THE LAND GRANT SYSTEM
IN EARLY VIRGINIA
Researchers of early Virginia antecedents might find it helpful to study the two land grant systems, the Northern Neck Proprietary and the royal patents. Grants were issued for importation rights, treasury rights or military service. Technically, a patent was a special type of grant where a government body granted public land to someone. The purchaser or claimant was given a certificate proving permanent ownership of a piece of land, which stated that he or she was the first to own the land individually.
Our early ancestors could often be considered land speculators who were determined to secure land for their heirs. This notion was rooted in centuries of English social order based on ownership of land. For early Virginians, the acquisition of land was an indication of wealth and social standing. Their yearning for land was a top priority for persons migrating to the new country. As a result, formulating an equitable land policy also became a priority for the ruling government in early Virginia. Throughout the 17th century, officials struggled to create a land policy designed to attract immigrants to populate the colony, work for its benefit, and provide revenues for the crown.
Unfortunately, chicanery on the part of colonists and interference by the crown served to create quite a bit of havoc in regards to the land grant system in colonial Virginia. Not until the first quarter of the 18th century did Virginia’s land policy settle into a manageable system.
On 10 Apr 1606, King James I granted a charter to the London Company, a joint-stock venture made up of investors hoping to achieve a quick and substantial return on their investment. The purpose of the London Company was to govern the new colony of Virginia, populate it, and hopefully send home to England shiploads of gold, silver and copper.
From the beginning of Virginia’s colonization, the British did not recognize the sovereign rights of native Indians and their ancestral lands. Britain claimed title to the new land by rights of discovery and occupation. But the British weren’t totally unsympathetic towards the Indians, as long as the natives didn’t interfere with the expansion plans of the crown. Land was purchased or received as gifts from the Indians, or simply appropriated without compensation. There are several documented instances in which Native Americans were compensated for their territorial lands, usually by local Virginia authorities. These men were better informed about Indian affairs than the Council in London, and understood the importance of cultivating the Indians’ goodwill. A few gifts of land to the Englishmen had been made by the natives, although the British refused to acknowledge their right to do so.
Throughout the 17th century, the authorities in colonial Virginia attempted, for the sake of peace, to insure that white settlers did not encroach upon lands set aside for Indians. At the same time, the crown was pushing for settlement of the new country, and problems between the natives and whites were inevitable.
From a bill of adventure dated 13 Jul 1608, the Clerk of the London Company, Richard Atkinson, recorded that Henry Dawkes paid to the Treasurer of Virginia, Sr. Thomas Smith Kt., the sum of 12 pounds ten shillings for his voyage to Virginia. Upon his arrival in the colony, Dawkes was to receive "such lands, tenements and hereditements be there planted and inhabited, and of all mines and minerals of gold, silver and other metals or treasures, pearls, precious stones or any kinds of wares or merchandise, rights of hunting, fishing, hawking and fowling, etc….".
Dawkes did not find any treasures upon his arrival in Virginia. Instead, he found a vast wilderness with thick forestry growing to the shoreline. The strange and colorfully garbed Indians would have caused Dawkes a certain amount of consternation, fear and distrust. Although he failed to find the promised treasures in the new colony, Dawkes was entitled to an unspecified amount of land if he shoes to work for the king’s benefit. And if Dawkes had the fortitude to survive in the new colony, his land would one day become the promised treasure.
An "adventurer" remained in England, investing only his money, with each unit of investment set at twelve pounds ten shillings. Men like Henry Dawkes who invested the same amount of money, but traveled across the sea to Virginia, were called planters.
The promises made to those who invested in the joint-stock undertaking of the London Company were not fulfilled. The term of the joint-stock arrangement was originally set at seven years with at least 100 acres of land awarded for each share of stock. The London Company optimistically predicted each share would be worth 500 acres by the end of the seven-year term. However, several years later, land patents were denied because the promise was made by a "private individual" and not a commitment by the court of the company.
In the early days of the colony, everything was done for the good of the community. Common storehouses were used for food, drink, tools and textiles. But it wasn’t long before the colonists’ enthusiasm for the new country began to wane. Among the factors that contributed to their lack of zeal was the absence of private ownership of land.
In 1614, a tenant-farm policy was inaugurated in which three acres of "cleare ground" were allotted to men of the old settlement. They became tenants of the London Company and were only required to give one month’s service to the colony in addition to the planting and harvesting time. Annually, they contributed two and a half barrels of corn on the ear to the common storehouse. This program resulted in increased crop production and numbers of farm stock. The tenant farmers were pleased to have a house and ground for their own use, which was assuredly a good motivation for increased productivity. In the year 1616, the colony’s total population was 351 persons, of which 81 were tenant farmers.
Of the number of people who purchased a share in the London Company, an estimated one-third actually came to Virginia to claim their land. Another one-third sent agents or heirs to benefit from the grant, and one-third disposed of their shares to others who took possession of the land.
By 1624, the colony’s population had grown to 1240, but in that same year the London Company’s charter was dissolved. Interest in developing land claims in the now-defunct joint-stock company declined. Eventually, title to those claims were withdrawn to make way for the natural growth of the colony.
The Headright System and Land Grants
The "great charter" of 1618 established the headright system as a reward for immigrating to the colony. All persons going to Virginia with the intent to "inhabitate" were granted 50 acres of land as long as they either remained in Virginia for three years, or died within that time period. As a bonus, anyone who cultivated land and lived upon it for three years was given an additional 50 acres. After living upon the granted land for seven years tax-free, an annual rent of 12 pence per 50 acres was to be paid.
The headright system granted 50 acres to any person migrating to the colony at his or her own expense, and to anyone who paid the passage of other persons. A man who migrated with a wife and four children was granted a total of 300 acres, provided they fulfilled the residence requirement of three years. At the end of that period, the man was granted an additional 300 acres. Although the original headright system was scheduled to end on Midsummer Day 1625, royal governors continued to honor headright claims based on immigration well into the first quarter of the 18th century. In 1634, the fee rent of one shilling per 50 acres became due on September 29, the feast of St. Michaell the Archangell.
The headright system was successful in increasing the colony’s population, but the land grants were not commensurate with the expense of transporting immigrants. This led to an increase of indentured servants, immigrants who agreed to work a certain number of years as additional payment for his or her transportation. Indentured servitude did not have the stigma of bondage or slavery, although the life of an indentured servant was often harsh. Many servants, upon completion of their term of indenture, went on to enjoy positions of social and political prominence in the colony. There was a widespread belief in England that anyone willing to indenture himself or herself for a term of three years would be granted 50 acres of land in addition to clothing, tools and one year’s grain upon fulfilling the indenture. In reality, the 50 acres of land were granted to the person who paid the passage of the indentured person, unless the contract between the two parties specifically awarded the servant free land. Persons listed on a headright list were not necessarily indentured servants. An estimated sixty to seventy percent of landholders between 1635 and 1665 did not sail to Virginia as indentured servants.
Headrights were often transferred by sale. A person entitled to a headright claim on the frontier may not have wished to live there. He could sell his headright claim and purchase land in a more populous area.
A person making a headright claim was required to appear before a county court, or Governor and Council. The claimant stated under oath that he or she had imported a certain number of persons whose names appeared on a list they presented to the clerk of the court. The clerk would then issue a certificate which was validated in the secretary’s office. Authorization for the headright was passed on to a surveyor who marked off 50 acres for each imported person. The grant was located in the area selected by the claimant, providing the land was not already patented and was not barred for white settlement.
Throughout the 17th century, many abuses and evasions occurred within the headright system. Claimants often filed in more than one county court, using the same list of persons for which they had already claimed land in another county. Ship masters claimed headright land using a list of sailors and passengers; this was done despite the sailors’ contracted agreement to continue service at sea, and passengers who had paid their own passage. When these claims were approved by harried clerks either too lax or too busy to check the lists, a ship master held certificates which he then sold for whatever price he could get. Unscrupulous ship masters often "imported" the same sailors and passengers as many as four times.
Many powers of attorney found in county court records authorized agents in Virginia to handle the headright claims of mariners. Sometimes as many as three claims were made for one importation. The ship master would submit a claim, as would a middleman who surportedly purchased the services of an immigrant who sailed on the ship (indentured servant), and the planter who actually purchased the indentured servant.
Headright lists sometimes contained fictitious names, or names culled from old records. The headright system continued to bring immigrants into the colony which was, after all, its intended purpose. But the abuses within the system distorted the number of patented acres and the number of people in the colony. Public approval of these abuses meant an easy and inexpensive way of acquiring land.
Original land grants steadily increased in size until the third quarter of the 17th century. However, a reduction in these landholdings occurred when servants purchased land at the end of their indenture, or by planters distributing land to children and other heirs. Occasionally, a sale of land was necessitated by an inadequate labor supply. In 1699, the Governor and Council authorized the acquisition of land by "treasury right". Thus, payment of five shillings to the auditor would entitle the purchaser to 50 acres of land. This method of acquiring land by "treasury right" increased in popularity through the 18th century, although grants by headrights continued to account for the great majority of land patents. After 1725, headright claims gradually fell into disuse.
Seating and Planting
Except for some early land grants, patents of 17th century Virginia required seating and planting of the tract within three years. "Seating" was defined as building a house, keeping stock on the land for one year, and providing a servant to tend that stock. Clearing, planting and tending an acre of ground was defined as "planting". The size of a grant had nothing to do with "seating and planting" in order to fulfill the requirements of keeping a grant. The law was satisfied with a minimum effort of planting one acre, putting a few stock animals on the land, and building a small cabin or even a rickety shed.
Due to the heavy loss of life from the Indian massacre of 1644, combined with a shortage of corn and the need for additional labor, the General Assembly ruled that persons affected by the massacre were allowed three additional years to seat and plant their grant. After Indian raids resulted in Bacon’s Rebellion in 1676, the time period for seating and planting plantations that were attacked was also extended to seven years.
As with many other colonial laws, the requirement for seating and planting was not carried out effectively. Few forfeitures occurred due to noncompliance. Even if such forfeitures did occur, the original patent holder was allowed to take up land elsewhere in the colony without having to comply with the headright requirement of importing immigrants.
Fulfilling the requirement of seating and planting a grant was not a problem for owners interested in settling on land and improving the holding. But the requirement did present a problem for land speculators and those planters who acquired adjacent tracts of land for grazing or forestry purposes. In 1692, the General Assembly declared that tracts added to an original patent had to be seated and planted as stated in the law.
Surveys and Processioning
Each land patent had to be surveyed. A surveyor was required to read, write and figure measurements. Surveyors’ fees were designated by the legislature, and paid by the person claiming the land. In 1624, when the London Company was dissolved and Virginia became a royal colony, a surveyor was paid ten pounds of tobacco for every 100 acres surveyed. By 1642, the fee had increased to twenty pounds of tobacco for measuring 100 acres of land, plus an additional twelve pounds of tobacco for each day the surveyor was away from home. The daily allowance for being away from home was increased to thirty pounds of tobacco by 1661. Surveyors were still allotted twenty pounds of tobacco for marking off 100 acres, if the total acreage exceeded 500. Otherwise, surveyors received a minimum of 100 pounds of tobacco. By 1666, a decline in tobacco prices led the General Assembly to double the previous fees. Forty pounds of tobacco was paid for surveying 100 acres if the total was 1,000 acres If less than 1,000 acres, the fee was 400 pounds of tobacco.
Surveys were sometimes inaccurate due to a lack of graduation on a compass. Careless surveyors often selected more convenient terminal points such as trees, roads, streams, or schoolhouses rather than accurately measuring a line. These inaccurate surveys often resulted in lawsuits over disputed land. Several laws enacted through the years were intended to provide a fair solution to the problem of defective surveys. However, conflicts and lawsuits continued. Boundary lines became indistinct when chops in tree trunks filled in, piles of stones were scattered, or trees were removed.
In 1661, the General Assembly enacted the law of processioning. Members of each community, usually teenaged males, were required to "goe in procession" once every four years to examine and renew, if necessary, boundary lines. Boundaries accepted by the processioners as correct were considered conclusive, and prohibited later claims to change them. If a controversy arose over a boundary line, two surveyors accompanying the procession were required to mark off a new line according to the legal description. Doing so resulted in an equitable settlement of disputed land, and the new line was considered final.
Administration of the processioning process was handled through the county court who ordered the parish vestry to divide each parish into manageable precincts. In 1661, the time period for processioning was set between Easter and Whitsunday (the seventh Sunday, or fiftieth day after Easter\). Thirty years later, in 1691, the processioning period was changed to a more convenient time, between the months of September and March. Vestries were fined 1200 pounds of tobacco for not enforcing the processioning law. Individuals who failed to participate without good reason were each fined 350 pounds of tobacco.
Land Patents and Discrepancies
Land patent books were official records of the entire colony, unlike individual county records. Patent books have survived the vagaries of time to provide researchers with valuable information. Studying land tracts adjacent to an ancestor’s acreage can provide interesting information. In colonial Virginia, many marriages occurred between men and women who lived within two or three miles of each other. Understanding the history of county boundary changes, and the resulting location of parishes, is a very useful tool when tracing an ancestor.
Interesting information regarding land patents was found in Caroline County Land and People by LtCol. James W. Doyle, Jr., USAF, Ret.1 Almost every patent will refer to a river, creek, branch or run. When surveyors wrote "upper bound or corner", they were referring to upstream. A back line was a line or corner farthest from a stream. Patentees marked their lines well back from major streams unless there was a good spot at which to tie up a boat. "Low ground" was often unhealthful to live on, and crops suffered from poor drainage.
While studying land patents in St. Margaret’s Parish of Caroline County, LtCol. Doyle discovered something interesting regarding land patented by (5)Daniel Coleman and John Madison. On 16 Jun 1714, when the two men were granted a 2000 acre patent, the acreage was part of St. John’s Parish in King William County. As the population of King William grew, a second parish, St. Margaret’s, was formed. The first mention of this new parish in a land patent book occurred on 25 Apr 1722 when 300 acres of land were granted to Thomas Terry and John Chiles, churchwardens of St. Margaret’s Parish. The patented land was intended for the use of the parish as a glebe. \(A glebe was a farm dedicated to the support of a church and placed in the occupancy of the minister.)
In 1728, the land originally patented by Daniel Coleman and John Madison became part of St. Margaret’s Parish in newly formed Caroline County. While mapping St. Margaret’s Parish, LtCol. Doyle discovered that most surveyors of the early patents were fairly accurate, especially when considering their tools were magnetic compasses marked in points of 11.5 degrees (eventually in whole degrees). Distances were measured by dragging chains over hills and through swamps. When LtCol. Doyle entered the surveyors’ data into a computer-plotting program, the results were not "closed" tracts of land, except in the case of simple rectangles. And the stated acreage found in a patent description did not always agree with the actual results of a survey. Areas not measured within a surveyor’s bound were left "open", and occasionally created strips or pieces of land between what would have been adjoining properties. Discrepancies between patent descriptions and actual surveyed parcels could be accounted for by mathematical error or by patentees taking possession of more land than they paid for.
The custom of understating an area claimed and paid for appears to have happened with the 2000 acres in King William County granted to Daniel Coleman and John Madison in 1714. The surveyed bounds enclosed approximately 2000 acres, but subsequent patents to other landowners indicated that Coleman and Madison established themselves on twice that amount of land, referred to as "surplus". LtCol. Doyle concluded that the original patent to Daniel Coleman and John Madison actually encompassed 4300 acres, although the two men only paid for 2000 acres.
When the land was divided before 20 Feb 1719, Daniel Coleman took the northwest part and John Madison took the southeast portion. Daniel Coleman’s land "surplus" may have been the basis for the 1729 Caroline County lawsuit brought by Henry Dillin against Thomas Coleman, son of Daniel. Caroline County was formed from Essex, King & Queen and King William counties.
A 1713 law applying to all new land patents required that three out of every fifty acres classified as arable land had to be cleared, tended and worked. If up to two-thirds of the total land in the patent was "barren", the patentee was required to keep three "neat" cattle or six sheep and goats. \(A neatherder herded cows.) If these requirements were not met within three years of the patent date, the patent became void.
Quitrents were a form of property tax, paid annually. Once the rent was paid, a patentee was "quit" of his responsibility for the year. When Virginia became a royal colony in 1624, quitrents were payable at the rate of one shilling for every 50 acres patented. Little effort was made to collect the quitrent until 1637 when Jerome Hawley arrived in the colony as treasurer. Proceeds from the collection of quitrents were used to pay the treasurer’s salary. Any surplus was intended to be used at the discretion of the General Assembly.
Landholders in Virginia were required to show their land titles to the treasurer to enable him to compute the rents that were due. Not surprisingly, little action was taken and not enough rents were collected to pay the treasurer’s salary. In 1639, provisions by the General Assembly were enacted to tighten the collection of rents by summoning landowners by warrant and requiring them to produce their land titles and reveal the size of their estates.
Despite all efforts, the collection of quitrents continued to lag until 1647 when the General Assembly authorized the treasurer to levy a "distress" against the property of a delinquent taxpayer. But land itself could not be seized, thus the measure was ineffective. The collection of rents improved somewhat after sheriffs were declared responsible for collecting payments in their respective counties. A sheriff’s fee of ten percent of the quitrents he collected was enough impetus to improve the system.
In 1661, persons unable to pay their rents by coin were allowed to pay with tobacco at the rate of two pence per pound. But King James II ordered the repeal of that act because of the poor quality of the tobacco submitted. After the overthrow of the king in 1688, the collection of quitrents resumed at the rate of one pence per pound of tobacco.
Attempts to collect quitrents continued to fail throughout the 17th century. Owners of the largest patents were the most lax in regards to paying rents. However, the government was determined to institute a stringent collection of quitrents in order to force the relinquishment of unused land. This land could then be patented by others who would occupy and cultivate the unused acreage. The quitrent rolls of 1704/5 were an improvement over previous rolls, but still fell short of actual rents due.
The Northern Neck Proprietary
A major difference existed between the land system in the Northern Neck and the rest of Virginia. "Ye Northern Neck" was a narrow peninsula of land between the Potomac and Rappahannock rivers, and from the western headwaters of those rivers to Chesapeake Bay. About twenty miles wide, the neck ran inland for a hundred miles before narrowing at Fredericksburg, VA. Captain John Smith’s 1607-09 explorations provided the first recorded history of the Northern Neck region of Virginia. In notes made during his 1608 foray along the Rappahannock River, Captain Smith mentioned the variety of massive trees "so lofty and erect" in the virgin forests. Trees provided 2-1/2 foot wide planks, twenty yards long, that were crafted into canoes able to carry forty men. Captain Smith described the land as a mighty forest with "sweet" and "christall" springs. Throughout the next century, the Northern Neck Proprietary became a source of power. Those who served as its agents, overseeing and collecting quitrents, became owners of huge land holdings.
During King Charles II’s exile from the throne, he rewarded seven faithful "cavaliers" for their continued support of the Stuart regime. In 1649, he granted the Northern Neck Proprietary Charter to Lord John Culpeper, Lord Ralph Horton, Lord Henry Jermyn, Sir John Berkeley, Sir William Morton, Sir Dudley Wyatt and Thomas Culpeper.
Royal government was suspended under Oliver Cromwell’s reign, and the proprietary charter went unclaimed and unused. After Charles II was restored to the throne in 1660, the seven proprietors prepared to take possession of their Northern Neck land. But portions of the area had been seated since 1645, and legal objections to the proprietary charter were made by Virginia planters and the Council.
After an appeal to the king, the original 1649 patent was surrendered and a new charter was issued on 8 May 1669. This time the Northern Neck was granted to the Earl of St. Albans, Lord John Berkeley, Sir William Morton and John Trethewy. The new charter also required the recognition of grants in the Northern Neck made by the Governor and Council prior to 29 Sep 1661, and it limited the title of the proprietors to land which would be planted and inhabited within twenty-one years. The laws of the colony were to remain in effect and the political jurisdiction of the Northern Neck was still under Virginia government. Considerable confusion prevailed over the retroactive recognition of grants, and landholders became unsure of their ownership.
To compound the confusion, on 25 Feb 1672/73, Charles II granted all of Virginia, for a period of thirty-one years to Lord Arlington and Lord Thomas Culpeper (son of one of the original Northern Neck proprietors). These two proprietors were to control all the land in the colony, collect rents, including all rents and profits in arrears since 1669, and exercise authority on grants previously made.
Until 1669, grants were regularly made under the headright system, evidenced by land patent books. After 1669, the number of grants decreased. In March 1674/75, the first land grant in the name of the proprietors, a 5,000-acre tract, was issued to Nicholas Spencer and John Washington of Westmoreland Co. with the seal being affixed by Thomas Culpeper and Anthony Trethewy. This 5,000-acre grant later became George Washington’s Mount Vernon.
Opposition to the Northern Neck Proprietary grant led to efforts by the General Assembly to purchase the rights of the proprietors. The men were willing to sell, and set a price of 400 pounds for each share held in the charter. When Bacon’s Rebellion broke out, transactions were interrupted. As a result, the status of the proprietary grant was in limbo.
After Lord Thomas Culpeper was appointed Governor of Virginia, and arrived in the colony in 1680, he purchased the Northern Neck Proprietary grant and the rights of Lord Arlington for all of Virginia. In 1684, Culpeper gave up the Arlington charter to the crown in exchange for an annual pension of 600 pounds sterling for twenty-one years.
Culpeper retained the Northern Neck charter and attempted to encourage settlement of the area. As the end of the twenty-one year period approached, Culpeper asked for a renewal of the grant, based on the fact that the amount of land intended by Charles II had not been taken up. King James II agreed with Culpeper’s appeal, and issued a new charter in 1688 with Lord Culpeper as the sole proprietor, without a specified time period. Before his death, Culpeper managed to enlarge the area included in his Northern Neck grant. The additions were later described as extending beyond the Blue Ridge Mountains to the foot of the Alleghenies.
Culpeper was a man of less-than-sterling character. For many years, he did not live with his wife, and reportedly spent L60,000 on his mistress, Susanna Willis. Culpeper died on 27 Jan 1688/89, soon after the third proprietary charter was granted to him. Despite efforts by the colonial government to again eliminate the Northern Neck Proprietary grant, it was confirmed to Culpeper’s heirs by the House of Lords in England. This action was taken in an effort to protect Culpeper’s wife and only child, daughter Katherine. The charter passed by marriage to the Fairfax family, after Katherine married Lord Thomas Fairfax. By law, Fairfax became a proprietor of the Northern Neck upon his marriage to Katherine. Their son, Thomas, the sixth Lord Fairfax, died a bachelor in Virginia.2
Land grants made by agents of the proprietors in the Northern Neck remained basically the same in nature as the royal patents elsewhere in Virginia. But the planters in the Northern Neck paid quitrents and fees to the proprietors instead of the crown. In the proprietary, patent and grant were used interchangeably for land granted by Lord Thomas Fairfax and his predecessors.
One major difference between the Northern Neck Proprietary and Virginia land grants was the method used in granting land. The proprietors chose acquisition of title by purchase, or "treasury right", while royal patents were still based on the headright system.
To obtain title to land in the Northern Neck Proprietary, a person paid a "composition" which was established at a uniform rate. For each 100 acre tract for grants less than 600 acres, the fee was five shillings. For grants over 600 acres, the fee increased to ten shillings per 100 acres. Tobacco could be used as payment, and in 1690 was valued at the rate of six shillings per 100 pounds.
The amount of quitrent in the Northern Neck was the same as elsewhere in Virginia – two shillings annually for each 100 acres.
Until 1687, the three-year "seating and planting" provision was included in the proprietary. But in that year, with the Brent Town grant, the seating requirement was omitted and set a precedent for subsequent Northern Neck Proprietary grants.
There was strong public and private animosity towards the proprietary land grant system. Thus, demand for land in the Northern Neck was infrequent at best, and most of the patents were small. Not until the 18th century did demands for Northern Neck land equal those in other areas of Virginia.
With the dissolution of the London Company in 1624, the "treasury right" was, for the most part, discontinued in Virginia until it reappeared in the Northern Neck in 1699. Attempts at land reform throughout Virginia, which was intended to increase quitrent revenue and prevent the accumulation of large estates, failed. The few large estates of the 17th century increased in number and size during the 18th century. Many well-known Virginia leaders of the American Revolution came from these large estates.
The two major record groups regarding the Northern Neck Proprietary, surveys and warrants, have been abstracted and published. But Northern Neck colonial patents were burned annually, and did not survive.
1Tidewater Virginia Families, A Magazine of History and Genealogy, Vol. 8, No. 2, Aug/Sep 1999, p 71, Virginia Lee Hutcheson Davis, Editor
2William and Mary College Quarterly Historical Papers, Vol. 1, No. 3, January 1893
Some information for this article is from Mother Earth, Land Grants in Virginia, 1607-1699, by W. Stitt Robinson Jr., 1957, Jamestown 350th Anniversary Historical Booklet #12, reprinted by Clearfield Co. Inc., Baltimore MD, 1993, 1996, 2001.