Transylvania Treasure or Treason?
The dinning experience at Chowning's tavern in Williamsburg encourages interactions with fellow travelers. Here I met an elementary school teacher from Knoxville, Tennessee. She mentioned that she received her degree from Transylvania University in Kentucky. This stimulated a response because the name Transylvania was familiar as it was the Transylvania Company that was part of the first intercession of the Virginia Declaration of Rights under Governor Patrick Henry.
“But the Virginia convention would not recognize Transylvania’s claim to set up a proprietary government, and it prohibited such private purchase in the new Virginia constitution.” Mayer, Henry, A Son of Thunder, Patrick Henry and the American Republic, p.314. (1991).
Section 14 of the Declaration of Rights of June 12, 1776 states:
“That the people have a right to uniform government; and therefore, that no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.”
George Mason was the primary author of the Virginia Declaration of Rights and his first draft of the Declaration omits the uniform government clause. It was the other committee delegates that added that language. The origin and the correct understanding of the uniform government clause is still not properly established in Virginia case law as the Supreme Court of Virginia made a constricted assertion about the clause from a discedited source in DiGiacinto v. The Rector and Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 ( 2011). Its comprehensive history is about to be illuminated.
Patrick Henry's dilemma recited above was a result of a collision of competing interests of the control of the lands in the western part of the Colony after the start of the Revolution. Colonel George Rogers Clark desired to militarily defend his fellow Kentuckians and wanted the land to become a Virginia county. The Transylvania Company wanted to claim Kentucky for its own as a proprietary government. George Rogers Clark became familiar with the area as surveyor for the Ohio company. The Ohio Company was a group of Virginia land speculators and one of the principle speculators of the company was George Mason. The precedent setting U.S. Supreme Court case of Wilson v. Mason, 5 U.S. 45 (1801), and the latter case of Davis v. Mason, 26 U.S. 503 (1828), involves George Mason's land claims in Kentucky.
The end of the French and Indian war brought with it the Proclamation of 1763 which forbade settlement of the lands west of the Appalachian mountains. The Colony of Virginia previously had no western boundary. George Mason wrote extensively and authoritatively on this subject in his Extracts From The Virginia Charters, With Some Remarks On Them Made In The Year 1773. This brought pressure upon British white colonists to break the Proclamation and settle west of the demarcation line to gain land. Eventually this lead to military conflict known as Lord Dunmore's War against the Shawnee in 1774. George Rogers Clark was a member of the Virginia Militia and took part in the war as a captain. In August 1775, King George III proclaimed all the colonies in rebellion and in so doing, abandoned the helm of government and "declaring us out of his allegiance and protection." (Virginia Constitution, 1776). Being forced into a state of nature without the protection of its former government, the Colony of Virginia declared its independence, issued a Declaration of Rights, and set up a new constitution and form of government.
North Carolina land speculator Richard Henderson made the Sycamore Shoals Treaty with the Indians of Kentucky in 1775 and established the Transylvania Company. In a letter From George Mason to George Washington dated March 9th, 1775, George Mason notes the following:
"I suppose you have heard of the late purchase made by some North Carolina gentlemen from the Cherokee Indians, of all the country between the Great Conhaway [sic] and the Tennessee Rivers. I think considering this colony has just expended about £ 100,000 upon the defence of that country, that this is a pretty bold stroke of the gentlemen. It is suspected some of our Virginia gentlemen are privately concerned in it. I have always expected that the newfangled doctrine lately broached, of the Crown's having no title beyond the Alleghany Mountains till after the purchase at Fort Stanwix, would produce a thousand other absurdities and squabbles."
George Rogers Clark was sent to meet with Governor Patrick Henry on behalf of the people of Kentucky. The new Commonwealth of Virginia declined to allow the Transylvania Company its proprietary government because of the new Declaration of Rights, and then declared the area known as Kentucky to be a county of Virginia. Richard Henderson was compensated in land. George Rogers Clark and his Kentuckians were compensated with 500 pounds of Black Powder to prosecute the war against the Native Americans and the British. The treaty ending the French and Indian war was between Great Britain and the Native American tribes, not the newly formed Commonwealth of Virginia which reclaimed its original western lands from its original charters. This same issue brings trouble again and in 1779, George Mason drafts and presents Virginia's response to the latest trouble to Congress:
"Remonstrance to Congress.
December 14, 1779.
The General Assembly of Virginia ever attentive to the recommendations of Congress and desirous to give the great council of the United States every satisfaction in their power, consistent with the rights and constitution of their own commonwealth, have enacted a law to prevent present settlements on the northwest side of the Ohio river, and will on all occasions endeavor to manifest their attachment to the common interest of America, and their earnest wishes to remove every cause of jealousy and promote that mutual confidence and harmony between the different States so essential to their true interest and safety.
Strongly impressed with these sentiments, the General Assembly of Virginia cannot avoid expressing their surprise and concern, upon the information that Congress had received and countenanced petitions from certain persons styling themselves the Vandalia and Indiana Companies, asserting claims to lands in defiance of the civil authority, jurisdiction and laws of this commonwealth, and offering to erect a separate government within the territory thereof. Should Congress assume a jurisdiction, and arrogate to themselves a right of adjudication, not only unwarranted by, but expressly contrary to the fundamental principles of the Confederation ; superseding or controlling the internal policy, civil regulations, and municipal laws of this, or any other State, it would be a violation of public faith, introduce a most dangerous precedent which might hereafter be urged to deprive of territory or subvert the sovereignty and government of any one or more of the United States, and establish in Congress a power which in process of time must degenerate into an intolerable despotism. " 10 Hening’s Statutes at Large, 1779, p. 557. (1809).
Not long after this Remonstrance to Congress, George Mason legally acquires land in Kentucky in February 1780.
Source: Virginia Treasury Warrants (Kentucky) Searchable Database
The genesis of the Colony of Virginia by the Ancient Charters is a part of the seed of Section 14 of the Declaration of Rights. The founding of Jamestown in 1607 was itself built upon the premise of a proprietary government through a series of charters of King James I. (1606, 1609, 1611 ). The Virginia Company established its own government and appointed its own Governor. The charter of 1611 has somewhat similar language to Section 14 of the Declaration of Rights.
"Provided always, that the said Islands or any Premises herein mentioned, or by these Presents intended or meant to be granted, be not actually possessed or inhabited by any other Christian Prince or Estate, nor be within the Bounds, Limits, or Territories of the Northern Colony heretofore by Us granted to be planted by divers of our loving Subjects in the North Parts of Virginia. "
The Virginia Company eventually became a failed entity and in 1624, the Colony of Virginia became a Crown Colony with the Governor appointed by the Crown, not the shareholders of the Virginia Company. The abuses of the Virginia Company were well remembered when the Colony of Virginia repudiated another attempt to establish part or all of Virginia as a proprietary or incorporated government in 1642. (1 Hening's Statutes at Large, p. 235 (1642)).
The limitation of other authorities or governments existing within the granted land was forbidden as uniform government was required and established by the Crown. George Mason wrote about this in his Extracts From The Virginia Charters, With Some Remarks On Them Made In The Year 1773. He notes the following:
"1676, Oct. 10. -- Charter under the great seal of England, granted by King Charles the Second to the Colony of Virginia, Declaring and granting for his Majesty, his heirs and Successors, that all the subjects of his Majesty, his Heirs, and Successors from time to time, inhabiting within the Colony and Plantation of Virginia shall have their immediate Dependence upon the Crown of England under the Rule and Government of such Governor or Governors as his Majesty, His Heirs or Successors shall from time to time appoint in that Behalf: and of or upon no other person or persons whatsoever. 10 -- 10. This first clause expressly operates against the Establishment of any new Government or Proprietary in any part of Virginia. For the King is as much bound by the Act of his Predecessors as any Private Subject holding an Estate from his Ancestor is bound by the Act of such Ancestor. And accordingly, this Charter effectually put a stop to all further applications of that nature."
The right to uniform government is in essence the right to due process of law. The term "due process of law" has its origin in the Magna Charta and meant the "law of the land". See Bank of Columbia v. Okely, 17 U.S. (4 Wheat) 235, 241 (1819)("No freeman ought to be taken or imprisoned, &c., or deprived of his life, liberty or property but by the judgment of his peers or by the law of the land."). It guarantees that the people know what the law is no matter where they live in Virginia because political subdivisions or state agencies cannot be independent of the Commonwealth. As was written in the Constitution or Form of Government of Virginia (1776), "Commissions and grants shall run, 'in the name of the Commonwealth of Virginia'...Indictments shall conclude, 'Against the peace and dignity of the Commonwealth.'" There is only one Commonwealth of Virginia and one Supreme Constitution of Virginia. Virginia adopted the Dillon Rule of strict construction of powers in the 19th century and this was founded upon Section 14 of the Declaration of Rights. "The Dillon Rule recognizes that localities are political subdivisions of the Commonwealth, which, in turn, rest on the foundation of Article I, § 14 of the Constitution of Virginia." Op. Va. Att'y Gen. No. 02-29, April (2002).
The Virginia jurist St. George Tucker published his Blackstone's Commentaries in 1803. Under the section of Treason the following is written:
"A second branch of high treason against the state, consists in erecting or establishing or causing or procuring to be erected or established, any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained: or in holding or executing under any such usurped government any office legislative, executive, judiciary, or ministerial, by whatever name such office may be distinguished, or called; or in swearing or otherwise solemnly professing allegiance or fidelity to the same; or, under pretext of authority derived from or protection afforded by such usurped government, in resisting or opposing the due execution of the laws of this commonwealth... Now let us suppose an armed multitude were to establish such a government independent of the government of Virginia, within the limits thereof, by force and violence, would such an act be treason against the United States? If it would not, does it not prove that a general rising of the people, although with intention to obtain by force and violence an object of a great public nature, may not be treason against the United States, though unquestionably treason against the state of Virginia?" Tucker, Blackstone's Commentaries, Vol. 5, Note B. Concerning Treason. (1803).
In the landmark setting case of Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793), the following is noted:
"To come now more immediately to the question before the court; can those who are appointed judges in chancery, by an act of assembly, without ballot, and without commission during good behavior, constitutionally exercise that office? The fourteenth article of the Virginia Constitution recites "that the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof." Here then is a general principle pervading all the courts mentioned in the Constitution from which, without an exception, we ought not to depart. If those may be judges who are not appointed by joint ballot, but by an act of assembly, the senate have in that instance more power than the Constitution intended; for they control the other branch, by their negative upon the law, whereas if they mixed with that branch in a joint ballot, a plurality of votes of senators and delegates would decide."
St. George Tucker states that erecting a government separate from or independent of the government of Virginia is high treason. In Kamper v. Hawkins it is asserted that all branches of government are bound by the constitution's limitations and to do otherwise would be a violation of Section 14 as being independent of or separate from the government of Virginia. The General Assembly has codified these views into law making it part of the offense of treason under Va. Code. § 18.2-481.
Governor Patrick Henry and the Virginia Convention refused to recognize the Transylvania Company because of the Virginia Declaration of Rights. Section 14 of the Declaration of Rights was grounded in the need for uniform government and supreme authority under the Virginia Constitution, territorial integrity and the law on treason.
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