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PUBLISHED MONTHLY AT FIVE DOLLARS PER ANNUM-JNO.
R. THOMPSON, EDITOR AND PROPRIETOR.
RICHMOND, APRIL, 1848.
nient to both, and not unjust to either. Virginia VIRGINIA;
was willing to yield something of her just rights,
if, by doing so, harmony could be secured and the HER ANCIENT TITLE TO THE NORTH-WESTERN TER- intercourse of the two States fixed upon a stable BITOBF, AND HER RIGHTS UPON THE OHIO RIVER,
and friendly basis. This was her earnest desire. This failed of accomplishment. The two States remain upon their original and conventional rights,
as settled by their histories, their constitutions and BY GEO. W. THOMPSON.
the just interpretation of the various laws touching
the very delicate questions involved. Some difficulty having originated on the co-ter- These States, if harmony was the true object, misous borders of Virginia and Ohio, involving and we are to believe they were sincere, in seekquestions of boondary and jurisdiction between these ing the settlement of these questions, are more States, the State of Ohio proposed a commission fully committed to that comity and kind feeling for the settlement of these questions. Whatever which should regulate the intercourse of neighdoubts can possibly exist on these subjects, arise bouring Commonwealths, having a common destiny out of the character and construction of the deed of good or evil, though differing somewhat in their of cession from Virginia, in 1784, of the territo-internal systems. But it is not to be expected, ry * North-West of the river Ohio" to the Confed. that in an immense population with diversified ineration, and of the seventh clause of the fifth sec- terests and somewhat differing sentiments, that tion of the act of 181h of December, 1789, enti- collisions, between individuals in their transactions tled, “ An Act concerning the erection of the Dis- of business and impulsions to conduct, will not trict of Kentucky into an independent State." take place, involving all the questions submitted The popular opinion of Virginia, traditionally de- for adjustment. It is therefore just and expedient rived from the cotemporaneous construction of to enter into a full, and so far as practicable, perthese grants and reservations, had always pointed spicuous examination and settlement of the histoto but one conclusion on this subject, namely, that ry of the title of Virginia and a statement of the the Ohio river was and remained the absolute pro- conventional and national rights retained by her, perty of Virginia, drawing with it all the rights of and with a view fully to understand what rights, dorninion and jurisdiction, saving to the citizens of easements or jurisdictions have been surrendered tae United States such easements and jurisdiction by her, heretofore, to other States or citizens, genonly, of the same, as are necessary to the “ free erally, of the United States. and common use and navigation" of this river. This tone of public sentiment in Virginia general
HISTORICAL REVIEW. ly, has never changed, while on the immediate
On the 23rd of May, 1609, James I., as king border of the Ohio it is believed to have increased of England, granted by letters patent an extension in intensity. Some doubts and discussion, occa- of what may be called the corporation of Virginia. sioned by recent transactions, have, it is true, been the limits and jurisdiction of this corporate body started as to the exact line of boundary and the included “ all those lands, countries and territories character of the anomalous jurisdiction, claimed situate, lying and being in that part of America, as against Virginia. But notwithstanding the uni- called Virginia, from the point of land called Cape versality and conclusiveness of this opinion on the or Point Comfort, all along the sea coast, to the part of Virginia, expressed in her legislative dec-northward, two hundred miles and from the said laration, the Commonwealth, in a spirit of frank- point of Cape Comfort all along the sea coast, to ness and concession, concurred in the request of the southward, two hundred miles, and all that Ohio to submit the matters referred to, to a joint space and circuit of land throughout, from sea to commission for settlement upon principles conve- sea, west and north-west." This was the descrip
tion of the territorial limits. A form of govern* This commission was composed of Messrs. Wm. C. Rives, Wm. Green and Geo. W. Thompson, on the part of ment was ordained ; the executive and legislative Virginia, and Messrs. Thomas Ewing, John Brough and authority was prescribed ; crimes were to be ponJames Collier on the part of Ohio. These gentlemen met ished ; contracts enforced ; census to be taken and in the City of Washington, in the early part of January, the entire organism of a colonial government was 1848, but could not agree upon terms of adjustment, and finally adjourned on the 26th of the month.-[Ed. Mess. 11 Hen, 88.
defined." Its boundaries and its jurisdiction were delegated authority of the crown upon the conti. prescribed. The corporation had a legal existence; nent, it was, in virtue of that relation, the occupant its jurisdiction was commensurate with the limits under the crown to the extent of the crown claim. of its grant. Whatever right belonged to, or was The extent of that claim and the title of England asserted by the crow
own of England, vested in the will appear as we progress. corporation ; soil and sovereignty both passed. At Carolina on the South, Maryland and Pennsylthe Trinity Term of the Court of King's Bench, vania on the North, limited the territory of Vir1624, the corporation was dissolved by the judg- ginia. New York had no existence and no jurisment of that court. The legal existence of the diction could vest in her : she was conquered from corporation, as a monopoly, then ceased, and at the Holland in 1663. Then Virginia was not limited same moment the political existence of the Colo- farther than as above siated by any crown grants ny of Virginia commenced and continued uninter- of its adjacent territory, and before the establishruptedly to its independence. The corporation ment of New York as a distinct and separate was dissolved, but this made no change in the poli- crown colony, the grant to Pennsylvania, bounded tical condition of the people. All the elements of on Lake Erie, excluded her from the west and that government which had been granted to the corpo-colony was interposed between New York and the ration or developed by it, in the execution of pow. valley of the Mississippi. When, subsequently, ers necessary under the condition of things, were New York was created a proprietary colony and continued to the colony. From 1630 to 1642, a her bounds came to be definitely understood, they period of twelve years, there remain the partial were defined by the English historian with apparecords of sixteen legislative assemblies, and sub- rent accuracy. “ From forty-one degrees forty sequent to the judgment of dissolution these as minutes on Delaware river, New York runs twensemblies had been convened and were in corres- ty miles higher on Delaware river to the parallel pondence with the throne and their continuance is of forty-one degrees latitude, which by Pennsylvathe evidence of their recognition. The Colony of nia royal grant, divides New York from the prov. Virginia was in existence : it had merely passed ince of Pennsylvania. Upon this parallel, New from the condition of a proprietary, to that of a York is supposed to extend west to lake Erie : provincial or crown colony. The corporation of and from thence along Lake Erie and along the Virginia was, by the act of the crown, transmuted communicating great run of water from Lake Erie into the colony of Virginia, and by the act of to Lake Ontario,'* &c. This description of the transmutation, the limits of territory and jurisdic-bounds of New York is strengthened by “A new tion were not altered. The colony succeeded to and accurate map of the British dominions in Amerthe authority, territory and jurisdiction of the cor-ica according to the treaty of 1763, divided into poration. It became a crown colony, subject only the several provinces and jurisdictions projected to express limitations by the crown, of its territory upon the best authorities and astronomical observaand jurisdiction. And to the extent of such ex- tions." New York has her South West corner press restrictions was it limited and Virginia, as a resting upon Lake Erie and Pennsylvania interpocolony and as a State, has recognized all such sed between her and the west. But yet New known grants in the charters of Carolina, Mary-York is not in existence. Then, that Virginia was land and Pennsylvania.
not limited farther than as above stated, must be reThe claim of the crown embraced all the paral- peated. She had then a political existence. What Jels of latitude through to the South or Pacific sea. were its powers ? It represented the sovereignty This claim could only be maintained under the law of England ; sold land ; and extinguished Indian of nations by possession of some kind. The Colo- title; in October, 1629, the Grand Assembly passny of Virginia was now the only political organi- ed an “ Appropriation and Revenue law.” This zation on the continent, in virtue of which Great Grand Assembly was never suppressed and the coloBritain could claim any possession of the country. ny continued to exercise jurisdiction over all persons Virginia represented the crown upon the conti- and property within her limits. In 1652, upon nent; her political possession extending to the pos- the capitulation with the commonwealth, it was session and claim of the crown, except in the sub- stipulated that the "People of Virginia” should sequent cases of expressed grant and limitation by have all the liberties of the freeborn people of Eng. the crown to other colonies or proprietaries. As the land. At the termination of the Interregnum of
English history, in 1660, Sir William Berkeley Instructions to Gov. Wyatt, 1621. 1 Hen. 114, et seq. 6 Wynne's Br. Emp. in America, vol. 1, p. 171. London, 3 1 Banc. 199, n.
1770. Smith's Hist. of N. Y., p. 14. + 1 Hen. 134. And expressly recognized by the procla- ? Map to Knox's War in America, vol I. London, 1769. mation of George III., who guaranteed to the subjects of See also Map in Russ. Hist. of America. London, 1778. the new colonies, acquired by the treaty of 1763, the same vol. 2, p. 172 and title-page. institutions as existed in the other colonies. 7 Hen. 663. 8 1 Hen. 142. • Vattel, b. 1, c. 18, sec. 207.
• 1 Banc. 223.
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 enacied 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,"o and which Assembly ex- colony was coexistent with the British Empire in ereised 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 an- pansion. But the lease of Charles II. to Arlingauthority of the colony confined to the original ion 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 10 1680, revocation of the charter, or did its jurisdiction leased “ all that entire iracı territory region and expand with the population? 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 occupancy 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 appartenenthority over the expanding population and receding cies thereof, situate lying and being in America, adfrontiers limited ?
joining to the colony and dominion of Maryland 10The 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 Citie in west by a line leading from the first spring of the great Virginia," and 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 other. regularly 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 lothe 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 say, there was no suspension of legislative func- and being beyond the uttermost adjacient limitts of tion, but that in 1666 the Burgesses assert, in reply Carolina aforesaid and the westerne limilts 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,"11 and in most westerne limitts of Maryland, or any of thein 1670, define who shall have the right of suffrage." betweene about thirty-six degrees and one halfe and In 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."4 This lease gave the lessee noe for the better support of this, his majesties full power lycence and authority" “ to divide and colony." These are acts of quasi sovereign au- subdivide the said regions, tracis, territories and thority exercised within and over the territory of dominions into counties hundreds and parishes."16 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 tue of which only coold Great Britain claim the Governor of the colony,16 and at the same time unseated lands appartenant to this her colony. the council of the colony were inducted into uffice,
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 includes, or what acts of the colony or of the granted unto bis 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."?? The same “jurisTed 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 seulement 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. 19 1 Hen. 530-1.
14 2 Hen., 570.
16 2 Banc., 246. 13 2 Hen., 220, 255, 307, 433, 464.
17 i Hen., 116. 2 Id. 568.
11 2 Hen. 254.
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 to, ljon of this grant; it conveyed a leasehold ; it did and were executed by, the colony. not limnit 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 men. Culpeper, 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 Acconiack is mentioned, then, as no equivocal terms, “ that the power of granting now, known as part of Virginia ; its lands seated the lands within the colony may reside in the Govand 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 diwest 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 bumFrom 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 appartenance, 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 offi- such plantation being but in nature an extension cers, was sustaining the “jurisdictions, prehemi- or dilalation of the realm of England," "and to nences and authority” of the crown. The authori-confirm the legislative power in the Grand Assemty of the proprietary colonies did not extend be- bly.' 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 written 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-lover 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 juxtaposition with this domain, was that space and circuit of land throughout from sea 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 the 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. 18 Story Con., b. 1, c. 14.
22 2 Hen., 511, 523, 524, 525, 527. 2 Burk's App., L. 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 but by the gioia) bands of friendly Indians. "26 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 publie, county or parish levies, was granted to loyalty and allegiance, so propitious for this whole every 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 given on certain conditions to the discoverers of who being united with the Tuscaroras, became any town or nation of Indians "to 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 lo 1710 and in 1711 Governor Spotswood issued right to all lands that are or shall be by his majeshis proelamation “restraining seating on outlands ty's appointment in the colony of Virginia.2 To doring ihis 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.25 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 be- and claims of the Six Nations offer them a quangin to attract attention. And if 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 up 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 tarb 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 setlled 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 gally " 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.” 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. 301 to 333 for land law. 201, 468.
28 3 Banc., 355, 356.
4 Hen., 446, 563.