Ch. 2.1. Introduction to Virginia’s Charter and Early Legal System
The Virginia Company of London, a joint stock company formed to exploit Raleigh’s discoveries, went bankrupt less than twenty years after its creation. Despite the aspirations of the directors of the company and the generosity of its underwriters and stockholders, the little settlement at Jamestown foundered. Short on agricultural laborers and long on gentlemen soldiers, and stuck in the middle of a fetid swamp at the confluence of fresh and salt water, the company’s men weakened and died at a frightening rate.
Captain John Smith, a well-traveled mercenary soldier who had signed on for the trip to the New World at the last moment, seized control of the settlement and refashioned it along military lines. He extorted from the Powhattan confederation of Native Americans what they would not give or trade. Smith was recalled to England to answer complaints from his disgruntled comrades, but his methods were given legal sanction after his departure by “Dale’s Laws.” Sir Thomas Dale, named governor of Virginia in 1609 but shipwrecked on Bermuda for the first years of his tenure, administered “Laws Divine, Moral, and Martial” (for all the pitiless brutality of the code, it might have been titled the “Laws Capital”) to institute order and save the colony for the company.
Dale’s harsh code was modeled on the martial law in force in England’s territories in Ireland and reflected the incessant warfare among the great European powers. Even when Europe itself enjoyed a respite from war there was no peace among the Europeans in the New World. The first governors of the English possessions in the West Indies and on the North American mainland were “governors-general,” professional soldiers with combat experience in Europe serving as the king’s strong right arm in his far-flung domains.
But by 1619 the long reach of the company and the absolutism of its governors were failing, and the leading settlers decided to take matters into their own hands. The Virginia planters refashioned the legal system to their convenience. They created a representative “House of Burgesses” to make laws. The House of Burgesses continued its work throughout the colonial period, becoming a model for subsequent colonial assemblies.
In the transition after 1624 from company to royal colony there was one legal constant: the major concern of law remained the monitoring of the labor system. After all, Virginia was from its inception a commercial venture. Intended as a trading mart, it survived because it had become a landscape of farms growing tobacco for a world market.
So, too, the English law of servitude, which subjected to criminal penalties a laborer who left a job, might be good book law, but in the colony it could not be replicated because planters did not want their agricultural laborers rotting away in some jail. Attempts to impose the rigor of English labor law would only increase the number of runaways, already a considerable problem for the master class. Thus the Chesapeake inadvertently became a proving ground for a colonial variant on English labor law based more on negotiation than on coercion. The labor contract that created the obligation to serve–the “indenture“–could not be broken at will by the servant, but the master must fulfill his or her own duty to the servant, at least in theory and often in fact as well.
Court dockets were filled with servant-related cases. Masters used the law to pursue runaway servants. Caught, the runaway had to labor more than the seven years ordinarily required to pay back the costs of transportation and upkeep. Indeed, just about every servile offense was punishable with a longer term of service. Female servants were forced to labor beyond their indenture if they became pregnant, even if they became pregnant against their will. But servants were not powerless. They used the law to demand that masters live up to their obligations of proper care and payment of tools or money when the term of service ended. And they won more cases than they lost.
Ultimately the master class found what seemed to it an escape from the endless round of litigation with servants: chattel slavery. By the 1660s imported African laborers were losing the very legal rights–to sue, to become owners of land in their own name, and to create and maintain families–that the white servants had vindicated through law.