# Notes on the State of Virginia (1802)/Query 13

No. 44, Marlboro' St., Boston: H. Sprague, pages 150–178

QUERY XIII.

THE conſtitution of the ſtate, and its ſeveral charters?

Queen Elizabeth by her letters-patent, bearing date March 25, 1584, licenſed Sir Walter Raleigh to ſearch for remote heathen lands, not inhabited by chriſtian people, and granted to him, in fee ſimple, all the ſoil within 200 leagues of the places where his people ſhould, within 6 years make their dwellings or abidings; reſerving only to herſelf and her ſucceſſors, their allegiance and one-fifth part of all the gold and ſilver ore they ſhould obtain. Sir Walter immediately ſent out two ſhips which viſited Wococon iſland in North-Carolina, and the next year diſpatched ſeven with 107 men, who ſettled in Roanoke iſland, about latitude 35° 50′. Here Okiſko, King of the Weopomeiocs, in a full council of his people is ſaid to have acknowledged himſelf the homager of the Queen of England, and, after her, of Sir Walter Raleigh. A ſupply of 50 men were ſent in 1586, and 150 in 1587. With theſe laſt, Sir Walter ſent a governor, appointed him 12 aſſiſtants, gave them a charter of incorporation, and inſtructed them to ſettle on Cheſapeak bay. They landed however at Hattoraſk. In 1588, when a fleet was ready to ſail with a new ſupply of coloniſts and neceſſaries, they were detained by the Queen to aſſiſt againſt the Spaniſh armada. Sir Walter having now expended 40,000l. in theſe enterpriſes, obſtructed occaſionally by the crown without a ſhilling of aid from it, was under a neceſſity of engaging others to adventure their money. He therefore, by deed bearing date the 7th of March 1589, by the name of Sir Walter Raleigh, chief governor of Aſſamàcomòc, (probably Acomàc,) alias Wingadacoia, alias Virginia, granted to Thomas Smith and others, in conſideration of their adventuring certain ſums of money, liberty of trade to his new country, free from all cuſtoms and taxes for ſeven years, excepting the fifth part of the gold and ſilver ore to be obtained; and ſtipulated with them, and the other aſſiſtants, then in Virginia, that he would confirm the deed of incorporation which he had given in 1587, with all the prerogatives, juriſdictions, royalties and privileges granted to him by the Queen. Sir Walter, at different times, ſent five other adventurers hither, the laſt of which was in 1602; for in 1603 he was attained, and put into cloſe impriſonment, which put an end to his cares over his infant colony. What was the particular fate of the colonies he had before ſent and ſeated, has never been known: whether they were murdered, or incorporated with the ſavages.

Some gentlemen and merchants, ſuppoſing that by the attainder of Sir Walter Raleigh the grant to him was forfeited, not enquiring over-carefully whether the ſentence of an Engliſh court could effect lands not within the juriſdiction of that court, petitioned king James for a new grant of Virginia to them. He accordingly executed a grant to Sir Thomas Gates and others bearing date the 9th of March 1607, under which, in the ſame year a ſettlement was effected at James' town and ever after maintained. Of this grant however no particular notice need be taken, as it was ſuperſeded by letters-patent of the ſame king, of May, 23, 1609 to the Earl of Saliſbury and others, incorporating them, by the name of ‘the treaſurer and company of adventurers and planters of the city of London for the firſt colony in Virginia,’ granting to them and their ſucceſſors all the lands in Virginia from Point Comfort along the ſea-coaſt to the northward 200 miles, and from the ſame point along the ſeacoaſt to the ſouthward 200 miles, and all the ſpace from this precinct on the ſea-coaſt up into the land, weſt and north-weſt from ſea to ſea, and the iſlands within one hundred miles of it, with all the commodities, juriſdictions, royalties, privileges, franchiſes and pre-eminenceſes within the ſame, and thereunto and thereabouts, by ſea and land, appertaining in as ample manner as had before been granted to any adventurer: to be held of the king and his ſucceſſors, in common ſocage, yielding one-fifth part of the gold and ſilver ore to be therein found, for all manner of ſervices; eſtabliſhing a council in England for the direction of the enterpriſe, the members of which were to be choſen and diſplaced by the voice of the majority of the company and adventurers, and were to have the nomination and revocation of governors, officers, and miniſters, which by them ſhould be thought needful for the colony, the power of eſtabliſhing laws and forms of government and magiſtracy, obligatory not only within the colony, but alſo on the ſeas in going and coming to and from it: authoriſing them to carry thither any perſons who ſhould conſent to go, freeing them for ever from all taxes and impoſitions on any goods or merchandiſe on importations into the colony, or exportation out of it, except the five per cent. due on all goods imported into the Britiſh dominions, according to the ancient trade of merchants; which five per cent. only being paid they might, within 13 months re-export the ſame goods into foreign parts, without any cuſtom, tax, or other duty to the king or any of his officers or deputies; with powers of waging war against thoſe who ſhould annoy them; giving to the inhabitants of the colony all the rights of natural ſubjects, as if born and abiding in England; and declaring that theſe letters ſhould be conſtrued, in all doubtful parts, in ſuch manner as ſhould be moſt for the benefit of the grantees.

Afterwards on the 12th of March 1612, by other letters-patent, the king added to his former grants, all iſlands in any part of the ocean between the 30th and 41ſt degrees of latitude, and within 300 leagues of any of the parts before granted to the treaſurer and company, not being poſſeſſed or inhabited by any other chriſtian prince or ſtate, nor within the limits of the northern colony.

In purſuance of the authorities given to the company by theſe charters, and more eſpecially of that part in the charter of 1609, which authoriſed them to eſtabliſh a form of government, they on the 24th of July 1621, by charter under their common ſeal, declared that from thence forward there ſhould be two ſupreme councils in Virginia, the one to be called the council of ſtate, to be placed and diſplaced by the treaſurer, council in England, and company, from time to time, whoſe office was to be that of aſſiſting and adviſing the governor; the other to be called the general aſſembly to be convened by the governor once yearly, or oftener, which was to conſiſt of the council of ſtate, and two bergeſſes out of every town, hundred, or plantation, to be reſpectively choſen by the inhabitants. In this all matters were to be decided by the greater part of the votes preſent; reſerving to the governor a negative voice; and they were to have power to treat, conſult, and conclude all emegrant occaſions concerning the public weal, and to make laws for the behoof and government of the colony, imitating and following the laws and policy of England as nearly as might be: providing that theſe laws ſhould have no force till ratified in a general quarter court of the company in England and returned under their common ſeal, and declaring that, after the government of the colony ſhould be well framed and ſettled, no orders of the council in England ſhould bind the colony unleſs ratified in the ſaid general aſſembly. The king and company quarrelled, and by a mixture of law and force, the latter were ouſted of all their rights, without retribution, after having expended 100,000l, in eſtabliſhing the colony, without the ſmalleft aid from government. King James ſuſpended their powers by proclamation of July 15, 1624, and Charles I. took the government into his own hands. Both ſides had their partiſans in the colony; but in truth the people of the colony in general thought themſelves little concerned in the diſpute. There being three parties intereſted in theſe ſeveral charters, what paſſed between the firſt and ſecond it was thought could not affect the third. If the king ſeized on the power of the company, they only paſſed into other hands, without increaſe or dimenution, while the rights of the people remained as they were. But they did not remain ſo long. The northern parts of their country were granted away to the lords Baltimore and Fairfax, the firſt of theſe obtaining alſo the rights of ſeparate juriſdiction and government. And in 1650 the parliament, conſidering itſelf as ſtanding in the place of their depoſed king, and as having ſucceeded to all his powers, without as well as within the realm, began to aſſume a right over the colonies, paſſing an act for inhibiting their trade with foreign nations. This ſucceſſion to the exerciſe of kingly authority gave the firſt color for parliamentary interference with the colonies, and produced that fatal precedent which they continued to follow after they had retired, in other reſpects, within their proper functions. When this colony, therefore, which ſtill maintained its oppoſition to Cromwell and the parliament, was induced in 1651 to lay down their arms, they previouſly ſecured their moſt eſſential rights, by a ſolemn convention, which having never ſeen in print, I will here inſert literally from the records.

Articles agreed on & concluded at James Cittie in Virginia for the ſurrendering and ſettling of that plantation under the obedience & government of the Commonwealth of England by the Commiſſioners of the Councill of ſtate by authoritie of the parliamt. of England & by the grand aſſembly of the Governour, Councill & Burgeſſes of that countrey.

‘Firſt it is agreed and conſted that the plantation of Virginia, and all the inhabitants thereof ſhall be and remain in due obedience and ſubjection to the Comon wealth of England according to the laws there eſtabliſhed, and that this ſubmiſſion and ſubſcription bee acknowledged a voluntary act not forced nor conſtrained by a conqueſt upon the countrey, and that they ſhall have and enjoy ſuch freedoms and privileges as belong to the free borne people of England, and that the former government by the Commiſſions and Inſtructions be void and null.

‘2ly, Secondly that the Grand aſſembly as formerly ſhall convene & tranſact the affairs of Virginia wherein nothing is to be acted or done contrarie to the government of the Comon wealth of England and the laws there eſtabliſhed.

‘3ly, That there ſhall be a full and total remiſſion and indempnitite of all acts, words, or writings done or ſpoken againſt the parliament of England in relation to the ſame.

‘4ly, That Virginia ſhall have & enjoy the antient bounds and Lymitts granted by the charters of former kings, and that we ſhall ſeek a new charter from the parliament to that purpoſe againſt any that have intrencht upon the rights thereof.

‘5ly, That all the patents of land granted under the collony ſeal by any of the precedent governours ſhall be and remain in their full force & ſtrength.

‘61y, That the priviledge of having ffiftie acres of land for every perſon tranſported in that collonie ſhall continue as formerly granted.

‘7ly, That the people of Virginia have free trade as the people of England do enjoy to all places and with all nations according to the lawes of that Comon wealth, and that Virginia ſhall enjoy all privilidges equal with any Engliſh plantations in America.

‘8ly, That Virginia ſhall be free from all taxes, cuſtoms & impoſitions whatſoever, & none to be impoſed on them without conſent of the Grand aſſembly, and ſoe that neither ffortes nor caſtles bee erected or garriſons maintained without their conſent.

‘9ly, That noe charge ſhall be required from this countrey in reſpect of this preſent ffleet.

‘10ly, That for the future ſettlement of the countrey in their due obedience, the engagement ſhall be tendered to all the inhabitants according to act of parliament made to that purpoſe, that all perſons who ſhall refuſe to ſubſcribe the ſaid engagement, ſhall have a yeare's time if they pleaſe to remove themſelves & and their eſtates out of Virginia, and in the mean time during the ſaid yeare to have equal juſtice as formerly.

‘11ly, That the uſe of the booke of common prayer ſhall be permitted for one yeare enſuinge with reference to the conſent of the major part of the pariſhes, provided that thoſe which relate to kingſhipp or that government be not uſed publiquely, and the continuance of miniſters in their places, they not miſdemeaning themſelves, and the payment of their accuſtomed dues and agreements made with them reſpectively ſhall be left as they now ſtand during this enſuing yeare.

‘12ly, That no man's cattell ſhall be queſtioned as the companies unleſs ſuch as have been entruſted with them or have diſpoſed of them without order.

‘13ly, That all ammunition, powder & armes, other than for private uſe, ſhall be delivered up, ſecuritie being given to make ſatisfaction for it.

‘14ly, That all goods already brought hither by the Dutch or others which are now on ſhoar ſhall be free from ſurprizall.

‘15ly, That the quittrents granted unto us by the late kinge for ſeven yeares bee confirmed.

‘16ly, That the commiſſioners for the parliament ſubſcribing theſe articles engage themſelves & the honour of parliament for the full performance thereof: and that the preſent governour & the councill & the burgeſſes do likewiſe ſubſcribe and engage the whole collony on their parts.

 Rich. Bennett.——Seale. .mw-parser-output .nowrap,.mw-parser-output .nowrap a:before,.mw-parser-output .nowrap .selflink:before{white-space:nowrap}Wm. Claiborne.——Seale. Edmond Curtis.——Seale.

‘Theiſe articles were ſigned & ſealed by the Commiſſioners of the Council of ſtate for the Common wealth of England the twelveth day of March 1651.

Then the following articles ſtipulated by the governor and council, which relate merely to their own perſons and property, and then the enſuing inſtrument:

‘An act of indempnitie made att the ſurrender of the countrey.

‘Whereas by the authoritie of the parliament wee the commiſſioners appointed by the councill of ſtate authorized thereto having brought a fleet & force before James cittie in Virginia to reduce that collonie under the obedience of the Common wealth of England, and findeing force raiſed by the Governour & countrey to make oppoſition againſt the ſaid ffleet wereby aſſured danger appearinge of the ruin & deſtruction of the plantation, for preſervation whereof the Burgeſſes of all the ſeveral plantations being called to adviſe and aſſiſt therein, uppon long & ſerious debate, and in ſad contemplation of the great miſeries and certaine deſtruction which were ſoe neerely hovering over the whole countrey; wee the ſaid commiſſioners have thought fitt & condeſcended and granted to ſigne and confirme under our hands, ſeales & by our oath, Articles bearinge date with theiſe preſents, and do further declare that by the authoritie of the parliament and Comon wealth of England derived unto us their commiſſioners, that according to the articles in generall wee have granted an act of indemnitie and oblivion to all the inhabitants of this colloney from all words, actions, or writings that have been ſpoken acted or writ againſt the parliament or Common wealth of England or any other perſon from the beginning of the world to this daye. And this wee have done that all the inhabitants of the collonie may live quietly & ſecurely under the Common wealth of England. And wee do promiſe that the parliament and comon wealth of England ſhall confirm and make good all thoſe tranſactions of ours. Witneſs our hands & ſeales this 12th of March 1651. Richard Bennet—Seale. Wm. Claiborn—Seale. Edm. Curtis — Seale.’

This conſtitution was formed when we were new and unexperienced, in the ſcience of government. It was the firſt too which was formed in the whole United States. No wonder then that time and trial have diſcovered very capital defects in it.

1. The majority of the men in the ſtate, who pay and fight for its ſupport, are unrepreſented in the legiſlature, the roll of freeholders entitled to vote, not including generally the half of thoſe on the roll of the militia, or of the tax-gatherers.

2. Among thoſe who ſhare the repreſentation, the ſhares are very unequal. Thus the county of Warwick, with only 100 fighting men, has an equal repreſentation with the county of Loudon, which has 1746. So that every mam in Warwick has as much influence in the government as 17 me in Loudon. But leſt it ſhould be thought that an equal interſperſion of ſmall among large counties, through the whole ſtate, may prevent any danger of injury to particular parts of it, we will divide it into diſtricts, and ſhow the proportions of land, of fighting men, and of repreſentation in each.

Square
miles.
Fighting
men.
Delegates  Senators

 Between the ſea-coaſt ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ and falls of the rivers
[5]11,205  19,012 71 12
 Between the falls of ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\\\ \ \end{matrix}}\right\}\,}}$ the rivers and the Blue ridge of mountains
18,759  18,828 46  8
 Between the Blue ridge ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ & the Alleghaney
11,911   7,673 16  2
 Between the Alleghaney ${\displaystyle \scriptstyle {\left.{\begin{matrix}\ \\\ \end{matrix}}\right\}\,}}$ and Ohio
[6]79,650   4,458 16  2
Total  121,525  49,971 149  24

An inſpection into this table will ſupply the place of commentaries on it. It will appear at once that 19,000 men, living below the falls of the rivers, poſſeſs half the ſenate, and want four members only of poſſeſſing a majority of the houſes of delegates; a want more than ſupplied by the vicinity of their ſituation to the ſeat of government, and of courſe the greater degree of convenience and punctuality with which their members may and will attend in the legiſlature. Theſe 19,000 therefore, living in one part of the country, give law to upwards of 30,000 living in another, and appoint all their chief officers executive and judiciary. From the difference of their ſituation and circumſtances, their intereſts will often be very different.

3. The ſenate is, by its conſtitution, too homogenous with the houſe of delegates. Being choſen by the ſame electors, at the ſame time, and out of the ſame ſubjects, the choice falls of courſe on men of the ſame deſcription. The purpoſe of eſtabliſhing different houſes of legiſlation is to introduce the influence of different intereſts or different principles. Thus in Great-Britain it is ſaid their conſtitution relies on the houſes of commons for honeſty, and the lords for wiſdom; which would be a rational reliance if honeſty were to be bought with money, and if wiſdom were hereditary. In ſome of the American ſtates the delegates and ſenators are ſo choſen, as that the firſt repreſent the perſons, and the ſecond the property of the ſtate. But with us, wealth and wiſdom have equal chance for admiſſion into both houſes. We do not therefore derive from the ſeparation of our legiſlature into two houſes, thoſe benefits which a proper complication of principles is capable of producing, and thoſe which alone can compenſate the evils which may be produced by their diſſentions.

4. All the powers of government, legiſlative, executive, and judiciary, reſult to the legiſlative body. The concentrating theſe in the ſame hands is preciſely the definition of deſpotic government. It will be no alleviation that theſe powers will be exerciſed by a plurality of hands, and not by a ſingle one: 173 depoſits would ſurely be as oppreſſive as one. Let thoſe who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are choſen by ourſelves. An elective deſpotiſm was not the government we fought for; but one which ſhould not only be founded on free principles, but in which the powers of government ſhould be ſo divided and balanced among ſeveral bodies of majeſtracy, as that no one could tranſcend their legal limits, without being effectually checked and reſtrained by the others. For this reaſon that convention, which paſſed the ordinance of government, laid its foundation on this baſis, that the legiſlative, executive and judiciary departments ſhould be ſeparate and diſtinct, ſo that no perſon ſhould exerciſe the powers of more than one of them at the ſame time. But no barrier was provided between theſe ſeveral powers. The judiciary and executive members were left dependant on the legiſlative, for their ſubſiſtence in office, and ſome of them for their continuance in it. If therefore the legiſlature aſſumes executive and judiciary powers, no oppoſition is likely to be made; nor, if made, can it be effectual; becauſe in that caſe they may put their proceeddings into form of an act of aſſembly, which will render them obligatory on the other branches. They have accordingly, in many inſtances, decided rights which ſhould have been left to judiciary controverſy: and the direction of the executive, during the whole time of their ſeſſion, is becoming habitual and familiar. And this is done with no ill intention. The views of the preſent members are perfectly upright. When they are led out of their regular province, it is by art in others, and inadvertence in themſelves. And this will probably be the caſe for ſome time to come. But it will not be a very long time. Mankind ſoon learn to make intereſted uſes of every right and power which they poſſeſs or may aſſume. The public money and public liberty, intended to have been depoſited with three branches of magiſtracy but found inadvertently to be in the hands of one only, will ſoon be diſcovered to be ſources of wealth and dominion to thoſe who hold them; diſtinguiſhed too by this tempting circumſtance, that they are the inſtrument, as well as the object of acquiſition. With money we will get men, ſaid Cæſar, and with men we will get money. Nor ſhould our aſſembly be deluded by the integrity of their own purpoſes, and conclude that theſe unlimited powers will never be abuſed, becauſe themſelves are not diſpoſed to abuſe them. They ſhould look forward to a time, and that not a diſtant one, when corruption in this, as in the country from which we derived our origin, will have ſeized the heads of government, and be ſpread by them through the body of the people; when they will purchaſe the voices of the people, and make them pay the price. Human nature is the ſame on every ſide of the Atlantic, and will be alike influenced by the ſame cauſes. The time to guard againſt corruption and tyranny, is before they ſhall have gotten hold on us. It is better to keep the wolf out of the fold, than to truſt to drawing his teeth and talons after he ſhall have entered. To render theſe conſiderations the more cogent, we muſt obſerve in addition.

6. That the aſſembly exerciſes a power of determining a quorum of their own body which may legiſlate for us. After the eſtabliſhment of the new form they adhere to the Lex majoris partis, founded in [8] common law as well as common right. It is the [9] natural law of every aſſembly of men, whoſe numbers are not fixed by any other law. They continued for ſome time to require the pretence of a majority of their whole number, to paſs an act. But the Britiſh parliament fixes its own quorum: our former aſſemblies fixed their own quorum: and one precedent in favor of power is ſtronger than an hundred againſt it. The houſe of delegates therefore have [10] lately voted that, during the preſent dangerous invaſion, forty members ſhall be a houſe to proceed to buſineſs. They have been moved to this by the fear of not being able to collect a houſe. But this danger could not authorize them to call that a houſe which was none: and if they may fix it at one number, they may at another, till it loſes its fundamental character of being a repreſentive body. As this vote expires with the preſent invaſion, it is probable the former rule will be permitted to revive: becauſe at preſent no ill is meant. The power however of fixing their own quorum has been avowed, and a precedent ſet. From forty it may be reduced to four, and from four to one: from a houſe to a committee to a chairman or ſpeaker, and thus an oligarchy be ſubſtituted under forms ſuppoſed to be regular. ‘Omina mala exempla ex bonis orta ſunt: ſed ubi imperium ad ignaros aunt minus bonus pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos fertur.’ When therefore it is conſidered, that there is no legal obſtacle to the aſſumption by the aſſembly of all the powers legiſlative, executive, and judiciary, and that theſe may come to the hands of the ſmalleſt rag of delegation, ſurely the people will ſay, and their repreſentatives, while yet they have honeſt repreſentatives, will adviſe them to ſay, that they will not acknowledge as laws any acts not conſidered and aſſented to by the major part of their delegates.