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§ 48. With the fall of the charter the colony came under the immediate government and control of the crown itself; and the king issued a special commission appointing a governor and twelve counsellors, to whom the entire direction of its affairs was committed.1 In this commission no representative assembly was mentioned; and there is little reason to suppose that James the First, who, besides his arbitrary notions of government, imputed the recent disasters to the existence of such an assembly, ever intended to revive it. While he was yet meditating upon a plan or code of government, his death put an end to his projects, which were better calculated to nourish his own pride and conceit, than to subserve the permanent interests of the province.2 Henceforth, however, Virginia continued to be a royal province until the period of the American Revolution.3
§ 49. Charles the First adopted the notions and followed out in its full extent the colonial system of his father. He declared the colony to be a part of the empire annexed to the crown, and immediately subordinate to its jurisdiction. During the greater part of his reign, Virginia knew no other law than the will of the sovereign, or his delegated agents; and statutes were passed and taxes imposed without the slightest effort to convene a colonial assembly. It was not until the murmurs and complaints which such a course of conduct was calculated to produce had betrayed the inhabitants into acts of open resistance to the governor, and into a firm demand of redress from the crown against his oppressions, that the king was brought to ore considerate measures. He did not at once yield to their discontents; but pressed, as he was, by severe embarrassments at home, he was content to adopt a policy which would conciliate the colony and remove some of its just complaints. He accordingly soon afterwards appointed Sir William Berkeley governor, with powers and instructions which breathed a far more benign spirit. He was authorized to proclaim, that in all its concerns, civil as well as ecclesiastical, the colony should be governed according to the laws of England. He was directed to issue writs for electing representatives of the people,
1 1 Haz. Coll. 189.
2 Marsh. Colon. ch. 2, p. 63, 64; 1 Haz. Coll. 189.
8 1 Haz. Coll. 220, 225.
It seems that a charter was subsequently granted by Charles the Second on the 10th of October, 1676, but it contained little more than an acknowledgment of the colony as an immediate dependency of the crown. 2 Henning, Stat. 531, 532.
who with the governor and council should form a general assembly clothed with supreme legislative authority; and to establish courts of justice, whose proceedings should be guided by the forms of the parent country. The rights of Englishmen were thus in a great measure secured to the colonists; and under the government of this excellent magistrate, with some short intervals of interruption, the colony flourished with a vigorous growth for almost forty years. The revolution of 1688 found it, if not in the practical possession of liberty, at least with forms of government well calculated silently to cherish its spirit.
§ 50. The laws of Virginia, during its colonial state, do not exhibit as many marked deviations, in the general structure of its institutions and civil polity, from those of the parent country, as those in the Northern colonies. The common law was recognized as the general basis of its jurisprudence; and the legislature, with some appearance of boast, stated, soon after the restoration of Charles the Second, that they had "endeavored, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence."2 The prevalence of the common law was also expressly provided for in all the charters successively granted, as well as by the royal declaration, when the colony was annexed as a dependency to the crown. Indeed, there is no reason to suppose, that the common law was not in its leading features very acceptable to the colonists; and in its general policy the colony closely followed in the steps of the mother country. Among the earliest acts of the legislature we find the Church of England established as the Oy true church; and its doctrines and discipline were strictly enforced. All non-conformists were at first compelled to leave the colony, and a spirit of persecution was exemplified not far behind the rigor of the most zealous of the Puritans. The clergy of the Established Church were amply provided for by glebes and tithes,
1 Robertson's America, B. 9; Marsh. Amer. Col. ch. 2, pp. 65, 66, note. I have not thought it necessary to advert particularly to the state of things during the disturbed period of the Commonwealth. Henning, Virg. Stat. Introduction, p. 13, 14.
William Berkeley, in his answer to the questions of the
2 2 Henning, Stat. 43. Sir Lords Commissioners, in 1671. Contrary to the laws of England, we never did, nor dare, to make any [law] only this, that no sale of land is good and legal, unless within three months after the conveyance it be recorded."
3 [Jefferson, Works, I. 38; Life of Madison by Rives, I. 42; Bancroft, Hist. of U. S., I. 206; Terrett v. Taylor, 9 Cranch, 43.]
and other aids. Non-residence was prohibited, and a due performance of parochial duties peremptorily required. The laws, indeed, respecting the church, made a very prominent figure during the first fifty years of the colonial legislation. The first law allowing toleration to Protestant dissenters was in the year 1699, and merely adopts that of the statute of the 1st William and Mary. Subject to this, the Church of England seems to have maintained an exclusive supremacy down to the period of the American Revolution. Marriages, except in special cases, were required to be celebrated in the parish church, and according to the rubric in the commonprayer book. The law of inheritance of the parent country was silently maintained down to the period of the American Revolution; and the distribution of intestate estates was closely fashioned upon the same general model. Devises also were regulated by the law of England;1 and no colonial statute appears to have been made on that subject until 1748, when one was enacted which contains a few deviations from it, probably arising from local circumstances.2 One of the most remarkable facts in the juridical history of the colony is its steady attachment to entails. By an act passed in 1705, it was provided, that estates-tail should no longer be docked by fines or recoveries, but only by an act of the legislature in each particular case. And though this was afterwards modified, so as to allow entails to be destroyed in another manner, where the estate did not exceed £200 sterling in value,3 yet the general policy continued down to the American Revolution. In this respect, the zeal of the colony to secure entails and perpetuate inheritances in the same family outstripped that of the parent country.
§ 51. At a very early period the acknowledgment and registry of deeds and mortgages of real estate were provided for, and the non-registry was deemed a badge of fraud. The trial by jury, although a privilege resulting from their general rights, was guarded by special legislation. There was also an early declaration, that no taxes could be levied by the governor without the consent of the general assembly; and when raised, they were to
1 I refer upon these subjects to Henning, Stat. 122, 123, 144, 149, 155, 180, 240, 268, 277, 434; 2 Hen. Stat. 48, 50; 3 Hen. Stat. 150, 170, 360, 441.
2 5 Henning, Stat. 456.
86 Henning, Stat. 320, 516; 4 Hen. Stat. 400; 5 Hen. Stat. 414; 1 Tuck. Black. Comm. App.
4 1 Henning, Stat. 248; 2 Hen. Stat. 98; 3 Hen. Stat. 321.
be applied according to the appointment of the legislature. The burgesses, also, during their attendance upon the assembly, were free from arrest. In respect to domestic trade, a general freedom was guaranteed to all the inhabitants to buy and sell to the greatest advantage, and all engrossing was prohibited. The culture of tobacco seems to have been a constant object of solicitude; and it was encouraged by a long succession of acts, sufficiently evincing the public feeling, and the vast importance of it to the prosperity of the colony.2 We learn from Sir William Berkeley's answers to the Lords Commissioners, in 1671, that the population of the colony was at that time about 40,000; that the restrictions of the navigation act, cutting off all trade with foreign countries, were very injurious to them, as they were obedient to the laws. And "this," says he, "is the cause why no small or great vessels are built here; for we are most obedient to all laws, whilst the New England men break through, and men trade to any place that their interest leads them." This language is sufficiently significant of the restlessness of New England under these restraints upon its commerce. But his answer to the question respecting religious and other instruction in the colony, would in our times create universal astonishment. "I thank God," says he, 66 there are no free schools nor printing; and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both." In 1680 a remarkable change was made in the colonial jurisprudence, by taking all judicial power from the assembly, and allowing an appeal from the judgments of the General Court to the King in Council.4
1 1 Henning, Stat. 290.
2 See 1 Hen. Stat. 126, and Index, tit. Tobacco, in that and the subsequent volumes; 2 Henning, Stat. 514.
8 2 Hen. Stat. 511, 512, 514, 517; 1 Chalm. Annals, 328; 3 Hutch. Collect. 496. + Marsh. Colon. ch. 5, p. 163; 1 Chalm. Annals, 325.
ORIGIN AND SETTLEMENT OF NEW ENGLAND.
§ 52. WE may now advert in a brief manner to the history of the Northern or Plymouth Company. That company possessed fewer resources and less enterprise than the Southern; and though aided by men of high distinction, and among others, by the public spirit and zeal of Lord Chief Justice Popham, its first efforts for colonization were feeble and discouraging. Captain John Smith, so well known in the history of Virginia by his successful adventures under their authority, lent a transient lustre to their attempts; and his warm descriptions of the beauty and fertility of the country procured for it from the excited imagination of the Prince, afterwards King Charles the First, the flattering name of New England, a name which effaced from it that of Virginia, and which has since become dear beyond expression to the inhabitants of its harsh but salubrious climate.1
§ 53. While the company was yet languishing, an event occurred which gave a new and unexpected aspect to its prospects. It is well known that the religious dissensions consequent upon the Reformation, while they led to a more bold and free spirit of discussion, failed at the same time of introducing a corresponding charity for differences of religious opinion. Each successive sect entertained not the slightest doubt of its own infallibility in doctrine and worship, and was eager to obtain proselytes, and denounce the errors of its opponents. If it had stopped here, we might have forgotten, in admiration of the sincere zeal for Christian truth, the desire of power, and the pride of mind, which lurked within the inner folds of their devotion. But, unfortunately, the spirit of intolerance was abroad, in all its stern and unrelenting severity. To tolerate errors was to sacrifice Christianity to mere temporal interests. Truth, and truth alone, was to be followed at the hazard of all consequences ; and religion allowed no compromises between conscience and
1 Robertson's America, B. 10; Marsh. Amer. Col. ch. 3, p. 77, 78; 1 Haz. Coll. 103, 147, 404; 1 Belknap's New Hampshire, ch. 1.