In many ways, the Smith case highlighted the local community in microcosm. The
deponents in the case came from differing social, economic, and gender groups. Because many
of the deponents were women, the case offered a rare glimpse into the daily lives of women
of differing social classes and how they viewed their roles within the Smith household and
the wider community. The interactions between Smith and the Accomack County Court justices
showed the complicated relationships among local gentry. Smith’s neighbors, who were most
likely small freeholders, gave testimony about Smith, his wife and his servants, thus
providing clues as to their role within the society. The case showed the complex,
multi-layered society that existed in newly formed Accomack County.
Despite the overwhelming evidence that Henry Smith had committed violent,
unspeakable crimes, he was able to sell his lands and move to Maryland without any
serious punishment for his actions. He was never imprisoned or required to pay any
substantial fines. Moreover, after Henry Smith moved to Somerset County, Maryland,
he became a prominent member of the community and a Burgess in the Maryland provincial
The following article will explore the life and times of Henry Smith, and
the peculiar power structure of the local provincial courts that allowed Henry
Smith to get away with murder.
Accomack County, Virginia, was formed in 1663 when Northampton County was divided
into two parts. Court sessions began in Accomack in April 1663 and were held almost
every month. Initially, administration of justice in Virginia was simple and inexpensive.
Throughout colonial Virginia, local gentry held regular county court sessions hearing civil
actions where the penalty did not exceed 1600 pounds of tobacco as well as petty criminal
offenses. The Governor and his council in James City tried all other cases, including civil
actions, where the penalty exceeded 1600 pounds of tobacco, and criminal offenses involving
loss of “life or member.” In 1658, a law was passed indicating that Northampton County had
jurisdiction over cases as far as 3200 pounds of tobacco “on account of its remoteness from
James City.” This threshold also seemed to apply in Accomack County at the time of its formation.
At the onset of Smith’s troubles in 1668, the Accomack County Court was new and
unproven but appeared to be operating effectively in the handling of local judicial matters.
In the mid-1660s, the court was composed of the following commissioners: Colonel Edmund Scarburgh, Mr. Charles Scarburgh, Captain Richard Hill, Major John Tilney, Mr. (later Captain) Edmund Bowman and Mr. Edward Revell. The most prominent member of the court was Colonel Edmund Scarburgh.
Scarburgh owned thousands of acres of land in Accomack and Northampton Counties.
Born of a prominent family, he was a British native who had immigrated to Virginia at an
early age. At various times he served as a Burgess from Northampton and Accomack Counties,
was a speaker of the House of Burgesses, Surveyor General of Virginia, King’s collector of
quitrents and Justice and Sheriff of Accomack and Northampton Counties. Scarburgh was
alternately in and out of trouble. He was legendary for his many impetuous acts, which
included attacking local Indians and Quakers without provocation and committing acts of
piracy on the Chesapeake Bay. The Governor and his council were fully aware of Scarburgh’s activities, which ultimately led to the Colonel losing all of his offices in 1670.
Whatever his faults, Edmund Scarburgh was a dynamic and powerful man. He was
instrumental in the formation of Accomack County in 1663, which he was said to have created
as his “own little empire under his sole control and away from Northampton court
influence." Scarburgh was important in the Henry Smith case, not only because of his
prominence on the Accomack County Court, but also because his ongoing disputes with the
Governor of Virginia, Sir William Berkeley, may have weighed in Smith’s favor when his rape charges were brought before the General Court in James City.
No one really knows when Henry Smith first immigrated to Virginia. He may have
been born in England around 1633. Based on passenger lists from Bristol, England,
some have speculated that he first went to Barbados before heading to Accomack County.
In any case, by 1664, Smith made his presence known in Virginia through a succession of land patents. Between 1665 and 1666, Smith paid for the transportation of at least 160 people, earning certificates for 5900 acres of land in Virginia. Henry Smith’s ability to pay for the passage of 160 individuals would have put him squarely in the upper echelons of the local gentry.
Smith’s connection with Governor Berkeley may never be known, but he apparently enjoyed
some kind of influence in James City. In 1666, at Oak [en] Hall, Smith’s plantation, he
ordered his servants to kill one of his neighbor’s hogs which was then pickled and sent
to his other plantation at Occahannock. The neighbor sued Smith for compensation for the
hog and was awarded 2000 pounds of tobacco for his loss by the Accomack County
commissioners. The Quarter Court generally did not hear appeals for less than 3200 pounds of
tobacco, but Smith sued in James City, and the Governor reversed the order.
Smith’s real troubles began in June 1668 when one of his indentured servants, Jean Powell, complained to the Accomack County Court that her master, Henry Smith, had abused her. The court did not doubt Powell’s story because she showed them the lashes and bruises on her back. At the same court, Ann Cooper, another of Smith’s indentured servants, charged her master with fathering her illegitimate child. Smith undoubtedly came to regret beating Jean Powell because the case ultimately set into motion the chain of events that eventually forced him to flee Virginia and move to Somerset County, Maryland.
The charges leveled against Henry Smith in Accomack County in the mid-1600s were very
serious and included adultery, fathering two illegitimate children, beating his wife and
her children, cruel and hard use of servants, slandering the court, rape, assault, kidnapping,
murder and “other notorious acts.” Due to the number of charges against Smith and the
convoluted nature of the depositions given by the witnesses, the case against Henry Smith
is best analyzed charge by charge rather than in chronological order. Many of the
depositions in Smith’s case were taken in the fall and winter of 1668/1669, and
they appear to have been recorded in the hand of a single clerk. These depositions
were singular in the Accomack County Court records in the level of detail that they contain. Given that such serious charges were being leveled against a prominent member of the community, Colonel Scarburgh instructed the clerk several times during the proceedings to maintain an accurate record of the witnesses’ testimony.
On October 26, 1668, Elizabeth Carter, Smith’s indentured servant and mistress,
and her friend Jean (or Jane) Hill, were prosecuted for suspicion of murdering Carter’s
bastard child in early September of that year. S uspicions were raise anytime a baby was
stillborn without witnesses. The baby had been secretly delivered at Hill’s home
without a midwife. There were a number of cases of infanticide reported in colonial Virginia.
It is not clear if there really were a great amount of infanticides in the seventeenth
century or if babies that were really stillborn were reported as murdered. Women who bore
bastard children were considered criminals and sometimes subjected to severe corporal
punishment. Moreover, indentured servants who had bastards would typically have their
indentures extended by two or more years, and their children would also become indentured
servants. Thus, there was external pressure in the seventeenth century for women to end
their pregnancies or to kill their newborns. Men were rarely indicted or convicted of
infanticide, making it a gender-specific crime.
Because of the social and legal consequences of a dead newborn, Carter and Hill
summoned neighbors to the Hill house after Carter’s child was born to view the “stillborn” infant. The neighbors who saw the baby reported to the court that the child’s head was bruised and bloodied. During the trial, Hill claimed that Carter often took physic to try to end her pregnancy and said she would “make a hog or dog of that in her belly.” Carter named Smith as the father of her child and claimed that he had given her the physic. Following the accusations of the women, Smith was brought into court for further proof or censure in the case.
Carter was eventually acquitted of murdering her baby but was ordered to pay 500
pounds of tobacco or receive 20 lashes for bearing an illegitimate child and ordered to
receive 30 lashes for taking physic during her pregnancy. During her trial, Carter charged
Smith, in writing, with tempting her into his bed with promises of marriage. She said that
she had long been his mistress and had even participated in a “ménage-a-trois” with Smith
and his first wife’s sister, Mrs. Holbrooke. Smith flatly refuted all of Carter’s charges
but was convicted of fathering the dead child and ordered to pay a fine of 500 pounds of
tobacco. As was the custom of the day, Smith did not receive any corporal punishment
for his offense. Women were more often subject to corporal punishment than men for the
same offenses. Moreover, as a “gentleman” or man of some means, Smith would not have
received physical punishment. Degrading punishments, such as whippings and dunkings,
were reserved mainly for slaves and lower-class individuals.
As mentioned, in addition to the charge that Smith fathered Carter’s baby, he was
also charged with fathering the illegitimate child of his servant, Ann Cooper. Because
there was a difference of five days in the timing of Cooper’s pregnancy and Smith’s absence
from the plantation where Cooper lived and because Cooper had a bad reputation and had
already had one bastard child, Smith was not immediately condemned as the father of Cooper’s
baby. The depositions did not indicate who testified about the timing of Cooper’s
pregnancy. Apparently, a midwife or some other woman made the determination about the
timing of Cooper’s pregnancy. This is quite interesting from a modern perspective because
twentieth-century doctors will only date pregnancy to within two weeks of conception.
The Henry Smith case also involved one of the few recorded instances in
seventeenth-century Virginia of a legally sanctioned martial separation. Separation
was rare, but not unheard of in this era. Divorce was strictly prohibited. In Raphael
Semmes’ book, Crime and Punishment in Early Maryland, he found three cases of
martial separation in the Maryland Archives in the mid-1600s. In one of the cases
involving physical abuse, the husband was ordered to provide maintenance for his wife
throughout her life. In Good Wives, Nasty Wenches, & Anxious Patriarchs, Kathleen
Brown wrote, “wives had long resorted to litigation against husbands in cases of physical abuse or abandonment.” Usually, these women went to court to secure separate maintenance for themselves and their children. This is exactly what happened in Accomack County when Joanna Matrum Smith entered the court and requested separate maintenance from Henry Smith.
Smith had told neighbors that the court was malicious and conspiring against him
in its administration of the Elizabeth Carter case. He said he would take revenge on his
wife for what was being said about him in court, if he could not take revenge on those
responsible. When the justices heard this testimony, they summoned Smith’s second wife,
Joanna Matrum Smith, to testify. According to the court records, she was a widow with two
small children who had only recently married Smith. Clearly, she seized her opportunity
before the commissioners whom she begged to “save her from utter destruction by her cruel
husband,” Henry Smith. She believed that if she stayed with Smith she would be dead
within a year.
The justices found her credible and indicated that she was “sick and weak” from her
ordeal with Smith. According to the clerk’s summary of the depositions, many neighbors
and servants testified against Smith, claiming that he often beat and abused his wife
and had even burned her clothes. One of Smith’s own witnesses, Mrs. Browne, claimed that
he often abused his wife verbally and had once thrown a plate at her in Browne’s presence.
Mrs. Browne also remarked about bruises she had seen on Mrs. Smith. One of Smith’s servants,
Mary Hues, testified that she had heard Smith say, “If I had given my other wife as much I
[would have] killed her,” but as for Joanna he said, she must have “a heart of stone and
nothing will kill [her].”
Joanna Smith swore during her testimony that Smith would stab her or take her life
if she stayed with him. Women with physically abusive husbands had to convince county
courts that their lives were in danger in order for their husbands to be taken into custody
and bound over good behavior. The Accomack County commissioners and the citizens of the
county, many of whom were present, were convinced that the witnesses in the Matrum/Smith
case were telling the truth. The justices ordered the drafting of Articles of Pacification
to be agreed upon by the parties. They read as follows, “Articles of pacification proposed
and agreed on by Henry Smith and accepted and consented unto by Joanna, his wife, for their
greater quiet and satisfactory living.” In the articles, Smith was ordered to allow his wife
to live at one of his two plantations, i.e., either Oak Hall or Occahannock. He was to
provide his wife with “meat, drink and needful clothing.” She was to have a woman servant,
Elizabeth Nock, to attend her and her child, and she could visit her sister and friends at
her discretion. Smith was ordered to stay away from her unless two commissioners or one
commissioner and two honest neighbors accompanied him.
Joanna requested that the court make future provisions for her in case Smith
left Virginia and moved to Maryland where she said her husband anticipated “more
licentious living and liberty of using his tyranny to all under his power.” Smith was
ordered to give security to provide for the continual sustenance of his wife and her
children. If he refused, he was to be taken into custody until the Governor could
give further direction. Smith was also ordered to pay court costs associated with
his “shameful and cruel dealings.” In seventeenth-century Virginia, a man’s
paramount role was that of provider and protector of his family. Men were socially,
if not statutorily, obligated to care for their families. By beating his wife, Henry Smith had overstepped the bounds of legitimate authority. Thus, the Accomack County commissioners’ order to Smith was their attempt to require him to fulfill his role as husband, father and patriarch.
Despite numerous attempts by the court to force Smith to give his wife and her children
their due, including the orphans’ share or their father’s estate, Smith refused to
provide for his wife. The justices ultimately gave Mrs. Smith permission to return to
England. Colonel Scarburgh even paid her return passage. Several years later, after
Smith moved to Maryland, he married a woman named Anne. It is unclear if Joanna
had died and Smith was a widower, or if he had committed bigamy.
With the cases of Carter, Cooper, and Matrum, the floodgates opened, and a
number of Smith’s indentured servants came forward to complain about their treatment under
their master. Mary Hughs, Jean Powell, Elizabeth Nock, Richard
Chambers, William Nock, and Roger Mylles all asked the court for relief from their
cruel master, Henry Smith. The servants claimed they were treated poorly due to lack of food
and clothing, but most especially due to the harsh blows they received from their master.
Smith savagely beat most of the servants, especially the women, with shoes, rods, and
whips. The servants’ diet consisted of hominy and salt and sometimes nothing at all. Most
of the servants testified that they had asked Smith for shoes at one time or another. In
fact, Smith beat Mary Hues because she had asked him for shoes. After she threatened to
walk to town in search of justice, Smith beat her again, but gave her a pair of shoes.
Smith threatened Elizabeth Nock with a beating because she had tied rags on her feet to
protect them from the cold November weather. The servants also testified that they had
seen Smith beating his wife’s children for little or no cause. On one occasion, Matrum’s
four-year-old daughter, Sarah, had gone into the milk house where her mother allowed her to suck cream from her finger. Smith beat the child saying that his wife’s “bastard” child would eat all of the cream. Shortly thereafter, the child moved to a neighbor’s house to protect her from her stepfather.
Due to the “barbarous usage of some servants by cruell masters,” laws had been established in Virginia to protect servants from their masters. In 1662, a law was passed requiring masters to provide for their servants’ diet, clothing and lodging. The law further stated that masters should not “exceed the bounds of moderation in correcting them [servants] beyond the meritt of their offences.” It also granted servants the right to give notice against their masters for harsh or bad usage. This gave the courts legal authority to discipline masters who used excessive violence. Smith’s servants must have been aware of these laws, as evidenced by Mary Hues’ threat to seek justice if Smith did not provide her with shoes.
Following the series of depositions on 9 December 1668, Smith was ordered not to
strike any of his servants, but if any of them “do amiss,” he should bring them before
a commissioner or the court for punishment. There had been an allegation that Smith had
held a servant captive on Smith Island. Accordingly, he was also told not to remove any
of the servants from the mainland, Further, Smith was ordered to provide adequate clothes,
shoes, food and lodging for the servants. This was not the end of the servants' testimony, however, as more serious charges of attempted rape, rape and murder were about to be leveled against Smith.
Despite the volumes of testimony, the precise nature of the relationship between
Henry Smith’s wife and Col. Edmund Scarburgh remains unclear. During one deposition, it was
recounted that Smith apparently accused his wife of being a “whore” who went to Scarburgh’s
house when he called. Between her appearance in court in December and the next court session
on 6 January 1669, Joanna Matrum Smith must have been staying at the home of Mrs. Ann Toft,
who was reputed to be Edmund Scarburgh’s mistress. One night, Smith showed up at Toft’s
house to do harm to his wife, but some of the servants prevented him from taking her away.
Following his actions, the court, directed by the Governor, ordered a strict inquiry in
order to censure Smith. Apparently, Edmund Scarburgh was tiring of the scandal and
wanted to deal with Smith once and for all. Scarburgh did not get his wish as the Smith
affair dominated the next two court sessions.
During the 6 January 1669 session, Rachell Moody, Joanna Matrum Smith’s niece, testified
against her uncle regarding her status and treatment in the Smith household. Smith claimed
that Moody was his indentured servant, but Moody swore that her grandmother had sent her
from England to look after her aunt and cousins. In all likelihood, Moody was not an
indentured servant, given that she had an inheritance of £20 per year from her grandmother.
Nevertheless, Smith treated Moody as a servant, forcing her to work, beating her and
threatening to take her across the Chesapeake Bay and sell her. The court considered the
law regarding indentured servitude and concluded that a contract made someone an indentured
servant and that paying someone’s passage only made that person a debtor for the passage, not a servant. As a Burgess, Scarburgh would have been acquainted with these issues and the need for a lawful contract to distinguish a servant from a slave.
Smith did not have proof that Moody was his indentured servant, but was given a
yea'r’ time to produce evidence to the contrary; failing that, he was ordered to pay Moody for her work. Interestingly, Col. Scarburgh and another justice were ordered to write to the major alderman in Bristol about the controversy. The record noted that the alderman knew the “evil life and demeanor of Smith” and would be able to assess Smith’s claim. The ties between Accomack County and Bristol must have been very strong during this time period. Many of the immigrants who went to Accomack in the mid-seventeenth century left from the port of Bristol, and apparently Smith was one of them.
During the 6 January 1668/9 session, Mary Jones, a former servant to Smith, was
brought to court and testified that she had been taken without warning to an island
(Smith Island) and had been detained there for fourteen months beyond her indenture.
She claimed that during that time she had been tied “neck and heel,” received “many
whippings,” had been denied food and clothing and most grievous, had been raped by
Smith. Henry Smith refuted the testimony and claimed that he had taken Jones to Smith
Island because she was a runaway. The court ordered Smith to discharge Jones from her
service, but did not require him to pay her for the fourteen months.
The Accomack County justices had Jones testify about the rape as a separate complaint. Presumably, the case was handled in this manner because if Jones’ charge was credible, the case would have to be referred to the Quarter Court in James City for adjudication. Jones claimed that in March 1663, Smith gagged and raped her in a tobacco house, and on two other occasions, he had tried to rape her but was unsuccessful.
When the justices met again on 4 February 1669, they investigated the circumstances
surrounding Jones’ accusation. They found that the rape came to light because Smith was
suspected of fathering Elizabeth Carter’s bastard child. While on the stand, Jean Hill
requested that Mary Jones be brought into court to testify. The court indicated that Jones
spoke of the rape only as it related to the beating she had received at her master’s hand. The record actually stated that Jones acted as though she was unaware that Smith could be punished for rape.
It was not surprising that Jones thought that her master would not be censured for
rape because rape convictions were rarely upheld in colonial Virginia. Rape convictions
were so rare, in fact, that Raphael Semmes did not even address rape in his work Crime
and Punishment in Early Maryland. Seventeenth-century beliefs about the potency of female sexuality made rape convictions almost impossible. Women, especially unmarried servants, were viewed as weak and lewd and apt to corrupt men with their overt sexuality. Although rape would have been tried at the General Court, county courts often refused even to send rape cases to James City. Brown cited several instances in county courts where rapes were denounced as “the trumped-up charges of devious servants or slandering women.”
Initially, the case in Accomack County did not follow this pattern.
The Accomack justices found that Mary Jones’ reputation was better than Henry Smith’s
reputation. So they committed Smith to prison, where he was to remain until the Governor
could be informed and give his direction either to bind Smith over until the next court
to be tried for rape or to let him be dismissed with censure. When deciding the case,
the justices stated that Smith had “the mark of God’s desertion by his pride and arrogance,”
noting the death, drowning and loss of his animals and the burning of his house. Basically,
they felt that God had caused Smith’s misfortune as punishment for his many evil acts,
and called him “more like a monster than a man.” The justices also wondered if the
length of time between the rape and its reporting to the court would hinder the case, but
decided that parts of Virginia were so remote that victims could not easily come forward
to report their crimes.
Mary Hues came forward next and claimed that Smith had raped her as well. Hues indicated that Smith had raped her in an out building on one of his properties. When Hues tried to report the crime to her mistress, Smith would not let her go. Given the preponderance of evidence against Smith, including witness testimony, the court also believed Hues’ claim.
Emboldened, many of the servants then came forward to report that Smith had beaten
two indentured servants, John Butts (Old John), and Richard Webb, to death. There was no
further mention of the death of Richard Webb in the record. However, the servants were
deposed regarding the death of John Butts. Old John was a man of about sixty years of age.
The servants said that Old John was frequently the object of Smith’s cruelty because of
his inability to work due to his advanced age. Butts was also more ill-fed than the others because he did not work up to Smith’s expectations.
In the fall of 1666, Smith beat Butts because he stole a piece of bread when he was nearly starved. Butts ran away after the beating, but later returned to the plantation. Smith took him to the constable, Captain Bowman, for a whipping, Bowman said Old John looked like he was more in need of a nurse than a whipping and that if Colonel Scarburgh found out that Smith was keeping his servants in that manner he would be in trouble.
Butts complained to Bowman about a bruise under his arm that had been
inflicted by his master. Smith was enraged because Bowman would not whip Butts.
Smith proceeded to take Butts home where he proceeded to cut off one side of the
servant’s hair (to humiliate him and to mark him as a runaway), to strip him and to
beat him severely with a bull’s pizzle. The blacksmiths, William Nock and
Richard Chambers, testified that they thought their master
would never stop beating Butts and counted at least 40 or 50 lashes before their master
stopped. After the beating, Smith put a “plough chain” around Old John’s ankle and forced
him “to work by day and grind [corn] by night.” Butts was so weak that the other servants
did his work for him to save him from more blows. Smith continued to withhold food from Butts. In his weakened state, Butts’ wounds worsened and the bruise under his arm swelled. About three weeks after the visit to Captain Bowman’s, Old John died while sleeping in an open tobacco house.
The justices, who were clearly acquainted with English law, indicated that “if a man does an unlawful thing and kills a man by mischance it is a felony. If he only intends to beat him and the victim dies within a year and a day, it is also a felony.” They felt that Smith had beat Butts in contempt of justice and the officers of the court. As a result, Butts died “the worst of deaths.” Even though indentured servants were considered property, masters did not have the right to abuse or kill them. Although servants were generally more harshly treated in Virginia than in England, English standards of contract and fair use applied.
By February 1668/9, Smith had his attorney send a petition of appeal to the
Governor, trying to harm the reputation of the court. Scarburgh countered by taking a
transcript of the proceeding with him to James City. Smith and his accusers set sail for
James City in April, but were forced to return to the Eastern Shore because of bad weather.
The Governor and his council then tried to go to Accomack, but were also forced to end their
trip due to weather. The justices, perhaps sensing the Governor’s ambivalence, eventually let Smith go on bail.
Because most of the General Court records were destroyed in a fire in Richmond
during the Civil War, we may never know if Henry Smith stood trial for the murder of
John Butts. In April 1670, the General Court acquitted Smith of the rapes of Mary Jones
and Mary Hues, but there was not mention of the murder. Adding insult to injury, both
women were ordered to double the time of their indentures for making false accusations,
but were at least sold to new masters. Given the level of cruelty of Henry Smith’s
actions, his acquittal could not have been as straightforward as the records would indicate.
The larger political picture in Accomack County may have played a role in Smith’s case.
Around the time of Smith’s trial at the General Court, there was a major upheaval
in Accomack County, which resulted in the removal of Captain Bowman from the court.
During the preparation of the petition to Governor Berkeley about Smith’s crimes, Bowman
“scandalized” the court by saying that its orders were in error. This was the last
straw for Scarburgh, who was already displeased with a number of Bowman’s actions.
Bowman was an outsider who had gained his position by marrying a wealthy Accomack widow.
Scarburgh sent a request to Berkeley asking what was to be done about Bowman as well as
a providing the Governor with a lengthy petition outlining Smith’s crimes. Scarburgh
cautioned the Governor that Smith was busy removing most of what he could carry to Maryland.
Scarburgh resided over his last court session on 16 June 1670. Apparently between
June and September 1670, Scarburgh did something so egregious that it caused the Governor to
temporarily dissolve the county. No doubt, the Henry Smith/Captain Bowman affair fanned the
flames of discontent. Additionally, local tradition holds that around this time Scarburgh
committed the “ditch murders.” Legend holds that the Colonel gathered a group of leading
Indians in a ditch by telling them that a Great Spirit would speak to them. Once the
Indians were seated in the ditch, Scarburgh fired a cannon that “spoke” to the Indians.
The Governor was enraged by Scarburgh’s treachery and had him removed from all of his offices.
Whatever the case, by 1671 Scarburgh was dead, and Smith was safely ensconced on his
new property in Somerset County, Maryland. In July 1671, Smith sold both his Oak Hall and
Occahannock plantations. Captain Smith’s record in Maryland was impressive; he served
as a justice of the peace in Somerset County between 1669-1683, as a captain in the militia
and as a representative in the Lower House of the Maryland General Assembly from 1682-1685.
Smith was also instrumental in the construction of the first courthouse in Somerset County.
Records show that he lived on the Manokin River on a tract of land ironically called
Smith may have made a “recovery,” but he would die heavily in debt. Probate records indicated that Henry Smith died intestate in 1703. Smith’s two inventories were worth only about £40. He was so heavily in debt that the state ordered the sale of his lands to pay his accounts. In the end, his 6,550 acres of land in Somerset County were sold for about £225 to help meet Smith’s debts.
The Henry Smith case reads like a modern-day crime thriller. Despite the salacious
nature of the trial, it provides a wealth of information about Accomack County society
in the mid-seventeenth century. Apart from slaves, individuals from every socioeconomic
level participated in the trial. The court records reveal that the justices showed some
deference and respect to the women involved in the case, i.e., Smith’s wife, the neighbors
and the indentured servants. In the end, however, the patriarchal and hierarchical social
order that was in place at the time triumphed, and Smith walked away from his cruelty with little or no ill effects.
In the past few decades, historians have come to view the physical punishment of servants as a form of household violence. In the seventeenth century, patriarchs had the right to assert their authority over wives, children and servants. The courts only intervened in cases of excessive violence or brutality because their primary concern was merely to uphold the existing social order. The Accomack County justices were both paternalistic and patriarchal. Those who overstepped legitimate authority were called to answer for their deeds. As seen in the Smith case, however, severe penalties for domestic abuse were not the order of the day.
Throughout the seventeenth century the court became increasingly attentive to
the complaints of abused spouses and servants. As the encoded legal distinctions grew
between servants and slaves, the courts deemed excessive violence toward any
white--bound or not--unacceptable. The courts would come to use their power to control
patriarchs who used excessive violence within their households. At the time of the
Henry Smith case, laws governing the treatment of servants and the distinctions between
servants and slaves had just been passed or were in the process of being passed. This
helps to explain the actions of the local and General Courts vis-à-vis Henry Smith. The authorities were willing to punish Smith for his actions, but only to a point. Smith was censured for abusing his wife and servants, but he was ultimately acquitted of the more serious charges of rape and murder.
2 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia from the
First Session of the Legislature, in the Year 1619, Vol. II, 2d ed., (New York: R. & W. & G. Bartow, 1823) 398, 384.
3 Virginia M. Meyer and John Frederick Dorman, ed., Adventurers of Purse and Person: Virginia, 1607-
1624/5 (Alexandria, VA: Order of First Families of Virginia, 1987), 548-549.
4 Ralph T. Whitelaw, Virginia’s Eastern Shore: A History of Northampton and Accomack Counties, Vol. I,
(Richmond: Virginia Historical Society, 1951, reprint, Camden, ME: Picton Press, 1989), 32-33.
5 JoAnn Riley McKey, Accomack County, Virginia Court Order Abstracts: 1666-1670, Vol II, (Bowie,
MD: Heritage Books, 1996), xiii.
6 Edward C. Papenfuse, Alan F. Day, David W. Jordan and Gregory A. Stiverson, ed., A Biographical
Dictionary of the Maryland Legislature: 1635-1789, Vol. II, (Baltimore: The Johns Hopkins University Press, 1979), 743; Pauline Manning Batchelder, ed., A Somerset Sampler: Families of Old Somerset County Maryland, 1700-1776, (Salisbury, MD: Lower Delmarva Genealogical Society, 1994), 243.
7 Batchelder, A Somerset Sampler, 243.
8 Stratton Nottingham, Certificates and Rights, Accomack County, Virginia: 1663-1709 (Onancock, VA:
Privately Printed, 1929, reprint, Baltimore: Genealogical Publishing Co., Inc., 1977), 6, 40, 42; Accomack County Court Records, 13 March 1665; Nell Marion Nugent, Cavaliers and Pioneers, Abstracts of Virginia Land Patents and Grants 1666-1695, Vol. II, (Richmond, VA: Virginia State Library, 1977), 555.
9 McKey, Accomack County, Virginia Court Order Abstracts, Vol. I, vii-viii.
10 Accomack County Court Records, 7-9 December 1668, 67-88.
12 Merrill D. Smith, “'Unnatural Mothers': Infanticide, Motherhood and Class in the Mid-Atlantic, 1730-
1830," in Christine Daniels and Michael V. Kennedy, ed., Over the Threshold: Intimate Violence in Early America (New York: Routledge, 1999), 176-177.
13 Ibid., 26 October 1668, 63-64.
14 Ibid., 7-9 December 1668, 67-88.
15 Ibid., 7-9 December 1668, 67-88.
16 Raphael Semmes, Crime and Punishment in Early Maryland (Baltimore: The Johns Hopkins University
Press, 1938; reprint, 1996), 202.
17 Kathleen Brown, Good Wives, Nasty Wenches & Anxious Patriarchs: Gender, Race and Power in
Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996), 336.
18 Accomack County Court Records, 7-9 December 1668, 67-88.
21 Brown, Good Wives, 336.
22 Accomack County Court Records, 7-9 December 1668, 67-88.
23 Ibid., 9 December 1668, 67-88.
24 Accomack County Court Records, 4 February 1668/9, 102-109.
25 Ibid., 7- 9 December 1668, 67-88.
27 William Waller Hening, The Statutes at Large: Being a Collection of All the
Laws of Virginia from the
First Session of the Legislature, in the Year 1619, Vol. II, 2d ed., (New York: R. & W. & G. Bartow, 1823), 117-118.
28 Accomack County Court Records, 7-9 December 1668, 67-88.
29 Ibid., 7-9 December 1668, 93,94.
30 Ibid., 6 January 1668/9, 95-97.
31 Accomack County Court Records, 6 January 1668/9, 95-97.
32 Ibid., 6 January 1668/9, 95-97.
33 Ibid., 4 February 1668/9, 104-109.
34 Ibid., 4 February 1668/9, 104-109.
35 Brown, Good Wives, 193-194.
36 Accomack County Court Records, 4 February 1669, 103.
37 Accomack County Court Records, 4 February 1668/9, 102-103.
38 Ibid., 4 February 1668/9, 104-109.
39 Ibid., 4 February 1668/9, 104-109.
40 A whip made from a bull’s penis.
41 Accomack County Court Records, 4 February 1668/9, 102-109.
42 Ibid., 17 March 1668/9, 124-127.
43 Brown, Good Wives, 152.
44 Accomack County Court Records, 26 August 1669/70, 155-157; McKey,
Accomack County, Virginia
Court Abstracts, Vol. II, xii-xiii.
45 H.R. McIlwaine, ed., Minutes of the Council and Genera Court of Colonial Virginia: 1622-1632, 1670-
1676, With Notes and Excerpts From Original Council and General Court Records Into 1683, Now Lost, (Richmond: Virginia State Library, 1905) 212.
46 Accomack County Court Records, 3 February 1669/1670, 175-181.
47 McKey, Accomack County, Virginia Court Order Abstracts, Vol. II, xiv.
48 Ibid., 1.
49 Clayton Torrence, Old Somerset on the Eastern Shore of Maryland: A Study
in Foundation and Founders
(Baltimore: Regional Publishing Company, 1979), 424-425.
50 Prerogative Court of Maryland, Inventories and Accounts.
51 Terri L. Snyder, “As If There Was Not Mater or Woman in the Land”: Gender, Dependency and
Household Violence in Virginia, 1646-1720, in Daniels and Kennedy, Over the Threshold, 220-221.
52 Ibid., 232.