USA > West Virginia > History of West Virginia > Part 17
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limits ; being private grantees, they could not touch upon the territory or jurisdiction of the crown. The proprietaries were limited in authority and jurisdiction to their special grants; the crown had its delegated authority in the colony of Virginia, and which, by virtue of the general authority, exercised by the governor and Grand Assembly ; and by virtue of propinquity and of its being the only representative of the sovereign power in juxtaposition with this domain, was in virtual political possession of the territory in behalf of the crown. And this is fully sustained in the subsequent history of the colonies. (2 Henning, 566. The commission of Cul- peper.)
Culpeper was an avaricious spendthrift. His admin- istration was one of extortion and, beyond this, of neglect, and Virginia was "a province impoverished by perverse legislation." The Governor found a residence in the colony too irksome, and upon the "reported griefs and restlessness of the country," the grant to Arlington and Culpeper was reabsorbed in the posses- sion of the crown, and the authority of Culpeper as Governor for life "was rendered void by a process of law." (2 Bancroft, 249.) All the authority theretofore exercised by the colony, and all the powers granted to Culpeper survived to and were executed by the colony.
Arlington reconveyed, and Culpeper was disfran- chised and recalled. Virginia was dissatisfied with the improvident grant made to these men. She solemnly protested by an act of her Grand Assembly. (2 Hen- ning, 51 1.) The agents of the colony visited England, and in behalf of the people and in support of the true interests of the crown, insisted on the resumption of these grants. And they insisted in no equivocal terms,
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"that the power of granting the lands within the colony may reside in the Governor and Council as formerly," that the people of Virginia shall " not be cantonized into parcels by grants made to particular persons; " they prayed for the "usual allowance of fifty acres of land - for every person imported, which experience had proved so beneficial," " that there shall be no tax or imposition laid on the people of Virginia, but according to their former usage by the Grand Assembly and no other- wise," for that "both the acquisition and defence of Virginia have been at the charge of the inhabitants," and for that "it is humbly conceived that if His Majesty deduce a colony of Englishmen by their own consent or license, or permit one to be deduced to plant an uncultivated part of the world, such planters and their heirs ought to enjoy by law in such plantation the same liberties and privileges as Englishmen in England, such plantations being but in nature an extension or dila- tation of the realm of England," "and to confirm the legislative power in the Grand Assembly." (2 Hen- ning, 511, 523, 524, 525, 527. 2 Burk's App., I.)
These requests were substantially approved by the Attorney-General and received the written sanction of the king. (2 Henning 529, 530, 531.) No charter issued, as was desired by the colonists, but Virginia remained dependent on the crown, exercising its sove- reignty over the " extension and dilatation of the realm of England," within the borders prescribed by the original charter, limited by subsequent grants as above mentioned, and gradually looking to "all that space and circuit of land throughout from sea to sea, west and northwest." Those desirous of most thorough resolution of any doubt upon the general authority
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and jurisdiction exercised by Virginia are referred to the legislative records of the colony, every page of which shows that its power was expanded with the population and its increasing wants. Every right claimed by the colonists in the negotiations with Charles II. was exercised by them. They were colonists, already exercising a special and independent authority as a colony for its own protection, its own internal government, and its own "dilatation," unlimited but by the bounds of Carolina on the South, Maryland and Pennsylvania on the north and northwest. (3 Henning 18, 84, 88, 99, 115, 119, 135, 205, 236, 250, 284, 304 to 333, for land law, 204, 268.)
The authorities cited in the last note bring us down to the year 1705. By the act of 1701 (3 Henning, 204 et seg), any quantity of land not under 10,000 nor over 30,000 acres, free from quit rents, public, county or parish levies, was granted to every certain number of men upon any of the frontiers of "this government," pro- vided that for every five hundred acres so granted there "shall continually be kept upon the land one Christian man," etc. And by the act of 1705 (2 Henning, 468), exclusive authority for trade is proposed to be given on certain conditions to the discoverers of any town or nation of Indians "to the west of or between the Ap- pulatian (Allegheny) mountains." In 1710 and 1711, Governor Spottswood issued his proclamation "restrain- ing settling on out-lands during this time of. danger," and by his proclamation of 10th of June, a free trade with western Indians is regulated. (4 Henning, 446, 553.) The interdict of the Governor and the regula- tion of trade are alike acts of sovereign jurisdiction.
The French encroachments in the west now begin
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to attract attention. And if the law of nations gave England no title by discovery, France gained nothing by her imperfect possession. The title set up by both nations was the title by discovery. This title on the part of England went back to the original discovery " by the Cabots. France and England were the only nations claiming title. By the 15th article of the treaty of Utrecht, 1713, it was provided that " the subjects of France, inhabitants of Canada and elsewhere, should not disturb or molest in any manner whatever the five Indian nations which were subject to Great Britain, nor its other American allies." The right of Great Britain was here acknowledged by the only authority that had the slightest ground for contesting her title. England so understood it, and Virginia, representing the English sovereignty in her colonial capacity; acted on that understanding, and gradually " dilated " until she had pushed her actual possessions and grants of lands northwest of the Ohio river. Let the current of history be pursued.
False to her treaty engagements, France insidiously introduced her settlements into the west, which attracted attention and excited the alarm of the colonies. Gov- ernor Spottswood hoped to extend the line of the Vir- ginia settlements "far enough to the west to interrupt the chain of communication between Canada and the Gulf of Mexico." He caused the passes of the moun- tains to be examined; desired to promote the settle- ments beyond them, and sought to concentrate within his province-Virginia-bands of friendly Indians. (3 Bancroft, 344.) In 1719 Pennsylvania pressed upon the attention of the Lords of Trade resistance to the encroachments of France, and counselled the establish-
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ment by Virginia of a fort on Lake Erie. (3 Bancroft, 345. Smoll, Eng., c. 9, Geo. II. Id., c. 8, R. Geo. II. I Pitk. U. S., 139, 140.) The vigilance of Virginia in watching, protecting and securing the great western domain never slumbered. With true loyalty and alle- giance, so propitious for this whole republic in its results that it looks like a decree of fate, she persisted in the claim of all that region for herself and the throne she represented. She was present at the treaty of Lan- caster, in Pennsylvania, in 1744, where her commissioners -Governor Spottswood one of them-met the deputies of the Iroquois, who being united with the Tuscaroras, became known as the Six Nations, and who there exe- cuted, on the 4th day of July, a deed recognizing the king's rights to all lands that are or shall be by His Majesty's appointment in the colony of Virginia. (3
Bancroft, 355, 356.) To settle this fact more fully, let an extract from an old work, printed in Pennsylvania in 1751, now in the library of Congress, with the title " Delaware and Shawanese Indians," pp. 52, 53, testify : " The commissioners of Virginia after disputing the rights and claims of the Six Nations offer them a quan- tity of goods to the value of two hundred pounds, Penn- sylvania currency, and two hundred pounds in gold, on condition they immediately make a deed recognizing the king's right to all the lands that are or shall be by His Majesty's appointment in the colony of Virginia. * Accordingly the deed was signed and everything settled to mutual satisfaction." Does this deed need confirma- tion ? In 1752, Joshua Fry, Lunsford Loamax, and James Patton, commissioners in behalf of the colony, were appointed by the Governor of Virginia with instructions to obtain from the Indians settled on the
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Ohio a confirmation of the Lancaster deed. On the 13th of June of that year the confirmation was given by these Indians in the very bosom of their forest domain. "The sachems and chiefs of the said Six Nations now met in council at Loggstown, do hereby signify our consent and confirmation of the said deed in as full and ample a manner as if the same was here recited." (Colony Titles, 25 to 26.) Whatever title existed in the Six Nations was transferred and vested in the colony of Virginia.
We have now reached the period of the French war, which terminated in the treaty of Fontainebleau or Paris, 1763. The historians of England, generally authorita- tive exponents of their public facts, describe Virginia as "watered on the north by the river Potowmack, which is the boundary between this and the colony last described-Maryland-having the Bay of Chesapeake to the east, bounded on the south by Carolina, and extending westward without any prescribed limits." And Edmund Burke gives a similar description. (Smoll., c. 9, R. Geo. II. Ed. Burke's Acct. of Euro- pean Settlements in America, vol. 2, p. 207, London, 1765.) Sir R. Beverly's boundaries are in exact accordance as understood in 1722. An English author in 1770 thus describes Virginia: The country which still bears this name is now reduced to that tract which has the river Potomac on the north; the Bay of Chesa- peake on the east, and Carolina on the south. To the westward the grants extend it to the South sea. (Wynne's Br. Em. in America, 2d vol., 213. Gordon Geog., An'd, 362. London, 1744.) In strict accord- ance with the historians are the geographers of Eng- land. No geographer confines Virginia at any time 17
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previous to her own cessions to any line east of the Mississippi river. Kitchen, whose map is distinguished for extreme accuracy, makes Virginia's western and northern boundary rest on the Mississippi and Lake Erie, and defined "according to the treaty of 1763." (Knox's War in America.) Consult also the map in Russel's History of America, London, 1778, and the map to Tarleton's campaign, London, 1787. Such were the opinions of enlightened and scientific men of Eng- land as to the boundaries of Virginia. We have seen that she had the title of the native sovereigns. Having these titles she used and claimed the possession, and her exercise of this right precipitated the French war. The controversy between England and France pro- duced various memorials, and in the French crimina- tions they say "some English traitors passed the, mountains of Virginia and wanted to carry on trade with the Indians on the Ohio, and the French took and carried them to France." (I Pitk. U. S., 140.) In the journal of Washington, kept by him in his remarkable journey undertaken to the northwest, under the direc- tion of Dinwiddie, Governor of Virginia, he says: "For the fort at the fork-now Pittsburg-would be equally well situated on the Ohio, and would have the entire com- mand of the Monongahela, which runs up our settlement, and is extremely well designed for water carriage." (2 Mar. Wash. App., p. 2.) In 1752, the Ohio Company established a trading post on Loramie's creek, forty- seven miles north of the present site of Dayton, in Ohio. (Dill. Hist. Indiana, 67.) The first acts of hostility on the part of the French clearly indicate the possession and extensive establishment of Virginia west of the Appalachian mountains-west of the Ohio river.
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"They-the French-surprised Loggstown, which the Virginians had built upon the Ohio; made themselves masters of the block-house and truck-house, where they found skins and other commodities to the amount of twenty thousand pounds, and destroyed all the British · traders, except two, who found means to escape. At the same time M. de Contrecœur, with a thousand men and eighteen pieces of cannon, arrived in three hundred canoes from Venango, a fort they had raised on the banks of the Ohio, and reduced by surprise a British fort which the Virginians had built on the forks of the Monongahela." (Smoll. Eng. c. 9, R. Geo. II. 2 Wynne, 25. Rus. Hist. of Amer., vol. 2, 375.) Virginia had acted in the spirit of the recommendation made by her coterminous neighbor in 1719. Loggstown was on the western side of the Ohio river (Col. Boquet's Relation Hist. contres les Indiens, 1764, p. 58, map. Mar. Wash., C. II, p. 377. 7 Henning, 661.) The mass of wealth collected at this single point affords some proximate idea of the extensive use and appropriation of the ter- ritory northwest of the Ohio. The British construction of the treaty of Utrecht was carried into execution by Virginia. Where is Connecticut? Where New York with their post-belligerent claims? It was Virginia that built the forts; that planted the settlements; and erected the block-houses and truck-houses. Virginia, exercising the same elements of political authority which she exercised from 1609 to 1624, the period of her charter existence, extended her dominion and pos- session to "our settlement" on the Monongahela, to Loggstown and to Loramie's creek, in like manner as she planted the corner-stone of her first capitol in Wil- liamsburg. The settlement of Utrecht was violated,
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but vindicated by the treaty of Paris of 1763, which put an end to the usurpation of France over the territory in question. Of the independent nations of the earth there was, now, not one to question the validity of the English title, deduced from the discovery of the Cabots and confirmed by the two treaties and by Virginia's extinguishment of the Indian title and actual occupancy. Possession and title vested in the "English traitors" who crossed the mountains of Virginia.
The colony of Virginia was the only crown colony in immediate proximity and connection with the west- ern domain. It was clearly included in the bounds of the original charter ; no portion of it was ceded away by any subsequent grant which created any title recog- nized by the crown or enforced by the colonies, except so much as was included in the five degrees of longi- tude of Pennsylvania. The northwestern corner of Pennsylvania rested on Lake Erie; the southwest corner of New York had the same abuttal. (Delaware and Shawanese Indians map; Map to Russ. Hist. America ; Kitchen's Map; I Knox War in America ; Wynne's Br. Emp. in America, vol. I., 171; Grant of C. II. to Duke of York; Smith's Hist. of N. Y., 14.) After the treaty of 1763, it became important and necessary for the crown to construct a colonial organi- zation for the immense region maintained by that treaty. This was done by the royal proclamation of 1763, and the colonies of Quebec and East and West Florida were organized. (7 Henning, 663; I Pitk., 150.) No notice was taken of the territory under consideration. It is not mentioned; it is not referred to in the organization of the territories. Was this an oversight? was this forgetfulness? Was this enchant-
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ing country still left to be the apple of discord between France and England? For the French, by the treaty, were left the masters and possessors of the western border of the Mississippi along its whole length. It was for the possession of this country that war was incurred. It was to maintain the British right to it that the war was prolonged, and the title to which was ac- knowledged by the treaty. The country was filled with traders ; the British subjects were desirous of locating their trading establishments; the territorial and commercial value of this region, as well as its boundaries and the boundaries of Pennsylvania and New York, were well understood. Pennsylvania was interposed between it and New York. The common- law doctrine of title gave the possession to Virginia ; the same doctrine repelled the possession of New York, and England's colonial and international law was then based upon her common law. All the other territory of England was partitioned off into colonies by this proclamation ; and was this immense and valu- able region left without law, without order, beyond all jurisdiction and beyond protection to the persons and property of traders and others? It was not assigned to any new jurisdiction ; it was not set apart as a separate colony, and whatever ill-defined notions of the country may have existed in 1609, when the original charter was granted, did not exist when the proclamation of George III., in 1763, assigned all the surrounding territories to new jurisdictions, and left this country in the possession of the colony, which by regular dilata- tion, by its own political action and by the ministerial and military functions of its governors, had covered it with its jurisdiction and authority. (6 Henning, 355,
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417, 435, 438, 453, 521 ; 7 Henning, 11, 116, 171, 252, 282, 370; I Rev. C., 38 n.) The references include the period from 1753 to 1763, and exhibit the control of Virginia dominion in every possible manner in which authority and jurisdiction could be at that time exercised-from legislative protection of settlers on the waters of the Mississippi to the building of forts and granting of lands northwest of the Ohio river. (Gov- ernor Dinwiddie's Proclamation, 1754; 7 Henning, 661.) The commencement of the war found Virginia exercising jurisdiction ; this jurisdiction was continued during the war, and by the proclamation of 1763 was left undisturbed. Subsequently to the treaty of Paris, the Grand Assembly of Virginia continued its ordinary jurisdiction over the west. Creating counties, granting lands (military bounty lands to Washington and the officers and soldiers of the war of 1756, under authority of royal proclamation of 1763, relaxing the previous inhibition), protecting settlers, she had successively extended her borders and filled it with population, until, in 1776, she had organized the counties of Ken- tucky, Washington, Montgomery, Ohio, Monongalia and Yohogania, the county of Yohogania being subse- quently merged into Pennsylvania, in 1785, by the ascertainment of her five degrees of longitude. In 1769 Fort Fincastle stood at the mouth of Wheeling creek; in 1770 the settlement at Grave creek was made, and in 1772 Kentucky was possessed. (Butler's History of Kentucky, 18, 20, 25, 30.) October 10, 1774, is memorable for the battle of Point Pleasant, at the mouth of the Great Kanawha. And here closes the history of the colonial dependence of Virginia ; and one of her last acts, under the guidance of an English
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governor, was the assertion of her protective and vin- dicatory authority over her territorial claim. In 1609 this colony commenced a feeble and precarious exist- ence on the shore of Chesapeake bay; in 1774 that colony, vigorous and in the confidence of strength, in her own name and in the name of the majesty she represented, and as one of her last acts of allegiance, and clothed with that sovereignty which had accompa- nied her through her whole career, stood upon the banks of the Ohio, and waved her sceptre of dominion over the immense country which England, her kings, historians, geographers and legislators recognized as Virginia.
To conclude the view of this branch of the subject it must be borne in mind that the crown had not only a legal, but exercised an actual supervision over the legislation, orders in council as well as the proclamation of the governors. The crown was legally, and in fact cognizant of the actions of the colony. The proclama- tion of 1763 is evidence of this fact. The military land warrants granted to the officers and soldiers of Vir- ginia, and authorized by the crown, covered the banks of the Ohio. Then here we claim the full value of the principle which maintains the title of Virginia under her charter, for, " such a solemn covenant, so concluded between a sovereign and his subjects, after being fully executed on their parts can never be revoked on his. The genius of English liberty evoked by this ever-enduring covenant, accompanied them whitherso- ever they might go in Virginia, as a guardian angel, to whose charge was especially committed the preservation of all their English privileges. It is false, then, to say that the colonists of Virginia could claim nothing under
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the charters after the revocation of these charters in 1624." (2 vol., Rep. Com., I sess., 28, No. 457, p. 20.) Virginia claims the full benefit of the principle, that revo- cation of the charter could not annul vested rights, but what is of conclusive weight on this subject, she has the entire benefit of the fact. She was the crown colony exercising the political authority contained in her char- ter, with the knowledge of the crown, over the territory described in that instrument. She was the colony de facto of all this territory from 1624, limited as described. She was the colony de jure, by the assent of the crown, to her unintermitted claim and virtual possession through one hundred and fifty years.
July, 1775. The history of colonial dependence is past; the committee of public safety is appointed ; the military force is organized; the oath is taken "in defence of the just rights of America against all ene- mies whatsoever," subject only to the "general con- vention or General Assembly of Virginia," and this is in July, 1775, styled in the records of Virginia the "Interregnum." (9 Henning, 13, 36, 49, 96, 101.) A convention is called to meet on the first Monday of May, and on the 29th of June, 1776, it was solemnly declared by that convention that "the government of this country as formerly exercised under the crown of Great Britain is totally dissolved." A new government was by the same act organized and its boundaries defined, and the authority of the independent State of Virginia, succeeded by her own sovereign act to all the rights of the colony, whether de facto or de jure as against the crown. Virginia was independent, with a constitutional boundary embracing all territory con- tained in her charter, cast of the Mississippi, and except-
ال بطة مختفية الرسالة الدرجة
HISTORY OF WEST VIRGINIA. 279
ing Carolina, Maryland, and Pennsylvania. She was in possession of the territory by her settlers, her arms and her laws. She had thrown off the allegiance of England, and in throwing off, her convention defined the soil which she claimed against the crown and- against the world. The declaration of independence by the colonies was made more than a year after the actual independence of Virginia. Her title by revolu- tion dates back to the time when she commenced the exercise of her sovereign powers. Virginia in her new State capacity took military possession of the north- western country and erected it into the county of Illinois. She kept military possession of it, and the peace of 1783, found her the sole occupant of its wide domain. Did that peace acknowledge the independence of a nation or the freedom of confederated States ? The former has never been pretended, and it is a fal- lacy to suppose for a moment that in fixing the bounda- ries of colonies, in concluding the terms of that peace, that the limits of Virginia, as defined by her charter and the treaty of 1763, as described by English histo- rians, laid down by English geographers and as fixed by her constitution, were not the elements of adjustment in the direction west and northwest. That adjustment could not have been upon the boundary of Pennsyl- vania ; that was limited to the five degrees of longitude. It could not have been the line of New York proper, for that had the northern line of Pennsylvania, and its southwestern corner rested on Lake Erie. It could not have been in virtue of the treaty of Fort Stanwix in 1768, for that was a conveyance to the crown and not to New York. It only extended to the south side of the Ohio. What title covered the northwest of that river ?
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What, then, is the title of Virginia ? The discovery of the Cabots ; the charter of 1609; the partial de- scription as contained in the leasehold of Culpeper ; the acknowledgment by France in the treaty of Utrecht ; the grant of the Six Nations at Lancaster ; the confirmation thereof at Loggstown ; the treaty of 1763 ; the constant legislation of the colony ; the act- ual granting and seating of lands to 1775, the era of 'Virginia independence ; the military possession of the country by the colony in 1774; the assertion of boun- daries in the constitution of June, 1776; the military and political possession of it by Virginia in pursuance of her unintermitted claim to the close of the war of the revolution ; and lastly, the treaty of 1783, which confirmed the colonies in their ancient boundaries.
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