Commentaries on the Constitution of the United States, by Joseph Story, 1833
Volume 1, 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. 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 labor. 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. 16
§ 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 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 “endeavored, 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. Summ. 338.
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. 26.
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. 155.
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. Comm. App.
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. 514.
35. 2 Hen. Stat. 511, 512, 514, 517; 1 Chalm. Annals, 328; 3 Hutch. Collect. 496.
36. Marsh. Colon. ch. 5, p. 163; 1 Chalm. Annals, 325.
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