The Fifth Realm

Arms of the Virginia Company of London, engraving by Simon Gribelin, frontispiece to second edition of Robert Beverley’s The History of Virginia in Four Parts, London, 1722.

Mary Aggie and Benefit of Clergy in Virginia

Miserere mei, Deus, secundum magnam misericordiam tuam;
et secundum multitudinem miserationum tuarum, dele iniquitatem meam.

Psalmus 50. iii.

LAWS OF VIRGINIA, MAY 1732−−5th & 6th GEORGE II.

CHAP. VII.

An Act for settling some doubts and differences of opinion, in relation to the benefit of Clergy; for allowing the same to Women; and taking away of Reading; and to disable certain Persons, therein mentioned, to be Witnesses.

I. WHEREAS it has been held, That where, by an act of parliament, made in England before the settlement of this colony, the benefit of clergy, as it is called, hath been taken away from any offences, that persons committing the like offences in this colony, are excluded by virtue thereof; but this opinion, if it were nicely examined, might possibly be questioned: And for settling the law in that point,

II. Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and by the authority of the same, That where, by any act of the parliament of England, made before the fourth year of the reign of the late king James the first, the benefit of clergy is taken away from any offence, the same shall hereafter be adjudged to be taken away from the like offence, committed in this colony, in respect to principals, and accessories standing mute, and challenging a greater number of the jury than the law allows.

III. And whereas the old distinction, of allowing the benefit of clergy, to men only, and excluding women, and putting the offender, being a layman, to read, hath been taken away by the parliament of England: Be it enacted, 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 the like offence, upon her prayer to have the benefit of this act, judgment of death shall not be given against her upon such conviction, nor execution awarded upon any outlawry, for such offence; but she shall suffer the same punishment as a man should suffer, that has the benefit of his clergy allowed him in the like case; That is to say, shall be burnt in the hand by the jailor in open court, and shall be afterwards dealt with, as a man in the like case might be. And if any person be convicted of a felony, for which he ought to have the benefit of clergy, and shall pray to have the benefit of this act, he shall not be required to read, but without any reading, shall be allowed, taken, and reputed to be, and punished as a clerk convict; which shall be as effectual, to all intents and purposes, and as advantageous to him, as if he had read as a clerk; any other law or statute, to the contrary hereof, in any wise, notwithstanding. Clergy allowed to women.

IV. And whereas a question hath lately arisen, touching the right of negros, to the benefit of clergy: for the determination thereof, Be it further enacted, That when any negro, mulatto, or Indian whatsoever, shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him or her, upon such conviction; but he or she, shall 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; except 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 any 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 the benefit of this act; and in those cases, such negro, mulatto, or Indian, shall suffer death, and be excluded from the benefit of this act.

V. And whereas negros, mulattos, and Indians, have lately been frequently allowed to give testimony as lawful witnesses in the general court, and other courts of this colony, when they have professed themselves to be christians, and been able to give some account of the principles of the christian religion: but forasmuch as they are people of such base and corrupt natures, that the credit of their testimony cannot be certainly depended upon, and some juries have altogether rejected their evidence, and others have given full credit thereto: For preventing the mischiefs that may possibly happen by admitting such precarious evidence,

VI. Be it further enacted, That no negro, mulatto, or indian, either a slave or free, shall hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any cause whatsoever, except upon the trial of a slave, for a capital offence; in which such case they shall be allowed to give evidence, in the manner directed by one act of assembly, made in the ninth year of the reign of the late king George, intituled, An Act directing the trial of Slaves committing Capital Crimes; and for the more effectual punishing Conspiracies and Insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free.

Mary Aggie

In one of these Courts, in January last, a Negro woman Slave was tryed for stealing; and as I knew her to be a Christian (for not long before she had, upon some pretence, I forget what, sued for her Freedom in the General Court, where she was examined touching her Faith of which she gave a tolerable account) I desired a Lawyer to attend the Tryal, and in case she was found Guilty, to inform the Justices that notwithstanding she was a Slave, it was my opinion, as a christian, she was Intitled to the benefit of the Clergy; upon which after some little debate, for it was never Inquired into before, the Question was put, and the judges were divided, so it was agreed to be deferr’d until another and a fuller Court. When a report was made to me of their Proceedings, and fearing it might go against her if I left to be determined there, I advised with our ablest Lawyers, and from the county court had it Adjourned into the General Court, resolving to have this Matter argued in the most public manner by our best Lawyers, as a thing of great consequence, by which all the courts in the country for the future should govern themselves, and not doubting but it would be carried in favour of the Christian though a black one; But when the Day of hearing came, notwithstanding four out of five of the Gentlemen learned in the Law, of which number the King’s Attorney General was one, gave it as their opinion, supported by Proper Arguments, that she had a Right to plead the benefit of that statute, when put the Question, we were divided here too, six and six; and now it rests to be determined by the opinion of the Sollicitor & Attorney General in England, which I shall send for as soon as our Lawyers have drawn up a State of the Case as they have directions to do, with the sense of the Laws of this Country, and political reasons for and against it. But I can assure your Lordship that there is no Law against it, if there is, I think it ought to be repealed: and for political reasons, they are of equal force against white as black People being Christians. I shant trouble your Lordship with particulars, but thought it my Duty to acquaint your Lordship with it, not knowing whether Mr Commissary will do so or not, who was one of the judges.

— Extract from letter of Lt. Governor William Gooch to the Bishop of London, Williamsburg, 28 May 1731.

Virginia, See, Thy Governor Appears!

Norborne Berkeley, 4th Baron Botetourt (c. 1717 – 15 October 1770), courtier, member of parliament, and royal governor of the colony of Virginia from 1768 until his death in 1770.
Norborne Berkeley, 4th Baron Botetourt (c. 1717 – 15 October 1770), courtier, member of parliament, and royal governor of the colony of Virginia from 1768 until his death in 1770.

Recitative.

VIRGINIA, see, thy GOVERNOR appears!
The peaceful olive in his brow he wears!
Sound the shrill trumpets, beat the rattling drums;
From Great Britannia’s isle his Lordship comes.
Bid Echo from the waving woods arise.
And joyful acclamations reach the skies;
Let the loud organs join their tuneful roar,
And bellowing cannons rend the pebbled shore :
Bid smooth James River catch the cheerful sound,
And roll it to Virginia’s utmost bound;
While Rappahannock and York’s gliding stream,
Swift shall convey the sweetly pleasing theme
To distant plains, where pond’rous mountains rise,
Whose cloud-capp’d verges meet the bending skies.
The Lordly prize the Atlantic waves resign,
And now, Virginia, now the blessing’s thine:
His listening ears will to your trust attend,
And be your Guardian, Governor, and Friend.

Air.

He comes: his Excellency comes,
To cheer Virginian plains!
Fill your brisk bowls, ye loyal sons,
And sing your loftiest strains.
Be this your glory, this your boast,
Lord Botetourt’s the favorite toast;
Triumphant wreaths entwine;
Fill full your bumpers swiftly round,
And make your spacious rooms rebound
With music, joy, and wine.

Recitative.

Search every garden, strip the shrubby bowers,
And strew his path with sweet autumnal flowers!
Ye virgins, haste, prepare the fragrant rose.
And with triumphant laurels crown his brows.

Duet.

Enter Virgins with flowers, laurels, &c.
See, we’ve stript each flowery bed;
Here’s laurels for his Lordly Head;
And while Virginia is his care.
May he protect the virtuous fair.

Air.

Long may he live in health and peace.
And ev’ry hour his joys increase.
To this let ev’ry swain and lass
Take the sparkling, flowing glass;
Then join the sprightly dance, and sing.
Health to our Governor, and God save the King.

Virgins.

Health to our Governor.

Bass Solo.

Health to our Governor.

Chorus.

Health to our Governor, and GOD save the KING!

— published in The Virginia Gazette, November, 1768.

Cromwell, Lincoln, and Virginia

Cromwell, Lincoln and Virginia.

When Oliver Cromwell was installed Protector of England, the Commonwealth of Virginia refused to acknowledge his authority. The English Commonwealth was then at the height of its power, and, at its head, one who was admirably described by Bossuet as “a man of an incredible depth of thought; as profound a hypocrite as he was a skillful politician; capable alike of concealing and undertaking everything; active and indefatigable equally in peace as war; so vigilant and active that he has never proved himself wanting to any opportunity which presented itself to his elevation; in fine, one of those stirring and audacious spirits which seem born to overturn the world.” Such was the Commonwealth and such the man, triumphant over all other enemies, against which this gallant Commonwealth, then numbering only twenty thousand inhabitants, unfurled the standard of defence.

The Commonwealth of England was disposed to submit to this resistance.–Virginia, from the first, had arrayed itself on the side of the King. During the whole preceding struggle of Charles and the Parliament, Virginia was firm in its adherence to the monarch, and enacted a declaration “that they were born under a monarchy, and would never degenerate from the condition of their birth by being subject to any other government.” After the beheading of Charles I., Virginia acknowledged the authority of his son, and actually continued the provincial government under a commission sent by him from his retreat at Breda to Sir William Berkeley. The wrath of Parliament was intensely roused by this bold and persistent contumacy; an ordinance was issued declaring the inhabitants of Virginia notorious robbers and traitors, and all intercourse prohibited with them, either by the people of England, the inhabitants of the other American settlements, or with foreign nations. Finally, a fleet was sent over to overpower the rebellious colony. But observe the difference between the great intellects that then ruled England and the Government of the United States. Cromwell extended the olive branch as well as the sword, and commissioners accompanied the fleet, who were empowered to try the effect of pacific and conciliatory measures. The result proved the wisdom of the policy.

“It marks,” says Bancroft, a Massachusetts historian, “the character of the Virginians, that they refused to surrender to force, but yielded by a voluntary deed and mutual compact. We copy the articles concluded between the commissioners of the Commonwealth, and the Council of State, and the Grand Assembly of Virginia, that our readers may contrast them with the terms of Lincoln’s so-called amnesty:

“First. That this should be considered a voluntary act, not forced or constrained by a conquest upon the country; and that the colonists should have and enjoy such freedoms and privileges as belong to the free-born people of England.
“Secondly. That the Grand Assembly, as formerly, should convene and transact the affairs of Virginia, doing nothing contrary to the Government of the Commonwealth or laws of England.
“Thirdly. That there should be a full and total remission of all acts, words, or writings against the Parliament.
“Fourthly. That Virginia should have her ancient bounds and limits, granted by the charters of the former kings, and that a new charter was to be sought from Parliament to that effect, against such as had trespassed upon their ancient rights. (This clause would seem to be aimed at some of the neighboring colonies.)
“Fifthly. That all patents of land under the seal of the colony, granted by the Governor, should remain in full force.
“Sixthly. That the privilege of fifty acres of land for every person emigrating to the colony should remain in full force.
“Sevenths. That the people of Virginia have free trade, as the people of England enjoy, with all places and nations, according to the laws of the Commonwealth; and that Virginia should enjoy equal privileges, in every respect, with any other colony in America.
“Eighths. That Virginia should be free from all taxes, customs and impositions whatever; and that none should be imposed upon them without the consent of their Grand Assembly; and no forts or castles be erected, or garrisons maintained, without their consent.
“Ninth. That no charge should be required from the country on account of the expense incurred by the present fleet.
“Tenths. That this agreement should be tendered to all persons, and that such as should refuse to subscribe to it should have a year’s time to remove themselves and effects from Virginia, and in the meantime enjoy equal justice.”

The remaining articles were of less importance. This was followed by a supplemental treaty, for the benefit of the Governor and Council, and such soldiers as had served against the Commonwealth in England—allowing them the most favorable terms.

We need not enumerate the unconditional-surrender terms proposed by Lincoln. Their contrast to the overtures by which Cromwell pacificated the colony is too striking to require comment.

The record of Virginia from the first, warrants the pride and devotion of persons. The correspondence between the rights secured under the articles with the Commonwealth Parliament, and the rights mentioned in the Declaration of Independence, as violated by the British King, will suggest itself to every intelligent reader. That Old Dominion, with all its traditional love of monarchy; would not permit even its born king to trample upon its rights. If it did not lead the way in the American Revolution, it came up in due time; and, like a broad-shouldered and double-jointed giant, carried it through when others tottered and trembled under the burthen. “Beware of entrance to a quarrel, but, being in, bear it that the opposer may beware of thee,” seems to have been always the maxim of this deliberate and plucky old Commonwealth. But for Virginia, and Virginia’s Washington, what would have become of the American Revolution?

It becomes not us to speak of her career in the present war. She arrogates to herself no superiority over her patriotic and heroic sister States. She has been reproached, indeed, for coming so late into the contest. It is true, that in this Revolution, as in that of ’76, she was not in a hurry. She exhausted every effort for peace, conciliation and compromise before she drew the sword. She seemed like her great orator, Patrick Henry, somewhat awkward and hesitating in her first utterances in the grand debate. But she waxes warm as she proceeds, and then the lightnings flash and the thunders roll over the heated sky. Whatever be the result of this struggle, no Virginian will have reason to be ashamed of his State. Let Lincoln, more despotic than Cromwell, deprive her of her liberties and expunge her name from the roll of States, he cannot despoil her of the Past, nor extinguish the lustre with which History will reflect the majestic luminary long after it has descended beneath the horizon.

— The Daily Dispatch: 25 January 1865; Richmond Dispatch.

“Whereas George Guelf…”

Seal of the Commonwealth of Virginia, Mitchell, Henry, The State Arms of the Union, Boston: L. Prang & Co. (1875).
Seal of the Commonwealth of Virginia, Mitchell, Henry, The State Arms of the Union, Boston: L. Prang & Co. (1875).

Whereas George Guelf king of Great Britain and Ireland and Elector of Hanover, heretofore entrusted with the exercise of the kingly office in this government hath endeavored to pervert the same into a detestable and insupportable tyranny;

by putting his negative on laws the most wholesome & necessary for ye public good;

by denying to his governors permission to pass laws of immediate and pressing importance, unless suspended in their operations for his assent, and, when so suspended, neglecting to attend to them for many years;

by refusing to pass certain other laws, unless the person to be benefited by them would relinquish the inestimable right of representation in the legislature

by dissolving legislative assemblies repeatedly and continually for opposing with manly firmness his invasions on the rights of the people;

when dissolved, by refusing to call others for a long space of time, thereby leaving the political system without any legislative head;

by endeavoring to prevent the population of our country, & for that purpose obstructing the laws for the naturalization of foreigners & raising the condition [lacking appro]priations of lands;

[by keeping among u]s, in times of peace, standing armies and ships of war;

[lack]ing to render the military independent of & superior to the civil power;

by combining with others to subject us to a foreign jurisdiction, giving his assent to their pretended acts of legislation.

for quartering large bodies of troops among us;

for cutting off our trade with all parts of the world;

for imposing taxes on us without our consent;

for depriving us of the benefits of trial by jury;

for transporting us beyond seas to be tried for pretended offences; and

for suspending our own legislatures & declaring themselves invested with power to legislate for us in all cases whatsoever;

by plundering our seas, ravaging our coasts, burning our towns and destroying the lives of our people;

by inciting insurrections of our fellow subjects with the allurements of forfeiture & confiscation;

by prompting our negroes to rise in arms among us; those very negroes whom he hath from time to time by an inhuman use of his negative he hath refused permission to exclude by law;

by endeavoring to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, & conditions of existence;

by transporting at this time a large army of foreign mercenaries [to complete] the works of death, desolation & tyranny already begun with circum[stances] of cruelty & perfidy so unworthy the head of a civilized nation;

by answering our repeated petitions for redress with a repetition of injuries;

and finally by abandoning the helm of government and declaring us out of his allegiance & protection;

by which several acts of misrule the said George Guelf has forfeited the kingly office and has rendered it necessary for the preservation of the people that he should be immediately deposed from the same, and divested of all its privileges, powers, & prerogatives:

And forasmuch as the public liberty may be more certainly secured by abolishing an office which all experience hath shewn to be inveterately inimical thereto or which and it will thereupon become further necessary to re-establish such ancient principles as are friendly to the rights of the people and to declare certain others which may co-operate with and fortify the same in future.

Be it therefore enacted by the authority of the people that the said, George Guelf be, and he hereby is deposed from the kingly office within this government and absolutely divested of all it’s [sic] rights, powers, and prerogatives: and that he and his descendants and all persons acting by or through him, and all other persons whatsoever shall be and forever remain incapable of the same: and that the said office shall henceforth cease and never more either in name or substance be re-established within this colony.

— Thomas Jefferson, Proposed Constitution for Virginia, June, 1776.

Pregnant with Ruin

Logo of the Jamestown Exposition, held from 26 April to 1 December 1907, at Sewell's Point on Hampton Roads, in Norfolk, Virginia, in commemoration of the 300th anniversary of the foundation of Jamestown.
Logo of the Jamestown Exposition, held from 26 April to 1 December 1907, at Sewell’s Point on Hampton Roads, in Norfolk, Virginia, in commemoration of the 300th anniversary of the foundation of Jamestown.

VIRGINIANS FIRST DEFIED ENGLAND. 

AN INTERESTING HISTORIC DOCUMENT SHOWS THAT NORFOLK (VA.) CITIZENS WERE AHEAD OF PHILADELPHIANS.

The coming Jamestown Exposition brings to light many historic facts long since forgotten. While loath to leave the British Empire, the patriots of Norfolk, Va., were the first to resent the aggression of the British Stamp Act, which led to the American Revolution. Under the name of “The Sons of Liberty” they assembled in Norfolk on March 13, and in bold and determined phrases announced their intention of resisting any further aggression on the part of the English Parliament. This was two months before the promulgation of the celebrated Mecklenburg Declaration of Independence and nearly five before the thirteen colonies assembled in Philadelphia to forever cast off the authority of the British crown and start the country on a career of prosperity and splendor which will be celebrated at the Jamestown Exposition, to be held at Hampton Roads, near Norfolk, in 1907. Extracts:

Having taken into consideration the evident tendency of that oppressive and unconstitutional act of Parliament commonly called the Stamp Act, and being desirous that our sentiments should be known to posterity and recollecting that we are a part of the colony who first in General Assembly openly expressed their detestation to the said act, which is pregnant with ruin and productive of the most pernicious consequences, and unwilling to rivet shackles of slavery and oppression on ourselves and millions yet unborn, hereby resolve:

  1. That we acknowledge our lord and sovereign, King George the Third, to be our rightful and lawful king; and that we will at all times, to the utmost of our power and ability, support and defend his most sacred person, crown, and dignity; and shall always be ready, when constitutionally called upon, to assist his Majesty with our lives and fortunes and to defend his just rights and prerogatives.
  2. That we will by all lawful ways and means which Divine Providence has put into our hands defend ourselves in the full enjoyment of, and preserve inviolate to posterity, those inestimable privileges of all freeborn British subjects, of being taxed only by representatives of their own choosing, and of being tried by none but a jury of their peers; and that if we quietly submit to the execution of the said Stamp Act all our claims to civil liberty will be lost, and we will be deprived of the invaluable privileges aforementioned.
  3. That a committee be appointed who shall in such manner as they think proper go upon necessary business and make public the above resolutions, and that they correspond as they shall see occasion with the Associated Sons of and Friends to Liberty in the other British Colonies of America.

As a result of the adoption of the resolutions Lord Dunmore, the British Colonial Governor, made a demonstration before Norfolk, and several shots were fired into the city from the frigate Liverpool. As a result of this and other outrages the Norfolk people were ready to throw off all authority and join with the other colonies when the Philadelphia Declaration of Independence was promulgated.

— Extracted from Confederate Veteran, vol. XIV, no. 8, August 1906.