Gunston-Hall Octor. 19th. 1782.
Your Favour of the 30th. of August was so long on the Road, that it did not reach me until a few Days ago. I must beg Pardon for not writing sooner to you & the other Gentlemen of the Committee for stating the Title of Virginia to her western Territory. The Truth is, I was somewhat embarrassed by an Appointment, which I was far from desiring, or expecting; and which I had not an Opportunity of refusing, as I shou'd have done, had I received Notice of it, before the last Session ended.
I quitted my Seat in the House of Delegates, from a Conviction that I was no longer able to do any essential Service. Some of the public Measures have been so contrary to my Notions of Policy and of Justice, that I wished to be no further concern'd with, or answerable for them; and to spend the Remnant of my Life in Quiet & Retirement. Yet with all her Faults, my Country will ever have my warmest Wishes & Affections; and I wou'd at any Time, most chearfully, sacrifice my own Ease & domestic Enjoyments to the Public-Good. But tho' I look upon asserting the Right to our western Territory, and thereby putting a Stop to the dangerous Usurpations of Congress, before they shall have been established into Precedents, to be a Matter of the utmost Importance, I do not know that [it] is in my Power to give the Committee any Assistance. My Distance from the Seat of Government, & the Public Archives, disables me from investigating the Subject. What Evidence had occurred to me I sent you last Year, by our Friend Mr. May; and I have since put into the Hands of Doctr. Lee an official Copy of all the Council-Entries for Lands upon the western Waters. These necessarily imply an equal Extension of our Laws & Jurisdiction; and upon the Exercise of Jurisdiction, under the former as well as the present Government, our Title, in my Opinion, in a great Measure depends. Among the Council-Entries there is one for 50,000 Acres of Land, near forty Years ago, upon the Missisippi; Begining at the Confluence of the Ohio & Missisippi, and running up both Rivers to include the Quantity: and the Royal Instructions to Sr. William Gooch, respecting the Ohio Company in 1749, is to grant Lands on either Side the Ohio River, "within our Colony of Virginia." Governor Dinwiddie, by Proclamation in 1754, offered a Bounty of 200,000 Acres of Land, upon the Ohio River, to the Officers & Soldiers of the first Virginia Regiment, commanded by Colo. Washington (now his Excellency General Washington) which was afterwards surveyed accordingly, and Patents granted in the Time of Ld. Bottetourt, and Ld. Dunmore. There were besides, a great many Patents & Surveys upon Record, & in the Secretary's Office, under the former Government, some of them of pretty old standing; and a great Number of Inhabitants setled in that Part of Augusta County which lay beyond the Alleghany Mountains (upon the different Branches of the western-Waters) under the particular Encouragement of the Virginia Laws; which having received the Royal Assent, were constitutional Acts of the British Government. Doctr. Walker is better acquainted with the Extent & Dates of these Settlements Surveys & Grants than most Men in America; and knows that the principal Water-Courses &c. received their Names from Virginia Setlers. Colo. Thomas Lewis is also very capable of giving Information upon this Subject.
If I mistake not, two or three Countys (Bottetourt & Fincastle, besides the District of West-Augusta) were separated from that Part of Augusta County which lay beyond the Alleghany Mountains; Civil and military Jurisdiction regularly exercised, and Representation in the Virginia Legislature [were] enjoyed there, before the present Revolution. And that more Countys were not erected there was oweing to a Royal Instruction of a very alarming and tyrannical Nature, restraining the Governor from assenting to any Law for erecting new Countys, unless a Clause was inserted to deprive such new Countys of the Right of Representation in the Legislature; which being evidently calculated to maintain an undue Influence of the Crown in our General-Assembly, no such Clause was submitted to, the Governor had Recourse to the Power of the Prerogative, and instead of a new County, established the District of West-Augusta (the North-westward) over the Alleghany Mountains; in which he commissioned Civil-Magistrates, and Militia-Officers, and Courts were regularly held there, Suits brought, Judgements granted, Deeds recorded, &c. In the Year 1775, the District of West Augusta sent two Representatives, John Harvey & George Roots Esqrs. to the general Convention at Richmond; where they were received: and the Inhabitants of the said District continued to send their Representatives to the Virginia Legislature, until the same was formed into three distinct Countys, Ohio, Monongalia & Youghyoughgaine; which Countys have regularly ever since sent Representatives to the House of Delegates and the Senate.
Soon after the present Revolution, the County of Kentucky was separated from Bottetourt & Fincastle upon the Ohio, to the South Westward; which has since been divided into three Countys, Fayette, Lincoln, & Jefferson. Towns have been laid off, Courts established, and Civil & Military Jurisdiction regularly exercised in these Countys; and each of them represented in the Virginia Legislature. Several thousand Inhabitants are setled on them, all deriving their Titles from Virginia, subject to her Laws, and to all Intents & Purposes her Citizens.
The British Posts within our Chartered Territory, at Kascuskie upon the Missisippi, and St. Vincents upon the Obache, have been reduced by Virginia Militia, without any Assistance from, or Charge to the United States; and a Garrison, as well as the Civil Establishment, under the sole Direction, and at the sole Expence of the Virginia Government, has been maintained there.
The Purchase at the Treaty of Lancaster in 1743 was made with Virginia Money; and if I remember right, there is a Clause shewing that it was made for the Use & Benefit of the Colony of Virginia; as far Westward as his Majesty shou'd, at any Time, chuse to extend the Settlements. It is evident from the Royal Instructions in 1749 to Sir William Gooch, Lieutenant Governor of Virginia, that the Crown directed the Settlements to be extended over the Ohio River, and several subsequent Laws were made for their Encouragement. The Purchase at Lancaster was made in the Reign of George the Second, when just Regard was paid to the Constitutional Rights of the American Colonys. It was made by Virginia Commissioners appointed for that Purpose; and from the Proceedings upon Record, it appears that the whole Transaction was fair, open, and in the Presence of the Commissioners & Governors of the other Colonies, particularly of the Province of New-York, which a select Committee of Congress have lately discovered had always the Right to these Lands. The Purchase at Fort-Stanwix (which in Fact was only purchasing the same Lands over again for Ministerial Purposes, which had been before purchased, & paid for) was made in the Reign of George the third, in the Year 1768; when the Rights of the Colonies had been repeatedly violated; and under the Direction of that Ministry which formed the System for enslaving America; one of the first Steps to which was dismembering the old Colonies, & erecting new ones, more immediately dependent upon the Crown & the Commands of the Ministry. The whole Transaction wore the Face of Mystery and Knavery; for tho' Doctr. Walker was there, as a public Commissioner for Virginia, he was refused Access to the Conferences, the greatest Caution was used to conceal from him what they were about, and every thing, until the Business was finished, was conducted privately with the Indian Chiefs by Sir William Johnston & the Traders. The Substance of these Facts was proved by the Oath of Doctr. Walker, on his Examination in the House of Delegates, upon the Hearing of the Indiana Company's Title. It was also proved by the Depositions on the same Tryal, that the Tributaries of the six-Nations had been totally expelled from this Side the Ohio to the other (from whence they never return'd) and the Country conquered in the Course of the last War. And that before the Treaty at Fort-Stanwix, there were several Virginia Setlers upon the very Land purchased by Trent & Sr. William Johnston for the Indiana Company. But if these damning Circumstances were not in the Case, the Purchase made by the Crown at the Treaty of Fort-Stanwix ought not to operate to the Injury, but insure to the Benefit of the Colony to whom the Country had been originally granted, as all the former purchases from the Indians had done. If such Purchases cou'd operate against the Title of Virginia, they wou'd have operated against the Title to the Northern-Neck, the greater Part of which was possessed by the Indians, when the Grant was made by Charles the second, and not purchased from them for many Years after. So late as Queen Ann's Reign (when Governor Spotswood presided here) the blue Ridge of Mountains was by a solemn Treaty, fixed as the Boundary between the English Subjects and the Indians; yet in the Reign of George the second, the King & Council gave Lord Fairfax a Judgement for the Lands to the Fountain Head of Potomack River, fourscore Miles beyond the Blue-Ridge. As our Settlements were extended, the wild Game destroyed, and the Country rendered unfit for the savage Life, the Indians have been forced to remove farther, for the Convenience of hunting; as they retired, Purchase after Purchase hath been made from them, and temporary Lines & Boundarys, for the Sake of Peace, from time to time accordingly setled between them and the English Inhabitants here: but none of them have ever been considered as at all affecting the Title of Virginia. When the Colony of Virginia was first setled, it was without any previous Purchase from the Indians. The first Lands purchased from the Indians were only upon & near the Mouths & larger Parts of the Rivers, then to the Falls of the said Rivers, then to the blue Ridge of Mountains, and afterwards (before the unnecessary Purchase at Fort-Stanwix) as far Westward as the Claim of Great Britain extended. Most of these Purchases were made subsequent to the actual Settlement & Occupation of Part of the Lands purchased. It is about sixty Years ago since the People of Virginia setled the Country over the Blue-Ridge and near forty Years since they begun to settle beyond the Apalatian or Alleghany Mountains; but the Purchase at Lancaster was not made until 1743, nor the purchase at Fort-Stanwix 'til 1768. It has been objected to the Treaty at Lancaster, and urged as a Proof that the Indians were imposed on, that they sold their whole Country, or in the common Phrase, that they sold themselves out of House & Home; but this is a false Suggestion: the Country back of New-York, adjacen[t] to Lake Ontario, was originally, and still is the Country & Habitation of the Iroquois or Si[x]-Nations; and this it will be found (I believe upon due Examination) was the Country which they put under the Protection of the New-York Government; and perhaps also their Beaver-hunting Country, between that and the Great Lakes. The Country upon the Ohio, above the Tenessee River, was what they called their conquered Lands; from which they had totally extirpated the original Inhabitants; and afterwards permitted the Delawares from the River Delaware, and the Shawnese from Potomack, with some other small Tribes, to live there, as their Tributaries. These Lands being of little Use to them, and their Right precarious, it may be presumed they were desirous to sell. If according to the Opinion of the best Writers, the Occupation of a few Hordes of Savages can not give Right to an extensive Territory, as being contrary to the primary Laws of Nature; a Conquest which utterly extirpates the Inhabitants, and leaves the Country desolate, being more contrary to the Laws of Nature, can confer no Right on the Conqueror. If the Country is considered in the Light of derelict Lands; which the first Possessor, without any other Claim, has a Right to occupy and enjoy; a fortiori had the Colony of Virginia, having a previous Title, a Right to possess and occupy them, as it has done.
The English and American Maps have uniformly laid down Virginia across the Continent, to the westward; until the Treaty of Paris in 1762, and since to the River Missisippi; that having been then established the Boundary between the British & French Dominions. Many solemn Acts of the British Government, at different Periods, have recognised the Right of Virginia to her western Territory; nor can there be found any one Act of Government impeaching, or invalidating it, until the Conclusion of the last War, and after the Adoption of that System; which by compelling America to assert her Rights with the Sword, has produced the present Revolution. Long before the Articles of Confederation (and I think previous to the American Declaration of Independence) the Virginia Legislature, in that Act which formed our Constitution, had plainly described & declared the Extent of our western Territory. This was notorious to Congress, when the Articles of Confederation were formed, the Sovereignty of each State respectively secured to it, the mutual Guarranty stipulated, and the Provisoe inserted "that no State shall be deprived of Territory for the Benefit of the United States." It was upon these express Conditions that Virginia acceded to the Articles of Confederation. The present Attempt therefore to dismember Virginia, without her Consent, is a flagrant Breach of Public Faith, and if carryed into Execution, dissolves the federal Compact, and renders it no longer obligatory upon this Commonwealth. Congress are properly the Delegates of the different States, with certain Powers defined, and Emitted by the Articles of the Confederation; these they can not be permited to exceed, without establishing an arbitrary & tyrannical Aristocracy; for if under Pretence of Public Utility, Necessity, or under any pretence whatsoever, they can, in one Instance, exceed the Powers delegated to them, they may do another, or in a hundred. Every Usurpation will be urged as a Precedent for others, and maintained by the Command which they have (and must have) of our Fleets & Armys. They may in time proceed to fill up their own Vacancys, vote themselves Members for Life, and what not! The only natural & safe Remedy is, for every State to have a watchful Eye over this great American Council, to keep themselves constantly within the Lines of the Confederation, and to resist & reprobate their first Attempts to exceed them. This was intended, about two Years ago, by the General Assembly of Virginia, in their Remonstrance; but an illjudged Timidity (miscalled Delicacy) in our Delegates at that time (I believe) prevented it's being entered on the Journals of Congress. If Experience shall prove that the present Powers of Congress are, in some Instances, insufficient, let them be increased by additional Articles to the Confederation, acceded to, after due Deliberation, by all the States; but upon no Pretence, however plausible, without.
It is strongly provided by the Articles of Confederation (without which they wou'd never have been acceded to by the different states) that "each State retains it's Sovereignty, Freedom, & Independence, and every Jurisdiction & Right, which is not by this Confederation expressly delegated to the United-States in Congress assembled." Yet the Claim of Congress to the unappropriated Lands is founded upon the Assertion that the Sovereignty of Great Britain hath, on the present Revolution, descended to them, as Representatives of all the States; tho' it [is] as clear as the Sun at Noon-day, that it has not descended to them; but remains to each individual State, respectively, in it's own Right; by whom alone it can be safely exercised. This Doctrine of Sovereignty, teeming with Oppression, and striking at the Vitals of American Liberty, has been eagerly patronised by Congress, and ecchoed by P [ain] e, W[harto]n and every mercenary party-Scribler.
Posterity will reflect with Indignation, that this fatal Lust of Sovereignty, which lost Great-Britain her western-World, which covered our Country with Desolation & Blood, shou'd even during the Contest against it, be revived among ourselves, and fostered by the very Men who were appointed to oppose it!
There is not a single Word in the Articles of Confederation giving Congress a Power of limitting, dividing, or parcelling out any of the thirteen States, or of erecting new ones. The 11th. Article declares that Canada acceding to this Confederation, and joining in the Measures of the United-States, shall be entitled to all the Advantages of this Union: but no other Colony shall be admitted into the same, unless such Admission be agreed to by nine States." This evidently relates to the other British Colonys of Nova-Scotia, and the Floridas, neither of which is to be admitted into the Union, without the Concurrence of nine States. Yet under Colour of this Article, Congress assumes the Power of curtailing, & dividing the different States, of depriving them of Territory for the Be [ne]fit of the United-States (directly contrary to the Confederation) of demanding Cessions, and of erecting new States. There is no Power whatsoever which they may not, with equal Propriety, arrogate to themselves, and pretend to derive it from the Articles of the Confederation.
Did the different States view this Subject impartially, as they ought, no little Jealousy, Envy, or Pique to any particular State, no local or Party-Views wou'd induce them to connive at Innovations, and unwarranted Assumptions of Power; which if continued, must end either in the Dissolution of the Federal Union, or the Destruction of American Liberty. To shew therefore the total Absence of Power in Congress upon this Occasion, and to expose the Danger of their usurping it, I shou'd conceive a very useful Part of the Work confided to the Committee; andpreserving Good-Manners & Decency of Language, I think the Subject can hardly be too freely treated.
It is worthy of Observation that the Arguments against the chartered Title of Virginia to the Country on the North West Side the Ohio, if they prove anything, will prove it Part of the new British Province of Quebec or Canada. Because by an Act of Parliament in the latter End of 1773 or the Beginning of 1774, the Boundaries of the Province of Quebec or Canada were extended, so as to include the whole Country between the Ohio and the Missisippi Rivers; and this being done before the Separation of the Colonys or the Declaration of Independence, where we professed ourselves British Subjects, and acknowledged the Obligation of their Laws, except on the Subject of Taxation. The Authority of Parliament to make the said Act can not be impeached, upon any other Ground that the Title of some of the old Colonies, under their Charters, to the Country so included; and that the British Government had no Right to add to their new Province of Quebec what had been, long before, solemnly granted to others. Aware of this, and to prevent too sudden an Alarm or Opposition, a Provisoe was inserted in the Act, saving to the other Colonys the Lands within their respective Charters. If therefore Congress, taking upon itself the invidious & dangerous Work of curtailing the Boundaries of the different States, shou'd set aside the Title of Virginia, and Virginia acquiesces in it, that Country will thenceforward be placed in the same Predicament with the undisputed Part of Canada, and the other British Provinces of Nova Scotia, and the East & West Floridas; and what Claim or Demand cou'd the United-States, or any of them, have upon it; unless they can conquer & hold it by Force of Arms? Or upon a Negotiation of Peace with Great Britain, what Argument cou'd we fairly urge for contracting the lately extended Boundarys of Canada, and reducing it to its former Lines? Or what wou'd any neutral or mediating Power probably say to us upon such an Occasion? The Consequences of suffering a British Colony to surround [a] great Part of the United-States, and extend itself between them and the numerous Tribes of western Indians, are too obvious to need Explanation; and this Subject is the more important, as it may easily be foreseen that setling the Bounds of Canada will be one of the most difficult Objects of a Treaty.
I have not bye me Copys of the Virginia Charters in 16o6 & 1609, or I shou'd have made some Remarks on them, endeavouring to shew that Payne's construction of them is capricious & absurd, as several of his other Strictures are; and some of them founded in Misrepresentation & falsehood; that the Description and Boundaries are intelligible, and admit a natural & easy Construction; the Charter of 1609 confirming & enlarging, not destroying that of 1606; that tho' the Virginia Company was dissolved, and the Government resumed by the Crown, the Charter, so far as the Setlers & their Posterity are interested or affected, remains valid; and among other things, the Covenant in the Charter of r6o6 that no new Colony shou'd be setled to the westward; which seems to have been one of the Causes of the great western Extension of the second Charter, whereby the Repetition of the former Clause became unnecessary; that the ancient Method of granting Lands, established by the Virginia Company in Virtue of their Charter, always continued under the King's Government; that the Charter granted to the Colony of Virginia in 1667, by King Charles the second, has Reference to the Country described in the former Charter of 1609; and by recognising &confirming the ancient Custom of granting Lands for the Importation of Inhabitants, the Privileges of the People, and the Jurisdiction of the Colony, has for ever bar'd the Crown from dismembering the Colony, or refusing to grant Lands to Persons coming hither to settle, or importing others; that the Crown has always considered the Charter of 1667 in this Light, and acted accordingly, until the present Reign; when all Reverence to Law & Justice was thrown aside, and a Resolution formed to abolish the ancient Constitution of the Colonies, annihilate their Charters, and establish Despotism & Slavery in their Stead: that the Proclamation of 1763 therefore was absolutely illegal & void, as well as the Scheme for erecting the new Province of Vandalia; even if no Lands had been previously granted, or Inhabitants setled beyond the Alleghany Mountains. And as to what has been said of the Acquiescence & Approbation of the Government of Virginia, the utmost that is asserted only shews that the Privy-Council of Virginia (holding their places at Pleasure, and totally dependent upon the Ministry) did not venture to oppose it.
The Charters I presume may all be found in the House of Delegate's Office: I had them all in my Possession (made up in one Bundle) when I was formerly appointed to settle some Matters of Jurisdiction in Chesapeake Bay and Potomack River with the State of Maryland; but our Assembly not thinking it prudent to enter into any Engagement with that State, while it refused confederating, I returned the Charters into the House of Delegates, at the Clerk's Table.
If any of the Observations which I have scattered up & down, without Method or Order, will be of use, they are very much at the Committee's Service. And tho' I hope to be excused from taking any particular Part in this Business, for the Reasons I have already given; Yet if the Gentlemen of the Committee conceive I can be useful to them on any Occasion, I will wait on them (my Health permitting) at any Time and Place they shall be pleased to appoint; for I can truly say there are no Men in the United-States, in whom I can more cordially confide, or with whom I wou'd more chearfully act.
I must entreat them to consider this long Epistle as a general Letter, and excuse my not writing to each particular Member. I must entreat them too, to proceed in the Business, without delaying it on Account of, Dear Sir, Your affectionate & obdt. Servt.