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

... the chief and only reason is that the inhabitants have been and

still are discouraged and hindered from planting tobacco in that

colony; and servants are not so willing to go there as formerly

because the members of Council and others who make an interest in

the government have from time to time procured grants of very large

tracts of land, so that for many years there has been no waste land

to be taken up by those who bring with them servants, or by servants

who have served their time. But the land has been taken up and

engrossed beforehand, whereby such people are forced to hire and pay

rent for lands or to go to the utmost bounds of the colony for land

exposed to danger....

Randolph then reviewed the steps by which a land patent was obtained and

analyzed the conditions which a person was supposed to fulfill in order

to obtain the land title in fee simple. The first of these was the

requirement for the annual quitrent of one shilling for fifty acres; but

according to Randolph, the colonists "never pay a penny of quit-rent to

the King for it, by which in strictness of law their land is forfeited."

The second requirement was for seating the land within three years to

prevent it from being relinquished as deserted land. The following

description was given of this condition:

By seating land is meant that they build a house upon and keep a

good stock of hogs and cattle, and servants to take care of them and

to improve and plant the land. But instead thereof, they cut down a

few trees and make thereof a hut, covering it with the bark, and

turn two or three hogs into the woods by it. Or else they are to

clear one acre of that land and plant and tend it for one year. But

they fell twenty or thirty trees and put a little Indian corn into

the ground among them as they lie and sometimes make a beginning to

serve it, but take no care of their crop, nor make any further use

of the land.

The third condition pertained to the keeping of "four able men well

armed" on land that was situated on the frontier of the colony. Again

Randolph reported that

... this law is never observed. These grants are procured upon such

easy terms and very often upon false certificates of rights. Many

hold twenty or thirty thousand acres of land apiece, very largely

surveyed, without paying one penny of quit-rent for it. In many

patents there is double the quantity of land expressed in the

patent, whereby some hundred thousand acres of land are taken up but

not planted, which drives away the inhabitants and servants brought

up only to planting to seek their fortunes in Carolina and other

places, which depopulates the country and prevents the making of

many thousand hogsheads of tobacco, to the great diminution of the

revenue.

Mother Earth: Land Grants in Virginia, 1607-1699 · 第 4 / 6 段