CV. Copy of Opinion of Counsel upon the Patents of the
Virginia Company
May, 1620
Manchester Papers, No. 271
Document in Public Record Office, London
List of Records No. 170
Vpon Considerac̃on of the patentℯ & of the questions move therevpon, I
am of oppinion as followeth.
1
That Sr Thomas Smithe is not so absolutely made Tr̃er by the 2 patent as
that he is not removable by the lawes & orders of the company; either
vpon his owne Desire to surrender the place; or vpon other cause wch they
shall conceyve to be reasonable; ffor although yt may seeme a hard expo-
sic̃on of the wordes (or other seu9all occasions) that there wills shalbe
taken as an occasion to remove him; wthout expressing any iust cause in
certeyne yett when they haue removed him by a gen9all consent; it is not
now to be questioned (as I Conceyve) whether they had lawfull cause or
no; but there doingℯ are to be holden lawfull & iust: & §that by§ the
intenc̃on of the 2 patent wthout any helpe of the third; But when a Lawe
(by authority of the 3 patent is made) at a gen9all court by Consent of
the wholl Company that all officers shall cease at such a tyme & newe to
be chosen; that is byndinge, & makes this point wthout question as I take yt
2
That by the clause of the 3 patent where the wordes are (we do give &
graunt to the sayd tr̃er & Company & there successors foreu9 by theis
p̢ntℯ, that the sayd tr̃er & Company or the greater nomber of them so
assembled (viz at the gen9all quarter Courtℯ) shall & may haue full powe
& authority to choose Councillors & officers & to make lawes &c That in
this case the greater nomber of the Company wthout the tr̃er may make
Lawes &c: & that as well when there is no tr̃er at all, as when he is absent;
ffor as I do conceyve this great & gen9all Quarter Court wch is appointed
by the 3 patent onely may be held wthout any tr̃er at all; and all thingℯ
are to be dispatched there by the greater nomber of the company then
assembled, & that by the expresse wortes of the patent; ffor although the
graunt be to the sayd tr̃er & Company for the doinge of theis thinges at
this Court, yett that is but for forme onely, because all grauntℯ must be
made to them by there name of Corporac̃on & yt is not requisite that the
tr̃er should be p̢nt̃e or haue any voice in the makinge of theis Lawes; But
for the holdinge of the petty Courtℯ apointed by the patent, (& to be
sum̃oned by the tr̃er) the tr̃er must be one by expresse wordes, but so it
is not here; Neither hath the tr̃er any negatiue voice in the makinge of
theis Lawes, nor can hinder the doinge of any thinge wch the greater
nomber of the Company at this gen9all Court will do; and therefore in
reason his p̢nce, is not needfull, the rather seinge he is not appointed by
the patent to be p̢nte, as he is at the other Courtℯ.3
I am of oppinion that the Company (wthout the tr̃er) having power to
make Lawes at the gen9all Court, haue also power to repeall & abrogate
all or any former Lawes as yt seemes they haue done, for the Lawe of
repeall is a Lawe as well as the former & eodem modo quo Constituitur
Dissoluitur; And so the Lawes that were made for the degrees of estab-
lishing Lawes, & for elecc̃on of officers by the balladinge boxe, though
they were excellent & Comendable; yett being repealed by the same
authority they were made, they are gone & determined
4
Sr Edwin Sandes cannott be Continued tr̃er by the act of the company
vpon his former elecc̃on, for that is against the Lawe of the company that
all officers shall cease at the quarter courte Day in Easter terme yearely;
but the Company may then choose him anewe, as yt is likely they did
5
I thinke that the Company here hath no power by the wordes of the 2
patent either to punishe or p̱don offences com̄itted in Virginia especially
in Capitall or criminall causes; 1 because they haue no power to p̳ceed
here against any such offence, as the gou9nor there may do; & yf not to
p̳ceed against it then not to p̱don yt; 2 although that graunt of the patent,
be aswell to the tr̃er & Company & there successors, as to the gou9nor; yett
the power is given to them accordinge to the natures & Limittℯ of there
offices & places, respectiuely, that they shall & may wth in the p̢cinctℯ of
Virginia or in the way by the seas thither &c: haue full power to Correct
punishe p̱don gou9ne & Rule &c: Nowe when a gou9nor is chosen & sent
thither he hath a kinde of Regall power to execute Lawes & to punishe
offenders there and also to p̱don them yf he see cause & that by the wordes
of the patent; wch is more then the Company can do here; for any offence
Com̄itted here, where the offence requires the punishmt of life or member;
muche lesse for any offence done there (as I Conceyve) because they are
not to execute any Lawes there but by ther gou9nor; And besides so muche
may be gathered vpon the wordes of the 3 patent where the Company are
authorised to remaund & send backe offenders to virginia there to be
punished and p̳ceeded against accordinge to the Lawes there established
for offences there com̄itted, and the reason is apparant because that by
those lawes nor by any other they Cannott be p̳ceeded against here for
offences done there, nor p̳doned here when they are p̳ceeded against there;
And so I thinke that for all matters wherein the gou9nor may p̳ceed there
by lawes there established, & for matters p̳p̱ to his Gou9nemt, the Company
here haue no power to Controll his actℯ: And the clause of the 3 patent
whereby the Company are authorised either to punishe misbehauiors
or Contemptℯ or to send the offendors to virginia to be punished is to
taken seu9ally & distributiue reddendo singula singulis; that is for offences
that are com̄itted against the company here (& against wch they may
p̳ceed) they may punishe the offenders here; But for offences done in
Virginia against the peculiar Lawes there established for that gou9nemt,
they must send the offendors thither to be punished or not at all; and being
p̳ceeded against there by those Lawes, they are not to be p̱doned here;
And this I take to be the playne meaninge of both the patentℯ touching
this point.
[Indorsed:] Opinion vpon virginia patent.
