USA > West Virginia > History of West Virginia > Part 16
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No. 2. Copy of a letter from Major Gooch, Lieu- tenant-governor of Virginia, to the lords commis-
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sioners for trade and plantations, dated at Williams- burg, June 29th, 1729.
No. 3. Petition to the king and council, in relation to the Northern Neck grants and their boundaries, agreed to by the House of Burgesses, June 30th, 1730.
No. 4. The petition of Thomas, Lord Fairfax, to His Majesty in council, preferred in 1733, setting forth his grants from the crown, and that there had been divers disputes between the Governor and council in Virginia and the petitioner and his agent, Robert Carter, Esq., touching the boundaries of the peti- tioner's said tract of land, and praying that His Majesty would be pleased to order a commission to issue for running out, marking and ascertaining the bounds of the petitioner's said tract of land.
No. 5. A copy of an order of His Majesty in privy council, bearing date 29th of November, 1733, direct- ing William Gooch, Esq., Lieutenant-governor of Vir- ginia, to appoint three or more commissioners-not exceeding five-who, in conjunction with like number to be named and deputed by the said Lord Fairfax, are to survey and settle the marks and boundaries of the said district of land, agreeably to the terms of the patent under which the Lord Fairfax claims.
No. 6. Copy of the commission from Lieutenant- governor Gooch to William Byrd, of Westover, John Robinson, of Piscataway, and John Grymes, of Bran- don, appointing them commissioners on behalf of His Majesty, with full power, authority, etc.
I have not been able to meet with a copy of the commission of Lord Fairfax to his commissioners ; they were William Beverly, William Fairfax and Charles Carter. It appears, by the accompanying
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report of their proceedings, that "his lordship's com- missioners delivered to the king's commissioners an attested copy of their commission," which having been found, upon examination, more restricted in its au- thority than that of the commissioners of the crown, gave rise to some little difficulty, which was subse- quently adjusted.
No. 7. Copy of the instructions on behalf of the Right Honorable Lord Fairfax to his commissioners.
No. 8. Minutes of the proceedings of the commis- sioners appointed on the part of His Majesty and the Right Honorable Thomas Lord Fairfax, from their first meeting at Fredericksburg, September 25th, 1736.
No. 9. Original correspondence between the com- missioners during the years 1736 and 1737, in refer- ence to the examination and survey of the Potomac river.
No. 10. The original field-notes of the survey of the Potomac river, from the mouth of the Shenandoah to the head spring of said Potomac river, by Benjamin Winslow.
No. II. The original plat of the survey of the Potomac river.
No. 12. Original letter from John Savage, one of the surveyors, dated January 17th, 1737, stating the grounds upon which the commissioners had decided in favor of the Cohongoroota over the Wappacoma, as the main branch of the Potomac. The former, he says, is both wider and deeper than the latter.
No. 13. Letter from Charles Carter, Esq., dated January 20th, 1737, exhibiting the result of a compara- tive examination of the north and south branches of the Potomac. The north branch at its mouth, he
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says, is twenty-three poles wide, the south branch six- teen, etc.
No. 14. A printed map of the Northern Neck of Virginia, situate between the rivers Potomac and Rap- pahannock, drawn in the year 1737, by William Mayo, one of the king's surveyors, according to his actual survey in the preceding year.
No. 15. A printed map of the course of the rivers Rappahannock and Potomac, in Virginia, as surveyed according to order in 1736 and 1737-supposed to be by one of Lord Fairfax's surveyors.
No. 16. A copy of the separate report of the com- missioners appointed on the part of the crown.
I have met with no copy of the separate report of Lord Fairfax's commissioners.
No. 17. Copy of Lord Fairfax's observations upon and exceptions to the report of the commissioners of the crown.
No. 18. A copy of the report and opinion of the Right Honorable the Lords of the Committee of Coun- cil for Plantation Affairs, dated April 6th, 1745.
No. 19. The decision of His Majesty in council, made on the 11th of April, 1745, confirming the report of the council for plantation affairs, and further ordering the Lieutenant-Governor of Virginia to nominate three or more persons-not exceeding five-who, in conjunc- tion with a like number to be named and deputed by Lord Fairfax, are to run and mark out the boundary and dividing line, according to his decision thus made.
No. 20. The original commission from Thomas Lord Fairfax to the Honorable William Fairfax, Charles Carter and William Beverly, Esqrs., dated 11th June, 1745.
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Colonel Joshua Fry, Colonel Lunsford Lomax and Major Peter Hedgeman were appointed commission- ers on the part of the crown.
No. 21. Original agreement entered into by the commissioners, preparatory to their examination of the Potomac river.
No. 22. The original journal of the journey of the commissioners, surveyors, etc., from the head spring of the Rappahannock to the head spring of the Potomac, in 1746.
This is a curious and valuable document, and gives the only authentic narrative now extant of the planting of the Fairfax Stone.
No. 23. The joint report of the commissioners ap- pointed, as well on the part of the crown as of Lord Fairfax, in obedience to His Majesty's order of 11th of April, 1735.
No. 24. A manuscript map of the head spring of the Potomac river, executed by Colonel George Mer- cer of the regiment commanded in 1756, by General Washington.
No. 25. Copy of an act of the General Assembly of Maryland, passed February 19th, 1819, authorizing the appointment of commissioners on the part of that State, to meet such commissioners as may be appointed for the same purpose by the commonwealth of Virginia, to settle and adjust by mutual compact between the two Governments, the western limits of that State and the commonwealth of Virginia, to commence at the most western source of the North branch of the Potomac river and to run a due north course thence to the Pennsylvania line.
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No. 26. Letters from intelligent and well-informed
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individuals, residing in the country watered by the Potomac and its branches, addressed to the under- signed, stating important geographical facts bearing upon the present controversy.
There are other papers in my possession, not listed nor reerable to any particular head, yet growing out of and illustrating the controversy between Lord Fair- fax and the crown ; these are also herewith transmitted.
There are other documents again not at all connected with my present duties, which chance has thrown in my way, worthy of preservation in the archives of the State. Such, for example, as the original " plan of the line between Virginia and North Carolina, which was run in the year 1728, in the spring and fall, from the sea to Peter's Creek, by the Honorable William Byrd, William Dandridge and Richard Fitzwilliams, Esqrs., Commissioners, and Alexander Irvine and William Mayo, Surveyors-and from Peter's Creek to Steep. Rock Creek, was continued in the fall of the year 1749, by Joshua Fry and Peter Jefferson." Such documents, should it accord with the views of your Excellency, might be deposited with "The Virginia Historical and Philosophical Society," an institution of recent origin, yet founded upon the most expanded views of public utility, and which is seeking by its patriotic appeals to individual liberality to wrest from the ravages of time the fast perishing records and memorials of our early history and institutions.
With sentiments of regard, I am, very respectfully, your obedient servant,
CHARLES JAS. FAULKNER. To JOHN FLOYD, EsQ., Governor of Virginia.
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CHAPTER XVIII.
WEST VIRGINIA'S CLAIM TO THE JURISDICTION OF THE OHIO RIVER.
West Virginia now Occupying the Position of Virginia-Ohio and Virginia attempt to settle the Disputed Question-Commissioners appointed on the Part of each State-Their Meeting at the National Capital-Their Failure to agree-Hon. George W. Thompson's Investigations Relative to the Subject- Text of his Report-Historical Review-Legal Deductions.
FOR almost a century the title and jurisdiction of Virginia to the Ohio river was a matter of dispute, and many were the opinions submitted by eminent lawyers respecting it. It had become customary with several members of Congress, and especially with Mr. Calla- mar, of the Senate, on all occasions when any line of discussion permitted it, to assail the title of Virginia to the territory northwest of the Ohio river. In claiming compensation for the services of Virginia in the Rev- olutionary war as bounties out of the lands of the United States, it was natural for the Representatives and Senators from that State to lay some important stress upon the grant of that large domain to the general government by Virginia. This was the occa- sion generally used by these men in Congress for the attack upon the title of the "Mother" of the great States created out of that vast territory, though the assaults were not always confined to such opportu- nities.
The political and legal questions relating to the (256)
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jurisdiction of Virginia over this river depended in an important degree on the validity of the title of Virginia to the lands beyond the Ohio river.
In order that an equitable and satisfactory solution of the vexed question might be reached, the two States of Ohio and Virginia in 1848 appointed a com- mission consisting of three members from each, the duty of which was " to settle all questions of boundary between the two States." Those appointed by Ohio were Hon. Thomas Ewing, John Brough, and James Collier; those named by Virginia were Messrs. Wil- liam C. Rives, William Greene and George W. Thomp- son. These gentlemen met in the city of Washington in the early part of January, 1848, and adjourned on the 26th of the same month without having agreed upon terms of adjustment.
West Virginia now stands in the place of Virginia as to all questions depending upon that title and in- volving the jurisdiction over more than 200 miles of the course of that river. George W. Thompson, the last-named commissioner on the part of Virginia, made a very thorough and extended examination of the subject and published the result of his researches in the April number-1848-of the Southern Literary Messenger. Because of its historical value and its inaccessibility to West Virginians, we reproduce it entire.
HISTORICAL REVIEW.
"On the 23d of May, 1609, James I., as king of England, granted by letters patent an extension of what may be called the corporation of Virginia. The
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limits and jurisdiction of this corporate body included "all those lands, countries and territories situate, lying and being in that part of America called Virginia, from the point of land called Cape or Point Comfort, all along the seacoast to the northward, two hundred miles, and from the said point of Cape Comfort, all along the southward, two hundred miles, and all that space and circuit of land throughout, from sea to sea, west and northwest." (I Henning, 88.) This was the description of the territorial limits. A form of government was ordained, the executive and legislative authority was prescribed, crimes were to be punished, contracts enforced, census to be taken, and the entire organism of a colonial government was defined. (“In- structions to Governor Wyatt, 1621." I Henning,
114, et seq.) Its boundaries and its jurisdiction were prescribed. The corporation had a legal existence ; its jurisdiction was commensurate with the limits of its grant. Whatever right belonged to or was asserted by the crown of England vested in the corporation ; soil and sovereignty both passed. At the Trinity term of the Court of King's Bench, 1624, the corporation was dissolved by the judgment of that court. The legal existence of the corporation as a monopoly then ceased, and at the same moment the political existence of the colony of Virginia commenced, and continued uninterruptedly to its independence. The corporation was dissolved, but this made no change in the political condition of the people. All the elements of govern- ment which had been granted to the corporation or developed by it, in the execution of powers necessary under the condition of things, were continued to the colony. From 1630 to 1642, a period of twelve years,
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there remain the partial records of sixteen legislative assemblies (I Bancroft, 199, n.), and subsequent to the judgment of dissolution these assemblies had been convened and were in correspondence with the throne, and their continuance is the evidence of their recogni- tion (I Henning, 134) ; and expressly recognized by the proclamation of George III., who guaranteed to the subjects of the new colonies, acquired by the treaty of 1763, the same institutions as existed in the other colonies. (7 Henning, 663.) The colony of Vir- ginia was in existence; it had merely passed from the condition of a proprietary to that of a provincial or crown colony. The corporation of Virginia was, by the act of the crown, transmuted into the colony of Virginia, and by the act of transmutation the limits of territory and jurisdiction were not altered. The colony succeeded to the authority, territory and jurisdiction of the corporation. It became a crown colony, subject only to express limitations, by the crown, of its terri- tory and jurisdiction. And to the extent of such express restrictions was it limited, and Virginia, as a colony and as a State, has recognized all such known grants in the charters of Carolina, Maryland and Pennsylvania.
The claim of the crown embraced all the parallels of latitude through to the South or Pacific sea. This claim could only be maintained under the laws of nations, by possession of some kind. (Vattel, b. I, c. 18, sec. 207.) The colony of Virginia was now the only political organization on the continent in virtue of which Great Britain could claim any possession of the country. Virginia represented the crown upon the continent ; her political possession extending to the
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possession and claim of the crown, except in the subse- quent cases of expressed grant and limitation by the crown to other colonies or proprietaries. As the dele- gated authority of the crown upon the continent, it was, in virtue of that relation, the occupant under the crown to the extent of the crown claim. The extent of that claim and the title of England will appear as we progress.
Carolina on the south, Maryland and Pennsylvania on the north, limited the territory of Virginia. New York had no existence, and no jurisdiction could vest in her; she was conquered from Holland in 1663. Then Virginia was not limited farther than as above stated by any crown grants of its adjacent territory, and before the establishment of New York as a distinct and separate crown colony, the grant to Pennsylvania, bounded on Lake Erie, excluded her from the west, and that colony was interposed between New York and the valley of the Mississippi. When, subsequently, New York was created a proprietary colony and her bounds came to be definitely understood, they were defined by the English historian with apparent accuracy. "From forty-one degrees, forty minutes on Delaware river, New York runs twenty miles higher on Delaware river to the parallel of forty-one degrees latitude, which by Pennsylvania royal grant, divides New York from the province of Pennsylvania. Upon this parallel New York is supposed to extend west to Lake Erie; and from thence along Lake Erie and along the communi- cating great run of water from Lake Erie to Lake Ontario." (Wynne's Br. Emp. in America, vol. I, p. 171. London, 1770. Smith's Hist. of N. Y., p. 14.) This description of the bounds of New York is
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strengthened by "A new and accurate map of the British dominions in America according to the treaty of 1763, divided into the several provinces and juris- dictions, projected upon the best authorities and astro- nomical observations." (Map to Knox's War in America, vol. 1. London, 1769. See also Map in Russ. Hist. of America. London, 1778, vol. 2, p. 172 and title page.) New York has her southwest corner resting upon Lake Erie and Pennsylvania interposed between her and the west. But yet New York is not in existence. Then, that Virginia was limited farther than as above stated, must be repeated. She had then a political existence. What were its powers ? It repre- sented the sovereignty of England; sold land and extinguished Indian title ; in October, 1629, the Grand Assembly passed an "Appropriation and revenue law." (1. Henning, 142.) This Grand Assembly was never suppressed, and the colony continued to exercise juris- diction over all persons and property within her limits. In 1652, upon the capitulation of the commonwealth, it was stipulated that the "People of Virginia," should have all the liberties of the freeborn people of England. (1. Bancroft, 223.) At the termination of the inter- regnum of Englishhistory, in 1660, Sir William Berkeley was elected governor of the colony, and acknowledged the validity of the acts of the Burgesses, of whom it was expressly enacted that "he do not dissolve this Assembly without consent of the major part of the House " (1. Henning, 530-1), and which Assembly exercised a very general, though limited power of legislation. At this time the population of Virginia had increased to 30,000 souls. Was the authority of the colony confined to the original members which
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composed the corporation and to the soil actually settled by them at the time of the revocation of the charter, or did its jurisdiction expand with the population ? Was her colonial sovereignty confined to the territory occupied by the original settlers, or did it expand with the new grants and occupancy of lands and the increase of population ? Then, when and where was her au- thority over the expanding population and receding frontiers limited ?
The feeble Richard grasped, but could not hold, the iron mace of Cromwell, and the 11th day of October, 1660, the restoration of Charles II. finds the " Grand Assemblie held at James Cittie in Virginia," and Sir William Berkeley His Majesty's governor. And from this time to the close of her colonial existence the " Grand Assembly" was regularly held. The char- acter of its legislation, the objects to which it was devoted and the powers exercised, can only be fully realized by the perusal of its legislative enactments. Suffice it to say there was no suspension of legislative function, but that in 1666, the Burgesses assert, in reply to the royal governor, "that they conceive it their privilege to lay the levy in the house " (2 Hen- ning, 254), and in 1670, define who shall have the right of suffrage (2 Henning, 280). In 1680, the same body passed a naturalization act, erected fortifi- cations, and raised "a publique revenue for the better support of this His Majestie's colony" (2 Henning, 220, 255, 307, 433, 464). These are the acts of quasi sovereign authority exercised within and over the territory of the colony of Virginia, let that in- clude what it may. They are the acts of sovereign ownership, in virtue of which only could Great
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Britain claim the unseated lands appurtenant to this her colony.
They were essential to the perfection of her right by discovery, and her claim to the northwest. Who then shall define what this territory includes, or what acts of the colony or of the crown shall explain in any further degree the meaning of the original grant and jurisdiction conferred by James I .? No one certainly will deny that as the expanding population widened the limits of the frontiers the authority and the rights and privileges conferred by the laws of the colony accompanied such extension. This right of extension was coterminous with the bounds assigned to the colony ; if no bounds were assigned, and the revoca- tion of the charter repealed or dissolved the ancient limits, then the right of expansion by the colony was coexistent with the British Empire in America, except where crown grants with exclusive jurisdiction, limited that right of indefinite expansion. But the lease of Charles II. to Arlington and Culpeper will serve to explain the royal idea of what was contained in part in the bounds of Virginia. This lease, granted' pre- vious to 1680, leased "all that entire tract, territory, region, and dominion of land and water commonly called Virginia, together with the territory of Accomack and all that part of the bay of Chesapeake that lyeth betweene the same or any part thereof, and all other the rights, members, jurisdictions, and appurtenencies thereof, situate, lying, and being in America, adjoining to the colony and dominion of Maryland toward the north, to the great ocean towards the east, to the colony and dominion commonly called Carolina towards the south, and are bounded towards the west by a line
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leading from the first spring of the great river dcom- monly called Patawomack, to the first spring of the river Rappahannock, and from thence to the first spring of the great river of Powhatan, otherwise called James river, and from thence in a meridian line to the said colony or dominion called Carolina, as also all those other tracts, regions, dominions, and territories of land and water, situate, lying, and being beyond the uttermost adjacient limitts of Carolina aforesaid and the westerne limitts of the lands and countries hereby granted and the uttermost westerne limitts of Mary- land, or any of them betweene about thirty-six degrees and one halfe and forty degrees of northerne latitude, to the great sea towards the west" (2 Henning, 517). This lease gave the lessee "full power, lycence, and authority" "to divide and subdivide the said re- gions, tracts, territories, and dominions into counties, hundreds, and parishes " (2 Henning, 573). On the 10th of May, 1680, Lord Culpeper, proprietary lessee as aforesaid, took his oath of office as governor of the colony (2 Bancroft, 246), and at the same time the council of the colony were inducted into office, the oath of office being substantially the same as that required in 1621, viz-"shall assist and defend all jurisdictions, preheminences, and authority granted unto his majestie and annexed unto the crown, against all foreigne princes, persons, prelates, and potentates whatsoever" (I Henning, 119; 2 Id., 568). The same "jurisdictions, preheminences, and authority" are now to be maintained by Virginia that were to be asserted by her in the early settlement of the country when England claimed the continent by virtue of the discovery of the Cabots. The authority of the colony
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remains unlimited. The leasehold to Culpeper is dis- tinct from the jurisdiction and duty of the colony.
It is not necessary to go into a critical examination of this grant; it conveyed a leasehold ; it did not limit by any form of words the jurisdiction of Virginia, as a colony, over the territory embraced in the description of the charter of 1609, but gave Culpeper, in his own right, unlimited authority of sale, grant, division, and subdivision within the bounds assigned. The lease itself is particular and minute in its description, and the lands west are set forth with the same technical minutiæe that the territory of Accomack is mentioned then, as now, known as a part of Virginia ; its lands seated and its people represented in the Grand Assembly.
Now advert to the situation of the surrounding territory. Virginia was bounded on the south by a well-defined line in the crown-grant of Carolina to Lord Clarendon, and which was now governed as a proprie- tary colony under the constitution of the famous John Locke. (Story Con., b., I, c. 14.) To the north, the grant to Cecelius Calvert conveyed the territory of Maryland. In 1671, the territory of the crown in the west was limited to the east and bounded by the five degrees of longitude granted to Pennsylvania. From this time forward all the territory of Great Britain north of the Carolina line and west of the Pennsylvania, was separated by well-defined limits from all the other colonies, and was in immediate connection, in a state of appurtenance, to the only crown colony on the con- tinent. Virginia by her general laws, and by the oaths of her officers, was sustaining the "jurisdictions, prehem- inences and authority " of the crown. The authority of the proprietary colonies did not extend beyond their
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