View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Valparaiso University Valparaiso University Law Review Volume 48 Number 3 Spring 2014 pp.757-883 Spring 2014 Law and the Structure of Power in Colonial Virginia William E. Nelson Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation William E. Nelson, Law and the Structure of Power in Colonial Virginia, 48 Val. U. L. Rev. 757 (2015). Available at: https://scholar.valpo.edu/vulr/vol48/iss3/9 This Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Nelson: Law and the Structure of Power in Colonial Virginia Lectures LAW AND THE STRUCTURE OF POWER IN COLONIAL VIRGINIA William E. Nelson* I. INTRODUCTION For most of England’s North American empire, the restoration of Charles II to the nation’s throne in 1660 quickly led to a sharp break in the continuity of the legal system. In New England, the crown began to interfere with local legal ordering in ways unprecedented since Plymouth had been founded in 1620. In the Middle Atlantic, the Restoration led to a new imperialism that replaced Dutch rule and Dutch law with English rule and English common law. In the Carolinas, Charles II’s new policies led to the founding of two new colonies. Such was not the case in Virginia. With the restoration of Charles II to the English throne, the king also restored Sir William Berkeley, a former royal governor, to his post in Virginia, and the law continued to develop largely in directions it had already been moving. A potentially transforming event occurred a decade and a half later, when Nathaniel Bacon, a newcomer from England who had settled on the Virginia frontier, led a rebellion that resulted in a civil war that nearly toppled the colonial regime. Ultimately Bacon’s Rebellion was suppressed, and its suppression resulted not in change, but in reinforcement of legal developments that were already occurring. This Article proceeds in four main parts. Part II focuses on the decade and a half between the Restoration and Bacon’s Rebellion and examines Virginia’s unstable and somewhat weak legal order in the 1660s and early 1670s.1 Rapid immigration by whites lay at the root of the instability; Virginia’s planters needed laborers—mainly in the form of young, mostly male, indentured servants—for the economy to grow and prosper. However, the colony proved unable to absorb those newcomers into the governing elite after they completed their period of servitude. Instead, the freed laborers grew into a landless, sullen, and * Edward Weinfeld Professor of Law and Professor of History, New York University. A condensed version of this article was delivered as the Martin Luther King Lecture at Valparaiso University School of Law on January 23, 2014. The author is indebted to the Filomen D’Agostino and Max E. Greenberg Faculty Research Fund of New York University School of Law for research support and to the members of the Legal History Colloquium at New York University for their comments and criticisms. 1 See infra Part II (examining the weak nature of Post-Restoration law in Virginia). 757 Produced by The Berkeley Electronic Press, 2015 Valparaiso University Law Review, Vol. 48, No. 3 [2015], Art. 9 758 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 48 unruly lot that eventually turned to open rebellion. As noted above, however, their rebellion failed. In the aftermath of rebellion, Virginia’s governing elite solidified its power. In the short term, rebels were punished, compelled to give peace bonds promising obedience, or otherwise coerced into quiescence. In the longer run, except in connection with the somewhat later settlement of the Shenandoah Valley, Virginia became increasingly unwelcoming to white immigrants, at least in comparison with other colonies like Pennsylvania that had been founded in the Post-Restoration era. After the 1670s, whites tended to immigrate to those other colonies, and Virginia was forced to replace its white, indentured servants with black African slaves, who became victims of severe forms of repression that never could have been imposed on voluntary immigrants from Europe. As a result, elites had an easier task of governance in the eighteenth century than they had had in the seventeenth—they only had to control a smaller, stable class of whites positioned midway between themselves and their slaves rather than a growing underclass of whites striving for upward mobility. Part III will examine how the structure and procedures of the legal system enabled elites to exert that control.2 Meanwhile, Virginia’s substantive law continued to develop in the directions it had taken since the 1620s. In an effort to attract settlers and capital, Virginia continued to champion private property and facilitate the collection of debts. The law also strove to encourage immigration from Europe by improving the well-being of indentured servants, in part by conferring real rights on those servants but also by distinguishing white servants from black slaves through degradation of the latter. Taken together, the degradation of Africans and their descendants and the replacement of white with black labor, together with the protection of creditors and property owners, set in motion chains of causation that would result in the inhumanity and injustice of nineteenth-century slavery. Part IV will examine these developments.3 By the middle of the eighteenth century, Virginia’s provincial elites together with crown officials could look with some satisfaction on the legal order they had created. They governed the colony effectively, with no outward signs of resistance to the powers in authority. Virginians were among the most docile and supportive subjects in Great Britain’s colonial American empire. Nonetheless, some fragility remained. In analyzing developments in Virginia law after 1750, Part V will examine 2 See infra Part III (explaining how Virginia elites strengthened their legal power throughout the 1600s). 3 See infra Part IV (examining various substantive law areas in colonial Virginia). https://scholar.valpo.edu/vulr/vol48/iss3/9 Nelson: Law and the Structure of Power in Colonial Virginia 2014] Law and the Structure of Power 759 how that fragility was gradually exposed. Ultimately its exposure led to the collapse of Virginia’s colonial legal order in 1776.4 In addition to providing the first general history of colonial Virginia law, this Article seeks to intervene in two respects in ongoing scholarly debates. First, in respect to the subject of slavery. For almost three- quarters of a century, historians have rightly assumed that colonial Virginia slavery was thoroughly unjust and inhumane, but few have inquired in a systematic fashion about what made it so. This Article urges that historians have used the concept of slavery to describe a wide variety of vastly different socio-economic systems of subordination and also urges that various conditions and circumstances on the ground have made those different systems more and less evil. The Article then offers a specific theory, together with some tentative but by no means full evidentiary support, to suggest what made Virginia slavery more inhumane and unjust than most other systems of servitude. Second, in respect to the subject of the causes of the American Revolution. For the past half century, most historians have searched for causation in the realm of political and legal ideology. This Article finds that search misguided in Virginia’s case. Although Virginia lawyers undoubtedly employed familiar political, constitutional, and legal ideas in challenging Parliamentary policies, this Article suggests that economic considerations combined with ideological and constitutional ones to motivate Virginia planters as they ceased being some of the most docile and supportive of Britain’s colonials and instead became almost unanimous defenders of American rights and ultimately of American independence. II. THE WEAKNESS OF POST-RESTORATION LAW Historians generally agree that in the 1660s and 1670s the legal system of Virginia—consisting of a colony-wide General Court and local county courts—suffered from instability and weakness despite the broad civil, criminal, equitable, and regulatory jurisdiction that both the General Court and the county courts possessed. The root problem lay in the large number of landless, difficult-to-govern, former indentured servants whom the colony’s small governing class lacked sufficient power to coerce. The system had to govern by consent since it was too weak to do otherwise.5 4 See infra Part V (examining the weakening of the Virginia legal order throughout the 1700s). 5 See JOHN RUSTON PAGAN, ANNE ORTHWOOD’S BASTARD: SEX AND LAW IN EARLY VIRGINIA 51 (2003) (providing the most recent monograph on the legal system of seventeenth century Virginia). The jurisdiction of the courts is outlined in more detail below. See infra Part III.E.1. Produced by The Berkeley Electronic Press, 2015 Valparaiso University Law Review, Vol. 48, No. 3 [2015], Art. 9 760 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 48 A good deal of evidence of the weakness of post-1660 legal institutions exists. A persistent sign was the difficulty of obtaining the attendance of witnesses,6 jurors,7 and even justices in court.8 There was also “the long & tedious”9 nature of sometimes “frivolous”10 litigation that parties could pursue until they were either satisfied with the result or totally exhausted. If a litigant did not approve of a result in a county court, he could appeal to the General Court,11 even from a second decision in “a vexatious turbulent cause already judged,”12 and from the 6 See, e.g., R v.