USA > Virginia > A history of Virginia : from its discovery and settlement by Europeans to the present time. Vol. I > Part 5
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a Hetherington's Hist. Church of History, iii. 464, in note (McLaine's Scotland, 93, 118, Am. ed., 1844.
b Everard Digby's letter to his wife, quoted in Mosheim's Church
tr.) ; Hume, in note, iv., chap. xlvi.,
222.
c Hume's England, iv. 223.
72
HIS CHARACTER.
[CHAP. II.
cessors, as a sacred inheritance beyond the control of secular hands.ª But it was fortunate that his timid spirit was not equal to the task assigned to it by his regal principles; and his parliaments met his demands for power, for money, and for submission, with resolute acts, and with resistance which ga- thered strength during every year of his feeble do- minion.
Leaving, for a season, the king under whose reign Virginia was to receive her first colony, we may now direct our thoughts to that condition of things in the mother country which affected her interests, and gave a form to her future destinies. For nearly one hundred years England had been bound in chains of brass. The Tudor dynasty had reigned with absolute sway. Differing, indeed, in their characters, they had yet been alike in the ample prerogative which they. openly claimed or tacitly enjoyed; and during the exciting career of their reigns, neither lords nor commons could secure a breathing-time in which to reflect upon and calmly to test the foundation on which was erected so ma- jestic a superstructure. But when a stranger came from Scotland and ascended the throne, a change not the less important, because almost insensible, took place. The revival of learning had expanded the human mind; and the scholar and the statesman might draw from the fountains of antiquity a love of rational liberty, and a full conviction that it might
a " In his own person, therefore, right."-Hume iv., 211. See Wal- he thought all legal power to be cen- ter Scott's Hist. Scotland, ii. 167, tered, by an hereditary and a divine 168.
-
73
AWAKENING ENTERPRISE.
1603.]
be obtained.ª The divine right of kings could no longer be passively admitted ; and none were more ardent in seeking to secure freedom from royal en- croachment than the men who were most deeply imbued with the spirit inculcated in the Scriptures. The commons began seriously to ask by what right the king imposed arbitrary customs and duties on trade-how he acquired exclusive control in matters of religion-and why he should be permitted to wield the dangerous power of imprisoning at will his faithful subjects.
Coeval with this awakening spirit of freedom, a general fermentation pervaded the minds of men, and urged them to every species of enterprise and improvement. The mechanic arts were assidu- ously cultivated, and the man was reckoned a benefactor to his species who could add to the comfort of life by the ingenuity of the artisan. Travelling was no longer the dangerous adven- ture, grateful to an age of knight-errantry. Navi- gation became fixed in its principles, honourable in its agents, expanded in its results ; the very dangers which attended it, gave to it attractive features in the eyes of the young and the brave, and the immense wealth which had been gathered from its achievements, rendered it dear to the am- bitious and the prudent. Disappointment had in- deed attended many efforts to gather gold and sil- ver from the shores of the new world, and to find pearls amid the wilds of North America, but the very failure of extravagant hope had tended to
a Hume's Eng., iv., chap. xlv., 210.
1
74
PEACE WITH SPAIN.
[CHAP. II.
direct public enterprise to more reasonable objects. Men now began to learn that real wealth might be drawn from the soil, the forest, and the sea-wealth more substantial than the precious metals,-and that America needed only to be colonized to be- come an inviting home to those who would aban- don the mother country, and a fruitful source of profit to those who were left behind. But in addi- tion to these impelling motives to enterprise, ano- ther cause now operated in England to make many willing to leave her shores and embark for the novel scenes of the western world.
The martial reign of Elizabeth had given em- ployment to many restless spirits, whose happiness could only be found in constant commotion. Ca- valiers and gentlemen of high birth, but of de- cayed fortunes, had found congenial employment in seeking the rich prizes of Spain; but when James ascended the throne, pacific counsels speedily prevailed. (Aug. 18, 1604.) Not more than a year after his accession, a peace was con- cluded, by which the angry spirits of the bellige- rents were stilled, and the most amicable relations were established between the Catholic and the Protestant sovereigns. Thus the adventurers, who had little employment for their talents ex- cept in war or maritime danger, were left to inac- tivity, and eagerly turned to America as an inte- resting field for their occupation.ª James was not unwilling to gratify their desires. Too timid in his policy to give them appropriate duties at home,
Bancroft's U. S., i. 134; Grahame's Colon. Hist., i. 30.
1604.]
VOYAGE OF GOSNOLD. 75
he found it highly convenient to turn to Virginia a tide of his population, whose troubled waves might have visited too rudely the barriers of his own regal office; and it is no less remarkable than true, that the class of men from whom he was thus anxious to be delivered, furnished afterwards the most generous supporters of the fortunes of his unhappy son.
We have thus glanced with rapidity over the sources from which were to be directed the streams of European enterprise, destined to fertilize the soil of America ; and now we may proceed to the settle- ment of the colony that first established and main- tained a precarious existence upon the shores of Virginia.
Bartholomew Gosnold may, with justice, claim the honour of having excited again the discouraged heart of England to an attempt for settling the new world.ª He was a skilful navigator, and had crossed the Atlantic in 1602 by a direct western course, which saved him many leagues of weary sailing. On the 17th May, he discovered Cape Cod, and he then coasted along the shores of what was afterwards New England, landed on an island so full of fruits and luxuriant vines, that he could not bestow a more appropriate title than Martha's Vineyard,b viewed a country and a soil rich, beau- tiful, and inviting, and finally returned to England about the close of July.
The success of this voyage of exploration, re- 1
a Burk's Hist. Va., i. 75. nold's letter to his father. Belknap's
b Purchas, iv. 1646, gives Gos- Am. Biog., ii. 211, 214.
1
76
THE FIRST CHARTER OF JAMES. [CHAP. Il.
vived the hopes of English adventurers. Gosnold was enthusiastic in his praises of the natural charms of Virginia, and urged with ardour another effort to occupy her soil. Among those who united with him in endeavouring again to arouse the colonizing desire, was Richard Hakluyt, Prebendary of West- minster, a man of great learning and indefatigable industry, to whom America owes a heavy debt of gratitude.ª
· Under his auspices public attention was strongly drawn to his favourite scheme. A number of ad- venturers offered their money, and many presented themselves to aid in the enterprise. To the King at length application was made, and he readily granted his sanction to a project which promised to employ the turbulent spirits of his realm, and to replenish his coffers with the results of success. On the 10th April, 1606, James issued a patent to Sir Thomas Gates, Sir George Somers, Richard Hakluyt, and others with them associated, under which they proposed to embark upon their eagerly sought scheme.b
This royal grant deserves our close attention, as it will explain the nature of the enterprise and the powers originally enjoyed by those who entered upon it.
Selecting for the scene of operations the beauti- ful belt.of country lying between the thirty-fourth and forty-fifth parallels of north latitude, the King
a Robertson's Am., i. 402; Mar- shall's Am. Colon., 24; Grahame's Colon. Hist., 31.
b The patent may be found in full in Stith, Appen. 1-8, and in Hazard's - State Papers, i. 50-58.
77
THE FIRST CHARTER OF JAMES.
1606.]
certainly provided an ample field for the success of the patentees. This tract extends from Cape Fear to Halifax, and embraced all the lands be- tween its boundaries in North America, except perhaps the French settlement in Acadia,a which had already been so far matured as to come under the excluding clause of the patent. For colonizing this extensive region, the King appointed two com- panies of adventurers,-the first consisting of noble- men, knights, gentlemen, and others, in and about the city of London, which,, through all its subse- quent modifications, was known by the title of the London Company ; the other consisted of knights, gentlemen, merchants, and others, in and about the town of Plymouth, and was known as the Plymouth Company, though its operations were never extensive, and were at last utterly fruitless.
To the London adventurers was granted ex- clusive right to all the territory lying between the thirty-fourth and thirty-eighth parallels, and run- ning from the ocean to an indefinite extent west- ward into the wilds of America, even to the waters of the Pacific.' They were also allowed all the islands, fisheries, and other marine treasures, within one hundred miles directly eastward from their shores, and within fifty miles from their most
a Bancroft's U. S., i. 137.
b Dr. Robertson seems to consider the colonists as restricted to a region extending one hundred miles from the coast into the interior .- Amer. i. 402. But though the patent contains a passage which might bear that
construction, yet the subsequent clause, prohibiting any settlements " behind" or westward of them with- out license, proves the design to in- clude all the land between the paral- lels .- See Miss Martineau's Soc. in Amer., i. 47.
78
GOLD AND SILVER.
[CHAP. II.
northern and most southern settlements, following the coast to the northeast or southwest, as might be necessary. Within these limits, ample jurisdic- tion was conferred upon them. To the Plymouth Company was granted in like manner the land and appurtenances between the forty-first and forty-fifth parallels. Thus the whole region be- tween thirty-eight and forty-one was left open to the enterprise of both companies; but to render angry collision impossible, the charter contained the judicious clause above noted, by which each colony might claim exclusive right fifty miles north or south of its extreme settlements, and thus neither could approach within one hundred miles of the other.
The hope of gold and silver from America, was yet clinging with tenacity to the English mind. James grants to the companies unlimited right to dig and obtain the precious and other metals, but reserves to himself one-fifth part of all the gold and silver, and one-fifteenth of all the copper that might be discovered. Immediately after this clause, we find a section granting to the councils for the colonies, authority to coin money and use it among the settlers and the natives. This permission may excite some surprise, when we remember that the right to coin has been always guarded with pecu- liar jealousy by English monarchs, and that this constituted one serious charge against the Massa- chusetts colony in the unjust proceedings by which her charter was wrested from her in sub- sequent years.ª
a Grahame's Colon. Hist., i. 276-365.
79
POLICY OF ENGLAND.
1606.]
To the companies was given power to carry settlers to Virginia and plant them upon her soil, and no restriction was annexed to this authority, except that none should be taken from the realm upon whom the king should lay his injunction to remain. The colonists were permitted to have arms, and to resist and repel all intruders from foreign states; and it was provided that none should trade and traffic within the colonies unless they should pay or agree to pay to the treasurers of the companies two and a half per cent. on their stock in trade if they were English subjects, and five per cent. if they were aliens. The sums so paid were to be appropriated to the company for twenty-one years from the date of the patent, and afterwards were transferred to the crown. James never forgot a prospect for gain, and could not permit the colonists to enjoy for ever the customs, which, as consumers of foreign goods, they must necessarily have paid from their own resources.
The jealous policy which, at this time, forbade the exportation without license, of English pro- ducts to foreign countries, has left its impress upon this charter. The colonists were, indeed, allowed to import all " sufficient shipping and furniture of armour, weapons, ordinance, powder, victual, and all other things necessary,"ª without burdensome restraint; but it was provided that if any goods should be shipped from England or her dependen- cies " with pretence" to carry them to Virginia, and
ª Charter, section xi.
80
FREE TENURES OF LAND.
[CHAP. II.
should afterwards be conveyed to foreign ports, the goods there conveyed and the vessel containing them should be absolutely forfeited to his majesty, his heirs and successors.ª
The lands held in the colonies were to be pos- sessed by their holders under the most favourable species of tenure known to the laws of the mother country ... King James had never admired the mili- tary tenures entailed upon England by the feudal system, and he had made a praiseworthy, though unsuccessful effort, to reduce them all to the form of " free and common soccage,"b a mode of holding land afterwards carried into full effect under Charles II., and which, if less pervaded by the knightly spirit of feudal ages, was more favourable to the holder and more congenial with the freedom of the English constitution. This easy tenure was expressly provided for the lands of the new country ; and it is a happy circumstance that Ame- rica has been little affected even by the softened . bonds thus early imposed upon her.
But how shall these colonial subjects be govern- ed, and from whom shall they derive their laws? These were questions to which the vanity and the arbitrary principles of the King soon found a reply. Two councils were to be provided, one for each colony, and each consisting of thirteen members. They were to govern the colonists according to such laws, ordinances, and instructions as should be afterwards given by the king himself, under his
a Charter, section xvii.
b Blackstone's Commen. (by Chitty) Book ii. 59.
1606.]
THE PIETY OF THE KING. 81
sign manual, and the privy seal of the realm of England ; and the members of the councils were to be "ordained, made, and removed from time to time," as the same instructions should direct.ª In addition to these provincial bodies, a council of thirteen, likewise appointed by the King, was to be created in England, to which was committed the general duty of superintending the affairs of both colonies.b
And to prove the pious designs of a monarch whose religion neither checked the bigotry of his spirit nor the profaneness of his language, it was recited in the preamble of this charter, that one leading object of the enterprise was the propaga- tion of Christianity among "such people as yet live in darkness and miserable ignorance of the true knowledge and worship of God, and might in time be brought to human civility and to a settled and quiet government."d
Such was the first charter of James to the co- lony of Virginia. We will not now pause to con- sider it minutely either for praise or for blame. With some provisions that seem to be judicious, and which afterwards proved themselves to be sa- lutary, it embraces the most destructive elements of despotism and dissension. The settlers were
a Charter, section vii.
b Charter, section viii. Marshall states that two councils were to be created in England by the King, and " were invested with the superior direction of the affairs of the colo- VOL. I.
nists." American Colonist, 26. But this is certainly an error.
e Hume's England, vol. iv. 294.
d Mr. Grahame's heart evidently exults over this good intention. Co- lonial History, i. 32.
6
82
A ROYAL LAW. MAKER.
[CHAP. II.
deprived of the meanest privileges of self-govern- ment, and were subjected to the control of a coun- cil wholly independent of their own action, and of laws proceeding directly or indirectly from the King himself. The Parliament of England would have been a much safer depository of legislative power for the colonists, than the creatures of a mo- narch who held doctrines worthy of the Sultan of Turkey or the Czar of the Russian empire.
But all parties seemed well satisfied with this charter, and neither the King nor the adventurers had before their minds the grand results that were to follow the enterprise to which they were now giving birth. The patentees diligently urged for- ward preparations for the voyage, and James em- ployed his leisure hours in preparing the instruc- tions and code of laws contemplated by the charter. His wondrous wisdom rejoiced in the task of acting the modern Solon, and penning statutes which were to govern people yet unborn ; and neither his ad- visers nor the colonists seem to have reflected upon the enormous exercise of prerogative herein dis- played. The adventurers did not cease to be Eng- lishmen in becoming settlers of a foreign clime, and the charter had expressly guarantied to them " all liberties, franchises, and immunities" enjoyed by native-born subjects of the realm.a Even acts of full Parliament bind not the colonies unless they be expressly included, and an English writer of
a Charter, section xv.
b Blackstone's Commen. (by Chitty), Book i. 76-78.
83
ARTICLES OF INSTRUCTION.
1606.]
subsequent times has not hesitated to pronounce this conduct of the royal law-maker in itself ille- gal.a (Nov. 20.) But James proceeded with much eagerness to a task grateful alike to his vanity and his principles of government.
By these Articles of Instruction, the King first establishes the general council, to remain in Eng- land, for the superintendence of the colonies. It consisted originally of thirteen, but was afterwards increased to nearly forty, and a distinction was made in reference to the London and Plymouth companies.b In this body, we note many names which were afterwards well known, both in the interests of America and of the mother land.
Sir William Wade, Lieutenant of the Tower of London; Sir Thomas Smith, Sir Oliver Crom- well, Sir Herbert Croft, Sir Edwin Sandys, and others, formed a power to whom were intrusted many of the rights of the intended settlement. They were authorized, at the pleasure, and in the name of his majesty, to give directions for the good government of the settlers in Virginia, and to appoint the first members of the councils to be resident in the colonies.
These resident councils thus appointed, or the major part of them, were required to choose from their own body a member, not being a minister of God's word, who was to be president, and to con- tinue in office for a single year. They were au- thorized to fill vacancies in their own body, and,
a Chalmers 15, in Bancroft's U. S., i. 139.
b Stith's Va., 36, 37.
84
FIRST VIRGINIA CODE.
[CHAP. II.
for sufficient cause, to remove the president and elect another in his stead; but the authority to " increase, alter, or change" these provincial coun- cils was reserved as a final right to the king.
The Church of England was at once established, and the local powers were to require that the true word and service of God, according to her teach- ings, should be preached, planted, and used, not only among the settlers, but, as far as possible, among the sons of the forest.
The crimes of rebellion, tumults, conspiracy, mutiny, and sedition, as well as murder, incest, rape, and adultery, were to be punished with death, without benefit of clergy. To manslaugh- ter, clergy was allowed. These crimes were to be tried by jury, but the president and council were to preside at the trial-to pass sentence of death- to permit no reprieve without their order, and no absolute pardon without the sanction of the king, under the great seal of England.
But, with the exception of these capital felonies, the president and council were authorized to hear and determine all crimes and misdemeanors, and all civil cases, without the intervention of a jury. These judicial proceedings were to be summary and verbal, and the judgment only was to be briefly registered in a book kept for the purpose.a
For five years succeeding the landing of the settlers, all the results of their labour were to be held in common, and were to be stored in suitable magazines. The president and council were to
a Stith's Hist. Va., 38, 39 ; Burk's Hist. Va., i. 87-89.
·
85
FIRST VIRGINIA CODE.
1606.]
elect a " cape merchant," to superintend these public houses of deposit, and two clerks to note all that went into or came out from them, and every colonist was to be supplied from the magazines by the direction and appointment of these officers or of the council.
The adventurers of the first colony were to choose from their number one or more companies, each to consist of at least three persons, to reside in or near London, and these were to superintend the general course of trade between the mother country and her distant daughter, and direct it into such channels as would be most advantageous to both.
No person was to be permitted to reside in the colonies but such as should take the oath of obe- dience to the king, in the ample form provided for by a statute passed early in the reign of James, and any rash offenders who should attempt to withdraw from allegiance to his majesty, was to be imprisoned until reformation, or else sent to England, there to receive " condign punishment."a
The president and councils, or the major part of them, were empowered, from time to time, to make, ordain, and constitute laws, ordinances, and officers for the better government of the colony, provided that none of these laws affected life or limb in the settlers. Their enactments were also required to be, in substance, consonant to the juris- prudence of England, and the king or the council
a Stith, 37; Burk, i. 87-91 ; Marshall's Am. Colon., 27.
-
86
SPIRIT OF THE KING'S LAWS. [CHAP. II.
in the mother country, was invested with absolute power at any time to rescind and make void the acts of the provincial councils.
As the colonies should increase in population and influence, the king reserves to himself the right to legislate for them; but condescends to restrict his law-making energies to such action as might be " consonant to the law of England or the equity thereof."ª
And to show his tender feelings towards the abo- rigines, whose lands he was so deliberately appro- priating to the use of his subjects, his majesty re- quires that they shall be treated with all kindness and charity, and that all proper means should be used to bring them to " the knowledge of God and the obedience of the king, his heirs and successors, under such severe pains and punishments as should be inflicted by the respective presidents and coun- cils of the several colonies."
On these kingly ordinances the philosophic reader will not fail to observe the impress of the man. The stern penalty of death visited the crimes of rebellion and conspiracy, which aimed a blow at sovereign power, and even the popular tumult, which kings have so much cause to dread, was stilled by the same bloody monitor ; yet arson and burglary were left to the discretion of the councils. Adultery was punished with death-a penalty never inflicted even in England, except during a time of puritanic zeal, which offered to God a ser-
a Stith, 41; Burk, i. 91-92 ; Bancroft's U. S., i. 140.
87
SPIRIT OF THE KING'S LAWS.
1606.]
vice without knowledge.ª In the eye of divine purity the offender, by this crime, may be the vilest of the vile; but if the Redeemer of the world refused to denounce the punishment of death against one taken in the act,bit devolved not on this Scottish Draco to render it a capital crime.c The whole legislative power is vested in the coun- cil, without any reference to the interests or the rights of the people whom they were to govern, and the King retains absolute control over the present and future laws of the colony-thus rendering their great distance from his face the best protection they could have against his tyranny. The trial by jury was required for capital felonies and manslaughter ; but all inferior offences and every civil interest, however overwhelming in importance to the colo- nist, were to be summarily decided upon by the provincial councils. In the same space, it would have been difficult to compress more of absurd con- cession and of ruinous restraint. The clause re- quiring all things to be held in common was de- structive of the most powerful stimulus that urges man to labour; the semblance of mercy which for- bade war upon the savages, often held the hand of the settler when raised in self-defence; and the church establishment, forced by the arm of the law upon reckless adventurers, made religion a hated bondage, and the tithe-gatherer more odious than the author of evil.d
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