CH. II.] ORIGIN AND SETTLEMENT OF VIRGINIA. 21
CHAPTER II.
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 and governed.
§ 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.l 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 hi s 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
___________________________________
1. Robertson's Americn, B.9; Doug. Summ. 110,
&c.
2. 1 Haz. Coll. 24.
3. Marshall's Colon. 15,16; Robertson's America, B.9.
22 HISTORY OF THE COLONIES. [BOOK I.
followed up the original plan under a new patent from the crown.1 To him we are indebted for the first plantations in the South;2 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.3 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.4
§ 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 England5 (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.6
The second assumed the name of the Plymouth
___________________________________
1. 1 Haz. Coll. 33; Robertson's America, B.9.
2. 1 Haz. Coll. 38-40; 2 Doug. Summ. 338.
3. Marsh. Colon. 17; Robertson's Americn, B.9.
4. Robertson's America.B.9.
5. Marsh. Colon. 25; 1 Haz. Coll. 50; Robertson's America, B.9.
6. I Haz. Coll. 99; Robertson's America, B.9.
CH. II.] ORIGIN AND SETTLEMENT OF VIRGINIA. 23
Company, from the residence of the original grantees; and New-England was founded under their auspices.1 Each colony had exclusive propriety in all the territory within fifty miles from the first seat of their plantation.2
§ 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.3
§ 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 in-
___________________________________
1. Robertson's America, B.9.
2. 1 Haz. Coll. 50.
3. 1 Haz. Coll. 50; Marsh. Colon. 25, 26; Robertson's Amer. B.9.
24 HISTORY OF THE COLONIES. [BOOK I.
truders, 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.1
§ 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.2 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 1612,3 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
___________________________________
1. 1 Haz. Coll. 50; Marsh. Colon.26.
2. Marsh. Colon. 27, 28.
3. I Haz.Coll. 58,72; Marsh. Colon. 44,45,47; Robertson's
America, B.9.
CH. II.] ORIGIN AND SETTLEMENT OF VIRGINIA 25
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.1
§ 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 func-
___________________________________
1. I quote the very words of Dr. Robertson
throughout this passage for its spirit and general truth. Robert.
Hist. of America, B.9.
26 HISTORY OF THE COLONIES. [BOOK I.
tions of legislation.1 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 countrywas 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.2 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.3
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 ___________________________________
1. Robertson's America, B.9. Marsh. Colon. Ch.
2, p. 54.
2. 1 Henning, Stat.III; Smith's Virg App. No.4,p. 32; I Chalm.
Annals, 54.
3. Roberton's America, B.9; Marsh. Colon. ch. 2, p. 56; I Haz.
Coll. 131.
CH. II.] ORIGIN AND SETTLEMENT OF VIRGINIA. 27
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.1 The demand was resisted by the company; a quo warrato 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.2
§ 47. It does not appear that these proceedings, although they ha e 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;3 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
___________________________________
1. In 1623. See 1 Haz. Coll. 155.
2. Robertson's America, B.9; 1 Haz. Coll. 183; Marsh. Colon. ch.
2 P.60,62; Chalmers's Annals.
3. Robertson's America,B.9.
28 HISTORY OF THE COLONY. [BOOK I.
appointing a governor and twelve counselors, to whom the entire direction of its affairs was committed.1 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.2 Henceforth, however, Virginia continued to be a royal province until the period of the American Revolution.3
§ 49. Charles the First adopted the notions and
followed out in its full extent the colonial system of his
father.4 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 into a firm demand of
redress from the crown against his oppression, that the king was
brought to more considerate measures. He did not at once yield
___________________________________
1. I Haz. Coll. 189.
2. Marsh. Colon. ch. 2, p.63,64; I Haz. Coll. 189.
3. I Haz. Coll. 220,225.
4. 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.
CH. II.] LAW'S OF VIRGINIA. 29
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.1 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 spirit.
§ 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 "
endeav-
___________________________________
1. 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.
30 HISTORY OF THE COLONIES [BOOK I.
oured, 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."1
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 su-
___________________________________
1. 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."
CH. II.] LAWS OF VIRGINIA 31
premacy 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;1 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.2 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 L200 sterling in value,3 yet the general policy continued down to the American Revolution. In this respect the zeal of the colony to secure entials 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.4 The
trial by jury although privi-
___________________________________
1. 1 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.
2. 5 Henning, Stat. 456.
3. 3 Henning, Stat. 320, 516; 4 Henning, Stat. 400; 5 Henning,
Stat. 414; 1 Tuck. Black. Comm. App.
4. 1 Henning. Stat. 248; 2 Henning, Stat. 98; 3 Henning. Stat.
321.
32. HISTORY OF THE COLONIES. [BOOK l.
lege 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.1 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.2 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
___________________________________
1. 1 Henning, Stat. 290.
2. See I Hen. Stat. 126, and Index, tit. Tobacco, in that and the
subsequent volumes; 2 Henning, Stat. 514.
CH II.] LAWS OF VIRGINIA. 33
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."1
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.2 ___________________________________
1. 2 Hen. Stat. 511, 512, 514, 517; 1 Chalm.
Annals, 328; 3 Hutch. Collect. 496.
2. Marsh. Colon. ch. 5, p. 163; 1 Chalm. Annals, 325.