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.