The governor’s Council had its origins during the years from 1607 to 1624 when the Virginia Company of London directed the settlement and government of colonial Virginia.
In 1607 the company’s governing body in London appointed a small group of men to act for it in managing day-to-day affairs after the first settlers landed at Jamestown in Virginia. During the initial years the Council and its president were often at odds, and administration of the colony was dysfunctional, leading the company to impose martial law in 1609. The years of military rule ended following the king’s issuance of the third royal charter, in 1618.
The Charter of 1618 empowered a governor and advisory Council in the colony to govern Virginia and also authorized the governor to convene a General Assembly to make laws for the colony. At the assembly’s first meeting in July and August 1619, the governor, Council members, and burgesses met in unicameral session. After Virginia became a royal colony in 1625, the Council continued to act as an advisory board for the governor, as the highest judicial body in the colony, and as a constituent part of the General Assembly. In March 1643 the burgesses began sitting apart as a separate branch of the assembly. From then until 1776 the governor’s Council was the upper House of the colony’s bicameral legislature.
The legislative, administrative, and judicial functions of the Council separated very slowly. From the 1620s until the 1640s, meetings of the governor and Council resembled early meetings of a royal court at which the governor, as the Crown’s representative, and the Council members settled disputes of all kinds, made regulations, deputized military or civil officers to undertake specific responsibilities in the localities, and issued grants of land to settlers. It is possible that as the upper House of the General Assembly, the Council may have begun keeping separate records of its legislative business soon after the General Assembly became bicameral in 1643, but the earliest surviving separate legislative journals date from 1680. The earliest surviving separate executive journals also date from 1680, but it is not known when the Council began keeping separate sets of records for its legislative, executive, and judicial work. With the exception of fragmentary records from the 1620s that are preserved in the Thomas Jefferson Papers in the Library of Congress and another set from the 1670s preserved in the Virginia Historical Society, the judicial records were all burned in a fire that consumed the state courthouse and its contents in Richmond in April 1865. The separate volumes of land grant records from 1623 through the end of the colonial period are preserved in the Library of Virginia.
In the 1640s the king began appointing members of the Council, which usually consisted of about a dozen of the most prominent planters and merchants in Virginia. During the eighteenth century resident royal governors-general or lieutenant governors, who administered the government in the absence of the royal governor, often made recommendations to the king (or to the queen during the reign of Anne) or to the Board of Trade for filling vacancies that occurred when members of the Council died, returned to England, or resigned. Between 1652 and 1660, when Virginia’s government was under the jurisdiction of Oliver Cromwell‘s Commonwealth, the General Assembly elected members of the Council, but following restoration of the monarchy in 1660 the king reasserted his right to appoint Council members.
The members of the Council were almost all wealthy and both socially and politically prominent. Independent wealth was required both for the social standing necessary for membership and also to permit the members to be absent from their families and plantations for long periods of time. Between 1643 and 1676 the Council met as the upper House of the General Assembly annually. Between 1676 and 1776 the assembly usually met six or eight times each decade and much more frequently in times of war, such as during the French and Indian War (1754–1763), when between February 1752 and May 1763 it met in twenty-five mostly short sessions. The members also attended the quarterly judicial sessions that met between the middle of the seventeenth century and the end of the colonial period, and during most years the members attended to advise the governor on executive matters, often for weeks or months at a time. In 1619 the General Assembly asked the Virginia Company to send men to the colony to work the land of Council members, who often had to leave their own homes to meet with the governor in Jamestown. The king later established a fund for paying Council members, and by the 1640s, if not even earlier, the assembly exempted Council members from taxation to compensate to some extent for the time they spent on public business. Membership on the governor’s Council was the highest civil office to which natives or residents of the colony could normally aspire, and membership on the Council enabled wealthy and influential men to increase the wealth and influence of themselves and their families.
Executive and Legislative Duties
As an integral part of the executive department of Virginia’s government, the Council members advised the governor or lieutenant governor, each of whom had a commission from the Crown. On occasions when neither the governor nor the lieutenant governor was in the colony, the Council member with the longest seniority served as acting governor with the title of president of the Council. Because no governor-general resided in Virginia between 1706 and 1768, each time the presiding lieutenant governor died or left the colony the administration of government devolved on the Council president. During that time period Council presidents presided over the colony’s government on six separate occasions for a total of approximately ten years.
The surviving late seventeenth- and eighteenth-century documents that record the Council members’ executive work indicate that they advised the governor on many important matters: issuance of land grants; appointment of inspectors at the public tobacco warehouses after enactment in 1730 of the tobacco inspection law; appointment of militia officers, sheriffs, and justices of the peace for county courts; issuance of writs of election for members of the House of Burgesses; and summoning the General Assembly into session. The chief executive—with or without the advice of the Council—issued proclamations on many subjects from high matters of state to more routine subjects: proclaiming the death of the sovereign or declarations of war; issuing commissions for holding courts of vice-admiralty for trying persons accused of piracy or to settle civil cases that arose on the high seas; holding local courts of oyer and terminer for trying enslaved persons accused of crimes; and offering rewards for the capture of suspected criminals. These broad and influential actions may have changed relatively little throughout the period when Virginia was a royal colony.
The work of the members of the Council in their legislative capacity changed significantly in 1643 when the General Assembly ceased meeting in unicameral session and the Council became the upper House of the General Assembly. That work also changed in less evident ways in the 1720s and 1730s when the governor stopped sitting with the Council members when they were acting in their legislative role, and about the same time the Council members ceased introducing new bills and confined their legislative work to reviewing, proposing amendments to, and passing bills that originated in the House of Burgesses. When bills passed the House and Council in different forms, each House appointed members to meet jointly and attempt to reconcile the differences. After a bill had passed both Houses in the same form, the governor (or in his absence the lieutenant governor or in the absence of both the Council president) had to sign it before it became law; and the Crown always retained the authority to disallow, or veto, any law that the colonial assembly enacted.
Because of the loss of most of the original judicial records of the Council, its work as a court is much
less well documented than its legislative and executive work. In the early years the governor and Council not only resolved all domestic and legal disputes in Virginia, but they also proved wills and issued orders for the administration of estates because there were no ecclesiastical courts in the colony to perform those essential tasks. During the 1620s and 1630s the governor and Council granted authority to men in the localities to undertake that work, which together with the Council’s assignment of defense responsibilities to military commanders in the localities led to the creation of county governments that relieved the Council of much of its routine work.
When sitting in its judicial capacity the Council was first known as the Quarter Court, because it met four times a year, and later as the General Court. The General Court handled all of the most consequential civil cases and all of the criminal prosecutions of white people. In most cases the General Court was the highest court and the court of last resort in Virginia, but during much of the seventeenth century people who were displeased with a decision of the General Court had the option of appealing to the General Assembly, which by law could overrule the court’s decision. In 1683 royal instructions to the governor forbade all future appeals from the court to the assembly. Throughout the colonial period decisions of the General Court could also be appealed to the Crown. The royal Privy Council then acted as a final court of appeal. The great expense and long span of time involved in appealing a case from the General Court to the Privy Council meant that only a few cases of extraordinary importance had their final resolution in London rather than in Jamestown or Williamsburg.
The governor’s Council was perhaps the dominant institution of colonial government during the final decades of the seventeenth century and the first years of the eighteenth. In 1705 a majority of the Council appealed directly to Queen Anne to recall and replace Sir Francis Nicholson, the royal governor, and a decade later another majority of Council members sought the recall of Lieutenant Governor Alexander Spotswood. In both instances the Council members got their wish, although it is probable that Spotswood had already lost the backing of influential English politicians and would have been replaced anyway. Gradually during the eighteenth century the House of Burgesses emerged as the most influential body in the colony, and it took the lead from the 1750s onward in defining and defending colonial rights and practices against actions of colonial administrators and Parliament. After the 1750s the governor and Council maintained an agent in London to represent their interests and present their interpretation of events to the royal government, but at the same time the House of Burgesses hired and supported a separate agent to represent its interests, which it characterized as the rights of Virginia’s tobacco planters and people.
The many responsibilities of the Council members led them to acquire a large reference library in the Capitol. The governor and Council, as well as the county courts and many learned gentlemen, owned reference books, but during the seventeenth and eighteenth centuries the Council members assembled a notable book collection. Fewer than eighty volumes of that book collection survive, most of them in the Library of Virginia, but extant records indicate that by the time of the American Revolution, the library was a large and varied one in which law books, court reports, and other legal texts predominated. Late in his life Thomas Jefferson recalled how he, Patrick Henry, two members of the Lee family, and some other burgesses met in the Council chamber in May 1774 to consult the reference works there when they were drafting resolutions for the House of Burgesses to adopt in response to Parliament’s closing of the Port of Boston after the Boston Tea Party. That research trip to the Council’s library ultimately led to the call for the first Continental Congress.
The Virginia Constitution of 1776 dismantled the governor’s Council, redistributed the responsibilities that it exercised, and prohibited members of any one of the three successor institutions from simultaneously serving on any other. The Constitution vested the legislative role in a new Senate of Virginia; it authorized the General Assembly to establish appellate courts and define their jurisdictions; and it created a new Council of State, or Privy Council, to advise the governor in executive matters, in effect creating a plural executive structure and a weak governorship. The Constitution empowered the General Assembly to elect and periodically replace members of that Council, giving the legislators power to control its membership, and because the assembly also annually elected the governor, no governor and no group of Council members could exercise such broad powers as the governor and Council together or separately exercised during the colonial period.