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EXTRACTS FROM THE VIRGINIA CHARTERS, WITH SOME REMARKS ON THEM MADE IN THE YEAR 1773.
In 1676 K. Ch. 2nd gave a Charter "To the Colony of Virginia" confirming the antient importation right of 50 acres for every person imported into the Colony. This seems to acknowledge and confirm the Company's right to the charter to be in the Colony after the dissolution of the former.
See Sect. 4th of the 3rd Charter of James 1st, by which harbors, fisheries, &c : &c : &c: are granted to the Company, which being of a public nature must plainly inure to the people of the Colony, after the dissolution of the Company if this dissolution had been legal. - Sed quære.
Anno 1606, April 10.-- Charter or Letters Patent first granted by King James the First to the two companys commonly called the London Company and the Plymouth Company for two several Colonies to be made in Virginia, and other parts and Territories of America along the Sea Coasts between 34 Degrees and 45 Degrees of North Latitude.
Sect. IV.-- Vizt: To Sir Thomas Gates, Sir George Somers, and others called the First or London Company to begin to settle and plant the first Colony any where upon the said Coast of Virginia or America, between 34 Degrees and 41 Degrees of North Latitude; and granting them all the country &c from the said first seat of their settlement or plantation for the space of fifty English Miles all along the said Coast, towards the West and South West as the Coast lieth; and for the like space of fifty miles all along the said coast, towards the East and North East, or towards the North, as the coast lieth: with all the Islands within one hundred miles directly over against the said seacoast; and also all the country from the said fifty miles every way on the Sea Coast, directly into the Main Land, for the space of one hundred English Miles, and that none other of His Majesty's subjects shall plant or inhabit behind, or on the back side of them towards the Main Land without the express Licence or Consent of the Council of that Colony thereunto in writing first had and obtained.
Sect. V.- -And to Sir Thomas Hanham, Raleigh Gilbert and others called the second or Plymouth Company to begin to settle and plant the second colony anywhere upon the coast of Virginia and America between 38 Degrees and 45 Degrees of North Latitude, and granting them all the country &c from the said first seat of their colony or plantation for the like space of fifty miles all along the said coast towards the West and Southwest, or towards the South, as the coast lieth, and for the like space of fifty miles all along the said coast towards the East and North East, or towards the North, as the coast lieth, with all the islands within one hundred miles directly over against the said sea coast; and also all the country from the said fifty miles every way on the sea-coast, directly into the mainland, for the space of one hundred miles; and that none other of His Majesty's subjects shall plant or inhabit behind, or on the back side of them towards the Main Land, without the express licence of the council of that colony in writing thereunto had and obtained.
Sect. VI.—Provided that the plantation or habitation of such of the said Colonies as shall last plant themselves as aforesaid, shall not be made within one hundred miles of the other of them that first began to make their Plantation as aforesaid.--
Sect. VII.—Granting and ordaining that each of said Colonies shall have a Council which shall govern and direct all matters and causes, which shall arise or happen within the same several Colonies &c: with many privileges and immunities; among others :--
Sect. XV.—That all and every the persons being his Majesty's subjects which shall dwell and inhabit within any or every of the said Colonies or Plantations, and every of their children which shall happen to be born within the limits and precincts of the said several Colonies and Plantations, shall have and enjoy all Liberties, Franchises and Immunities to all Intents and purposes, as if they had been abiding and born within the realm of England or any other of His Majesty's Dominions.
Sect. XVIII.—And finally that His Majesty, his Heirs and Successors, upon petition for that purpose, shall and will by Letters Patent, under the Great Seal of England, give and grant to such persons their heirs and assigns as the respective Councils for the said two Colonies, or the most part of them, shall for that purpose nominate and assign, all the Lands, Tenements, and Hereditaments which shall be within the precincts limited for the said two Colonies respectively, as aforesaid, to be holden of His Majesty, his Heirs and Successors as of their Manor of Greenwich in the county of Kent, in free and common socage only, and not in capite. With a clause declaring the full and perfect efficacy of such letters patent, so to be granted as aforesaid.1
Sect. VI. Anno 1609, May 23.—The Company for the said first or Southern Colony (to this day called the Colony and Dominion
1 In consequence of this charter the first or Southern Colony, which still retains the name of Virginia, was undertaken and begun by several persons in and about London (Dec. 19, 1606) who fitted out two or three ships under the command of Capt. Christopher Newport, which sailed from England to America (April 26, 1607). The first land they discovered on this coast was the southern point or cape of Chesapeake Bay ; which they called Cape Henry (the name it still retains) ; here they first landed and after spending some days in examining the country and looking for a proper place for their settlement, they fixed upon A peninsula (May 13) about forty miles up Powhatan River (since called James River) and on the north side of it, which they called James Town, in compliment to the King, the name it has ever since retained. At this place the seat of Government remained for a great many years, and from this beginning proceeded the Colony of Virginia.
of Virginia) having been joined by a great number of the nobility and principal gentry in England, a second and more extensive Charter was granted them by King James the first, incorporating them by the name of the Treasurer and Company of the Adventurers and Planters of the City of London for the first Colony in Virginia : reciting, confirming, explaining and enlarging the former Charter by granting them all those lands, Countries, and Territories situate, lying and being in that part of America called Virginia, from the point of land called Cape or Point Comfort all along the Sea Coast to the northward, two hundred miles, and from the said point of Cape Comfort all along the seacoast to the southward, two hundred miles, and all that space or circuit of Land, lying from the sea-coast of the precinct aforesaid, up into the land, throughout from sea to sea, west and north, west, and also all the Islands lying within one hundred Miles along the Coasts of both seas of the precinct aforesaid ; with all the Soils, Grounds, &c. forever; To be holden of his Majesty, his Heirs and his Successors, as of their Manor of East Greenwich; in free and common socage, and not in capite.
Sect. VII.—Nevertheless charging, commanding, warranting and authorising the said Treasurer and Company to convey assign and set over such particular portions of Lands, Tenements, and Hereditaments unto such His Majesty's subjects naturally born, or Denizens, or others, as well Adventurers as Planters, as by the said Company shall be nominated, appointed and allowed; wherein respect to be had as well of the Adventure, as to the special service, Hazard, Exploit, or Merit of any person so to be recompensed, advanced, or rewarded.2
2Pursuant to the above last recited clause, Sec. VII., the said Company in the year 1616 (Sir George Yeardly being then their Governor in Virginia) ordained and ordered that 50 acres of land should be assigned and granted to every person removing himself into the said Colony from Great Britain or Ireland; and to every person who should import others, 50 acres for every person so imported. This was the first Rise of the ancient custom of granting lands upon Importation Rights, which is now no less than 158 years old. It appears to have been interwoven with the Constitution of the Colony from its first settlement, and constantly practised afterwards. In the year 1621 two remarkable instances occur. 50,000 acres were granted to one Captn. Newce, for the importation of 1,000 persons and sixty young maids, being brought over by private adventurers to make wives for the planters.
Sect. VIII.—Appointing and ordaining that the said Company shall have a perpetual Council residing in England, which Council shall have a seal for the better government, and administration of the said plantation, besides the legal seal of the Company or Corporation.
Sects. IX. and X.—Nominating the particular members of the said Council, and also the Treasurer for the time being.
Sect. XI.—And granting and declaring that the said Council or Treasurer, or any of them, shall from thenceforth be nominated, chosen, continued, displaced, changed, altered, and supplied, as Death or other several occasions shall require, out of the Company of the said Adventurers, by the voice of the greater number of the said Company and Adventurers, in their Assembly for that purpose. Provided always that every Counsellor so newly elected, shall be presented to the Lord Chancellor of England, or to the Lord High Treasurer of England, or to the Lord Chamberlain of the Household of His Majesty, His Heirs and Successors for the time being, to take his Oath of a Counsellor to His Majesty, his Heirs and Successors for the said Company of Adventurers and Colony in Virginia.
Sect. XIII.—Giving and granting for His Majesty, his Heirs and Successors, full power and authority to the said Council, as well at the present time, as hereafter from time to time, to --
50 acres of land for each was granted to the persons who imported them. After the Government was taken into the hands of the Crown, upon the dissolution of the Virginia Company, the same Right and Custom was always continued, as appears from the old patents and records in the Secretary's office. In the year 1662 an Act of Assembly was made prescribing the manner of proving such Importation rights to lands, by obtaining certificates thereof to entitle the Claimers to surveys and patents. And in the year 1676 the said custom and right was solemnly confirmed and continued, according to the ancient usage and practice, by charter from King Charles the Second, to the Colony of Virginia, under the great seal of England, which charter was recognised by Act of Assembly in the year 1677 prescribing the form of patents for the future, in which form is recited the continuance and confirmation of the said ancient right and privilege ; which hath been enjoyed by the subjects of this Colony ever since, and great quantities of land from time to time granted accordingly. So that Mr. Stith, in his History of Virginia (which is chiefly extracted from ancient records), mentioning this right and custom, had good reason for his remark, "That this is the ancient, legal, and a most indisputable method of granting lands in Virginia."
nominate, make, constitute, ordain and confirm, by such name or names, stile or stiles, as to them shall seem good, and likewise to revoke, discharge, change and alter as well all and singular Governors, officers and ministers, which already have been made, as also which shall be by them thought fit and needful to be made or used, for the Government of the said Colony and Plantation.
Sect. XIV.—And also to make, ordain and establish all manners of Orders, Laws, Directions, Instructions, Forms, and Ceremonies of Government and Magistracy, fit and necessary for and concerning the Government of the said Colony and Plantation, and the same to abrogate, revoke, and change, not only within the precincts of said Colony, but also upon the seas in going and coming to and from the said Colony, as they in their good discretion shall think to be fitted for the good of the Adventurers and Inhabitants there.
Sect. XXII.—Declaring also for his Majesty, his Heirs and Successors, that all and every the persons, being the subjects of his Majesty, his Heirs and Successors, which shall go and inhabit within the said Colony and Plantation, and every of their children and posterity which shall happen to be born within any of the limits thereof, shall have and enjoy all Liberties, Franchises, and Immunities of free Denizens and natural subjects within any of their other Dominions, to all Intents and Purposes as if they had been abiding and born within the Realm of England, or any other of the Dominions of his Majesty, his Heirs and Successors.3
3 There can be no doubt but this and every clause relating to the people and inhabitants in general (not to the particular property of the Company) under the Faith of which our Ancestors left their native land, and adventured to settle an unknown country, operates and inures to the benefit of their posterity forever, notwithstanding the dissolution of the Virginia Company, had such dissolution been ever so legal. But a new doctrine has been lately broached by the writers against America. "That the charters granted to the Colonies were originally illegal, as containing powers and rights which the Crown, being only one branch of the Legislature, could not grant, and having never been confirmed by Act of Parliament, that they are of course void and of no effect." The first assertion happens to be false; and if it was true, the consequences deduced from it are erroneous. When America was discovered, the sending abroad colonies had been unknown in Europe from the times of the ancient Greeks and
Sect. XXIII.—Giving and granting also unto the said Treasurer and Company, and their Successors, and to such Governors, Officers and Ministers, as shall be by the aforesaid Council constituted and appointed, according to the nature and limits of their Offices, and places, respectively, that they may from time to time, for ever hereafter, within the said precincts of Virginia, or in the way by sea thither, and from thence, have full and absolute power and authority to correct, punish, pardon, govern, and rule all such the subjects of his Majesty, his Heirs and Successors, as shall from time to time adventure themselves in any voyage thither, or that shall at any time hereafter inhabit in the precincts and territories of the said Colony as aforesaid, according to such Orders, Ordinances, Constitutions, Directions, and Instructions, as shall by the said Colony, as aforesaid, be established. So
Romans (for the irruptions of the Goths and other barbarous nations can't be regarded in that light). To the people of Great Britain the scene then opening was entirely new; and altho' the people removing from thence, to settle Colonies in America, under the auspices and protection and for the benefit of Great Britain, would by the laws of Nature and Nations, have carried with them the Constitution of the Country they came from, and consequently been entitled to all its advantages, yet not caring to trust altogether to general principles applied to a new subject, and anxious to secure to themselves and their posterity, by every means in their power, the rights and privileges of their beloved laws and Constitution, they entered into a solemn compact with the Crown for that purpose. Under the faith of these compacts, at their own private expense and Hazard, amidst a thousand Difficulties and Dangers, our Ancestors explored and settled a New World: their posterity have enjoyed these rights and privileges from time Immemorial ; and have thereby (even if the Charters had been originally defective) acquired a legal Title. It ought to wear well; for it has been dearly earned. King, Lords, and Commons compose the British Legislature, but the Constitution has lodged the Executive power in the Crown. The Disposition of foreign or newly-acquired Territory hath ever belonged to the Executive. This power has been constantly exercised by our Kings in numberless instances. At the conclusion of the last war, Martinico, Guadaloupe, &c. (tho' acquired at the National Expense), were disposed of by the Crown, and however the policy may have been censured, the King's right was never disputed. If the Crown can make an absolute and unlimited alienation to Foreigners ; a fortiori can it make a modulated Grant to Subjects. The American Charters, therefore, are legal ab origine. Equally false and absurd is the Idea of Great Britain's Right to govern these Colonies as conquered Provinces, for we are the Descendants, not of the Conquered, but of the Conquerors.
always as the said Statutes, Ordinances, and Proceedings, as near as conveniently may be agreeable to the Laws, Statutes, Government, and Policy of the Realm of England.
Sect. XXVI.—Declaring his Majesty's Royal will and pleasure that in all questions and doubts that shall arise upon any difficulty of construction or interpretation of any thing contained either in this or in former letters patent, the same shall be taken and interpreted in the most beneficial manner for the said Treasurer and Company, and their successors, and every member thereof. And concluding with the following clause:
Sect. XXIX.—Any Act, Statute, Ordinance, Provision, Proclamation or Restraint to the contrary hereof, had, made, ordained, or provided, or any other Thing, clause, or matter whatsoever, in any wise, notwithstanding.
Anno 1612, Sect. I.—A third charter was granted by King James the first to the same Virginia Company, reciting and confirming their former charters, and setting forth that the said Company had petitioned for an enlargement of their former letters patent; II. as well for a more ample extent of their Limits and Territories into the seas adjoining to, and III. upon the Coast of Virginia, as also for some other matters and Articles concerning the better Government of the said Company and Colony; in which point the former letters patent do not extend so far as Time and Experience hath found to be needful and convenient.
Sect. IV.—Giving, granting and confirming unto the said Treasurer and Company and to their Heirs and Successors forever, all and singular, those Islands whatsoever situate, lying and being in any part of the Ocean or Seas bordering upon the Coast of the said first Colony of Virginia, and being within three hundred leagues of any of the parts heretofore granted to the said Treasurer and Company in the former letters patent, and being within or between the one and fortieth and thirtieth degrees of Northern Latitude, together with all and singular the soils, lands, Grounds, Havens, ports, Rivers, Waters, Fishings, Mines, and Minerals &c and all and singular other Commodities, Jurisdictions, Royalties, privileges, Franchises, and preherainences, both within the said Tract of land upon the Main, and also within the said Islands and Seas, adjoining, whatsoever and
thereunto or thereabouts, both by sea and Land, being or situate, —To be holden as of the Manor of East Greenwich &c.4
Sect. VII.—Ordaining and granting that the said Company, once every week, or oftener, at their pleasure, might hold a Court and Assembly, for the better order and government of the said plantation ; to consist of the Treasurer or his Deputy, and at least five of the Council and fifteen other Members of the Company, which should be a sufficient court for the ordering and dispatching all such casual and particular Occurrences and Matters of less consequence and weight, as shall from time to time happen, concerning the said plantation.
Sect. VIII.—But that for the ordering and disposing of matters and affairs of great weight and importance, and such as concern the Publick weal, particularly the manner of Government from time to time, to be used, the ordering and disposing of the lands, and the settling and establishing of a Trade, there should be held upon four different certain Days (therein named) one great and general Assembly; which four Assemblies to be called and stiled the four Great and General Courts of the Council and Company of Adventurers for Virginia, and shall have full power and authority, from time to time and at all times hereafter, to elect and chuse discreet persons to be of the said
4 This clause Sect. IV. of this Charter, respecting the ports, rivers, waters, and Fishings, and a clause of the same nature in Sect. VI. of the second Charter (not particularly suited in these Extracts), being of a publick nature in which the people and Inhabitants were interested, as well as the Company, it is presumed could not be destroyed or avoided by the Dissolution of the Virginia Company, and may avail us if the proprietor of Maryland should ever disturb the peace or possession of any of the people of this Colony, by an attempt to exercise the Rights he pretends to claim on the South side of the Potomack River of which he hath never been in possession; for upon an attentive examination of the Virginia Charters, perhaps it may appear that the said proprietor hath little title, except length of possession, to many of the powers he holds. How far these Charters can be urged against the claim he is now setting up to that tract of country between the great North and South Branches of Potomack River, the Inhabitants of which have been long settled there as a part of this Colony, under the Faith of its Laws, and are represented in our Legislature, and who, if the said proprietor's claim was to be established (besides the risque of their present titles to the Lands) would be forced from under the immediate protection of the crown, and subjected to a proprietary government; whereby their Lives and Fortunes might be at the mercy, not of their Sovereign, but of a fellow Subject, may soon become a question of Importance.
Council of the said Colony, and to nominate and appoint such officers as they shall think fit and requisite for the Government, managing, ordering, and dispatching the affairs of the said Company, and shall likewise have full power and authority to ordain and make such Laws and Ordinances for the good and welfare of the said plantation, as to them from time to time shall be thought requisite and meet; so always as the same be not contrary to the Laws and Statutes of the Realm of England.
Sect. XVI. to Sect. XIX.—Giving and granting to the said Treasurer and Company full power and Authority, Liberty, and Licence to erect, and publish, open and hold, one or more Lottery or Lotteries within the City of London, or within any other City or town in England, with divers orders for the Regulation and Encouragement of such Lottery or Lotteries.
Sect. XX.—Declaring that in all questions and Doubts, that shall arise upon any Difficulty of Construction or Interpretation, of anything contained in these or any other of the former Letters Patent, the same shall be taken and interpreted in most ample and beneficial manner for the said Treasurer and Company and their Successors and every member thereof.
Sect. XXI.—And lastly ratifying and confirming unto the said Treasurer and Company, and their Successors forever all and all manner of privileges, Franchises, Liberties, Immunities, Profits and commodities, whatsoever granted unto them in any of the former letters patent, and not in these presents revoked, altered, changed, or abridged, any Statute, Act, Ordinance, provision, proclamation, or Restraint, to the contrary thereof &c. notwithstanding. 5
Anno 1621, July 24th.-- The Treasurer, Council, & Company in England passed and established an Ordinance under the Common Seal of the said Company, for settling the Constitution and Form of Government in Virginia.6
5 The principal Design of this third Charter, besides making some new regulations in the Government of the Company and Colony, and empowering them to raise money by Lotteries in England, seems to be to grant to the said Company the Islands of Bermudas, otherwise called Somer-Islands, which the said Virginia Company, within a few years, sold to Sir George Somers and others, called the Somer-Island Company; which was afterwards dissolved, much about the same time and in the same manner with the Virginia Company.
6 This Ordinance was brought over the October following by Sir Francis Wyatt (who succeeded Sir George Yeardly in the Government here), and is
Sect. I.—Declaring their motives and Authority for the same, and ordaining and declaring, that from II. thenceforward there should be two supreme Councils in Virginia for the better government of the said Colony. The one of which Councils, to be called the Council of State (whose office shall chiefly be, assisting with their care, advice and circumspection, to the Governor), shall be nominated, placed and displaced, from time to time, by them the said Treasurer, Council, and Company and their successors—nominating for the present, the members of the said Council of State, viz.:—Sir Francis Wyatt, the then Governor, and nineteen other gentlemen therein named; earnestly praying and desiring, and strictly charging and commanding the said Counsellors and Council to bend their Care and Endeavours to assist the Governor; first and principally, in the advancement of the Honour and Service of God, and the enlargement of his Kingdom amongst the Heathen people; and next in erecting the said Colony in due obedience to His Majesty, and all lawful Authority, from His Majesty's directions; and lastly in maintaining the people in Justice and Christian Conversation amongst themselves, and in strength and ability to withstand their enemies. And this Council to be always, or for the most part to be residing about or near the Governor.7
generally presumed to have been the original plan and first Draught of our Constitution, from which the Assembly of Virginia took its rise; but it was in fact rather a confirmation of that form of Government which the people here, in Imitation of their Mother Country, had before adopted; for it appears from ancient records, that two years before this, viz.:—in June, 1619, Sir George Yeardly held an assembly of the representatives of the people. Counties were not yet laid off ; but the several Townships, settlements, or Hundreds elected their representatives, from whence the said Assembly was first called the House of Burgesses, a name proper to the Representatives of Burroughs or Towns (but conveying a diminution and inadequate idea of an Assembly representing the whole body of the people), which custom hath very improperly continued to this day, altho' all our Representatives, four members only excepted, have for a great length of time been chosen by the shires or counties.
7 The powers by this clause vested in the members of the first Virginia Council belong properly to a Council of State. But to what an alarming and enormous Height hath the Jurisdiction of their successors increased? In whose hands are lodged the Executive, the Legislature, and the Judicative powers of the State, and consequently the Life, Liberty, and property of the subject? That this hath not yet produced much Evil or Opposition is candidly acknowledged, because the Council has generally been composed of men whose character,
Sect. IV.—The other Council more generally to be called by the Governor once Yearly, and no oftener, but for very extraordinary and important occasions, shall consist for the present, of the said Council of State, and of two Burgesses out of every town, Hundred, or other particular plantation, to be respectively chosen by the Inhabitants; which Council shall be called the
Interest, and Connections here, have restrained them within the bonds of Moderation. Because the Emoluments of the office are not a sufficient Temptation to Mercenary Strangers to solicit the appointment. And because Luxury, venality, and a general corruption of manners have not yet thoroughly taken root among us. But when it is considered that this Board is entirely dependant upon the Crown ; that the authority of its members is not hereditary, and if it was that it could descend but to one of their children ;that no man's Rank or Fortune, how great soever, can exempt him from the common course of human affairs; and that their own posterity must quickly be distributed among the different classes of mankind, and blended with the mass of the people, there cannot be a more striking proof of the prevalence of the lust of power in the mind of man than that these gentlemen should be tenacious of Jurisdiction as unsafe and dangerous to their own Families as to the Community. Not only mean and sordid but extremely shortsighted and foolish is that species of self-interest which in political questions opposeth itself to the publick good; for a little cool reflection must convince a wise man that he can no other way so effectually consult the permanent Interest of his own Family and posterity as by securing the just rights and privileges of that society to which they belong. But it is easier to describe a Disease in the Body politic, than to point out a proper Physician. Perhaps the lenient hand of a wise and patriotic Prince—perhaps some noble and publicspirited Governor, who would then indeed deserve a statue. Perhaps the Constitution may by degrees work itself clear by its own innate strength, the virtue and Resolution of the Community—as hath often been the case in our Mother Country. This last is the natural Remedy; if not counteracted by that slow poison, which is daily contaminating the minds and morals of our people. Every Gentleman here is a petty tyrant. Practised in Arts of Despotism and Cruelty, we become callous to the Dictates of humanity and all the finer feelings of the Soul. Taught to regard a part of our species in the most abject and contemptible Degree below us; we lose that idea of the dignity of Man, which the Hand of Providence has implanted in us for great and wise purposes. Habituated from our infancy to trample upon the rights of human nature, every generous, every liberal sentiment, if not extinguished, is enfeebled in our minds. And in such an infernal school are to be educated our future Legislators and Rulers. The laws of Impartial Providence may even by such means as these, avenge upon our posterity the injury done a set of wretches whom our injustice hath debased almost to a level with the Brute Creation. These Remarks may be thought foreign to the design of the annexed Extracts. They were extorted by a kind of irresistible perhaps an enthusiastic Impulse, and the Author of them, conscious of his own good intentions, cares not whom they please or offend.
General Assembly, wherein (as also in the said Council of State) all matters shall be decided, determined, and ordered by the greater part of the voices then present, reserving to the Governor always a negative voice. And this General Assembly shall have full power to treat, consult, and conclude, as well of all emergent occasions, concerning the publick weal of the said Colony, and every part thereof, as also to make, ordain, and enact such general Laws and orders for the Behalf of the said Colony, and the good government thereof, as shall from time to time appear necessary or requisite.8
8 It is plain from this clause that the Gentlemen of the Council were originally no more than so many constant members of the Assembly, without being elected by the people ; that they sat with the Governor in the same House, and had a common vote in all matters with the Representatives of the people; that a negative was lodged in the Governor alone; and that the House thus constituted was called the General Assembly; the stile yet retained in all our legislative proceedings, tho' great alterations have been since made in the original Constitution :—In this situation the Council continued long after the Virginia Company was dissolved, and the Government of the Colony was vested in the crown. In those early times, when the number of the people's representatives was small, the influence of the Council in the General Assembly was very considerable; at first, indeed, they made a majority ; but in process of Time, as the country became more inhabited, Counties were laid off, and the number of our Representatives greatly increased, the vote of the members of the Council was in a manner sunk in such a numerous Assembly; and the democratical part of our Constitution had no other check than the Governor's negative. This might be productive of inconvenience, to remedy which the Gentlemen of the Council, of their own mere motion, thought proper to walk up stairs; and formed in imitation of the English House of Peers a separate and distinct Branch of the Legislature. That such a separate Branch, such an intermediate Power between the people and the Crown is really necessary, no candid man, well-informed in the principles of the British Constitution, and acquainted with the tumultuary nature of Publick Assemblies, will deny; but he may, with great propriety urge, that the members of this Intermediate Branch of the Legislature, should have no precarious tenure, that it should at least be for life, and whether their Authority was hereditary or not, that they should be equally independent of the Crown and of the people; and that neither the Administration nor the common Judicative powers of the State can be safely lodged in their hands.
As some amendments in our judicial proceedings have lately been proposed, it may not be amiss to mark here a Capital Error in the Constitution of our Supreme Courts. When any man thinks himself injured by a Court of Law, or a Decree of Chancery, the British Constitution hath given him an appeal; this is an inherent right in the subject, of which he can't be deprived, without being robbed of a valuable part of his Birth-Right, and the most effectual means that
Sect. V.—Whereas in all other things requiring the said General Assembly, as well as the said Council of State to imitate and follow the policy of the form of Government, Laws, Customs, and manner of Trial, and other administration of Justice, used in the Realm of England, as near as may be, even as the said Treasurer and Company themselves by his Majesty's letters patent are required.
Sect. VI.—Provided that no Law or Ordinance made in the said General Assembly shall be, or continue in force and validity, unless the same shall be solemnly ratified and confirmed in a General Quarter Court of the said Company in England, and so ratified, be returned to them under the said Company's seal. It being their intent to afford the like measure, also unto the said Colony, that after the Government of the said Colony shall once have been well framed, and settled accordingly; which is to be done by the said Treasurer and Company, as by Authority derived from his Majesty, and the same shall have been by them so declared, no orders of Court afterwards, shall bind the said Colony unless they be ratified in like manner in the General Assemblys.9
human wisdom could devise to secure the property of individuals. A court of Appeals, therefore, or that Court which is the Dernier Resort, should be so constituted as that no suit could originate there, for otherwise, when the subject is aggrieved, he is left without redress. This useful distinction seems hitherto to have been totally neglected in this Colony.
9 This ordinance or Charter for settling a form of Government in Virginia, was made by the Treasurer, Council and Company in England by virtue of the powers vested in them for that purpose by the 14th and 23rd Sections of King James second Charter and the 8th section of his third Charter to the said Company; and being made while the said powers were in full force and efficacy, and the authority of the Company unquestionable, there can be little doubt of its Validity ; and that it gave the people of Virginia as good a title to chuse their own Representatives to enact laws, as if it had been made and granted by the King himself; but this does not now seem to be a subject much worth our Enquiry; for if this Ordinance was annihilated, our Rights as British subjects, and particularly that invaluable one of chusing our own Representatives in a Virginia Parliament which we have uniformly enjoyed and exercised for more than One hundred and fifty years, could be shaken only by Violence and Injustice aided by our own Folly, or by Force of Arms. Some parties and Factions having arisen in the Virginia Company, and several disputes having happened with the King and his Ministry, King James the first, by proclamation dated July 24th, 1624, forbid and suppressed the Courts of the said Company at their usual
1676, Oct. 10. -- Charter under the great seal of England, granted by King Charles the Second to the Colony of Virginia, Declaring and granting for his Majesty, his heirs and Successors, that all the subjects of his Majesty, his Heirs, and Successors from time to time, inhabiting within the Colony and Plantation of Virginia shall have their immediate Dependence upon the
place of meeting in the City of London, and soon after the Lords of his Majesty's privy Council appointed a new Governor of the said Company, which being expressly contrary to their Charters, they refused to acquiesce in such appointment, and thus rejecting the officers nominated by the British Ministry, and forbid to act under their own, their Courts and Meetings were discontinued and their Business and Proceedings stopped, for though there had been a Quo Warranto brought in the King's Bench, and the process served upon several of the members, who entered their defence ; the same was never brought to any Decision or Hearing; but the Company, chagrined with the Discouragements and opposition received from the King and Ministry, disgusted with the Schisms and Factions in their own body, and wearied with so great and constant Expence, after some faint struggles submitted, and quietly gave up, or rather forbore any further Exercise of their Rights, and the Government of the Colony was taken into the King's Hands. An Event (however illegally and arbitrarily brought about) very happy for the people of Virginia ; who were thereby taken from under a proprietary Government, and placed under the immediate Government and Protection of the British Crown.
The bounds of the Colony (as well as the form of Government) remained unaltered until King Charles the First, in the Year 1632, by Charter to Cecilius Calvert, Lord Baron of Baltimore, established the proprietary and province of Maryland. That Country being then uninhabited, the importance of it little known or attended to, and the Scene of Confusion introduced by the Civil war in England, prevented the people of Virginia making any opposition. In the succeeding Reign (with equal inattention in the Virginians) the provinces of Pennsylvania and Carolina were erected, the Southern part of the first and the Northern part of the latter being within the ancient limits of Virginia. The Dutch and Swedes having possessed themselves of the Country on the SeaConst, between New England and Maryland, King Charles the Second, in the year 1664, granted all the country so usurped to his Brother, the Duke of York, and an English Fleet having reduced the Dutch and Swedish settlements, the Duke of York parcelled out that Country to under proprietors, one of whom was William Penn, the Son of Admiral Penn. All these Proprietors, except William Penn, afterwards sold or surrendered their Charters to the Crown. Mr. Penn retained his part, and had it increased and confirmed to him in consideration of a debt due from the King to his Father, and from thence arose the Province of Pennsylvania.
There being few or no settlements on the Southern parts of this Coast, a Grant was made, in the year 1663, by King Charles the Second to several of
Crown of England under the Rule and Government of such Governor or Governors as his Majesty, His Heirs or Successors shall from time to time appoint in that Behalf: and of or upon no other person or persons whatsoever. 10
That the Governor for the time being shall be resident in that Country, except his Majesty, his Heirs or Successors shall at any time command his attendance in England or elsewhere, in which
his Courtiers, viz-- the Earl of Clarendon, the Duke of Albemarle, the Lord Craven, the Lord Berkeley, the Lord Ashly Cooper, Sir George Carteret, and Sir William Colleton; for the Country called Carolina, the greatest part of which (the Earl of Granville only retaining his ancestor's. Sir Geo. Carteret's part) was sold by the Heirs of these Proprietors to the Crown, and out of it were formed the provinces of North Carolina South Carolina and Georgia. And by these means have the Ancient and Original Boundaries been contracted, and the Colony and Dominion of Virginia reduced to its present Limits. In the year 1669 a grant was made by King Charles the second to Henry, Earl of St. Albans, John, Lord Berkeley, Sir William Moreton, and John Tretheway, Esqr., of all that tract of Land or Territory lying between the Rappahannock and Potomack Rivers, commonly called the Northern Neck (now in possession of the right honourable the Lord Fairfax), and altho' there was a promise that the same should not infringe or prejudice any contract or Grant whatsoever before made or granted by the Governor and Council of Virginia, and that the said Patentees, their Heirs and Assigns, and all the Inhabitants of the said tract of Land or Territory should be in all things subject and obedient to such Laws and Constitutions, as were, or should be made by the Governor, Council, and Assembly of Virginia ; yet some Royalties and considerable powers being thereby vested in the said Patentees, it roused the attention of the General Assembly, who, apprehensive that the people might be injured or oppressed by men of such powerful interest, in the year 1674 passed an Act of Address and Supplication asserting the Rights and Privileges granted to this Colony by his Majesty's Ancestors, representing the Dangers and ill-consequences of such Grants to Lords and others, and praying that his Majesty would be graciously pleased to revoke the said Grant, and for securing them from fears in time to come of being removed from His Majesty's immediate protection, to confirm their Liberties, Privileges, Immunities, Rights and Properties, as aforesaid by His Majesty's Royal Charter. Certain Gentlemen Were appointed to present this Act, which procured the last Charter ever granted to this Colony, viz.-- that from King Charles the Second, bearing date the 10th Day of October, in the 28th year of his Reign, An. Dom., 1676, as on the other side.
10 This first clause expressly operates against the Establishment of any new Government or Proprietary in any part of Virginia. For the King is as much bound by the Act of his Predecessors as any Private Subject holding an Estate from his Ancestor is bound by the Act of such Ancestor. And accordingly, this Charter effectually put a stop to all further applications of that nature.
case a Deputy shall be chosen, to continue during the absence of such Governor in manner as hath been formerly used, unless his Majesty, his Heirs or Successors shall think fit to nominate such Deputy. And if any Governor shall happen to die, then another Governor shall and may be chosen, as hath been formerly used, to continue until his Majesty, his Heirs, or Successors shall appoint a new Governor.11
Confirming and establishing all lands possessed by the several and respective planters and inhabitants of Virginia to them and their heirs forever, where the property of any particular man's interest in any lands there, shall not be altered or prejudiced by Reason thereof.
Declaring and granting that there shall be assigned out of the Lands not already appropriated for each of such of the subjects of his Majesty, his Heirs and Successors, as shall from time to time go to dwell in the said Plantation, fifty acres of Land, as according as hath been used and allowed since the first Plantation, to be held of his Majesty, his Heirs and Successors, as of their Manor of East Greenwich in their County of Kent, in free and common socage.12
And that all Lands possessed by any subject inhabiting in Virginia, which is escheated or shall escheat to his Majesty, his Heirs and Successors, shall and may be enjoyed, by such Inhabitant, or Possessor his Heirs and Assigns forever, paying two pounds of
11 The Rule established by his present Majesty, requiring the Governor to reside here, is exactly conformable to this clause of the Charter, and considering how fully it is expressed, especially when construed in the manner required by the last clause (which applies to every part of the charter) it is strange that it remained so long unattended to.
12 By this clause the old custom, first introduced about sixty years before by the Virginia Company, of granting lands for the Importation of people, which had been constantly continued and exercised after the Dissolution of the said Company, is clearly and authentically confirmed and established, according to the ancient usage and practice, and being thereby made a part of the Constitution of Virginia, cannot be avoided or invalidated by any proclamation. Instruction, or other Act of Government (vid. Notes 2nd and loth). This and the following Clause, granting all Escheat Lands to the Possessor upon a fixed moderate Composition, are certainly Articles of great Importance; and will be still more so if by any new Regulation of Government, the Quit Rent of the Crown Lands here should hereafter be raised, as all lands coming under the description of either of those clauses would be exempt from such new Regulation.
Tobacco, Composition for every Acre, which is the rate set by his Majesty's Governor according to his Majesty's Instruction to him in that Behalf.
And that the Governor and Council of Virginia, for the time being, and in the absence of the Governor, the Deputy Governor and Council, or any five or more of them, whereof the Governor or his deputy to be always one, shall and thereby have full power and authority to hear and determine all Treasons, Murders, Felonies and other offences committed or done, or to be committed or done within the said Government, so as they proceed therein, as near as may be, to the Laws and Statutes of the Kingdom of England.13
And lastly of his Royal Goodness, graciously to continue to favour the subjects of his Majesty, his Heirs and Successors, which then did, or thereafter should inhabit in the said Country of Virginia, and to give the more liberal and ample Encouragement to plantations there, declaring his Royal Will and Pleasure, to be that every Clause, Article and Sentence in these his said letters Patent14 contained, shall be from time to time, forever there
13 This clause investing the Governor and Council with full power and authority to hear and determine all Treasons and other offences committed within Government, expounded (as required by the last clause) in the most beneficial and available sense, for the advantage of his Majesty's subjects here, is very inconsistent with the extraordinary measure lately adopted by the British Ministry,-- a plan so contrary to the first principles of Liberty and Justice, as would much better become the Divan at Constantinople, than the Cabinet at London.
14 By this charter the Subjects of Virginia are forever to remain under the immediate protection of the British Crown, and be subject only to its Government here. The Governor is to reside in this country. The titles of their lands are confirmed to the inhabitants. Any vacant Lands are from time to time to be granted for the Importation of people into the Colony according to antient custom; and all the Lands which shall at any time escheat, are confirmed to the Possessors upon certain moderate terms.
The Governor and Council have full power and authority to try all Treasons and other offences committed here, and the Design of the Charter is declared to be to continue to favour the subjects which then did, or afterward should inhabit the said Country of Virginia, and for the more liberal and ample Encouragement to plantations there, (that is, to encourage the increase and extension of the settlements there) every part of the charter is to be construed and take effect in the most advantageous and available sense for the Benefit of the subjects of the said Country of Virginia. The country of Virginia is only mentioned at large and in general Terms in this charter, and not described or ascertained by
after, as often as any Ambiguity, Doubt or Question shall or may happen to arise thereupon, expounded, construed, deemed and
any particular limits or boundaries. It can't be confined to the country then settled, which would be totally inconsistent with the Design of giving encouragement "to Plantations there" and would exclude more than nine-tenths of the present Inhabitants. It can't mean the Country at that time purchased from or ceded by the Indians, for this would also exclude the greatest part of the present Inhabitants. Nor can posterior purchases of Lands from the Indians be used as arguments against the extent of this charter, without impeaching the Crown's Right to those Lands at the time of making the Charter. A Doctrine of a dangerous nature, and diametrically opposite to the claims of Great Britain in her Negotiations and Treaties with other Nations as well as the Reasons for which the King entered into the late war, one of which was the Incroachments made by the French upon the Territory of Virginia. If such purchases could operate against the extent of the Virginia Charter, they would have operated against the grant of the Northern Neck; far the greater part of which was possessed by the Indians, when the said grant was made, and not purchased from them for many years after. So late as Queen Anne's Reign the Blue Ridge of Mountains separated the possessions of the British Subjects here, from those of the Indians. Yet in the last reign, the King and Council gave Lord Fairfax a Judgment for the lands to the Fountain Head of Potomack River, near fourscore miles beyond the Blue Ridge. As our settlements were extended, and the wild game destroyed, the Indians have been found to remove further for the convenience of Hunting. As they retired purchase after purchase hath been made of them, and temporary Lines or Boundaries from time to time accordingly settled between them, and the English Inhabitants here. It is not above fifty years since the people of Virginia settled beyond the Blue Ridge ; it is near thirty years since they first began to settle on the West side of the Alleghany or Appalachian Mountains and at this time there are several thousand Families settled to the Westward of the said Mountains on the Branches and Waters of the Ohio River. When the Colony of Virginia was settled, the Lands first purchased of the Indians were only upon and near the Mouths and larger parts of the Rivers, then to the Falls of the said Rivers, then to the Blue Ridge of Mountains ; afterwards to the Alleghany Mountains ; and lately to the River Ohio. Many of these purchases have been made since the Charter of Charles the Second. If the said Charter was not affected by the former purchases from the Indians neither is it by the last, nor can it be by any purchase made hereafter. For (not to mention the liberal and beneficial manner of Construction which we have a right to) the plain, natural, and obvious meaning of the charter is, to grant and confirm certain Rights, Privileges, and Immunities to all his Majesty's subjects who then did or ever should inhabit that tract of country in America usually called Virginia, according to the Descriptions and Boundaries of the original Charters, not before otherwise appropriated or disposed of by His Majesty's Ancestors. In this situation hath it remained from the time of this last charter, and in this manner hath Virginia been constantly laid down ever since in all the English
taken to be meant and intended, and shall inure and take effect in the most beneficial and available sense, to all intents and pur-
Maps, as well those published by publick authority, as others, to wit, Bounded on the North by Maryland and Pennsylvania, on the East by the Atlantic Ocean, on the South by Carolina, and on the West by the great South Sea or by the Western Limits of the British Dominions, which was never clearly ascertained until the last Treaty of Peace in the year 1763, fixed them by a line drawn along the middle of the River Mississippi. Several Acts of the British Crown and Government, as well as many laws of this Colony (which receiving the Royal Assent are also Acts of the British Crown and Government) have from time to time corresponded with and confirmed these Bounds of Virginia. It will be sufficient to mention a few instances, as there are none which contradict them. In the fourth year of the Reign of Queen Anne, An. Dom. 1705, an act of Assembly was made here, empowering the Governor for the time being, with the consent of the Council, by Charter or Grant, under the seal of the Colony to grant to any such person or persons, their heirs, executors, administrators, or Assigns, as should at his or their own charge, make discovery of any Town or Nation of Indians situate, or inhabiting to the Westward of, or between the Appalatian Mountains, the sole liberty and Right of trading to and with all and every such Town or Towns, Nation or Nations of Indians so discovered as aforesaid for the space of fourteen Years, then next ensuing, with such clauses or. articles of Restraint or Prohibition, of all other persons from the said Trade and under such Penalties and Forfeitures as shall be thought convenient. In an additional Instruction from his late Majesty King George the Second to Sir William Gooch, Bart., Lieut. Governor and Commander in Chief of the Colony and Dominion of Virginia, or to the Commander in Chief of the said Colony for the time being, Given at the Court of St. James the 16th Day of March 1748/9 in the 22nd Year of his Reign reciting a petition which had been presented to his Majesty by the Ohio Company; the said Governor is directed and required forthwith to make the Petitioners and their Associates a Grant or Grants of two hundred thousand Acres of Land betwixt Romanetto's and Buffaloe Creek on the South Side of the River Alleghany, otherwise Ohio and betwixt the two Creeks and the Yellow Creek, on the North Side of the said River or in such other parts of the West of the Alleghany Mountains as shall be adjudged most proper by the said Petitioners, for making settlements thereon, within His Majesty's Colony of Virginia.
In the year 1753 an Act of Assembly was made here, " For further encouraging persons to settle on the Waters of the Mississippi," Declaring that it would be a means of cultivating a better correspondence with the neighbouring Indians, if a further encouragement were given to Persons who have settled or shall settle upon the waters of the Mississippi, in the County of Augusta (which was then the frontier county and quite across this Colony), and that a considerable number of persons as well his Majesty's natural born subjects, as foreign Protestants were willing to come to this Colony with their Families and Effects, and settle upon Lands near the said waters, in case they can have encouragement for so doing ; that settling that part of the country will add to the strength and security
poses for the Profit and advantage of the subjects of his Majesty, his Heirs and Successors of Virginia aforesaid, as well against his
of the Colony in general and be a means of augmenting his Majesty's Revenue of Quit Rents. And enacting, "That all persons being Protestants who have already settled or shall hereafter settle and reside upon any Lands situate to the Westward of the Ridge of Mountains that divides the Rivers Roanoke, James and Potomack from the Mississippi in the County of Augusta, shall be and are exempted and discharged from the payment of all publick, County and Parish Levies, for the term of fifteen years next following."
And in the year 1754 another Act of Assembly was made here "For the Encouragement and Protection of the Settlers upon the waters of the Mississippi," Declaring that many of his Majesty's faithful subjects had been encouraged by the Acts of the General Assembly heretofore made, to settle and inhabit on his Lands in this Colony on and near the Waters of the River Mississippi; and that it hath been represented to the General Assembly that the subjects of the French King, and by their instigation the Indians in alliance with them, had encroached on His Majesty's said Lands, murdered some of his subjects and taken others captive and spoiled them of their Goods and effects; impowering the Treasurer of this Colony to borrow a sum of money upon interest, nominating certain Directors, (members of both Houses of Assembly) and impowering them from time to time with the Consent and approbation of the Governor or Commander in Chief for the time being, to direct and appoint how the said money shall be applied towards protecting and defending his Majesty's subjects, who then were settled or hereafter should settle on the waters of the River Mississippi, And laying sundry duties and Taxes on the inhabitants of this Colony for raising a Fund to repay the Money to be so borrowed. And for the same purposes were several hundred thousand Pounds granted by the General Assembly, and levied upon the people of Virginia, during the course of the late war. And soon after the conclusion of the war, to wit in the year ... it being thought expedient in order to conciliate the minds of the Indians then but lately withdrawn from the French interest, to extend a temporary line or Boundary between the Inhabitants of this Colony and the Southern Indians, across the Alleghany Mountains to the Ohio River; the sum of . . . was granted by the General Assembly and levied upon the people of Virginia . . . charge thereof upon a formal requisition made by the crown for that purpose.
These quotations and examples are sufficient to show in what sense the Charter of King Charles the Second respecting, the Bounds of this Colony, hath been always understood; and to demonstrate that the country to the westward of the Alleghany Mountains on both sides the Ohio River, is part of Virginia. And consequently that no new Government or Proprietary can legally be established there—Nor hath any attempt of that sort ever been made from the time of the said charter until the late extraordinary application of Mr. Walpole and his associates, to the Crown to grant them a Proprietary charter and create a new Government between the Alleghany Mountains and the River Ohio, (in direct violation of the Virginia Charters,) which would not only have taken away great part of the territory of this Colony, but would have removed from under the
Majesty, his Heirs, and Successors, as against all and every other person and persons whatsoever, any Law, Statute, Custom, or Usuage, to the Contrary thereof in anywise, notwithstanding.
immediate protection of the Crown and the Government of Virginia, several thousand inhabitants, settled there under the faith of the said Charters, as well as many subsequent acts of Government and the Encouragement of Publick Laws. It would also have greatly injured the only regular Seminary of Learning in Virginia, by reducing one of the principal Branches of its Revenue, the profits arising from a grant of the Office of Surveyor General of Virginia, made by their Majesties King William and Queen Mary to the President and Professors of William and Mary College, and have introduced a precedent of a very alarming and dangerous nature to the Liberties, Rights and Privileges of His Majesty's subjects of this Colony. To this illegal and injurious attempt several Gentlemen in Virginia, the Ohio Company were made in some measure accessory, without their knowledge and very contrary to their Inclination but at their first General Meeting after having received notice of it ; they unanimously declared their Disapprobation of the measure, and their absolute Refusal of having any concern in it; which Regulation they not only entered in their own Books and communicated to the members of their Company in England; but for their Justification to posterity sent a copy thereof to the Governor and Council to be entered, if they thought fit, on their Journals. This project of Mr. Walpole's was fabricated by the same fertile . . . who first suggested it to the Earl of to apply to the Crown for a grant of the Islands in Delaware Bay; which probably would have taken effect, to the ruin of many reputable Families, if his Lordship, after a Day's debate before the Lords of the Council, had not had grace enough to be ashamed of it, and drop his pretensions. And tho' the scheme for a new Government on the Ohio, for the present seems to be rejected or suspended, yet considering how favourably it was entertained by some of the publick Boards in England, it may be proper for the General Assembly of Virginia, at this time to assert our Rights by a Dutiful Remonstrance and Petition to the Crown.
Which is humbly submitted to their Consideration.
N. B. -- The first charter for Carolina, the orders to the Commissioners for running a Dividing Line between North Carolina and Virginia, with their proceedings and report thereon, the Articles of the Peace of Utrecht and Aix la Chapelle, with the proceedings of the Commissioners of the two Nations, respecting the boundaries of the English and French Colonies, the Royal Instructions from time to time to the Governors of Virginia, the several orders of the Council relative to the Back Lands, the Judgment of the King and Council upon the Patent Fee in Governor Dinwiddie's time, and several other Publick Documents may throw much light upon this interesting subject.1
1 A draft of the above in George Mason's handwriting was preserved by Richard Henry Lee, and was formerly to be found at the University of Virginia, among the Lee Papers. A copy was made from it in 1842 for Genl. John Mason, from which this is transcribed. The original draft is now missing.
Source: Kate M. Rowland, 1 The Life of George Mason, 1725-1792, 393-414 (1892).
