ACQUISITION OF TITLE TO LAND — THE PATENT

of the soil to its own imported subjects, without any compensation to the aboriginal occupants, would be looked upon as a grossly unjust exercise of power.

Those clauses in the charters of 1607 and 1609, which in their practical operation deprived the Indians of Virginia of all interest in the country which had descended to them from their ancestors, did not pass without criticism from Englishmen in that age, who held the same views as to the wrong of stripping the natives of their property without some return, which were afterwards entertained by William Penn. There was an inclination on the part of some members of the Company, in their desire to propitiate this humane sentiment, to spread abroad the report that only those lands of the aborigines would be appropriated which could be spared by them without diminishing their ability to secure a subsistence.¹ The author of Nova Britannia, who was seeking to employ every available moral influence to promote the success of the Virginian enterprise, distinctly asserted that the object of the adventurers was not to make the condition of the Indians worse, but simply to instruct them in the arts of civilization, in consideration of which, the English expected to be permitted to enjoy all that the tribes were unable to use themselves.² The author of Good Speed to Virginia also urged that it was not the intention of the Company to deprive the Indians of their rightful inheritance; there was no necessity for pursuing this course, as they had expressed their willingness to yield to the English settlers as much ground as the latter would require during a long period. It is obvious, however, that the opinion prevailed to a great extent that the

aborigines had no interest in the lands of Virginia, but only a general residence there like the wild beasts of the country.¹ The True Declaration doubtless expressed the sentiment of a large number in describing the country as a new Goshen for the English Israel, and in repeating the remark of Plato, that there was no injustice in removing the sword from the hands of a bad man.² That this view was entertained by a majority of the members of the Company so far as it involved the appropriation of the soil, is shown by their course as an organization; as long as they remained a corporate body, they resented promptly and even bitterly the slightest admission, either direct or by inference, that the Indians possessed the smallest tittle of property in the ground. They upheld with the utmost firmness their right of absolute disposition under the terms of their charters. The only conveyances from the aborigines allowed to pass without their animadversion, occurred previous to the first step that was taken to distribute the soil in fee simple among the English settlers, and in reality were wholly nominal. In 1609, a large area of country situated in the vicinity of the Falls was at the solicitation of Smith conferred by Powhatan on Captain West and his soldiers, who were stationed at that point, in consideration of a small amount of copper, but the grant was rejected by the latter, the authority of Smith not being acknowledged.³ This action of Smith in

recognition of the paramount ownership of the Indian emperor, which was taken as a means of securing the little band of Englishmen from attack, was perhaps never brought to the attention of the Company, or if so, it was done at a time when it was too late to condemn it. In 1615, an unusual scarcity of provisions prevailed in some of the Indian towns, in consequence of which their principal men mortgaged to the English, for four or five hundred bushels of corn, divisions of country as extensive as an English shire.¹ A large body of land at Wyanoke was, in 1617, presented to Sir George Yeardley by Opechancanough, and this gift was confirmed by the Company, probably without any recognition on their part of the original right of the Indian chief.² This was their attitude in every similar instance arising after 1619, the year in which the general distribution of the soil among adventurers and planters began. Thus in 1621, Governor Yeardley, proceeding in conformity with general instructions, granted certain lands in the Colony to a Mr. Barkham; but the transfer was made conditional upon the consent of Opechancanough being obtained, this consent, however, to be subsequently ratified by a Quarter Court in England. When Mr. Barkham entered his petition for approval, the Company hotly condemned that part of it relating to Opechancanough as “dishonorable and prejudicial,” because tantamount to an admission of sovereignty in that “heathen infidel,” who it may be remarked was simply compounding for soil which had belonged to

his tribe for a length of time which went back even beyond tradition. Governor Yeardley was doubtless as little inclined as the Company to acknowledge the superior claims of the savage chief, but he had observed the character of the Indians long enough to know that nothing was to be lost by recognition of the ownership of the king of Pamunkey in the tract of land which Mr. Barkham wished to acquire, especially as the people of the Colony were now at peace with this dangerous warrior.¹

When the charter of the Company was revoked, a much wiser policy was inaugurated with reference to the appropriation of Indian lands, because the colonial authorities were left more at liberty to follow the suggestions of expediency. Jefferson has remarked upon the fact, that a very important part of Tidewater Virginia was acquired, not by conquest, but by the process of lawful exchange. After the administration of affairs had reverted to the King, the occasional wars with the savages, as well as separate instances of outrage on their part, did much to pervert the views of the colonists with regard to the rights of the natives in the soil; but the necessity of retaining the goodwill of the tribes as far as possible and the smallness of the consideration which would secure the largest tract of Indian land, not to refer to the influence of less selfish motives, led the members of the General Assembly from time to time to confirm and protect the aborigines in the possession of their cultivated fields and hunting grounds.

The larger proportion of the Peninsula, the seat of the earliest English settlements, was acquired at first by conquest, but right of possession was afterwards confirmed by treaty. Thirty-nine years after the foundation of

Jamestown, in a conference between Necotowance, the new Indian ruler, and representatives of the colonial government, the former, in the name of his people, agreed to abandon all that area of country which extended between the James and York from a line drawn from the falls of the Powhatan to the falls of the modern Pamunkey. No attempt was to be made to disturb their tenure of the region lying between the York and Rappahannock. If any one of the colonists visited the north side of the former stream without having been driven across by stress of weather, or having gone thither for the purpose of gathering sedge, or cutting timber, he was to be considered a felon and punished as such. Necotowance was required to acknowledge that he held his kingdom under the authority of the sovereign of England.¹

Two years later, the statute declaring it to be a felony in all who sought to establish themselves on the north side of the modern York was repealed. It was now pronounced entirely lawful to make a settlement even on the north side of the Rappahannock.² The agreement with the Indians had broken down, the reason given for the infraction of the treaty being that the lands owned by a large proportion of the planters in the country between the York and the James had become incapable of producing good crops of tobacco, and it was, therefore, necessary to grant them the right to remove to parts of the Colony where the soil was still in its virgin condition.³

In 1653, the Assembly adopted regulations which assured to the Pamunkey and Chickahominy Indians the fullest protection against all intrusions on their grounds. The right was now given to some of the tribes to dispose of their lands by bargain and sale, provided that the Governor and Council had, after an examination, expressed

their approval of the conveyance. This privilege was allowed to the Indians of Northampton in 1654, the consent of a majority of the town being taken as voicing the sentiment of the whole population.¹ So strong was the inclination of the tribes to sell their lands when they were permitted to give a legal title, that in 1656 the Assembly interposed, being prompted to this step by the constant necessity of having to assign them new soil in order to prevent the restlessness and dissatisfaction which would have ensued among them if they had been in possession of no area of country acknowledged to be their own. It was still lawful for them to transfer their lands if they had first obtained the consent of the Assembly, but this consent, it is evident, was not at this time very readily given.²

The disposition of the English settlers to take possession of the grounds of the Indians, either by forcible entry or by fraudulent devices, had been carried so far by 1658, that the authorities again grew apprehensive lest if this should be permitted to continue without restraint, the tribes inhabiting the country adjacent to the plantations, deprived of all means of earning a subsistence either in planting or by the chase, would become discontented, and so be led into enterprises that might result in great loss of life and property to the whites. The Assembly declared

that injustice in dealing with the aborigines in relation to their lands had never been the policy of the colonial authorities; that, on the contrary, these authorities had always been moved by a desire to protect them in their rights. The Assembly, in consequence, provided that no one should be suffered to establish himself on the soil of the Indians without the consent of the Governor and Council, or of the commissioners of the place where it was sought to make an entrance. These latter authorities were held strictly accountable for any permission of this character which they granted. All sales of Indian lands were to be consummated only at Quarter Courts, a greater publicity in the transfer being thus assured, and the opportunity for fraudulent action being diminished. The anxiety of the Assembly to avoid every reason for conflict with the Indians was shown in their order, that all the English who had taken up their residence on the north side of the Pamunkey River in the vicinity of the Chickahominy and Pamunkey tribes, should abandon their estates and return within the old line of settlements.¹ Where a tribe disclosed an unmistakable purpose to withdraw from ground occupied by them, and in doing so, to convey it to individual planters, no opposition was to be offered, especially if the grantees were men of prominence and influence. This was true of Governor Samuel Mathews, who, in 1659, became the owner of the soil which the Wicocomico Indians possessed in Northumberland County. In deserting their lands they expressed a wish to surrender them to him.²

An attempt was now made to reduce the Indian holdings within a definite limit, it being provided that no outlying ground should be conveyed to any white person until the aborigines had been allowed a proportion of fifty

acres for each bowman; and in case the land of any Indian or Indians was included in a patent which had been obtained by a white settler, the latter, if unable or unwilling to purchase the area encroached upon, was to be required to deliver it to its Indian owner.¹ On account quite probably of the fact that the narrow extent of the Eastern Shore placed the tribe inhabiting that part of the Colony more at the mercy of unscrupulous white persons who were anxious to intrude on their hunting grounds, the Assembly exhibited at every period in the seventeenth century unusual care in furnishing them the protection they needed so much. In 1660, the Indians of Accomac complained that they had been deprived of their lands to such an extent that they were now in a straitened condition, and they asked that proper measures be adopted to raise a barrier against the further advance of the English upon their property. The action of the authorities in response to this petition was highly significant. They were not content that the grounds should be laid off for the Accomac tribe by a surveyor of the Eastern Shore. Thinking that such a surveyor might perform the work to the prejudice of the aborigines, instructions were given that the services of a resident of the Western Shore should be obtained, who would have no motive in determining the lands, beyond a desire to execute the task conscientiously. The extent of country to be assigned was to be sufficient to afford the Indians an ample subsistence without regard to what they could earn by hunting and fishing, and they should have no power to alienate it.²

A striking proof of the disposition of the Assembly to show the utmost favor to the Indians, in all their transactions with the whites in relation to the soil, is to be

found in a regulation adopted in 1660 with reference to the record of the acknowledgment given by the Wicocomico tribe to Governor Mathews in conveying to him the land in Northumberland, which, as has been seen, they proposed to abandon. This acknowledgment did not disclose upon its face that there was a valuable consideration for the transfer of the property. The grantee himself was now dead, but the guardians of his heir were directed by the Assembly to tender to these Indians the equivalent in value of fifty pounds sterling. If this was rejected, then the rights acquired by Mathews under his original conveyance and transmitted to his heir, were to remain in abeyance until the tribe of their own motion deserted the lands. No step was to be permitted tending to coerce them in their action, and the Governor and Council were to decide as to whether the merchandise ordered to be offered had been accepted or refused. Still more scrupulous care was displayed by the Assembly in the instance of an Indian grant to Colonel Fauntleroy of Rappahannock; no evidence being offered to prove that it was made for a sufficient consideration, he was commanded to cover the deficiency by an additional recompense the amount of which was carefully prescribed.¹

The regulation adopted for the protection of the Indians of Accomac denying them the right to alienate their lands, was not extended in its scope to the aborigines in the older parts of the Colony. In 1661, the privilege was granted to the Chickahominy tribe to dispose of their grounds to the English, provided that each sale received the approval of a majority of their great men, which was to be announced in a Quarter Court or the Assembly.² How far mere apprehension entered into these equitable regulations is revealed in an Act, passed in 1661, with

reference to the Cheskiack Indians, which may be quoted in full: “Considering the use and benefit the country may enjoy from the Cheskoiack Indians being kindly used by us, and being sensible that with the few guns they have amongst them, they cannot prejudice us, being a small, inconsiderable nation, it is ordered, to show other Indians how kind we are to such as are obedient to our laws, that the said Cheskoiack Indians quietly hold and enjoy land they are now seated on and have the free use of guns they now have.”¹

There are many indications of the justness of the ground on which this apprehension was founded. In 1662, it was stated in an Act of Assembly that the chief cause of all the friction in the relations of the English and Indians arose from the encroachment of the former upon the lands of the latter. The aborigines in retaliation were induced to kill the cattle of the settlers, exasperating them to such a degree that they were ready at any moment to fall upon the depredators. The Assembly acknowledged that the provision requiring all grants of Indian lands to be submitted to itself or the General Court for approval had not accomplished fully the purpose intended, as every device was employed by designing men to obtain the consent of the Indian owners to proclaim in this public manner their desire to part with their grounds. It was now considered to be necessary to apply to all the tribes the regulation which had been put in practice with respect to the aboriginal inhabitants of Accomac. All alienations of soil by them were declared to be without validity. Commissioners were also appointed to view annually the boundary lines between the plantations and the Indian territories, and to prevent any intrusion upon the latter.² These provisions were steadily maintained

until war with the Indians broke out in 1676; in that year, as a means of prosecuting hostilities, it was decided that all the land assigned to the tribes under previous Acts, which had been given up by them, and that all lands they now occupied but which they should hereafter desert, should be appropriated and sold for the benefit of the public.¹ Previous to this, when the Indians were shown to have abandoned ground laid off by public authority, it was the custom of the General Court, upon the most positive evidence to that effect, to suffer private persons to obtain patents to this soil, just as if it had been in the limits of the older settlements.² How strictly the regulation was enforced when the aborigines were still in possession of their lands, was revealed, in 1674, in the stern injunction to the colonists who had seated themselves in the territory of the Nottoways to withdraw, and also in the general instructions to surveyors not to lay off the lines of new grants in the boundaries of that territory.³ The same means were employed in Virginia in the seventeenth century to evade the law prohibiting the alienation of Indian lands, as have been used in the present age on the reservations in the West, namely, the securing of a nominal lease from the aboriginal proprietors; the General Court was always quick to condemn such arrangements, and to deny their validity unless they were clearly to the advantage of the Indians.⁴

As time passed on, the Indian population gradually diminished, and great tracts in this way became deserted without any removal on the part of the aboriginal owners beyond what death had brought about. In 1685, for instance,

it was stated in an appeal of the Burgesses to Lord Howard that when the region of country on the Blackwater was assigned to the tribes residing in that part of Virginia, the number of individuals composing them was very large, but that the tribes were now extinct. The nearest Indians were the Wyanokes and Nansemunds, who would have been pleased to see the colonists establish themselves on their lands, since this would have constituted a barrier against the attacks of their enemies from the South. Howard refused to yield to the wishes of the Burgesses because in conflict with the existing agreement between the Indians and the colonial government.¹ In 1688, a few years later, the tribes residing in Pamunkey Neck and on the south side of Blackwater River, offered a petition to the Assembly, in which they urged that all the lands in their vicinity they were unable to use should be granted to the English, not only as a means of protection to the petitioners, but also as a relief to them in their indigent condition.² The reservations with one exception finally disappeared. The Indian habits of life, inherited from remote ancestors, could not be changed even by contact with the civilization of the English. Every year saw a further abridgment in the extent of the soil which was still in their possession. The aborigines have now dwindled to a few half-breeds, who own only a few rods in that great area of country which was once the seat of the powerful confederacy of Powhatan, and the exclusive property of their forefathers.³

During the existence of the Company, the ability to convey an interest in any portion of the soil of Virginia, that soil having been granted to the Company in free and common socage, resided under the charter of 1606 in the Council, and under the charter of 1609 in the Treasurer, Council, and general association of adventurers in England, and they could at their discretion prescribe not only the area to be included in each conveyance, but also the conditions to which the title should be subject in passing. The Company could delegate to the Governor and Council in the Colony the right to transfer land either in a single instance or in a series of instances, but at any time it could withdraw this right, if circumstances seemed to demand it. The delegation could only be made by the Company when it had come together in a Quarter Court, an occasion when the whole membership was either in attendance or fully represented, and when all matters affecting the welfare of the organization, which required the most thoughtful consideration, were presented for final judgment. The action of the Governor and Council in Virginia when they conveyed land in accord with the power thus formally and solemnly granted to them, was

expressly stated to be purely ministerial.¹ They were mere agents and attorneys of the parent body, without even the right to discriminate except so far as they were allowed to do so by the explicit terms of the instructions which they had received. Apprehensive that the authorities of the Colony might find some loophole for the commission of fraud even when they were carrying out a command which minutely prescribed the course to be pursued, a fraud which would diminish the revenues of the adventurers in England and indirectly increase the cost of the enterprise, the Company was careful to establish the regulation that no grant by the Governor and Council should be absolute and exclusive, although the deed bore the impression of the corporate seal and acknowledged that the original right of conveyance resided in the Company, which had been delegated for the reasons set down, until the document had been forwarded to London, and had been examined, approved, and ratified at a Quarter Court.²

These were extraordinary precautions. They were probably justified by the circumstances to be met, but it is obvious that so cumbrous and dilatory a system of transferring a title to land could only have continued during the infancy of the Colony. Growth of population, which called for ever-increasing facilities in the rapid acquisition of an interest in the soil, would have broken it down even if the letters patent of the adventurers had not been recalled.

When the Company made a grant of land in Virginia, the indenture came up first for examination in a special committee that owed its existence to a standing rule. If there were palpable reasons for throwing it out, this was done, but if no objection could be advanced against it, from any point of view, it was endorsed as approved and laid aside for ratification at the next succeeding Quarter Court. If not rejected at this general meeting of the adventurers, it was forwarded to the Governor and Council in the Colony. The counterpart of the patent bearing the seal and signature of the grantee was preserved in the great chest in which all the evidences and muniments of title belonging to the corporation were carefully guarded. There were several distinct grounds upon which a grant of land was made by that body. The first was the purchase of a bill of adventure,¹ the price of which was set at

twelve pounds and ten shillings. The early shareholders subscribed with the understanding that they were to receive a certain proportion of the profits of the joint stock, and of the lands when the time for distribution arrived. It was intended originally that this should be in 1616, when it was anticipated that the population would have increased and the settlements have been extended very much.¹ The first division was to apply only to the soil in the valley of the Powhatan, and in the vicinity of the recently established towns.² Commissioners were to be dispatched to the Colony with instructions to make a survey, which was to be the basis of a map showing the allotments of every shareholder who had given in his name previous to the departure of these officers from England, and new adventurers were to be permitted to enjoy the same privilege as the old in having an interest in the dividends.³ Each portion of land thus set apart was to be transferred as an estate of inheritance. The holder of a single share was to be entitled to one hundred acres in the first division of the soil and one hundred acres additional in the second division, when he had seated the first plantation.⁴ The arbitrary conduct of Argoll, whose

administration of the affairs of the Colony began in 1617, interfered, as we have seen, with the general distribution of the lands in fee simple at the time it had been designed to carry that measure into effect,¹ and it was not until 1619, upon the assumption of control by Yeardley, that the subdivision of the soil into separate holdings took place to the degree intended in the beginning. The immediate authority upon which this subdivision was made was an order passed at a Quarter Court, on the 18th of November, 1618, and directed to the Governor and Council in Virginia; the shareholder was by it exempted from the payment of quit-rents, a privilege granted to all who should receive their bills of adventure previous to the midsummer of 1625.² The acquisition of less than fifty shares by purchase from an old or new adventurer did not transfer to a subsequent holder all the advantages and immunities enjoyed by the first owner; the privilege of paying no quit-rents was under these circumstances restricted for every bill of the old adventure to a proportion of four persons who had been brought over previous to 1625.³ It would seem that about one third of the persons who purchased shares in the Company disposed of them to others, about one-third emigrated to Virginia and established themselves on the estates which they had acquired, and about one-third dispatched their representatives to

make a settlement in their stead.¹ In many instances, claims to land in the Colony based on a purchase of shares in the Company were declared valid after the Company itself had been dissolved. Thus Thomas Graies, who had subscribed to the extent of twenty-five pounds sterling, did not secure a patent to his dividend until 1628,² and it was not until 1636 that Captain John Hobson received a patent upon a bill of adventure bearing the date of 1621.³ It happened also that under the same circumstances a son was granted a tract that had been due to his deceased father on his holding of shares.⁴

A magnified form of the dividend of the individual shareholder was to be found in the subpatents obtained by private societies. The earliest were those known as Martin’s and Smith’s Hundreds. Certain associations of persons were allowed to engross enormous bodies of land in Virginia by purchasing many shares in the original Company, which carried with them the same privileges and the same obligations as those accompanying the purchase of a single share.⁵ Thus, if one of these associations acquired twenty thousand acres in the Colony by the purchase of two hundred shares of stock, its members were entitled to twenty thousand acres in addition as soon as they had seated the first twenty thousand.⁶ The history

of all these societies, however, shows that this condition was not fulfilled in the measure required. The expectation of the Company was that the adventurers in these private associations would transport themselves, families, servants, and tenants to Virginia, and would employ their means in developing their properties. In many cases, this was done, but the result was disappointing. This was inevitable. It is significant that these great subpatents were, with two exceptions, not granted until as late as 1618, when, in consequence of misgovernment, the Colony had been very much reduced in strength and the treasury almost entirely depleted. In this depressed condition of affairs, a number of gentlemen of fortune, who were anxious for the prosperity of Virginia, came forward and offered to establish societies and by their means erect particular plantations.¹ In 1620 alone, five patents were granted to associations of this character. If the majority of the members of the parent body could have followed their own wishes, it is highly probable that they would never have consented to these grants, not only because it led to the abandonment of a large part of the work of their own corporation to private associations, but also because it transferred their privileges and immunities over the territory conveyed. The Company was careful

to announce that it would be illegal for those designated as beneficiaries in a subpatent to unite of their own motion with them in the rights accompanying it, persons whose names did not appear in the document, unless the consent of the Company had first been obtained. If particular persons with their dependents should remove to Virginia, and, although not members of that body, justify their title to the lands occupied by them in the Colony by their combination with certain subpatentees, they were to be set down as mere tenants who were to be required to pay one-fourth of the annual profits of the ground which they had brought under cultivation.¹ After the dissolution of the Company, these private societies, which do not appear to have been at any time very prosperous, either quickly or gradually broke down. The lands belonging to some were transferred by patents with little regard to their original ownership. In order to confirm the persons who had obtained these patents in their tenure of the soil granted to them, special instructions were given in 1639 and 1641 by the English Government, which conferred upon the colonial authorities the power to assign a proportionate area of land to these associations elsewhere, in case they laid claim to the tracts conveyed.² The adventurers interested in Southampton Hundred seated in its boundaries at least three hundred persons, and expended in its improvement six thousand pounds sterling.³ There

were two hundred thousand acres in this patent. In 1627, the Secretary of the Colony was directed by the General Court to draw up, for its information, a list of all the properties in the limits of this Hundred, including a statement of the amount of the rents paid by tenants in occupation of the lands and houses, and a similar report was to be made at every quarter and entered on record. The members of the Society residing in England were to be informed of this regulation.¹ In spite of this care for the preservation of their interests, the property of these planters melted away to such a degree that they acknowledged in court, in 1635, that all was gone but the stock of cattle then in dispute.² Martin’s Hundred covered an area of eighty thousand acres, and yet it was only settled in part; after the fall of the Company, not many years passed before the whole of this area was in the possession of private individuals. In 1636, William Tucker and others obtained a patent to eight thousand acres in Barclay Hundred, to which they had acquired title by a deed of sale from the adventurers of that association.

The second ground on which a grant of land was made was the performance of meritorious service. Among those who, during the administration of the Company, were included in the class of persons deserving of this form of reward, were ministers of the Church, officers of State and justice, physicians, and others who had commended themselves by highly useful actions in the Colony to favorable consideration.³ In the commission which

Delaware received on his appointment to the Governorship of Virginia in 1610, there was conferred on him the power to recompense, by bills of adventure for land, all persons who appeared to him to be entitled to some special recognition.¹ In 1619, Captain Newport received from the Company a bill of adventure which was equal in value to thirty-six shares, and after his death thirty-five shares additional were presented to his widow.² In return for the services and sacrifices of Sir Thomas Dale in advancing the welfare of the Colony, he was allowed the proportion of seven hundred pounds sterling in the distribution of lands.³ This generosity was not restricted to officers occupying the most conspicuous positions; in 1622, two shares were granted to the captain of the Royal James in acknowledgment of the important assistance which he and his crew had given towards the promotion of the interests of Virginia.⁴ During the existence of the Company, in order to prevent the abuse of this privilege, it was provided that all shares for merit alone should have such limitations as would restrict their sale or transfer, notwithstanding that a full consideration was offered, unless the committee appointed to supervise the substitution of holders should give their consent after a careful examination of all the circumstances.⁵ The right of conferring an interest in the soil of the Colony, as a reward for special services performed by individuals, remained in force after the Company had been driven

to surrender its charter. In 1638, Wyatt was instructed to grant patents of land to every person who by merit was entitled to it under the operation of the provisions adopted for application to such instances.¹ Ten years later, Charles the Second presented a favorite servant with two thousand acres.² The most ordinary ground upon which these patents were now based was the performance of important services on the frontiers. A special order of court was passed in 1630 with reference to a certain area of country adjacent to the territory of the king of Pamunkey, who at that time was looked upon as a dangerous enemy of the colonists, by the terms of which an extensive tract was granted to every commander, and fifty acres to every other person, who would establish themselves there for the purpose of forming a barrier to the further intrusion of the Indians. Twenty-five acres were to be allowed to all who in the course of the second year removed thither. Among those who took advantage of this order of court was John Chew, who in 1636 obtained a patent to five hundred acres there for the adventure of himself and nine companions.³ In 1653, the Assembly offered a fee simple title in ten thousand acres to any association of persons who would seat themselves

in the valley of the Roanoke or Moratock River, after selecting a secure position and providing an abundant supply of ammunition.¹ In 1646, Fort Henry on the Appomattox with six hundred acres attached was granted to Captain Abraham Wood, Fort James on the Chickahominy with four hundred acres to Thomas Rolfe, and Fort Royal with six hundred acres to Captain Roger Marshall, in return for which each was to maintain a band of rangers for the defence of these fortified posts.²

In the beginning, the performance of manual services was hardly a less common means of acquiring an estate in Virginia than the performance of religious or administrative services. Every man who became a tenant or servant of the Company previous to the return of Sir Thomas Dale was allowed, at the expiration of the term for which he had bound himself, a patent to one hundred acres of land, and this was perhaps enlarged to two hundred if the owner erected a house upon the second hundred acres in the course of three years. The tenant or servant, by settling in Virginia and there for a certain length of time devoting his physical powers to the cultivation of the lands of the Company, was looked upon as having placed himself upon the footing of the shareholder who had invested twelve pounds and ten shillings in its stock, and he was, therefore, on the expiration of the time prescribed in his covenants, entitled to the same extent of soil, with probably the right to the same additional area upon the performance of the conditions applying to an ordinary shareholder.³

The orders and constitutions of 1618 granted one hundred acres of land to every planter who at his own cost had come into the Colony previous to or in the course of Dale’s administration; the privilege accruing under this provision was in many cases claimed as late as 1635, either by the planter himself, who, for some reason had failed to take advantage of it hitherto, or by his descendant.¹ The personal adventurer could also be a shareholder, and thus obtain an additional proportion of land.

The third ground on which a patent was granted was the head right. The head right was in operation in 1618,² growing more and more important each successive year until it became the principal basis for title. Every shareholder who transported an emigrant, whether free or bond, to the Colony, acquired thereby a claim to fifty acres if the person remained in Virginia for a period of three years, or even if he had died after he was taken on board ship on the outward voyage. The shareholder secured an additional tract of fifty acres in the second distribution of lands upon the strength of the transportation of this person.³

An attempt was made at one time by some of the shareholders to establish the rule that the cost of transporting all emigrants forwarded by them to Virginia, but lost on the way, should be assumed by the Company without

regard to the amount of their shares, this cost to be made good not by the actual payment of money, but by a grant of land under the liberal terms allowed by the corporation to its members. Thus if an adventurer purchased one share, which entitled him to one hundred acres on the first division, and when he had seated them to an additional hundred acres on the second division, if after securing the patent to the first one hundred acres he dispatched twenty persons to Virginia, and these persons were drowned at sea or died of pestilence on shipboard, it was claimed by some that the transportation of the twenty entitled the shareholder, if an old adventurer, not only to one thousand acres upon the first division and one thousand acres more upon the second, but also to an area of land sufficient to recoup him for the loss resulting from the destruction of the twenty emigrants, this area to be measured by the ratio governing the allotment under the law relating to the head right. To have acknowledged the justice of such a claim would have led to the partial defeat of the object which the Company had most at heart, that object being to make the increase of population in Virginia maintain an equal progress with the acquisition of private ownership in the soil. The claim was brushed aside in terms of the strongest disapprobation, as likely to confer upon individuals a large proportion of the lands in Virginia without any advantage to the general community.¹

The acquisition of ownership in fifty acres through the head right was not even in the time of the Company confined to the shareholder. Any one who had emigrated

to the Colony, or who had carried or sent over another person, became entitled to the same area of land.¹ The law allowing this was eminently wise in the beginning. No more powerful influence could have been set in motion for increasing the volume of population in Virginia. The extent of land to be obtained by compliance with other conditions and even by the purchase of shares was necessarily small in comparison with the area which would be acquired by this means. The conveyance of title upon the strength of the head right furnished the practical assurance that the appropriation of the soil would not outstrip too far the growth in the number of inhabitants. After the dissolution of the Company, the head right became still more common as the basis of securing a patent. Previous to 1625, it had been authorized by the orders and constitutions of the Company; when the letters of that corporation were recalled, there was a feeling of profound uneasiness in the Colony, that all titles to land would be questioned, with the result of disturbing vested interests in this form of property. Among the objects to be attained by the mission to England with which Governor Yeardley was entrusted in 1625, was the recognition of existing holdings in Virginia, and the continuation of the regulations established to govern the acquisition of land. In order that these regulations might be given more stability, he was instructed to urge the necessity of their confirmation by an Act of Parliament.² The apprehensions of the colonists were entirely removed by a grant of letters patent by the King on the 14th of March, 1625, in which the ordinance of

the Company with reference to the head right received the royal approval.¹ On the 26th of March, 1627, Charles the First being now in occupation of the throne, the letters patent of James the First were confirmed, and were confirmed for the second time in 1631, and for the third time in 1633, and in the twelfth year of Charles the First's reign, were confirmed for the fourth time. In the instructions which were given to Wyatt when he became

Governor in 1639, it was declared that for every person who had transported himself, or had been transported into Virginia before 1625, an area of fifty acres of ground should be allowed if it had not already been done, and Wyatt was directed to continue to enforce this regulation until he had received orders to pursue a different course.¹ The same injunction was laid upon Berkeley in the instructions given him in 1641 on assuming the administration of affairs in the Colony.² So important did the Virginians consider the head right of fifty acres, that in their surrender in 1651 to the Commissioners of Parliament, they sought and obtained its confirmation as one of the conditions of submission.³ This fact is embodied in the preambles of many of the patents put on record during the existence of the Protectorate.⁴ In the Act of Parliament passed for the settlement of affairs in Virginia, the privilege of fifty acres for every person transported thither was continued, and this Act is mentioned in many of the patents issued at this time as the authority for the grants which they contained. After the Restoration, this privilege was confirmed repeatedly in the instructions given to the Governors of the Colony.

The acquisition of land in Virginia by the conveyance of persons from England was not as inexpensive a means of becoming an owner of soil in the Colony as it would seem upon the first view. If a man obtained his title to fifty acres by the transportation of himself, the cost in general in the seventeenth century was six pounds, the outlay entailed by a passage across the ocean at that period.

This would signify about two and two-fifths shillings an acre, or, raising this sum to the purchasing value which it would probably have to-day in American currency, two dollars and eighty-five cents. In addition, the tract acquired was covered with an enormous growth of primæval forest, which made necessary a great expenditure of labor and a considerable expenditure of money to clear the ground. If the right was secured by the introduction of a servant, not only must the charge for his passage be taken into account, but also the amount required to clothe him. The cost of his apparel alone in 1649 was three pounds and seven shillings.¹ When it grew common for the planters to sue out patents on the basis of head rights acquired by the purchase of persons brought over by the

merchants for sale, they were compelled to pay, in addition to the actual expenses of transportation, the profit which the traders demanded for their trouble in obtaining the servants in England.

From the very inauguration of the system of head rights, it was abused and evaded by every contrivance which ingenuity could suggest. In many cases, several patents were obtained by the same person on the strength of the number of times he had paid the charges of his own passage across the ocean. Thus in the year 1637, a tract of seven hundred acres was granted to John Chew, one hundred acres of which was allowed him for his own transportation in 1622 and 1623.¹ In a patent of one thousand acres acquired by Theodorick Bland and his brother near the close of the century, they were entered for two head rights respectively on their individual account, although they had for many years been prominent citizens of Virginia.² There is a record of a grant, in 1651, in which the patentee was permitted to receive eight head rights for this number of voyages across the sea backwards and forwards.³ This was in contempt of the spirit although in conformity with the letter of the law. No lapse of time, as observed in the case of John Chew, to which reference has been made, served to make invalid a claim based upon the transportation of one’s self. The widower could secure patents on head rights acquired by his marriage to several wives in succession, provided that he could truthfully swear that he had brought them into the Colony, or that they had come at

their own expense. In a patent granted to William Carter in 1636, the head rights were derived from his transportation in different years of two wives, then deceased, his living wife, and seven additional persons.¹ Many head rights were obtained on the ground of a pretended blood-relationship to individuals now dead who had settled in Virginia.²

The perversion of the head right from its original purposes grew more and more palpable with the progress of time, the certificate being granted without the slightest regard for the requirements of the law. One of the most unscrupulous instances of this perversion was where the master of a ship swore before the proper authorities that he had on a stated occasion brought into the Colony certain persons, who were in reality his seamen and passengers, for whose transportation he had never received the head rights to which he was entitled, and this claim was rarely thrown out, although the seamen were permanently attached to his vessel under articles of agreement which had been compelling and would still compel their services for a long period, while the passengers had borne every expense they incurred in making the voyage.³ In the succeeding year, perhaps, he would repeat the act, and upon the basis of the same sailors, together with a new batch of passengers, obtain, after taking the required oath, the same number of certificates to head rights as in the preceding year. In general, the custom prevailing among those having recourse to these unprincipled methods, who must, after all, have been comparatively few, was to sell the head rights thus gotten as soon as they received

their certificates, which placed the purchasers in the position of the shipmasters with reference to the patents to be sued out. The acquisition of head rights under these circumstances by masters of vessels having been attended with no pecuniary cost and with little personal inconvenience, it followed that they were prepared to dispose of their certificates for a smaller amount of tobacco than was usual. In this way, they were able to make a considerable addition to their cargoes, which, from the fact that no outlay was entailed in securing it, augmented to that extent the clear profit of the voyage. As long as the violation of the law was either consciously or unwittingly overlooked by the colonial authorities, there was no reason in the opinion of a shipmaster guilty of this fraud why he should be disturbed in conscience. To guard, however, against the chance of his scheme of acquiring head rights on the strength of having transported to Virginia his own sailors for the third or even for the fourth time, being upset by the honesty of the officials before whom the oath was taken, he was generally too shrewd to select the same county in the Colony twice in succession as the scene of his imposition upon the welfare of the community.

As might have been confidently expected, the evil example of an unscrupulous shipmaster was imitated by the sailors under him.¹ It would have been unnatural for the underling to have observed the profit which his superior was reaping by his facility in false swearing without seeking to secure some advantage for himself by the same means. The master of a vessel having obtained a certain number of certificates of head rights, by taking an oath that he had brought to Virginia his own sailors, whom he doubtless described in very indefinite terms, the

sailors in their turn swore with equal roundness that they had transported themselves at their own expense, and were therefore each entitled to fifty acres in the Colony. There was little likelihood that the common mariner was more scrupulous than his superior in embodying in his oath the statement that he had never received previously a certificate to a head right on the basis of transportation of either himself or his commander. The same custom of selling the certificates secured in this fraudulent manner prevailed among the sailors as among the shipmasters.

There are many indications, however, that the area of soil in the Colony in the possession of seafaring men acquired by patent was very extensive. As early as 1624, there was a grant of two hundred acres at Kecoughtan to William Gainge, a mariner. In 1635, William Barker, also a mariner, obtained a patent to four hundred acres in Charles City County; three years later, Richard Barn-house, who followed the same profession, received by patent two hundred and fifty acres.¹ The author of the New Description of Virginia, writing in 1649, declared that a large proportion of the shipmasters and the principal seamen employed in the transportation of tobacco from the Colony at that time owned plantations there.² Powers of attorney are frequently found in the County Court entries of that period still in existence, conferring authority on some one in Virginia to manage or sell estates which had descended to the person giving the power from

a mariner who had made a fortune in the Virginian trade. Some of these powers appear to sustain the assertion of contemporaneous witnesses that the dealings of sailors in connection with head rights were not in accord with the spirit of the law. There was recorded in the county of Rappahannock, in 1668, a document of this character from Thomas Sheppard of Plymouth in England, in which he places William Moseley in charge of his interest in one hundred and fifty head rights due him for the transportation of one hundred and fifty persons at different times, and in different ships, on account of whom, so far as he knew, no certificates had as yet been obtained.¹ It might be well asked where were these persons? If they had been free when they came over, they had doubtless secured patents on the basis of their own transportation, or if they had become servants on their arrival in the Colony, their masters or mistresses had most probably taken advantage of this fact to acquire larger areas of the public lands than were at that time in their possession.

For one individual who was brought over to Virginia, two hundred acres were frequently obtained by different persons.² The shipmaster secured fifty acres for transporting him in his vessel, the merchant who purchased his period of service from the shipmaster, or who had entered into covenants with him through agents in England, received a second fifty acres, and the same number were granted to the planter who acquired the interest in him owned by the merchant. It happened quite often that two planters would unite in buying from the merchant the same individual as one of many individuals imported, and under these circumstances, they were allowed

two head rights on account of the same person. The proprietaries of the Northern Neck did not consider themselves under any legal constraint to give fifty acres of land for the transportation of every man, woman, or child who might be introduced into the boundaries of their territory as defined in their grant. This led to a further perversion of the object of the head right. The ship-master or merchant who had imported servants into the Northern Neck, or English emigrants who had gone there to settle, entered a claim for lands in that part of Virginia which lay outside of the limits controlled by the proprietaries, in proportion to the number of individuals brought in, and when they had secured acknowledgments of their claims, they assigned the certificates for a stated consideration to persons who either lived in that division of the Colony or who proposed to take up their residence there, and who by means of these certificates were able to obtain patents to extensive plantations. In cases of this kind, the Colony at large acquired the additional population, and to that degree the principle of the head right remained inviolate, but the principle was really disregarded in the fact that these transactions threw into the hands of the purchasers of the certificates great bodies of land which must continue wholly uncultivated and uninhabited.¹

The perversion was pushed so far that head rights were granted upon the presentation of lists of names copied from old books of record, and it ended in the clerks in the office of the Secretary of the Colony falling into the grossly illegal habit of selling these rights to all who would pay from one to five shillings for each right, without any pretension being made that the buyer had complied with the law either by bringing in immigrants

himself or by purchasing certificates from persons who had done so.¹ These abuses crept in with the general consent. It may be accepted as a fact that the inclination to disregard the regulation as to head rights, both in its letter and spirit, was not confined to the office of the Secretary. If we inquire into the causes of this state of public feeling, we will find that it was the result of economic influences that had sprung up and grown with the progress of time. When the population of the country had reached a certain point of expansion, the reasons leading to the adoption of the principle of the head right in the beginning began appreciably to weaken, although until the whole country had been appropriated by individual proprietors and had become inhabited, these reasons could never cease to have force. In time, however, there inevitably arose a demand for a more easy and less expensive method of acquiring an interest in severalty in unoccupied soil. The transportation of persons from England or elsewhere entailed, even in the beginning, upon those who wished to sue out patents to land in the Colony, a much heavier outlay than they would have been willing to incur, but for the fact that during the early years in the history of Virginia, this was the only means of obtaining the laborers whom they needed to bring the ground they had secured into a state of cultivation. When, however, the population had grown so large that it was possible to get this assistance without having to go to the expense of importing either servants or slaves, it followed that the law restricting the method of obtaining land by patent to the acquisition of the head right upon the basis of transportation, or purchase of certificate, became in many cases extremely inconvenient. To the man who lacked the pecuniary means to

meet the expense of conveying persons to the Colony, or to buy them either as slaves or servants after they had been brought in by others, the ability to purchase a patent by the payment of a small sum in the Secretary’s office offered his only opportunity of securing an estate out of the public domain. A wealthy planter might wish to add to the area of the soil that had long been in his possession and under cultivation, an adjoining tract, which had never been taken up, to be used as a range for his stock or as the site for new tobacco fields. Under a strict operation of the law, his only resource under these circumstances was to import the number of persons who were required to assure him a title, or to purchase an equal number of certificates of head rights, but it is easily conceivable that it might not have been to his advantage to increase the band of servants and slaves already belonging to him. If the principle of the head right had in a case of this kind been carried out in full, the expense and annoyance entailed upon the planter in adding a body of outlying land not yet appropriated, to the property already owned by him, would have been so much out of proportion to the real value of the tract, that he would probably have foregone his intention altogether. It was due in a large measure to cases of this kind that the habit crept in towards the end of the century of granting patents upon a payment of a fee in the Secretary’s office. It did not have the countenance of law, but popular convenience suggested and sustained it. Its liability to gross abuse could not discredit the substantial reasons in which it had its origin. It was a modified form of purchase which had its only authority in custom, but in communities resembling those of Virginia in the seventeenth century, custom had all the force and influence of the most positive statute. It was only a question

of time for such a custom to be adopted as a standing regulation. When the laws of the Colony were codified in 1705, under the requirements of an Act passed a few years before, it was provided that in addition to the method of acquiring an interest in the soil upon the basis of the head right, the power of purchasing the public lands with coin or its equivalent, tobacco, should be allowed. By the irregular conduct of the clerks in the Secretary’s office, already referred to, the charge for a patent had ranged from one shilling to five for every fifty acres. The price was definitely fixed by the statute at five.¹

I have already enumerated the steps in the course, which, during the existence of the Company, had to be taken to give validity to a patent to land in the Colony, namely, the presentation of a petition to the Quarter Court, its reference to the standing committee for examination, and its final confirmation by the corporation at a general meeting. This confirmation, as has been seen, was also required where the grant had been made by the Governor and Council in Virginia acting in a ministerial capacity under the orders of 1618. After the abolition of the Company, the method of obtaining a patent was much less complicated. The person having a claim to head rights went before the clerk of the court of the county in which he resided, and took an oath that he had imported the number of individuals whose names he presented in his list.² The oath and the list were then embodied in a certificate bearing the seal of the court and the official signature of the clerk. This certificate was entered in the records of the county. It was very frequently assigned at once by the owner in return for what he deemed to be a sufficient consideration, and when

the patent was drawn upon its authority, the fact that it was based upon head rights which had been transferred was carefully stated in its text.¹ The certificate having been secured, whether it remained in the hands of the person who had obtained it from the clerk or had come into the possession of a purchaser, it had to be entered in the office of the Secretary of the Colony. In theory, the accuracy of the list of persons, represented in this certificate to have been transported to Virginia, was inquired into by the clerks in that office, and if the list was shown to be correct, the document was filed as a part of the permanent records of the Secretary. A second certificate was now issued which directed the surveyor of the county in which the person seeking the patent desired to have lands assigned to him, to lay off the prescribed number of acres.

During a long period, there seems to have been no limit set to the area of soil to which a single individual might thus secure a certificate, this merely depending upon the number of persons whom he was able to bring into the country. During the four years preceding 1623, forty-four grants of land were made by the Company to patentees, each of whom had engaged to transport at least one hundred persons at his own expense to the Colony. This would signify that each of these patentees obtained a holding of five thousand acres.² The plantations acquired under the operation of the law as to head rights were at this time comparatively small as a rule. An examination of the census taken of the landowners of the Colony in 1626, reveals that the size of a great majority of the

estates at that time ranged from one hundred to one hundred and fifty acres; many covered as much as three hundred acres; a few extended to six hundred, and still fewer to one thousand.¹ It was not many years before the disposition to sue out patents to tracts which were considered large in that age had grown sufficiently to induce the Governor and Council to write to the Privy Council in England, and advise them strongly to prohibit the appropriation by any one individual of great bodies of land in Virginia, but this recommendation made no impression on those to whom it was addressed.² Barely a decade later, there were men in the Colony in the possession of plantations in the different counties which aggregated ten thousand acres.

When a person, however, was able to obtain possession of a great number of acres, it was generally through the acquisition, by patent, of plantation after plantation, each of a comparative small area, but amounting in their aggregate extent to a vast body of land. The records in the Register’s office in Richmond, in which the copies of the patents are preserved, enable us to discover with a fair degree of exactness the size of the tracts taken up from year to year after the dissolution of the Company.³ From

1626 to 1632, the greatest area of soil included in any one patent was one thousand acres. In no other instance did it rise above five hundred. The average area ranged from one hundred to three hundred. In 1632, the largest number of acres taken up under one patent was three hundred and fifty. In 1634, two very extensive tracts were acquired by patent, one amounting to twenty-five hundred and fifty acres, the other to five thousand three hundred and fifty. There were in the same year two instances of patents to tracts of fifteen hundred acres respectively and two of two thousand acres. The general average was not in excess of seven hundred and nineteen. In 1635, there was but one tract taken up by patent, which ranged as high as two thousand acres; the average size of the tracts thus acquired in the course of this year was three hundred and eighty. In 1636, the largest tract obtained by patent was two thousand acres in extent, and the average was three hundred and fifty-one. In 1637, the largest was fifty-three hundred and fifty acres. In four instances, two thousand acres were acquired, and in a third, twenty-two hundred and fifty, while the average area was not in excess of four hundred and forty-five. In 1638, the most extensive area included in a patent was three thousand acres. The average number was four hundred and twenty-three. In 1640, the most extensive area of ground

included in a patent was thirteen hundred acres, while the average number acquired in this form was four hundred and five. In 1641, the most extensive area was eight hundred and seventy-two, and the average three hundred and forty-three. In 1642, there were granted under one patent three thousand acres of land; five additional patents included an area ranging from two thousand to twenty-five hundred acres, while the average was five hundred and fifty-nine. In three instances in 1643, as much as four thousand, three thousand, and twenty-one hundred and ninety-two acres were included in different patents, and in two instances, the area of the grants amounted to two thousand acres. The average area was five hundred and ninety-five. In 1644, the largest area of ground acquired by a patentee was six hundred and seventy acres, while the average extent of the grants was three hundred and seventy. In 1645, the largest area was one thousand and ninety and the average three hundred and thirty-three. In 1646, the greatest extent of ground included in a single patent was twelve hundred acres, while the average number of acres covered by the grants was three hundred and sixty. In 1647, the greatest area was six hundred and fifty and the average three hundred and sixty-one. In 1648, the greatest area was eighteen hundred acres. Two patents were granted in which this extent of ground was included. The average area was four hundred and twelve. In 1649, the grants by patents amounted in area in one instance to thirty-five hundred acres; in another, to three thousand and two hundred, and in still another, to three thousand and fifty. The average extent was five hundred and twenty-two. In 1650, the largest grants included in one instance, fifty-three hundred and fifty acres, and in a second instance, thirty-four hundred and twenty-three. In five additional instances, they

equalled or exceeded two thousand acres. The average area was six hundred and seventy-seven.

From the figures which I have given, it will be seen that from 1634 to 1650 inclusive, the average area of soil which was acquired by patents granted in that interval did not exceed four hundred and forty-six acres.

Let us now examine the patents which were sued out in the course of the last fifty years of the century. Owing to the enormous increase in the number issued, it would be too tedious to present a summary of each year, as has been done in the ease of the grants made previous to 1650. The calculation will now be confined to periods.¹ From 1650 to 1655, the average size of the patents was five hundred and ninety-one acres. There were issued ninety-two patents ranging from one thousand to two thousand acres, forty-one from one thousand to five thousand, and three from five thousand to ten thousand. The average size of the patents in the interval between 1655 and 1666 was six hundred and seventy-one acres. In this interval, there were issued two hundred and fifty-two patents, ranging from one thousand to two thousand acres, one hundred and forty-seven from two thousand to five thousand, and twenty from five thousand to ten thousand. In the interval between 1666 and 1679, the average size of the patents was eight hundred and ninety acres. In this interval, there were issued two hundred and twenty patents, ranging from one thousand to two thousand acres, one hundred and fifty-four from two thousand to five thousand, twenty-five from five thousand to ten thousand, and twelve from ten thousand to twenty thousand.

In the interval between 1679 and 1689, the average size of the patents was six hundred and seven acres. In

this interval, there were issued one hundred and forty-three patents ranging from one thousand to two thousand acres, sixty-six from two thousand to five thousand, seventeen from five thousand to ten thousand, and two from ten thousand to twenty thousand. In the interval between 1685 and 1695, the average size of the patents was six hundred and one acres. In this interval, there were issued sixty-three patents ranging from one thousand to two thousand acres, twenty-three from two thousand to five thousand, and seven from five thousand to ten thousand. In the interval between 1695 and 1700, the average size of the patents was six hundred and eighty-eight acres. In this interval, there were issued fourteen patents, ranging from one thousand to two thousand acres, thirteen from two thousand to five thousand, seven from five thousand to ten, and there was one for thirteen thousand four hundred acres

In the course of this whole period of fifty years, the average size of the patents was six hundred and seventy-four acres, a difference of two hundred and twenty-eight as compared with the average size of the patents issued during the first half of the century

In the Brief Declaration drawn up by the Council for Virginia in 1616, the announcement was made that the Company would soon dispatch to the Colony a surveyor with instructions to draw a plat of the lands which were to be distributed among the different adventurers according to the plan agreed upon.¹ This seems to have been the first reference to persons of this pursuit in the history of Virginia, accepting the term in the sense of one who determines the boundaries of grants. Interpreting it in its largest meaning, there had been, previous to this, several makers of maps in the Colony who may have possessed

technical knowledge of common surveying. When Argoll arrived in 1617, he was probably accompanied by some one who had been trained in this art, since Martin’s and Smith’s Hundreds were laid off before the close of his administration. If the services of a surveyor were called into requisition, his name remains unrecorded. The first member of this profession known to be associated with Virginia, was Richard Norwood, who had at one time been engaged in the task of surveying the Somers Islands.¹ There must have been several surveyors in the Colony a few years before the suggestion of his name, as a division was made of a large extent of soil as soon as Governor Yeardley had finally established himself in a position to enforce the instructions of the Company. Norwood was recommended by Captain William Tucker as a man who was well versed in his business and who was also anxious to emigrate to Virginia. At the court at which this recommendation was made, the session being held in May, 1621, a committee was appointed to arrange with him the terms on which he would carry out the work he proposed to perform. These negotiations, however, came to nothing.²

Only a short time afterwards, the Company employed William Claiborne in the place of Norwood, and sent him to the Colony. The annual remuneration allowed him was fixed at thirty pounds sterling, to be paid either in the form of tobacco, or such other commodity as had a high value in the English markets. There is evidence to show that he received the amount of wages which had

been promised him.¹ The Company also erected a dwelling-house for his use, and furnished him with the books and instruments he required in the performance of his duties.² In the instructions given to Governor Wyatt in 1621, Claiborne accompanying this officer to Virginia in the course of that year,³ Wyatt was ordered to employ him in drawing a map of the country and in laying off the dividends of the planters, these tasks being undertaken by him in addition to determining the boundaries of the lands assigned to the officers, a duty requiring no great length of time for its completion.⁴

The office of Surveyor-General was created after the abolition of the Company. The appointment of an incumbent was made by warrant drawn by the Solicitor-General of England and having the great seal attached to it. The Governor of Virginia was expressly prohibited from appointing this officer.⁵ His duties consisted in keeping a record of the surveys and in commissioning the whole body of surveyors. The latter were instructed to report to him every year at Jamestown, where their books, showing their work during the previous twelve months, were carefully examined by him to discover

whether they had acted justly and faithfully.¹ The first person who held the surveyor-generalship was Gabriel Hawley, who had unusual claims upon the royal favor. Hawley was succeeded by Robert Evelyn, who was appointed by the Governor and Council in 1637, their action being afterwards confirmed in England.² The position was subsequently filled by Thomas Loving, and later still by Edmund Scarborough, who held it in the early part of the period following the Restoration. In 1671, Alexander Culpeper received the appointment to this office from the King, and Philip Ludwell served as his deputy, after 1676. In time, the transfer of the duties of the office to a deputy led to so much discontent, that in 1690 the Governor and Council entered a petition with the Board of Trade and Plantations, urging that the Surveyor-General should be required to reside in the Colony.³

When the charter of William and Mary College was granted, among the powers conferred on this institution was one to appoint surveyors after the manner laid down for the guidance of the former Surveyor-General, whose functions in this particular were merged in the college. Before the institution was actually founded, the right to commission resided in its trustees, who, if they considered it advisable, had the authority to delegate this right to a substitute. Acting upon this authority, the trustees in 1692 appointed Miles Cary, Surveyor-General, who was to execute the duties of the position with the advice and consent of a committee named by the governing body of the institution. The surveyors commissioned by the college

or its substitute were required to pay the trustees one-sixth part of the fees of their office, and also to make an annual report of the surveys entered in their books in the course of that period.¹

Whilst the ordinary surveyor received his commission from the Surveyor-General, his deputy, or William and Mary College, according to the period of the seventeenth century in which he lived, his appointment seems to have been made at the suggestion of the justices of the court of the county in which he resided, and they were ordered by Act of Assembly to select only such persons as men experienced in surveying would recommend.² The Governor also possessed the right to suspend any surveyor for sufficient cause.³ Members of this profession formed a society, which met at Jamestown, where it was often consulted in disputes as to boundaries.⁴ Many of the surveyors were men of the first consequence in the Colony in point of character, ability, and wealth. In the last decade of the century, — and there was no difference in this respect in the earlier periods, — the list included such distinguished citizens as Theodorick Bland, Thomas Swann, Miles Cary, James Minge, Edmund Scarborough, and William Moseley. The number of positions occupied

by the same person at one time was a remarkable feature of life in Virginia. A surveyorship was considered to be sufficiently valuable to make it a desirable addition to the lucrative offices filled by the leading landowners of each community.

When the surveyor received from the person who wished to sue out a patent to public land in the county in which the surveyor resided, the certificate of head rights given by the clerks in the Secretary’s office, he proceeded to make a survey of such an unappropriated tract as the intended patentee selected. In the beginning, and throughout the whole of the seventeenth century, the far greater area of lands obtained by public grants was situated immediately upon the larger streams,¹ not only because in general these lands were the most fertile, but also because they alone offered an open highway to market. It was the custom of the surveyor to adopt the banks of a river or creek as his base. The interest of the owner of the new plantation extended into the stream to the furthest limits of the lowest ebb-tide, and no one, unless he had gotten the consent of the proprietor, could angle or haul a seine in these bounds without committing a trespass.² From either end of the base line the surveyor drew a line at right angles, which was carried to the length of a statute mile as a rule.³ At the

terminus of each of these lines he was expected to leave some mark to distinguish the spot. This generally consisted of four blazes in a tree. The marks were frequently selected by mutual agreement between the owners of contiguous plantations, and after being properly witnessed were entered on record. The next survey that was made on the same stream began at a point where the previous base line ended, and as one of the side lines of the second plat had already been drawn in the survey of the first, the only work to be performed, in order to define the area of ground to be included in the second plat, was to lay off the base line and the perpendicular of the side of the unpatented lands. When the soil adjacent to the banks of a navigable stream had all been appropriated and converted into plantations, it was then the custom to sue out patents to the lands that were situated back of these estates, the line parallel to the base line on the stream being adopted as a new base line by the surveyor, and the whole process of defining new plantations being repeated according to the rules of action followed in the former instance.

Many disputes arose as to the limits of these surveys, and the ground of such controversies was in general principally attributable to gross defects in the surveys of the first series of plantations, defects which might in large part have been avoided if the surveyors had shown greater care in carrying out the details of their work. In the first place, no allowance seems to have been made in their computations for the deficiencies of their instruments. In the seventeenth century, the surveyor’s compass, like that of the mariner, was not graduated, and

was, therefore, untrustworthy for a survey in which the nicest accuracy in measurement was required.¹ The subdivision of the surveyor’s compass did not extend further than two degrees and forty-nine seconds, and in consequence the bearing of all objects must have been shifted not less than one degree and twenty-five minutes from their real positions. This important difference was not recorded in the survey, either because the surveyors themselves were unaware of it, or because they were too careless to take it into account in their calculations. The second defect arose from a cause which could easily have been prevented if they had shown strict integrity in the execution of their work. In laying off the perpendicular lines of a plat, that is to say, the lines drawn at right angles to the base line, some object of a permanent nature to serve as a terminus was always selected. If, for instance, there was a watercourse, road, or hill, it was customary to abridge or extend the line, as the case required, to reach this object, and when the plat of the survey was made up, the line was represented as ending there although its length was stated to be a mile. In reality it may have exceeded or fallen short of this distance by a hundred yards more or less. In the survey also, a stretch of inferior land, over which the line was drawn, was frequently left out of account in fixing the mile limit, being excluded from consideration as if it had no existence in the area of the plat. The divergence from the straight line, which was sometimes rendered necessary by the thickness of the forest growth, also

remained unnoted. The general carelessness which the surveyors exhibited in running the perpendicular lines was doubtless due, in some measure, to the comparative worthlessness of the lands situated a mile from the streams. At that distance, the soil was generally thin and poor. Exactness and accuracy in measurement seemed to be unnecessary in the light of the fact that these lands, even when moderately fertile, were too far from navigable waters to make them valuable properties, such as the owners might desire to have surveyed with precision. The usual object in securing titles to tracts of this kind was not so much for the cultivation of tobacco as for the establishment of stock ranges, and for the use of the upland timber.

It was enacted as early as the session of 1623-1624, that when a difference of opinion as to the boundaries of their respective plantations had induced two neighbors to submit the correctness of their respective claims to the issue of a second and more perfect survey, and the result had proved to be unsatisfactory to either or both of the persons interested, then the grounds of the dispute were to be brought to the attention of the Governor and Council for a final settlement.¹ In after years, it was found that much additional legislation was necessary to remove the confusion arising from the disputes as to the occupation of lands previously surveyed. A law was passed, which declared in general terms that the plats of all surveyors regularly commissioned should stand approved as giving an absolute right of possession to the holders, but this law did not meet the different points of the case.² In the greatest number of instances, the patents conflicting with the metes and bounds of the adjacent tracts had been granted on surveys made by trained and duly authorized

men, who had performed conscientiously the work required of them. It may have easily happened that a person, relying upon the accuracy of his plat of the lands assigned him, had proceeded to build a residence and lay off a garden and orchard at a spot which a subsequent more careful measurement disclosed was the property of his neighbor. Under these circumstances, the law reserved to the real owner of the soil the right to buy the different improvements erected by the person in possession, at a valuation decided upon by a jury, but if this valuation were at a higher figure than he was either willing or able to pay, then he was to content himself with receiving a sum from the occupant which only represented the value of the land itself.¹ It is obvious that even this law, which was essentially just, might work the most serious inconvenience both to the owner and the holder of the soil in dispute. The owner might be unable to purchase the improvements established on the property by the holder, and yet find no real compensation for the loss of the land in the amount which the verdict of a jury might require the latter to pay him. On the other hand, it would frequently be no real compensation to the occupant if the expense he had incurred in establishing a home on the soil of which he had been dispossessed were refunded him. Moreover, the resurvey might have shown that the house in which he resided was on his own property, but that the garden and orchard² belonged to his neighbor. This might

occur where the two contestants had been both induced by peculiar advantages of situation to select the same immediate locality as a suitable site for a home. In order to prevent cases of this kind from arising, the Assembly had from an early date passed a series of important laws, which, however, proved insufficient to accomplish the object which they had in view. First, it was enacted that all suits brought for the removal of persons who had encroached upon the grant of a neighboring patentee should be instituted before the expiration of five years after the illegal possession began, and a failure to do this was to operate as a bar to recovery.¹ Secondly, the owners of land adjoining an unappropriated tract which it was proposed to survey for the purpose of securing a title to it, were required upon demand to show the boundaries of their properties, and if they neglected to do so, for a period of twelve months, the patent of the new plantation was considered to be valid in law, although it should afterwards be found to overlap the surrounding old plantations, provided only the inaccuracy in its measurements was not the result of design.² In the session of 1661-62, the first of these laws was reënacted, orphans, married women, and persons of unsound mind being again exempted from its scope until five years had elapsed since the removal of their disabilities. Under the original law, persons who were absent from Virginia were not included in this number of privileged individuals, but in order to

prevent the infliction of an injury upon the interests of innocent holders, who had acquired their title from an original occupant whose own title was in dispute, it was provided that no one coming from abroad should be allowed this interval of five years in which to institute his suit unless he arrived in the Colony within two years after his proprietorship in the land began.¹

While these laws were highly useful, they did not reach all the evils springing from the imperfections of the first surveys. Casting about for a remedy for the confusion and harassments created by their defects, the Assembly adopted what was known as the law of processioning.² According to this law, the people in every neighborhood were required once in the course of every four years to assemble at a designated spot, and from that point march in a body to examine and, if necessary, to renew the terminal marks of every plantation in their precinct. If the mark in any instance consisted of blazes on a tree,³ they were to be recut to their former depth. If it consisted of a pile of stones, the original number were to be restored in case many had been removed. If the determining line were the bed of a small stream or a public road, then, as soon as this was reached, it was to be proclaimed as the legal boundary in the presence of the entire company, who were to serve as witnesses of the fact in the next processioning. When the bounds of every plantation had been recognized and acknowledged by all participating in the

procession, the owners of the land at the time, or those afterwards claiming their title from them, were shut out from making any alteration in the terminal marks, monuments, or lines. In case an altercation arose between two neighbors in the course of the processioning, as to the boundaries of their estates, the two surveyors who always accompanied the procession were required, in sight of the assembled people, to draw again the lines in dispute, and if a conflict in the original surveys were shown, the difference was to be equitably adjusted and the bounds thus laid off were to be accepted as permanent. The area which was to be covered by a procession was designated by the vestry of each parish for the domain in their special jurisdiction. The time first assigned for the performance of the duty of processioning was in the interval between Easter and Whitsuntide,¹ but in the latter part of the seventeenth century, it was advanced to the interval between the 7th of September and the 31st of March, a period during which the planters were most at leisure, as their crops had been gathered in, and in most cases sold. Moreover, during this section of the year, the physical obstacles were less serious, as the trees were now devoid of leaves, and the thickets and undergrowth were more easily penetrated in consequence. The supreme importance of processioning in the view of the law is revealed in the requirement that all persons who, without having a sound excuse to offer, failed to take part in it, were exposed to a fine of three hundred and fifty pounds of tobacco.²

In spite of the enforcement from year to year of the law of processioning, disputes as to boundaries were constantly arising between planters whose lands were contiguous. Several instances may be given of the manner in which these controversies were settled. In 1670, a difference occurred between Mr. John Burnham on the one hand and Mr. Richard Parrott on the other, as the guardian of the children of Daniel Welch, with reference to the lines of their respective grants, and it was carried to the General Court, Robert Beverley having first been nominated as the representative of the plaintiff, and John Lewis as the representative of the defendant, with Colonel John Catlett as umpire. The court instructed these gentlemen, who had been selected by the parties to the dispute, to meet at the house of Henry Corbin upon a set day in the following month, and to proceed at once to lay off the tracts involved, upon the basis defined in the original patents. The sheriff of the county in this case happened to be Mr. Parrott, in consequence of which fact, Mr. Robert Chewning was ordered to summon a jury composed of men residing in the neighborhood to assist in the survey and to see to the utmost fairness in the use of the chain in measuring. Mr. Mathew Kemp was desired to be present for the purpose of administering the oaths to the surveyors’ chain-carriers and members of the jury, and also that he might accompany them as they performed the duties prescribed for them. The report of the jury and a full account of all the proceedings were to be returned to the next General Court. Care was to be taken that in selecting the former body, no persons should be chosen who were in the employment of either the plaintiff or the defendant.¹

In a difference arising in 1671, between Rowland Place

and John Stith about the boundaries of their lands, the General Court ordered that twelve men from among the oldest and best informed inhabitants of the community in which the plaintiff and defendant lived, should be summoned, and then proceed, with the coöperation of a competent surveyor, to lay off the lines of Mr. Place’s plantation according to the terms of his patent. The jury in this case were sworn in by the nearest magistrate, but there was present no representative of either party. Occasionally this body had the aid of two surveyors. In some instances, the jury was dispensed with and the points in dispute were referred by the court to several surveyors for a settlement, which was to be final.¹

It might have been supposed that the numerous controversies resulting from incorrect computations in laying off plats would have led any one who proposed to sue out a patent to insist upon a careful performance of the work, since so much depended upon precision. Doubtless in the large majority of cases this was done, the defects in the measurements being due to causes not always avoidable or removable on the part of the surveyors, however conscientious or painstaking. The greater number of these men must have clearly recognized that their professional reputation must rest upon a strict regard for accuracy, and were, therefore, doubtless anxious to attain it whenever their services were engaged. There were others who were wholly indifferent as to the manner in which their duty was performed. These drew many of their plats without having first used a surveying instrument,² setting

down well-known natural objects as determining points, and then not infrequently sold the plats without the consent of the persons who owned them. So common did this practice become that the Assembly was compelled to interpose with a law, that the written particulars of no survey should be delivered within six months after it was taken. For the violation of this provision, a fine of five hundred pounds of tobacco was imposed for every one hundred acres in the tract, and this was to be paid into the treasury of the county in which the land was situated.¹

For the purpose of inducing a more competent, scrupulous, and trustworthy class of men to follow the profession of surveying, it was found necessary, in 1666, to double the fees hitherto allowed its members.² The scale previously in operation had been twenty pounds of tobacco for every one hundred acres laid off, if the tract exceeded five hundred acres in extent, but if it fell short of that number, then the whole fee for the work was to amount to only one hundred pounds. Under the terms of the law of 1666, the surveyor was permitted to charge forty pounds of tobacco for every one hundred acres determined, in case the plat did not include more than one thousand acres in its limits, and if it did not cover that area of ground, his charge was restricted to four hundred pounds. His fee was paid by the person designing to sue out a patent for the land, but it does not seem to have been delivered ordinarily upon the completion of his work. The owner of the new plantation enjoyed the right of producing one crop of tobacco before the surveyor

could claim his remuneration. It was finally delivered him by the sheriff of the county, who was required to collect all dues of this general nature.¹ No member of this profession who had received a commission was permitted to refuse to make a survey when called upon to do so by any person who had obtained a certificate giving him the right to sue out a patent to a tract in the county to which the particular surveyor was restricted. If the latter declined without a tenable excuse, he brought himself under the censure of the County Court. He could not, however, be compelled to go so far from the place where he resided as to render return impossible in a day, unless he was allowed thirty pounds of tobacco for every twenty-four flours included in the period of his absence from home. If, to arrive at the place where the new plantation was to be laid off, he was forced to travel by water, the expenses of his transportation were to be borne by the person employing him.² At a later date in the history of the Colony, the additional fee of thirty pounds of tobacco was not considered in every case sufficient, and the surveyor under these circumstances doubtless charged whatever the inconvenience and difficulty of the special work appeared to justify.

In the regular course of procedure the plat was returned to the office of the Secretary, and the original or a copy was afterwards filed in the office of the Surveyor-General. Previous to the arrival of Howard, it does not appear to have been necessary to record this plat. There was so much complaint of the uncertainties arising in consequence of the failure to do so, that at the instance of the practising attorneys, a rule of court was adopted during his

administration, requiring that thereafter all surveys should be entered in a book in the office of the Secretary.¹ The patent was drawn by the clerk in the Secretary’s office in conformity with the measurements of the plat, and was then delivered to the Governor, who by law was required to read it in Council in order that the consent of that body to it might be obtained. The Governor then signed it and the seal of the Colony was attached to it, this instrument being kept in the office of the Secretary² The seal had been used for the authentication of patents from a very early period in the history of Virginia, and had in its general character undergone from time to time changes of importance.³ Previous to the administration of Howard, it had been affixed to patents without the imposition of a fee;⁴ Howard directed that two hundred pounds of tobacco should be charged, and that when this was not paid, the sheriff of the county in which the delinquent resided should levy upon his property.⁵ The proceeds from the use of the seal were calculated by Fitzhugh to amount annually to one hundred thousand pounds of that commodity, its impression being required by law for all public

documents, including proclamations and commissions as well as patents.¹ This large income was appropriated by the Governor. The new fee raised a great commotion in Virginia, which was not quieted by the assertion of Howard that the authority for its exaction was not his own proclamation but a decree of the Court of Chancery. In 1689, the fee was discontinued on account of the indignant opposition which it excited in the Colony.²

It sometimes happened that two certificates had been obtained authorizing the survey of the same land. When patents had been secured on both, it was not uncommon, in order to gain priority, for the more unscrupulous of the grantees to bribe the clerk to put his patent on record before the Governor had signed it, or the seal had been attached to it. The date was omitted, the clerk not being able to anticipate when the deed would be passed upon, and in some cases when the date had been ascertained, he forgot to insert it. In other cases, the patent was not passed upon at all, the patentee taking his title from the imperfect record of his grant.³ Frequently, documents of this kind which had been signed and sealed, were never entered, owing to the neglect of the clerks who were charged with the performance of this duty; so numerous were these instances, that it was found necessary as early as 1666 to adopt a rule giving these incomplete deeds validity in law.⁴ It seems to have been not uncommon for a patentee to transfer his grant before it had been placed on record in the Secretary’s office, the assignment itself being made in the form of an inscription on the back of the instrument, the patent and assignment

being entered together.¹ After a grant had been recorded in the office of the Secretary, the first conveyance to a purchaser of the land included in it was often accomplished in the same general manner by copying the patent and the assignment of the patent in the books of the County Courts.²

The whole acreage included in the patent entered on record was not always land in which no interest had been previously held by any person. The tract quite frequently was made up of an old plantation and a certain area of soil claimed upon the basis of new head rights. The patent now sued out covered this entire space as if it had never in any of its parts been in the possession of but one owner.³ In 1652, a grant was made to Jane, the widow of Edward Bland, which gave her a title to forty-three hundred acres, three thousand of which had been originally taken up by Thomas Hill, and the remainder by her husband; the two tracts, by order of court, were united into one under a common instrument.⁴ In every instance in which a grant was acquired that included in the extent of ground it covered land for which a series of patents had been previously secured, the latter had to be brought into the Secretary’s office and surrendered in order that the head rights represented might become the basis of the new deed.⁵ Occasionally, the documents delivered up in accordance with this regulation stood in the name of the same person, having been obtained by him in succession. In 1642, John Moone received a grant for twenty-two

hundred and fifty acres already held by him under four or five different instruments which he had sued out in the course of many years.¹ A second patent was not infrequently secured in the place of the first, although obtained for the same area of soil, on the ground that the original survey had been inaccurate in the determination of boundaries. A second patent was also acquired quite often to land taken up by the same person but afterwards abandoned, or not seated within the time prescribed by law.

From the date of the first issue of a patent to land in the Colony, certain fees had been allowed to those upon whom rested the duty of drawing up the document. In the beginning, before a legal limit to the size of these fees had been set, they were frequently so excessive as to call forth the remonstrance of the Company; thus in 1622, this body complained that the Secretary was in the habit of demanding twenty pounds of tobacco, or three pounds sterling in money, whenever he delivered the final evidence of title to a private dividend of fifty or an hundred acres, and effective measures were adopted to curtail this unreasonable charge on his part.² In 1632, when that corporation had been abolished for a number of years, a fee of thirty pounds of tobacco was allowed for the issue of each patent, in addition to the two pounds which the clerk was authorized to impose for every page of the recorded document. In 1657, the fees for drawing and entering an instrument of this kind amounted to eighty pounds in all, and if a copy of it was afterwards desired, there was a further charge of thirty pounds.³ As late as

1688, the fee for recording a patent continued to be thirty pounds of tobacco, although in that interval this commodity had gone through great fluctuations in value.¹

When, in 1692, Governor Andros made an investigation of the methods prevailing in the office of the Secretary, he found many glaring indications of carelessness and indolence. Many patents were lying in confusion in the corners of the office, where they were exposed to the depredations of insects. Andros proceeded at once to introduce a radical change in this state of neglect and disorder; he caused the torn and scattered records to be copied into new books, and made every provision against their destruction by fire, but, as it turned out, in vain, for in 1698 the office was burned down. Collecting the records that had survived the flames, he directed that they should be rearranged and again copied.²

When a patent to land had been secured by the different steps in the procedure described, there were two important conditions to be observed before the title was perfected, and a failure to carry out these conditions worked a legal forfeiture. The first, to use the technical term in vogue, was to “seat” the new plantations. A very broad interpretation of what constituted a seating in the eyes of the law prevailed in the Colony. All requirements in this respect were thought to have been performed if the patentee had erected a small cabin of the meanest pretensions on the land, had suffered a small stock of cattle to range for twelve months in its woods, and had put down an acre in tobacco or corn, whether subsequently allowed to choke with weeds or only tended

with sufficient care to produce an insignificant crop.¹ In the greatest number of cases, however, the new plantations were promptly seated in accordance with the spirit as well as with the letter of the law, because the owners were anxious to establish homes at once, and convert the soil to the uses which would promote the welfare of themselves and the community. It was where the land was taken up under the influence of speculative motives, or merely as a pasture for cattle, that the conditions as to seating it were carried into effect, if carried into effect at all, in a perfunctory manner. Very properly the operation of this condition was suspended whenever special reasons existed to justify it. Thus if the patentee had been driven from his property by an incursion of Indian marauders, and it was unsafe to return until a great length of time had passed,² the regular limit of three years for the performance of the rule as to seating was extended to seven, and if the possession of the hostile intruders was prolonged for seven years or more, the period in which the provisions of the regulation were to be carried out was still further extended.³ The penalty that the lands should be forfeited unless seated in the prescribed time was not always enforced, but instances of a strict regard for the law in this particular were most common in the early history of the Colony, when custom had not confirmed the spirit of laxity which was springing up in all matters relating to the appropriation of the soil. A persistent effort was made to escape the regulation as to

seating in all those cases where the ground engrossed adjoined an old plantation, the owner of which was anxious to extend his boundaries by suing out a patent for the forest lands contiguous to the lands on which he resided. During a long period, the persons who thus pushed forward the boundaries of their estates were not thought to be required to observe the law as to seating in order to secure a valid title to outlying tracts, but in 1692 it was declared that such tracts were to be forfeited unless the holders should in the course of the following three years conform to the established regulation.¹ In order to evade the penalty imposed for a failure to seat lands taken up, it was not unusual for the owner of a plantation, whenever he added to it a body of outlying soil which had never before been appropriates, to have the old and new estates resurveyed, and to sue out a patent for the whole as if the area of both were in their original condition. The previous settlement and cultivation of the older of the two bodies of land served as a fulfilment of the requirement as to seating the more recent. To obtain this new patent, it was necessary to redetermine the boundaries of the old tract. The measurements of the first survey were obtained from the patents granted when title to the land already seated was secured. Adding these measurements to those laid down in the plat of the new tract, the metes and bounds of the two plantations, the old and the new, were taken as the basis for a new patent to both as if they had been one.

The carelessness in conforming to the provisions of the law as to seating was the natural result of the physical conditions prevailing in the Colony. Unappropriated soil was so abundant that no damage seemed to be done to the welfare of the community in obtaining a

patent to a tract without either building on it or cultivating it. There would always be sufficient lands for the population, however rapidly expanding from within or enlarging from without, to permit the erection of as many new plantations as the increasing number of people required. As it was in the power of every man of means to sue out a patent to an estate of his own, so every man who looked forward to acquiring land was interested more or less in a loose interpretation of the law as to seating. A planter was disposed to-day to wink at his neighbor’s dereliction in this respect, because he might desire tomorrow to imitate that neighbor’s example, and in his turn expect to have his own dereliction overlooked. Both naturally argued that the prosperity of Virginia at large remained unaffected, the area of unappropriated soil being practically boundless. Nay more, the interest of the Colony, in their opinion, was positively benefited, because their action had a tendency to extend the frontier by compelling new settlers to take up lands further in the wilderness. The expediency of the law as to seating, a law that was eminently wise in the beginning, in some measure diminished with the passage of time. In an important degree the provision fell into desuetude, as revealed in the fact that it was frequently evaded altogether, or conformed to in a manner wholly inadequate.

The second condition attached to the grant of a patent was the quit-rent. Under the provisions of the laws adopted in 1618, all persons, whose tenure of their plantations was based upon the ordinary head right, were required to pay an annual rent of twelve pence for every fifty acres conveyed to them, but this charge was not to begin to operate until seven years had passed.¹ The

shareholder, as we have seen, held his lands acquired by bills of adventure, or by transportation of persons to Virginia exempted from this imposition.¹ During the administration of the Company, the quit-rents were paid to a special officer who resided in the Colony.² One of the first petitions drawn up by the Assembly of 1619 to be presented to the authorities of the Corporation in England, requested that an agent should be sent to Virginia invested with the powers of a treasurer, and instructed to collect the different rents as they fell due; it was urged in strong terms that this agent should be ordered to receive the rents, not in the form of money but in the form of valuable agricultural commodities.³

When the letters patent of the Company were recalled, the quit-rents became payable to such persons as the King should designate; it was not, however, until Jerome Hawley arrived in 1637, as the first treasurer who had been appointed since the administration of the affairs of the Colony by the Crown began, that any step was taken looking to their collection.⁴ Announcement was then made that all persons who were now in possession of lands in Virginia were expected to lay before the new officer the title deeds to their property, in order that he might ascertain the number of years during which each landowner had held his estate, and in consequence the amount of quit-rents in which he was indebted to the

King. These rents were to be paid to the treasurer, who was given the authority to appoint collectors. His accounts were to be submitted annually to the Governor and at least three of the Council, and after they had been passed upon, were to be transmitted to the High Treasurer of England.¹ But small results appear to have followed from this royal order.

Probably at the instance of Roger Wingate, who at that time was the Treasurer of Virginia, a motion was approved by the General Assembly at the session of 1639,² that all the landowners should be required upon warrant to report to the Commissioners of the monthly courts, their evidences of title as well as the situation and the extent of their estates. When the amount which they owed in quit-rents had been computed, they were to be directed to satisfy it either in coin or in tobacco, according to the rates at which this commodity was sold in the Colony. The one shilling for every fifty acres was to be paid annually at Michaelmas at places selected as the most convenient to the planters of each district. It was expressly declared that no rent of this character should be held to be due until seven years had passed since the grant of the patent creating it. In adopting this rule, the Assembly stated that they were following the provisions of the Charter of Orders of 1618. It remained in force throughout the reign of Charles the First, was confirmed in the articles of surrender in 1651, but was recalled in the instructions which were given to Berkeley under the administration of Charles the Second, on the ground that it induced persons to appropriate larger

quantities of land than they could bring under cultivation.¹ The revocation was confirmed in the reign of James the Second.

In the course of the very year in which the law was adopted by the Assembly providing for a more careful collection of the quit-rents, Howard Horsey petitioned the King to appoint him to the Receiver-Generalship of the Colony, which had recently fallen vacant, on the ground that under previous administrations the office had been of no value on account of the failure of the incumbents to perform its duties. Horsey asserted his ability to make the position profitable to the throne, and he prayed for a lease of it for fourteen years, or a nomination of two lives at a reasonable rate, to be settled in the form of an annual rent.² Nearly a decade subsequent to the date of this petition, the Treasurer of Virginia complained with much emphasis that the payment of one shilling for every fifty acres was still neglected, and urged as a remedy that the Assembly should give him the power to distrain upon the property of all delinquents. This request was accorded, subject to the condition that the latter should be permitted to replevy their goods when seized, upon furnishing sufficient security, from which they were only to be released after a hearing in the County Courts or by the Governor and Council.³ An Act passed nearly ten years later shows that the remissness in paying the quitrents still continued; this statute allowed the counties to compound for their arrears by settling during the course of the following two years in double the amount of their

annual dues.¹ This laxness was observed at different times during the remaining portion of the seventeenth century,² but there are indications that during this period the quit-rents were collected with strictness on the whole.³

The quit-rent was a continuous source of ill feeling in the breasts of the planters; they objected to it in a general way as an encroachment on the ownership of their lands, and they employed every device to evade it entirely or to diminish the burden which it created. At first its payment in tobacco did not have the countenance of the law, but so general was the habit as a result of the necessities of the situation that the Assembly, in 1645, instructed the Treasurer to receive the quit-rent in that commodity at the rate of three pence a pound.⁴ Under the provisions of an Act passed in 1661, it was provided that all persons who were not able to settle it in coin should be permitted to do so in tobacco on the basis of two pence a pound, which was the value of the leaf at the time.⁵ This privilege was doubtless seized upon even by the few who might have found it convenient to pay in metallic money. There were no evidences of dissatisfaction with this law on the part of the English authorities until many years had elapsed. In 1682, the Governor of the

Colony, with a view to curtailing the area of uncultivated ground, proposed that where a plantation exceeded one thousand acres in extent, the owner should be required to deliver his quit-rents in coin.¹ In an order addressed to Lord Howard in 1684, the King, after referring to the revocation of the letters patent granted to Culpeper and Arlington in 1673, under which all the quit-rents of Virginia had been conferred upon these noblemen, urges upon him the necessity of collecting the one shilling for every fifty acres in pieces of eight and not in tobacco, as had hitherto been the case.² These instructions must have been carried into effect to a certain extent, for in the following year, 1685, the owners of land presented a petition to Howard, in which they warmly urged that they should be permitted to settle their quit-rents in tobacco alone, on the ground that coin was extremely scarce in the Colony, and that it was practically impossible to obtain it from England.³ Howard so far yielded to this request as to allow those who, on account of the scarcity of coin or their poverty, would find it difficult to pay in metallic money, to deliver to the sheriff such a quantity of their best leaf at the rate of one penny a pound as would assure the satisfaction of the King’s dues.⁴ The sums in either form thus collected were to be turned over to Nathaniel Bacon, the Auditor-General. This was really a reversion to the former condition of affairs, for the large

planter enjoyed few advantages over the planter on a small scale towards securing the proportionate amount of coin which he required. The course of Howard in relaxing the rule called for by his instructions caused discontent in England, for in 1686 the King peremptorily repealed the statute of 1662, which had given a legal validity to the payment of quit-rents in tobacco, and the reason advanced for this step was that the quantity of unmerchantable leaf passed upon collectors was so large that the revenue from this source had dwindled almost to nothing.¹ The Burgesses refused to concur in the Royal Order, and firmly and boldly denied that the King had the right to repeal the law of the Assembly by issuing a proclamation.² After the Revolution of 1688, the quit-rents were paid in general in tobacco at the rate of one penny a pound.³

The duty of receiving the quit-rents of each county was imposed upon its sheriff, the fee which was allowed him by way of remuneration being ten per cent of the amount coming into his hands. In making his collections, he was guided by the patent rolls of his predecessor, and by the additional rolls of the same character that accumulated from year to year during his incumbency of the office. He was directed to return these documents to the Auditor of the Colony.⁴ As soon as the sheriff of each county delivered to the Auditor the tobacco obtained in settlement of the quit-rents, the latter official, after consultation with the Governor, disposed of it privately, the purchasers being required to satisfy their indebtedness in coin or

bills of exchange on England. These purchasers were, in general, members of the Council, each of whom took as his portion the tobacco paid in that part of the Colony in which he resided. The Councillors also became farmers of the quit-rents and found it a profitable venture.¹ The receipts given to each sheriff on his delivering these rents constituted his legal account with the Auditor. The proceeds from the sale of the tobacco remained in the possession of the latter official until disbursed on a warrant from the Governor drawn in obedience to orders of the English authorities. The share in the quit-rents allowed to the Auditor amounted to seven and a half per cent of all his receipts and payments.

The disposition of the quit-rents when applied to public uses seems to have varied materially at different times. In 1645, the surplusage, after the payment of the salary of the Treasurer, was expended in such a manner as the General Assembly considered most judicious.² Thirty-four years subsequent to this, Culpeper was instructed to devote the quit-rents to the erection of a fort wherever it might seem to be most needed.³ In 1681, the English Government adopted a minute that thereafter no private grant of these rents should be made, and that all the proceeds from this source should be expended in carrying on the administration of affairs in Virginia; a resolution was passed requiring Colonel Norwood, to whom they had been given by the King, to draw up a full report as to his total receipts previous to the year 1669.⁴ When the foundation

of the College of William and Mary was laid, a very important part of the quit-rents went to the construction of its buildings. Near the close of the century, the amount collected in the Colony did not exceed eight hundred pounds sterling each year.¹

There was in Virginia a great area of soil which had lapsed to the King. This description applied only to ground that had been forfeited because the provision as to seating before the expiration of three years had not been complied with. An estate might have been granted to two persons in succession, and for failure to observe this condition, in both instances have lapsed.² A plantation which had been once seated, though afterwards abandoned, was not considered to fall into this classification,³ nor did the rule apply to land of which actual possession had been taken by a second patentee after its abandonment by the first.⁴ It did not follow that the soil had lapsed merely because there was no personal property on it upon which a distraint might be levied by the sheriff, in consequence of a failure to pay the quit-rents. If an attempt was made to sue out a second patent to a tract of this character, the strictest evidence was required to show that it had not been seated by the first grantee. An order had to be obtained from the Governor and Council before the second document was allowed to be issued, and this order might be combated by the first patentee in the form of a petition, in which the proof was embodied that the provisions of the law as to seating had been carried out.⁵

When the petition was denied as unsustained, the General Court certified this fact to the Governor, who could use his discretion in attaching to the second patent the conditions entering into the first.¹ The first grantee was not stripped of every right by his failure to show that he had seated the lands in dispute, but was permitted to obtain a title to an estate elsewhere upon the basis of his original head rights. There must have been a strong disposition in the colonial authorities to encourage the issuing of second patents to soil which had for many years remained untouched. The rule had sprung up in the Colony that as long as there was no distrainable property on the land, the latter could not be forfeited because the quit-rents were unpaid.² The prospect of this advantage from holding a large area in a deserted state was counteracted to an important degree by the fear that it might be difficult to show that the title had not lapsed because the tract had really been seated.

Whenever a person who was seized of lands in fee simple died without heirs and without leaving a will, these lands reverted nominally to the King. At one time, the first individual who took possession of such lands enjoyed the right of having them granted to him without opposition, but in the latter part of the seventeenth century, the patent to an escheated tract passed in general to the person whom the Governor might select from the whole number of the petitioners. An order was issued directed to the escheator of the county in which the plantation was situated. This officer, who was frequently a member of the Council and always a man of prominence in the community, as soon as he received it, summoned a jury of twelve men, by whom an inquest was taken under his supervision.

For the performance of this duty the escheator received a single fee of five pounds sterling.¹ The certificate of inquest was returned to the office of the Secretary of the Colony, where it remained for nine months, and at the expiration of that period a patent issued to the person for whom the inquest had been made, provided that no one had appeared in the interval and brought forward sufficient evidence to show that he was entitled to the estate as the heir of the former owner.² The same laxness prevailed in the acquisition of title to soil which had escheated as in the case of ordinary public lands, it being held by force of popular custom that an inquest like a survey conferred an absolute interest in all escheated plantation whether a patent had been obtained for it or not.³ Many of these plantations amounted in area to one thousand acres, and occasionally exceeded that number. Whoever secured possession of them was required to pay a fine of composition of two pounds of tobacco an acre.⁴

The confusion in which titles to plantations in the Colony was often involved is revealed in a striking light by the fact that it became a general habit among those who were appointed to settle the estates of persons who had died intestate, to convey the lands thus coming into their possession as if the absolute fee simple was in themselves, thereby preventing in many cases the operation of the law as to escheats.⁵ So far was this carried and so

great would have been the personal hardship which might have followed if the escheator of each county had been directed to make the most rigid inquests of all such lands, and to return the certificates to the Secretary’s office as a basis for new patents, that the Governor and Secretary entered into a formal composition with the holders, which was approved by the General Assembly, that where an individual had for two years been in the enjoyment of a tract which properly should have reverted to the King, he was to be granted a clear title upon the payment of a hundred pounds of tobacco for every fifty acres in his possession, in addition to fees charged for the conveyance in the clerk’s office. He was, however, required at first to enter his petition before the expiration of two years, but afterwards in eight months, and if he failed to do so, he was to be forever estopped.

No account of the system of land tenure in Virginia in the seventeenth century would be complete without some reference to the regulations in force in the Northern Neck. All that portion of the Colony situated between the Potomac and Rappahannock Rivers, extending as far towards the west as the heads of these important streams and towards the east as Chesapeake Bay, was in 1661 granted by the King to Lord Hopton, Earl of St. Albans, Lord Culpeper, Lord Berkeley, Sir William Morton, Sir Dudley Wyatt, and Thomas Culpeper. The only conditions attached to the conveyance of this domain, which was equal to a principality, were that one-fifth of all the gold and one-tenth of all the silver discovered within its limits should be reserved for the royal use, and that a nominal rent of a few pounds sterling should be paid into the treasury at Jamestown each year. In 1669, the letters patent were surrendered by the existing holders and in their stead new ones were issued. Among

the other powers now conferred on the beneficiaries, was the right to put in operation in the boundaries of their vast property any form of land tenure in use in England, but they were particularly enjoined to refrain from infringing upon any contracts or conveyances made by the Governor and Council of the Colony previous to September 29th, 1661, under the authority of which, persons were now in actual possession of lands in the Northern Neck. All fees, remainders, reversions, and escheats which should arise were to belong to the grantees named in the letters patent of 1669. The terms of these letters required that the whole area included in this magnificent gift should be planted and inhabited by the end of twenty-one years, but in 1688 this provision was revoked by the King as imposing an impracticable condition. All the rights and privileges conferred by the grants of 1669 were in 1688 confirmed to the second Lord Culpeper, who was now the sole proprietary.¹

In exercising his rights in the Northern Neck, the proprietary acted in the person of his agent, who in turn could delegate his powers to subordinates. In April, 1684, a memorial was presented to the Governor by the planters of this part of the Colony, asking that their holdings in land should be secured to them by patent. It was referred to the King and had a favorable result.² After this, the agent of the proprietary was authorized to issue patents, reserving a quit-rent of two shillings upon every two hundred acres transferred by him, which was required to be settled in English coin, Spanish pieces of eight at a valuation of five shillings apiece, or in merchantable tobacco if metallic money was not to be procured. When

the quit-rents remained unpaid for a period of three years, the proprietary was restored to the possession of the land conveyed under patent.

There was a very notable difference in the means of obtaining a grant in the Northern Neck as compared with the means of obtaining one in other parts of the Colony. The common basis of the patent sued out in the country lying south of the Rappahannock was, as has been seen, the head right. The head right was unknown as a condition of tenure in the Northern Neck. There, a system of purchase was in operation. The scale of prices was five shillings for every hundred acres in a tract under six hundred, and ten shillings for every hundred acres in a tract exceeding that number. This money was required to be paid within six months after the patent had been signed and sealed. It was allowable to present its equivalent in tobacco; in 1690, the rate of valuation was six shillings for every one hundred pounds of that commodity.¹

It was stated by Howard, in replying to the declaration of the House of Burgesses in opposition to the imposition of a fee for affixing the seal to all public instruments, that to obtain the smallest estate in the Northern Neck, an expenditure of at least twenty shillings was necessary, and in the case of some lands, not less than forty shillings.²

One of the most notable consequences of adopting in the Northern Neck the system of granting patents upon payment of a few shillings for each one hundred acres, was the frequent concentration into a single ownership, under the same patent by a single purchase, of enormous tracts of land, situated in that part of Virginia. Fitzhugh

possessed there in one body nearly twenty thousand acres, while Hayward held thirty thousand.¹ The manner of securing these extensive areas of ground was probably the same as that which Fitzhugh had determined to follow in the instance of a projected acquisition in 1689; in this year he offered to enter into an agreement with the agent of Lord Culpeper, which would have assured for himself one hundred thousand acres by the purchase of the quit-rents in this extent of soil for a period of ten years.² On another occasion, he proposed to buy all the rents and profits in a tract covering twenty-eight thousand acres, the price which he suggested being 26,880 pounds of tobacco at a valuation of six shillings an hundred pounds.³ On account of the great area of uncultivated ground which the adoption of the system of purchase tended to maintain even after the soil had passed into private ownership, there was in the Northern Neck a larger quantity of lands abandoned than in the older parts of the Colony.

The recording of ordinary conveyances began at an early period in the history of the Colony. In October, 1626, the rule was laid down by the General Court that the documents in all sales of lands in Virginia should be brought to Jamestown, and enrolled in that court in the space of twelve months and a day following the date of each.⁴ There will be found in the first volume of land patents previous to 1630, many entries of bills of sales of estates which are mere deeds of conveyance passed by a private grantor to a private grantee. The regulation looking to the establishment of courts in other places

beside Jamestown was adopted in 1623, when the Assembly provided for the erection of courts in Charles City and Elizabeth City.¹ In what year it was required to enter a deed of record in the counties, it is now difficult to say, but it was probably contemporaneous with the creation of the County Courts. In the earliest of the county records, copies of conveyances are to be discovered.

It became a settled principle in later times, that no estate was to pass unless the deed had been acknowledged before the Governor and Council, or the justices of the county in which the land to be conveyed was situated.² One of the principal objects had in view in the adoption of this regulation was to protect the interests of creditors from the operation of a secret transfer of title. It was provided that the deed should be entered before the end of six weeks following its delivery, and it remained without validity for four months after it had been properly acknowledged.³