, dying within a few months of posting security. The only facts known about any of his prisoners are relevant to the medical treatment given some of them:
"On Consideration of the accot of Dorctor Archibald Blair It is Ordered that there be paid to him Seven pounds Sterling out of her Majtys Revenue of 2s per hogshead for medicines and attendance to serverall prisoners in the publick goal. Ordered that the Keeper of the publick goal permitt Francis Biggs a prisoner the use of the Keepers room in the prison & provide him wth good bedding during his Sickness or that he be boarded out for recovery of his health." (EJCCVa, III, p. 203). This is but one of many known instances of prisoners' health suffering as a result of their incarceration, but in all such cases the services of a physician appear to have been provided.
In June, 1709, the Council considered the cases of four seamen who had taken part in a mutiny.
(EJCCVa, III, pp. 217-218). "Whereas Thomas Morgan and John Wintes prisoners in the Common Goal for mutiney on board the Brigantine Seaflower have humbly acknowledged their fault and petitioned for pardon, It is Ordered that they be admitted on board the said vessell only in the quality of foremast men upon their asking the Captains pardon publickly before the Ships Company and upon condition also that they behave themselves well for 155 the future and do their duty while they are in the Service. Ordered that John Magenis & George Wood who mutineyed on board the Brigantine Seaflower be remanded to prison and putt on board the first man of War that comes in they being Deserters from her Majestys Service."Mutiny incidentally, was one of the crimes, which, according to the Charter of 1606 (Hening, I, pp. 69-70) was punishable by death without benefit of clergy.
On September, 1709,
"John Broadnax being appointed by Mr President to be Keeper of the Capitol and publick goal was this day approved in Council and Order'd to give bond for the due performance of this Office." (EJCCVa, III, p. 235).
A slave conspiracy in 1710 provided the new keeper with a number of prisoners. The first record of this conspiracy is in a letter from Colonel Phillip Ludwell dated March 19, 1709/10:
"Pursuant of yr Comand I had all Dr. Blair's negroes my owne 3 Negroes 3 more which I had intelligence of from my owne people secured under guards at James Towne by Eleven of ye Clocke yesterday & I gott Mr Marrable Mr Brodnax & Mr. Jacquelin to goyn with me in takeing their Examinations which I have herewith sent you..." (Library Archives). This was the conspiracy which resulted in the trial and conviction of Salvadore and Scipio for high treason.
On April 27, 1710
"A Commission of Oyer and Terminer was this day signed for Tryal of William Kentin who since the sitting down of this Genll Court hath killed one on board the Bristoll Merchant in York River." (EJCCVa, III, p. 241).
In November, 1710, the following petitions relevant to the salary and fees of the gaolers were presented to the General Assembly
(JHB, IV p. 254, p. 261): "The petition of Mr Thomas Jones 156 Attorney of John Redwood praying that what is Due unto The Said Redwood as Keeper of The Publick Goal may be paid unto him, The said Jones he having a power to Receive The Same,...The petition of Dionisa Hadley praying That she may be Allowed fifty pounds out of the Sallary Due unto John Redwood Late Keeper of The publick Goal... The petition of Katherine Howard praying That she may be allowed four pounds one shilling for Dieting Sundry Indians. The petition of David Minetrie praying That he may be allowed for Sundry Services about The Capitol and publick prison and The petition of David Minetri[e] praying That as he Married The Admrx of John Juce[Ince] Decd there may be paid unto him what was Due to The Said Juce[Ince] for Sallary and fees for Keeping The publick Goal. The Petition of John Broadnax praying to be Allowed his Sallary and fees Due to him as keeper of The publick Goal...The petition of Elizabeth Redwood and Lyonel Lloyd,...praying That what is Due unto John Redwood who formerly kept The Publick Goal may be allowed, and That The same may be paid unto The said Lloyd, it being Assigned to him--."In December of that year, the House "Resolved That The Several persons who Have been Keepers of The Publick Goal Since The Last Assembly be paid Their ffees for Dieting The Prisoners &c in Mony." (JHB, IV, p. 292). Unfortunately, no clue is given as to how the various conflicting claims for Redwood's salary were resolved.
Also in 1710 a variety of accounts of "the Ordinary Charges of the taking up & trying the 8 pirates brot in by Capt Luke Knott" were settled. (Cal. Va. St. Papers, I, p. 147). Presumably these pirates were also in Mr. Broadnax's custody for some period of time.
In October, 1711, following the sitting of the General Court, it was noted
"On the petition of George Wortham convicted this 157 General Court for killing one Roger Davis of Middlesex County It being found by the Jury that the said Fact was committed se defendo The Governor was pleased with the advice of the Council to order a pardon to be prepared for the said Wortham in the usual forme. On the petition of John Jones convicted this General Court and found guilty of Manslaughter for killing one John Seawell It appearing that the Fact was altogether Casual and unvoluntary The Governor was pleased with the advice of the Council to pardon the punishment of burning in the hand; And it is ordered that the Attorney General prepare a pardon for the said Jones accordingly." (EJCCVa, III, p. 285). Both of these men would have been confined in the gaol from the time of their being remanded to Williamsburg until their pardons were issued.
In November, 1711, along with his claim for his salary,
"The Petition of John Broadnax Keeper of the publick Goal was read Setting forth the Inconveniencies in having a Window on Each side of the Said Goal, and that they may be stopt up and that One other window may be made at the West end of the Said Goal which is Surrounded with a high Wall-- Resolved. That Liberty be given to the said Broadnax to make alterations in the Publick goal according to the prayer of his Petition and that the same be done at the Charge of ye Country." (JHB, IV, p. 309).
In the same year, the General Assembly passed An Act for building a Prison for Debtors to be committed by the General Court, (Hening, IV, pp. 26-28). This act provided that "Whereas it is found very inconvenient, that when defendants are brought in custody
from several remote and distant parts of this colony to the general court, by writs
issued out of the office of the said court, for want of bail
FLOORPLAN - Publick Gaol following the addition of The General Court Prison for Debtors,
No digital image available. 158 for their appearance; and at the return of such writs or appearing, cannot give special bail to such actions on which they are arrested, or after judgment obtained against them in custody, on which they ought immediately to be in execution, there is at present no prison or place to which such defendants can properly be committed...That as soon as conveniently may be,...one lot or half acre of land lying in the city of Williamsburg, and in the county of York, as near as may be to the place where the colony goal for criminals now stands, be set apart and appropriated for a place whereon a prison shall be built; and that...there shall be made and erected on the said lot, a good substantial building with timber and plank, iron work, and other materials, so as to make the said building strong and sufficient for the safe keeping of prisoners..." The governor was empowered "to contract and agree with any person or persons, for the erecting, building and finishing the prison aforesaid," using public funds up to two hundred pounds. The prison was to be called "The General Court Prison for Debtors; of which said prison, the judges of the general court, or the greater part of them, are hereby authorized and impowered to lay out and appoint rules." The sheriff of York county was appointed the keeper of this prison, and the General Assembly was empowered to establish a salary for him. Furthermore, he was to be allowed, in case of a prisoner too poor to pay his own fees, "for the relief and subsistence of such poor prisoner, the sum of six pence by the day, for every day such poor prisoner shall remain and be in his custody."
The final decision was to attach the Debtors prison to the west end of the exercise yard, thereby keeping the two prisons contiguous. Robert Beverly was later to describe this
"public prison 159 of the country for criminals, which is a large and convenient structure, with partitions for the different sexes, and distinct rooms for petty offenders. To this is also annexed a convenient yard to air the criminals in, for the preservation of their life and health, till the time of their trial; and at the end of that, another prison for debtors." (1947, pp. 234-235).
On August 18, 1712, the Council
"Ordered that the Tuscaruro Hostages be confined within the publick Goal untill the performance of what hath been promised in behalf of their Nation, but that liberty be given them by turns to go out in the daytime, one of them always remaining confined till the return of the other. And it is Ordered that the said Hostages be maintained at the publick charge... Ordered that leave be given the Tuscaruro Captive now sick in prison to go out for recovery of his health in Company with the Hostage who shall be a liberty every day, the said Hostage being answerable for the said Captive's return." (EJCCVa, III, pp. 520-521). These Tuscaruros with their various comings and goings must have caused Broadnax, along with the government, certain inconveniences. In November, governor Spotswood sent a message to the House stating that "Among the Various measures taken for preventing all manner of Trade with the Tuscaruro Indians...they then left Two Hostages which were to Remain untill the Return of their Deputys and the performance of Some other Conditions which they have also broke One of those Hostages made his Escape And one of the Prisoners taken by the Rangers is since dead The Rest of the Men Remain in the Publick Goal And as their Subsistance is a Charge to the Country I shall be glad to know your Opinion what ought to be done with them after Such Repeated Breaches of promise made by their Nation." (JHB, V, 160 p. 15). The final disposition of the Tuscaruros is not clear. In the same year, Broadnax apparently had custody of Elizabeth Gordon, as William Timson's petition for his fees for her hanging was sent to the Assembly that fall. (W & M Quarterly, XXI, p. 249).
In 1713, Andrew Mcclanahan who had been convicted of manslaughter in the death of John Curry, was pardoned provided he pay for his own transportation from the colony (Va. Mag., XIX, p. 263), and Jane Ham, convicted in the death of her bastard child (EJCCVa, III, p. 344) were confined in the gaol. Jane was reprieved but spent a total of eighteen months in Broadnax's custody before being pardoned.
The records for the next few years are sparse, though Broadnax continued to submit his claims for salary as keeper, and in 1714,
"A Petition of Charles Barret was by Leave of the House presented and Read Praying an Allowance of Two pounds fifteen Shillings for Visitts Attendance and Physick Administered to Prisoners in the Publick Goal." (JHB, V, p. 95).
1718 was an exiting year, and Broadnax must have had a jail full of pirates most of the year. William Howard, who had been Blackbeard's quartermaster before the crew split up in North Carolina was taken into custody on suspicion of piracy, and tried in Williamsburg "by vertue of the Commission under the great Seal" of the Court of Admiralty. (EJCCVa, III, p. 484). The fifteen pirates who were captured in North Carolina when Blackbeard himself was killed were also held in the gaol, and tried in Williamsburg. Furthermore, some of Captain Forbe's men "were taken up on Suspicion of Piracy, and brought before the Governor in order to an Examination," during that same year. (JHB, V, p. 234).161
Whether because of the large number of prisoners, or because inflation was affecting him, in 1718 the House received "A Petition of John Broadnax praying a larger Allowance for keeping the County Goal & Capitol," and
"Resolved That Ten pounds per annum be added to the Sallary of John Brodnax." (JHB, V, p. 227)The House also received
"A Claim of George Allen for Visits and Physick Administered to a prisoner in the Country Goal," (JHB, V, p. 223)and took under consideration
"A Memorial of John Brodnax proposing Severall matters concerning Negros committed to the Publick Goal, whose Masters are not known." (JHB, V, p. 232).
In February, 1719, the Council ordered
"That two of the Pyrates now condemned be hung up in chains at Tindalls Point in the York River and Two more at Urbanna in Rappahannock River." (EJCCVa, III, p. 523). This was an entirely new batch of pirates, as Teach's men had already been executed, and the suspicions against Captain Forbe's men had proved unfounded. The gang was apparently fairly large, for
"The Governor informing the Board that he had hitherto Reprieved two of the pyrates lately condemn'd, whose names are Peter Minshal and Wm Lake; that these two appearing on their tryal to behave themselves with greater modesty and since their condemnation with greater signs of Repentance than any of the rest he was inclinable to Extend his Majtys Mercy to them if this board are not apprehensive that the pardoning them may be a prejudice to the publick Welfare, and therefore he asked ye Advice of Council therein. This Board taking the same into Consideration, are of Opinion that it will be of no prejudice to the publick Welfare if after the Justice which hath been done on six of the same Gang of Pyrates, Mercy be extended to the other two, and therefore the Council do advise the 162 Governor to grant them a pardon." (EJCCVa, III, p. 523).
Sometime in the summer of fall of 1719, John Broadnax, Keeper of the Publick Gaol, died and was replaced by James Shields. In 1720, the Assembly took into consideration
"A petition of James Shields Keeper of the Publick Goal praying some alterations may be made in the sd Goal for the better Accomodation of the prisoners." (LJCCVa, II, p. 243). At this time, the petition was rejected, but was probably brought to fulfillment in 1722 when An Act for Making the Public Prisons in Williamsburg more convenient; and for building a House for the Keeper thereof was enacted (Hening, IV, pp. 114-115). This act provided that "one lot or half acre of group, lying in the city of Williamsburg, as near as may be to the place where the said prisons now stand, be set apart and appropriated for the erecting and building a house for the keeper of the said prisons, and a wall of brick to inclose a yard and on the south side of the same: And that such alterations be made in the said prisons, or either of them, as shall be thought fit," for which three hundred and fifty-nine pounds were appropriated. The law also provided "That the two rooms at the east end of the now criminals goal, be appropriated and kept for the receiving and safe-keeping of debtors to be committed by the general court; and that the two rooms at the west end of the said criminals' goal and the said general court prison for debtors, be appropriated and kept for the receiving and safe-keeping of criminals committed to the public goal of this colony. And that the person who now is, or shall at any time hereafter be appointed keeper of the public goal of this colony, during the time he shall so continue, be, and is also hereby constituted and appointed keeper of the goal for debtors, to be committed by the general court," and exempted the
In October, 1722,
"The Governor representing to this board that there are in the publick Goal divers Negros, who had lately formed a design to rise and cutt of his Majtys Subjects of this colony; But for as much as his Majtys Attorney General, conceives the Evidence against them being only Negros, and those not Christians are not such Evidences as is sufficient to convict the criminals upon an Indictment to be exhibited against them for high Treason; and thereupon desiring the opinion of this Board what method shall be taken for proceeding against the offenders. The Council taking the same into consideration are of Opinion, that Mr. Attny be directed to proceed against the offenders by Indictmt for Misdemeanors, and that he procure all the Evidence that can be found against them." (EJCCVa, IV, p. 20). In December, the same group of Negroes came up for discussion again when
"The Governor was this Day pleased to inform the Council, that application had been made to him for admitting to Bail divers of the Negros now in the public Goal, who were committed by the Genl Court for misdemeanors, and desiring the Opinion of the Council there in. The Board upon Consideration of the Crimes for wch the said Negros stand Committed, and the Circumstances of their Case, are of opinion and do advise that the said Negros be not Bailed." (EJCCVa, IV, p. 29). Thus, keeper Shields apparently had the Negroes in his custody for a good period of time.
For a while during the same year, Shields also had a "Senequa" Indian in custody, charged
"with an intent to murder the said John Mayes and to poison an Negro Man belonging to the said John thereafter to carry away with him an Indian woman Slave belonging to the said Mathew Mayes and two other Slaves of one Math Anderson; the 164 said "Senequa" Indian was this day Examined in Council, where he denyed the Facts Charged against him; But it appearing by the Depositions of the said John and Mathew Mayes that the said Indian did own to him his intention to carry off the two Slaves belonging to the aforesaid Mathew Anderson as soon as he would furnish himself with ammunition for his Journey: It is therefore ordered that the said Indian be sent out of this Government." (EJCCVa, IV, p. 24). Stricter measures were not employed in this case as the government had just concluded a treaty with the "Senequas," and hoped that this decision would convince them "of the good faith with wch this Governmt is resolved to maintain the peace lately concluded with them."
Also in 1722
"A Petition of Charles Waller praying to be paid for a White Servant lately convicted and Executed for felony was presented to the House." (JHB, V, p. 325).
In 1723 the House ordered "That the said Wm Hopkins be led thro' the Town in Custody of the Messenger by the Door Keepers of this House Attended by the Constables of the Town, from the Capitol Gate to the College Gate and back again with an Inscription in great Letters pind upon his Breast in the following words ("For Insolent Behavior at the Bar of the House of Burgesses when he was there as an Offender and with obstinacy and Contempt disobeying their Order") And in case he shall refuse to walk that he be Tied to a Cart and Drawn thro the Town, And that he be afterwards committed to the public Goal in Willmsburgh The Keeper whereof is hereby required to receive and there safely keep him during the pleasure of this House." (JHB, I, p. 385).
In 1724, Shields entertained a lunatic, Daniel Davis, who had been indicted for murder but was remanded to jail without trial and 165 an effort to cure his lunacy ordered (EJCCVa, IV, p. 69), and the Quaker Robert Jourdan who was convicted of publishing a "scadalous Libel reflecting on the Laws of the Government and the established church," and was jailed until he could offer adequate securities for his better behavior (EJCCVa, IV, p. 67).
The next few years are not well represented in the records, although James Shields continued to draw his salary as keeper of the public gaol. In 1727, Sarah Williamson, convicted of murder in the concealed death of her child, was remanded to jail. The governor reprieved her sentence at this time, but the pardon did not arrive from England until 1730. (EJCCVa, IV, p. 168, p. 213).
On September 12, 1727,
"The Lieutenant Governor being informed that John Vidal a prisoner in the public Goal in Williamsburgh has been lately convicted and attainted of Piracy, & is to be executed on the 6th day of October, was pleased to ask the advice of the Council, Whether in their opinion the said Vidal be a fit object of the King's mercy; upon debating whereof it is the opinion of the Council that in respect of Majesty's Succession to the Throne, and the arrival of the Governor, it is fit to begin his Adminrn With an Act of Mercy, and therefore they do advise his Honour to grant unto the said John Vidal his Majesty's most gracious pardon." (EJCCVa, IV, p. 149). This, however, did not quite put an end to Vidal's stay in prison. At the end of October, the Council noted that
"Whereas John Vidal lately convicted of Piracy, and by the Governor pardoned for the said offence, is still detained in the public Goal, and there like to continue, as well for the prison fees as the fees due to the officers; It is Ordered that the said fees be paid out of his Majesty's Revenues of 2s per hogshead &c; and 166 that the said Vidal be forth with discharged out of prison. (EJCCVa, IV, pp. 150-151).
At some time in late 1727 or early 1728, James Shields died, for in March of 1728 the claim for his salary was presented by his executrix. (LJCCVa, II, p. 744) This same claim gives evidence that Griffith Bowen, a lunatic, had been confined in the public gaol during this period, and also includes
"The Claim of Benjamin Desborow for bedding furnished to the prisoners in the publick Goal...necessary...during the uncommon severity of this winter." (LJCCVa, II, p. 744)Finally included were
"the petitions of the Clerk and Serjeant of the City of Williamsburg praying an allowance for their services in the Commitment, Examination and Conveying to the publick Goal of sundry Criminals apprehended in Town in order to their tryal." (LJCCVa, II, pp. 744-745). The House also had under consideration
"A Petition of Joseph Sutton...praying an Allowance for Carpenters & Joiners work done about the Capitol & Public Goal." (JHB, VI, p. 41).
In 1729, Andrew Byrn, who was tried and convicted of the murder of a negro slave, was confined to the gaol not only until his trial and sentencing, but afterwards while he awaited
"his Majesty's pleasure." (EJCCVa, IV, p. 206).
Shields was apparently replaced by John Carter as Keeper of the Publick Gaol, although the first appearance of the new keeper was in 1731, when
"by his petition representing that by means of the many Criminals committed to the sd Goal he has been at Considerable charge and is like to be at far greater before the next Meeting of the Assembly &praying that a Sum of Money may be advanced him out of his Majesties Revenue on the Condition of what is already become due to him from the Publick to enable him to defray 167 that Charge It is accordingly Ordered that the Sum of fifty pounds Currt money be advanced to the said Carter he giving the Receiver General and Assignmt for so much out of what is due to him from the Assembly for repaymt of the same And it is further Ordered that his Salary be paid him half Yearly the better to enable him to Support the Charges of the said Office." (EJCCVa, IV, p. 244).
In 1733 a fight broke out between the Nottoway and Sapony Indians in which four Sapony Indians on Colonel Mountford's plantation were taken prisoners of the Nottoway. The Council then ordered
"that the sd Nottoway Indians for their Contempt in disobeying the Orders of the Governour be fined in the sum of ten pounds to be paid to the Saponies or the value thereof in Goods...And it is further Ordered that the sd Jemmy and two other of the Great Men of the Notoway Indians be Committed to the Public Goal & there detain'd until the Sapony Prisoners be delivered up to their Nation." (EJCCVa, IV, p. 290).
In May of 1734,
"Eliza Major the Wife of William Major now a prisoner in the public Gaol, and reprieved until His Majestys Pleasure be signified having by her Petition represented the ill State of Her said Husband's Health occasioned by his long Confinement, and that his Life is in Eminent Danger unless he can be removed to a better Air, which Allegations being confirmed by the Report of Physicians It is the Opinion of this Board and accordingly Ordered that the said William Major be enlarged out of Prison for the Recovery of His Health upon his entering into Bond with good & Sufficient Security to render his Body to the sd Goal whenever the same shall be required." (EJCCVa, IV, p. 322). 168
In September of the same year, the Council ruled that
"Whereas Thomas Harton has been missing for Some months past and upon information that one of the Nottoway Indians Killed him and that his Brother and a woman threw him into Mr John Simmons Mill dam and thereupon the parties accused have been committed to Gaol, and it appearing that the Woman taken up is not the Person guilty, Ordered that She be discharged out of Prison and that the Wife of the Supposed Offender be sent for in Custody in order to her tryal, and that John Simmons do drain his Mill Dam for the better discovery of the said Murder." (EJCCVa, IV, p. 331)Later that month, the Council noted that
"whereas in pursuance of the Said Order the Said Mill dam hath been drain'd and the Body of the Deceased found, It is Ordered that for a Recompence to the said Simmons for the Loss of the profitts of his Mill there be paid him the Sum of Tenn Pounds Current Money out of his Majesties Revenue and placed among the Contingent Charges of the Government." (EJCCVa, IV, p. 333).
In 1735, John Carter Keeper of the Publick Gaol, again petitioned for and received an advance on his salary
"which he shall receive from the General Assembly." (EJCCVa, IV, p. 365).
In 1736, The Council received "the humble Petition of Matthew Kemp Clerk of the General Court sting forth the great increase of his trouble occasioned of late Years by the number of Criminals brought to that Court for Trial And praying an allowance out of His Majesties Revenue in Consideration of that extraordinary service." The petition was granted, and Kemp was allowed twenty pounds sterling per year for his duties. (EJCCVa, IV, p. 375).
The Virginia Gazette of this year states that
"Last Wednesday the Criminals, who were try'd at this General Court, were brought 169 to Bar, to receive their Sentence: when James Matthews and Elizabeth Greenley both Convicts, received Sentence of Death; the Former for Horse stealing and the Latter for the Murdering of her Fellow Servant; and Six were burnt in the Hand, viz. John Freelove, William Sharp, John Strickland, James Tool, John Dunabee and Elizabeth Blair, for Felony. Simon Malpas, convicted of Felony received his Pardon in the Court, this being his first Offence and his Character favorably represented." (11/15/1736, p. 3, 1). On November 26, the Gazette reported that
"This day James Matthew and Elizabeth Greenley, who receiv'd Sentence of Death, at the last General Court,...were executed, at the usual Place near the City." (11/26/1736, p. 3, 2).
On May 27, 1737, the Gazette reported that
"This Day the Three men who receiv'd Sentence of death at the last General Court for breaking upon the House of the Rev. Mr. Mortland and robbing him of several of his Cloaths, were executed a the usual Place near this City." (5/27/1737, p. 2, 2). During the same year, Carter also apparently had a number of pirates in his custody, as in August the Council ordered
"that there be paid to Edward Daughty the Sum of Fifty Shillings Currt Money in full of his demand for Entertainment of the Martial of the Court of Vice Admiralty and his Guard in bringing Certain pirates to Williamsburgh." (EJCCVa, IV, p. 402).
In 1738, the House
"Resolved, That an Allowance of Thirty Pounds Current Money, be made to Peter Hay, for a Negro Man Slave, belonging to the Estate of William Johnson, deceased; who being committed for Felony, and thereof acquitted, by along Confinement in Prison, became so exceedingly Frost-bitten, that a Mortification ensued, whereof he died." (JHB, VI, p. 341). As the incident apparently occurred in Williamsburg, although the Negro would have been tried 170 by either the James City or York County Court, sitting as a court of Oyer and Terminer, it is likely that the Negro was confined in the public gaol, in the custody of John Carter.
Among the criminals confined under the custody of John Carter in 1739 were Samuel MacHenly who was burnt in the hand for forgery, (Rankin, 1965, p. 198) Charles Quin and David White who were hanged for whipping a slave to death
"in a most cruel and barbarous manner," (Va. Gazette, 11/3 and 11/24/1739), "John Oldham, for Manslaughter; Convicted, and burn't in the hand with a cold Iron," and
"Dorothy Ambler, for Felony; Convicted and burnt in the hand." (Va. Gazette, 12/14/1739).
In May of 1740, the House considered and rejected
"A Petition of John Carter of the Public Goal,...praying, That the Garden of the Prison may either be coarsely paled in, or that the sum of Five Pounds, or thereabouts, be allowed, to purchase Logs to fence in the said Garden." (JHB, VI, p. 408, p. 425).
John Carter died in 1741, and was replaced as Keeper of the Public Gaol by John Mundell. Mundell had previously been a tavern keeper in the city (Va. Gazette, 7/8/1737, p. 2, 3) and was a propertied gentleman, who sold three lots near the gaol to Mr. John Coke in 1740. (York County, IV, p. 610). Mundell's name first appears in the records in 1742, in
"a Petition of John Mundell, Keeper of the Public Goal, built several Houses on the Prison Lots, at his own Expence; and that his Widow insists to be paid for the said Houses by the Petitioner: And also, that the Garden belonging to the Prison, is intirely decayed: And praying, That this House will make such an Allowance as to enable him to make Satisfaction 171 for the said Houses, and inclose the said Garden." (JHB, VII, p. 35). On June 8, 1742, the House resolved
"That the Sum of 18 1. be allowed to the Widow of John Carter, deceased, for the Expence he was at, in building the said Houses: And that the Garden of the Prison be paled in, and paid for, out of the Public Money." (JHB, VII, p. 55).
In 1744, the House received
"a Petition of John Mundell, Keeper of the Public Goal, setting forth, That the Fees allowed by Law are very low, and the Price of Tobacco being very much fallen, he is unable to support himself and maintain the Prisoners, out of the Profits of his Office; and praying the Consideration of the House therein." (JHB, VII, p. 104). On October 5, 1744, the House resolved "That his Salary is not sufficient; and that he ought to have the further Allowance of Thirty Pounds, for his Care of the said Goal, from the last Session of Assembly to this Time."
Nothing is known of the prisoners John Mundell had in his custody during his tenure, with two exceptions. There was the negro mentioned in
"A Petition of Thomas Dudley, setting forth, That he took up a Negro belonging to Margaret Moore, of Maryland, who was committed to Middlesex Goal and from thence removed to the Country Goal: That John Mundell, late Goaler, sold the Said Negroe, and never paid him the Allowance for taking him up; and praying that the same may be deducted out of the Tobacco now to be levied for the said Mundell." (JHB, VII, p. 169). On March 6, 1745, two days after the petition was acknowledged, the House resolved
"That the Allegations of the said Petition are true; and that he ought to be paid out of the Tobacco to be levied for the Administrator of the said Mundell for his Fees now due." (JHB, VII, p 174). Thus, 172 sometime within a six-month period before this petition was filed John Mundell had died. Furthermore, at the same session of the Assembly, the House considered "A Petition of John Blair, Esq:...setting forth, That in 1740, John Mundell, deceased, assigned an Account to him of Four Pounds Six Shillings and Three Pence, due for Maintenance of the Indians, which being mislaid, was not presented to either of the Two last Assemblies; and praying the Consideration of the House therein." The decision was to reject this petition (JHB, VII, p. 187), but from this we at least learn that Mundell also had Indians in custody.
At the same session of the House, it was noted that
"On Consideration of the Petition of William Wyatt, setting forth, That this House did allow an additional salary to John Mundell, late Keeper of the Publick Goal, in Consideration of the Lowness of his Fees, and for the better keeping his Prisoners; and praying that he may be allowed the same, he being Keeper of the said Gaol; Resolved, That he ought to have the further Allowance of Ten Pounds Current Money, for his Care of the said Goal, from the Time he became Keeper thereof until now." (JHB, VII, p. 174). Wyatt had been a moderately affluent merchant or tailor before accepting this post for in 1737 he placed the following advertisement in the Gazette:
"April 8, 1737. Any Journey-man Taylors that want Emploiment, May meet with Encouragement from the said William Wyatt; or if any one has a Servants' Time of that Business to dispose of, he will buy it on reasonable terms. Ran away about the latter End of last Summer, from the Subscriber, living in Williamsburg, a Servant Man, named Robert Croson, a Taylor, born in Virginia..." (4/8/1737, p. 3, 1). 173
In 1748 the Assembly passed An Act concerning the public Prisons, and directing the method of appointing the Keeper thereof, (Hening, VI, pp. 135-136) which reiterated earlier provisions concerning the arrangement of the criminals' gaol and the debtor's gaol. The act also provided "That the governor or commander in chief of this dominion, for the time being, shall be, and is hereby authorised and impowered to nominate and appoint, from time to time, some fit and able person, to be keeper of the said public prisons; but the person so appointed shall, within one month after his appointment, and in some court of record, enter into bond, with sufficient security to the king, his heirs and successors, in the sum of five hundred pounds current money, for the due execution of his office."
That same year
"Mr Attorney presented to the House, and Account of William Wyat, Keeper of the Public Gaol, of extraordinary Expences for sick Prisoners, and other Services; and the same was received and read." (JHB, VII, p. 304). The House
"Resolved, That the said William Wyatt ought to be allowed the Sum of Seven Pounds Five Shillings, for his extraordinary Expences for sick Prisoners, in the said Account mentioned; and that the Services and the Articles in the said Account for guarding the Prison, and putting John Flannagan on board the Man of War, ought to be rejected, being no Public Charge." (JHB, VII, p. 309). The same day that this account was dealt with
"A Petition of William Wyatt, Keeper of the Public Gaol, was presented to the House,...That the fees Established by Law for keeping of the Publick Goal, are very small; and the Times that such Fees become due and payable, are uncertain: That for some Years past Corn and Provisions of all Kinds have been very dear, occasion'd by the great Droughts: That the dearness of Wood, added 174 to other extraordinary Expences, makes it extremely difficult for the Petitioner to support himself and Family: That he is obliged, for Want of the Tobacco due to him, which is not paid him oftener than once in Two Years, to purchase his Provisions and Wood upon Credit, at a certain Interest; and that he is very often sued on his Contracts and thereby put to great Expences: That after the Capitol was burnt, the Papers and Records were put under his Care: That the Room they took up in his House obliged him for some Time, to board out two of his Children: And praying, That this House will take his Case into their Consideration, and give him such Relief as they shall think fit." (JHB, VII, p. 310). In response to this petition, the House
"Resolved, That the Sum of 41 1. 5 s. be paid to the said William Wyat, as a further Allowance for his Expence in supporting the Prisoners: the fees allowed him by Law not being sufficient." (JHB, VII, p. 313).
Finally, in 1748, there is a note that the Receiver General paid 1048: 6: 3 for the
"Expence of Maintaining & sending home sundry Prisoners of War." (Research, p. 86).
In 1749, William Wyatt died and was replaced, on March 23, 1749, by John Lane, who subsequently petitioned that
"the additional Salary of £ 15. per Annum, allowed the late Keeper of the Goal, in Consideration of the Lowness of his Fees, may be continued to the Petitioner." (JHB, VIII, p. 37).
In January, 1751, the Gazette reported that
"On Friday last James McGuire for Murder, and William Simmons for Robery, (Suppos'd an Accomplice in the Murder of Col. Presley) were executed in this city. They both behaved penitently, and confess'd the Fact for which they died. John Gray for Horse-stealing, and John Spenster, 175 alias Dowdy, for Store breaking, are pardoned." (1/24/1751, p. 4, 1). The same story contained the information that the lunatic George Kier had been brought to the gaol, following a murder. In May of that year
"Lowe Jackson, for Coining and Counterfeiting Double Double-loons, and John Hill, alias Seale, for Horse-Stealing, were sentenced to die. Thomas Smith for manslaughter, John Ashwell, John Birk, and Joseph Markham for felony, were burnt in the hand." (Va. Gazette, 5/9/1751, p. 3, 2 &3). Finally, in October of 1751,
"Robert Howles, from Hanover, for Breaking Goal, imprisoned one year." (Va. Gazette, 10/17/1751, p. 3, 1).
Included among the criminals Lane had in custody in 1752 were John Sparks, convicted of murder and hanged with dispatch after a gaol-break, who
"confessed himself guilty of Murder, but entirely acquitted James Trotman, who was sentenced with him at the same time, and whose Execution is respited," (Va. Gazette, 7/3/1752, p. 3, 1); the pickpocket, John Glifton; and Alexander Gauling, convicted of highway robbery. (Va. Gazette, 12/15/1752, p. 3, 1). Furthermore, the following advertisement was placed in the Virginia Gazette:
"Williamsburg, August 7, 1752. Now in the Publick Goal of this City, a Negro Man Slave, who answers to the Name of Pompey; he was taken up and confined in King George County Goal the Time Limitted by Law, and from thence transmitted hither; he cannot speak English well, or tell his name, but says he belongs to some of the Col. Burwelt's; the Tops of four of his Toes on the right Foot, and three on the left are off, by being Frostbitten. The owner may have him on paying charges to John Lane, K. P. G." (8/7/1752, p. 3, 2).
Lane did not hold his position long. After his resignation as Keeper of the Public Gaol, Lane went on to become City Sergeant, for 176 following his death, the following advertisement was placed in the Gazette: "July 23, 1772. It is requested that all Persons who have any Claim against the Estate of Mr. John Lane, deceased, will immediately make them known to Mr. John Prentis, that they may be adjusted, as well such Debts as his Estate may be liable for during his continuance in the Office of Serjeant of the City as on His own Private Account. As I shall not think myself answerable for any Claims after April next, I hope those concerned will not fail to render their Accounts. JAMES HOLDCROFT."
In 1753 the House received
"A Petition of Thomas Penman, Keeper of the Public Goal, praying an Addition to his Salary, that he may be enabled to maintain the Prisoners confined in the said Prison, in a clean and wholesome Manner." (JHB, VIII, p. 112). After consideration, the House
"Resolved, That it is the Opinion of this Committee, That he ought to be allowed the additional Sum of 15 £ to be paid every Year, over and above his usual Salary of 25 £ ...That he ought to be allowed the Sum of 11 £ 5 s. for his additional Salary from the third Day of January last past, to the third of this Instant...That it is the Opinion of this Committee, That there ought to be allowed to the Keeper of the Public Goal, Ten Pounds of Tobacco, per Day, for every Criminal committed to the said Goal, during such Criminal's Imprisonment." (JHB, VIII, p. 137).
Among others, in 1754 Penman had in his custody William Sherring, who received the death sentence for sacrilege. (Rankin, 1965, p. 143). He also received a further extension of his increase in salary and fees. (JHB, VIII, p. 218).
In 1755, the criminals housed in the gaol included the following who were convicted by the General Court in April:
"John Turner 177 for Murder, Death. Judith Bird, for Felony, burnt in the hand. Mary Murray, alias Clark, alias Atkins, her former sentence of Death ordered to be put in Execution. John Frazer & William Thompson, burnt in the hand." (Va. Gazette, 5/9/1755, p. 2, 1). At the October Court, those tried included: ten tried for felony of whom two were convicted by the oaths of at least two witnesses; three for murder, of whom one was convicted, one was discharged, and one was convicted of manslaughter; and one tried and discharged for rape. (Va. Gazette, 10/24/1755, p. 2, 1). Of those convicted by this court, four received the death penalty and four were burnt in the hand. (Va. Gazette, p. 2, 1 & 2).
In 1759, the House considered and rejected
"a Petition of Thomas Penman, Keeper of the public Goal, setting forth, That the Lots thereto belonging being at present open and uninclosed, leaves the said Prison too much exposed to the Attempts of those who may Design to rescue the Criminals therein confined, and praying that this House will direct the said Lots to be enclosed at the public Expence." (JHB, IX, p. 86, p. 102).
One criminal in custody this year is mentioned in the following Gazette report:
"This Day Caesar Valentine, a free Negro, who was condemned at the last General-court for Felony, was executed at the Gallows near this city, pursuant to his Sentence." (11/30/1759, p. 3, 1).
Penman died late in 1759, and
"A Petition of Samuel Galt appointed Keeper of the publick Goal, in the Room of Thomas Penman, deceased, praying that the Salary usually allowed the said Penman, for maintaining the Prisoners committed to the said Goal, may be allowed 178 the Petitioner from the Time of his Appointment to that Office, was presented to the House and read." (JHB, IX, p. 144). This petition was approved. Samuel Galt apparently only held office for a short time, as in 1761 the House received
"A Petition of James Galt, Keeper of the publick Gaol, praying that the usual Salary for the Maintenance of Criminals committed to the said Gaol, which will expire at the End of this Session of Assembly, may be continued." (JHB, X, p. 20). This petition was likewise approved.
In 1763, the Gazette reported the following sentences given to criminals:
"Rueben Gildard, from Prince-William, for felony: death. Haynes White, from Orange, for Felony: death. Peter Glasgow, from Orange for Felony, death. John Sims, from Chesterfield, for Manslaughter: burnt in the hand, John Dixon, from Stafford, for Felony, death. Ruffel Wilson (alias Macdaniel) from Essex, for Felony: death. Charles Whitaker, from Orange, for Felony: death. Reason Young, from Fauquier, for Felony: death." (11/4/1763, p. 2, 1).
In 1764, the House considered and rejected
"A Petition of John Bell, praying to be allowed by the Publick for several Years Attendance to shackle and handcuff the Criminals committed to the Publick Gaol, taking off their Irons when carried up to their Trials, or otherwise discharged, for which he hath never received any Satisfaction." (JHB, X, p 273).
That winter the House ordered
"That Mr Archibald Cary, Mr Richard Lee, and Mr Tabb, do go to the Publick Gaol of this City, and examine into the Defects and Decays, and what necessary Repairs ought to be made thereto and that they report them to the House." (JHB, X, p. 282). As this committee "found the same much out of Repair," the House ordered that it be repaired. (JHB, X, p. 305). 179 In the Spring of 1765,
"An Account of Benjamin Powell for repairing the Publick Gaol, was presented to the House and read. Resolved, That he be paid the Sum of £ 388. 13,8 Halfpeny, for repairing the Public Gaol." (JHB, X, p. 337).
That same spring,
"A Petition of Thomas Bailey, of the County of Hanover, setting forth that as Shadrach Vaughan, Under Sheriff of the County of Henrico, was removing a Prisoner to the Publick Goal he impressed a valuable Mare of the Petitioner; and the said Vaughan, without giving the Petitioner Notice, got the said Mare appraised, by Persons who knew nothing of her Quality, to six Pounds, whereas the Mare was then worth a much greater Sum; and praying the Consideration of this House, was presented and read." (JHB, X, p. 331). Consideration of this petition was put off until a later date.
In April, 1766, Elinor Morgan was convicted of horse stealing, and Robert Smith of
"a misdemeanor; fined 10 s. and one month's imprisonment." (Va. Gazette, PD, 4/18/1766, p. 3, 1). That June, George Boe was convicted of a misdemeanor and sentenced
"To lie in prison three months, and pay 40s." (Va. Gazette, PD, 6/13/1766, p. 2, 1). And in October, the Gazette reported the following disposition of cases:
"Thomas Gill, from King and Queen, for felony. Acquitted. David Glendining, from Princess Anne, for do. Guilty. Issac Roberts, from Fauquier, for do. Acquitted. James Johnson, from Augusta, for do. Guilty. Keziah Ogletree, from Charlotte, for murder. Acquitted. John M'Neal, from Norfolk, for felony. Acquitted. Philip Hoffman, and John Colmand, from Hampshire, for felony. Convicted. Honor Fury, from Westmoreland, for do. Acquitted. John Butler, Jun. of Nasemond, accused of felony, which was made up, 180 and the Criminal discharged. William Singleton and Christopher Singleton, of Brunswick, for felony. Made their escape." (PD, 10/17/1766, p. 3, 1).
At some point in 1766, Edward Westmore became Keeper of the Public Gaol, for in December of that year the House received and rejected his petition that the £ 15 additional salary granted his predecesors be continued to him. (JHB, XI, p. 62).
Criminals in custody in 1767 included James Shaw for rape, (Va. Gazette, PD, 5/7/1767, p. 3, 1) Martha Sharp for the murder of her bastard child (Va. Gazette, PD, 6/11/1767, p. 2, 2), William Connelly for highway robbery and James Golding for passing bad money. (Va. Gazette, PD, 11/12/1767, p. 2, 1). The Gazette reports of court trials during that year also include five tried for felony of whom two were acquitted, two received the death penalty, and one was burnt in the hand; and two for horse stealing who both received the death penalty. (PD, 6/11/1767, p. 2, 2; 11/12/1767, p. 2, 1.). Finally, in the reports of the December trials, the Gazette included:
"Mary Dalton, from York, and Sarah Gibbs, from James City, for a misdemeanor twelve months imprisonment, and a fine of twenty pounds each." (PD, 12/10/1767, p. 3, 1).
One further prisoner in the gaol was mentioned when, in April of 1767, the House
"Ordered, That the Serjeant of this House do immediately go with the Mace while the House is sitting, to the public Gaol, and bring the said Pride from thence to the Bar of this House, in Order to receive a Reprimand from the Speaker; being brought to the Bar he was Reprimanded by the Speaker accordingly. On a Motion made, Ordered, That the Serjeant do, with the Mace, return the Pride to the public Gaoler, and give him Directions to keep the said Pride 181 in close Confinement, without the Use of Pen, Ink, or Paper; and that he be fed on Bread only, and allowed no Strong Liquor whatsoever." (JHB, XI, pp. 120-121). A charge was later made that Westmore had violated these orders, but he was cleared. (JHB, XI, p. 143, p. 150).
"A petition of Edward Westmore Keeper of the public Gaol was presented to the House and read, setting forth that the Garden of the public Gaol, whereof he is keeper, is in a ruinous Condition and praying that the same may be repaired to the end that he may be able to make a more comfortable Provision for the poor Prisoners." (JHB, XI, p. 159). After investigation, the House agreed that "the said Petition is reasonable," and ordered the Garden repaired. (JHB, XI, p. 171.)
Prisoners confined in the public gaol in 1768 included seven who were tried and found guilty of felony, five of whom received the death penalty and two who were granted clergy. (Va. Gazette, PD, 6/16/1768, p. 2, 3; 12/15/1768, p. 2, 3). Thomas Arthurnot Grayland, the Williamsburg burglar who received the death penalty, and "Moses Cornelius, from Charlotte, for felony, recommitted," were also among the criminals that year. (Va. Gazette, PD, 6/16/1768, p. 2, 3). Finally, 1768 was the year in which four prisoners escaped from the Gaol and were retaken after one of them was
"well peppered about the legs with small shot." (Va. Gazette, Rind, 8/25/1768, p. 3, 1).
"A Petition of Anthony Street, Deputy Sheriff of Lunenburg County, was presented to the House and read; setting forth, that in November last, he provided an Horse, worth Eight Pounds, for conveying to the Public Gaol Peter Brown, who was charged with Felony, and ordered by the Court of the said County to be tried before the 182 Court of Oyer and Terminer; and that the said Horse died travelling with the Prisoner to Williamsburg; and that the Petitioner expended Seven shillings and Six Pence in supporting the Prisoner during his Journey; and praying to be allowed the Value of his said Horse, and his said Expences." (JHB, XI, pp. 234-235). This petition was rejected, (JHB, XI, p. 239).
That same year,
"A Petition of Edward Westmore, Keeper of the Public Gaol, was presented to the House, and read; setting forth the Dearness of Provisions: and praying to be allowed the Additional Salary of Fifteen Pounds, which his Predecessors had enjoyed." (JHB, XI, p. 267). This time the House granted the petition. (JHB, XI, p. 283).
The criminals tried during 1769 included: twenty for felony, of whom eleven were convicted; one convicted of murder; one charged with murder and convicted of manslaughter; and one discharged of a misdemeanor. (Va. Gazette, PD, 4/20/1769, p. 2, 2; 11/9/1769, p. 2, 2; 12/14/1769, p. 2, 2). Among those convicted of felony was John Darby, or Derby Finn, the pickpocket. Four lunatics, who were later transferred to the hospital in Philadelphia, were also confined to the gaol in 1769. (JHB, XI, pp. 304-305).
Prisoners held in the gaol in 1770 included: "David and Richard Holt, from Amelia, for Murder, acquitted...Robert Pinn, from Richmond County, for felony, guilty of grand larceny,--Richard Bradcott, from Amherst, for felony, acquitted.--John Hamilton, from Frederick, for Murder, guilty,--James Powell, from Amherst, for felony, acquitted.-Mark Edwards, from Chesterfield, for Murder, acquitted," David Ferguson, tried both in the colony and in England for murder of his negro boy and several crewmen, and Samuel Burns who was convicted of 183 gouging. (Va. Gazette, Rind, 4/19/1770, p. 2, 3; PD, 10/25/1770, p. 2, 2).
Edward Westmore apparently resigned his position as Keeper of the Public Gaol as of January 1, 1771, for on that date a deed for the sale of his household furnishing from his quarters in the gaol was recorded in York County. (Deed Book 8, p. 141). Westmore was replaced by Peter Pelham, whose petition "that the usual Salary of forty Pounds per Annum may be continued," was read and approved by the House that July. (JHB, XII, p. 130). The new gaoler was a man with a large family who supplemented his income as gaoler by serving as th4e organist at Bruton parish and by giving piano lessons to young ladies.
The trials of twenty-five criminals were reported by the Virginia Gazette during Pelham's first year as gaoler. This number included: four tried for murder, of whom one was convicted, one was convicted of manslaughter, and two were acquitted, one of child murder; one tried and found guilty of burglary; two acquitted of charges of horse stealing; twelve tried for felony, of whom five were convicted; two tried for grand larceny, of whom one was convicted; one tried for petty larceny and burnt in the hand; one tried for forgery, whipped and discharged; and two found guilty of misdemeanors, who were fined and imprisoned. (PD, 4/18/1771, p. 3, 1; PD, 6/13/1771, p. 2, 3; PD, 10/17/1771, p. 2, 2; PD, 12/12/1771, p. 3, 1). The forger tried this year was Mills Mansfield, previously mentioned in this connection. It is also probable that Pelham had several runaways in his gaol from time to time throughout the year.
In 1772, the Assembly passed two acts of importance to the Keeper of the Public Gaol. The first of these was An act for 184 regulating the allowances to the keeper of the public prison for the maintenance of poor prisoners for debt, and for other purposes therein mentioned. (Hening, VIII, pp. 528-529). This provided that in the case of a prisoner for debt who was too poor to pay his own fees, these fees "for the first twenty days, be paid by the public, and levied on the creditor, and that such allowance, for such poor prisoners, shall be one shilling and six pence per day." It also provided that "the keeper of the said public gaol shall also be entitled to receive one shilling per day for the keeping every runaway servant or slave, committed to the said gaol,...And...That the treasurer of this colony, for the time being, shall advance and pay to the said gaoler, out of the public money in his hands, by warrant from the governor...the sum of one hundred pounds, at four equal payments, to be deducted out of the tobacco that shall be levied for the said gaoler in the book of claims." This last provision was to cover prisoners fees, to make their maintenance easier for the gaoler. The debt provisions undoubtedly served to reduce the number of debtors brought into the gaol at all. The second act was An act for making an addition to the house appropriated to the use of the public gaoler, (Hening, VIII, p. 662). Having pointed out that "the house appropriated to the use of the keeper of the public gaol of this colony is too small and inconvenient," the act provided "That an additional building be made to the said house, to consist of brick walls, and a shingled roof, not exceeding thirty one feet in length, and of the height and width of the old house, to be laid off and erected in such manner as to the commissioners herein mentioned, or any two or more of them, shall appear most convenient....That Robert Carter Nicholas, John Blair, and John Tazewell, esquires, 185 shall be, and they are hereby authorized and impowered to agree for and contract with such person or persons as may be willing to undertake and complete the same."
Criminals confined in the gaol during 1772 included: Peter Gossegon for negro stealing and Richard Thompson for horse stealing, both found guilty but pardoned;
"Joseph Nix, from Mecklenberg, for burning Prison, and Moses Moss, from Pittsylvania, for Murder,... acquitted." (Va. Gazette, PD, 6/11/1772, p. 3, 1)In October of that year, the Gazette reported eleven prisoners brought to trial: one found guilty of murder; three tried for horse stealing, of whom one was convicted, and one was acquitted by the grand jury, before even facing the General Court; six for grand larceny, of whom three were convicted; and one convicted of burglary. (PD, 10/22/1772, p. 2, 1). In December, Nathan Philips, a lunatic, was remanded to gaol, and Issac Freeland was convicted of horse stealing. (Va. Gazette, PD, 12/10/1772, p. 2, 3). During this year, the following advertisement appeared in the Gazette:
(September 24, 1772. Committed to the publick jail from James City County prison, a runaway woman named Molly, who says she belongs to Charles Budd, of Charles City County. She is five feet two inches high and appears to be about forty years old, has a prominent nose, and by her complexion would pass for one of the Indian race. Her owner is desired to apply for her, prove his property and pay charges. PETER PELHAM." (PD, 9/24/1772, p. 2, 3).
Construction of the addition to the keeper's house appears to have started in 1773, along with repairs to the gaol, and the capitol, for in that year Benjamin Powell submitted his accounts to
"The Countrey for Capitol Offis & Prison." (Research, 1934, p. 123-a). 186
1773 was a busy year for Peter Pelham. The Gazette reported the following cases tried in April:
"John Chapman, from Halifax, for Grand Larceny: acquitted. John Dugad, from Caroline, for Bigamy: acquitted. William Strange, from Stafford, for Horsestealing: acquitted. James Hill, from Fairfax, for Horsestealing: acquitted by the Grand Jury. William Nickens, from Lancaster, for Burglary: acquitted by the Grand Jury. Leonard Burnett, from Essex, for the murder of a Negro: acquitted. Benjamin Cook Benjamin Wood, Joseph Cook and Peter Medley, from Pittsylvania, for Counterfeiting gold and Silver Coins, and passing Counter feit Treasury notes: Acquitted...Moses Terry, from Halifax, for passing Counterfeits: plead Guilty, and pardoned. Peter Sidebottom, from Stafford, for horse stealing: Guilty. Mary Murphy, from Augusta, for Grand Larceny: Guilty. Edward Brown, from Charles City, for Grand Larceny: Guilty. Elizabeth Musgrove, from James City, for Murder: Guilty." (PD, 6/22/1773, p. 3, 1). This Counterfeiting trial was the one which nearly resulted in John Short's trial for perjury. Among the trials reported by the Gazette in June was that of Robert Cook who was acquitted of murder charges, but remanded to gaol to post security. (PD, 6/10/1773, p. 2, 1). In July the Gazette reported that
"William Childrey, Joseph Berry, and James Revel, were executed near this city, on Friday last, pursuant to the sentence. Their behavior at the place of execution was remarkable pious; and they approached their fate with amazing fortitude and resignation." (Rind, 7/15/1773, p. 3, 2). In December, two were tried and convicted of burglary, and one for a misdemeanor. (Va. Gazette, PD, 12/16/1773, p. 2, 2). In addition to all these, Pelham again had runaways in custody. (Va. Gazette, PD, 6/8/1773, p. 3, 3). 187
In 1774, Peter Pelham suffered the first of several escapes which were to happen while he was keeper of the public gaol. Notice of this escape was printed in the Gazette, as follows:
"York County, to Wit. Whereas Peter Pelham hath informed me, one of his majesty's justices for the County aforesaid, that John Gordon, William Moore, and Christopher WiseCarver, who were committed on suspicion of Felony, did on the night of the 24th instant, break out of and make their escape from the Public Gaol, I have therefore thought fit to issue this Warrant, hereby, in his majesty's name, strictly commanding all sheriffs, constables, and other his majesty's liege subjects, to make diligent search and pursuit after the said felons, and them, or either of them, having found, to convey them to the Keeper of the Public Gaol." (Rind, 4/4/1774, p., 3, 3). Pelham was also responsible for the murderess, Catharine Peppers, and
"Richard Brack, from, James City for forgery; guilty; to stand in the pillory one hour, his right ear to be cut off the second Tuesday in December next, and to be imprisoned one whole year." (Va. Gazette, 4/21/1774, p. 2, 3; Pi, 10/20/1774, p. 2, 3). In June of that year, the Gazette reported the following trials:
"James Daniel, from Halifax, for Horsestealing, and William Dalton, from Williamsburg, for Grand Larceny: acquitted by the Grand Jury. Josiah Blankinship, from Amelia, William Person, from Southampton, for Grand Larceny, and John Lowe, from Fairfax, for Manslaughter, Burnt in the hand." (PD, 6/16/1774, p. 2, 1). This was not the last time Josiah Blankinship was to appear in General Court. Pelham had difficulty finding the owner of one runaway during this year, for he placed the following advertisement in the
Gazette; "Williamsburg, September 29, 1774. COMMITTED TO THE PUBLIC JAIL, ON the 3d Instant, a Negro Man named CHARLES, who told me he belonged to 188 Doctor Corbin Griffin of York, which I have repeatedly notified to the Doctor; but no Application having been made from him for the said Fellow, it is probably he has told me a Falsity, From his own story he was lately the property of Mr. James Pride, from whom Dr. Griffin received him last February, and kept him in Possession til the July following, at which Time he eloped. He is about 25 Years old, five feet nine inches high, slim made, well dressed, and fit to act in the capacity of a waiting man. His owner is desired to take him away, and pay charges. PETER PELHAM." (PD, 9/29/1774, p. 3, 3).
1775 was the year in which James Carter, accused of horse stealing, died in Gaol, and Pelham ran an advertisement in the Gazette to notify the witnesses and jurymen from his county that they need not attend the General Court. (Pi, 3/30/1775, p. 3, 2). In June, the Gazette reports of trials included:
"John Martin, from Cumberland, for forging tobacco notes-guilty: Death. Henry Markell, from Cumberland, for forging tobacco notes: acquitted, but ordered to be sent to Hillsborough, in North Carolina, being suspected of some felonious practices in that colony." (Pi, 6/15/1775, p. 2, 2).
Events connected with the Revolution dominated 1776. In April, the Auditors Papers note:
"Paid Peter Pelham for his care and Support of sundry Prisoners taken by the Virginia Troops.---£ 168: 1: 1." (Va. State Archives, 1776). These perhaps included the Royalist Mr. Goodrich, and a Mr. Blair, mentioned in the Memoirs of Josias Rogers, Esq., who were already in the gaol when Rogers himself arrived there on May 9. (Research, 1934, p. 126). In August, the Council "Ordered that A Warrant to Peter Pelham Keeper of the Public Jail for Two hundred and thirty seven pounds Eleven Shillings and Six Pence for the maintenance of sundry prisoners" be paid. (JCSVa, 189 I, p. 129). Judging from the size of the accounts paid to Mr. Pelham, his gaol must have been full. The next month the Council "Ordered, that the Keeper of the Publick Jail, do permit John Carmont, a sick prisoner in his custody to remove to the Publick Hospital, there to remain until he may recover his health." (JCSVa, I, p. 162). Furthermore, in August of that year the Negro boy named James, who wore an iron collar inscribed "G. Thomas" escaped the gaol. (Va. Gazette, Pi, 8/23/1776, p. 3, 2).
The Revolution appears to have interfered with the functioning of the courts, for on November 4, the House of Delegates considered
"a petition of sundry prisoners confined in the public jail, setting forth, that several of them, who have wives and families, have been for a long time imprisoned, and finding no method has yet been adopted for their trial, are under great apprehensions of suffereing for want of necessary clothes during the inclemency of the approaching season, and praying such relief as this House shall judge reasonable." (JHD, I, p. 39). As a result, the House resolved, on November 7,
"That the petition of the prisoners now in the publick jail, praying that some mode may adopted for bringing them to a speedy trial, and that in the mean time the petitioners may be furnished with clothing and blankets, is reasonable." (JHD, I, p. 45). Finally, a bill for appointing courts of Oyer and Terminer to try these prisoners was passed later that same month. (JHD, I, p. 62). These trials had apparently taken place by February of the following year, for at that time the Council
"Ordered that Pardons be made out for all the Prisoners in the public Jail under sentence of death except Mecum, they having been recommended to his Excellency the Governor &Council as Objects of mercy." (JCSVa, I, p. 331). 190
Meanwhile, the escapes from Pelhams' gaol were drawing censure from many, and on December 20, 1776,
"Pursuant to a Resolution of the General Assembly, It is Ordered that Joseph Prentis, John Minson Galt and James Southall Esquires be appointed to enquire into the Conduct of the Keepr of the Public Goal and report to this Board their Opinion thereof." (JCSVa, I, p. 293).
The greatest number of prisoners confined in the gaol in 1777, were somehow connected with the war. They included Duncan McCarter, a suspected spy, who was taken up in April and escaped within weeks, (JCSVa, I, p 391: Va. Gazette, P, 5/2/1777, p. 1, 2), and the two Tories and four deserters from the Continental Army who escaped in May. (Va. Gazette, P, 5/25/1777, p. 3, 1). A part of this increase may be explained by the Council note that
"The Guardhouse having been represented to this board as insufficient for the securing of sundry deserteres and prisoners, It is Ordered that the Commanding Officer at this station be permitted to make use off the public jail as a place of security; and the Keeper of the said Jail is hereby ordered to receive any such prisoners or deserters as the said Commanding Officer may think proper to send him." (JCSVa., I, p. 391). Pelham's prisoners also included several Negroes during part of 1777 for in May of that year the House received
"A memorial of Charles Lynch...setting forth, that in May of 1776, this House ordered the negroes then in the public jail to be delivered to him for the purpose of make saltpetre, and that he should receive any sum of money out of the public treasury not exceeding 500 l. which, together with a reasonable hire of the negroes, he was to pay in gunpowder at 6s. per pound; that he now hath a sufficient quantity of saltpetre, which will soon be manufactured into gunpowder, and 191 is desirous to know what the hire of the negroes is to be, and also what further quantity will be taken of him, as he can have it ready." (JHD, II, p. 31).
Deserters and prisoners of war were not the only ones confined in the gaol in 1777 however, for in April the Gazette reported trials for twenty-four criminals with the following results: five for manslaughter of whom three were acquitted and two received benefit of clergy; two for burglary, both acquitted; six for grand larceny, of whom five were acquitted and one was burnt in the hand; six for murder, of whom three received the death sentence and three were acquitted; one for horse stealing and one for sheep stealing, both acquitted; two acquitted of charges of "deceite"; and one sentenced to death for forgery. (P, 4/18/1777, sup., p. 1, 1).
The committee appointed to investigate the conduct of Mr. Pelham reported their results in June of 1777, as follows:
"It appears to your committee, from the testimony of Capt. John Morton, that having once an order to take prisoner out of the public jail, he came to the prison, and presenting it, a son of Mr. Pelham's directed a negro to take the keys and fetch the prisoner; that there were at that time other prisoners in confinement, and that a son of Mr. Pelham's was in the outer room...From the information of Mr. Strother (one of the committee) that on Sunday se'nnight, last, sometime before sunset, he came to the public jail, in company with the treasurer, and some other gentlemen, when sending a desire admittance to see a prisoner there, they were informed by the messenger (a little boy) he would be glad they would defer seeing him that day, and come some other time; but they desiring to be then admitted, the boy returned, brought the keys, and they were accordingly let in...From the information 192 of Mr. Riddick, (one other of the committee) that on Sunday night last, he brought a prisoner to the jail, and that it was near an hour before Mr. Pelham would get up to give him admittance, and that when he did come, he appeared to be much disguised with liquor.... From the testimony of Mr. Benjamin Powell, that whenever any thing was wanting to render the prison more secure, he had always been applied to by Mr. Pelham; that...the jail is now as secure as it has been these fifteen years past,...that he has frequently...been in the said prison...before as well as since Mr. Pelham became jailer, and never discovered any deficiency in his management, or a negro employed or entrusted with the keys; that he has often been early in the morning to the prison, but never could obtain admittance but when Mr. Pelham was present... That he never saw him disguised with liquor in his own house, though sometimes, as other men, cheerful when abroad, and in company. That he thought him always particularly careful in examining if the prisoners had any instruments about them. And that he is farther of opinion that the number of people in and about the prison afford at this time a much greater opportunity of conveying in instruments for the use of those confined than formerly...From the testimony of Mr. Thomas Russel, that he lived with Mr. Pelham, as an assistant in the jail, near seven months, during which Mr. Pelham was as diligent as any man. The prisoners were well treated. That Mr. Pelham was always cautious in giving directions to the deponent. That in his time there were no escapes, and that he never saw him in liquor while he stayed...From the testimony of Mr. James Galt, that the deponent was once jailor himself, and thinks it impossible at time to prevent escapes...From the testimony of Dr. Galt, that he has long been acquainted with Mr. Pelham, and has 193 frequently attended as a surgeon at the jail. That Mr. Pelham's conduct has always been careful...From the testimony of Mr. James Geddy, that he has had a long intimate acquaintance with Mr. Pelham, and can vouch for his humanity and sobriety. That he thinks the great number of prisoners these times afford offer sufficient reason for more frequent escapes than usual, and that he does not believe they have been more, in proportion to the number of prisoners, than in former times...From the information of Mr. Joseph Prentis, that he also was one of the number appointed with Mr. Southall for inquiring into Mr. Pelham's conduct. That they found the prisoners well pleased with their treatment, and that they looked very well. Your committee likewise find, in the course of their inquiry, that one Littleton Ward, a prisoner confined as an enemy to this country, is too much at large in the said jail, which may be attended, among other bad consequences, with his using the opportunity of supplying such others, as are more closely confined, with the instruments and means of procuring their escape." (JHD, II, pp. 100-101). After weighing the evidence, the House rejected a proposed resolution that Peter Pelham be discharged
"for his want of care." (JHD, II, p. 101).
In 1778, the Assembly passed an act providing that "the governour, with the advice of the council, shall have the direction of the publick jail, and he is hereby empowered,...to order and direct such allowance to be made for the maintenance of the prisoners confined there, and to fix what shall be paid to the keeper thereof for his trouble, as the said governour, with the advice aforesaid, shall think reasonable," (Hening, IX, p. 478).194
In October of 1778, the Gazette reported that
"At a General Court, begun and held at the Capitol the 10th instant, the following Criminals were condemned to suffer death: Charles Bowman, from Prince George, for murder; John Lowry, from Bedford, for ditto; John Reizer, from Shanando, for ditto; Josiah Phillips, James Hodges, Robert Hodges, and Henry M'Clalen, from Princess Anne, for robbery; John Highwarden, from Fauquier, for grand larceny; Joseph Turner, alias Joseph Blankinshop, from Albermarle, for burglary; and James Randolph, from Culpepper, for horse stealing." (DHN, 10/30/1778, p. 3, 1). This J. Blankinship as convicted of Grand Larceny in 1774 and received clergy. In November of that year, the House
"Resolved, that it is the opinion of this committee, That the petition of John Boram, William Robertson and Frederick Moss; praying to be allowed for the use of their horses, which were impressed for the purpose of conveying Thomas Potter, Randolph Boush and Robert Williamson, criminals from the jail of the county of Halifax to the public jail, is reasonable." (JHD, II, p. 48).
The most notable prisoners confined to the gaol in 1779 were Henry Hamilton and two of his senior officers, Philip Dejean and William Lamothe, who first arrived on June 13 of that year, and remained until July of the following year. There was apparently considerable sickness in the gaol that winter, for the Account Book records and allowance
"To Dr. Wm. Carter for his attendance, Medicines &c furnished to the public jail." (III, Archives, p. 178).
In 1780, the House
"Resolved, that it is the opinion of this committee, That the petition of Harry Terrell, setting forth, that in the month of September last, he received orders from the commanding officer of Bedford county to summon a guard for the purpose of 195 conveying to the public jail, a number of men on suspicion of treason; that he accordingly summoned a guard of eight men for the purpose aforesaid, and delivered the said suspected persons into the custody of the keeper of the public jail at this place; that the auditors of public accounts, would only allow him and the persons who attended him as a guard, the sum of one shilling and four pence per day, each while on the said service; and praying a farther allowance, be rejected." (JHD, II, p. 60). Thus, the publick gaol ended its history as an institution serving the colony and the early state government on a note of financial stress, quite possibly brought on by the exigencies of war. 196
In 1780 the capital of Virginia was moved to Richmond, necessitating the construction of a new General Court Prison. This building was apparently ready for use in 1781, for in that year the Account Book shows the following entries:
"May 13, 1781 - Wm. Rose, expenses in moving criminals from Williamsburg to Richmond. Nov. 22, 1781 - To James Rowsay for the same." (Account Book #6, p. 519).
The publick gaol in Williamsburg was at this time taken over by the City of Williamsburg and in the following years there are several notations of "The Corporation of Williamsburg" paying for "Repairing larthing & plastering 2 Rooms...at Prison," and for
"repairing Prison wall, Vaults &c." (Research, 1934, p. 159).
In 1784, the House of Delegates received
"The Petition of the Justices of the County ;of James City humbly sheweth that the public Jail in the City of Williamsburg is at present not made use of by any but the Corporation of the said city and the Jail of the said County is out of repair & unfit for use. That it would save the expence of repairing the County Jail, to the said County, and do no injury to the public if the said public Goal should jointly be us'd by the County of James City & the Corporation of the City of Williamsburg. Your Petitioners therefore humbly pray that an Act may pass for that purpose." (Research, 1934, p. 160). This act was passed that same year, thus opening the Gaol to joint use by the county and city. (Hening, XI, p. 381).
In 1791, An act concerning the public Gaol in the City of Williamsburg, and for other purposes was passed. (Hening, XIII, p. 197 269). This act provided that "the city of Williamsburg shall have a right to use the public gaol therein, as the gaol of the said city; and the district gaoler therein, shall act as keeper of the gaol of the said city. Nothing in this act shall alter or impair the right of the county of James City, or of the district wherein Williamsburg is, to the use of the said public gaol....Whenever the gaol of a county is used as a district gaol, the keeper of the county gaol, and no other, shall act as keeper of the gaol of the said district." Thus, the area serviced by the public gaol was apparently expanded even further by this act.
In 1806 there is a record of a jailor posting bond, as follows:
"Consideration: Bond for James Taylor, Jailor. Three negro slaves and their increase. Also 1 mahogany table, 3 beds, and furniture, 1 mahogany desk, 1 pr. card tables, 10 prints, two walnut tables, horses, cattle, and all kitchen furniture." (York County, Deeds, VII, p. 506).
A description provided of this jail in 1844 does sound rather more pleasant than the structure was usually made to seem:
"The jail was down in the hollow by the old Capitol. A woman was incarcerated there once, and Miss Julia Thompson and I went down to see her. It was a delightfully airy and clean place. The jailer was taking good care of the prison and giving good fare. Miss Julia said she thought the woman better off there than in her own home." (Research, 1934, p. 163).
The Civil War was hard on the public gaol, and it appears likely that much of the brick of the gaol was carried off by Union troops for use in the building of Fort MacGruder. (Moorehead, S. P., 1936, p. 1). That the gaol changed greatly in appearance from the period 198 before the war to its later appearance is shown in the following recollection:
"The big lot just east of the old jail was public property. From a bank on the north side of this lot was a spring then known as the Jail Spring, which furnished water to the jail and to many of the neighbors. The old city and county jail as it once appeared, no longer looks like it did when there was a frame residence of the jailer, and was a two story house, with a pretty flower yard and lawn on the front and vegetable garden in the rear. The premises were enclosed by a neat fence, all in striking contrast to the brick box used for many years after the War as a prison, with rooms in the roof for the jailer's residence, which was reached by steps on the outside. This was the jail built just after the close of the war." (Research, 1934, p. 163). It is not known quite when the brick keeper's house was replaced by the wooden structure refereed to by this author. The "brick box" built after the war consisted of the two earliest criminal cells, a part of the yard, which was also enclosed as cells, and two garret rooms built over the original cells. The debtors cells, two larger criminal cells, hall, and keeper's quarters had entirely disappeared by this time. At the beginning of the twentieth century
"a new building, with steel cages and some modern comforts, has been erected for the city jail, on the old market square, convenient to the present court-house." (Tyler, 1906, p. 221).
The "brick box" was still standing when preliminary excavations were begun, in 1929, and was retained where it was original to the eighteenth century as a part of the restored gaol, completed in 1935. The site was completely excavated in 1934, and the excavations 199 provided many useful items for the restoration.
Before describing the restoration work, it is useful to understand the findings provided by the remaining piece of the goal. In the South elevation, some original brick work remained. This work was in the flemish bond down to the foundations which are of English bond. The original watertable, which remained in part was of ground brick. The original mortar is shell, sand and oyster shell lime. The East elevation, originally in interior wall separating the criminal cells from the passage and debtor's cell on the first floor, is nearly all of original brick work. English bond was used throughout this wall. The original food slots, and a vent were found in this wall, though they had been bricked up at the time of the city alterations following the Civil War. Bits of broken brick indicated the line of the original south wall of the 1704 keeper's quarters. The gable and roof visible on this side in 1934 were from the period of the city alterations. The North elevation contained about 50% of the original brick work, and the grills in two of the windows were original. There was very little original brick work left in the West elevation, the wall facing into the yard. In the yard itself, the original foundation and a few courses of the door jamb remained to provide clues to this entrance in the south wall. The foundations also remained for the entrance steps to all four cells. Furthermore, a line along the brick showed the level of the original floor of the yard.
Inside the cells, two thrones were found, which were built of 19th century wood, but used all the 18th century iron work. Thus, the wood was apparently replaced in a faithful copy of the eighteenth century structures at the time of the city alterations. One of these 200 thrones was retained without further alterations in the restoration, although the wood was unquestionably cut with a circular saw. The floors of the cells were oak overlaid with two thicknesses of 7/8" pine flooring of random widths. Some of the original oak sheathing remained on the walls of the two cells. These original oak planks were nailed with hand wrought spikes into 3" x 10" stringers of oak let into the brickwork at frequent intervals. The vertical joints were covered by 1" x 5" battens also of oak with roughly beveled sides. The inner wall, which separated two contiguous cells was composed of 1 ¾" yellow pine planks of random widths, set horizontally in one cell, and vertically in the other. This crossgraining of the walls provided extra strength, and made it difficult to cut or break the wall. Similar construction is used in all the doors throughout the gaol, and was quite common in the colony, particularly on the frontiers where such doors were thought better able to resist the arrows or axes of Indian attacks. For this reason they are often called "arrow-proof" or "axe-proof" doors. (Harris 1968, p. 5). A total of five original window grills were found, although only one was used in the restoration. In addition, a variety of original lock, strap hinges, two sets of prisoners' irons, and a "bull ring" were found in the excavation, which provided models for the copies used in the restoration.
The aim of the restoration was to return the building to its eighteenth century appearance. The building as restored actually represents the gaol between 1722 when the first addition of keeper's quarters was made, and 1772 when the addition of a larger home for the keeper was ordered. This latter addition was not restored both because it occurred so late in the colonial period, and because it 201 would jut into the current Nicholson Street. The restoration involved both the removal of several nineteenth century additions, the careful cleaning and repair of original brickwork, and the reconstruction, on original foundations of portions that had disappeared. The walls which had to be rebuilt followed the precedents set by those still standing in that they were Flemish bond down to the grade line, and English bond below that. The water table is of ground brick. Shingles are asbestos, made to resemble wood shakes, but conforming to current fire regulations. The only exception is over the outermost criminal cells which had a lead-sheathed flat roof, (now lead-coated copper). This latter is based on Robert Beverly's description:
"they all are built of brick, and cover'd with single, except the debtor's prison which is flat roofed anew; a very useful invention of the present governor." (1947, p. 235).
The interior details of the cells are based on the findings in those cells which remained when the restoration was undertaken. However, no such evidence was available for the restoration of the portion of the gaol set aside for the use of the gaoler. The placement of walls and fireplaces was indicated by the foundations, but the interior had to be based on the precedent of other buildings of the period. Thus, door frames, fireplaces, hearths, mantles, and the like are based on examples of such houses as the "Ritchie House" in Tappahannock, "Abbingdon Glebe" and "Terrig House" in Gloucester, "Tuckhoe" in Goochland, "Blair House" in Williamsburg, the "Warren House" in Surry, and "Brafferton Hall" in Williamsburg.
A basis for furnishing in the gaol is provided in two inventories of eighteenth century gaolers. John Carter died in 1741, at which time his holdings were inventoried as follows (York County, Book 19 202 Wills and Inventories, pp. 91-92):
|The outhouses on the prison lots purchased and built by John Carter||16/ 0/ 0|
|List of slaves||50/ 0/ 0|
|6 leather chairs, 6 black chairs with stuff'd backs||2/17/ 0|
|1 square walnut table, 1 oval walnut table||1/ 1/ 0|
|1 small tea board, 3 china coffee cups, 1 china milk pot||0 / 7/ 6|
|1 china tea pot, 1 sugar dish, 3 tea cups, 1 earthern mug, 1 pewter Tea pot|
|1 doz. hard metal pewter plates||0/15/ 0|
|1 copper tea kettle, 1 copper coffee pot, 2 small skillets, 2 peper boxes||0/ 7/ 6|
|3 pewter dishes, 6 plates, 9 spoons, 4 candle moulds, 1 qt. tankard||0/15/ 0|
|50 lbs. old pewter||1 / 6/ 0|
|1 copper pudding pan, 1 tin funnel, 1 doz. patty pans-||0 / 5/ 0|
|1 seal box with two pair money scales, some money, 1 brass cocke||0/12/ 6|
|4 earthern mugs, 1 white bason, a small parcel old earthern ware||0 /5/ 0|
|1 walking cane, 1 cracked china punch bowl||0/ 7/ 6|
|1 copper sauce pan, 1 pr. stilliards||0/10/ 0|
|1 pestle, 1 mortar, 2-½ bushels, 1 coffee roaster, 1 bag and parcel old lumber||0/10/ 0|
|2 stew pans, 1 dripping pan, 1 grid iron, 1 chafing dish||1/ 5/ 0|
|2 old brass kettles, 1 soap basket, 1 jug, 6 sifters -||0/10/ 0|
|6 silver table spoons, 3 teaspoons||3/16/ 0|
|1 silver watch and steel seal||4/ 0/ 0|
|1 desk and book case of black walnut and some old books||7/ 0/ 0|
|1 feather bed, bolster and bedstead, 2 sheets, 2 blankets, 1 rug||1/10/ 0|
|1 feather bed, bolster and bedstead, 2 sheets, 2 blankets, 1 rug, 1 pillow vallons and curtains||5/ 0/ 0|
|1 old oval table, 1 square table, 1 chest, 1 writing desk||0/12/ 0|
|1 warming pan, 1 shovel and tongs, 1 pr. bellows, 1 pr. hand irons, 1 trivet||0/12/ 0|
|1 easy chair, 1 two armed chair, 3 old leather chairs||1/ 0/ 0|
|1 close stool and pan, 1 brass candle stick, 1 iron candlestick||0 / 5/ 0|
|1 coffee mill, 1 box iron, 2 heaters, 1 small looking glass||0/ 7/ 6|
|1 large looking glass, 1 black walnut corner cupboard||1/16/ 0|
|1 desk, 1 cupboard, 1 copper kettle||5/10/ 0|
|1 old bedstead, 1 tub, 1 small table, 1 dresser, tub and some lumber||0/12/ 6|
|1 pr. small iron dogs, 1 pot rack and an old ax||0/ 2/ 6|
|1 table, 1 chopping block, 1 powdering tub, 1 hair sifter||0/ 8/ 0|
|1 steel mill||1/ 6/ 0|
|1 iron pestle, 1 hominy mortar, 2 buckets, 1 tub, 1 old pewter pot||0/ 7/ 6|
|3 iron pots, 2 pot hooks, 1 pot rack||1/10/ 0|
|1 black walnut oval table, 1 feather bed, bolster and rug||1/ 6/ 0|
|1 feather bed, 1 pillow, 2 old rugs, 1 dutch oven, 1 cross cut saw||2/ 1/ 0|
|1 wire wheat riddle, 1 saddle and bridle||0/19/ 6|
|6 doz. Bottles, 1 old copper pot||0/13/ 3|
|2 bed trussels, 2 jugs, some carpenter tools, parcel old lumber||2/ 7/ 6|
|2 chisels, hand saw, 9 sheets||4/ 2/ 0|
|12 damask napkins, 1 table cloth, 2 table cloths, 16 towels||2/ 5/ 0|
|7 cannisters, 8 butter pots, an earthern churn||0/12/ 6|
|2 parcel of old fence rails||0/ 6/ 0|
|132/ 9/ 9|
In 1771, Edward Westmore sold off his household goods, and this inventory is recorded in the York County Deed Book 8 (p. 141) as follows:
Goods in Upper Room.
In the little room below.
In the Great Room below.
In the Cupboard.
In the Passage.
In the Kitchen.
In the Dairy.
In addition to the furnishings, the following examples of the graphic works of William Hogarth are currently hung in the gaol: Four Prints of an Election, The Four Times of the Day, The Roast Beef of Old England, England Preparing for War, The Distrest Poet, A Midnight Modern Conversation, and Paul Before Felix Burlesqued. These are representative examples of Hogarth's work in that they are all social satire, and include a great wealth of accurate detail concerning the period.206
The Four Prints of an Election are based largely on the notorious Oxfordshire election of 1754, one of the few two-party elections which occurred in the century, but the settings are generalized. Plate 1 is An Election Entertainment, published on February 24, 1755, and the version in the gaol is State 4. The first two states were Hogarth's work alone, and the plate is signed "Painted and the Whole engraved by Wm. Hogarth." The artist was dissatisfied with these states and called in a second engraver to recut the plate. Thus, in the signature on State 4, the words "the Whole" were scratched off the plate. The scene is a pre-election party for supporters and potential supporters, and the pickets from the other political camp are visible through one of the windows. Plate 2, Canvassing for Votes, was published on February 20, 1757, and features two hosts of opposing inns, who represent opposing parties offering bribes to a farmer. Plate 2, The Polling, printed on February 20, 1758, shows a polling booth with the reserve voters being brought in. At the rear of the booth, the two candidates can be seen. In front an old soldier and an imbecile are taking their oaths, while a man in leg irons coaches the imbecile and a dying man is carried up. In A Poetical Description of Mr. Hogarth's Election Prints, written and published by J. Smith in 1759 with Hogarths' approval, the following comment is offered on the scene:
" 'Gaolers, when they please
Let out their flock, or rob for fees.'
From this sage hint, in needful cases
The wights, who govern other places,
Let out their crew, for private ends,
Ergo, to serve themselves and friends.
207 Behold, here gloriously inclin'd,
The Sick and Lame, the Halt and Blind!
From Workhouse, Gaol, and Hospital,
Submiss they come, true Patriots all!"
(Paulson, 1965, p. 234).
Plate 4, Chairing the Members, published on January 1, 1758, shows the final disturbance as the winning party carries the elected candidate triumphantly through town, only to nearly lose him into the river.
The Four Times of the Day were all published on March 25, 1738. Morning is set in Covent Garden, and the contrast between the low life, fighting to ward off the cold by various means, and the Grand Dame being intentionally impervious to the weather is stressed. Noon is set on Hog Lane, which is now a part of the Charing Cross Road, and makes a contrast between the dandy and his wife who leave church attired in the latest French fashions, and the lusty common folk playing around the taverns. Evening portrays a couple out for stroll in the park at Sadler's Wells, a theater and amusement area outside of London. This is another of Hogarth's satire's on marriage, with the position of the cow's horns indicating the cuckold husband. Charing Cross is again the setting for Night, with the statue of Charles II visible in the background. The central character is a drunken Freemason in full regalia, out for an evening of revelry among the taverns and bawdy houses which line the street. The shop nearest him is that of a barber-surgeon whose basins of blood drawn from various patients can be seen lined up on his window sill.208
The Roast Beef of Old England, or The Gates of Calais, published on March 6, 1749, contrasts the well-fed few with the starving masses, and underlines England's view that the French were oppressed by the Church.
England is one of a set of two prints titled The Invasion which Hogarth published on March 8, 1759, immediately prior to the outbreak of the war with France. At the time, French troops were massing on the banks of the English Channel and invasion seemed immanent. Unlike many publications of the period which were extremely pessimistic in tone, these two plates are an optimistic and patriotic statement.
A Midnight Modern Conversation, published in March, 1732-3, shows an early morning scene in one of London's popular taverns. All stages and forms of drunkenness are readily apparent in the scene, and the figures are all caricatures of well-known London personalities of the period.
The Distrest Poet was published on March 3, 1736, and again on December 15, 1740 (State 3). In the first two states the plate was captioned by couplets which were replaced by the title in the later printing. Hogarth implies that the poet, who cannot abandon his idle dreams long enough to stop the dog from escaping with the meat, deserves no pity for his state. The print over the poet's head is of the gold mines of Peru, part of the South Sea scheme that failed, another idle dream.
Paul Before Felix Burlesqued was first published in May, 1751, as a receipt to those who subscribed for was first published in May, 1751, as a receipt to those who subscribed for Paul Before Felix and Moses Brought to Pharaoh's Daughter, both serious works on Biblical subjects. The burlesqued version is, however, satirical, and was sufficiently popular in its own right that Hogarth issued a Second 209 State printing in which the actual receipt portion had been cut from the plate. This practice of issuing his prints by subscription, with the purchasers paying part cost in advance and part upon receiving the actual print, was quite common for Hogarth.
Finally, there is a 1775 edition of the Fry-Jefferson Map hanging in the Gaol. The map was originally published in 1754, and was quite popular as it was one of the most accurate of the period. Published editions included a corrected version issued in 1d755, a re-edition by a new publisher in 1761, and the final version in continuous publication from 1775 to 1782. For comparison purposes, a reproduction of the 1754 first edition, of which only two original copies are known to exist, hangs in the Guardhouse.210
The interpretation of the Publick Gaol makes use of human interest materials with emphasis upon personalities, and happenings, interwoven to convey meaning with interest. Relevant connections between yesterday and today should be pointed out in a fair manner, and the story adapted to groups of different ages and interests. The ideal is to present this subject matter in warm, unrehearsed, and relatively unhurried fashion.
The interpretation at the gaol should last about 15 minutes, except in the winter months, when a smaller number of visitors, and expressed interest on the part of guests may justify a longer interpretation. Each an should stand at the door to greet and admit the group for the interpreter who precedes him. groups should never be larger than 35 people. The script included here is merely an example, and need in no way be followed rigorously. Of course, during the winter months, adjustments will have to be made to include interpretation on the second floor. And, of course, other material and other examples may be used to provide variety and prevent an interpretation from growing stale. However, interpreters are cautioned against "borrowing" material from each other without first checking on the accuracy of the story.211
The Publick Gaol represents the administration or enforcement of law and justice in the colony. The legal code in Virginia in the eighteenth century was, both by law and in actual practice, one of the more enlightened systems of the period.
(Stand by the door to the hallway.)
The Publick Gaol, officially named the General Court Prison, is the second oldest building in Williamsburg, and was in continuous use as a public "lock-up" from 1704 when it was completed until 1910 when a "modern" jail was built for the city of Williamsburg. Two criminal cells and two cells for minor offenders were still standing in 1934 when Colonial Williamsburg restored the building to its eighteenth century appearance.
The room you are now in is a parlor, part of the living accommodations provided for the keeper and his family. This portion, constructed in 1722, also included the little dining room to your right, a bed chamber above, and a kitchen in the basement, and although small, was undoubtedly a welcome extra for a keeper whose annual salary was forty pounds plus the various fees he collected from prisoners. The furnishings are such as the gaoler might have owned, though none are original to the goal. Thirteen gaolers and their sometimes large families who lived here over a period of almost 80 years, did not leave their furniture to posterity. The prints on the walls are social and political satires engraved by William Hogarth, and present scenes of eighteenth century England.212
Only two of the thirteen gaolers complained about the space provided by these living quarters. In 1748, William Wyatt complained that after the Capitol was burnt the papers and records were put in his care. These took up so much space that he had to board out two of his children. The Assembly agreed to increase the fees he received. In 1771, Peter Pelham complained that he and his family did not have enough room. Of course, Pelham did have a wife and sixteen children, which may account for his difficulty. The Assembly finally agreed to build an addition to the house of the Publick Gaoler, which was started two years later.
Pelham was a well-known figure around Williamsburg. He was the organist at Bruton parish, and his Sunday morning parades must have been quite a sight. The Assembly had ordered that he was to take all the prisoners to church on Sunday. Twenty or more men in leg irons may well have traveled the three quarters of a mile to Bruton every Sunday. We suspect that this was more to prevent escapes than to provide for the spiritual well-being of these men. Pelham, however, found good use for some of them pumping the fine bellows organ.
There are also stories that while they awaited the construction of the extra wing for their home, the Pelham's had several of the children living in one of the cells. We have no way to prove this, but it would have made sense, as there are eight cells in the back. Four of these were properly called prison cells, as they served for the confinement of the colony's criminals. The other four are goal cells, which served for the confinement of debtors and minor offenders. In the eighteenth century, a creditor having trouble collecting money owed to him had a legal option to have the debtor gaoled. 213 In England, if so confined, you would remain until you either paid the debt or died. But in Virginia the normal time of confinement was 20 days. A creditor could keep you in longer if he chose to pay for your food, but very few chose to spend 6 pence a day on someone who already owed him money.
Of course, I don't suspect any among you are debtors, but since you are here, step on back into the cell and I will give you a taste of a debtor's life.
(Stand in the open door to the cell).
Now, as I told you, there are four gaol cells. The other three cells, and the gaoler's bed chamber are upstairs and inaccessible to a group but this is typical of the accommodations provided for debtors and other minor offenders.
A man might have shared this cell with as many as 15 to 18 grown men. While here he would have slept down on the floor, and a pile of straw was provided for bedding. This, however, was only cleaned and changed infrequently, and the prisoners often complained of "inveterate itch."
The gaoler was required by law to supply one meal a day, which probably consisted in a large degree of corn meal, perhaps baked into corn bread, or made into corn meal mush. Flesh, or meat, had to be provided at least once a week. To stretch the food allowance provided by the colony the gaoler may have patronized the back doors of the local taverns, buying up leftover scraps and maybe even spoiled meat.
I mentioned crowded conditions and a poor diet. Add in the weather and it might be enough to kill a man of weaker constitution. 214 You will notice that the window is not provided with glass, and although the iron bars would have been sufficient to prevent escape, they did not stop the wind, sleet, rain, and snow which would have whipped in on you in the winter. Of course, the debtors were luckier than the criminals in that there is a fireplace in each of the cells provided for them, but none in the prison cells. However, a man who wished to have a fire would have to make his own arrangements for providing fuel, just as he could arrange for candles, extra meals, or even furniture to be brought in.
The colony did supply prisoners with one convenience, gratis. The three-step device with the hole in the top there, in the far corner, is connected by a wooden drain to a cesspool outside, and is the first indoor plumbing in a public building that we know if in the colonies. Of course, some people late in the colonial period complained that on a summer day you could readily tell that the "throne" had been used by prisoners for better than 60 years, and that the odor was quite "Mephytic." The throne may well have been more for the convenience of the gaoler than the prisoners, as it did mean that he could avoid opening the cell except on truly important occasions. You will notice that all the cells have food slots in the wall out in the hallway. Thus, your trial or legal discharge by one means or another might have been the only time the cell door was opened. This was particularly important in the criminal cells where escapes were of greater concern.
We will step out now to the criminal prison. Please use the hand railing on the steps and be aware of the raised door sills.
The narrow yard you crossed coming in here was an exercise yard for the debtors and minor offenders. Here, too, the criminals being brought into these cells would have been met by the gaoler, and a blacksmith. At the hands of the blacksmith, the murderers, thieves, pirates, counterfeiters, and the like, from the entire colony, who were brought here to await trial, had a set of 14 to 18 lb. leg irons riveted on. If you were a really violent or dangerous prisoner, your irons might then have been riveted to the "bull ring" on the floor of the cell.
During the eighteenth century the Virginia colony stretched as far West as the Mississippi River and as far north as the Great Lakes. Thus, a man might have been brought several hundred miles and might have had to wait up to six months for his trial. The men out here did not have the comforts of fire and possible furniture which a debtor could enjoy, and sickness was common during the winter. Doctors were regularly summoned to treat sick prisoners, in an effort to keep them healthy for the trial, but we cannot assume their percentage of cures was any greater when treating criminals than it was when their patients were the good people of Williamsburg.
Justice in Virginia was in many respects swift and even brutal by modern standards. The colony of Virginia could see no practicality to long sentences during which time they would support a criminal. Rather, a man was punished, and if he survived, he was released to return as a productive member of society. Criminals were tried in the first few days of a court session. Those who were acquitted were immediately released. Those convicted were returned to the 216 bar on the eighteenth day of the court session to hear sentence pronounced. Most felonies were punishable by hanging, but even a convicted felon could avoid this punishment by several means. With the exception of a few very serious crimes, such as treason and murder, a felon was granted benefit of clergy on a first offence. This was a benefit granted to all Christians, slave or free, in which the felon was branded in open court on the heel of the thumb with the initial letter of his crime, such as "M" for manslaughter or "T" for thief, and released. The brand served to warn future courts that a man could not again receive benefit of clergy, and such branding was one of the gaoler's duties. A man could also be pardoned or be transported or even sold as a servant in some other colony. If he were to be hanged, the criminal was returned to gaol for a period of ten days to two weeks so that he could attend church twice before execution as the law provided.
Among the criminals confined in these cells were fifteen men of the crew of Edward Teach, popularly called Blackbeard. The pirate captain himself was killed in the fighting off the North Carolina capes, but these 15 were returned to Williamsburg to stand trial. Thirteen of the fifteen were convicted and hanged at the usual place a mile out of town. One turned King's evidence and was granted pardon, and one, a cabin boy, was acquitted.
During the revolution, Henry Hamilton, the British governor of Detroit and several of his officers were confined here in that second cell on your left after they were captured by George Rogers Clark at the fall of Vincennes on the Virginia frontier, in what is now Indiana. Hamilton was called "The Hair Buyer" by the Americans as he was in charge of the war on the American frontier, fought 217 largely by Indians allied with the British. Their confinement lasted a long, and from Hamilton's own description, uncomfortable year before they were exchanged for American prisoners held by the British.
In addition to branding, there were other forms of physical punishment used but these were generally reserved for the minor offenders who would have been confined in the two cells whose windows you see above, women in one cell and men in the other. These people were the town drunkards, sabbath-breakers, and the like. Of course, none of you ladies would have been confined as a "nag and a common scold" or a gossip. Nor would your husbands have been confined for cheating at cards, as some men were.
Punishments which might be applied to these people included imprisonment for a period of months, fines, or whippings up to thirty-nine lashes for those who could not pay the fine. In certain instance such as hog-stealing and perjury, a man's ears might be notched. Such marking labeled the person, as did branding, in a day when finger printing and computer crime detection were unknown. Convicted perjurers could not ever again bear witness or take an oath, and a third conviction for hog-stealing was punishable by death. Finally, there was public humiliation, always administered on court days when there was a large crowd in town. Outside, you may have seen the two devices for public humiliation, the stocks and pillory. The stocks consisted of an iron rail on which a man was seated, with his feet locked securely in the holes in front. After a few hours, this was unquestionably physically punishing. The pillory was much milder, and was used for both men and women, their head and arms being securely locked into place. The worst aspect of this device was that the head so locked formed an excellent target for the 218 local youngsters wielding rotten eggs, tomatoes, and the like. Of course, our local youngsters are now better behaved, and we promise not to lock you in for the customary two or three hours, so now if you would like to, you may step out in front and try them on for size. If you have any questions, I'll be glad to answer them outside.