The test came in December, 1718, when the court of oyer and terminer was about to begin its session. Several Councillors had taken their seats when Spotswood announced that he was joining with them Mr. Cole Digges and Mr. Peter Beverley. Since neither was a member of the Council, Ludwell and four others got up and left. The five then drew up a remonstrance, which Ludwell presented to Spotswood in court, with a "long harangue." Noticing that people were gathering, he turned around, and raising his voice, addressed them. "The Governor's power of naming other judges than the Councillors in life and death cases is of dangerous consequence to the lives and liberties of free subjects," he said. "For that reason I refuse to sit in the court of oyer and terminer with those gentlemen."[31]
In London, Byrd pleaded the cause of the Council before the Lords of Trade. It would be fatal, he argued, to permit a Governor to try any person by what judges he thought proper. "Whoever has had the fortune to live in the plantations knows that Governors are not in the least exempt from human frailties, such as passionate love of money, resentment against such as presume to oppose their designs, particularly to their creatures and favorites."[32] To this Spotswood retorted: "What else could tempt the ruling party in the Council so strenuously to insist on a right, never claimed before, of being judges of oyer and terminer, but the desire of gaining to one family an entire power over the lives, as they now have over the estates, of the people of Virginia?"[33]
To the Earl of Orkney, Spotswood wrote bitterly. If he lost his battle with the Council, future Governors would think it folly to oppose them. "I take the power, interest, and reputation of the King's Governor in this dominion to be now reduced to a desperate gasp, and if the present efforts of the country cannot add new vigor to the same, then the haughtiness of a Carter, the hypocrisy of a Blair, the inveteracy of a Ludwell, the brutishness of a Smith, the malice of a Byrd, the conceitedness of a Grymes, and the scurrility of a Corbin, with about a score of base disloyalists and ungrateful Creolians for their adherents, must for the future rule the province."[34]