ORIGIN AND SETTLEMENT OF VIRGINIA.
§ 39. Having thus traced out the origin of
the title to the soil of America asserted by the European nations, we may now
enter upon a consideration of the manner, in which the settlements were made,
and the political constitutions, by which the various Colonies were organized
§ 40. For a long time after the discoveries
of Cabot were made, England from various causes remained in a state of
indifference or inactivity in respect to the territory thus subjected to her
sway. 1 Nearly a century elapsed before
any effectual plan for planting any colony was put into operation; and indeed
the ill success, not to say entire failure, of the first expedition was well
calculated to abate any undue confidence in the value of such enterprises. In
1578 Sir Humphrey Gilbert, having obtained letters patent from Queen Elizabeth,
2 granting him and his heirs any lands
discovered by him, attempted a settlement on the cold and barren shores of Cape
Breton and the adjacent regions, and exhausted his fortune, and lost his life in
the fruitless labour. 3 The brilliant
genius of Sir Walter Raleigh was captivated by the allurements of any scheme,
which gave play to his romantic temper; and unmindful of the disastrous fate of
his half brother, or gathering fresh courage from the consciousness of
difficulties, eagerly followed up the original plan under a new patent from the
crown. 4 To him we are indebted for the
first plantations in the South; 5 and
such was the splendor of the description of the soil and climate and productions
of that region given by the first adventurers, that Elizabeth was proud to
bestow upon it the name of Virginia, and thus to connect it with the reign of a
virgin Queen. 6 But notwithstanding, the
bright prospects thus held out, three successive attempts under the auspices of
Raleigh ended in ruinous disaster, and seemed but a presage of the hard fate and
darkened fortunes of that gallant, but unfortunate gentleman. 7
§ 41. The first permanent settlement made
in America under the auspices of England was under a charter granted to Sir
Thomas Gates and his associates by James the First, in the fourth year after his
accession to the throne of England 8 (in
1605.) That charter granted to them the territories in America, then commonly
called Virginia, lying on the sea-coast between the 34th and the 45th degrees of
north latitude and the islands adjacent within 100 miles, which were not
belonging to or possessed by any Christian prince or people. The associates were
divided into two companies, one of which was required to settle between the 34th
and 41st degrees of north latitude, and the other between the 38th and 45th
degrees of north latitude, but not within 100 miles of the prior colony. By
degrees, the name of Virginia was confined to the first or south colony.
9 The second assumed the name of the
Plymouth Company, from the residence of the original grantees; and New-England
was founded under their auspices. 10
Each colony had exclusive propriety in all the territory within fifty miles from
the first seat of their plantation. 11
§ 42. Some of the provisions of this
charter deserve a particular consideration from the light they throw upon the
political and civil condition of the persons, who should become inhabitants of
the colonies. The companies were authorized to engage as colonists any of the
subjects of England, who should be disposed to emigrate. All persons, being
English subjects and inhabiting, in the colonies, and every of their children
born therein, were declared to have and possess all liberties, franchises, and
immunities, within any other of the dominions of the crown, to all intents and
purposes, as if they had been abiding and born within the realm of England, or
any other dominions of the crown. The patentees were to hold the lands, &c.
in the colony, of the king, his heirs and successors, as of the manor of East
Greenwich in the county of Kent, in free and common soccage only, and not in
capite; and were authorized to grant the same to the inhabitants of the
colonies in such manner and form and for such estates, as the council of the
colony should direct. 12
§ 43. In respect to political government,
each colony was to be governed by a local council, appointed and removable at
the pleasure of the crown, according to the royal instructions and ordinances
from time to time promulgated. These councils were to be under the superior
management and direction of another council sitting in England. A power was
given to expel all intruders, and to lay a limited duty upon all persons
trafficking with the colony; and a prohibition was imposed upon all the
colonists against trafficking with foreign countries under the pretense of a
trade from the mother country to the colonies. 13
§ 44. The royal authority soon found a
gratifying employment in drawing up and establishing a code of fundamental
regulations for these colonies, in pursuance of the power reserved in the
charter. A superintending council was created in England. The legislative and
executive powers were vested in the president and councils of the colonies; but
their ordinances were not to touch life nor limb, and were in substance to
conform to the laws of England, and were to continue in force only until made
void by the crown, or the council in England. Persons committing high offenses
were to be sent to England for punishment; and subordinate offenses were to be
punished at the discretion of the president and council. Allegiance to the crown
was strictly insisted on; and the Church of England established. 14
The royal authority was in all respects made paramount; and the value of
political liberty was totally overlooked, or deliberately disregarded.
§ 45. The charter of the first or Virginia
colony was successively altered in 1609 and 1612, 15
without any important change in its substantial provisions, as to the civil or
political rights of the colonists. It is surprising, indeed, that charters
securing such vast powers to the crown, and such entire dependence on the part
of the emigrants, should have round any favor in the eyes either of the
proprietors, or of the people. By placing the whole legislative and executive
powers in a council nominated by the crown, and guided by its instructions,
every person settling, in America seems to have been bereaved of the noblest
privileges of a free man. But without hesitation or reluctance, the proprietors
of both colonies prepared to execute their respective plans; and under the
authority of a charter, which would now be rejected with disdain as a violent
invasion of the sacred and inalienable rights of liberty, the first permanent
settlements of the English in America were established. From this period the
progress of the two provinces of Virginia and New-England form a regular and
connected story. The former in the South, and the latter in the North may be
considered as the original and parent colonies, in imitation of which, and under
whose shelter all the others have been successively planted and reared.
§ 46. The settlements in Virginia were
earliest in point of date, and were fast advancing under a policy, which
subdivided the property among the settlers, instead of retaining it in common,
and thus gave vigor to private enterprise. As the colony increased, the spirit
of its members assumed more and more the tone of independence; and they grew
restless and impatient for the privileges enjoyed under the government of their
native country. To quiet this uneasiness, Sir George Yeardley, then the governor
of the colony, in 1619, called a general assembly, composed of representatives
from the various plantations in the colony, and permitted them to assume and
exercise the high functions of legislation. 17
Thus was formed and established the first representative legislature, that ever
sat in America And this example of a domestic parliament to regulate all the
internal concerns of the country was never lost sight of, but was ever
afterwards cherished throughout America, as the dearest birth-right of freemen.
So acceptable was it to the people, and so indispensable to the real prosperity
of the colony, that the council in England were compelled, in 1621, to issue an
ordinance, which gave it a complete and permanent sanction. 18
In imitation of the constitution of the British parliament, the legislative
power was lodged partly in the governor, who held the place of the sovereign;
partly in a council of state named by the company; and partly in an assembly
composed of representatives freely chosen by the people. Each branch of the
legislature might decide by a majority of voices, and a negative was reserved to
the governor. But no law was to be in force, though approved by all three of the
branches of the legislature, until it was ratified by a general court of the
company, and returned under its seal to the colony. 19
The ordinance further required the general assembly, as also the 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." The conduct of the colonists, as well
as the company, soon afterwards gave offense to King James; and the disasters,
which accomplished an almost total destruction of the colony by the successful
inroads of the Indians, created much discontent and disappointment among the
proprietors at home. The king found it no difficult matter to satisfy the
nation, that an inquiry into their conduct was necessary. It was accordingly
ordered; and the result of that inquiry, by commissioners appointed by himself,
was a demand on the part of the crown of a surrender of the charters.
20 The demand was resisted by the
company; a quo warranto was instituted against them, and it terminated,
as in that age it might well be supposed it would, in a judgment, pronounced in
1624 by judges holding their offices during his pleasure, that the franchises
were forfeited and the corporation should be dissolved. 21
§ 47. It does not appear that these
proceedings, although they have met with severe rebuke in later times, attracted
any indignation or sympathy for the sufferers on this occasion. The royal
prerogative was then viewed without jealousy, if not with favor; and the rights
of Englishmen were ill defined and ill protected under reign remarkable for no
great or noble objects. Dr. Robertson has observed, that the company, like all
unprosperous societies, fell unpitied; 22
and the nation were content to forget the prostration of private rights, under
the false encouragements held out of aid to the colony from the benignant
efforts and future counsels of the crown.
§ 48. With the fall of the charter the
colony came under the immediate government and control of the crown itself; and
the king issued a special commission appointing a governor and twelve
counselors, to whom the entire direction of its affairs was committed.
23 In this commission no representative
assembly was mentioned; and there is little reason to suppose that James, who,
besides his arbitrary notions of government, imputed the recent disasters to the
existence of such an assembly, ever intended to revive it. While he was yet
mediating upon a plan or code of government, his death put an end to his
projects, which were better calculated to nourish his own pride and conceit,
than to subserve the permanent interests of the province. 24
Henceforth, however, Virginia continued to be a royal province until the period
of the American Revolution. 25
§ 49. Charles the First adopted the notions
and followed out in its full extent the colonial system of his father.
26 He declared the colony to be apart of
the empire annexed to the crown, and immediately subordinate to its
jurisdiction. During the greater part of his reign, Virginia knew no other law,
than the will of the sovereign, or his delegated agents; and statutes were
passed and taxes imposed without the slightest effort to convene a colonial
assembly. It was not until the murmurs and complaints, which such a course of
conduct was calculated to produce, had betrayed the inhabitants into acts of
open resistance to the governor, and to their discontents; but pressed, as he
was, by severe embarrassments at home, he was content to adopt a policy, which
would conciliate the colony and remove some of its just complaints. He
accordingly soon afterwards appointed Sir William Berkeley governor, with powers
and instructions, which breathed a far more benign spirit. He was authorized to
proclaim, that in all its concerns, civil as well as ecclesiastical, the colony
should be governed according to the laws of England. He was directed to issue
writs for electing representatives of the people, who with the governor and
council should form a general assembly clothed with supreme legislative
authority; and to establish courts of justice, whose proceedings should be
guided by the forms of the parent country. The rights of Englishmen were thus in
a great measure secured to the colonists; and under the government of this
excellent magistrate, with some short intervals of interruption, the colony
nourished with a vigorous growth for almost forty years. 27
The revolution of 1688 found it, if not in the practical possession of liberty,
at least with forms of government well calculated silently to cherish its
§ 50. The laws of Virginia, during its
colonial state, do not exhibit as many marked deviations, in the general
structure of its institutions and civil polity, from those of the parent
country, as those in the northern colonies. The common law was recognized as the
general basis of its jurisprudence; and the legislature, with some appearance of
boast, stated, soon after the restoration of Charles the Second, that they had "endeavoured,
in all things, as near as the capacity and constitution of this county would
admit, to adhere to those excellent and often refined laws of England, to which
we profess and acknowledge all due obedience and reverence."
28 The prevalence of the common law was
also expressly provided for in all the charters successively granted, as well as
by the royal declaration, when the colony was annexed as a dependency to the
crown. Indeed, there is no reason to suppose, that the common law was not in its
leading features vary acceptable to the colonists; and in its general policy the
colony closely followed in the steps of the mother country. Among the earliest
acts of the legislature we find the Church of England established as the only
true church; and its doctrines and discipline were strictly enforced. All
nonconformists were at first compelled to leave the colony; and a spirit of
persecution was exemplified not far behind the rigor of the most zealous of the
Puritans. The clergy of the established church were amply provided for by glebes
and tithes, and other aids. Non-residence was prohibited, and due performance of
parochial duties peremptorily required. The laws, indeed, respecting the church,
made a very prominent figure during the first fifty years of the colonial
legislation. The first law allowing toleration to protestant dissenters was in
the year 1699, and merely adopts that of the statute of the 1st of William and
Mary. Subject to this, the church of England seems to have maintained as
exclusive supremacy down to the period of the American Revolution. Marriages,
except in special cases, were required to be celebrated in the parish church,
and according to the rubric in the common prayer book. The law of inheritance of
the parent country was silently maintained down to the period of the American
Revolution; and the distribution of intestate estates was closely fashioned upon
the same general model. Devises also were regulated by the law of England;
29 and no colonial statute appears to
have been made on that subject until 1748 when one was enacted, which contains a
few deviations from it, probably arising from local circumstances.
30 One of the most remarkable facts in
the juridical history of the colony is the steady attachment of the colony to
entails. By an act passed in 1705 was provided, that estates tail should no
longer be docked by fines or recoveries, but only by an act of the legislature
in each particular case. And though this was afterwards modified, so as to allow
entails to be destroyed in another manner, where the estate did not exceed £200
sterling in value, 31 yet the general
policy continued down to the American Revolution. In this respect the zeal of
the colony to secure entails and perpetuate inheritances in the same family
outstripped that of the parent country.
§ 51. At a very early period the
acknowledgment and registry of deeds and mortgages of real estate were provided
for; and the non-registry was deemed a badge of fraud. 32
The trial by jury although privilege resulting from their general rights, was
guarded by special legislation. There was also an early declaration, that no
taxes could be levied by the Governor without the consent of the General
Assembly; and when raised, they were to be applied according to the appointment
of the Legislature. The burgesses also during their attendance upon the assembly
were free from arrest. In respect to domestic trade, a general freedom was
guarantied to all the inhabitants to buy and sell to the greatest advantage, and
all engrossing was prohibited. 33 The
culture of tobacco seems to have been a constant object of solicitude; and it
was encouraged by a long succession of Acts sufficiently evincing the public
feeling, and the vast importance of it to the prosperity of the colony.
34 We learn from Sir William Berkeley's
answers to the Lords Commissioners in 1671, that the population of the colony
was at that time about 40,000; that the restrictions of the navigation act,
cutting off all trade with foreign countries, were very injurious to them, as
they were obedient to the laws. And "this (says he) is the cause, why no
small or great vessels are built here; for we are most obedient to all laws,
whilst the New-England men break through, and men trade to any place, that their
interest leads them." This language is sufficiently significant of the
restlessness of New-England under these restraints upon its commerce. But his
answer to the question respecting religious and other instruction in the colony
would in our times create universal astonishment, — "I thank God (says
he) there are no free schools nor printing; and I hope we shall not have these
hundred years; for learning has brought disobedience and heresy and sects into
the world; and printing has divulged them, and libels against the best
government. God keep us from both." 35
In 1680 a remarkable change was made in the colonial jurisprudence, by taking
all judicial power from the assembly, and allowing an appeal from the judgments
of the General Court to the King in Council. 36
1. Robertson's America, B. 9;
Doug. Summ. 110, &c.
2. 1 Haz. Coll. 24.
3. Marshall's Colon. 15, 16;
Robertson's America, B. 9.
4. 1 Haz. Coll. 33; Robertson's
America, B. 9.
5. 1 Haz. Coll. 38-40; 2 Doug.
6. Marsh. Colon. 17; Robertson's
America, B. 9.
7. Robertson's America. B. 9.
8. Marsh. Colon. 25; 1 Haz. Coll.
50; Robertson's America, B. 9.
9. 1 Haz. Coll. 99; Robertson's
America, B. 9.
10. Robertson's America, B. 9.
11. 1 Haz. Coll. 50.
12. 1 Haz. Coll. 50; Marsh. Colon.
25, 26; Robertson's Amer. B. 9.
13. 1 Haz. Coll. 50; Marsh. Colon.
14. Marsh. Colon. 27, 28.
15. 1 Haz. Coll. 58, 72; Marsh.
Colon. 44, 45, 47; Robertson's America, B. 9.
16. I quote the very words of Dr.
Robertson throughout this passage for its spirit and general truth. Robert. Hist.
of America, B. 9.
17. Robertson's America, B. 9.
Marsh. Colon. ch. 2, p. 54.
18. 1 Henning, Stat. III;
Smith's Virg. App. No. 4, p. 32; 1 Chalm. Annals, 54.
19. Roberton's America, B. 9;
Marsh. Colon. ch. 2, p. 56; 1 Haz. Coll. 131.
20. In 1623. See 1 Haz. Coll.
21. Robertson's America, B. 9; 1
Haz. Coll. 183; Marsh. Colon. ch. 2 p. 60, 62; Chalmers's Annals.
22. Robertson's America, B. 9.
23. I Haz. Coll. 189.
24. Marsh. Colon. ch. 2, p. 63,
64; 1 Haz. Coll. 189.
25. 1 Haz. Coll. 220, 225.
26. It seems that a charter was
subsequently granted by Charles the Second on the 10th of October, 1676, but it
contained little more than an acknowledgment of the colony as an immediate
dependency of the crown. 2 Henning, Stat. 531, 532.
27. Robertson's America, B. 9.;
Marsh. Amer. Col. ch. 2, p. 65, 66, note. I have not thought it
necessary to advert particularly to the state of things during the disturbed
period of the commonwealth. Henning, Virg.
Stat. Introduction, p. 13, 14.
28. 2 Henning, Stat. 43. Sir
William Bardley, in his answer to the questions of the Lords commissioners in
1671. "Contrary to the laws of England we never did, nor dare to make any
[law] only this, that no sale of land is good and legal, unless within three
months after the conveyance it be recorded."
29. I refer upon these subjects to
Henning, Stat. 122, 123, 144, 149, 155, 180, 240, 268, 277, 434, 2 Hen.
Stat. 48, 50; 3 Hen. Stat. 150, 170, 360, 441.
30. 5 Henning, Stat. 456.
31. 3 Henning, Stat. 320, 516; 4
Henning, Stat. 400; 5 Henning, Stat. 414; 1 Tuck. Black.
32. 1 Henning. Stat. 248; 2
Henning, Stat. 98; 3 Henning. Stat. 321.
33. 1 Henning, Stat. 290.
34. See 1 Hen. Stat. 126, and
Index, tit. Tobacco, in that and the subsequent volumes; 2 Henning, Stat.
35. 2 Hen. Stat. 511, 512, 514,
517; 1 Chalm. Annals, 328; 3 Hutch.
36. Marsh. Colon. ch. 5, p. 163;
1 Chalm. Annals, 325.
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