(Annotated by Mason) [ca. July 1773]
In 1676 K. Ch. 2nd gave a Charter 'To the Colony of Virginia' confirming the antient importation right of 5o 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 3d 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 Quere.
Charter, or Letters Patent first granted by King James the First to the two Companys, commonly called the London Company & the Plymouth Company, for two several Colonies to be made in Virginia, & other Parts and Territories of America, along the Sea Coasts, between 34 Degrees & 45 Degrees of North Latitude.
Vizt. To Sir Thomas Gates, Sir George Somers, & others, called the first or London Company, to begin to settle & 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 & South West, as the Coast lieth; and for the like space of fifty miles all along the said Coast, towards the East & 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 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 & obtained.
And to Sir Thomas Hanham, Raleigh Gilbert & others, called the second or Plymouth Company, to begin to settle & 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 settlement or plantation, for the like space of fifty Miles all along the said Coast, towards the West & South West, or towards the South, as the Coast lieth, and for the like space of fifty Miles all along the said Coast, towards the East & 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 Main Land 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 of them, towards the Main Land, without the express Licence of the Council of that Colony in writing thereunto first had and obtained.
Provided that the Plantation or Habitation of such of the said Colonies as shall last plant themselves as aforesaid, shal not be made within one hundred miles of the other of them, that first began to make their plantation as aforesaid.
Granting & ordaining that each of said Colonies shall have a Council which shall govern & direct all Matters & Causes which shall arise or happen within the same several Colonies &c. with many privileges & immunities; among others;
That all & every the persons being his Majesty's subjects, which shall dwell & inhabit within every or any of the said Colonies or Plantations & every of their Children which shall happen to be born within any of the Limits & precincts of the said several Colonies & plantations, shall have & enjoy all Liberties, Franchises & Immunities, to all Intents and Purposes, as if they had been abiding & born within the Realm of England, or any other of his Majesty's Dominions.
And finally that his Majesty, his Heirs & Successors, upon petition for that purpose, shall & will by Letters patent, under the Great Seal of England give & grant unto such persons, their Heirs & assigns, as the respective Councils for the said two Colonies, or the most part of them shall for that purpose nominate & assign, all the Lands, Tenements & Hereditaments, which shall be within the precincts limited for the said Colonies respectively, as aforesaid, to be holden of his Majesty, his heirs & successors, as of their Manor of East Greenwich in the County of Kent, in free &common Soccage only, and not in Capite.
With a Clause declaring the full & perfect Efficacy of such Letters patent, so to be granted as aforesaid. &c.1
The Company for the said first or Southern Colony (to this Day called the Colony & Dominion of Virginia) having been joined by a great Number of the Nobility & 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 & Company of Adventurers and Planters of the City of London for the first Colony in Virginia; reciting, confirming, explaining & enlarging the former Charter, and 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 Sea Coast, 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 & North West; and also all the Islands lying within one hundred Miles, along the Coast of both Seas of the precinct aforesaid; with all the Soils, Grounds &c. for ever; to be holden of his Majesty, his Heirs and Successors, as of their Manor of East Greenwich; in free and common soccage, and not in Capite.
Nevertheless charging, commanding, warranting & authorising the said Treasurer & Company, to convey, assign & set over such particular portions of Lands, Tenements & 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 & allowed; wherein Respect to be had, as well of the proportion of the Adventure, as to the Special Service, Hazard, Exploit or Merit of any person, so to be recompensed, advanced or rewarded.2
Appointing & 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.
Nominating the particular Members of the said Council, & also the Treasurer for the Time being.
And granting & declaring that the said Council or Treasurer, or any of them shall from thenceforth be nominated, chosen, continued, displaced, changed, altered & supplied, as Death or other several occasions shall require, out of the Company of the said Adventurers by the Voice of the greater part of the said Company & 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 the Lord Chamberlain of the Household of his Majesty, his Heirs & Successors for the Time being, to take his Oath of a Counsellor to His Majesty, his Heirs & Successors for the said Company of Adventurers & Colony in Virginia.
Giving granting for his Majesty, his Heirs & Successors, full power & Authority to the said Council, as well at the present Time as hereafter from time to time, to nominate, make, constitute, ordain &confirm, by such Name or Names, Stile or Stiles, as to them shall seem good, and likewise to revoke, discharge, change & alter, as well all & singular Governors, officers & Ministers, which already have been made, as also which hereafter shall be by them thought fit & needful to be made or used, for the Government of the said Colony & Plantation.
And also to make, ordain & establish all manners of Orders, Laws, Directions, Instructions, Forms and Ceremonies of Government & Magistracy, fit & necessary for &concerning the Government of the said Colony and Plantation; and the same to abrogate, revoke, or change, not only within the precincts of said Colony, but also upon the seas in going &coming to & from the said Colony, as they in their good Discretion, shall think to be fittest for the good of the Adventurers & Inhabitants there.
Declaring also for his Majesty, his Heirs & Successors, That all & every the persons, being the subjects of his Majesty, his Heirs & Successors, which shall go & inhabit within the said Colony & Plantation & every of their Children and posterity which shall happen to be born within any of the Limits thereof, shall have & enjoy all Liberties, Franchises, & Immunities of free Denizens & natural Subjects, within any of their other Dominions, to all Intents & purposes, as if they had been abiding & born within the Realm of England, or any other of the Dominions of his Majesty, his Heirs & Successors.3
Giving and granting also unto the said Treasurer & Company & their Successors, & to such Governors, Officers & Ministers, as shall be by the aforesaid Council constituted & appointed, according to the Nature & Limits of their Offices & places respectively, that they shall & may from time to time for ever hereafter, within the said precincts of Virginia, or in the way by sea thither & from thence, have full and absolute power & Authority to correct, punish, pardon, govern, & rule all such subjects of his Majesty, his Heirs & Successors, as shall from time to time Adventure themselves in any Voyage thither, or that shall at any time hereafter, inhabit in the Precints & Territories of the said Colony as aforesaid, according to such Orders, Ordinances, Constitutions, Directions & Instructions, as by the said Council as aforesaid, shall be established. So always as the said Statutes, Ordinances & proceedings, as near as conveniently may be agreeable to the Laws, Statutes Government & policy of the Realm of England.
Declaring his Majesty's Royal Will & 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 other former Letters patent, the same shall be taken & interpreted, in the most ample & beneficial Manner for the said Treasurer & Company & their Successors and every Member thereof. And concluding with the following clause.
Any Act, Statute, Ordinance, Provision, Proclamation or Restraint, to the contrary hereof, had, made, ordained or provided, or any other Thing, Cause or Matter whatsoever, in any Wise notwithstanding.
Anno. 1612
Sect. I. II. III.
A third Charter was granted by King James the First to the same Virginia Company, reciting &confirming their former Charter, and setting forth that the said Company had petitioned for an Enlargement of their former Letters Patent, as well for a more ample extent of their Limits & Territories into the Seas adjoining to, & upon the Coast of Virginia, as also for some other Matters & Articles, concerning the better Government of the said Company & Colony, in which point the former Letters patent do not extend so far, as Time and Experience hath found to be needful &convenient.
Giving, granting &confirming unto the said Treasurer & Company, & to their Heirs & Successors for ever all & singular those Islands whatsoever situate, lying & being in any part of the Ocean or Seas bordering upon the Coast of the said first Colony of Virginia, & being within three hundred Leagues of any the parts heretofore granted to the said Treasurer & Company in the former Letters patent, and being within or between the one & fortieth & thirtieth Degrees of a Northern Latitude; together with all & singular the Soils, Lands, Grounds, Havens, Ports, Rivers, Waters, Fishings, Mines & Minerals &c. and all & singular other Commodities, Jurisdictions, Royalties, Privileges, Franchises and Preheminences, both within the said Tract of Land upon the Main, and also within the said Islands & Seas adjoining, whatsoever & thereunto or thereabouts, both by sea & Land, being or situate—To be holden as of the Manor of East Greenwich &c.4
Ordaining & granting that the said Company once every week or oftener at their pleasure, might hold a Court & Assembly, for the better Order & Government of the said Plantation, to consist of the Treasurer or his Deputy, & at least five of the Council, and fifteen other Members of the Company; which should be a sufficient Court for the ordering & dispatching all such casual & particular Occurrences, & Matters of less Consequence & weight, as shall from time to time happen, concerning the said plantation.
But that for the ordering & disposing of Matters, & Affairs of greater weight & Importance, & such as concern the publick weal, particularly, the manner of Government, from time to time to be used, the ordering & disposing of the Lands, & the settling & establishing a Trade, there should be held upon four different certain Days (therein named) one great & general Assembly; which four Assemblies to be stiled &called the four Great & General Courts of the Council & Company of Adventurers for Virginia; & should have full Power & Authority from time to time & at all times hereafter, to elect &chuse Discreet Persons to be of the said Council for the said Council, and to nominate & appoint such officers as they shall think fit & requisite for the Government, managing, ordering & dispatching the Affairs of the said Company; & shall likewise have full power & Authority to ordain and make such Laws & Ordinances for the Good & 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 & Statutes of the Realm of England.
Giving & granting to the said Treasurer & Company full XVI power & Authority, Liberty & Licence, to erect & publish, open & 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.
Declaring that in all Questions & Doubts that shall arise upon any Difficulty of Construction or Interpretation, of any thing contained in these or any other of the former Letters patent, the same shall be taken & interpreted in most ample & beneficial Manner for the said Treasurer and Company, & their Successors, & every Member thereof.
And lastly ratifying &confirming unto the said Treasurer & Company, & their Successors for ever, all & all manner of Privileges, Franchises, Liberties, Immunities Profits and Commodities whatsoever granted unto them in any of the former Letters patent, & not in these presents revoked, altered, changed or abridged Any Statute, Act, Ordinance, provision proclamation or Restraint, to the Contrary thereof &c. notwithstanding.5
The Treasurer Council & Company in England passed & established an Ordinance under the common Seal of the said July Company, for settling the Constitution & Form of Government in Virginia.6
Declaring their Motives & Authority for the same, & ordaining & declaring, that from 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 the State (whose Office shall chiefly be Assisting with their Care, Advice & Circumspection, to the Governor) shall be nominated, placed, & displaced, from time to time by them the said Treasurer, Council & Company, & their successors: nominating for the present, the Members of the said Council of State, vizt.: Sir Francis Wyatt the then Governor, & nineteen other Gentlemen therein named; earnestly praying & desiring, & strictly charging &commanding the said Counsellors & Council, to lend their Care & Endeavour to assist the Governor; first & principally in the Advancement of the Honour & service of God, & the Enlargement of his Kingdom amongst the Heathen people; and next in erecting of the said Colony in due Obedience to his Majesty, & all lawful Authority from his Majesty's directions; and lastly in Maintaining the people in Justice and Christian Conversation amongst themselves, and in strength & ability to withstand their Enemies. And this Council to be always, or for the most part residing about or near the Governor.7
The other Council more generally to be called by the Governor, once Yearly & no oftener, but for very extraordinary & important Occasions, shall consist, for the present, of the said Council of State, & 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 General Assembly, wherein (as also in the said Council of State) all Matters shall be decided, determined, & ordered by the greater part of the Voices then present; reserving to the Governor always a negative Voice. And this General Assembly shall have free power to treat, consult &conclude, as well of all emergent Occasions concerning the publick Weal of the said Colony & every part thereof, as also to make, ordain, & enact such general Laws & Orders, for the Behoof of the said Colony & the good government thereof, as shall from time to time appear necessary or requisite.8
Whereas in all other things requiring the said General Assembly, as also the said Council of State, to imitate & follow the policy of the Form of Government, Laws, Customs, & Manner of Trial, & other Administration of Justice, used in the Realm of England, as near as may be, even as the said Treasurer & Company themselves, by His Majesty's Letters Patent, are required.
Provided that no Law or Ordinance made in the said General Assembly, shall be or continue in Force or Validity, unless the same shall be solemnly ratified &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 & settled accordingly; which is to be done by the said Treasurer & Company, as by Authority derived from his Majesty, and the same shall have been so by them declared, no Orders of Court afterwards shall bind the said Colony unless they be ratified in like manner, in the General Assemblys.9
Charter, under the great Seal of England, granted by King Charles the Second to the Colony of Virginia.
Declaring & granting for his Majesty, his Heirs & Successors, from time to time, inhabiting within the Colony & Plantation of Virginia, shall have their immediate Dependance upon the Crown of England, under the Rule & Government of such Governor or Governors as his Majesty his Heirs or Successors, shall from time to time appoint in that Behalf; & 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 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 & Successors, shall appoint a new Governor.11
Confirming & establishing all Lands possessed by the several & respective planters & Inhabitants of Virginia to them & their Heirs for ever, where the property of any particular Man's interest, in any Lands there, shall not be altered or prejudiced by Reason thereof.
Declaring & 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 & Successors, as shall from time to time go to dwell in the said Plantation, fifty Acres of Land, as according as hath been used, & allowed, since the first Plantation, to be held of his Majesty, his Heirs & Successors, as of their Manor of East Greenwich in their County of Kent in free &common Soccage.12
And that all Lands possessed by any Subject inhabiting in Virginia, which is Escheated or shall Escheat to his Majesty, his Heirs & Successors, shall & may enjoyed by such Inhabitant or Possessor, his Heirs & Assigns for ever, paying two Pounds of 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 & Council, or any five or more of them, whereof the Governor or his Deputy to be always one, shall & thereby have full power & Authority to hear & determine all Treasons, Murders, Felonies, & other Offences committed or done, within the said Government, so as they proceed therein, as near as may be to the Laws & Statues of the Kingdom of England.13
And lastly of his Royal Goodness, graciously to continue to favour the subjects of his Majesty, his Heirs & Successors, which then did or thereafter should inhabit in the said Country of Virginia, & to give the more liberal & ample Encouragement to plantations there, declaring his Royal Will & pleasure to be, that all & every Clause, Article, & Sentence in these his said letters Patent, contained, shall be from time to time, for ever thereafter, as often as any Ambiguity, Doubt or Question shall or may happen to arise thereupon, expounded, construed, deemed & taken, to be meant & intended; and shall inure & take Effect, in the most beneficial & available Sense, to all intents & Purposes, for the Profit & Advantage of the Subjects of his Majesty, his Heirs & Successors, of Virginia aforesaid, as well against his Majesty, his Heirs & Successors, as against all & every other person & persons whatsoever; any Law, Statute, Custom or Usage to the Contrary thereof in anywise Notwithstanding.14
1 In Consequence of this Charter, the first or Southern Colony, which still retains the Name of Virginia, was undertaken & begun by several Persons, in and about London, who fitted out two or three Ships under the Command of Captn. Christopher Newport, which sailed from England to America. 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 about forty Miles up Powhatan River (since called James river) & 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.2 Pursuant to the above last recited Clause, Sect. VII., the said Company in the Year 1616 (Sir George Yeardly being then their Governor in Virginia) ordained & ordered that 50 Acres of Land should be assign'd and granted to every person removing himself into the said Colony from Great Britain or Ireland; and to every person who should import others, 5o Acres for each 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 &constantly practiced 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. 50 Acres of Land for each was granted to the persons who imported them. After the Govern- ment was taken into the Hands of the Crown, upon the Dissolution of the Virginia Company, the same right & Custom was always continued, as appears from the old patents & Records in the Secretary's office. In the Year 1662, an Act of Assembly was made, prescribing the manner of proving such Importa- tion Rights to Lands, and obtaining Certificates thereof, to entitle the Claimersto Surveys and patents. And in the Year 1676 the said Custom & Right was solemnly confirmed and continued, according to the ancient usage & practice. by Charter from King Charles the Second to the Colony of Virginia, under the Great Seal of England: which Charter was recognized by Act of Assembly in the year 1677, prescribing the Form of Patents for the future; in which Form is recited the Continuance & Confirmation of the said Ancient Right & Privilege, which hath been enjoyed by the Subjects of this Colony ever since, and great quantities of Lands 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 & Custom, had good reason for his remark; That "this is the ancient, legal, & a most indubitable Method of granting Lands in Virginia."3 There can be no Doubt but this & every Clause relating to the People & 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 & inures to the Benefit of their Posterity for ever; notwithstanding the Dissolution of the Virginia Company, had such Dissolution been ever so legal. But a new doctrine has been lately broach'd by the Writers against America "That the Charters granted to the Colonies were originally illegal, as containing Powers & Rights which the Crown, being only one Branch of the Legislature, could not grant, and having never been confirm'd by Act of Parliament, that they are of Course void & 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 discover'd, the sending abroad Colonies had been unknown in Europe from the times of the ancient Greeks and Romans (for the Irruptions of the Goths and other barbarous Northern 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 & protection, & for the Benefit of Great Britain, would by the Laws of Nature & Nations have carried with them the Constitution of the Country they came from, &consequently been entitled to all its advantages: Yet not caring to trustaltogether to general principles applied to a new subject, and anxious to secure to themselves, & their posterity, by every means in their power, the Rights & privileges of their beloved Laws & Constitution, they entered into solemn Compacts with the Crown for that purpose. Under the Faith of these Com- pacts, at their own private Expence & Hazard, amidst a thousand Difficulties & Dangers, our Ancestors explored & settled a New world; their posterity have enjoyed these Rights & 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 & unlimited Alienation to Foreigners; a fortiori, can it make a modulated Grant to Subjects. The American Charters, therefore are legal ab origin. —Equally false and absured 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.4 This Clause, Sect. IV. of this Charter, respecting the ports, rivers, waters, & Fishings, and a Clause of the same nature in Sect. VI. of the Second Charter (not particularly recited in these Extracts) being of a publick Nature in which the People & Inhabitants were interested as well as the Company, it is presumed could not be destroyed or avoided by the Dissolution of the Virginia Company, & may avail us if the Proprietor of Maryland should ever disturb the peace or possessions 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, & are represented in our Legislature; & 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 & 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.5 The principal Design of this third Charter, besides making some new regulations in the Government of the Company & 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 the 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, & 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 generally presumed to have been the Original plan, & 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, vizt. 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 diminutive 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 expected, have for a great Length of Time, been chosen by the Shires or Counties.7 The Powers by this Clause vested in members of the first Virginia Council properly belong to a Council of State. But to what an alarming & 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: &consequently the Life, Liberty, & 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, Interest, & Connections here, have restrained them within the Bounds of Moderation; because the Emoluments of the Office are not a sufficient Temptation to mercenary Strangers to sollicit the appointment; And because Luxury, Venal- ity, 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, & if it was, that it could descend to but 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 Jurisdictions as unsafe & dangerous to their own Families as to the Community. Not only mean & sordid, but extremely short sighted & 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 Welfare of his own Family & posterity, as by securing the Just Rights and Privileges of that Society to whichthey 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 & patriotic Prince. Perhaps some noble & publick spirited Governor, who would then indeed deserve a Statue.
Perhaps the Constitution may by Degrees work itself clear, by its own innate strength, the virtue & Resolution of the Community, as hath often been the Case in our Mother Country. This last is the natural Remedy; if not counter- acted by that slow Poison, which is daily contaminating the Minds & Morals of our People. Every Gentlemen here is born a petty Tyrant. Practiced in Acts of Despotism & Cruelty, we become callous to the Dictates of Humanity, & all the finer feelings of the Soul. Taught to regard a part of our own Species in the most abject &contemptible Degree below us, we lose that Idea of the Dignity of Man, which the Hand of Nature had implanted in us, for great & useful purposes. Habituated from our Infancy to trample upon the Rights of Human Nature, every generous, every liberal Sentiment, if not extinguished, is enfee- bled in our Minds. And in such an infernal School are to be educated our future Legislators & 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 bath 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 Enthusiastick Impulse; and the author of them conscious of his own good Intentions, cares not whom they please or offend.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, & 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 allour 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, & 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 was very considerable in the General Assembly; at first, indeed, they made a Majority; but in process of Time as the Country became more inhabited, Counties were laid off, & 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; & the democratical part of our Constitution had no other check here 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 & formed in Imitation of the English House of Peers, a separate & 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 inform'd in the principles of the British Constitution, & 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 been lately 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 the Judgement of 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 robb'd of a valuable part of his Birth right, & the most effectual means that 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 cou'd originate there; for otherwise, when the Subject is aggrieved, he is left without Redress. Their useful Distinction seems hitherto to have been totally neglected in this Colony.9 This Ordinance or Charter for settling a Form of Government in Vir- ginia, was made by the Treasurer, Council & Company in England, by virtue of the powers vested in them, for that purpose by the i4th & 23d Sections of King James's second Charter, & the 8th section of his third Charter to the said Company; and being made while the said powers were in full Force and Efficacy, & 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 tochuse their own Representatives to enact laws, as if it had been made & 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, & particularly that invaluable one of chusing our own Representatives in a Virginia Parliament, which we have uniformly enjoyed & exercised for more than one hundred & fifty years, could be shaken only by Violence & Injustice, aided by our own Folly, or by Force of Arms. Some parties and Factions having arisen in the Virginia Company, & several Disputes having happened with the King & his Ministry, King James the First by Proclamation dated July 24th 1624 forbid & suppressed the Courts of the said Company at their usual 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 Ministry, and forbid to act under their own, their Courts & Meetings were discontinued, & their Business & Proceedings stopp'd: for though there had been a Quo Warranto brought in the King's Bench, & the process serv'd 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 & Opposition lately received from the King & Ministry, disgusted with the Schisms & Factions in their own Body, & wearied with so great &constant Expence, after some faint struggles submitted & 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 & 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 & 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 & 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 Pensylvania and Carolina were erected; the Southern Part of the first & the Northern part of the latter, being within the ancient Limits of Virginia. The Dutch & Swedes having possessed themselves of the Country on the Sea Coast, 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 &confirmed to him in consideration of aDebt due from the King to his Father; & from thence arose the Province of Pensilvania. 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 his Courtiers, vizt. the Earl of Clarendon, the Duke of Albemarle, the Lord Craven, the Lord Berkely, the Lord Ashley Cooper, Sir George Carteret, & Sir William Colleton, for the Country called Carolina; the greatest part of which (the Earl of Granville only retaining his ancestor's, Sir George Carteret's part) was sold by the Heirs of these Proprietors to the Crown; and out of it were form'd the Provinces of North Carolina, South Carolina & Georgia. And by these Means have the ancient & original Boundaries been contracted; & 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 Saint Albans, John Lord Berkley, Sir William Moreton and John Tretheway Esqr. of all that Tract of Land or Territory lying between Rappahannock & Potomack Rivers, commonly called the Northern Neck (now in the possession of the right honble. the Lord Fairfax) and altho' there was a proviso that the same should not infringe or prejudice any Contract or Grant whatsoever before made or granted by the Governor & Council of Virginia; and that the said Patentees, their Heirs & Assigns, & all the Inhabitants of thesaid Tract of Land or Territory, should be in all things subject & obedient to such Laws & Constitutions, as were or should be made by the Governor, Council & Assembly of Virginia; yet some Royalties &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 & Supplication, asserting the Rights & Privileges granted to this Colony by his Majesty's Ancestors, representing the Dangers & ill Consequences of such Grants to Lords & others, & 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 & 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: vizt. that from King Charles the Second, bearing date the loth 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 Propreietary 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.11 The Rule established by his present Majesty, requiring the Governor to reside here, is exactly conformable to this Clause of the Charter; and consider- ing 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 & exercised after the Dissolution of the said Company, is clearly & authentically confirmed & established, accord- ing to the ancient usage & practice; and being thereby made a part of the Constitution of Virginia, cannot be avoided or invalidated by any Procla- mation, Instruction or other Act of Government (vid. Not[es] ad & loth) This & 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 Regulations of Government, the Quit Rent of the Crowns Lands here should hereafter be raised; as all lands coming under the Description of either of those Clauses, would be exempt from such new Regulations.13 This Clause investing the Governor & Council with full power & Authority to hear & determine all Treasons & other offences committed within this Government, expounded, (as required by the last Clause) in the most beneficial & 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 & Justice, as would much better become the Divan at Constantinople, than the Cabinet of London.14 By this Charter the subjects of Virginia are for ever to remain under the immediate protection of the British Crown, & be subject only to its Govern- ment 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 & Authority to try all Treasons & other Offences committed here. And the Design of the Charter is declared to be, to continue to favour the Subjects which then did, or afterwards should inhabit the said County of Virginia, and for the more liberal & 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 & take Effect in the most advantageous & available Sense for the Benefit of the Subjects of the said Country of Virginia.
The Country of Virginia is only mentioned at large & in general Terms in this Charter, & not described or ascertained by 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, & diametrically opposite to the Claims of Great Britain in her Negotiations & Treaties with other Nations, as well as the Reasons for which the King enteredinto the late war, one of which was the Incroachments made by the Frenchupon 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, & 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 Judgement for the Lands to the Fountain Head of Potomack River, near fourscore miles beyond the Blue Ridge. As our Settlements were extended & the wild Game destroyed, the Indians have been forced 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 & 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 begun to settle on the West side of the Alleghany or Appalatian Mountains, and at this time there are several thousand families settled to the Westward of the said Mountains, on the Branches & waters of the Ohio river. When the Colony of Virginia was settled the Lands first purchased of the Indians were only upon & near the Mouths & 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 & beneficial Manner of Construction which we have a right to) the plain, natural, & obvious meaning of the Charter is, to grant &confirm certain Rights, privileges & 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 Description and Boundaries of the original Charters, not before otherwise appropriated or disposed of by his Majesty's Ancestors. In this situation bath 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 maps, as well those published by publick Authority as others, to wit, Bounded on the North by Maryland & Pennsilvania; 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 were never clearly ascertained until the last Treaty of Peace, in the Year 1763, fixed then by a Line drawn along the Middle of the River Mississippi. Several Acts of the British Crown & Government, as well as many Laws of this Colony (which receiving the Royal Assent are also Acts of the British Crown & Government) have from time to time corresponded with and confirm'd these Bounds of Virginia. It will be sufficient to mention a few Instances, as there are none which contradict them. In the 4th 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 th's 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 & Right of trading to & with all & 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, & under such penalities & 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 & 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's the 16th Day of March 1748/9 in the 22d Year of his Reign, reciting a petition which had been presented to his Majesty by the Ohio Company, the said Governor is directed & required forthwith to make the petitioners & their Associates, a Grant or Grants of two hundred thousand Acres of Land betwixt Romanettoe's & Buff aloe Creek, on the South side of the River Alleghany, otherwise Ohio, and betwixt the two Creeks & 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 &c.
In the Year 7753 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 neigh- bouring Indians, if a further Encouragement be 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 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 in to this Colony with their Families & Effects, & settle upon the 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 & Security of the Colony in general, & 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 hereaftersettle & reside upon any Lands situate to the Westward of the Ridge of Mountains, that divides the Rivers Roanoke, James & Potomack from the Mississippi, in the County of Augusta, shall be & are exempted & discharged from the payment of all publick, County, & 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 & 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 & inhabit on his Lands in this Colony, on & near the Waters of the River Mississippi; & that it hath been represented to the General Assembly that the Subjects of the French King, & by their Instigation, the Indians in alliance with them, had encroached on his Majesty's said Lands, murdered some of his Subjects, & 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 & approbation of the Governor, or Commander in Chief for the time being, to direct & appoint how the said Money shall be applied, towards protecting & defending his Majesty's subjects, who then were settled, or thereafter should settle on the waters of the River Mississippi. And laying sundry Duties & 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, & 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 & the Southern Indians, across the Alleghany Mountains to the Ohio River; the sum of [not more than £2.500] was granted by the General Assembly, & levied upon the people of Virginia, [to the] Charge thereof, upon a formal Requisi- tion made by the Crown for that purpose.
These Quotations & Examples are sufficient to shew 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 West- ward 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 & his Associates to the Crown, to grant a Proprietary Charter, &create a new Government between the Alleghany Mountains & the River Ohio (in direct Violation [torn] Virginia Charters) which would not only have taken away great part of the Territory of this Colony; but would have removed from under the immediate protection of the Crown, & the Government of Virginia, several thousand Inhabitants, Settled there under the Faith ofthe said Charters, as well as many subsequent Acts of Government, and the Encouragement of the 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 & Queen Mary, to the President & Professors of William & Mary Col- lege. And have introduced a precedent of a very alarming & dangerous Nature to the Liberties, Rights, & privileges of his Majesty's Subjects of this Colony.
To this illegal & injurious attempt several Gentlemen in Virginia, the Ohio Company, were made in some Measure accessary, without their Knowledge & 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, & their absolute Refusal of having any Concern in it; which Resolution they not only entered in their own Books, &communicated to the Members of their Company in England; but for their Justification to posterity, sent a Copy thereof to the Governor & Council, to be entered, if they thought fit, on their Journals.
This project of Mr. Walpole's was fabricated by the same fertile [torn] who first suggested it to the Earl of [Rochford] to apply to [the Lords of Trade] 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, & drop his pretensions. And tho' the Scheme for a new Government on the Ohio at present seems to be rejected or suspended; yet considering how favorably 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 & 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 & Virginia, with their proceedings & report thereon, the Articles of the Peace of Utrecht, & Aix la Chapelle, with the proceedings of the Commissaries 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 Judgement of the King & Council upon the Patent Fee in Govr. Dinwiddie's Time, & several other publick Documents, may throw much light upon this interesting Subject.
Memorandum
According to the best late Maps, Virginia as at present bounded extending to the River Mississippi, contains about 141,000 square miles, or 90,240,000 Acres.
49,452 square miles in England according to Geography of Engld. pubd. in 1746 or 42,196,700 acres.