(see Chapter 13, note 26)
In April 1699, a joint committee of nine – three members of the Colony Council and six members of the House of Burgesses – was ordered to begin a complete revision of the Virginia laws.1 Seven years later in June 1706, the new code was enacted into law on royal instruction. In the book of laws, however, the code is ascribed to October 1705, the date on which it was first passed by the Assembly.2 It contains significant provisions relative to the establishment of racial oppression and the “white race,” that are further noted in Chapter 13.
The instructions of the Commissioners of Trade and Plantations that first ordered the revision of the laws required that “if there bee anything in them, either in the matter or Stile which may bee fit to be retrenched or altered, you are to represent the same unto us, with your opinion touching the said Laws.”3 Does a record of those opinions exist today? It seems reasonable to believe much light would be shed on that subject by the record of discussions and exchanges of dispatches and enclosures – the existence of which is a matter of record – that occurred within the committee, and in meetings of the Governor and Colony Council as well, and between the Virginia authorities and the government in England – if such records could be found. What was said by members of the Virginia committee or in the meetings held by the Commissioners of Trade and Plantations in England, or in the correspondence regarding those deliberations – some of which are specifically, but cryptically, alluded to in records that do exist?
This entire present work has been a rejection of the “unthinking decision” thesis coined by Winthrop D. Jordan. But where are the “thoughts” in this “revisall of the Lawes”? Somebody in the array of lawmakers and critics must have proposed that, after forty years, it was time to change the requirement that masters not “exceed the bounds of moderation in correcting” servants, and that if a servant were able to get to the justice of the peace and then to the next county court, “the servant shall have remedy for his grievances”; and, instead, to define “moderate correction” to mean that the master was not to “whip a christian white servant naked, without an order from the justice of the peace,” the offending master to be fined forty shillings payable to the servant.4 Some “reviser” must have thought it necessary to provide that upon a second offense by a master in treatment of “servants (not being slaves),” the courts could order that the servant be taken from that master and sold at outcry.5 Which member of the committee first took notice that in regard to freedom dues, “nothing in that nature ever [had been] made certain,” and urged that they be enumerated specifically: “to every male servant, ten bushels of corn, thirty shillings in money (or the equivalent in goods), a gun worth at least twenty shillings; and to every woman servant, fifteen bushels of corn, forty shillings in money (or the equivalent in goods)”? In this case we do have evidence that the revisal was not an exercise in somnambulism. The Virginia Colony Council at the last minute proposed to amend the draft law, by providing a differentiation of the freedom dues to be paid to men and women bond-laborers.6 But to whom did it occur to raise the question and by what argument? And, incidentally, who was it who successfully moved to strike out the words “at least” as proposed by the Colony Council, before the specification of the freedom dues to be required for women servants? What was the discussion that preceded the decision to include a totally new provision making any free Negro subject to a whipping of thirty lashes if he or she raised a hand against any “white” person?7
I shall not intrude here the details of my search for such substantive records, although I will gladly share that information with any scholar who might wish to join the hunt. A number of documents include references to meetings of the Lords of Trade and Plantations convened to consider the draft laws sent from Virginia for approval or disapproval. They note, among other relevant matters, the attendance of Virginia Colony Secretary Edmund Jennings, at their Lordships request, to explain and assist in the review of those proposed laws.8 On 27 and 29 March 1704, Jennings did attend, and “presented to their Lordships his observations on the Collection of Laws.”9 Sir Sidney Godolphin (later Earl) Lord High Treasurer advised Virginia governor Nicholson on 12 December 1704 that over a period of several months, Jennings had diligently worked with the Lords of Trade and Plantations to complete the work of “Inspecting [and?] amending” the proposed revisions of the Virginia laws.10 Reference is also found to communications with Virginia governors Andros,11 Nicholson and Nott, but there are no particulars in those documents that might serve to reveal the thinking processes that produced the new set of laws. Sir Edward Northey first served as English Attorney-General from July 1701 to October 1707. Where are the opinions, if they exist at all, rendered by him regarding the proposed revisal of the Virginia laws? A sizable number of documents relating to the laws carry the notation “a Page inserted in the file to indicate that [the particular document]” had been “removed and filed elsewhere.”12 Where is “elsewhere”? Finally, do answers to some of these questions remain to be discovered in some family papers that my search at the Library of Congress did not turn up?
A collateral matter no less puzzling is this: Why has no historian I have studied even taken notice of this apparent gap in the records of that critical period of Virginia history?
The argument made in the present work – that the invention of the “white race” social control system was a deliberate course taken by the ruling plantation bourgeoisie – would, I suspect, be strengthened by the discovery of such records regarding the process of framing the new Virginia code. But the thesis does not depend upon such discovery.