« AnteriorContinuar »
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 bad 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."" 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." Consult also the map in belligerent claims? It was Virginia that built the Russel's History of America, London, 1778, and forts; 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 seulement" on the Monongahela, to 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 settlement 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 to question the validity of the English litle, deduWashington, kept by him in his remarkable jour- ced from the discovery of the Cabots and confirmney undertaken to the north west, 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 occapancy. “For a fort at the fork, (now Pittsburg,) would be Pussession and title vested in the " equally 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 crowaruns 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.3 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 Peanginia 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 aburtal.38 After the
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. An'd, 362. London, 1744.
37 Col. Bouquet's Relation Hist. contre les Indiens, 1764, 32 Knox's War in America, London, 1769.
p. 58, map. Mar. Wash., c. 11, p. 377. 7 Hen., 66).
38 Delaware and Shawanes Indians, map. Map to Russ. 33 1 Pitk. U.S. 140.
Hist. America. Kitchen's Map. I Knox war in Ameri34 2 Mar. Wash., App.. p. 2.
ca. Wynne's Br. Emp. in America, 1 vol., 171. Grant of 35 Dill. Hist. Indiana, 67.
C. II. to Duke of York. Smith's Hist, of N. Y., 14.
English traifor the crown to constract a colonial organization treaty of Paris, the Grand Assembly of Virginia for the immense region maintained and acquired by continued ils ordinary jurisdiction over the west. that treaty. This was done by the royal procla-Creating counties, granting lands. 49 protecting setmation of 1763 and the colonies of Quebec, easttlers, 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. 45 Ocfor the possession of this country that war was in- zober 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 as 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 tile gave 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 supervinot 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. The crown in 1609, when the original charter 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 new 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 functions 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, acfrora 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.41 specially committed the preservation of all their The commencement of the war found Virginia ex- English privileges. It is false, then, to say that ereising 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 39 7 Hen., 663. 1 Pitk, 150.
42 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. 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.. I sess., 28 Con., No. 157, p. 20.
principle, that revocation of the charter could not ment in the direction west and northwest. That annul vested rights, but what is of conclusive adjustment could not have been upon the boundary weight on this subject, she has the entire benefit of of Pennsylvania ; that was limited to the five de. the fact. She was the crown colony exercising grees of longitude. It could not have been the the political authority contained in her charter, with line of New York proper, for that had the norththe knowledge of the crown, over the territory de- ern line of Pennsylvania and its southwestern corner scribed in that instrument. She was the colony de rested on Lake Erie. It could not have been in facto of all this territory from 1624, limited as de virtue of the treaty of Fort Stanwix in 1768 for scribed. She was the colony de jure, by the as- that was a conveyance to the crown and not to Nex sent of the crown, to her unintermitted claim and York. It only extended to the south side of the virtual possession through one hundred and fifty Ohio. What title covered the northwest of that years.
river? July, 1775. The history of colonial dependence What then is the title of Virginia ? The disis past; the committee of public safety is appoint-covery of the Cabots; the charter of 1609 ; the ed; the military force is organized ; the oath is partial description as contained in the leasehold of taken “in defense of the just rights of America Culpeper ; the acknowledgment by France in the against all enemies whatsoever," subject only to treaty of Utrecht; the grant of the Six Nations the “general convention or General Assembly of at Lancaster; the confirmation thereof at LoggsVirginia," and this is in July, 1775, styled in the town; the treaty of 1763 ; the constant legisla. records of Virginia the " Interregnum."45 A con- tion of the colony; the actual granting and sealing vention is called to meet on the first Monday of of lands to 1775, the era of Virginia independence ; May, and on the 29th of June, 1776, it was sol- the military possession of the country by the coloemnly declared by that convention, that "the gov- ny in 1774; the assertion of boundaries in the Conernment of this country as formerly exercised under stitution of June, 1776 ; the military and political the crown of Great Britain is totally dissolved.” possession of it by Virginia in pursuance of her A new government was by the same act organized unintermitted claim to the close of the war of the and its boundaries defined and the authority of the revolution; and lastly the treaty of 1783 which independent State of Virginia succeeded by her confirmed the colonies in their ancient boundaries. own sovereign act to all the rights of the colony, But the authority of international law has been whether de facto or de jure, as against the crown. invoked in the controversy. 46 The law is good as Virginia was independent with a constitutional a moral regulation and as a rule of construction. boundary embracing all territory contained in her The practice and the policy of nations have estabcharter, east of the Mississippi, and excepting lished a different doctrine, that doctrine by which the Carolina, Maryland and Pennsylvania. She was United States held and holds Oregon without actual in possession of the territory by her settlers, her occupation; by which Russia held Siberia and holds arms and her laws. She had thrown off the al- N. Western America, and Mexico the unsettled Callegiance of England and in throwing that off her afornias; by which England holds Australia and the Convention defined the soil which she claimed unexplored portions of Canada. There is not a comagainst the crown and against the world. The de- mercial country, and scarcely any other of any exclaration of independence by the colonies was made tent and enterprise, which does not hold territory more than a year after the actual independence of under the same title and tenure. The rule of the Virginia. Her title by Revolution dates back to common-law, which is in accordance with the practhe time when she commenced the exercise of her tice of nations, is consistent with this usage. sovereign powers. Virginia in her new Siate ca
Where a nation has a definite claim by parallels of pacity took military possession of the northwest- latitude or natural boundaries, and takes possession ern country and erected it into the county of Illi- of a part, with such public acts and avowals as to nois : she kept military possession of it and the announce a clear intent to maintain the right to the peace of 1783 found her the sole occupant of its whole and has the capacity to appropriate and the wide domain. Did that Peace acknowledge the ability to defend the same, the right follows the independence of a nation, or the freedom of con
possession. Nor are nations, any more than iodifederated States ? The former has never been viduals, confined to immediate and pressing wants. pretended and it is a fallacy to suppose for a mo
The wants of posterity cannot be limited by any ment, that in fixing the boundaries of colonies, in practical rule, and hence the claim, the conflict and concluding the terms of that peace, that the limits the success has been, perhaps yet is, the law of of Virginia, as defined by her charter and the title over newly discovered countries. But the autreaty of 1763, as described by English historians,
thorities cited are more conclusive against French, laid down by English geographers and as fixed by than English title. England claimed by right of her constitution, were not the elements of adjust-discovery; this right was recognized by our high
45 9 Hen. 13, 36, 49, 96, 101.
46 Vat. B. 1, c. 18. sec. 203 201 205 206 and n. 10:207.
est judicial tribunal as applying to this very terri- tic ocean, it can by no rule of construction militate tory (Johnson v. McIntosh):47 the colonies were against the present claims of the United States. founded on that right; their existence springs up That proclamation, as is clear both from the title out of it; they had no domain, except on the sea- and tenor of it, was intended merely to prevent shore, but by virtue of the recognition of this right; disputes with the Indians and an irregular approeach sustained the right of the other; they were priation of vacant land to individuals; and by no coterminous proprietors under the same authority means either to renounce any parts of the cessions to grant and, they, at best, cannot except to the made in the treaty of Paris, or to affect the bountitle. But discovery gives an inchoate right;48 how daries established by the ancient charters.” 49 far that right is made perfect in the longitude In chronological order we now arrive at the of an extensive country by actual occupancy of all claim of New York under the treaty of Fort Stanthe degrees of coast, which would embrace the wix. It might be sufficient for Virginia to rest country in dispute by parallels extended from the upon the treaties of Lancaster, 1744, and Loggsextreme points of latitude 80 possessed, back, it town, 1752, lo show that whatever title the six nais needless to enquire under the circumstances of tions had was conveyed to her in her colonial cathis case. England had the right which discovery pacity. It is, however, only necessary to enquire gises and such possession gave. In the execution into the character of the agent of the crown and of that right, always insisted upon by her, always the instrument executed to see what title New vindicated by the colony representing her author- York took by this treaty. Sir William Johnson ity; at all times recognized by the other colonies, was general agent and superintendant of Indian (as Pennsylvania when she advised the building of affairs; the deed conveys “ unto our sovereign lord, a fort on Lake Erie,) England resisted the actual King George III., all that tract of land situate in possession of the country by France. Neither in North America, &c. Is this a conveyance to fact nor in virtue of the abstract law, nor in the New York? Is this a transference or creation of praetice of nations, had France acquired the emi- jurisdiction? Does this extinguishment of Indian nent domain. The inchoate right of England was title and investiture of the same in the crown consuch as she could have granted; it was such as tract Virginia to the top of the mountains and exshe could hold onder the usage of nations, until her tend New York beyond the intervening State of necessities required a more immediate use of the Pennsylvania from the mouth of the Cherokee soil. It was such as she could have created into a (Tennessee) along the south side of the Ohio to separate jurisdiction, or which, by the very force of Fort Pilt ? There are no facts to justify such conall analagous principles, as well as by legislative clusion, and imagination is feculant when it sup"dilatation,” would fall in as apportenant to the plies such necessary and important data. The comprehensive jurisdiction already established by most elaborate investigation by the ablest counsel, and through her. And the proclamation of 1763, in the great case of Johnson v. McIntosh, sustained settliog the new order of things on this continent, the title, by discovery and the right by colonization so found, and so left it.
and rejected all claim acquired merely by purchase The royal proclamation of 1763 inhibiting the of the Indian title. The title through Virginia grant of western lands, is relied upon by the oppo- was maintained by this judicial decision. But still nents of Virginia as confining Virginia to the more conclusive is the fact that the fort Stanwix deed heights of the Alleganies. It has already been does not convey any portion of the territory northshown that the military bounty lands of 1756 were west of the Ohio. The boundary is from “the granted by royal proclamation, from Wheeling mouth of Cherokee river along the south side of creek to the Kanawha. This writer knows land the Ohio to Fort Pile" and thence east-relinquishin the county of Ohio held under military warrant ing Indian title of Western Virginia (if any exof George III. in 1774. These inhibitions were isteds) not to New York, but directly to the crown : mere matters of internal police, and the references George III., by his proclamation granting military made in this article will show that they were adop- bounties to the officers and soldiers of Virginia for ted at various periods by the colony herself. But their services and gallantry in the war of 1756, rethe argument is an old refuted Spanish pretension, cognized this as Virginia. The title of Virginia now onworthy the use of any one who has any was again confirmed by the treaty of Fort Stanwix respect for the wisdom and the history of the past. a second time and by the proclamation of the king It was met by Congress in 1780“ in answer to the by which the soldiers and officers of Virginia were extraordinary claim of the Spanish Court" and made the free possessors and defenders of the soil. promptly refated. “As to the proclamation of the Extinguishment of Indian title no more affected King of Great Britain of 1763 forbidding his gov- the rights and jurisdiction of the colonies, than the erpors in North America to grant lands westward thousand treaties with the Indians since affect the of the sources of the rivers falling into the Atlan. boundaries of States or destroy their jurisdictions7 Wbeat, 543.
49 2 Pitk. 514. 4 Vat. B. I, c. 18, sec. 207.
10 Treaties of Lancaster and Loggstown.
the very reverse of which is truth. This is in-| Virginia title. At the Treaty of Peace, England deed making "assurance doubly sure." Jew, I thank did not claim it as a fixed boundary, or if she did, thee.
it was not allowed her and there was no argument This view is strengthened by the act of the to resist her claim except what arose out of the British parliament of the 22nd June, 1774, and the title of Virginia. And it is remarkable, that the circumstances preceding, accompanying and suc- Fort Stanwix deed, if it availed to any purpose, ceeding that act.51 The colonies were at the time would have availed to maintain the English tide in a state of actual revolt; Dunmore was Governor under that deed made to George III. of Virginia and England had already commenced This sufficiently disposes of the pretensed title her war policy. This very act of parliament was of New York. The title of Connecticut is more pressed by the ministry as a leading measure for readily settled by the proviso in her charter prethe suppression of the spirit and power of the colo- cluding any encroachment on the southern or Virnies. It was the supreme act of the parliament, ginia colony, or upon lands then in the possession indicating the lead to further encroachments of the of any other christian nation lying west of the rights of the colonies. The Indian war which Plymouth colony, 1661; New York charter 1664; brought on the battle of Point Pleasant in the fall Pennsylvania 1671, and their conflict was settled by of that year was believed to have been provoked the boundary, run by royal commissioners in 1684, by Dunmore with a design to favor England and and which was assented to by all parties.52 Peanhostile to Virginia. He was suspected of treachery sylvania was limited by her five degrees of longiat the battle and he did not wipe away the imputa- tude. New York, still beyond, had no title except tion by his subsequent conduct. He fomented to her grant bounded by the northern line of Pennboundary difficulties between Virginia and Penn- sylvania; beyond this again was Connecticut with sylvania. An instrument of disorganization be- her royal and agreed boundary; and beyond this tween the States and a promoter of savage hos- Massachusetts, limited alike by the colonial policy tility on the frontiers, he but executed the purposes of the day and the inferential exclusion of Virginia's of the act of parliament in separating the North-original charter and the grants to Connecticut, western Territory from Virginia and attaching it New York and Pennsylvania. Thus is palsied the to Quebec, then the only loyal colony on the con- hand that would tear the chaplet from the brow of tinent. That which had theretofore been done by the Mother of States. proclamation of the king it now required the act of In justice to Virginia let it be remembered, that by parliament to consummate; to alter the boundary and the twenty-first section of her constitution of 1776, take the territory of a colony which had the sanc-in which she fixes her boundaries, she says, what tion of one hundred and fifty years of historical they are and shall bo, “upless by act of Legislaand legal prescription. Dunmore's policy was the ture one or more territories shall hereafter be laid most likely to effectuate the purposes of the crown off and governments established west of the Alleand the natural explanation of his conduct is, that gany mountains." Virginia provided for the ereeit was the policy to embroid Virginia in a war with tion of States before the confederation esisted, the Indians, and then, should the difficulties of the and when there was no motive but liberal and encolonies with England terminale in hostilities, Vir- larged views of policy; and without this provision, ginia would be fully occupied on her front and the the cession of 1783 might possibly have been ingreat domain of the north-west would be in the valid as exceeding legislative authority. In the occupation of his majesty's allies, for the purposes subsequent discussions which occurred in relation of war-for the purposes of peace when the struggle to territory it is clearly seen that the remonstrance was over and the possession of these allies would of Maryland was not founded in objection to the give force to the claim of uti possidetis. The ex-right of Virginia, but it was, for that, “ this or any pedition of Gen. George Rogers Clarke was the other state entering into such confederation should vindication of the Virginia claim to the full extent be borthened with heavy expenses for the subdoing of her ancieot limits. The act of the 20th June, and guaranteeing immense tracts of country when 1774, is the first attempt of the crown or parlia- they are not to share any part of the monies nent, for more than one hundred years, to inter- arising from the sales of lands within those tracts fere with the boundaries of this colony; and this or be otherwise benefited thereby.” This was the was done upon the prospect of civil war, and when burthen of the song, the echo of which is caught it was desirable on the part of England to attach up from that distant time and made to reverberate the territory in question to the only colony on whose yet a liule longer. But the complaint of Maryland fidelity she could rely. The long acquiescence in was connected with an unwarrantable demand, rethe claim of Virginia and the attempt to snatch it quiring full power to be given to the confederation from her possession on the eve of a war, gives force to fix the western limits of Virginia," and it was to all the facts and presumptions in favor of the accompanied by the declaration of an inadmissible