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1819.



PREFACE.



THE following pages are oti a subject hitherto
little understood, but highly interesting to the Uni-
ted States.

They contain an investigation of the claims of
Virginia to the vacant western territory, and of the
right of the United States to the same ; with some
outlines of a plan for laying out a new State, to be
applied as a fund, for carrying on the war, or re-
deeming the national debt.

The reader, in the course of this publication, will
find it studiously plain ; and as far as I can judge,
perfectly candid. What materials I could get at I
have endeavoured to place in a clear line, and de-
duce such arguments therefrom as the subject requi-
red. In the prosecution of it, I have considered
myself as an advocate for the right of the States, and
taken no other liberty with the subject than what a
counsel would, and ought to do in behalf of a client.

I freely confess that the respect I had conceived,
and still preserve, for the character of Virginia, was



IV PREFACE.

a constant check upon those sallies of imagination,
which are fairly and advantageously indulged against
an enemy, but ungenerous when against a friend.

If there is any thing I have omitted or mistaken,
to the injury of the intentions of Virginia or her
claims, I shall gladly rectify it ; or if there is any
thing yet to add, should the subject require it, I shall
as cheerfully undertake it; being fully convinced,
that to have matters fairly discussed, and properly
understood, is a principal means of preserving har*
mony and perpetuating friendship,

THE AUTHOR,



PUBLIC GOOD.



WHEN we take into view the mutual happiness and united
interests of the States of America, and consider the impor-
tant consequences to arise from a strict attention of each,
and of all, to every thing which is just, reasonable, and
honourable, or the evils that will follow from an inattention
to those principles ; there cannot, and ought not, to remain
a doubt, but that the governing rule of right and mutual
good must in all public cases finally preside.

The hand of providence has cast us into one common lot,
and accomplished the independence of America, by the
unanimous consent of the several parts, concurring at once
in time, manner, and circumstances. No superiority of
interest, at the expence of the rest, induced the one, more
than the other, into the measure. Virginia and Maryland,
it is true, might foresee, that their staple commodity, to-
bacco, by being no longer monopolized by Britain, would
bring them a better price abroad : for as the tax on it in
England was treble its first purchase from the planter, and
they being now no longer compelled to send it under that
obligation, and in the restricted manner they formerly
were ; it is easy to see, that the article, from the alteration
of the circumstances of trade, will, and daily does, turn
out to them additional advantages.

But this being a natural consequence, produced by that
common freedom and independence of which all are par-
takers, is therefore ail advantage they are entitled to, and on
which the rest of the States can congratulate them without
feeling a wish to lessen, but rather to extend it. To con-
tribute to the increased prosperity of another, by the same
means which occasion our own, is au agreeable reflection ;
the more valuable any article of export becomes, the



6 PUBLIC fcJOOD.

more riches will be introduced into, and spread over the
Continent.

Yet this is an advantage which these two States derive
from the independence of America, superior to the local
circumstances of the rest ; and of the two it more particu-
larly belongs to Virginia than Maryland, because the staple
commodity of a considerable part of Maryland, is flour,
which, as it is an article of the growth of Europe as well
as of America, cannot obtain a foreign market but by under-
selling, or at least, by limiting it to the current price abroad.
But tobacco commands its own price. It is not a plant of
almost universal growth, like wheat. There are but few
soils and climes that produce it to advantage, and before
the cultivation of it in Virginia and Maryland, the price
was from four to sixteen shillings a pound in England.^

But the condition of the vacant western territory of
America makes a very different case to that of the circum-
stances of trade in any of the States. These very lands,
formed in contemplation, the fund by which the debt of
America would in a course of years be redeemed. They
were considered as the common right of all ; and it is only
till lately that any pretension of claims had been made to
the contrary. That difficulties and differences will arise in
communities, ought always to be looked for. The opposi-
tion of interests, real or supposed ; the variety of judg-
ments ; the contrariety of temper ; and, in short, the whole
composition of man, in his individual capacity, is tinctured
with a disposition to contend ; but in his social capacity
there is either a right which, being, proved, terminates the
dispute, or a reasonableness in the measure, where no direct
right can be made out, which decides or compromises the
matter.

As I shall have frequent occasion to mention the moral
right, I wish-to be clearly understood in my definition of it.
There are various senses in which this term is used, and
custom has, in many of them, afforded it an introduction
contrary to its true meaning. We are so naturally inclined
to give the utmost degree of force to our own case, that we
call every pretension, however founded, aright; and by this
means the term frequently stands opposed to justice and
reason.



* See Sir Dal by Thomas's Historical Account of the Rise and
Growth of the West India Colonies.



PUBLIC GOOP. 7

After Theodore was elected King of Corsica, not many
years ago, by the mere choice of the natives, for their own
convenience in opposing the Genoese, he went over into
England, run himself into debt, got himself into jail, and
on his release therefrom by the benefit of an act of insol-
vency he surrendered up, what he called his kingdom of
Corsica, as a part of his personal property, for the use of
his creditors ; some of whom may hereafter call this a char-
ter, or by any other name more fashionable, and ground
thereon what they may term a right to the sovereignty and
property of Corsica. But does not justice abhor such an
action, both in him and them, under the. prostituted name
of a right, and must not laughter be excited wherever it is
told?

A right, to be truly so, must be right in itself; yet many
things have obtained the name of rights, which are origin-
ally founded in wrong. Of this kind are all rights by mere
conquest, power, or violence. In the cool moments of re-
flection, we are obliged to allow, that the mode by which
such right is obtained, is not the best suited to that spirit
of universal justice which ought to preside equally over
all mankind. There is something in the establishment of
such a right that we wish to slip over as easily as possible,
and say as little about as can be. But in the case of a right
founded in right the mi ad is carried cheerfully into the sub-
ject, feels no compunction, suffers no distress, subjects its
sensations to no violence, nor sees any thing in its way which
requires an artificial smoothing.

From this introduction t proceed to examine into the
claims of Virginia ; first, as to the right, secondly, as to the
reasonableness, and lastly, as to the consequences. The
name, Virginia, originally bore a different meaning to what
it does now. It stood in the place of the word North
America/ and seems to have been intended as a name com-
prehensive of all the English settlements or colonies on the
Continent, and not descriptive of any one as distinguishing
it from the rest. All to the southward of Chesapeake, as
low as the gulf of Mexico, was called South Virginia, and
all to the northward, North Virginia, in a similar line of
distinction, as we now call the whole continent North and
South America, 1 * The first charter or patent was to Sir
Walter Raleigh by Queen Elizabeth of England, in the



Oldmixon'b History of Virginia.



PUBLIC GOOD.

year 1583, and had neither name nor bounds. Upon Sir
Walter's return, the name Virginia, was given to the whole-
country, including the now United States. Consequently
the present Virginia, either as a province or State, can set
up no exclusive claim to the western territory under this
patent, and that for two reasons ; first, because the words
of the patent run to Sir Walter Raleigh, and such persons
as he shall nominate, themselves and their successors ; which
is a line of succession Virginia does not pretend to stand in ;
and secondly, because a prior question would arise, namely,
who are to be understood by Virginians under this patent?
and the answer would be, all the inhabitants of America,
from New England to Florida. This patent, therefore,
would destroy their exclusive claim, and invest the right
collectively in the thirteen States.

But it unfortunately happened, that the settlers under this
patent, partly from misconduct, the opposition of the In-
dians, and other calamities, discontinued the process, and
the patent became extinct.

After this, James the First, who, in the year 1602, suc-
ceeded Elizabeth, issued a new patent, which I come next
to describe.

This patent differed from the former in this essential
point, that it had limits, whereas the other had none: the
former was intended to promote discoveries wherever they
could be made, which accounts why no limits were affixed,
and this to settle discoveries already made which likewise
assigns a reason why limits should be described.

In this patent were incorporated two companies, called
the South Virginia company, and the North Virginia com-
pany, and sometimes the London company, and the Ply-
mouth company.

The South Virginia or London company was composed
chiefly of London adventurers ; the North Virginia or
Plymouth company was made up of adventurers from
Plymouth in Devonshire, and other persons of the western
parts of England.

Though they were not to fix together, yet they were
allowed to choose their places of settlement any where on
the coast of America, then called Virginia, between the
latitudes between 34 and 45 degrees, which was a range of
seven hundred and sixty miles : the south company was not
to go below 34 degrees, nor the north company above
45 degrees. But the patent expressed, that as soon as



PUBLIC GOOD. 9

they had made their choice, each was to become limited to
fifty miles each way on the coast, and one hundred up the
country ; so that the grant to each company was a square of
one hundred miles, and no more. The North Virginia, or
Plymouth company, settled to eastward, and in the year
1614 changed the name, and called that part New England.
The South Virginia, or London company, settled near Cape
Henry. This then cannot be the patent of boundless ex-
tent, arid that for two reasons ; first, because the limits are
described, namely, a square of one hundred miles; and se-
condly, because there were two companies of equal rights
included in the same patent.

Three years after this, that is, in the year 1609, the
South Virginia company applied for new powers from
the Crown of England, which were granted them in a
new patent, and the boundaries of the grant enlarged :
and this is the charter or patent on which some of the
present Virginians ground their pretension to boundless
territory.

The first reflection that presents itself on this enlargement
of the grant is, that it must be supposed to bear some in-
tended degree of reasonable comparison to that which it su-
perseded. The former could not be greater than a square
of one hundred miles ; and this new one being granted in
the lieu of that, and that within the space of three years,
and by the same person, James the First, who was never
famed either for profusion or generosity, cannot, on a review
of the time and circumstances of the grant, be supposed a
very extravagant or very extraordinary one. If a square of
one hundred miles was not sufficiently large, twice that
quantity was as much as could well be expected or solicited :
but to suppose that he, who had caution enough to confine
the first grant within moderate bounds, should in so short a
space as three years, supersede it by another grant of many
million times greater contents, is on the face of the affair, a
circumstantial nullity. Whether this patent or charter was
in existence or not at the time the revolution commenced,
is a matter I shall hereafter speak to, and confine myself in
this place to the limits which the said patent or charter lays
down. The words are as follows: " Beginning from the
Cape or point of laud called Cape or Point Comfort, thence
all along the sea coast to the NORTHWARD two hundred
miles, and from the said Point or Cape Comfort, all along
the sea coast to the southward two hundred miles; and all



10 PUBLIC GOOD.

that space or circuit of land lying from the sea coast of the
precinct aforesaid up into the land throughout, from sea to
sea, WEST and northwest."

The first remark 1 shall offer on the words of this grant is,
that they are uncertain, obscure and unintelligible, and may
be construed into such a variety of contradictory meanings
as to leave at last no meaning at all.

Whether the two hundred miles each way, from Cape
Comfort were to be on a straight line, or ascertained by
following the indented line of the coast, that is, " all along
the sea coast," in and out as the coast lay, cannot now be
fully determined ; because, as either will admit of supposi-
tion, and nothing but supposition can be produced, there-
fore neither can be taken as positive. Thus far may be said,
that had it been intended to be a straight line, the word
straight ought to have been inserted, which would have
made the matter clear ; but as no inference can well be drawn
to the advantage of that which does not appear against that
which does, therefore the omission implies negatively in fa-
vour of the coast indented line, or that the four hundred miles
were to be traced on the windings of the coast, that is, " all
along the sea coast."

But what is meant by the words " west and northwest" is
still more unintelligible. Whether they mean a west line
and a north-west line, or whether they apply to the general
lying of the land from the Atlantic, without regard to lines,
cannot again be determined. But if they are supposed to
mean lines to be run, then a new difficulty of more magni-
tude than all the rest arises ; namely, from which end of the
extent of the coast is the west line and the north-west line to
be set off? as the difference in the content of the grant, oc-
casioned by transposing them, is many hundred millions of
acres ; and either includes or excludes a far greater quantity
of land than the whole thirteen United States contain. In
short, there is not a boundary in this grant that is clear,
fixed, and defined. The coast line is uncertain, and that
being the base on which the others are to be formed, renders
the whole uncertain. But even if this line was admitted, in
either shape, the other boundaries would still be on suppo-
sition, till it might be said there is no boundary at all, and
consequently no charter; for words which describe nothing
can give nothing.

The advocates for the Virginia claim, laying hold of these
ambiguities have explained the grant thus :



PUBLIC GOOD. ] I

Four hundred miles on the sea coast, and from the south
point a west line to the great South Sea, and from the north
point a north-west line to the said South Sea. The figure
which these lines produce will be thus:






"




But why, I ask, must the west land line be set off from
the south point, any more than from the north point? The
grant or patent does not say from which it shall be, neither
is it clear that a line is the thing intended by the words :
but admitting it is, on what grounds do the claimants pro-
ceed in making this choice? The answer, I presume is
easily given; namely, because it is the most beneficial ex-
planation to themselves they can possibly make, as it takes
in many thousand times more extent of country than any
other explanation would. But this, though it be a very
good reason to them, is a very bad reason to us; and though
it may do for the claimants to hope upon, will not answer
to plead upon ; especially to the very people, who, to con-
firm the partiality of the claimants' choice, must relinquish
their own right and interest.

Why not set off the west land line from the north end of
the coast line, and the north-west line from the south end of
the same? There is some reason why this should be the
construction, and none why the other should.

First, because if the line of two hundred miles each way
from Cape Comfort be traced by following the indented line
of the coast, which seems to be the implied intention of the
words, and a west line be set off from the north end, and a
north-west line from the south end, these lines will all unite,



12



PUBLIC GOOD.



(which the other construction never can), and form a com-
plete triangle; the content of which will be about twenty-
nine or thirty millions of acres, or something larger than
Pennsylvania: and

Secondly, because this construction is following the order
or the lines as expressed in the grant; for the first men-
tioned coast line, which is that to the northward of Cape
Comfort, and the first mentioned land line, which is the
west line, have a numerical line, being the first-mentioned of
each; and implies, that the west line was to be set off from
the north point, and not from the south point : and conse-
quently, the two last mentioned of each have the same
numerical relation; and again implies, that the north-west
line was to be set off from the south point, and not from the
north point. But why the claimants should break through
the order of the lines, and contrary to implication, join the
first-mentioned of the one, to the last-mentioned of the
other, and thereby produce a shapeless monster, for which
there is no name nor any parallel in the world, either as to
extent of soil and sovereignty, ' is a construction that cannot
be supported. The figure produced by following the order
of the lines is as follows. N. B. If the reader will cast his
eye again over the words of the patent on page 9, he will
perceive the numerical relation alluded to ; observing that
the first-mentioned coast line and the first-mentioned land
line are distinguished by CAPITALS. And the last-mentioned
of each by italics, which I have chosen to do to illustrate
the explanation.




I presume that if four hundred miles be traced by follow-



.PUBLIC GOOD. 13

ing the inflexes of any sea shore, that the two extremes will
not be more than three hundred miles distant from each
other, on a straight line. Therefore, to find the content of a
triangle whose base is three hundred miles, multiply the
length of the base into half the perpendicular, which, in
this case, is the west line, and the product will be the
answer :

300 miles length of the base.
150 half the perpendicular (supposing it a right
. angled triangle).

15000
300

45000 content of the grant in square miles.
640 acres in a square mile.



1800000
270000

m ___ M _ - _ _,-,. ift^

28800000 content in square acres.

Now will any one undertake to say, that this explanation
is not as fairly drawn (if not more so) from the words them-
selves, as any other that can be offered, because it is not
only justified by the exact words of the patent, grant, or
charter, or any other name by which it may be called, but
by their implied meaning ; and is likewise of such a con-
tent as may be supposed to have been intended ; whereas,
the claimants' explanation is without bounds, and beyond
every thing that is reasonable. Yet after all, who can say
what were the precise meaning of terms and expressions so
loosely formed and capable of such a variety of contra-
dictory interpretations ?

Had the order of the lines been otherwise than they are
in the patent, the reasonableness of the thing must have
directed the manner in which they should be connected ;
but as the claim is founded in unreasonableness, and that
unreasonableness endeavoured to be supported by a transpo-
sition of the lines, there remains no pretence for the claim
to stand on.

Perhaps those who are interested in the claimants expla-
nation, will say, that as the South Sea is spoken of, the
lines must be as they explain them, in order to reach it.

To this I reply ; first, that no man then knew how far it

B



14 PUBLtC GOQP.

was from the Atlantic to the South Sea, as I shall presently
shew, but believed it to be but a short distance: and,

Secondly, that the uncertain and ambiguous manner in
which the South Sea is alluded to (for it is not mentioned
by name, but only "from sea to sea") serves to perplex the
patent, and not to explain it ; and as no right can be founded
on an ambiguity, but of some proof cleared of ambiguity,
therefore the allusive introduction of " sea to sea," can yield
no service to the claim.

*There is likewise an ambiguous mention made of two
lands in this patent as well as of two seas; viz. and all that
" space or circuit of land lying from the sea coast of the
precinct aforesaid up into the land throughout from sea
to sea"

On which I remark, that the two lands here mentioned,
have the appearance of a major and a minor, or the greater
out of which the less is to be taken: and the term from
" sea to sea" may be said to apply descriptively to the land
throughout, and not to the space or circuit of land patented
to the company ; in a similar manner that the former patent
described a major of seven hundred and sixty miles extent,
out of which the minor, or square of one hundred miles
was to be chosen.

But to suppose, that because the South Sea is darkly
alluded to, it must therefore (at whatever distance it might
be introduced) be made a certain boundary, and that with-
out regard to the reasonableness of the matter, or the order
in which the lines are arranged," which is the only impli ca-
tion the patent gives for setting off the land lines, is a sup-
position that contradicts every thing which is reasonable.

The figure produced by following the order of the lines
will be complete in itself, let the distance to the South Sea
be more or less ; because, if the land throughout from sea fo
sea had not been sufficiently extensive to admit the west
land line and the north-west land line to close, the South
Sea in that case, would have eventually become a boundary :
but if the extent of the land throughout from sea to sea, was
so great, that the lines closed without reaching the said
South Sea, the figure was complete without it.

Wherefore, as the order of the lines, when raised on the
indented coast line, produces a regular figure of reasonable
dimensions, and of about the same content, though not of
the same shape, which Virginia now holds within the Alle-

fany Mountains; and by the transposing them another
gure is produced, for which there is no name, and cannot



PUBLIC GOOD. 15

be completed, as I shall presently explain, and of an extent
greater than one half of Europe ; it is seedless to offer any-
other arguments to shew that the order of the lines must
be the rule; if any rule can be drawn from the words, for
ascertaining from which point the west line and north-west
line were to be set off. Neither is it possible to suppose
any other rule could be followed ; because a north-west line
set off two hundred miles above Cape Comfort, would not
only never touch the South Sea, but would form a spiral
line of infinite windings round, the globe, and after passing
over the northern parts of America and the Frozen Ocean,
and then into the northern parts of Asia, would, when eter-
nity should end, .and not before, terminate in the north pole.
This is the only manner in which I can express the effect of
a north-west line, set off as above ; because as its direction
must always be between the north and the west, it conse-
quently can never get into the pole nor yet come to a rest,
and on the principle that matter or' space is capable of being
eternally divided, must proceed on for ever. But it was a
prevailing opinion, at the time this patent was obtained,
that the South Sea was at no great distance from the
Atlantic, and therefore it was needless, under that sup-



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