THE
Statutes at Large;
BEING
A COLLECTION
OF ALL THE
LAWS OF VIRGINIA
FROM THE
FIRST SESSION OF THE LEGISLATURE
IN THE YEAR 1619
PUBLISHED PURSUANT TO AN ACT OF THE GENERAL ASSEMBLY OF VIRGINIA,
PASSED ON THE FIFTH DAY OF FEBRUARY ONE THOU-
SAND EIGHT HUNDRED AND EIGHT.
VOLUME I.
By WILLIAM WALLER HENING.
"The Laws of a country are necessarily connected with
every thing belonging to the people of it;
so that a thorough knowledge of them, and
of their progress, would inform us of everything that
was most useful to be known about them;
and one of the greatest imperfections of historians in
general, is owing to their ignorance
of law," Priestley's Lect. on His. Vol. 1. pa. 149.
NEW YORK:
PRINTED FOR THE AUTHOR, BY R. & W. & G. BARTOW
1823
WE, P. V. Daniel, William F. Pendleton, William Robertson,
and William Selden, members of the executive council of Virginia, do hereby certify that the
laws contained in the first volume of HENING'S Statutes at Large have been, by us,
examined and compared with a copy as corrected by the certificate of the examiners, heretofore
appointed, from which they were taken, by William F. Pendleton and William Selden, from
page 1, to page 368 inclusive, by William F. Pendleton and William Robertson, from page 369 to
page 428, inclusive, and by William F. Pendleton and Peter V. Daniel, from page 429, inclusive to
the end, expect from page 465 to page 472, inclusive, which were examined by Peter V. Daniel and
William Selden, and we have found the pages respectively examined by us, truly and accurately
printed except as to the following list of errata, to the number of twelve.
Given under our hands, this 14th day of July, 1823.
P. V. DANIEL.
W. F. PENDLETON.
W. ROBERTSON.
W.
SELDEN.
| ERRATA |
|---|
| Page | 217, line 11 from top, strike out "L" after
"3" |
| 218, line 4 from bottom, insert "out" after
"parts" |
| 258, line 12 from bottom, insert "be" after
"to" |
| 259, line 10 from bottom, strike out
"continue" |
| 278, line 2 from bottom, for "ordered" read
"enacted" |
| 292, line 2 from top, strike out "three" after
"the" |
| 304, line 14 from top, insert "as" after
"binding" |
| 342, line 10 from top, for "on" read
"no" |
| 360, line 16 from top, for "but" read
"by" |
| 518, line 17 from bottom, for "though" read
"through" |
| 539, line 9 from bottom, insert "in" before
"tobacco" |
| 541, line 18 from top, for "so" read
"to" |
PREFACE
TO THE FIRST EDITION
WHETHER I shall render an acceptable service to my native state in
furnishing the only authentic materials for its early history, which have hitherto been
published, and which display alike the virtue and vices, the wisdom and folly of our ancestors, I
am at a loss to conjecture. Nations as well as individuals have their pride of ancestry; and
poets and historians in all ages have delighted to gratify that harmless propensity. Homer
has interwoven a few historical facts, with a strange mixture of Grecian mythology.
His heroes were all allied to the Gods, and the celestial beings, in every conflict, had their
feelings enlisted on the side of their respective descendants. he is the only historian of the
Trojan war; and amidst the innumerable beauties of this immortal bard, we almost lose sight of
the fictions by which his poem abounds. Virgil, in imitation of his great prototype,
equally administered to the vanity of the Romans. It was not enough that they were the
successors of Janus, of Saturn, of Jupiter, and a whole race of
Latin kings, who were afterwards deified, and that their city was founded by Romulus,
the son of the God Mars, but their passion for illustrious ancestors gave a ready
admission to Æneas the Trojan, son of Anchises by the Goddess
Venus, and ranked by him as the sixth King of the Latins. Livy, one of
the best of the Roman historians, introduces his work with those fabulous accounts,
which the prejudices of education had induced the best informed of his countrymen to adopt
Modern English historians have, with propriety, rejected the
legendary tales with which the writings of their predecessors are filled; but the early histories
of all the kingdoms of Europe, established after the dark ages, which succeeded the decline and
fall of the Roman empire, contain little more than the traditions of their bards. Indeed, until
we come to the laws of a nation, it is impossible to form a correct idea of its civil
polity, or of the state of society:
"As every new law," says a celebrated writer, "is made to
remove some inconvenience the state was subject to before the making
iv PREFACE
of it, and for which no other method of redress was effectual, the law itself is a standing, and
the most authentic evidence we can require of the state of things previous to
it"a
The colony of Virginia having been planted long after the revival of letters
in Europe, b as well as the general introduction of the use of the press, it might
have been expected that every thing relating to our early history would have been carefully
preserved. But it is a melancholy truth, that though we have existed as a nation but little more
than two hundred years, our public offices are destitute of official documents. It is to
the pious care of individuals c only, that posterity will be indebted for
those monuments which perpetuate the oppressions of the kings of England, and the patient
sufferings of the colonists. When we compare the extensive grant of territory contained in the
charters of King James I. to the London Company, d with the narrow limits to which
the colony of Virginia was afterwards reduced; when we review the arbitrary conduct of that
monarch in suspending the powers of the company, by proclamation, and the equally unjust
proceedings of his son, Charles I. in taking the government into his own hands; e
and when we contemplate the gradual but progressive encroachments of his successors, on the
rights of the people, till resistance became indispensable, we shall cease to wonder that so few
evidences of their turpitude have been suffered to remain. What was left undone by the
predecessors of George III, was consummated during his reign. All the papers, except a few
fragments deposited in the archives of the Council of State, and other public offices, within the
reach of his myrmidons, were, with more than the savage barbarity of the Goths and Vandals,
committed to the flames.
In the infancy of our legislation, the laws were few and simple. They
related chiefly to the church government; to the culture of tobacco and other staple commodities;
to defensive operations against the Indians, and such other subjects as would naturally engross
a Priestley's lectures on history, vol. 1, pa. 149.
b The first charter of king James I. for two several
colonies and plantations in Virginia, bears date the 10th of April, 1606 (see pa. 57;) and the first permanent settlement was made on the
16th of April, 1607 (see pa. 132.) All the public papers, in
the early periods of the colony, are dated in such a "year of the plantation," answering to the
above date for its foundation.
c Thomas Jefferson, late President of the United States, has
contributed more than any other individual to the preservation of our ancient laws. He very early
employed himself in collecting them for the public use; and to his assistance the editor is
chiefly indebted for the materials which compose the present work −−− Several
other gentlemen have very obligingly aided the exertions of the editor; an acknowledgment of
which is made at the commencement of the acts of each session.
d Four hundred miles on the sea coast, and all that space
westwardly to the Pacific ocean (see pa. 88;) and all the
islands lying within three hundred leagues of the coast of Virginia (see pa. 100.)
e See Jefferson's Notes on Virginia, Query XIII, pa. 118,
123 of 1st edit. pa. 212, 218 of last edit.
v
PREFACE
the attention of the legislature, in a
newly settled country. −−− The acts of each session (which exist only in
manuscript) were promulgated, by reading to the people at the beginning of every monthly court,
and by having copies deposited in the clerk's office for the inspection of those who wished to
consult them. f Besides, as every plantation or settlement was entitled to as many
representatives as the inhabitants thought proper to elect. g the members, on their
return home, could easily communicate to their neighbors the substance of the laws which had
passed.
It was not until the year 1733, that an edition of our laws was printed in
Virginia. Purvis's Collection, as it is generally called, was published in London,
without date, and only with the initials of the printer's name, (T. J. for J. P.) but supposed to
be between the years 1684 and 1687, it dedicated to Lord Howard, governor of Virginia,
who held that office during the above period: in 1722. h an Abridgement of the Laws
of Virginia (ascribed to Beverley) was also published in London; and in 1728, h a
second edition of the same work. The volumes of Purvis appear to have been bound up with
blank leaves at the end, for the reception of subsequent MS. laws, and to have been distributed
to the respective counties at different times; as some copies have more, and some less of those
MS. acts transcribed into them. For many years after the publication of this book, it is referred
to, by the printed laws: * but it is so grossly inaccurate, that but
little use will be made of it in the present edition. On comparing it with two MSS. embracing the
same period, and which are of undoubted authority and accuracy, it has been discovered that not
only entire sentences, but whole acts are omitted; besides innumerable typographical errors,
which totally vary the sense. So much of the acts from which Purvis's collection was
printed as contained the revisal of 1661-2, were transmitted to Sir William Berkeley, then in
England, for the king's confirmation, after which he was requested to deliver them to the
assignee of Henry Randolph, clerk of the assembly, who had the exclusive right of
printing and vending the copies for ten years. i The acts from 1661-2 to 1682,
inclusive, where Purvis ends, were probably transmitted to London and incorporated in
the volume, without any special sanction of the legislature.
During the early periods of legislation in Virginia, it was the usual
f See act LXVII. of 1631-2, pa. 177, and act LXI. of 1632, pa. 202.
g See pages 138, 147, 153, 177, where it will be observed that the representation was by
plantations.
h A copy of each is in possession of the editor; the former
the property of Lenæus Bolling, Esq. and the latter of William Wirt, Esq.
* This is a mistake. See preface to 2d Vol
i See Vol. 2, act 142 of
March, 1661-2.
vi
PREFACE
practice, whenever a law required amendment, to re-enact it, with the amendments introduced into
the body of it. It was customary too, at each session, to repeal all former laws, k
and either re-enact them in the very same words of the act repealed, or with such amendments as
experience might suggest. While they existed only in manuscript, and were promulgated by being
publickly read, this mode was attended with peculiar advantages: for the people, at once, heard
the whole law on a subject, without being compelled to ask the advice of counsel, or to
resort to the clerk's office for a reference to the only copy extant in their county.
The first revisal of our laws was in September, 1632, though none was
expressly so called, until March, 1642-3. In March 1657-8, during the existence of the
commonwealth of England, another revisal was made, adapting the laws of the colony to the state
of the church, and the republican institutions of that period. l In March, 1661-2,
after the restoration, the laws were again revise. One of the avowed objects of this revisal, as
expressed in the preamble to the acts, was to repeal and expunge all laws "which might keep in
memory their forced deviation from his majesties obedience." The next revisal was in 1705. All
the foregoing, except Purvis's collection, exist to this day in manuscript. The
printed revisals since that of Purvis, are the editions of 1733, 1752, 1769, 1785, 1794,
1803, and 1808. Beverley's and Mercer's abridgements cannot properly be deemed
revisals.
In the mode adopted for the revision of the laws, their history and progress
have been completely lost. When various and prior acts on the same subject, have been
consolidated into single bills, they were enacted into laws, as of the date when the legislature
last acted upon them. The session acts, from which they were taken, were thrown aside as waste
paper, and in the course of a few years, the original law was wholly forgotten. A remarkable
instance of this occurred in the act "For a free trade with Indians." It originally passed in
1692; but was incorporated in the manuscript revisal of 1705, without any notice of the act from
which it had been taken. In 1733 it was printed from the act of 1705, and as of that date. This
being the first appearance of the law in print, our supreme court decided, that the act,
as passed in 1705, was
k See act LXVI. of February, 1631-2 (pa 177) and act I. of Sept. 1632 (pa. 179-80) by which all former laws were repealed; and many of
the acts of these sessions will be found to be mere repetitions of former ones.
l Compare act I. of March, 1657-8 (pa. 433) with act I. of March, 1642-3 (pa. 240) and it will at once be discovered that the laws for
settling the church government, during the commonwealth, instead of enjoining obedience to the
doctrines and discipline of the Church of England, left the people to the exercise of their own
judgments.
vii
PREFACE
the first law which restricted the right of making slaves of Indians. m The act of
1691, which having been afterwards discovered in an edition of Purvis, I
into which it had been transcribed, the district court of Accomack held that it was the law of
the land, and equally restricted the right of making slaves of Indians, with the act of 1705.
I Since then two other manuscripts, containing the same law, as passed in 1691,
have been discovered; I and the supreme court of appeals have unanimously
established their authority and decided that "No native American Indian, brought into
Virginia since the year 1691, could, under any circumstances, lawfully be made a slave:"
I Thus it happened, that under the influence of the first opinion of our
supreme courts, arising from the want of access to the laws, thousands of the descendants of
Indians have been unjustly deprived of their liberty.
With men of liberal and enlarged minds, it had long ben a subject of serious
regret that no legislative means were adopted for the preservation of our ancient laws, so very
essential to a correct view of our history, and on which so much property depended. The evil
began to be so sensibly felt, as it respected questions of property, that the legislature, at the
session of 1795, passed an act directing that all the laws and clauses of laws, whether public or
private, relating to lands, tenements, or hereditaments, within this commonwealth, at any time
passed since the first settlement of Virginia, should be collected, and an edition of one
thousand copies published. A committee, consisting of GEORGE WYTHE, JOHN BROWN, JOHN MARSHALL, BUSHROD WASHINGTON and JOHN WICKHAM, was
appointed, who, or any three of them, were requested to carry the intention of the legislature
into effect. r In pursuance of this act, the chairman of the committee (Judge
Wythe) addressed a letter to Mr. Jefferson, requesting the use of his collection of laws, which
was known to be more complete than any other extant. Mr. Jefferson sent his collection
of the printed acts, but immediately afterwards, in a letter to Mr. Wythe, gave
such cogent reasons for extending the publication so as to embrace all
m See the case of Hannah & others vs. Davis, in the general
court, mentioned in a not to Tucker's Blackstone, vol. 1, part 2, pa. 47. See also the case of
Coleman vs. Dick & Patt. I. Wash. 233.
m An exact copy is in the possession of Thomas Evans,
esquire, of Accomack, now one of the judges of the general court, by whom the editor was favored
with the perusal of it.
o See judge Tucker's opinion in Hudgins vs. Wrights, I. Hen.
& Mumf. 136.
p One belonging to Thomas Jefferson, late president of the
United States; the other presented to the editor by the court of Northumberland county, and both
now in his possession.
q See 2, Hen. and Mumf. 149, Pallas and others vs. Hill and
others.
r See Revised Code, vol. 1, pa. 348.
viii
PREFACE
our laws, that the committee declined entering upon the object of their appointment, till the
sense of the legislature could be taken on this more enlarged plan. In the mean time the
operation of the act for collecting an publishing all the laws concerning lands was
suspended; s the following letter from Mr. Jefferson to Mr. Wythe,
was submitted to the legislature, by governor MONROE, at the session
of 1800, and a bill passed the house of Delegates for publishing a certain number of copies of
all the laws; but an amendment having been introduced in the Senate, the bill, on its
return to the House of Delegates, was lost.
"Monticello, January 16th, 1792.
"In my letter which accompanied the box containing my collection of printed
laws, I promised to send you by post a statement of the contents of that box. On taking up the
subject I found it better to take a more general review of the whole of the laws I possess, as
well manuscript as printed, as also of those which I do not possess, and suppose to be no longer
extant. This general view you will have in the inclosed paper, whereof the articles stated to be
printed, constitute the contents of the box I sent you. Those in MS. were not sent, because not
supposed to have been within your view, and because some of them will not bear removal, being so
rotten, that, on turning over a leaf, it sometimes falls into powder. These I preserve by
wrapping and sewing them up in oiled cloth, so that neither air nor moisture can have access to
them. −−− Very early in the course of my researches into the laws of Virginia,
I observed that many of them were already lost, and many more on the point of being lost, as
existing only in single copies in the hands of careful or curious individuals, on whose deaths
they would probably be used for waste paper. I set myself, therefore, to work to collect all
which were then existing, in order that when the day should come in which the public should
advert to the magnitude of their loss in these precious monuments of our property and our
history, a part of the regret might be spared by information that a portion has been saved from
the wreck, which is worthy of their attention and preservation. In searching after these remains,
I spared neither time, trouble nor expense; and am of opinion that scarcely any law escaped me,
which was in being as late as the year 1770, in the middle or southern parts of the state. In the
northern parts perhaps something might still be found. In the clerks' offices in the ancient
counties some of those MS. copies of the laws may possibly still exist which used to be furnished
at the public expense to every county before the use of the press was introduced; and in the same
places, and in the hands of ancient magistrates,
s See Revised Code, vol. 2, App. No. IX, pa. 129.
ix
PREFACE
or of their families, some of the fugitive sheets of the laws of separate sessions which have
been usually distributed since the practice commenced of printing them. But recurring to what we
actually possess, the question is, what means will be the most effectual for preserving these
remains from future loss? All the care I can take of them will not preserve them from the worm,
from the natural decay of the paper, from accidents of fire, or those of removal, when it is
necessary for any public purpose, as in the case of those now sent to you. Our experience has
proved to us that a single copy, or a few, deposited in MS. in the public offices, cannot be
relied on for any length of time. The ravages of fire and of ferocious enemies have had but too
much part in producing the very loss we now deplore. How many of the precious works of antiquity
were lost, while they existed only in manuscript? Has there ever been one lost since the art of
printing has rendered it practicable to multiply and disperse copies? This leads us then to the
only means of preserving our laws now under consideration, that is, a multiplication of printed
copies. I think therefore that there should be printed at the public expense, an edition of all
the laws ever passed by our legislatures that can now be found; that a copy should be deposited
in every public library in America, in the principal public offices within the state, and some
perhaps in the most distinguished public libraries in Europe, that the rest should be sold to
individuals towards reimbursing the expenses of the edition. Nor do I think that this would be a
voluminous work. −−− The MSS. would probably furnish matter for one printed
volume in folio, and would comprehend all the laws from 1624 to 1701, which period includes
Purvis. My collection of fugitive sheets forms, as we know, two volumes, and comprehends all the
extant laws from 1734, to 1783, and the laws which can be gleaned up, from the revisals, to
supply the chasm between 1710, and 1734, with those from 1783, to the close of the present
century (by which term the work might be compleated) would not be more than the matter of another
volume. So that four volumes in folio probably would give every law ever passed which is now
extant: whereas those who wish to possess as many of them as can be procured, must now buy the
six folio volumes of revisals, to wit, Purvis, and those of 1732, * 1748,
†, 1768, ‡ 1783 §and 1794, and with all
of them possess not one half of what they wish. What would be the expense of the edition, I
cannot say, nor how much would be reimbursed by the sales; but I am sure it would be moderate
compared with the rates which the public have hitherto paid for printing their laws, provided a
sufficient latitude be given as to printers and places. their first step would be to make out a
single
* Printed in 1736.
† Printed in 1752.
‡ Printed in 1769. § Printed in
1785.
x
PREFACE
copy from the MSS. which should employ a clerk about a year, or something more; to which expense
about a fourth should be added for the collation of the MSS. which would employ three persons at
a time about half a day or a day in every week. As I have already spent more time in making
myself acquainted with the contents and arrangements of these MSS. than any other person probably
ever will, and their condition does not admit their removal to a distance, I will chearfully
undertake the direction and superintendance of this work, if it can be don in the neighbouring
towns of Charlottesville or Milton, farther than which I would not undertake to go from home. For
the residue of the work my printed volumes might be delivered to the printer. I have troubled you
with these details, because you are in the place where they may be used for the public service,
if they admit of such use, and because the order of assembly, which you mention, shews they are
sensible of the necessity of preserving such of those laws as relate to our landed property, and
a little further consideration will perhaps convince them that it is better to do the whole work
once for all, than to be recurring to it by peace-meal, as particular parts of it shall be
required, and that too, perhaps, when the materials shall be lost."
The Editor having been, for more than twenty years engaged in collecting the
fugitive sessions acts, and believing that his own collection added to that of Mr. Jefferson's
(with which he was well assured he would be furnished) formed the only one in existence which was
worthy of publication, determined to set about the work, lest by some accident the lapse of a few
years might deprive posterity of the remaining documents then within his reach.
On communicating his intention to Mr. Jefferson, he was favored with the
following letter, which at once shews the degree of importance which that great man ataches to
the undertaking, and the opinion which he was pleased to express of the editor's competency for
the execution of it.
Extract of a letter from Thomas Jefferson, President of the United
States, to Wm.
W. Hening.
Washington, Jan. 14, '07.
"
−−−−−− The only object I had in making my collection of the
laws of Virginia, was to save all those for the public which were not then already lost, in the
hope that at some future day they might be republished. Whether this be by private of public
enterprize, my end will be equally answered: The work divides itself into two very distinct
parts, to wit, the printed and the unprinted laws. The former begin in 1662 (Purvis's
collection.) −−− My collection of these is in strong volumes, well bound, and
therefore
xi
PREFACE
may safely be transported any where. Any of these volumes which you do not possess, are at your
service for the purpose of republication. But the unprinted laws are dispersed through many MS.
volumes, several of them so decayed that the leaf can never be opened but once without
falling into powder. These can never bear removal farther than from their shelf to a table.
They are as well as I recollect from 1622 downwards. I formerly made such a digest of their
order, and the volumes where they are to be found, that under my own superintendance they could
be copied with once handling. More they would not bear. Hence the impracticability of their being
copied but at Monticello. But independent of them the printed laws, beginning in 1662, with all
our former printed collections, will be a most valuable publication, and sufficiently distinct. I
shall have no doubt of the exactness of your part of the work, but I hope you will take measures
for having the typography and paper worthy of the work
−−−−−−−−− .
TH. JEFFERSON."
At the session of 1807, the editor submitted a memorial to the General
Assembly, stating his object and requesting that some mode might be adopted to give authenticity
to the laws which he was about to publish. An act was accordingly passed, in pursuance of which,
the work has been proceeded on. That he has executed it to the entire satisfaction of every one,
cannot be expected; but that he has spared no pains to render it worthy of the approbation of an
enlightened public, he is perfectly conscious.
It may be an objection with some, that the orthography in which the laws
were written has been strictly preserved: But the slightest reflection will evince the propriety
of this measure. In no other way can the history of a language be accurately traced; nor is there
any circumstance which more clearly distinguishes a genuine from a spurious
paper. To the mind of the editor nothing can be more improper, in transcribing from an original,
than to vary the spelling of the words, to suit the fluctuations of a living language. It would
be just as proper for a painter, in copying the picture of an ancient Turk with his mustachoes,
to give him the beardless face of a modern American Indian.
Until the reign of queen Anne, the English language was extremely variable
and unsettled. The best informed men, writing at the same period, would spell the same words very
differently. This is particularly remarkable in Haynes's, Murdin's and Thurloe's state
papers, which are truly copied from the originals. When that bright constellation of writers,
composed of Addison, Pope, Swift, &c. &c. made their appearance, it was supposed that our
language was unalterably settled; succeeding writers have taken them as a
xii
PREFACE
model; and lexicographers in abundance have sprung up, who have been satisfied if they could
trace a word to such respectable authorities. But it should be recollected that, during the
constant mutations of a living language, corruptions are imperceptibly creeping in; and that
whenever we stop at any particular period and attempt to fix a standard, as of the language then
used, we necessarily embrace some of those corruptions. Thus, it will be seen in the present
volume, that from the year 1623, till towards the restoration in 1660, the word "governor" was
generally spelt without the "u," in the termination; afterwards that superfluous letter was
introduced, and being in general use during the reign of queen Anne, the word "governour" became
the standard of orthography. But the "u" is now universally exploded. The same remark applies to
the words "Iland" t and "massaker," v which were thus written in our
ancient statutes. They were afterwards changed to Island and massacre, which is
still in general use; but a modern writer of celebrity, who seems to have carried his researches
into the history and origin of our language much farther back than any of his predecessors, has
shewn that these are mere anomalies. w Many other instances might be adduced, in
which the words were much more correctly written nearly two hundred years ago, than at the period
when the English language was supposed to have been carried to its utmost degree of perfection:
But it would occupy too much space to point them out. Others, whose course of study is more
particularly directed to that object, may avail themselves of the materials which this work so
abundantly supplies. Perhaps in no other single publication will there be found a more regular
and connected history of the English language, for upwards of a century. Nor will the authority
of the book be lessened by the consideration that it contains only the laws and
state papers of the age, the public transactions of which it records. In every nation which
has attained any degree of civilizations, men of the best talents have been usually employed in
the formation of their laws, and in the public departments. Hence it is, that in the laws
and state papers of a country, we may reasonably look for the best models of
language.
But it is not merely to trace the history of our language that
reference may be had to these volumes. They will be found to contain a rich treasure of
information relative to the state of society among the first settlers; their religious
intolerance; the rise, progress and establishment of our civil institutions; and generally such
political events as afford a lesson to posterity of something worthy to be
t See pa. 148, 178-9.
v See act.
LXVII. pa. 177.
w See preface to Webster's compendious dictionary pa. VIII,
XVII.
xiii
PREFACE
imitated and something to be shunned. Much of the present work has existed until now,
only in manuscript, and in single copies; and has been inaccessible to all our historians. To
this cause may be ascribed some of the errors with which all the histories of Virginia
abound; but too many of them may be traced to the gross ignorance or wilful misrepresentations of
the English historians. Except the rays of light reflected by Mr. Burk, (from the scanty
materials in his possession,) on that portion of our history which comprises the existence of the
commonwealth of England, the whole of that period is either enveloped in total darkness, or has
been most inaccurately represented by every historian who professed to depict it. x
In detailing the leading events of that day, it has been said y "that the governors
of Virginia were appointed by the Commonwealth or by Cromwell; that the people tired of the
restraints imposed on their commerce, and strengthened in principles of loyalty by the royalists
who flocked hither from England, were impatient to shake off the yoke of Cromwell; and dragging
Sir William Berkeley from his retirement, unanimously appointed him governor, and proclaimed
Charles II, with all his titles, before the restoration had been effected in England." There is
not one word of truth in any part of this relation. Not a single governor was appointed either by
the parliament or by Cromwell; but they were all elected by the House of
Burgesses in pursuance of the powers vested in them by the provisional articles of
government adopted at the surrender of the country to the commissioners appointed on behalf of ht
parliament. z The commerce of Virginia was even more free than that of the mother
country. None of the restrictions of the act of navigation were felt. The vessels of all nations
were admitted into their ports; and a duty of ten shillings a hogshead imposed on all tobacco
exported, and shipped to any part of America or elsewhere except in English vessels
directly bound to England: a from the payment of which duty, vessels belonging to
Virginians were afterwards exempted. b Finally the assembly passed an act asserting
the right of the colony to a free trade with all nations in amity with the people of England, and
compelled all masters of vessels to give bond, in the penalty of two thousand pounds sterling,
not to molest any person trading here under the protection of the laws. c So far
were the assembly
x See notes to pages 429, 513 and 526.
y By Beverley, Chalmers, Robertson and others.
z See pages 371, 428, 432, 502, the articles of the provisional government; and pages 371, 408, 431, 502, 504, 516, 530, the election of governors by the house of burgesses.
a See act LXXIV of March, 1657-8, pa. 469 and acts X and XVI of March, 1659-60 pa 536.
b See pa. 537.
c See act IX, pa. 535.
xiv
PREFACE
erecting the royal standard and proclaiming Charles II. at the time when they elected Sir William
Berkeley, governor, that, by the very first act of the same session they expressly took the
powers of government into their own hands; and directed that all writs should issue "in the
name of the Grand Assembly." d By the second act, they appointed Sir William
Berkeley, governor; enjoined it on him to call an assembly once in two years at least, or oftener
if necessary; gave him the power of making choice of a secretary and council of state, with the
approbation of the assembly; and restrained him from dissolving the assembly without the consent
of the majority of the house. e These acts passed at an assembly held in March,
1659-60, between the resignation of Richard Cromwell, (on the 22d of April 1659) and the
restoration of Charles II. (on the 19th of May, 1660;) at a time when, as the assembly express
themselves, "there was no resident; absolute and general confessed power in England." They were
unquestionably the offspring of necessity, and arose from that state of interregnum
which existed in England, when the cautious proceedings of General Monck left it
uncertain what kind of government would be ultimately adopted.
In contemplating the laws of every infant state, progressing in
civilization, the mind is struck with the remarkable coincidence in their objects and
tendencies. To promote the increase of population, supply the wants of the people, improve the
agriculture and staple commodities of the county, provide for the due administration of justice,
and guard against the incursions of the aboriginal inhabitants are among the first subjects which
claim and receive the attention of the legislature; and not unfrequently the establishment of
some particular system of religion, in exclusion of all others, has had but too much share in
their deliberations. Nor will it be an useless lesson to posterity to review the various measures
which have been adopted by their ancestors to insure these ends, and the success with which they
have been attended.
The first pages of our statute book, of the acts of each of the earlier
sessions, and of every revisal prior to the American Revolution are devoted to the cause of
religion and church government: not that religion which every man might think proper to profess,
or that liberal system which permitted every individual to worship his God according to the
dictates of his own conscience; but the religion of the church was the religion of
ruling party in the state, and none other was tolerated.
From the settlement of the colony to the death of Charles I. and the
commencement of the commonwealth thereupon, an uniformity
d See act I. of March, 1659-60, p. 530.
e See act II. of March, 1659-60, pa. 531.
xv
PREFACE
to the doctrines and discipline of the church of England was strictly enjoined; f
all non-conformists were compelled to leave the colony, with all convenience; g
popish recusants were disabled from holding any office, and their priests not suffered to remain
more than five days in the country. h During the commonwealth, the affairs of the
church were left to the discretion of the parishioners; i but no sooner did the
Quakers, who had fled from the persecutions in England, arrive on our shores than they were met
by the terrors of an act "for suppressing them;" k masters of vessels were
subjected to a penalty of one hundred pounds sterling for each Quaker brought into the colony;
all Quakers were imprisoned without bail or mainprize, till they found sufficient security to
depart the colony; for returning they were directed to be proceeded against as contemners of the
laws and magistracy, and punished accordingly; and if they should come in a third time they were
to be prosecuted as felons. All persons were prohibited, under the penalty of one hundred pounds
sterling, from entertaining them, or permitting their assemblies in or near their houses; and no
person was permitted to dispose of, or publish, any books or pamphlets containing the tenets of
their religion. l
It is worthy of observation that a similar principle to that which has
obtained in Kentucky with respect to compensation for improvements made upon lands of one man,
the title of which appeared, from investigation, to be in another, existed in a law of Virginia,
so long ago as the year 1643. And as this law has never before been published, we can only
account for the coincidence, by supposing that mankind, in every age, placed in similar
situations, will generally pursue the same course. The act, after reciting that many suits had
been commenced, founded on controversies relating to land, "to the great trouble and molestation
of the whole colony," goes on to declare, that if any man should settle on a tract of land,
which, on a just survey, should prove to be the property of another, a valuable consideration
should be allowed by the judgment of twelve men upon oath, to the first who seated it, for
clearing and improving it; but if the charge should amount to more than the real owner was
willing to give, the person inn possession was bound to keep the land, and pay the owner what it
should be judged by twelve men to be worth "before the seating thereof;" and, of course,
without regard to the improvements. An exception was made in favour of orphans; m
and afterwards a further
f See pa. 123, 144, 149, 155, 180, 240, 277.
g See pa. 277.
h See pa. 268-9
i See pa. 433. k
See pa. 532.
l See pa. 533.
m See act XXXIII of March, 1642-3, pa. 260.
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PREFACE
proviso, that an allowance for "building and clearing" should not be made to those who had
"lawful warning" of a prior right. n −−− About the same period
(1643) the assembly passed an act directing that all process against debtors lately arrived from
England (except where the debts were contracted for goods purchased in England, or for the
accommodation of planters returning to this county) should be suspended. o This act
is introduced by a lengthy preamble, assigning reasons which fully satisfied the minds of the
legislature as to the policy and even justice of the measure. These laws had an obvious tendency
to increase the population, and promote the improvement of the country, by rendering the
persons of many of the inhabitants free from restraint, and by securing to every man the
fruits of his labour.
The culture of tobacco seems to have been a favorite object with the first
settlers, and was the only staple commodity to which they could be induced to turn their
attention. In order to improve its quality various laws were passed limiting the number of plants
to be cultivated by each hand, and the leaves to be gathered from a plant. p Other
details in the process of making it, were also prescribed by the legislature; and to insure a
just compensation for the labour of the planter, the price at which it was to be sold was fixed
by the assembly, at different times. q The first idea of inspecting
tobacco is contained in an act passed in 1630, before any warehouses were established. The
process was very simple, and the penalty for offering unmerchantable tobacco in payment equally
sever. If a planter offered to pay away, or barter any bad tobacco, the commander of the
plantation (an officer who united with the powers of a justice of the peace, the supreme military
command of the settlement) with two or three discreet men, were directed to view it, and if found
of bad quality, to cause it to be burnt; and the owner was prohibited from planting any more
tobacco until authorised by the General Assembly. r At the next session the
law was amended so as to make it the duty of the commander to issue his order either verbally or
in writing to two "sufficient men" to view the tobacco, who were, in like manner, to burn it, if
of bad quality. s The same law was re-enacted in the revisal of 1632.
t In 1633, warehouses (then called storehouses) were established, and the
inspectors were to be composed of that member of the king's council, whose residence was nearest
any warehouse, and the commissioners of the several plantations, as assistants. v
n See act XV of 1647, pa.
349 and act XXII of March, 1657-8, pa. 443,4.
o See act XXIV of March, 1642-3, pa. 258.
p See pa. 141,2, 152, 164, 188-9, 203,4,5,6, 209, &c. q
See pa. 188, 206, 210
r See pa. 152.
s See pa.
165. t See pa. 190. v
See pa. 204, 211.
xvii
PREFACE
To prevent the recurrence of a scarcity of corn, which had been severely
felt in the colony, each master of a family was compelled to plant and sufficiently tend, two
acres a head, for each labouring person in his family; and as an encouragement to cultivate that
article, the price was not to be limited, but every planter might sell it as dear as he could.
Nor does it appear that the legislature ever interfered with the exportation of corn, or
restricted the price, except in times of pressing want. w In the year 1630, the
contents of a barrel of corn were fixed at five bushels, Winchester measure,
and has so continued to the present day. x
Various and severe laws were very early enacted against forestalling and
ingrossing imported articles, y but their inefficacy having been experienced, they
were all repealed and a free trade allowed. *
The administration of justice, in Virginia, was originally extremely cheap,
and simple in its details. Commanders of plantations held monthly courts for the trial of civil
actions, not exceeding the value of one hundred pounds of tobacco, and for the punishment of
petty offences, † reserving the right of appeal to the quarter held by the
governor and council, which possessed the supreme judicial power, under the different charters,
and had original jurisdiction in all cases whatsoever. Commissioners of monthly courts succeeded
to commanders of plantations, with the like jurisdiction in civil cases; ‡
which was afterwards extended to five pounds sterling. b The jurisdiction of the
court was further extended to sixteen hundred pounds of tobacco, and they were to be called
county instead of monthly courts; and that of a single magistrate was final as far
as twenty shillings sterling. c In consequence of the great distance of many of the
counties from James City, where the quarter courts were held, jurisdiction was finally given to
the county courts, in all cases of law and equity, and the trial by jury secured to those who
desired it. d The decision of the county court was, at first, final as far as
sixteen hundred pounds of tobacco, e and for all sums above that an appeal was
allowed to the quarter court, and from thence to the assembly; f which afterwards
had jurisdiction of appeals in all cases, of whatever amount. g Besides the general
jurisdiction of the county and quarter courts, special provision was made for
certain counties and settlements where it was considered too inconvenient to the people to attend
at the usual place of holding courts. The leading principle seems to have been to carry
justice to the doors of the inhabitants. Thus, the county court of Northampton, "on
account of its
w See Index tit. 'corn.
x See page
170. * Pa. 296.
y See pa. 150, 166, 190, 172, 194, 217, 245.
† See pa. 125,
131.
‡ See pa. 132.
b See pa. 168, 185.
c See pa.
272-3. d See pa. 303.
e See pa. 345, 398, 477.
f Ibid.
g See pa. 541.
xviii
PREFACE
remoteness from James City," had final jurisdiction as far as three thousand two hundred
pounds of tobacco; one commissioner on the South side of the river in James City county, was
vested with the powers of a county court; h the inhabitants of Appamattock or
Bristol parish, were also authorised to hold courts, with the right of appeal to Henrico or
Charles City county courts. i Two courts were permitted to be held in Northampton;
k two in Isle of Wight; l and two in Charles City. m As
the population of the county increased, and new counties were formed, these special courts were
abolished.
In the year 1643, the first act passed for regulating lawyers;
though they had certainly attended the several courts before that period. By
the first law on the subject, no attorney was permitted to plead, without a license; which was
grantable by the court in which he practised; nor could an attorney have a license from more
courts than the quarter, and one county court, −−− Their fees were twenty
pounds of tobacco, in the county, and fifty pounds in the quarter court: and no
attorney could refuse to be retained unless employed on the other side. In 1645, all
mercenary attornies were expelled from office: o In 1647, that act was amended
by adding a clause to it declaring that no attornies should take any fees; and if the
court should perceive that either party by his weakness, was likely to lose his cause they
themselves should either open the case or "appoint some fit man out of the people," to plead the
cause, and allow him a reasonable compensation: no other attornies were admitted. p
In 1656, the act prohibiting attornies was repealed; the governor and council were authorised to
license them for the quarter courts, and the commissioners for the county courts, and if any
controversy should arise concerning their fees, it was to be settled by the courts respectively.
In 1657-8, the law against mercenary attornies, was again revived. q
An inspection of the different fee bills will shew the simplicity of
judicial proceedings, and the small compensation allowed to the officers of court. The first
officers whose fees were established by law, were the secretary who was clerk of the
quarter court, r and the marshal, who executed the same duties which
devolved upon the sheriff, after the appointment of that officer, which was not until
the year 1634. s The fees of clerks t and sheriffs v
embraced but few objects, and were very moderate.
Clerks of county courts were, at one time, appointed by the governor,
w but afterwards by the courts themselves. y Commissioners
h See pa. 335-6.
i See pa. 376.
k See pa. 409.
l Ibid. m
See pa. 497.
n See pa. 275.
o Pa. 302.
p Pa. 349.
q Pa. 482. r
Pa. 176, 201, 220, 265, 463.
s Pa. 224, as to
appointment of Sheriffs, & pa. 176, 201, 220, as to marshal's
fees.
t Pa. 266, 305, 464.
v Pa. 266, 465. w
P. 305. y
Pa. 448-9.
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PREFACE
of county courts, (the same as justices of the peace) were formerly appointed by the governor,
z afterwards by act of assembly; a but at the commencement of the
commonwealth they were appointed by the house of burgesses; b afterwards they were
recommended by their courts, and commissioned by the governor and council, c and
finally their appointment was confirmed by the assembly. d During the same period
the county courts recommended three or more to the governor and council, out of which
they made a selection for sheriffs, e who were to continue in office for one year
only. f
No representative government was ever instituted in which the principles of
universal suffrage, and of ful representation, were carried further than in
Virginia. The right of suffrage was ordinally exercised by ALL freeman;
who were not compellable to go from their plantations to vote for burgesses; g but
might give their suffrages by subscribing a paper. h This mode having been attended
with considerable inconvenience, it was provided that all future elections should be by plurality
of voices present; and a fine was imposed on all free man, who should fail to
attend at the time and place appointed for the election. i The number of burgesses
to a plantation or settlement (before the formation of counties) was unlimited;
k nor does it appear that, at that time, any particular qualifications were
necessary. After counties were laid off, the number of representatives to a county remained
without limitation, until November, 1645, l when they were reduced to four to each
county, except James City county, which might send five, and the city itself one; m
and the election was directed to be held where the county courts were, n except in
those places which were specially authorised by act of assembly to hold elections.
−−− These were certain parishes to which hat privilege was granted;
o and it was afterwards extended to all parishes, they paying the expenses of their
burgesses, as the counties in general were compelled to do in relation to theirs. p
At the March session, 1660-1, the number of burgesses was limited to two for each county, and one
for James City, it being the metropolis. q
z See the form of the commission, pa. 132: a
Pa. 168, 186.
b Pa.
372.
c Pa. 376, 402. d
Pa. 480.
e Pa. 392.
f Pa. 442.
g Pa. 227.
h Pa. 33.
i Pa.
333-4.
k See beginning of acts of 1629, pa. 138, of 1630, pa. 147,
of 1632, pa. 152, same year, page 178, of 1633, page 202,
in all of which it will be found that each plantation sent their members to the assembly.
l See acts of 1643, page
239, of 1644, page 283, February, 1644-5, page 288, and of November, 1645, page 299.
m Pa. 300.
n Ibid.
o Pa. 250, 277.
p Pa. 421, 520, 267, 454.
q See Act VII, of March,
1660-1, which was re-enacted in the revisal of March, 1661-2, and may be found in Purvis's
Collection, act LXXIV, page 64.
xx
PREFACE
The first act which in the smallest degree abridged the right of suffrage,
or prescribed the qualifications of the members, passed at the March session, 1654-5.
r By this act it was declared, that the persons who should be elected to serve in
assembly be such, and no "other than such, as were persons of known integrity and of good
conversation, and of the age of one and twenty years." s That "all house keepers,
whether freeholders, lease-holders, or otherwise tenants, should only be capable to elect
burgesses;" provided that the term " should extend no further than to one
person in a family." t At the next session, however, so much of this act as
excluded ANY FREEMAN from voting was repealed: the assembly declaring
"that they conceived it something hard and unagreeable to reason that any persons should pay
equal taxes, and yet have no votes in election." v In the revisal of 1657-8, the
same principle is preserved; the right of suffrage being extended to"ALL
persons inhabiting in the colony, that are FREE MEN." W By
an act of 1670, that right was, for the first time, confined to FREE HOLDERS
only; x and the necessity of this qualification was further enforced by
instructions from king Charles II, to sir Wm. Berkeley, governor, in 1676: "You shall take care,"
says the second article of the instructions, "that the members of the assembly be elected, only
by FREE HOLDERS, as being more agreeable to the custome of England, to
which you are nigh as conveniently you can to conform yourselfe." y
To enumerate all the instances in which the leading principles of laws,
supposed to be of late origin, may be traced back to a remote period of antiquity, would far
exceed the limits usually devoted to a preface; but it would be a work of great utility. On the
foundation of many of our ancient laws, the superstructure of the modern has been raised; and
many of them are more clearly expressed than those, on the same subject, of a more recent date.
This circumstance, added to the reasons often assigned by the early legislatures for the
enacting of their laws, would remove much of that doubt and perplexity which is so often
experienced in the exposition of a statute. Should the editor meet with that encouragement in his
arduous undertaking, which will permit him to indulge a hope that his labours have obtained some
share of public approbation, he will give a General Index at the end of the work, which
shall contain a correct history of our several laws from the earliest period to the present time.
Bridges and ferries were at first established and maintained at public
expense; z but this being considered burthensome to the inhabitants
r Pa. 411.
s Pa. 412.
t Pa.
412. v Pa. 403. w
Pa. 475
x Purvis's Collection, 167-8, and vol. 2 of this work
y Manuscript in possession of the Editor, folio 121,b.
z Pa. 269.
xxi
PREFACE
of many of the counties, especially the poor, who seldom used them; the law, as to ferries, was
repealed a and the county courts vested with power to establish ferries on the
application of individuals, and fix their rates. b The exclusive right of
establishing ferries was afterwards resumed by the assembly; and having exercised it for a series
of years, to the great interruption of other public business, the legislature at the session of
1806, c restored to the county courts the power exercised by them so long ago as
the year 1647.
The present volume has been printed entirely from manuscript, and
brings down the laws to the termination of the commonwealth, in 1660. As these
documents are at such complete variance with the historical accounts which we have
had of the public transactions in Virginia, especially during the four last years of the
commonwealth, I have felt it an indispensable duty to annex copious notes, explanatory of the
views which I have taken of those subject. d
In the running title to the acts passed during the COMMONWEALTH, that TERM has been preserved; contrary to the
practice in England, which has been to consider the commonwealth, in the computation of
the reign of Charles II. as a period which never existed. Thus we see in the
Statute-books, and Reporters, the year 1661, which was in the first year after Charles
II. was actually at the head of the government, intituled as the twelfth year
of his reign. e
In a work so laborious as the present, where the characters in
which the laws are written are as difficult to decypher as the Greek language would be
to a person who had never learnt the alphabet, it is impossible to avoid the committing of many
errors. The effect upon the eye sight, too, has been incalculably injurious. To this cause may,
doubtless, be ascribed some of the mere literal errors which have escaped my utmost diligence.
But it is believed that few have passed unnoticed which affect the sense. The only error of any
importance which I have to regret, is in the arrangement of the acts of March, 1654-5, and
1655-6. These were dated in the MS. simply 1655, and the acts of March, 1655-6, were there placed
before those of March, 1654-5. It was only by the subject matter that the error
could be discovered: and when done, it was too late to alter the arrangement. The reader will
therefore turn over page 393 to 404, and having gone to page 414, he will return to 393.
To this volume is prefixed a list of governors of Virginia, during
a Pa. 348.
b Pa. 348, 411.
c See Revised Code, vol. 2, pa.
130.
d See Notes to pa. 358,
369, 429, 513, 526.
e See acts of 1661-2, in vol. 2. See also Hardres's Reports
166. Sir Thomas Raymond's Report 1, and I Levinz's Rep. I
xxii
PREFACE
the period comprised in it, taken from an ancient manuscript with which the editor was favored by
Mr. Jefferson, late President of the United States. A similar list will be prefixed to each
volume: and at the end of the work, a complete table, exhibiting an historical view of the
formation, boundaries, and variation in the names of the several counties in Virginia will be
given.
The Ancient Charters to the first adventurers, forming a mass of
important information, have hitherto been of very difficult access; and some of them existing
only in manuscript, it was thought that a general collection of them would greatly add to the
utility of the work. −−− They have accordingly been compiled and printed from
the best authorities.
As an introduction to the laws of an once infant colony, it has
been deemed proper to notice those acts of sovereignty, which the people were either compelled to
resort to, when the oppressions of the mother county, left them no alternative but absolute
slaver, or the formation of an independent government; or which their more mature
judgement induced them to adopt. With this view, the CONSTITUTION OF THE
UNITED STATES, with the latest amendments;
the DECLARATION OF INDEPENDENCE; THE ARTICLES OF CONFEDERATION; THE DECLARATION
OF RIGHTS, AND CONSTITUTION OF VIRGINIA have been inserted. But the people of Virginia, represented in
convention, being the first to proclaim the idea of AMERICAN
INDEPENDENCE, that solemn act may, with propriety, claim the first place in
a collection of their laws; and has accordingly been inserted.
WILLIAM WALLER HENING.
Richmond, 29th August, 1809.
PREFACE
TO
THE SECOND EDITION.
By the act of the 5th day of February, 1808, authorizing the editor to
publish the Statutes at Large, and prescribing the mode of authentication, one hundred and fifty
copies were subscribed for, on behalf of the commonwealth; which added to two hundred copies
printed for the use of the editor's subscribers, made the impression three hundred and fifty
copies only. Under this subscription, the work progressed to the end of the 4th volume, when the
interruptions produced by the late war, and the death of the publisher, Mr. Samuel Pleasants,
Junr. occasioned its suspension. When the committee on the Revised Code of 1819, reported to the
legislature, they so strongly recommended the continuation of the Statutes at Large, that the act
of the 10th March, 1819, was passed. By this act, the subscription, on behalf of the state, was
increased to eight hundred copies; but no provision was made for completing the sets with the
first four volumes. The first volume having been long out of print, and the state having a large
surplus of the 5th and subsequent volumes, the act of the 24th of January, 1823, was passed,
which provides for completing the sets, and appropriates the proceeds of the sales of 500 copies,
under the superintendence of the executive, to the purchase of a public library.
In the first edition, commencing on page
238, the caption of the acts states them to have been taken from a MS. belonging to Edmund
Randolph, Esq. The volume was received from that gentleman, by the editor, who understood it to
be his property. But from two letters addressed to the editor by Thomas Jefferson, Esq., late
President of the United States, the one dated the 25th of April, 1815, the other the 3d of
September, 1820, there was such
xxiv
PREFACE
conclusive evidence that the MS. belonged to him, and had been borrowed, from his library, by
Edmund Randolph, Esq., when he contemplated writing a history of Virginia, that it has been sent
to the library of Congress, with the other MSS. included in Mr. Jefferson's Catalog. The error in
caption has been corrected in this edition
WILLIAM WALLER HENING.
Richmond, January 30th, 1823.
Pages 1-31