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was elected Governor of the colony, and acknow- |sion was coterminous with the bounds assigned to ledged the validity of the acts of the Burgesses, of the colony; if no bounds were assigned, and the whom it was expressly enacted that "he do not revocation of the charter repealed or dissolved the dissolve this assembly without consent of the ma- ancient limits, then the right of expansion by the jor part of the House,'
,”?10 and which Assembly ex-colony was coexistent with the British Empire in ercised a very general, though limited power of America, except where crown grants with exclulegislation. At this time the population of Vir- sive jurisdiction, limited that right of indefinite exginia had increased to 30,000 souls. Was the au-pansion. But the lease of Charles II. to Arlingauthority of the colony confined to the original ton and Culpeper will serve to explain the royal members which composed the corporation and to idea of what was contained in part in the bounds the soil actually settled by them at the time of the of Virginia. This lease, granted previous to 1680, revocation of the charter, or did its jurisdiction leased "all that entire iract territory region and expand with the populatjon? Was her colonial dominion of land and water commonly called Virsovereignty confined to the territory occupied by ginia together with the territory of Accomack and the original settlers, or did it expand with the new all that part of the bay of Chesapeake that lyeth grants and ocenpancy of lands and the increase of betweene the same or any part thereof and all other population ? Then, when and where was her au- the rights members jurisdictions and appurtenenthority over the expanding population and receding cies thereof, situate lying and being in America, adfrontiers limited ?
joining to the colony and dominion of Maryland toThe feeble Richard grasped, but could not hold wards the north, to the great ocean towards the east, the iron mace of Cromwell, and the 11th day of to the colony and dominion commonly called CaroOctober, 1660, the restoration of Charles II., finds lina, towards the south, and are bounded towards the the "Grand Assemblie held at James Ciitie in west by aline leading from the first spring of the great Virginia,” aod Sir William Berkeley his majesty's river commonly called Patawomack, to the first Governor. And from this time to the close of her spring of the river Rappahanock, and from thence to colonial existence, the “Grand Assemblie was the first spring of the great river of Powhatan otherregularly held. The character of its legislation, wise called James river, and from thence in a merithe objects to which it was devoted and the pow- dian line to the said colony or dominion called Caroers esercised, can only be fully realized by the pe- lina, as also all those other tracts regions dominjusal of its legislative enactments. Suffice it to ions and territories of land and water, situate lying saf, there was no suspension of legislative func. and being beyond the uttermost adjacient limilts of tion, but that in 1666 the Burgesses assert, in reply Carolina aforesaid and the westerne limills of the to the royal governor, " that they conceive it their lands and countries hereby granted and the utterprivilege to lay the levy in the house,"al and in most westerne limiits of Maryland, or any of them 1670, define who shall have the right of suffrage." betweene about thirty-six degrees and one halfe and la 1680 the same body passed a naturalization act; forty degrees of northerne latitude, to the great sea Erected fortifications and raised a publique reve- towards the west. This lease gave the lessee ine for the better support of this, his majesties“ full power lycence and authority” “ to divide and colony."15 These are acts of quasi sovereign au- subdivide the said regions, tracts, territories and thority exercised within and over the territory of dominions into counties hundreds and parishes."15 the colony of Virginia, let that include what it may. On the 10th of May, 1680, Lord Culpeper, proprieThey are the acts of sovereign ownership, in vir- tary lessee as aforesaid, took his oath of office as tne of which only could Great Britain claim the Governor of the colony,16 and at the same tiine Uoseated lands appartenant to this her colony. the council of the colony were inducted into office,
They were essential to the perfection of her the oath of office being substantially the same as right by discovery, and her claim to the North- that required in 1621, viz—" shall assist and deWest. Who then shall define what this territory fend all jurisdictions preheminences and authority ineludes, or what acts of the colony or of the granted unto his majestie and annexed unto the crown shall explain in any further degree the mean- crown against all forreigne princes persons prelates ing of the original grant and jurisdiction confer- and potentates whatsoever."17 The same “jurisred by James I.? No one certainly will deny that dictions preheminences and authority" are now to as the expanding population widened the limits of be maintained by Virginia that were to be asserted the frontiers, that the authority and the rights and by her in the early settlement of the country when privileges conferred by the laws of the colony ac- England claimed the continent by virtue of the companied such extension. This right of exten- discovery of the Cabots. The authority of the
colony remains unlimited. The leasehold to Cul
13 1 Hen. 530-1. 11 2 Hen, 254. 1* 2 Hen., 280.
14 2 Hen., 570.
peper is distinct from the jurisdiction and duty of|" was rendered void by a process of law. *** All the colony.
the authority, theretofore, exercised by the colony, It is not necessary to go into a critical examina- and all the powers granted to Culpeper survived 10, ljon of this grant; it conveyed a leasehold; it did and were executed by, the colony. not limit by any form of words the jurisdiction of Arlington reconveyed, and Culpeper was disVirginia, as a colony, over the territory embraced franchised and recalled. Virginia was dissatisfied in the description of the charter of 1609, but gave with the improvident grant made to these meo. Colpeper, in his own right, unlimited authority of She solemnly protested by an act of her Grand sale, grant, division and subdivision within the Assembly. 21 The agents of the colony visited bounds assigned. The lease itself is particular England and in behalf of the people and in support and minute in its description, and the lands west of the true interests of the crown, insisted on the are set forth with the same technical minutiæ that resumption of these grants. And they insisted in the territory of Accomack is mentioned, then, as no equivocal terins, “ that the power of granting now, known as part of Virginia ; its lands seated the lands within the colony may reside in the Gove and its people represented in the Grand Assembly. ernor and council as formerly," that the people of
Now advert to the situation of the surrounding Virginia shall " not be cantonized into parcels by territory. Virginia was bounded on the south by grants made to particular persons ;" they prayed a well-defined line in the crown-grant of Carolina for the “usual allowance of fifty acres of land for to Lord Clarendon and which was now governed every person imported, which experience had proas a proprietary colony under the constitution of ved so beneficial," " that there shall be no tar or the famous John Locke.18 To the north, the grant imposition laid on the people of Virginia, but acto Cecilius Calvert conveyed the territory of Ma- cording to their former usage by the Grand Asryland. In 1671 the territory of the crown in the sembly and no otherwise," for that " both the dewest was limited to the east and bounded by the quisition and defence of Virginia have been at the five degrees of longitude granted to Pennsylvania. charge of the inhabitants," and for that " it is homFrom this time forward all the territory of Great bly conceived that if his majesty deduce a colony Britain north of the Carolina line and west of the of Englishmen by their own consent or license, or Pennsylvania line was separated by well-defined permit one to be deduced to plant an uncultivated limits from all the other colonies, and was in im- part of the world, such planters and their heirs mediate connexion, in a state of appurtenance, to ought to enjoy by law in such plantation the same the only crown colony on the continent. Virginia liberties and privileges as Englishmen in England, by her general laws, and by the oaths of her ofi- such plantation being bul in nature an extension cers, was sustaining the “jurisdictions, prehemi- or dilatation of the realm of England," "and to nences and authority” of the crown. The authori-confirm the legislative power in the Grand Assemly of the proprietary colonies did not extend be- bly.":22 yond their chartered limits ; being private grantees, These requests were substantially approved by they could not touch upon the territory or jurisdic- the Attorney General and received the writen tion of the crown. The proprietaries were limited sanction of the king 23 No charter issued, as was in authority and jurisdiction to their special granis : desired by the colonists, but Virginia remained dethe crown had its delegated authority in the colo- pendant on the crown, exercising its sovereignty ny of Virginia, and which, by virtue of the gen- over the "extension and dilatation of the realm eral authority, exercised by the Governor and of England,” within the borders prescribed by the Grand Assembly; and by virtue of propinquity original charter, limited by subsequent grants as and of its being the only representative of the sov- above-mentioned, and gradually looking ereign power in juxta position with this domain, was that space and circuit of land throughout from seg in virtual political possession of the territory in to sea, west and northwest."
Those desirous of? behalf of the crown. And this is fully sustained most thorough resolution of any
doubt upon in the subsequent history of the colonies.19
general authority and jurisdiction exercised by VirCulpeper was an avaricious spendthrift. His ginia are referred to the legislative records of the administration was one of extortion and, beyond colony, every page of which shows that its power this, of neglect, and Virginia was “ a province im- was expanded with the population and its increaspoverished by perverse legislation.” The Gov- ing wants. Every right claimed by the colonists ernor found a residence in the colony too irksome in the negotiations with Charles II. was exercised and upon the “reported griefs and restlessness of by them. They were colonists, already exercising the country,” the grant to Arlington and Culpeper a special and independent authority as a colony for was re-absorbed into the possession of the crown
20 2 Banc., 249. and the authority of Culpeper as Governor for life
21 2 Hen, 511. 19 Story Con., b. 1, c. 14.
22 2 Hen., 511, 523, 524, 525, 527. 2 Burk's App., 1. 19 2 Hen. 566. The commission of Culpeper.
23 2 Hen., 529, 530, 53).
its own protection, its own internal government, and sought to concentrate within his province (Virand its own “dilatation," unlimited hut by the gioia) bands of friendly Indians." In 1719 Pennbounds of Carolina on the south, Maryland and sylvania pressed upon the attention of the Lords Pennsylvania on the north and northwest. 24 of Trade, resistance to the encroachments of
The authorities cited in the last note bring us France, and counselled the establishment by Vir. down to the year 1705. By the act of 1701, (3 ginia of a fort on Lake Erie.27 The vigilance of Hen. 204 et seq.,) any quantity of land not under Virginia in watching, protecting and securing the 10,000 nor over 30,000 acres, free from quit rents, great western domain never slumbered. With true public, county or parish levies, was granted to loyalty and allegiance, so propitious for this whole esery certain number of men upon any of the republic in its results, that it looks like a decree of frontiers of “ this government” provided that for fate, she persisted in the claim of all that region for every five hundred acres so granted there “shall herself and the throne she represented. She was continually be kept upon the said land one Chris- present at the treaty of Lancaster, in Pennsylvania, tian man," &c. And by the act of 1705, (2 Hen., in 1744, where her Commissioners, (Gov. Spots468.) exclusive authority for trade is proposed to wood one of them,) met the deputies of the Iroquois, be gisen on certain conditions to the discoverers of who being united with the Tuscaroras, became any town or nation of Indians “lo the west of, or known as the Six Nations, and who there executed, between the Appulatian (Alleghany) mountains." on the 4th day of July, a deed recognizing the king's In 1710 and in 1711 Governor Spotswood issued right to all lands that are or shall be by his majeshis proclamation “ restraining seating on outlands ty's appointment in the colony of Virginia.28 To during this time of danger,” and by his proclama- settle this fact more fully, let an extract from an old tion of 10th of June, a free trade with western work, printed in Pennsylvania, in 1751, now in the Indians is regulated. The interdict of the Gov- library of Congress, with the title “ Delaware and ernor and the regulation of trade are alike acts of Shawanese Indians,” pp. 52, 53, testify. “The sovereign jurisdiction.
commissioners of Virginia after disputing the rights The French encroachments in the west now he- and claims of the Six Nations offer them a quangio to attract attention. And it the law of nations tity of goods to the value of two hundred pounds, gave England no title by discovery, France gained Pennsylvania currency, and two hundred pounds nothing by her imperfect possession. The title in gold, on condition they immediately make a deed set op by both nations was the title by discovery. recognizing the king's right to all the lands that This title on the part of England went back to the are or shall be by his majesty's appointment in the original discovery by the Cabots. France and colony of Virginia. • Accordingly the deed England were the only nations claiming title. By was signed and every thing settled to mutual satthe 15th article of the Treaty of Utrecht, 1713, isfaction.” Does this deed need confirmation? In it was provided that, “ the subjects of France, in- 1752 Joshua Fry, Lunsford Loamax and James habitants of Canada and elsewhere, should not dis. Patton, commissioners in behalf of the colony, were terb or molest in any manner whatever the five In-appointed by the Governor of Virginia with instrucdian nations which were subject to Great Britain, tions to obtain from the Indians settled on the Ohio nor its other American allies.” The right of Great a confirmation of the Lancaster deed. On the 13th Britain was here acknowledged by the only au- June of that year the confirmation was given by thority that had the slightest ground for contesting those Indians in the very bosom of their forest doher title. England so understood it, and Virginia, main. “The sachems and chiefs of the said Six representing the English sovereignty, in her colo- Nations now niet in council at Loggstown, do herenial capacity acted on that understanding, and grad- by signify our consent and confirmation of the bally " dilated" until she had pushed her actual pos- said deed in as full and ample a manner as if the sessions and grant of lands north-west of the river same was here recited."79 Whatever title existed Ohio. Let the current of history be pursued.
in the Six Nations was transferred and vested in False to her treaty engagements, France insidi- the colony of Virginia. ously introduced her settlements into the west, We have now reached the period of the French which attracted a:tention and excited the alarm of war, which terminated in the treaty of Fontainthe colonies. Governor Spotswood hoped to extend bleau or Paris, 1763. The historians of England, the line of the Virginia settlements “ far enough to generally authoritative exponents of their public the west to interrupt the chain of communication facts, describe Virginia as “ watered on the north between Canada and the Gulf of Mexico." He by the river Potowmack, which is the boundary becaused the passes of the mountains to be examined; desired to promote settlements beyond them,
26 3 Banc. 344.
37 3 Banc. 345. Smoll. Eng., c. 9, Geo. II. Id., c. 8, * 3 Hen., 18, 84, 88, 99, 115, 119, 135, 205, 236, 250, 284, R. Geo. II. 1 Pitk. U. S., 139, 140. 304 to 333 for land law. 201, 468.
28 3 Banc., 355, 356. 2 4 Hen., 116, 553.
29 Colony Tiiles, 29 to 68.
tween this and the colony last described, (Mary-| the Ohio; made themselves masters of the blockland,) having the Bay of Chesapeake to the East, house and truck-house, where they found skins and bounded on the South by Carolina, and exter.ding other commodities to the amount of twenty thouwestward without any prescribed limits.” And sand pounds and destroyed all the British traders, Edmund Burke gives a similar description.30 Sir except two, who found means to escape. At the R. Beverly's boundaries are in exact accordance, same time M. de Contreceur, with a thousand men as understood in 1722. An English author in and eighteen pieces of cannon, arrived in three 1770 thus describes Virginia : “ The country which hundred canoes from Venango, a fort they had raisstill bears this name, (Virginia,) is now reduced to ed on the banks of the Ohio, and reduced by surthat tract which has the river Potomac on the north; prise a British fort which the Virginians had built the Bay of Chesapeake on the east and Carolina on the forks of the Monongahela."36 Virginia had upon the South. To the westward the grants ex- acted in the spirit of the recommendation made by tend it to the South Sea."31 In strict accordance her coterminous neighbor in 1719. Loggstown with the historians are the geographers of Eng- was on the western side of the Ohio river.37 The land. No geographer confines Virginia at any mass of wealth collected at this single point affords time previous to her own cessions to any line east some proximate idea of the extensive use and apof the Mississippi river. Kitchen, whose map is propriation of the territory northwest of the Ohio. distinguished for extreme accuracy, makes Virgin- The British construction of the treaty of Utrecht ia's western and northern boundary rest on the was carried into execution by Virginia. Where Mississippi and Lake Erie and defined “ according is Connecticut? where New York with their postto the treaty of 1763.'s Consult also the map in belligerent claims? It was Virginia that built the Russel's History of America, London, 1778, and foris; that planted the settlements; and erected the map to Tarleton's campaign, London, 1787. the block-houses and truck-houses. Virginia, exerSuch were the opinions of enlightened and scien- cising the same elements of political authority which tific men of England as to the boundaries of Vir- she exercised from 1609 to 1624, the period of her ginia. We have seen that she had the title of the charter existence, extended her dominion and posnative sovereigns. Having these titles she used session to “our settlement" on the Monongahela, lo and claimed the possession, and her exercise of Loggstown and to Loramie's Creek, in like manthis right precipitated the French war. The con- ner as she planted the corner-stone of her first captroversy between England and France produced itol in Williamsburg. The seulement of Utrecht various memorials, and in the French criminations was violated, but vindicated by the treaty of Paris they say
some English traitors passed the moun- of 1763, which put an end to the usurpation of tains of Virginia and wanted to carry on trade with France over the territory in question. Of the indethe Indians on the Ohio, and the French took and pendent nations of the earth there was, now, not one carried them to France.""33 In the journal of 10 question the validity of the English title, dedaWashington, kept by him in his remarkable jour. ced from the discovery of the Cabots and confirmney undertaken to the northwest, under the direc-ed by two treaties and by Virginia's extinguishlion of Dinwiddie, Governor of Virginia, he says, ment of the Indian title and actual occupancy. “For a fort at the fork, (now Pittsburg,) would be Possession and title vested in the “ English traiequally well situated on the Ohio and would have tors” who crossed the mountains of Virginia. the entire command of the Monongahela, which The colony of Virginia was the only croworuns up our settlement, and is extremely well de- colony in immediate proximity and connection with signed for water carriage, ,"34 &c. In 1752, the the western domain. It was clearly included in Ohio Company established a trading post on Lo- the bounds of the original charter, no portion of it ramie's creek, forty-seven miles north of the pres- was ceded away by any subsequent grant which ent site of Dayton, in Ohio.56 The first acts of created any title recognized by the crown or enhostility on the part of the French clearly indicate forced by the colonies, except so much as was inthe possession and extensive establishment of Vir- cluded in the five degrees of longitude of Pennginia west of the Appalachian mountains-west of sylvania. The northwestern corner of Pennsylthe Ohio river. • They, (the French,) surprised vania rested on Lake Erie; the southwest corner Loggstown, which the Virginians had built upon of New York had the same abuital. After the for the crown to construct a colonial organization treaty of Paris, the Grand Assembly of Virginia for the immense region maintained and acquired by continued its ordinary jurisdiction over the west. that treaty. This was done by the royal procla- Creating counties, granting lands.42 protecting setmation of 1763 and the colonies of Quebec, east tlers, she had successively extended her borders and west Florida were organized." No notice was and filled it with population, until in 1776 she had taken of the territory under consideration. It is organized the counties of Kentucky, Washington, not mentioned ; it is not referred to in the organiza- Montgomery, Ohio, Monongalia and Yohogania, tion of territories. Was this oversight; was this the county of Yohogania being subsequently mergforgetfulness? Was this enchanting country stilled into Pennsylvania, in 1785, by the ascertainleft to be the apple of discord between France and ment of her five degrees of longitude. In 1769 England ! for the French by the treaty were left Fort Fincastle stood at the mouth of Wheeling the masters and possessors of the western border creek; in 1770 the settlement at Grave creek was of the Mississippi along its whole length. It was made, and in 1772 Kentucky was possessed.“3 Ocfor the possession of this country that war was in-tober 10th, 1774, is memorable for the battle of corred. It was to maintain the British right to it Point Pleasant at the mouth of the Great Kanawthat the war was prolonged and the title to which ha. And here closes the history of the colonial was acknowledged by the treaty. The country dependence of Virginia ; and one of her last acts, was filled with traders ; the British subjects were under the guidance of an English governor, was desirous of locating their trading establishments ; the assertion of her protective and vindicatory authe territorial and commercial value of this region, thority over her territorial claim. In 1609, this 23 well as its boundaries and the boundaries of colony commenced a feeble and precarious existPennsylvania and New York, were well under-ence on the shore of the Chesapeake; in 1774, that stood. Pennsylvania was interposed between it colony, vigorous and in the confidence of strength, and New York. The common-law doctrine of in her own name and in the name of the majesty she title gare the possession to Virginia ; the same represented, and as one of her last acts of allegiance doctrine repelled the possession of New York, and and clothed with that sovereignty which had acEngland's colonial and international law was then companied her through her whole career, stood based upon her common-law. All the other terri- upon the banks of the Ohio and waved her sceptre tory of England was partitioned off into colonies of dominion over the immense country, which Eng. by this Proclamation; and was this immense and land, her kings, historians, geographers, and legisvaluable region left without law, without order, be- lators recognized as Virginia. yond all jurisdiction and beyond protection to the To conclude the view of this branch of the subpersons and property of traders and others? Itject it must be borne in mind that the crown had was not assigned to any new jurisdiction; it was not only a legal, but exercised an actual supervi. not set apart as a separate colony, and whatever sion over the legislation, orders in council, as well ill-defined notions of the country may have existed as the proclamation of the governors.
treaty of 1763 it became important and necessary 30 Smoll. c. 9, R. G. II. Ed. Burke's Acct. of European Settlements in America, vol. 2. p. 207. London, 1765.
36 Smoll. Eng., c. 9, R. G. II. 2 Wynne, 25. Rus. Hist
of Amer., 2 vol., 375. 31 Wynne's Br. Em. in America, 2nd vol, 213. Gordon Geog. And, 362. London, 1744.
37 Col. Bouquet's Relation Hist. contre les Indiens, 1764,
p. 58, map. Mar. Wash., c. 11, p. 377. 7 Hen., 66). 32 Knox's War in America, London, 1769.
38 Delaware and Shawanes Indians, map. Map to Russ. 33 1 Pitk. U.S. 140.
Hist. America. Kitchen's Map. 1 Knox war in Ameri34 2 Mar. Wash., App.. p. 2.
ca. Wynne's Br. Emp. in America, 1 vol., 171. Grant of 95 Dill. Hist. Indiana, 67.
C. II. to Duke of York. Smith's Hist. of N. Y., 14.
The crown in 1609, when the original harter was granted, was, legally and in fact, cognizant of the actions did not exist when the proclamation of George III., of the colony. The Proclamation of 1763 is eviin 1763, assigned all the surrounding territories to dence of this fact. The military land-warrants bew jurisdictions and left this country in the pos- granted to the officers and soldiers of Virginia, and session of the colony, which, by regular dilatation, authorized by the crown, covered the banks of the by its own political action and by the ministerial Ohio. Then here we claim the full value of the and military fonctions of its governors, had cov- principle which maintains the title of Virginia under ered it with its jurisdiction and authority.“ The her charter, for, “such a solemn covenant, so conmarginal references include the period from 1753 cluded between a sovereign and his subjects, after to 1763 and exhibit the control of Virginia domin- being fully executed on their parts can never be ion in every possible manner in which authority revoked on his. * The genius of English and jurisdiction could be at that time exercised, liberty evoked, by this ever-enduring covenant, acfrom legislative protection of settlers on the wa- companied them whithersoever they might go in ters of the Mississippi to the building of forts and Virginia, as a guardian angel, to whose charge was granting of lands northwest of the river Ohio.“ specially committed the preservation of all their The coinmencement of the war found Virginia ex- English privileges. It is false, then, to say that ercising jurisdiction ; this jurisdiction was contin- the colonists of Virginia could claim nothing under ved during the war, and by the proclamation of the charters after the revocation of these charters 1763 was left undisturbed. Subsequently to the in 1624. "44 Virginia claims the full benefit of the 3 7 Hen., 663. 1 Pitk, 150.
49 Military bounty lands to Washington and the officers
and soldiers of the war 1756, under authority of royal proc** 6 Hen. 355, 417, 435, 438, 453, 521. 7 Hen., 11, 116, lamation of 1763, relaxing the previous inhibition. 171, 252, 282, 370. 1 Rev. C., 38 n.
43 Butler's Hist. of Ky., 18, 20, 25, 30. * Gov. Dinwiddie's Proc., 1754. 7 Hen., 661.
44 2 vol., Rep. Com.. ) scss., 28 Con., No. 157, p. 20.