By the Governr and Capt: Generll: of VirginiaTo all to whome these prsents shall comegreeting in our Lord God Everlasting.Know Yeethat I sr Francis Wyatt Kt, Governr and Capt: Generall of Virginia, by vertue of the great charter of orders and lawes concluded on and dated at London in a generall quarter court the eighteenth day of November one thousand six hundred and eighteene by the treasurer Counseil and company of adventurers for the first southerne colony of Virginia, according to the authority graunted them from his Matie under his great seale, the said charter being directed to the Governr and Counseil of State here resident, and by the rules of justice, equity & reason, doe wth the approbation and consent of the same Counseil who are joyned in commission with mee, give and graunt unto Mr. Thomas Hothersall of Paspehay gent., and to his heires and assignes for ever, for his first generll: devident, to bee augumented and doubled by the said company to him and his said heires and assignes when hee or they shall once sufficiently have planted and peopled the same.Two hundred acres of land scituate and being at Blunt Point, confining on the east the land of Cornelius May, on the south upon the great river, on the north upon the maine land and on the west runing towards a small creek one hundred rod (at sixteene foote and a half the rod);Fifty acres whereof is his owne psonall right and fifty acres is the psonall right of Frances Hothersall his wife, the other hundred acres in consideration of his transportacon of twoe of his children out of England at his owne cost & charges, Viz: Richard Hothersall and Mary Hothersall,To Have and to Holdthe said twoe hundred acres of land with all and singular the apptennces, and with his due share of all mines & minneralls therein conteyned, and wth all rights and privileges of hunting, hawking and fowling and others within the prcincts and upon the borders of the said land, To the only pper use benifitt and behoofe of the said Thomas Hothersall, his heires and assignes for ever,In as large and ample manner to all intents and purposes as is specified in the said great charter or by consequences may justly bee collected out of the same, or out of his Ma'ties letters patents whereon it is grounded.Yeilding and payingto the treasurer and company and to their successors for ever, yearely at the feast of St. Michael the Archangell [September 29], for every fifty acres, the fee rent of one shilling.In witness whereofI have to these presents sett my hand and the great seale of the colony, given at James Citty the six and twentieth day of January one thousand six hundred twenty one [o.s.] and in the yeares of the raigne, of our Soveraigne Lord, James by the Grace of God King of England, Scotland, France and Ireland, Defender of the faith &c., Vizt: of England, France and Ireland the nineteenth and of Scotland the five and fiftieth, and in the fifteenth yeare of this plantacon.
By the Governr and Capt: Generll: of Virginia
To all to whome these prsents shall comegreeting in our Lord God Everlasting.
Know Yeethat I sr Francis Wyatt Kt, Governr and Capt: Generall of Virginia, by vertue of the great charter of orders and lawes concluded on and dated at London in a generall quarter court the eighteenth day of November one thousand six hundred and eighteene by the treasurer Counseil and company of adventurers for the first southerne colony of Virginia, according to the authority graunted them from his Matie under his great seale, the said charter being directed to the Governr and Counseil of State here resident, and by the rules of justice, equity & reason, doe wth the approbation and consent of the same Counseil who are joyned in commission with mee, give and graunt unto Mr. Thomas Hothersall of Paspehay gent., and to his heires and assignes for ever, for his first generll: devident, to bee augumented and doubled by the said company to him and his said heires and assignes when hee or they shall once sufficiently have planted and peopled the same.
Two hundred acres of land scituate and being at Blunt Point, confining on the east the land of Cornelius May, on the south upon the great river, on the north upon the maine land and on the west runing towards a small creek one hundred rod (at sixteene foote and a half the rod);
Fifty acres whereof is his owne psonall right and fifty acres is the psonall right of Frances Hothersall his wife, the other hundred acres in consideration of his transportacon of twoe of his children out of England at his owne cost & charges, Viz: Richard Hothersall and Mary Hothersall,
To Have and to Holdthe said twoe hundred acres of land with all and singular the apptennces, and with his due share of all mines & minneralls therein conteyned, and wth all rights and privileges of hunting, hawking and fowling and others within the prcincts and upon the borders of the said land, To the only pper use benifitt and behoofe of the said Thomas Hothersall, his heires and assignes for ever,
In as large and ample manner to all intents and purposes as is specified in the said great charter or by consequences may justly bee collected out of the same, or out of his Ma'ties letters patents whereon it is grounded.
Yeilding and payingto the treasurer and company and to their successors for ever, yearely at the feast of St. Michael the Archangell [September 29], for every fifty acres, the fee rent of one shilling.
In witness whereofI have to these presents sett my hand and the great seale of the colony, given at James Citty the six and twentieth day of January one thousand six hundred twenty one [o.s.] and in the yeares of the raigne, of our Soveraigne Lord, James by the Grace of God King of England, Scotland, France and Ireland, Defender of the faith &c., Vizt: of England, France and Ireland the nineteenth and of Scotland the five and fiftieth, and in the fifteenth yeare of this plantacon.
Claiborne supervised most of the surveys included on the list of patents that was drawn up by Governor Wyatt in 1625. Out of 184 patents that were issued to individual planters, over seventy-five per cent included only 200 acres or less with the most frequent grant being the 100-acre grant to the "ancient planter." For the remaining individual grants, approximately one-sixth were between 201 and 600 acres; four were between 601 and 1,000 acres; and four exceeded 1,000 acres.
In an analysis of the status of the Virginia population with regard to landholding at the time of the dissolution of the company in 1624, Professor Manning C. Voorhis concluded that only about one-seventh of the 1,240 population obtained land from the company. This would leave the remainder of the settlers as indentured servants or tenant farmers who worked out their maintenance or transportation either for the company or for private individuals who financed their trip to America. The tenant farmers constituted the larger group. In the chapter that follows, some attention will be given to the status of these immigrants and the extent to which they were able to become independent landowners in the colony.
CHAPTER THREE
Virginia as a Royal ColonyThe Nature and Size of Land Grants
A variety of reasons led the King to dissolve the London Company and to assume royal control over the first experiment in colonization under an incorporated company. Failure of the colony to thrive economically, the poor financial condition of the company, political differences between Sir Edwin Sandys and the King, internal dissensions between the Sandys faction and the Smith-Warwick group, the extremely high death rate in the colony, and the impact of the Indian massacre of 1622—all contributed in varying degrees of importance to the dissolution. The company rejected efforts of the crown to substitute a new charter drawn up in 1623 providing for the King to resume control of the colony by establishing a royal Council in England and a Governor and Council in Virginia. Consequently the Privy Council obtained a writ ofquo warrantowhich terminated with a decision by the court of King's Bench in May, 1624, annulling the charter of the company.
With the advent of royal control there was a significant continuity in practice in the colony, and the political framework was little changed. The Governor and Council were then appointed by the King, but the House of Burgesses continued without major revision. In order to assure continued respect for public authority, a royal commission was dispatched to Governor Wyatt and an eleven-man Council empowering them to act "as fully and ampley as anie Governor and Councell resident there at anie tyme within the space of five yeares now last past." A similar commission was issued to Sir George Yeardley in 1626, and for the next sixteen years royal instructions to the Governors reflected a striking resemblance.
A similar continuity was evident in economic affairs as revealed in land policy. The London Company as a corporate body in charge of the colony terminated in 1624 after eighteen years, and the following year after the death of King James I the colony of Virginia by proclamation was made a part of the royal demesne. The landholder in Virginia became then in effect a freehold tenant of the King. The rights and property of the company were taken over by the crown, but recognition was made of the private property right of the planter and of individual claims of those who had invested in the company. Even land rights to planters and adventurers that had not been taken up were recognized, but few proceeded to effect settlement or to exercise the right of taking up 100 acres per share of stock.
The land rights of the private joint-stock associations also continued to be recognized, but there was less enthusiasm on the part of individual adventurers to promote the projects started some years earlier. This development was indicative of the major change in the economic life of the colony that resulted in the decline, if not disappearance, of absentee ownership. As previously noted, Berkeley Hundred had suffered the loss of many of its settlers in the massacre of 1622; and upon expiration of term of service of the few remaining servants, only the land and a few cattle were left in the settlement. By 1636 the adventurers had sold their claims to London merchants. In the case of Martin's Hundred located about seven miles from Jamestown, the massacre doomed the active settlement and only the title to the land continued. Eventually the title to this hundred was withdrawn to permit natural expansion of the colony, and the associates or adventurers were awarded claims to land allotments commensurate with the number of shares held in the joint stock.
The tracts known as company land were maintained for a while under royal control. The role of the public estate, however, never assumed great significance, yet there is evidence of the continued practice during the seventeenth century of endowing an office such as Governor or secretary with the proceeds of a land grant.
Theoretically tenants and contract laborers who were still alive at the time of the dissolution of the company were to continue their labor either on the public land or on private associations. In practice, however, it is likely that lax enforcement of the contracts resulted in a substantial diminution of the obligations of many workers. The scarcity of records for this period makes it impossible to trace all of this group, but there is enough evidence to indicate that some continued to serve out their term of labor. The General Court in 1627 expressed concern about the approaching expiration of leases and indentures of persons for whom there were no provisions for lands; and action was taken to permit them to lease land for a period of ten to twenty-one years in return for which they were to render a stipulated amount of tobacco or corn for each acre, usually one pound of tobacco per acre. This lenient provision notwithstanding, only about sixty persons availed themselves of the opportunity, the remainder presumably either squatting on frontier land, working as laborers, or eventually obtaining title to land by purchase from an original patentee.
With the dissolution of the company the issuing of land patents continued in the hands of the Governor and Council. The King and Privy Council assumed power over land distribution but apparently left the issuing of patents as it had been before. Up until January, 1625, Governor Wyatt issued patents in the name of the company. At that time news reached Virginia that the writ ofquo warrantoof June, 1624, had dissolved the company and that King James I upon assumption of control of the colony had issued on August 26, 1624, the first commission of a royal Governor to Wyatt. But the commission made no reference to land grants, and Governor Wyatt issued none after January, 1625.
Charles I succeeded to the throne following the death of James I on March 27, 1625. His proclamation stating policy relative to Virginia professed protection of the interests of private planters and adventurers but made no direct reference to land grants. Governor Yeardley replaced Wyatt by a commission of March 14, 1625⁄26 and arrived in Virginia in May, 1626. There is no record extant to show that Yeardley received direct instructions to start issuing grants; but it is certain that he did begin in February, 1626⁄27, interpreting his instructions and commission as authorizing the action.
Land patents during this period were to be issued on four main conditions: (1) as a dividend in return for investment in the founding of the colony; (2) as a reward for special service to the colony; (3) as a stimulus to fortify the frontier by using land to induce settlement; and (4) as a method of encouraging immigration by the headright.
The first of these was simply an assurance by the King that the former stockholders in the company still had the right to take up land at the rate of 100 acres for each share of stock owned. As late as 1642 this privilege was still being confirmed in instructions to the Governor; but the stockholders appeared to be little interested at this time in coming to Virginia, for very few took up their claim and apparently the shares bearing the holder's name could not be transferred after the dissolution. The plan for the distribution of the first dividend in 1619 also provided for a second allotment. As late as 1632 patents still included authorization for a second dividend when the first had been cultivated. But no second allotment was ever made. There are, however, examples to indicate that claims for the first dividend were upheld after the company was dissolved. In 1628 Thomas Graies obtained a patent as a dividend for his subscription of twenty-five pounds sterling; in 1636 Captain John Hobson was issued a patent covering a bill of adventure that went back to 1621; and on another occasion the land dividend due a deceased father was awarded to his son.
The next condition of awarding patents for meritorious service to the colony was of long standing. Used to award ministers, political officials, physicians, sea captains, and various other individuals under the company, the practice continued under royal control after 1624. Governor Wyatt in 1638 was instructed to issue land patents for meritorious service according to provisions previously adopted for such cases. And a few years later Charles II awarded lands in Virginia to servants or others who aided him, although it is not certain whether these individuals were ever able to take up the claim bestowed upon them.
The third condition for a patent was practically a corollary to the second, for it involved rendering service to the colony by settling and fortifying the frontier. One example during this period may be found in securing the Peninsula. Following the massacre of 1622 Governor Wyatt and his Council wrote to the Earl of Southampton about a plan for "winning the forest" by running a pale between Martin's Hundred on the James River and Cheskiack on the York. Again in 1624 the suggestion was made to the royal commissioners who were sent over by the King to determine the most suitable places for fortification. To effect the construction of this palisade, the General Assembly in 1633 offered land as an inducement to settle between Queen's Creek and Archer's Hope Creek, promising fifty acres and a period of tax exemption to freemen who would occupy the area of Middle Plantation, later Williamsburg. In February, 1633, the order was issued for a fortieth part of the men in the "compasse of the forest" between the two previously mentioned creeks and Chesapeake Bay to meet at Dr. John Pott's plantation at the head of Archer's Hope Creek for the purpose of erecting houses to secure the neck of land known as the Peninsula. With this encouragement by the Assembly, a palisade six miles in length was completed, running from Queen's Creek to Archer's Hope Creek and passing through Middle Plantation. Houses were constructed at convenient distances, and a sufficient number of men were assigned to patrol the line of defense during times of imminent danger. By setting off a little less than 300,000 acres of land, this palisade provided defense for the new plantations between the York and James rivers and served as a restraining barrier for the cattle of the colony.
Granting of land was again used on a large scale for the establishment of forts after the Indian massacre of 1644. By order of the Assembly in 1645 blockhouses or forts were established at strategic points: Fort Charles at the falls of the James River, Fort Royal at Pamunkey, Fort James on the ridge of Chickahominy on the north side of the James, and in the next year Fort Henry at the falls of the Appomattox River. The maintenance of these forts involved considerable expense, more than the officials of the colony wished to drain from the public treasury. Therefore, they decided to grant the forts with adjoining lands to individuals who would accept the responsibility of their upkeep as well as the maintenance of an adequate force for defense. Fort Henry, located at present-day Petersburg, was granted to Captain Abraham Wood with 600 acres of land plus all houses, edifices, boats, and ammunition belonging to the fort. Wood was required to maintain and keep ten persons continuously at the fort for three years. During this time he was exempted from all public taxes for himself and the ten persons. Upon similar terms Lieutenant Thomas Rolfe, son of Pocahontas and John Rolfe, received Fort James and 400 acres of land; Captain Roger Marshall, Fort Royal and 600 acres. Since there was no arable land adjoining Fort Charles at present-day Richmond, other inducements were made for its maintenance. These forts served as the first line of defense against possible attacks by the natives. Being the center of the varied activities of the frontier, they also were the starting point for expeditions against the Indians and became the center of trade for the outlying regions.
The fourth condition for granting of land—the headright—was by far the most important and became the principal basis for title to land in the seventeenth century. Its origin goes back to "the greate charter" of 1618 in which the following provision was included:
That for all persons ... which during the next seven years after Midsummer Day 1618 shall go into Virginia with intent there to inhabite If they continue there three years or dye after they are shiped there shall be a grant made of fifty acres for every person upon a first division and as many more upon a second division (the first being peopled) which grants to be made respectively to such persons and their heirs at whose charges the said persons going to inhabite in Virginia shall be transported with reservation of twelve pence yearly rent for every fifty acres to be answered to the said treasurer and company and their successors for ever after the first seven years of every such grant.
That for all persons ... which during the next seven years after Midsummer Day 1618 shall go into Virginia with intent there to inhabite If they continue there three years or dye after they are shiped there shall be a grant made of fifty acres for every person upon a first division and as many more upon a second division (the first being peopled) which grants to be made respectively to such persons and their heirs at whose charges the said persons going to inhabite in Virginia shall be transported with reservation of twelve pence yearly rent for every fifty acres to be answered to the said treasurer and company and their successors for ever after the first seven years of every such grant.
Under these provisions of "the greate charter," it is evident that not only was the headright grant of fifty acres per person open to shareholders who brought settlers to the colony, but also to anyone who had migrated to the colony at his own expense or who had financed the expedition of other persons. Individuals paying their own transportation were entitled to fifty acres for themselves and for every member of the family, providing they fulfilled the residence requirement of three years.
Governors under the company issued patents based on the headright until dissolution by the crown in 1624. Beyond that time the status of the headright was uncertain. The "charter" of 1618 had specified a term for this right for seven years ending on Midsummer Day of 1625. After this term expired, royal governors continued to honor headright claims based on immigration, although no direct authorization for such action had come from the crown. Therefore, the issuance of these claims after 1625 was based primarily on custom, brief as it was, until more direct instructions were issued to Governor John Harvey in 1634 following the proprietary grant of Maryland in 1632.
The Maryland grant enhanced the concern of the Virginia inhabitants about their title to land, and correspondence conducted by Governor Harvey finally brought forth a statement from the Privy Council. Apprehension over Maryland led to assurance of the headright for Virginia as the Privy Council issued the following dispatch of July 22, 1634, to the Governor:
We have thought fit to certify you that his Majesty of his royal favor, and for the better encouragement of the planters there doth let you knowe that it is not intended that the interestes which men had settled when you were a corporation should be impeached; that for the present they may enjoy their estates and trades with the same freedom and privileges as they did before the recalling of their patents: To which purpose also in pursuance of his Majesty's gracious intention, wee doe hereby authorize you to dispose of such proportions of lands to all those planters beeing freemen as you had power to doe before the yeare 1625.
We have thought fit to certify you that his Majesty of his royal favor, and for the better encouragement of the planters there doth let you knowe that it is not intended that the interestes which men had settled when you were a corporation should be impeached; that for the present they may enjoy their estates and trades with the same freedom and privileges as they did before the recalling of their patents: To which purpose also in pursuance of his Majesty's gracious intention, wee doe hereby authorize you to dispose of such proportions of lands to all those planters beeing freemen as you had power to doe before the yeare 1625.
With this explicit royal endorsement of land patent principles followed under the company and confirmation of the headright, Governor Harvey modified the wording in the patents and adopted the following form illustrated in a grant of 2,500 acres to Captain Hugh Bullocke:
To all to whome these prsents. shall come, I Sr. John Harvey Kt. Governr. and Capt. Generll. of Virginia send greeting in our Lord God Everlasting.Whereasby letters pattents bearing date the twoe and twentieth of July one thousand six hundred thirtie fower from the Rt. Honble. the Lords of his Majties. most Honoble. Privie Councell their lordshipps did authorize the Governr. and Councell of Virginia to dispose of such pportions of land to all planters being freemen as they had power to doe before the yeare 1625, whene according to divers orders & constitutions in that case provided and appointed all devidents of lands any waies due or belonging to any adventurers or planters of what condicon soever were to bee laid out and assigned unto them according to the severall condicons in the same menconed.Now Know Yeetherefore that I the said Sr. John Harvey doe, with the consent of the Councell of State give and graunt unto Capt. Hugh Bullocke and to his heires and assignes for ever by these prsentsTwoe thousand five hundred and fiftie acres of land, scituate, lying & being from the runn that falleth downe by the eastern side of a peece of land knowne by the name of the Woodyard and soe from that runn along the side of the Pocoson (or great Otter pond soe called) northwest and about the head of the said Otter pond back southeast leaveing the Otter pond in the middle.To have and to Holdthe said twoe thousand five hundred and fiftie acres of land with his due share of all mines and minneralls therein conteyned and with all rights and priviledges of hunting, hawking, fishing and fowling, wth in the prcincts of the same to the sole and pper use benifitt and behoofe of him the said Capt. Bullocke his heires and assignes for ever.In as large and ample manner to all intents and purposes as is expressed in the said orders and constitutions, or by consequence may bee justly collected out of the same or out of his Majties. letters pattents whereon they are grounded.Yielding and payingfor every fiftie acres of land herein by these presents given and graunted yearely at the feast of St. Michaell the Archangell [September 29], the fee rent of one shilling to his Majties. use.Provided alwaysthat [if] the said Capt. Hugh Bullock, his heires or assignes shall not plant or seate or cause to bee planted on the said twoe thousand five hundred & fiftie acres of land wth in the time and terms of three yeares now next ensuing the date hereof, that then it shall and may bee lawfull for any adventurer or planter to make choice and seate upon the same.Givenat James Citty under my hand and sealed with the seale of the colony the twelfth day of March one thousand six hundred thirtie fower [o.s.] & in the tenth year of our Soveraigne Lord King Charles &c.
To all to whome these prsents. shall come, I Sr. John Harvey Kt. Governr. and Capt. Generll. of Virginia send greeting in our Lord God Everlasting.
Whereasby letters pattents bearing date the twoe and twentieth of July one thousand six hundred thirtie fower from the Rt. Honble. the Lords of his Majties. most Honoble. Privie Councell their lordshipps did authorize the Governr. and Councell of Virginia to dispose of such pportions of land to all planters being freemen as they had power to doe before the yeare 1625, whene according to divers orders & constitutions in that case provided and appointed all devidents of lands any waies due or belonging to any adventurers or planters of what condicon soever were to bee laid out and assigned unto them according to the severall condicons in the same menconed.
Now Know Yeetherefore that I the said Sr. John Harvey doe, with the consent of the Councell of State give and graunt unto Capt. Hugh Bullocke and to his heires and assignes for ever by these prsents
Twoe thousand five hundred and fiftie acres of land, scituate, lying & being from the runn that falleth downe by the eastern side of a peece of land knowne by the name of the Woodyard and soe from that runn along the side of the Pocoson (or great Otter pond soe called) northwest and about the head of the said Otter pond back southeast leaveing the Otter pond in the middle.
To have and to Holdthe said twoe thousand five hundred and fiftie acres of land with his due share of all mines and minneralls therein conteyned and with all rights and priviledges of hunting, hawking, fishing and fowling, wth in the prcincts of the same to the sole and pper use benifitt and behoofe of him the said Capt. Bullocke his heires and assignes for ever.
In as large and ample manner to all intents and purposes as is expressed in the said orders and constitutions, or by consequence may bee justly collected out of the same or out of his Majties. letters pattents whereon they are grounded.
Yielding and payingfor every fiftie acres of land herein by these presents given and graunted yearely at the feast of St. Michaell the Archangell [September 29], the fee rent of one shilling to his Majties. use.
Provided alwaysthat [if] the said Capt. Hugh Bullock, his heires or assignes shall not plant or seate or cause to bee planted on the said twoe thousand five hundred & fiftie acres of land wth in the time and terms of three yeares now next ensuing the date hereof, that then it shall and may bee lawfull for any adventurer or planter to make choice and seate upon the same.
Givenat James Citty under my hand and sealed with the seale of the colony the twelfth day of March one thousand six hundred thirtie fower [o.s.] & in the tenth year of our Soveraigne Lord King Charles &c.
Use of the headright had been adopted by the company as an expedient to increase population of the colony and to encourage immigration without further expenditure from the company treasury. The practice continued with the fifty acres of land granted to the persons who financed the transportation of the immigrant, but the grant itself was not valuable enough to compensate for the expense involved. Therefore, with increasing frequency the system of indentured servitude was used whereby the immigrant agreed to an indenture or contract to work a certain number of years as additional payment for his transportation. This system, in general, proved advantageous to both the master and the servant, to the colony by providing additional immigrants, and to England by serving as a vent for surplus population.
Indentured servants were not slaves but were servants during the specified period of the contract. While the laws of the time did make a distinction in the severity of the penal code as applied to servants and to freemen, still indentured servitude did not have the stigma of bondage or slavery; and many servants upon completion of their term of service rose to positions of social and political prominence in the history of the colony. In 1676 the Lords of Trade and Plantations expressed concern over the use of the word "servitude" because of the implications of slavery, and they preferred "to use the word service, since those servants are only apprentices for years."
At the expiration of the term of service, the servants usually received equipment and supplies necessary to start them as freemen. They received grain enough for one year, clothes, and in some cases a gun and a supply of tools. As to receipt of land, the policy varied from one colony to another, and at times there was uncertainty within one colony about obligations to freedmen. In Virginia the indentured servant did not usually receive land at the end of service unless he had insisted, as John Hammond inLeah and Rachelhad advised, that a specific provision be included in the contract to include the award of fifty acres as "freedom's dues." There are some cases in which the provision for land was included as illustrated in one of the earliest indentures known to exist for Virginia. This indenture of September 7, 1619, was made between Robert Coopy of North Nibley in Gloucestershire with the associates of Berkeley Hundred. Coopy agreed to work three years in Virginia and submit to the government of the hundred in return for which the owners were to transport him to Virginia and "There to maintayne him with convenient diet and apparell meet for such a servant, and in the end of the said terme to make him a free man of the said cuntry theirby to enjoy all the liberties, freedomes, and priviledges of a freeman there, and to grant to the said Robert thirty acres of land within their territory or hundred of Barkley...."
The confusion over the question whether the indentured servant was entitled to fifty acres of land upon expiration of his service extended to the mother country. There was a widespread belief in England that such was the case, and there were indefinite statements in commissions and instructions to the Governors that left the matter in doubt. In practice in Virginia, however, it is certain that the fifty acres under the headright claim went to the person transporting indentured servants, not to the servants themselves. Only where the contract specifically stated that the servant was to receive fifty acres was he assured of this grant.
Under the company there had been definite provisions that the fifty acres went to the persons transporting servants, not to the servants themselves. After its dissolution, Governors were instructed to follow the rules of the "late company," and this continued until there was a variation in Sir Francis Wyatt's commission of 1639 authorizing the Governor and the Council to issue grants to adventurers and planters "According to the orders of the late company ... and likewise 50 acres of land to every person transported thither ... until otherwise determined by His Majesty." Did "to every person" mean that the servant was entitled to land? Such was the case across the Potomac in Maryland where the servant could claim fifty acres from his employer or master until 1646; after 1646 and until 1683 the proprietor provided land for the servant. If such were intended, it was not followed and the intentions were far from clear in the later commission to Sir William Berkeley in 1642. In addition to assigning land for "adventurers of money" and "transportation of people," the commission authorized the Governor and Council to grant "fifty acres for every person transported thither since Midsummer 1625, and ... continue the same course to all persons transported thither until it shall otherwise be determined by His Majesty." The loose use of the terminology "to" and "for" recurred in subsequent years and again reflected the lack of precision in this matter as well as the seeming misapprehension in England that the servant was entitled to a fifty-acre grant. Under the articles of the treaty of 1651 between Virginia and the commissioners of the Commonwealth, the reversion to the term "for every person" was made and the policy of no land to servants was implicit in the sixth article of the agreement: "That the priviledge of haveing fiftie acres of land for every person transported in the collony shall continue as formerly granted."
Even though servants were not granted land by the colony at the expiration of their service, a substantial number soon became landowners. The exact proportion of servants that became landholders after 1624 cannot be determined in the absence of a complete census. However, an examination of the land patents and the list of headrights makes possible some estimate of the percentage of landholders that had once been indentured servants. The conclusions cannot be final and are subject to limitations. Identification presents a problem because of the frequency of the same name as Smith or Davis and because of the omission of middle names. The problem is further complicated by the fact that headrights were often transferred by sale. A person entitled to a headright claim on the frontier may not have wished to settle there; rather he may have preferred to sell his headright claim and purchase land in an established county. As a result of the sale of his headright claim, his name may have appeared in the headright list as the basis for the claim for someone else even though he had not been an indentured servant. Therefore, all persons so listed under the headright claim cannot be considered indentured servants.
Fully aware of the limitations just suggested and equally conscious that estimates in the absence of more complete records cannot be final, Professor Thomas J. Wertenbaker in hisPlanters of Colonial Virginiasummarized his analysis of patents and concluded that both before 1635 and in the following two or three decades, thirty to forty per cent of the landholders of Virginia came to the colony as indentured servants.
Professor Wertenbaker also indicated general agreement with conclusions drawn by William G. Stanard about the proportion of immigrants that were indentured servants. From an analysis of the patent rolls from 1623 to July 14, 1637, printed in the April, 1901, issue of theVirginia Magazine of History and Biography, Stanard estimated that seventy-five per cent of immigrants from 1623 to 1637 were imported under term of the indenture. Out of 2,675 names on the rolls, 336 entered as freemen at their own cost and an additional 245 persons were believed for the most part to be of the same status although there was some uncertainty about this group. Transportation expenses were paid by others for 2,094. From these numbers, the conclusion was reached that 675 persons on the patent rolls were freemen, including women and children; the remaining 2,000 were servants and slaves, the latter in very small number at this time. Thus the analysis roughly confirms the conclusion that three-fourths of the immigrants during this period were indentured servants.
Use of the headright system for distribution of land had a close correlation with expanding population, for it was hoped that the increase of population would keep pace with the acquisition of private title in the soil. As the seventeenth century progressed, there were many abuses and evasions of the system; and by the end of the period its significance declined in favor of acquisition of title by purchase, or the "treasury right." To understand the various deviations from the system, it will be helpful to review the steps by which title to land by headright was obtained.
The first step involved the proving of the headright by the claimant appearing before either a county court or the Governor and Council and stating under oath that he had imported a certain number of persons whose names were listed. The clerk of the court issued a certificate which was validated in the secretary's office. Authorization for the headright was then passed on to a commissioned surveyor who ran off fifty acres for each person imported and located the grant in the area selected by the claimant as long as the land had not already been patented and had not been barred for white settlement in order to maintain peace with the Indians. Upon completion of the survey and of marking the boundaries, a copy of the record along with the headright certificate was presented to the secretary's office where a patent was prepared and a notation made of those imported. The final step was the signing of the patent by the Governor in the presence of, and with the approval of, the Council.
One deviation from the spirit of the law of the headright involved claims based upon the person being imported into the colony more than once. For example, John Chew in 1637 received 700 acres, using his own transportation in 1622 and 1623 as the basis for the claim to 100 acres in the grant. Carrying this practice to a greater extreme, Sarah Law received a grant for 300 acres of land based upon the fact that she had imported John Good, probably a sailor, six times.
On a larger scale, ship masters submitted lists for headright claims which in actuality contained the roster of both the sailors of the ship and the passengers. In neither case should the right have been acknowledged, for the sailors were under agreement to continue service at sea and the passengers had paid their own transportation to the colony. But the lax administration of the system usually permitted approval of such applications, and the ship master therefore found himself with headright certificates which he could sell to others for whatever price he could wangle. This practice was sometimes repeated by the same unscrupulous ship master who was aided in the irregular procedure by the failure of the clerks of the secretary's office to make careful checks of lists submitted, and also by the fact that he could present his lists to a different county court when importing the same sailors for the third or fourth time.
Like the ship master, the sailor engaged in falsifying the record by swearing that he had imported himself and sometimes others at his own expense. Patents were obtained on the basis of the headright. Philip A. Bruce concluded that the land obtained in Virginia by mariners was "very extensive." To substantiate this general statement, he referred to powers of attorney found in the county court records, authorizing an agent in Virginia to handle the estates of the mariner. In the records of Rappahannock County for 1668 is an example of the practice, in which Thomas Sheppard of Plymouth, England, designated William Moseley to handle his interest in 150 headrights which he claimed for importing 150 people to Virginia. It was likely in this case that duplicate claims were issued, either to the individual if he paid his own transportation or to some master if the immigrant became an indentured servant. In some instances, as many as three or four claims were made for one importation: one for the ship master, one for the merchant who acted as middle-man in purchasing the service of the immigrant, one for the planter who eventually purchased the indentured servant, and less often one for a second planter who may have joined with the first in obtaining the services of the imported person.
As abuse of the system increased, headright lists sometimes included fictitious names or in some cases names copied from old record books. The final stage in irregular procedure was reached when the clerks in the office of the secretary of the colony sold the headright claim to persons who would simply pay from one to five shillings. The exact date at which this practice began has not been determined, but it was prevalent sometime before 1692. Francis Nicholson reported to the Board of Trade that while serving as Governor of Virginia from 1690 to 1692, he had "heard" that the sale of rights by the clerks in the secretary's office was "common practice." Another report to the Board in 1697 described the clerks as being "a constant mint of those rights."
The combined variations in the operation of the headright system resulted in the distortion, if not destruction, of its original concepts. The system continued to bring immigrants into the colony which had been a very important purpose when inaugurated. But the abuses threw out of balance the relation between patented land and the number of people in the colony; and furthermore through perversion of the system, speculation in land was not prevented and there resulted large areas of wholly uncultivated and uninhabited lands to which title had been granted. The headright was also originally intended to apply to inhabitants of the British Isles, but by the middle of the seventeenth century the names of persons imported from Africa appeared occasionally as the basis for headright, and by the last decade of the century they were frequently found.
The distortion of the headright system was done with considerable public approval and in some ways reflected the evolution of economic development that seemed to demand a more convenient and less expensive method for obtaining title to large areas of unoccupied land. As the population of the colony increased and as the labor supply became more plentiful, there was a rather widespread demand to be able to obtain additional land, particularly adjacent undeveloped tracts, without having to import an additional person for every fifty acres. Partly through this demand, impetus was given to the custom, which was not at first sanctioned by law, to permit the granting of patents by simply paying a fee in the secretary's office.
While the headright system was designed to maintain some proportion between the population of the colony and the amount of land patented, it was also designed to stimulate the migration of immigrants to the colony. Therefore, under the system it was possible for individuals who would engage in transporting or financing the transportation of immigrants to obtain large areas of land. This trend was started under the company; and in the four years prior to 1623, forty-four patents of 5,000 acres each were awarded to persons who were to transport at least 100 immigrants to the colony. In 1621, for example, 5,000 acres were granted to Arthur Swain and Nathaniel Basse and a similar grant to Rowland Truelove and "divers other patentees" each grant to be based on the transportation of 100 persons; 15,000 acres were to go to Sir George Yeardley for engaging to transport 300 persons.
For the years following the dissolution of the company, valuable information of the nature and size of land grants can be found in the "Virginia Land Patents" which fortunately have survived the usual hazards of fire and carelessness. The two following tables (Tables I and II) have been compiled from the analysis of the land patents by Philip A. Bruce and summarized in hisEconomic History of Virginia(volume I, pages 528-532).
I.Table Showing Size of Land Grants From 1626 to 1650Based on the Record of Virginia Land Patents
II.Table Showing Size of Land Grants From 1650 to 1700Based on the Record of Virginia Land Patents
[Note: In compiling this table, two changes have been made to correct what seems clearly to be errors in Bruce's description. Forty-one grants were listed for 2,000-5,000 acres from 1650-1655 rather than forty-one grants of 1,000-5,000 acres as noted by Bruce. The date 1685 listed in Bruce has been changed to 1689 to give the proper time period of 1689-1695.]
[Note: In compiling this table, two changes have been made to correct what seems clearly to be errors in Bruce's description. Forty-one grants were listed for 2,000-5,000 acres from 1650-1655 rather than forty-one grants of 1,000-5,000 acres as noted by Bruce. The date 1685 listed in Bruce has been changed to 1689 to give the proper time period of 1689-1695.]
For the period from 1634 to 1650 included in Table I, there were occasional grants of 5,000 acres, but the average size of the patents for the period was not over 446 acres. It was possible, of course, for one individual to build up a large landed estate by putting together several smaller grants; and this was done by a limited number of persons during the seventeenth century in Virginia as will be discussed later. There was also the possibility that grants of considerable size in the original patent might be broken up and distributed to others in smaller amounts. In any case, the second half of the century as reflected in the land patents saw a moderate increase in the size and number of large grants as the population increased, and the average size for the land patent of this period was 674 acres, an increase of 228 acres over the period prior to 1650.
While the second half of the century witnessed this increase, much of it came during the third quarter of the period. Near the end of the century there was a definite trend to break up some of the larger patents into smaller landholdings by sales to servants completing their indenture, by distribution of land to children, or by sale because of an inadequate labor supply either of slaves, indentured servants, tenant farmers, or wage earners.
The existence of the small farm and the small farmer as a major part of the socio-economic system of Virginia at the end of the seventeenth century has been well established. Professor Wertenbaker suggested that "a full 90 per cent of the freeholders" at the time the rent roll was compiled in 1704⁄05 included the "sturdy, independent class of small farmers." Through examination of land patents, land transfers, tax rolls, and a sampling of other county records, he found substantial evidence to corroborate the suggested trend of the breakup of a number of large patents and their distribution to small freeholders. Illustrative of this development was the land known as Button's Ridge in Essex County. Originally including 3,650 acres, the tract was patented to Thomas Button in 1666. The estate then passed first to the brother of Button and later was sold to John Baker. Baker divided the large tract and sold small amounts to the following people: 200 acres to Captain William Moseley, 600 to John Garnet, 200 to Robert Foster, 200 to William Smither, 200 to William Howlett, 300 to Anthony Samuell, and 200 to William Williams.
Professor Susie M. Ames inStudies of the Virginia Eastern Shore in the Seventeenth Centuryfound evidence of the same trend by which original land grants increased in size by the middle of the century and reached its peak in the third quarter of the century. Near the end of the period many of the larger tracts were being divided by wills distributing them among children or by sales in smaller units. Much of the land obtained by the first two generations on the Eastern Shore was broken up into small holdings by the third. As stated by Professor Ames, "It is the subtraction and division of acres, with only occasionally any marked addition, that seems to be the chief development in land tenure during the last quarter of the seventeenth century."
Even with the trend of dividing some of the large estates on the Eastern Shore, a small per cent of the population held a considerable part of the land. In 1703⁄04 the average size of landholding in Northampton County was 389 acres, in Accomack 520 acres. When analyzed by use of the list of tithables, Northampton County had twenty-one persons, only three per cent of the tithables, holding thirty-nine per cent of the land; Accomack County had a total of forty-six persons, only four per cent of the tithables, holding forty-three per cent of the land.
Considering all of Virginia of the seventeenth century, one cannot say that it was primarily a land of large plantations, of cavaliers, and of noble manors which have been romanticized by some writers. Yet there was a significant number of prominent planters who took an active part in the social and political life of the colony and exerted an influence disproportionate to their ratio of the population. Professor Wertenbaker listed the following men among the prominent planters of the first half of seventeenth-century Virginia—George Menefie, Richard Bennett, and Richard Kinsman; for the second half of the century, a more extensive list—Nathaniel Bacon, Sr., Thomas Ballard, Robert Beverley, Giles Brent, Joseph Bridger, William Byrd I, John Carter, John Custis I, Dudley Digges, William Fitzhugh, Lewis Burwell, Philip Ludwell I, William Moseley, Daniel Parke, Ralph Wormeley, Benjamin Harrison, Edward Hill, Edmund Jennings, and Matthew Page. Members of this group accumulated large landholdings, mostly by original patent through the headright system or by private purchase from holders of original patents. For example, William Byrd I had obtained 26,231 acres of land at the time of his death; and William Fitzhugh acquired during his lifetime 96,000 acres of land and left at the time of his death in 1701 a little over 54,000 acres in family "seats" to five sons.
The land system and its administration that permitted the accumulation of a few of these substantial plantations came under detailed discussion by crown officials near the end of the seventeenth century. Before examining this analysis of Virginia land policy, it will be helpful to survey in the following chapter the major laws and the officials responsible for their administration.
CHAPTER FOUR
Royal Administration of Land PolicyAttempts at Reform
The issuing of land patents and the administration of laws concerning land involved a variety of officials during the seventeenth century. Under the company the authority to convey title to land rested after 1609 with the treasurer, the Council in London, and the association of adventurers in England. The Governor and Council in the colony were authorized as ministerial agents of the company to make grants, but final approval was to be made at sessions of the quarter court of the company in England. This last step, as previously noted, was seldom completed. After dissolution of the company, the process of issuing patents was simplified. Most grants were made under the headright claim and followed the steps outlined in chapter three, involving the county court, the secretary of the colony, the Governor and Council, and the commissioned surveyors.
The office of surveyor existed under the company and William Claiborne, who came to the colony in 1621, was the first to fill the position effectively. As surveyor, Claiborne received the annual wage of thirty pounds sterling which was to be paid either in tobacco or some other comparable commodity with a good price on the English market. Surveyor Claiborne also had the use of a house constructed by the company as well as receiving the necessary equipment and books needed for his work.
Following the dissolution of the company in 1624, the office of surveyor-general was established with a royal appointee who was charged with the responsibility of maintaining the survey records and issuing commissions to the surveyors of the colony. Some difficulty was encountered in securing qualified and reliable men. This led during the interregnum to a law in March, 1654⁄55, calling for the dismissal of unqualified surveyors and placing the power of appointment in the hands of the county court. After the restoration of Charles II to the throne, the appointment of surveyors returned to the system of commissions from the surveyor-general.
The amount for surveyors' fees was designated by the legislature at various times. Ten pounds of tobacco for every 100 acres was specified in 1624; in 1642 and again in 1646 the fee limit was raised to twenty pounds of tobacco for measuring 100 acres of land with an additional allowance of twelve pounds of tobacco for each day that the task required the surveyor to be away from his home. If his transportation could be only by water, the person employing him was required to assume the expense of travel both to and from the location of the survey. In 1661⁄62 the allowance for each day away from home was increased to thirty pounds of tobacco; and by the same law the surveyor was authorized the same limit of twenty pounds of tobacco for running off 100 acres if the total was greater than 500, otherwise he was to receive a minimum of 100 pounds of tobacco. Efforts to obtain capable, honest, and conscientious appointees continued to be a problem. The need for better surveyors and the decline of the tobacco prices led the Assembly to double the previous fees. In 1666 forty pounds of tobacco was stipulated for surveying 100 acres if the total was for 1,000 acres. If less than 1,000, the allowance was 400 pounds of tobacco.
Commissioned surveyors were not at liberty to refuse reasonable requests for surveys to be made, except in cases involving sickness or some other impediment recognized as legal. The law of 1666 provided that anyone violating this requirement was subject to a fine of 4,000 pounds of tobacco; for charging excessive fees, the fine was 200 pounds of tobacco that could be recovered in the Virginia courts.
Gabriel Hawley, Robert Evelyn, Thomas Loving, Edmund Scarborough, and Alexander Culpeper served as surveyor-general with the last named having Philip Ludwell as his deputy. Upon the chartering of the College of William and Mary surveyors were appointed by the institution, and the appointees were required to contribute to the trustees of the college one-sixth of the fees of the office. The trustees were permitted to delegate the appointments. Consequently in 1692 they designated Miles Cary as surveyor-general, who was instructed to make the selection of surveyors with the aid of a committee named by the trustees.
In addition to the fees of the surveyor, there were other charges that were made from time to time in obtaining a patent in Virginia. Under the company without a legal guide for the fees to be charged, the secretary of the colony apparently demanded at times as much as twenty pounds of tobacco or three pounds sterling when issuing a title for the individual dividends of fifty or 100 acres. Leaders of the company considered this fee unreasonable and took steps to prevent its collection.
Following the dissolution of the company, the Assembly set the fees of the secretary regarding land patents along with other authorized charges. In 1632 the secretary collected thirty pounds of tobacco for issuing a patent plus two pounds for each sheet required to record the document. In 1633 the fee for patents by the secretary was designated as fifteen shillings which could be collected either in tobacco or corn according to current price. Ten years later in 1643 the fee for a patent was again listed in terms of tobacco at fifty pounds with six pounds allowed for each recorded sheet. In lieu of four pounds of tobacco, the secretary was authorized to receive money at the rate of twelve pence for every four pounds of tobacco. At the March session of the legislature in 1657⁄58, the secretary's fees were further raised to eighty pounds of tobacco for issuing and recording a patent; thirty pounds was set as the fee for supplying a copy of the patent later; and fifteen pounds of tobacco was authorized for providing a certificate for land. These same fees of 1657⁄58 were repeated by law in 1661⁄62.
The stamp of the seal of the colony was required during much of the seventeenth century as the final step of approval for a patent, and during most of the time no fee was charged for this. However, under the governorship of Lord Howard which began in April, 1684, a charge of 200 pounds of tobacco was ordered for use of the seal for patents as well as all public documents such as commissions and proclamations. The proceeds from this fee were used by the Governor and were estimated by William Fitzhugh to equal 100,000 pounds of tobacco each year. However, such strong opposition was raised to the charge that it was dropped after 1689.
In addition to controversies over fees, there were many problems that arose in seventeenth-century Virginia over surveys and the identification of boundaries. Surveyors usually took the edge of a stream, either a river or creek, as the base line of the survey and then ran the boundaries for a specified distance along a line at right angle to the base. Terminal points were laid out and witnessed by neighboring owners with some distinguishing mark as a large stone or a tree with three or four chops. In 1679 a question was called to the attention of the Assembly as to the extent of the owner's rights along the water's edge. The case arose over the complaint of Robert Liny that part of his patent along the river had been cleared for fishing but the exercise of his fishing rights had been hampered by trespassing individuals who dragged their seines upon the river's edge, claiming that "The water was the kings majesties ... and therefore equally free to all his majesties subjects to fish in and hale their sceanes on shore...." In answer to this complaint, the Assembly declared that the rights of the patent holder extended into the stream as far as the low water mark, and any person fishing or seining without permission within these bounds was guilty of trespass.
More frequently problems arose as a result of defective surveys either in the first line along the edge of the stream or in a second and third line of patents that were laid out when all land along the streams had been occupied. Some of the surveys were inaccurate because of the lack of graduation on the compass; others were distorted by careless surveyors selecting convenient terminal points such as a tree, a road, or another stream and ignoring the accurate measurement of the line. As early as 1623⁄24, the Assembly ordered that individual land dividends be surveyed and the bounds recorded; and in case serious disputes arose over conflicting boundaries, appeal could be made to the Governor and Council. In an effort to prevent the holder of patents from having to pay for more than one survey of the same grant, the Assembly in 1642⁄43 stated that surveys made by commissioned surveyors were considered valid and bestowed full right of ownership without the necessity and expense of new surveys. Such a provision did not, however, resolve the problem that arose over errors made by commissioned surveyors, errors that may have led a person in good faith to construct buildings on a plot that was later determined to be a part of the patent of his neighbor. Several cases having arisen over this situation, the Assembly in 1642⁄43 and again in 1657⁄58 and 1661⁄62 provided that when one person had unknowingly erected constructions on another person's land, the original owner as shown by survey was to have the right to purchase the improvements at a price fixed by a twelve-man jury. If the amount proved too great for the original owner, then the person seating the land by mistake was to have the option of purchasing the land at a price set by the jury for its value before seating occurred. Beginning with the 1657⁄58 statement of the law, no consideration was to be given if construction had been made after legal warning had been given to desist.
Other legislation was designed to minimize the number of cases of this type that would arise. One provision made in 1646 required the person claiming to be the original owner of the land to file suit against his encroaching neighbor within five years for removal; otherwise possession of the land for five years without contest would prevent recovery by the original claimant. The law exempted orphans from the above provision and permitted them a five-year period after coming of age. A later enactment in 1657⁄58 repeated the provision on orphans and added to the exemption married women and persons of unsound mind. A second provision designed to prevent quarrels among neighbors required a person holding patent to land adjacent to a proposed grant to show the boundaries of his property within twelve months; otherwise the latest grant as surveyed would be valid and would take precedence over the old patent.
But these various laws did not prevent "contentious suites" from arising because of defective surveys when the lines were first run or because the restriction against resurveys did not resolve the boundary disputes. Conflicts continued if the surveyor had been negligent in marking clearly the boundaries, or if lines had become indistinct by the chops in trees filling out, by piles of stones being scattered, or by trees being removed. To prevent "the inconvenience of clandestine surveigh," the Assembly in 1661⁄62 enacted the law of processioning. By this provision the members of each community were to "goe in procession" once every four years to examine and renew, if necessary, the boundary lines. Boundaries acknowledged by the procession as correct were conclusive and prohibited later claims to change them. If controversy arose over the line, the two surveyors accompanying the party were to run the line anew, disputes were to be equitably settled, and the line so laid out to be final. For administration of processioning, the county court was to order the vestry to divide each parish into as many precincts as necessary, and the time set in 1661⁄62 for processioning was between Easter and Whitsunday (seventh Sunday or fiftieth day after Easter). The time was changed in 1691 to the months from September to March as a more convenient period. To assure enforcement of the law, provisions for penalties were included—1,200 pounds of tobacco for any vestry not ordering the processioning and 350 pounds of tobacco for individuals who failed to participate without good reason.
Still other problems concerning land patents related to two important conditions stipulated for perfection of the title to land—the first, "seating and planting," and the second, the collection of a quitrent. With the exception of some of the early grants, the patents of seventeenth-century Virginia required "seating and planting" of the tract within three years. As shown in the form used by Governor William Berkeley during the 1660's, if the patentee "His heirs or assignes doe not seate or plant or cause to be planted or seated on the sayd land within three years next ensueing, then it shall be lawful for any adventurer or planter to make choyse or seate thereupon." The time limit was extended as the exigency demanded. Because of losses from the Indian massacre of 1644, of the shortage of corn, and of the need for additional servants, the Assembly ruled that persons affected by the massacre were permitted three additional years to comply with the requirement for "seating and planting." Following the Indian disturbances of Bacon's Rebellion, the time period for plantations that were attacked was extended to seven years from the date the Assembly passed the act in 1676⁄77.
Generally speaking, however, the requirement for "seating and planting" was not carried out effectively, and there was little forfeiture because of noncompliance. In 1657⁄58 the Assembly recognized the right for patents to be issued on order of the Governor and Council for land "deserted for want of planting within the time of three yeeres." But even if such forfeiture did occur, the original patent holder was authorized to take up additional land elsewhere in the colony without complying with the headright requirement. And it was not until 1666 that the Assembly gave a definition for "seating and planting" in the declaration that "Building an house and keeping a stock one whole yeare upon the land shall be accounted seating; and that cleering, tending and planting an acre of ground shall be accounted planting." Either one or the other fulfilled the condition for the patent, and throughout the seventeenth century there was no relation between the size of the tract and the amount of improvement required. The minimum performance satisfied the law. Therefore, either the building of a small cabin, putting a few cattle or a few hogs on the tract for a year, or planting as little as an acre of ground—any one of the three protected the grant.
For most of the patents issued, this requirement presented little problem because the owner was interested in settling and improving his holdings. Violation of the provision was most likely to come in the case of land speculators who had taken up large tracts or in the case of landholders who were interested in acquiring adjacent tracts for the purpose of grazing or for forest supply. In the case of the latter, there was some question whether the requirement applied to adjacent tracts; but the Assembly in 1692 declared that tracts added to an original patent must be seated and planted as the law provided for other grants.
To a considerable extent there was the same attitude toward the requirement for "seating and planting" as has been noted previously for obtaining patent by headright. Light regard for the spirit of the law and at times the letter of the law came in part as a result of the unlimited expanse of land that tempted the established settler as well as the newcomer. Evasion of the law cast no stigma upon the offender, and some who were aware of their neighbor's dereliction winked at the action, thinking perhaps that they too might sometime engage in the same practice. Furthermore, the necessity of the provision for "seating and planting" which was well founded for the early years of the colony decreased in significance as the population and occupied areas of Virginia increased.
The second condition for perfection of title to land—payment of a quitrent—likewise had a checkered career in the seventeenth century. Under the company there is some question whether quitrents were due. It is clear that "the greate charter" of 1618 in order to encourage immigration exempted for seven years settlers who were taking up land by headright. For planters settled before 1616 at the expense of the company, it seems that they would have been free of paying the quitrent only for a seven-year period which would have required compliance before dissolution of the company. Settlers who arrived in Virginia after Dale's departure in 1616 and before 1618 would most probably have been subject to the quitrent under the company since they were exempt for only seven years. Whatever the case, there were rents to be collected before 1624 as shown by the duties of George Sandys, younger brother of Sir Edwin Sandys and first appointee to the office of treasurer in Virginia. Sandys was instructed to collect some £1,000 owed the company either as rent or as dues.
When Virginia became a royal colony in 1624, the quitrents were then payable at the rate of one shilling for every fifty acres patented. For 1631 the estimate was made by the Assembly that the quitrents would bring in as much as 2,000 pounds sterling, if paid. But little effort was being made to collect the rent and it was not until 1636 that Jerome Hawley was appointed treasurer. His arrival in the colony the following year initiated plans for collection. Proceeds from this source of revenue were to be used for the treasurer's salary; any surplus amount was to be used at the discretion of the Assembly. In order to determine who owed the rent, instructions were issued to landholders in Virginia to show their land titles to the treasurer in order that he could compute the rents that were due. But little action was taken and it seems certain that not enough was collected to pay the salary of the treasurer. In 1639 additional provisions were stipulated by the Assembly to tighten the quitrent collection by requiring landholders upon summon by warrant to reveal their title and the size of their estates to commissioners of the county courts. Following the precedent of "the greate charter" of 1618, no rents were to be paid until the expiration of seven years. This provision continued in effect under Charles I and during the interregnum, but the time limit was retracted in the instructions to Governor William Berkeley under Charles II. The retraction was confirmed under James II, the major reason being that it encouraged individuals to take up larger areas of land than they were able to cultivate.
Collection of quitrents, however, continued to lag and around 1646 no more than 500 pounds sterling was being collected. The treasurer appealed to the Assembly which acknowledged that "There is and hath been great neglect in the payment of the quitt rent." Consequently the Assembly in 1647 authorized the treasurer to levy a distress upon the property of delinquent taxpayers. The delinquent was permitted, if providing security, to retain his goods under replevin and to have a hearing before either a county court or the Governor and Council for final disposition of the case. Such a measure, however, was not effective against land not seated and planted, for the land itself was not to be seized; and a similar handicap prevailed against absentee owners as far as action by the treasurer was concerned.
Assistance in collection of quitrents was provided by the sheriff who was designated as the recipient of payments for each county with the fee of ten per cent of the collections being allowed him. Using the patent rolls of his office, both past and current, as a guide, the sheriff collected the rent and turned it over to the auditor of the colony. The rent was received either in coin or in tobacco as the law provided from time to time. In 1661, for example, persons unable to pay in coin were permitted by law to pay in tobacco at the rate of two pence per pound. But there was considerable controversy over the nature of the payment, and King James II ordered the repeal of the earlier act because of the poor quality of tobacco being submitted. After the overthrow of the King in 1688⁄89, the collection of quitrents continued for the most part in tobacco at the rate of one penny per pound.
In 1671 the privilege of collecting and using the quitrents was granted to Colonel Henry Norwood, who had supported faithfully the King and the royal cause during the civil war. Two years later the quitrents were given to Lords Arlington and Culpeper, including collections that might be made of rents in arrears. Protests from Virginia of these grants forced the revocation of the special gifts in 1684, although Culpeper retained the right to the quitrents in the Northern Neck.
Collection of quitrents at various times was farmed out to members of the Council and to the Governor, with the Councilor concerned usually taking the counties near his own residence. In 1665, for example, Governor William Berkeley assumed the collection in James City and Surry counties; Colonel Miles Cary, in Warwick and Elizabeth City counties; Nathaniel Bacon, Sr., for York County, the Isle of Wight, and the southern part of New Kent; and similar designations for other members of the Council. In 1699, however, the Council ordered William Byrd, auditor of the colony, to sell the quitrents of each county to any individual at the price of one penny per pound of tobacco and on the condition that the usual payment would be made to the sheriff for receiving the rent.
While some improvement was made in the last half of the seventeenth century in the collection of quitrents, the sum was never very great; and according to one report in 1696 no land had been taken over by the colony because of failure to pay the rent. As to the amount being collected near the end of the century, the figure was not impressive. For the period of six years between 1684 and 1690, the estimate has been made that receipts totalled £4,375 13s. 9d. or a little over £700 as an average for each year during this period. The figure was little changed near the end of the century, for it was reported in 1697 that the amount collected from quitrents did not total more than £800.
These weaknesses and abuses of the Virginia land system underwent a detailed analysis near the end of the seventeenth century by the newly created agency—the Lords Commissioners of Trade and Plantations which was commonly known as the Board of Trade. During the first year of its organization in 1696 the Board received a report from Edward Randolph, sent from England to be surveyor-general of customs in America. Randolph pondered the question as to why the colony of Virginia was not more densely populated with all of the migration that had occurred. He attributed little importance to the imputation of "the unhealthiness of the place" and to the assertion that tobacco sales yielded little return in England after all fees were paid. In an incisive statement he concluded that