USA > Virginia > City of Hampton > City of Hampton > Early history of Elizabeth City County, Virginia, 1607-1783 > Part 3
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lection, and dividing by the number of tithables. In general they paid as they went for any public project under
2. See page 26.
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construction, so that the tithes sometimes varied widely. 3 In 1696 the tithe was 129 pounds of tobacco and in 1721 4 only ten pounds. In 1743 the general levy was six pounds plus a special tax of nine pounds or nine pence for building the new prison. 5 It was customarily November when they first set to work to consider the levy, but it was not in- frequently March before they had received all claims and were ready to declare the tithe.
All public works came under their jurisdiction, the building of highways and bridges, maintenance of public wharfs, courthouse, tobacco warehouse, prison. And multi- tudinous were their miscellaneous duties, the supervision of county weights and measures, the letting of the ferries, the licensing of ordinaries and fixing of their rates.
The justices' right hand man and the most important single official in the county, except perhaps the presiding justice, was the high sheriff, himself a former justice, and a gentleman in spite of some of the unpleasant duties he had to perform. His function was to carry out the orders of the court, from the collection of taxes to the execution of hangings, floggings, duckings. Unlike the justices his ser- vices were rewarded; he had a commission of all levies collected and sundry other fees. In spite of this and in spite of the great dignity of the office, it was more work than fun to
3. Court Records, November 28, 1696.
4. Ibid, January 31, 1730/21.
5. Ibid, November 24, 1743.
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be sheriff, and there is no evidence that the governor's year- ly appointments were awaited with much enthusiasm.
The other important official was the clerk or sec- retary of the court, whose duties of keeping all the county records, court cases, indentures, deeds, wills, were exacting but not unpleasant. In this connection it is impossible not to mention the most zealous clerk the county ever had, Thomas Everard. Not a local man, he was sent in from Williamsburg by John Carter, Esq., secretary of the Colony, and took up his duties June 16, 1742 with a magnificent flourish. Never
before and never afterwards have the old workaday court order books known such exquisite lettering and such fantastic ara- besques. That at least was the way he worked at first. But as the novelty of his commission wore off, his writing be- came progressively more compressed, more matter-of-fact; the flourishes disappeared, and so presently did Thomas Everard. He went on to higher things, being clerk of the commission for the courts of justice at Williamsburg in 1773. 6 His place in Hampton was taken by the local man, William Wager.
To be one of these officials in old Hampton was to be a figure of dignity, nor was that dignity to be lightly trifled with. The disrespectful were placed in the stocks for making impolite comments in court, and back in 1695 one Robert Taylor was virtually ruined by a 20L fine and a sentence of three months imprisonment imposed on him for
6. Journal, House of Burgesses, Volume 1773-76, 32.
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expressing too publicly his pleasure at a misfortune that had befallen Captain Henry Jenkins, presiding justice and officer in the militia. Apropos of the loss of some slaves sustained
by the captain, Mr. Taylor had observed that pride goes be- fore a fall, and that if the captain had paid his debts he wouldn't have any Negroes anyway. In his suit of slander Captain Jenkins pointed out the affront Taylor had offered him in his capacity of officer and justice by implying that he was not to be trusted in those positions. A jury headed by 7 Pasho Curle, another justice, found for Captain Jenkins,
But the county officials were not too dignified to engage in an occasional neighborhood row. In 1721, for instance, there was a tempest that divided the court and caused the royal governor to intervene. It involved unre- corded but obviously uncomplimentary remarks that the clerk, Charles Jennings, had made about Henry Irwin and Governor Spotswood. The latter indignantly retaliated by appointing Irwin clerk "in the room"of Jennings. Thereupon the records afford more than usual entertainment, for not only did Jennings show much spirit in making it difficult for Irwin to take possession of the records, but when justices en route to Hampton stopped to ask one of their number, John Lowry, to join them in swearing in the new clerk, "he rudely 8 answered no. "
It is also well to mention in connection with the
8.
7. Court Records, December 18, 1695. Also see page 18. Ibid, January 7, 20, February 3, 1720/21.
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justices that there existed within the county one body with the right to criticize them publicly, the grand jury. In 1729 these freeholders had the temerity to present the jus- tices in their own court for "not keeping scales and weights 9
and measures according to law. " Fortunately for the dignity of the justices, they had just put through an order for proper scales to be sent from England; thus they were able to dismiss their indictment promptly and without recorded comment.
There was one important factor in county govern- ment which existed outside the court, and yet was closely allied with it, and subject to its orders. That was the parish vestry, another self perpetuating and virtually closed corporation in spite of occasional parish elections. The vestry itself had the important duty of "processioning" the lands every four years. To this effect they were required to divide their parish (in Elizabeth City the parish was the en- tire county) into as many precincts as was convenient, and appoint in each at least "two intelligent, honest freeholders" to view the boundary of the lands therein and report back to 10 the vestry. The boundaries, as the old deeds amply testi- fy, were identified by marked persimmon or sweet gum trees, or bends of the county's multitudinous inlets, since in the whole parish there was not the wherewith for the construction of so much as one stone wall.
Two representatives of the vestry, the church ward-
9. Court Records, May 22, 1729.
10. Hening, Statutes at Large, II, 102.
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ens, had charge of the social and moral welfare of the communi- ty. It was they who kept the grand juries informed of the misdeeds of the local siners, keepers of disorderly houses, mothers of illegitimate children, and those depraved souls who failed to appear at divine service on the Sabbath. And it was to them that the justices referred the binding out of orphans.
At the close of the Revolution the duties of vestry and church wardens were taken over by those strictly secular officers, the Overseers of the Poor.
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VI
PRESENTED AT COURT
The disillusioning and exasperating aspect of his- tory is that it seldom deals with the plain honest folk whose quiet industry holds the world together, but with public of- ficials and their hundrum routine, and with rogues. Surely a county history ought to deal at length with the plain folk, but it is hardly easier in Hampton than in ancient Rome to reach through the records to the lives of the people one really wants to know, the pleasant ones who minded their own business. Few but rascals ever got their private lives into the public records, and thus a discussion of the morals of old Hampton has to be largely negative, an account of those people who hadn't any, the ones who in a most unroyal sense got themselves presented at court.
Yet not all the county people who faced the court were criminals. There was for instance poor Jane Scott, whose story in 1692 moved the justices to wrath in her behalf. Some years earlier, so that story ran, she had been forced to flee with her child from her husband's "hard and ill usage. " A year ago Mr. Scott had gone to England, and his attorney had denied her plea for an allowance of 1,000 pounds of tobacco; so there she was destitute at the edge of the Virginian wilderness, her own kin thousands of miles away. It is pleasant to read the court's summary order that the sheriff seize 1,500 pounds of tobacco from her husband's estate for the
Court Records, September 18, 1692.
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support of the hapless mother and child.
Even more interesting was the case that puzzled the justices in 1694, when they were forced to decide what to do with four wild children. These youngsters, two girls of ten and twelve respectively, a boy of eight and another in his early teens, had been running away from their negligent mother and stepfather (the clerk put him down as their "father- in law") to live in the woods for as much as a fortnight at a time, maintaining themselves with the help of boatsail, turkeys, and "hoggs", stolen from the neighbors. Inasmuch as wolves still ranged the county at that time, they must have been an intrepid lot, worthy successors of the old Kecoughtans.
The court, however, did not approve of their exploits It pronounced them as headed straight for the gallows, and tried to forestall that catastrophe by capturing them and binding them out to the honest folk of the community. Even then the eldest, John Rivers, retained his independence. A month later he reappered in court of his own initiative to announce that he would not serve his master, Thomas Curle, gent., at sea, that he wanted to learn a trade. Accordingly the justices, who seem to have been sincerely intent on giving this queer crew the best that lay in their power, patiently reconsidered his case and apprenticed him instead to William Hudson and Susannah his wife, "to learn the art 2 of a shoomaker. "
Court Records, July 18, and August, 1694.
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The records of the first few decades of the eigh- teenth century indicate that the justices were as much pre- occupied with the morality of the community as any Puritan New England magistrates. And it must be admitted that Hamp- ton, perhaps because it was still a busy port, presented a rather impressive number of moral problems for a place of its size. The sinners haled before court included not only those who impiously stayed away from divine service or were caught by the church wardens in the act of "profane swearing", but adulterers, keepers of bawdy houses, and above all mothers of illegitimate children.
The problem of bastardy is especially interesting, not only in that it throws light on the complex social backgrounds and class distinctions of the period, but in that as one carried the study past the Revolution into the nine- teenth century, one encounters a distinct evolution in the point of view. The justices of the early eighteenth century had a twofold object whenever they were confronted with such a case, to punish the guilty woman, and when possible to "save the parish harmless" by forcing the father to pro- vide for the child. 3 In the next century the only object was to see that the father contributed an annual sum for the child's support; he alone was prosecuted; the law had lost interest in the mystical notion of visiting retri- bution on the mother for her sin.
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For that matter it does not appear that mothers were often punished in old Hampton when the father could be found and made to pay. But for those women who stood alone the law was harsh. The customary choice in the 1720's was a fifteen shilling fine or twenty-five lashes well laid on. And since the fine was usually beyond the means of the unfortunate mothers, the sheriff was ordered to flog them.
A woman servant's bondage was increased by a twelfth- month if she had a child, the idea being to compensate her master for time out as well as punish her. It would be reas- onable to assume that in some such cases the father of the child might also be an indentured servant, but if a bondsman's term was every increased for his committing such an offense, the instance has not been set down in the local records. How-
ever, servants were obviously not expected to produce their kind while in service, in which they were under a severer restraint than their fellow bondsmen, the slaves.
The severest punishments were reserved for cases of miscegenation involving a white mother. In 1693 Ann Wall, a free Englishwoman, who had become the mother of two mul- atto children, was sold for five years to Peter Hobson of Norfolk county with the warning that if she ever set foot in Elizabeth City County again after regaining her freedom, 3 she would be banished to the Barbados. Her children were to serve the same master until thirty, the customary dis-
Court Records, December 30, 1693.
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position of mulatto children.
In 1727 Margaret Hall, evidently an indentured ser- vant, was given a Hobson's choice of paying the church war- dens the impossible sum of fifteen pounds sterling or of 4 serving her master five extra years, for the same offense. The contrast between thise fine and the fifteen shilling fine usually imposed on the mothers of white children is significant. Harsh as the law of the day was in dealing with any white unwed mother, it was pitiless when her child was colored. On the other hand if, as was inevitable, there were mulattos whose fathers were white, the law did not bother to investigate.
It appears that the great majority of bastardy cases involved women of the poorer classes, especially servants, but an occasional exception sometimes appeared to shock the community and embarrass the justices. The scandal of the 1720's was the misconduct of the well-to-do widow Judith Bayley, who was twice presented on this charge after the 5 death of her husband, John Bayley. Since the latter, as sheriff, had once occupied the most honorable position in the county, the sensation must have been tremendous. It would be interesting to know more about this rebel from respectable society, whether she was a woman with the "courage of her morals" as Andre Gide would say, or merely weak. That she was inept is suggested by the fact that her husband's es-
4. Court Records, Degember so July 19, 1727.
5. Ibid, November 17, 1725, November 19, 1729.
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tate was presently taken out of her hands for settlement. Her sins apparently received no punishment aside from the notoriety of their being presented at court. Probably out of deference to their late colleague's memory the justices hesitated to press the case, and there was, of course, no question of her not being able to provide for her children.
What was done with those convicted of adultery in this period is not clear for the reason that although charges were made from time to time, they never resulted in con- viction. Keepers of disorderly houses and bawdy houses were also sometimes presented, but aside from losing their license to keep an ordinary there was usually no special penalty inflicted. A woman held on this charge in 1750, with the added complaint that she "entertains and harbors Negroes and idle, disorderly persons" 6 was ordered to furnish security for her good behavior. Entertainment of servants in an ordinary was always an offense, as was entertainment of Negroes by white people anywhere at all.
There was in the second decade of the eighteenth century an especially impressive wave of prosecutions of those who neglected to attend church, as many as fourteen in 7 the August court, 1715 and eighteen at the February court of 1719. 8 In fact scattered presentments on this charge are recorded up to the Revolution, the culprits being fined or excused according to the merits of the case. Swearing was
6. Court Records, March 7, 1750.
7. Ibid, August 18, 1715.
8. Ibid, February 19, 1718/19.
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another offense zealously listened for by the church wardens and atoned for by the swearer at so much an oath (a shilling 9 apiece according to an early statute). The phraseology of the oaths is not recorded except for a notable one alleged to have been uttered in 1728 by James Holloway, who cursed 10 the king. Drunkenness was also punished, none less than the schoolmaster, Thomas Parris, being presented before the grand jury in 1726 for being "a common swearer and drunkard."
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If the effect of all this is to create the not wholly misleading impression that Elizabeth City County was as Puritannical as old Salem, it should be added that its people enjoyed amusements not permitted by the New England town fathers. A popular tradition that horse racing was a favorite sport in old Hampton is borne out by a suit brought against Samuel Sweny by William Copland in 1725. It in- volved a wager of ten pounds which had been laid on a race run by "gueldings" belonging to the contestants in one "Isaac Prilly's field where there was three race paths. " Copland arrived with his horses only to find that the courses had been lengthened by 140 yards. He wanted to run the old paths, but Sweny insisted on using the new ones; whereupon 12 Copland took the case to court.
The size of the wager, the references to earlier races in Prilly's field, and above all the fact that such
9. Hening, Statutes at Large, I, 167.
10. Court Records, January 17, 1727/28.
11. Ibid, November 15, 1726.
12. Ibid, March, 1724/25.
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a case could be counted upon to receive sympathetic consider- ation in court reveal a side of county life which stands in gay relief to the Hampton of compulsory church attendance and floggings of unmarried mothers.
Thus far only misdemeanors and sins against public morality have been discussed. Graver crimes were also com- mitted in Hampton, though more rarely, thefts, burglaries, murders. The latter crime usually involved women who had done away with their illegitimate children rather than go through the ignominy of court indictment and flogging. Such cases were also brought to the attention of the local court, but only for the justices to decide whether they were to be dismissed for insufficient evidence, or held for trial at the General Court in Williamsburg. This was in accordance with a Virginia statute of 1656 which provided that all crim- inal cases "that concern life or member" be tried before the General Court of Governor and Council or the Assembly, for the quaintly phrased reason that "We consider it no ease nor benefitt to the people to have their lives taken away from 13
them with too much ease. " This law applied to all white people, bonded or free, and to the free Negroes. Slaves, however, stood trial in Hampton at special courts of "Oyer and Terminer", and received their punishment there. Thus they furnish the more interesting examples of Colonial justice.
Hening, Statutes at Large, I, 397.
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In matters of private morality the Negro slave had a privilege of attending his own affairs without interference from the church wardens for which some white residents would have probably been grateful; that is, so long as his pecadillos involved only members of his own race. Affronts against white womanhood were then as now accounted criminal, but even in such cases the justices appeared to have sifted the evidence with cool impartiality unaffected by racial hysteria. 14
Thus the slave Jack was acquitted of rape in 1742. It is true that the judges condemned him to thirty-nine lashes in their belief that he had beaten and robbed his white woman accuser; but that he should escape hanging on so serious a charge is significant. In December, 1739, the slave Sheppy was pilloried during a whole sitting of the court and then given thirty-nine lashes for talking indecent- 15 ly to Dr. Brodie's daughter.
In the first three decades of the eighteenth century the punishment for theft was barbarously severe, but it is only fair to remember that the execution of law in England in that day was no more humane than it was in Elizabeth City County, and that no slave suffered hanging or public flogging without a trial. In 1728 Will, Anthony Tucker's slave, was hanged at the crossroads outside Hampton for the petty theft of two gallons of rum and six pounds of sugar from John Bordland's Warehouse. 16 Another slave, adjudged an ac-
14. Court Records, January 7, 1741/2.
15. Ibid, December 19, 1739.
16. Ibid, September 17, 1728.
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cessory, was ordered to be whipped through King and Queen Streets with thirty-nine lashes.
A year earlier a similar case had arisen which is worth special mention because of the curious legal technical- ity involved. In February, 1727, Gomery, one of the notorious Judith Bayley's slaves, was tried for a felony and found not guilty. "But there appearing great reason to believe that he was guilty, though the evidence did not prove the fact, It is Order'd that the sheriff do cut off his right ear at the pillory and that afterwards he do whip the said Negro
through the town of Hampton. " 17
That this odd kind of justice was not reserved exclusively for slaves is proved by the trial of a white man, William Curtis, obviously an undesir- able citizen, accused of a felony in 1735. Failing to prove his guilt, the justices were nevertheless so sure of it that they ordered the sheriff to give him thirty-nine lashes, "convey him out of the county and whip him as often as he 18 comes into it."
A decided trend towards leniency in cases of theft is observable as the century progressed. By 1739 a statute of the Colony had made it possible to give thieving slaves "benefit of the clergy". A. Smeit's slave Ned was in August of that year convicted of a theft from the mill house of Alexander Kennedy and condemned to be burnt in the hand and receive thirty-nine lashes at the whipping post, on his
Court Records, February 9, 1727/8.
17. 18. Ibid, January 13, 1734/5.
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pleading for "benefit of the clergy". Arson, rape, murder remained punishable by hanging, however, the master receiv- ing compensation from the Assembly for the estimated value of his slave.
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In 1748 the Burgesses created a brand new crime by enacting a statute which made the practice of medicine by a slave punishable by death in view of the fact that poisons had been administered by slaves under the guise of remedies. People in Hampton must have been previously relying on their slaves' knowledge of herbs for home remedies; hearing of the new law they were thrown into a panic, and began haling their slaves before the justices. There is no indication that any of the four alleged attempts at poisoning that took place between 1750 and 1761 had been successful, but there were two convictions, and on Friday the 13th of November, 1761, one hapless Negro physician was hanged at the 21 crossroads.
All the instruments indispensable for the adminis- tration of justice in Colonial America Hampton had, gallows, whipping post, pillory, stocks, ducking stool. That the latter was in frequent use is indicated by the fact that one 22 was ordered built in 1717 , another in September, 1727, and a third installed with wheels in 1757 at a total cost of four pounds sterling. 23 But how and why it was used in Hampton
19. Court Records, August 10, 1739.
20. Hening, Statutes at Large, VI, 104-112.
21. Court Records, October 31, 1761.
22. Ibid, February 21, 1716/17.
23. Ibid, March 9, 1757.
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the records unfortunately fail to reveal.
Whipping was the characteristic punishment. Not only were culprits flogged at the whipping post, but slaves were often whipped through town at the tail of a cart. Thirty- women.
nine lashes was the limit for men, and twenty-five for
There is a legend in Hampton to the effect that although it possessed a prison prior to the Civil War, its only occupants were spiders. Whatever was true in that period, in pre-Revolutionary days the prison was occupied by erring humanity to such an extent that the customary first act of a newly commissioned sheriff was to protest to the court against the "insufficiency of the prison." The pro- test, however, usually referred not so much to its size as to its state of repair. The sheriff was allowed to make what minor improvements he suggested, and when the prison contained an unusually large number of criminals awaiting trial in Hampton or transportation to the General Court, the sheriff and constables were often assisted by private citi- zens who "attended gaol" from one to five days each for due compensation at the county levy.
One prison was built in 1726 by Charles Avera for 8,900 pounds of tobacco 24 and a new one built by Merritt 25
Sweny, gent., in 1744 and 1745 for the sum of 130 L. This prison was placed at the edge of St. John's churchyard, its
24. Court Records, February 16, 1725/6
25. Ibid, February 15, 1743/44.
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nine and one-half acres of land extending down the south side of Queen Street to the east of North Street. £ Assuming that Mr. Sweny followed the original specifications, it had three rooms, was thirty feet long, eighteen wide, and ten high; its walls were three bricks thick and "timbered all around at the distance of seven inches, and lined with pine and oak plank. " It was paid for by special levies, the old prison being handed over to Mr. Sweny in partial payment for his work on the new one. And two years after it was com- pleted and handed over to the county, James Wallace, gent., the new sheriff in 1747, was duly complaining to the court of the "insufficiency of the prison. "
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