Laws in Early Virginia

LAWS IN EARLY VIRGINIA

Monthly court days in 18th century Virginia were more than legal proceedings to settle petitions against individuals, the court or General Assembly.  Court days were also social and entertainment occasions.  Men who had to travel a distance to reach the town or settlement where court was being held, often stayed overnight at an Ordinary (tavern).  Prices paid for lodging and liquor were fixed by law, and Ordinary keepers were required to post those prices above their bar.  From Lancaster Co. Order Book 1729-1743, p. 263.  14 Mar 1739/40: In pursuance to a clause in the Act for Regulating Ordinarys and Restraint of Tipling Houses, the Court doth set and rate:

Rum at 6 shillings the gallon

Punch with Loaf Sugar at 9 pence the quart

Cyder at twelve pence the gallon

Madeira Wine at two shillings the quart

Strong Beer at fifteen pence the quart

Claret at three shillings and six pence the quart

White Wine at three shillings and six pence the quart

Red Port at three shillings and six pence the quart

Dyett with small Beer to drink at twelve pence the meal

Stableage with fodder for an Horse at six pence the night

Lodging at six pence the night

Corne at four pence the gallon

A variety of subjects were discussed in taverns on court day.  Among them would have been upcoming harvests, Indian affairs, sickness among the settlements, and the various laws set by British Parliament that ruled their lives.

    The first county courthouses in the colony were crude buildings constructed of board or logs.  Built by individual citizens at their own expense, the courthouses cost the counties nothing.  Jails were most often built by sheriffs.  County clerks kept their records at their homes for safekeeping.  Permanent courthouses were eventually built with brick walls to keep out straying livestock.  These walls also served to minimize outside noises for the benefit of the justices and participants.

Tithes and Taxes

The purpose of levying tithes and taxes was to defray public, county and parish expenses.  Caring for the poor of a parish was a major expense.  On 30 Nov 1647, annual tithables were levied at the rate of 20 lbs.  of tobacco for each cow owned, 4 lbs.  of tobacco for each horse or mare, 2 lbs.  of tobacco for each goat, and 27 lbs.  of tobacco for every 100 acres of land.  \(York Co. Records, William & Mary College Quarterly Historical Magazine, Vol. 23, p. 272-277, April 1915) Out of the proceeds of the collected levies, colonists were paid for a variety of services.  Among others, these services included operating ferries, making available a boat for the countyís use, killing wolves, feeding and housing the ill or homeless of a parish, accommodating prisoners, and burgess expenses.  A tithe was later called a poll tax.  The term "poll" referred to paying a tax on a personís head, and had nothing to do with voting.

In 1705, a revised tax law was passed establishing that all male persons, and all negro, mulatto, and Indian women over the age of 16 were tithable.  White women were not tithable unless they were heads of their household and responsible for paying the tithe on sons, slaves or employees.

    Certain exemptions from paying tithes were allowed.  Until 1787, if a person was poor, old (usually over 60) or disabled, he would be excused from paying tithes.  However, beginning in 1787, a person was required to pay tax on any cows or horses he or she owned, regardless of the ownerís age, finances or health status.  Often the only official existence of an ancestor can be found on these tithe lists.

When someone owned land in a county in which he did not live, he did not have to pay tithes in that county.  Non-resident owners leased their land out rather than work it for their own benefit.  This land, called a "quarter", was a tract worked by an overseer, usually on shares.

From 1705 until 1779, each county was divided into precincts.  For each precinct, a justice was appointed to compile a list of tithables in that precinct.  These lists, which were headed by the name of the precinct justice, were sometimes submitted with names in alphabetical order, but more commonly were not.  Through the years, depending on the law at the time, these lists would also contain the number of blacks and horses owned by the head of the household.

Counties retained the largest share of collected tithes, which were calculated by adding up the annual expenses and dividing those expenses by the number of tithables.  A personís total tax each year was the calculated tithe times the number of tithables in his or her household, plus any land taxes he or she was required to pay.

    Beginning in 1782, a record of landowners and the number of acres they owned was required to be kept by County Commissioners.  It was the first year in which a tax rate and amount of tax levied was recorded.

In 1786, the General Assembly of Virginia rewrote the tax law to incorporate several changes made after 1779.  The rewritten law essentially remained the same throughout the first half of the 19th century.

1787 was the first year personal property other than slaves was taxed.  Added to the list of taxable items were horses, cattle, carriage wheels, tavern licenses, billiard tables, physicians, surgeons, apothecaries, stud horses and the seasonal rate of covering them.

Voting

Virginia was the only colony in America to make voting compulsory during the colonial period.  Voting was considered a right and a duty.  But only for men who owned land.  Beginning in 1670, the only requirement to vote was to be a freeholder, an owner of land.  The definition of "freeman" is "one who is eligible to vote".  There were no restrictions to suffrage regarding race or nationality, other than gender.  To the delight of the colonists, the law did not specify the size of a freehold.  Men who considered the right to vote as the ultimate freedom, eagerly purchased small pieces of swampy land, if necessary, to qualify for suffrage.  The voting law did not require the freehold to produce a crop.

In 1736, the freehold qualification became more specific.  In that year, a freehold of 400 acres without a house was required, or 25 acres with a house.  Owning a house and lot in any town also qualified as a freehold.  In 1769, the requirement of a freehold was reduced to 50 acres without a house.  Apparently, this measure was taken to increase the number of voters in an attempt to placate the growing and vociferous objections of taxation without representation.  But by then, the rumblings of rebellion were already spreading throughout the colony as well as the rest of British America.

Slavery

    The first negroes brought to the colony of Virginia arrived in 1619 aboard a Dutch frigate (some historians dispute the report that the ship was Dutch\)Twenty in number, the purpose of importing the negroes was to augment the labor supply of indentured servants.  The ramifications of such a decision would bring 242 years of prosperity and turmoil to Virginia.  By 1660, Virginia law included the word "slave" when referring to negroes as servants, thereby creating a legal basis for slavery.

Two years later, the General Assembly of Virginia passed a law stating children of white men and negro women would have the same legal rights as their mothers.  If the mother was a free woman of color, her children were also free.  If the mother was a slave, her children became slaves.  Virginia law did not allow the emancipation of negroes or mulattos unless their owner paid the cost of transporting them from the colony.

    In 1705, legislation was enacted declaring negroes, mulattos and Indian slaves as Ďreal estateí rather than chattel.  This law allowed heirs of slave owners to inherit slaves under Virginiaís land inheritance laws.  It wasnít until 1748 that this law was repealed to define negroes, mulattos and Indian slaves as personal property.

    Any negro slave who served in the Revolutionary War was granted emancipation by Virginiaís General Assembly.  The Society of Friends also freed their slaves, based on religious beliefs.  Virginia law required all free negroes to register their status every three years.  In 1834, the law was expanded to require free negroes to also register any distinguishing marks upon their bodies.  These laws remained in effect until 1863 when Abraham Lincoln issued his illegal Emancipation Proclamation.  \(The issue of slavery was contained in Article IV, Sec.  2 of the U.S. Constitution and required a Constitutional Amendment to abolish the aberration, not a Presidential speech.)

    Legal definitions of color were also established in 1834.  Any person with just one negro grandparent was legally considered a negro, even if all other progenitors were white.  Any person with one-quarter or more negro blood was labeled a mulatto.  In legal records, they were called "free persons of color".

    Only "black" or "colored" columns were used in early tithe lists and census records, whether a person was negro, mulatto or of Indian heritage.  A "Racial Integrity Act" was passed in 1924 stating that only persons with one-sixteenth or less Indian blood, with no other non-white blood, could be legally designated white.  From 1912 to 1946, DrWalker Plecker, an avowed racist, was Registrar for the Virginia Bureau of Vital Records.  Using his position, and registers where Indians were classified as black or colored, Dr.  Plecker managed to erase from Virginia records any evidence of Indian heritage.  Genealogists researching "Registers of Free Blacks" should keep this in mind since the registers also included persons of Indian descent.

Births, Deaths, Churches

    According to a law passed in 1661, a record of births or christenings and deaths or burials had to be kept by parish churches.  One of the parents of every free child, and the owner or overseer of every newborn slave had to report such births or deaths to a minister within twenty days.  The minister was required by law to keep a register of these births and deaths.  This law remained in effect until 1782, when the Anglican church was disestablished.  After 1782, most churches maintained their own birth/christening and death/burial records, although the churches were not required to do so by law.  Unfortunately, most of these old registers have been lost or destroyed. According to a law passed in 1661, a record of births or christenings and deaths or burials had to be kept by parish churches.  One of the parents of every free child, and the owner or overseer of every newborn slave had to report such births or deaths to a minister within twenty days.  The minister was required by law to keep a register of these births and deaths.  This law remained in effect until 1782, when the Anglican church was disestablished.  After 1782, most churches maintained their own birth/christening and death/burial records, although the churches were not required to do so by law.  Unfortunately, most of these old registers have been lost or destroyed.  Jim Brown of Hurst, TX speculated that perhaps some parish registers were periodically sent to England as proof that the Church of England clergy were doing their jobs as required by law.  Locating parish records sent to England, for any reason, would be a boon to genealogical research.

    Every colonial church was constructed due east and west, according to ecclesiastical law.  The chancel was at the east end and the entrance to the church was at the west end.  The pulpit was always placed on the north wall.  No church in colonial Virginia provided heat or artificial light.  Attendees of church services were expected to have enough common sense to dress warmly in cold weather.  Virginia law forbade meetings at night, thus lanterns and candles were not provided.  Every householder was expected to remain at home after dark for the protection of his or her family.  Habitual absence from church was grounds for punishment, usually a fine of tobacco.  If the fine was not paid, Virginia law allowed for "ten lashes on the bare back".

    The original Gloucester County Abingdon Episcopal Church was built circa 1655.  The present church was constructed about one hundred years later, in 1755.  Built of rose brick, the church is eighty-one feet long and seventy-six and a half feet wide.  Its walls are two feet thick.  An old flagstone path leads to the door.  Much of the original woodwork from the older church was salvaged and used in the replacement building.  George Washington and Thomas Jefferson occasionally worshipped at the Abingdon Episcopal Church, often attending the same service.  \(The Throckmorton Family Reunion Data Sheet sent by M. Frances Osborn of Cape Cod, MA\)

    In 1724, Reverend Thomas Hughes reported to the Bishop of London that there were 300 families in Abingdon Parish.  Services were held in the forenoon every Lordís Day, Good Friday and ChristmasHoly Communion was administered three times a year, and an average of about 200 Christians attended the church.  (Virginia Colonial Churches, published by The Southern Churchman Company, 1908, Richmond, VA\)

Although the Church of England was the official, established church of Great Britain and its colonies, a law commonly called the "Act of Toleration" allowed petitioning by dissenting groups to gather in public worship.  Registration and certification as a dissenting group was applied for by Presbyterians, but not Baptists.  The Baptists refused to file for certification, stating that no one could tell them how or where to worship.  (Tidewater Virginia Families, A Magazine of History and Genealogy, Vol. 10, No.  3, Nov/Dec 2001, p. 163, Virginia Lee Hutcheson Davis, Publisher\)

Bastards and Indentured Servants

    Rosemary Hollis of Corona, CA contributed interesting information regarding Bastardy Bonds.  The purpose of a Bastardy Bond was to insure that a child born out of wedlock would be taken care of and would not become a burden on a parish.  When the pregnancy of an unmarried woman, or the birth of a child to an unmarried woman, was brought to the attention of the court, a warrant was issued, summoning the woman to court.  She was questioned under oath and asked to name the father of the child.  The person she declared to be the father was subsequently served a warrant and required to post a bond, usually the equivalent of $500.  If the woman refused to name the father, then she, her father or some other person was required to post the bond.  In some cases, the mother and father of the baby posted the bond together.  If the woman refused to name the father or post the bond, she could be punished with a jail sentence or a whipping.  The Bastardy Bond proceedings were not always strictly enforced.  There were many more children born out of wedlock than are accounted for by Bastardy Bonds.  Family status and influence probably kept many names out of court records.

    There were plenty of bastards in colonial Virginia"Bastard" was certainly an unjust term for innocent children born out of wedlock, but not for the men who were responsible for their births.  Male and female indentured servants worked from sunup to sundown, but the females had to contend with an additional burden.  When a master impregnated one of his servants, the law required that her indenture be extended for two years (a punishment later reduced to one year).  Masters often took advantage of that law and deliberately begat a child on a servant in order to benefit from her additional servitude.  To counteract this abuse, the General Assembly passed an act in 1662 requiring a churchwarden of the parish to sell the additional servitude to someone other than the master responsible for the pregnancy.  Proceeds from this sale were used for the support of the parish.

Despite the necessity for indentured servants, they were not always treated with kindness.  Given coarse woolen clothing to wear, forced to sleep in sheds or lofts, servants were fed on the thinnest soups and gruels, sometimes augmented with cornbread, only rarely with meat.  On the verge of malnutrition, they were prone to disease and many did not survive their indenture to achieve the elusive freedom for which they labored.

    The plight of indentured servants can be traced through the passage of laws designed to protect them.  While they themselves could not be sued by their masters, other than court action in the case of runaways, indentured servants were allowed to sue their masters.  James Coleman of the Westmoreland Co. VA Colemans was summoned to court on 27 Nov 1706 to answer a petition of his former servant Ellenor Mackmorris relating to her "freedom corne and cloaths and to show cause why he doth not pay her according to customs of the country".  \(Westmoreland Co. VA Order Book 1705-1721, Part I, John F. Dorman\) The rights of servants were outlined in a Virginia statute stating they were entitled to "competent dyett, clothing, lodging, moderate punishment, and freedom to complain of harsh treatment and bad usage".  If a master mistreated a servant, he could be called to court, at which time an agreement was made between the parties to ease the situation.  In cases of severe mistreatment, servants were removed from one master and their indenture was sold to another, presumably more humane, master.

Age Requirements

Although the age of discretion under common law was 14 for males and 12 for females, there were some exceptions.  The age at which a child was considered capable of acting responsibly, the "Age of Reason", was generally the age of seven years.  In 18th century Virginia, the legal requirement for a person to be "of age", an adult, was 21 years.

A person had to be at least 21 to sell property, to serve on a jury, to sue in his or her own name in a court of law, to sign a bond or promissory note or to marry for the first time without parental consent (males).  However, a person did not have to be 21 years of age in order to witness a document (age 14 for males, 12 for females).  Only males could be mustered into a militia, as long as they were at least 16 yrs.  of age.  To take possession of land, in the case of inheritance, a person had to be 16.  The phrase "in possession of" on tax rolls meant that the person named was at least 16 yrs.  of age.  Males had to be 21 in order to buy land, but a female could purchase land at the age of 18.  To testify in court, or to be punished for a crime, males had to be 14, females 12.

    If circumstances necessitated male children to be bound out until the age of 21, they were apprenticed to tradesmen, merchants, mariners or someone approved by the court.  Females were also bound out, but only until age 18 (or earlier, if she married).  The master or mistress of each bound child was to provide food, clothing and lodging, and to give each boundee, at the end of their apprenticeship, an allowance equal to that of indentured servants.  The master or mistress of a bound child was also required to teach the child to read and write.

    According to 1705 law, young servants imported to the colony were brought to court by their masters in an attempt to determine their ages.  If these servants were not indentured, and over the age of 19, they were ordered to serve only five years.  If they were under 19, they served until they were 24.  If the court was unable to officially judge their age, they were ordered to serve five years.  At the completion of servitude, compensation for males was fixed at "10 bushels Indian corn, 30 shillings in money or goods, one well-fixed musket or fusee (a friction match with a large head, able to burn in a wind) of the value of at least 20 shillings".  Female servants received 15 bushels of Indian corn and 40 shillings.

Marriage and the Law

Marriage bonds were a means of guaranteeing there was no legal impediment to a proposed marriage.  The bond, required before receiving a license to marry, was issued in the county where the bride resided.

    A marriage bond may have been as much as L500, but no money was actually paid.  If no evidence of a legal impediment occurred, the bond became void.  In Virginia, in order for males to marry for the first time without having reached the age of 21, the consent of a parent or guardian was required (age 18 for a female).  After 1748, the law specifically stated "consent of the father".  If a woman gave consent to a marriage after that year, the father of the bride would have been deceased, incapacitated, or not living with the family.  A bride may not have reached the age of 18, despite the lack of written consent.  Her father may have accompanied the groom to the courthouse, given his verbal consent to the marriage, and signed the bond as security.  If a bride was between the ages of 12 and 16, and she married without her fatherís consent, a 1705 marriage law stated she would forfeit her share of her fatherís inheritance to her next of kin.  If an underage child married, and his or her spouse died, the surviving underage spouse did not require parental consent to remarry.  A married child was not subjected to parental control.

    Indentured servants or slaves required the consent of their masters to marry.  Apparently, these marriages did not often occur, based on a lack of recorded consents.  Within the slave communities, marriages usually became official by "jumping the broom".  At an evening ceremony, when most slaves had completed their labors for the day, as many slaves as possible gathered as witnesses to a marriage.  By firelight, the groom and his bride would hold hands and jump over a broom held by two other slaves.  After the broom ceremony, all the slaves would celebrate with a special meal prepared for the event.  Songs and music would also be part of the festivities.

A marriage between a white person and a negro, mulatto or Indian was prohibited.  Punishment was banishment from the colony within three months.  This punishment explains why many racially mixed couples hid out in the hills \(See link: Melungeon Roots\).

    Sometimes marriages did not appear in official records.  This was due to a method of marrying called "publishing the banns", which was done three consecutive Sundays in the church nearest to where the prospective bride and groom resided.  Economics was also a factor when considering this alternative method of marrying.  In 1705, the cost of publishing the banns was 6 shillings 6 pence compared to a marriage license which cost 45 shillings (450 lbs.  of tobacco).  These fees remained in effect until 1780 when inflation caused the government to raise its share of a marriage license from 20 shillings \(L1\) to L10.

    The 1705 law governing marriage did not change until 1780 during the American Revolution.  In that year, ministers of denominations other than Anglican were certified by county courts to perform marriages.  Each minister and the clerk of a Quaker Meeting was required to submit to the court clerk a signed marriage certificate within three months of the wedding, and provide a quarterly report of the marriages he had performed.

    No 18th century law allowed a justice of the peace or other civil authority to perform marriages.  And there were no laws prohibiting divorce, legal separations or marital desertions. 

Debts

    An important clue as to an ancestorís county of residence can be found in Order or Minute Books regarding lawsuits for debt.  Suits by creditors to obtain payment of debts were tried in the county of residence of the debtor.  If a lawsuit was brought for less than 25 shillings or 200 lbs.  of tobacco, the judgment of any justice of the peace was binding.  In a lawsuit higher than that amount, up to L5 Virginia money or 1000 lbs.  of tobacco, the court ruled without a jury.  Above that amount, the lawsuit was tried before a jury.

Court Witnesses

    In 1727, witnesses in county courts were paid a per diem of 30 lbs.  of tobacco.  If the witness did not live in that county, he was also reimbursed for traveling expenses at the rate of 1-1/2 lbs.  of tobacco per mile.  The costs were paid by the party who had summoned the witness.

Laws of Inheritance

    During Virginiaís colonial period, laws of inheritance that governed the passing on of an estate were based on English common law.  Most of those laws were used until the 19th century, while some lingered on into the 20th century.  A number of factors determined the descendancy of land.  Among them were the principles of male preference over females, primogeniture, ancestral property and the exclusion of actual lineal descendants in addition to those of only half-blood.

    If there were two or more male heirs of equal age (twins, triplets, etc.) only the eldest male inherited.  Females inherited as a group.  When a deceased man left no children, the part of his estate not inherited by law by his wife passed to his collateral, whole blood relatives (brothers and sisters).  The term "of the whole blood" was used to describe the children of a manís first marriage, particularly his firstborn son.  With this type of inheritance, males always took precedence over females, unless the land had originally descended from a female.  Illegitimates, also referred to as half bloods, could not inherit land, but they could inherit an equal share of the personal property of their deceased parent.  Regarding personal property, the law preferred illegitimate half bloods before a deceased personís collateral relatives.  The legitimate children from a marriage could not inherit any part of an estate belonging to an illegitimate brother or sister.

    Virginia law concerning wills did not change much during the 18th century.  The law provided that every person aged 21 or older, except married women, could dispose of their lands by a will.  In the case of chattels, property other than real estate, the minimum age was 18.  If a will was written by a testator himself, the presence and signature of one witness was required.  If the actual writing of the will was done by a scribe without the presence of another person, two or more witnesses were required as to the testatorís wishes.

    The rights of a posthumous child were protected, even if he or she wasnít mentioned in the fatherís will.  Posthumous children were guaranteed the same share of their fatherís estate as though he had died intestate (without a will).  If there was only one child, born posthumously, any will left by the father became invalid.

    "Infant" was a legal term to describe a child whose father had died before that child reached the age of 21.  A father could name one or more guardians for his infant children in his will.  Guardians were required to manage the estates of the infant children, and arrange for their education.  If a father died intestate, the court would appoint a guardian unless a male child was 14 years or older, and a female child was 12 or older.  At those ages, he or she could choose their own guardian.  If an orphanís estate was too small to provide a guardian with sufficient funds to maintain and educate the child, the orphan was bound out (apprenticed).

    A widowís dower was also protected.  A dower was that part of a husbandís real estate given by law to his wife.  Dower rights gave a wife a one-third interest of her husbandís real property for the duration of her lifetime, and full ownership of one-third of his chattel.  A 1670 Statute of Distribution provided first for the payment of debts, and then a distribution of the remaining assets.  After the widowís one-third share was determined, the other two-thirds of the deceasedís real estate went to his children and their issue.  If a wife predeceased her husband, their children inherited his entire estate.  If no child was born to the couple, the wife received one-half ownership of his land and chattel, and the other one-half portion was allotted to the deceasedís collateral relatives.  If a deceased man left no widow or children, his collateral relatives inherited his estate.  But if a man died intestate and no heirs could be found, his land went to the overlord or to the crown by escheat, and his personal property went to the crown. 

    When a man predeceased his wife, and if she felt that the provisions of his will were less beneficial to her than her dower rights, she had a year in which to renounce the will.  She could do this by either appearing in court, or through the use of a deed.  If a wife legally renounced her husbandís will, she could not change her mind at a later date.

    By law, a beneficiary in a will could not also be a witness.  Until the "Statute of George II" was enacted, an entire will was invalidated if a beneficiary was also a witness.  After the statute was passed, only the portion of a will regarding a legatee/witness became void.  If the same name appears in a will as a legatee and a witness, they would not have been the same person.

A court could compel a person who knew of the existence of a will to produce it.  Heirs wishing to challenge a will were allowed seven years to initiate a chancery suit to do so.  In the meantime, Virginia law stated that land could only be transferred to certain lineal descendants of the original grantee.

    If a man died intestate, the court would appoint an administrator, giving preference to a widow.  If the widow refused to serve, the court would appoint the next adult in the order of inheritance.  When the court appointed an administrator, three appraisers were also named.  The appraisers, almost always neighbors of the deceased, would compile an inventory of the estateís personal property and assign a value to it.  The purpose of an appraisement was for compiling estate accounts, and for lawsuits against, or by, the estate.

    The executor or administrator of an estate was required to sell all perishable goods not necessary for the sustenance of the deceasedís family.  Proceeds of this sale were used to pay off creditors.  If the proceeds were insufficient to cover the debts of the deceased, other personal property was sold.  Slaves were sold last.  Distribution of the deceasedís property could not be made before nine months had passed This time period would allow for the birth of a posthumous child.

    The law did not require that a county clerk be notified of a death.  If a deceased person was debt-free and owned no land, his family was allowed to determine among themselves the disposition of his assets.

Women and the Law

In colonial Virginia, a married womanís rights were based on biblical teachings.  When a woman married, she became "one body" with her husband \(Matthew 19, verses 5-6) and "subject to your husband" \(Ephesians 5, verses 22-24).  These dictums were the basis for English law and remained American law well into the 19th century.  As a result, the rights of a married woman were severely restricted.  With few exceptions, she was not allowed to own land in her own right, nor to make a will.  Any real property that she brought to her marriage automatically became her husbandís, unless she had insisted on a prenuptial agreement.  Even after she was widowed and had received a life interest in a specific one-third of her late husbandís land, she had no say as to whom it would pass after she herself died.  The land would be devised to their living children or to the heirs of their deceased children.  She could not sue in a court of law except by the "next friend" method, which provided legal representation for minors, married women and mentally incompetent persons.  She had no legal say over who would be the guardian of her minor children after her husband had died, or in what religion they would be raised, provided her husbandís will had stipulated his wishes.  If her husband had been too poor to assure that she and her children were not going to become a public burden, she had no power to prevent her children from being taken away and bound out, often to a stranger.

    If an adult woman was a spinster or widow, she herself could sue in court, act as an executrix or administrator, be officially designated as the guardian of her children if she had sufficient means to care for and educate them, enter into contracts including indenture of servants, buy or sell land or slaves, or obtain an Ordinary license.  She could witness documents and testify freely in court without having to use a "next friend".  If she was a servant, she could take court action against her master for ill treatment or his failure to abide by the terms of the indenture.  Regardless of her marital status, no woman in 17th, 18th or 19th century Virginia could vote, serve on a jury or hold any public office.

   

Punishments

Whipping posts and stocks were used for punishment in colonial Virginia.  On 25 Jun 1661, Jerrard Hawthorne was assigned by the York County court to build a pair of stocks and a pillory.  He was to "fit them with Iron work and all things compleat".  Hawthorne was given a deadline of August 20th to complete the work, for which he would be paid 800 lbs.  of tobacco at the next levy.

A stock was a framework of heavy wood with holes for confining the ankles, and sometimes the wrists, of an offender.  A pillory was a wooden board with holes for the head and hands.  When an offender was locked in either of these devices, he or she was subjected to public scorn.  A pillory was most often placed near a courthouse.  \(York Co. Court Proceedings, William & Mary College Quarterly Historical Magazine, Vol. 11, pp. 28-38, July 1902)

Criminal offenses were punishable by death, branding, whipping or fines, depending on the degree of wrongdoing.  On 30 Jun 1704, a negro slave named Bridgett pleaded guilty to burning the buildings belonging to her master, John Page.  The court sentenced her to death by hanging for the crime of arson.  \(Extracts of York Co. VA Records, William & Mary College Quarterly Historical Magazine, Vol. 9, pp. 178-179, January 1901)

Anyone who spoke "dangerous and unlawful words" about the king of England was considered a lunatic.  On 24 Jun 1661, Thomas Cheney was found guilty of such talk and sentenced to receive "thirty stripes on his bare back, well layd on till ye blood come, and then returned to court".  \(York Co. Court Proceedings, William & Mary College Quarterly Historical Magazine, Vol. 11, pp. 28-38, July 1902)

    Perhaps the worst English law involved the punishment meted out for the crime of treason.  This punishment occurred in the colonies until after the American Revolution.  Royalist governors and military leaders did not hesitate to carry out the letter of the law as a warning to anyone who dared rebel against the king of England"That the prisoner should be carried to the place from whence he came, that he should be drawn from thence to the place of execution and hanged by the neck, that he should be cut down while yet alive, that his bowels should be taken out and burned before his face, that his head should be cut off, and that his body should be divided into four quarters, which are to be placed at the Kingís disposal." \(From Colonial Records of North Carolina, Vol. 8, p. 643.)

The Great Seal of the Commonwealth

The spirit of democracy in colonial Virginia was evident long before the American Revolution.  The enslavement of negroes created a totally independent white class.  During the 18th century, white indentured servants had ceased to be imported to the colony in any great numbers.  Thus, negro slavery made race, not class, the distinction in colonial socio-economic issues.  Poorer whites were no longer in servitude, nor did wealthy plantation owners employ them.  This circumstance, and their isolated lifestyle, forced the colonists to develop self-confidence and self-reliance. 

With a piece of land, a house and farm stock, most Virginians had more than they ever had hoped to have in England.  A class of people was created, people proud of their accomplishments, their meager belongings, and most of all, their freedom.  Not for a moment did they seriously consider the idea of returning to England, only to be thrust back into servitude.  After the Revolution, this attitude was reflected in the design of the Great Seal of the Commonwealth.

Virginians rejected other statesí choices of clinging to English heraldry with shields and coats-of-arms.  Those symbols celebrated feudalism, the rich manís power and the poor manís servitude.  Instead, Virginian officials chose a simple design based on Roman mythology.  One side depicts the Roman goddess Virtus (virtue).  Dressed as an Amazon, she holds a sheathed sword in one hand and a spear in the other.  Virtus stands with her left foot on the breast of Tyranny, his fallen crown nearby, a clear symbol of complete victory.  Virginiaís motto "Sic Semper Tyrannis" \(Thus Always to Tyrants\) is at the bottom of the seal.  On the reverse side are three Roman goddesses representing Liberty, Eternity and FruitfulnessAt the top of this side is "Perservando" (by Persevering\).

A basic knowledge of early Virginia law is very helpful when trying to determine the meaning of a particular record.  The definitions of some of the commonly used legal terms used in early Virginia can be found in the link: Legal Terms and Word Definitions.

 

Other sources for this section:

A paper presented at the Library of Virginia on November 17, 1999 by John P. Alcock, President, Friends of the Virginia State Archives

Tidewater Virginia Families, A Magazine of History and Genealogy, Laws Concerning Blacks in Virginia, Vol. 8, No.  2, pp. 38-39, Virginia Lee Hutcheson Davis

A Place In Time, Middlesex County, Virginia 1650-1750, Darrett B. and Anita H. Rutman, W.W. Norton & Company, New York, New York, 1984

A Guidebook of American Genealogy, Ages of Legal Action, pp. 209-10, Table 7-4, contributed by Louise Birchfield of Austin, TX

William and Mary College Quarterly Historical Magazine, Vol. 6, No.  1, July 1897