Capt. Jacob Hayes of the Constant

Arnold Edmund Hayes (1893-1982) wrote an article in Historical Southern Families, Volume XV, that contained this item:1

Jacob Hayes3 followed in the footsteps of his grandfather and earned his living on the sea. He was master of the “Constant” out of London. It is not known how he became involved in Bacon’s Rebellion, but he and his first mate Edward Cooke were subpoenaed to appear in court in London. Rather than comply, they resolved to leave the sea and take up land “in Albemarle”. Jacob is the first Hayes on record to make his home in North Carolina. For protection, he dropped the use of his first given name and used the second one, John. He made his home on Salmon Creek in Chowan Precinct. It is highly probable that the Hays families found in Tyrell, Martin, and Washington Counties are the descendants of old Capt. Jacob John Hayes.

Is any of this true? After seeing several other errors in Mr. Hayes’ paper, I wondered how much of this story is accurate.  The answer is almost nothing.

Jacob Hayes, ship’s captain, in British maritime records

The fragmentary records of the port of London, preserved by Virginia’s Colonial Records Project show that a Jacob “Hay” was master of the ship Dove of London when it arrived in London carrying a load of Virginia tobacco in August 1664.2  Port of London records show that the Dove made three more annual trips to Virginia in 1675, 1676, and 1677 but with a different captain each year.

Probably the same man, variously recorded as”Jacob Hay”, “Jacob Hays”, and “Jacob Hayes”, was master of the ship Constant of London when it made annual voyages from England to Virginia and back in 1675, 1676, 1677, and 1678.3,  According to the port records, it typically carried clothing, cloth and spirits to Virginia and returned with cargoes mainly of tobacco.

Captain Hayes was not “involved in Bacon’s Rebellion”

He could not have participated in the rebellion because he was nowhere near Virginia during the key moments of that brief episode.  Nathanial Bacon was expelled from the Council in May of 1676, arrived in Jamestown on 6 June, issued his famous proclamation on 30 July and burned Jamestown on 19 September 1676.  Bacon died of dysentery in late October 1676 and the rebellion petered out in late 1676 as the remaining rebels were captured.  Governor Berkeley returned safely to Jamestown in mid-January 1677.

Jacob Hayes and the ship Constant left Jamestown for London well before most of this happened — he sailed for England early in June of 1676, arriving in London in mid-August according to port records.4   The Constant remained in England for five months, leaving England at the end of November 1676 carrying English troops and supplies to Jamestown in support of the Governor, and arriving in February 1677 well after the rebellion was over (more about this below.) 5

Actually, he was an agent of the Crown

In late 1676 the Constant and several other merchant ships were contracted to transport troops and supplies to Virginia to strengthen the government in the aftermath of Bacon’s insurgency. On November 1 the King’s Treasury employed Captain Hayes and the Constant, and five other ships, to transport “provisions which the Navy Commissioners will soon be ready to ship for the use of his Majesty’s forces intended for Virginia.”6  Port of London records show the Constant being loaded in London with supplies for His Majesty’s Navy together with three tons of “strong waters” on 16 November 1676. 7  Then on November 28 several companies of troops were mustered “on board the Constant, Jacob Hays, master” at Deal in southeastern England.8

Fortuitously, the log of the H.M.S. Bristol, a naval vessel supporting Governor Beverley in fortifying Jamestown has been preserved in British records.9  That log mentions Jacob Hayes, master of the Constant, several times.  The Bristol sailed from England on 18 November 1676 followed by the fleet of contracted merchant ships and arrived at Newport News near the mouth of the James, more than ten weeks later on 29 January 1677.  The slower merchant ships trickled in over the next few weeks, among them the Constant arriving on the night of 5 February 1677 with 150 soldiers aboard.10  On 15 February the British commander ordered the merchant ships to sail to Jamestown and unload their cargoes.  The following day he recorded a complaint in his log: “To Mr. Hayes I have not only this daye but formerly sent my order to gett sloops and other conveniencys for the landinge…butt he takes little notice thereof absentinge himselfe about his own private concern in hope of Demurrage.”11  (Demurrage was a bonus fee paid to the ship’s owner if its cargo was not unloaded within, in this particular case, 14 days after arrival.)  As it turned out, high winds delayed the unloading and the Constant and four other ships did not unload their soldiers until 21 and 22 February.  50 soldiers remained on board the Constant, and Capt Hayes delivered them to duty at the Falls of the James the following day.

The Bristol’s log records on 28 June 1677 show that the “Constant of London sailed home.”12  Port of London records show that it arrived in there two months later with a cargo of Virginia tobacco.13

The same records tell us that Captain Jacob Hays was literate.  The British Calendar of State Papers include a lengthy letter that he wrote in August 1677 to John Fitzherbert describing a Dutch attack that had destroyed 19 English ships anchored in the James River.14

Jacob Hayes transported a prisoner to Jamestown

There are three records in the Colonial and State Records of North Carolina, regarding an event that took place just before Bacon’s Rebellion, related to an precursor of what we know as the “Culpepper Rebellion”.  However, the context in which Capt. Jacob Hayes and the Constant are mentioned is only that they transported an accused rebel to stand trial

Thomas Miller, who was believed to be plotting to transfer the Albemarle colony of Carolina to the rule of Sir William Berkeley of Virginia, was accused by the settlers there of sedition and sent to Jamestown for trial, where he was acquitted.  He traveled to Jamestown on the ship Constant.  There exist depositions to that effect made by three sailors named James Swanson, Henry Crokly, and Edward Cooke taken in 1679 through 1680/81 and reported in the Colonial Records of North Carolina. 15  The sailors testified that they saw Thomas Miller loaded under guard aboard the Constant in Albemarle in May 1676 and delivered to Jamestown for trial – and that after being acquitted he boarded the Constant to travel to England.

Thus the Constant was merely providing transport and Capt. Hayes did nothing that would cause him to flee England’s jurisdiction. Indeed, shortly thereafter he was contracted to the Navy, as reported above. I was unable to find any record that Hayes himself was subpoenaed, nor that either he or Cooke refused to testify.  Obviously, his mate Edward Cooke did provide his testimony a few years later, on 9 February 1680/81.  And Edward Cooke subsequently appears in Port of London records as master of his own ship.

Regarding the fate of Thomas Miller, upon his return to England in 1676 he successfully arranged to be appointed Secretary, Collector of Customs, and Lord Shaftsbury’s Deputy in Carolina.  At the same time, the proprietors named Thomas Eastchurch as the new Governor.  Miller and Eastchurch sailed back to Albemarle together, and the new Governor gave Thomas Miller a commission in July 1677 as president of his Executive Council. Thomas Eastchurch stopped in Nevis to marry a woman there and died in late 1677 without ever having actually served as Governor. Thomas Miller effectively became the acting Governor of Albemarle until he was arrested in December 1677 by John Culpepper and accused of malfeasance and treason. He escaped custody in 1679 and traveled to London to plead his case to the proprietors. A great many depositions were taken regarding his actions. The depositions by the three sailors on the Constant regarding his whereabouts in mid-1676 were peripheral to the later events — and the sailors were certainly not charged with any wrongdoing  themselves.

A possible end to Jacob Hays

Port of London customs records show that “Jacob Hay” was still master of the Constant when goods were loaded aboard it in October and November 1677 in preparation for a trip to Virginia.16  However, there are no further records of him — the following year Thomas Smith was master of the Constant for the 1678/9 voyage to Virginia.17

A possible explanation is that a man named Jacob Hay died in Virginia in 1678.  There is a probate record for Jacob Hay “of Cloughton near Scarborough” who died in Virginia, administration of his estate being granted on 22 October 1678 to his widow Priscilla Hays of Yorkshire.18  Scarborough was a harbor town on the east coast of England, so it is possible that this was the same man as Captain Jacob Hays.  The timing suggests the possibility that he died after the arrival of the Constant in early 1678 but before the return voyage.  (I also note that this would neatly explain why Jacob Hays did not give testimony in 1679 and 1680 regarding the Thomas Miller affair.)

To summarize the errors in Alfred Hayes’ paper:

  • Jacob Hayes and the Constant played no role in Bacon’s Rebellion, much less a mutinous one.  Rather, he and his ship were paid agents of the King in transporting soldiers and supplies from London in support of the Virginia Governor.
  • I could find no evidence that Hayes and Cooke were subpoenaed and refused to testify.  In fact, Cooke did offer testimony in the Thomas Miller affair.
  • I could not find a shred of evidence that Jacob Hayes changed his name and profession to reappear 37 years later as a cooper named “John Hayes” in Chowan Precinct, North Carolina.  Indeed, I found no record whatsoever of him after late 1677.  The port of London records stop a year or two after that, although they do show that Edward Cooke continued to sail after 1679 as master of his own ship.
  • There is absolutely no record that Jacob Hayes did anything that might induce him to change his name “for protection” or to flee.  London records show that he continued as master of the Constant after the Rebellion was put down.  It is much more likely that he either continued to sail (the port records are lost after 1680) or retired to a peaceful life in England — or perhaps was the Jacob Hay of Scarborough who died in Virginia in 1688.
  • Regardless, Virginia records establish that he was quite clearly not the son of any Hayes of Isle of Wight County, Virginia.


  1. Arnold Edmund Hayes, “Hayes – Hays of Virginia & North Carolina” published in Historical Southern Families, Vol. XV, reference pages 173-174. []
  2. Virginia Colonial Records Project, SR 03768, page 27 []
  3. Virginia Colonial Records Project numerous records including SR05582, SR05586, SR05589, SR05590, SR05593, SR05594, SR03774, SR03793, SR05725, SR05762. []
  4. Virginia Colonial Records Project, SR05582 and SR03793 dated 21 and 31 August 1676. []
  5. Virginia Colonial Records Project, SR 05589. []
  6. William A. Shaw, ed.,”Entry Book: November 1676, 1-15″, in Calendar of Treasury Books, Volume 5 (1676-1679) (London, 1911), page 358. []
  7. Virginia Colonial Records Project, SR05589, SR05594, SR05504. []
  8. British History Online, reference ADM 106/326/213. []
  9. Virginia Colonial Records Project, SR06402. []
  10. Ibid., page 3. []
  11. Ibid., page 5. []
  12. Ibid. page 6. []
  13. Virginia Colonial Records Project, SR05593, SR05725. []
  14. Virginia Colonial Records Project, SR06466. []
  15. The Colonial and State Records of North Carolina, Volume 1, pages 234, 269, 289. []
  16. Virginia Colonial Records Project, e.g., SR05726. []
  17. Virginia Colonial Records Project, SR05595, SR06004, SR05767. []
  18. Prerogative Court Of Canterbury Administrations 1660-1700, viewed online at []