correct the evils of the land system: first, order a survey in every
Virginia county of the lands in question; second, demand full payment of
all quitrents in arrears and use legal compulsion to collect them; and
third, limit grants to 500 acres for one man and have them issued on
"more certain terms." Such requirements would produce threefold
advantages to the crown and the colony. They would either bring in
additional revenue by collection of the quitrent; or if payment were not
made, approximately 100,000 acres of land would revert to the King and
could be granted to new settlers. Limitation of grants to 500 acres
would increase the number of planters, make settlements more compact,
and produce more tobacco. And finally, both trade and the customs
collection on tobacco would be enhanced.
Before concluding his report, Randolph acknowledged both the awareness
of the problem and the efforts of correction initiated by Francis
Nicholson while Lieutenant-Governor of Virginia from 1690 to 1692.
Nicholson was
... very sensible of the damage and injustice done to the crown by
their using and conniving at such unwarrantable practices in
granting away the King's lands, and was resolved to reform them by
suing some of the claimers for arrears of quit-rents; but finding
that the Council and many of the Burgesses, among others, were
concerned, and being uncertain of his continuing in the government,
he ordered to begin with Laurence Smyth, who was seised of many
thousand acres of land in different counties, and for one particular
tract of land was indebted £80 for arrears of quit-rents, which sum
after the cause was ripe for judgment, was compounded for less than
one half.
Before the year was out, the Board of Trade sought more information on
this problem and directed a series of searching questions in October,
1696, to Randolph who had then returned to England. Both the questions
and the answers are recorded in the _Calendar of State Papers, Colonial
Series, America and West Indies_, 1696-1697 (pages 172, 188-89). Out of
the ten questions asked, the following seem most significant in
revealing Randolph's evaluation of the Virginia land system.
What proportion of land in Virginia already taken up is now
cultivated as near as you can judge?
There is in Virginia, at a moderate computation, about 500,000 acres
granted by patents, of which not above 40,000 acres are cultivated
and improved; besides many thousand acres of waste land high up in
the country.
Why have not the prosecutions, neglected in Colonel Nicholson's
time, been continued since?
Colonel Nicholson was the first Governor of Virginia who directed
prosecutions for arrears of quit-rents, beginning with Colonel
Laurence Smith. The case was ready for trial but the Governor came
to England, and the case was afterwards compounded for a small
matter.
Have any parcels of land been seized for the King's use, for want of
planting or failure to pay quit-rents?
Small parcels of land are granted away every court for not being
planted or seated according to law, but no land has at any time been
seized to the King's use for not paying of quit-rents.
Are negro servants included in the persons who, if imported, make
"rights" to grant of land. [?]
Negro servants give a right to land to those who import them, who
thereupon take up land, contrary to the true intention of seating
the country; but the practice being general, to the advantage of
certain persons, no notice is taken of it.
Have you ever known of false certificates of rights, and how have
the parties guilty thereof been punished?
I have heard of many false certificates of rights; the practice is
common but little regarded, being of no prejudice to any private
person.
If your methods be followed, in what county should a beginning be
made?
... if my proposals were adopted, I answer that the members of
Council have large tracts of land in most of the counties, for which
they are in great arrears of quit-rent. It is advisable to make a
beginning with some of them and to empower a person uninterested in
the county to demand the arrears due to the King. These will amount
to a considerable sum and will increase the King's revenue in
Virginia yearly. If the patentees refuse to pay the arrears, some
hundred thousand acres of land will revert to the crown, to be more
carefully disposed of in future.
The Board of Trade continued the search for additional opinions about
the land system in Virginia. Questions were asked individually of Henry
Hartwell, a Councilor of Virginia, and Edward Chilton, Attorney-General
in Virginia from 1691 to 1694. Then Hartwell and Chilton collaborated
with James Blair, Councilor and Commissary of the Anglican Church in
Virginia, in preparing a report that was received by the Board in
October, 1697, under the title _An Account of the Present State &
Government of Virginia_. The three authors of the report were English
or Scottish born and represented essentially the same point of view of
royal appointees who became residents of the colony and who favored an
extensive use of royal authority. All three had married into Virginia
families and had had numerous occasions for observation. The report
reflected a greater concern for royal revenue than for the internal
development of the colony, and it definitely displayed the bias of the
three men, particularly Blair, against Governor Andros.
Their comments on the land system confirmed some of the conditions as
set forth by Randolph's report. Stating that the country was "ill
peopled" despite the headright system, they explained that "The first
great abuse of this design arose from the ignorance and knavery of
surveyors, who often gave out drafts of surveys without even coming on
the land. They gave their descripton [sic] by some natural bounds and
were sure to allow large measure, that so the persons for whom they
surveyed should enjoy much larger tracts than they paid quit-rents
for." The issuing of certificates for rights by the courts and
secretary's office had been abused, especially the latter "which was
and still is a constant mint of those rights, where they may be
purchased at from one shilling to five shillings _per_ right." And in
another criticism of the land system, the authors concluded that the
"Fundamental error of letting the King's land run away to lie waste,
together with another of not seating in townships, is the cause that
Virginia to-day is so ill peopled."
The Board of Trade considered reforms to correct the existing evils of
the land system. Questions about these evils were posed to Sir Edmund
Andros, Governor of Virginia from 1692 to 1698; but his answers were
either evasive or otherwise unsatisfactory. Francis Nicholson was then
returned to the colony as Governor in 1698 with instructions for a "new
method of granting land in Virginia." To prevent land from being
patented without being cultivated, to encourage trade, and to increase
royal revenue, land title was not to be obtained "by merely importing or
buying of servants"; rather anyone who would seat and plant vacant lands
was to receive 100 acres for himself and the same amount for each
laborer that was brought in or for whom arrangements were made for
importation within three years. The annual quitrent was to be two
shillings for 100 acres provided the full number of laborers were
brought in within the three-year period; if, however, full compliance
had not been made, ten shillings was to be paid annually for each 100
acres for which there was no worker or the size of the grant was to be
reduced proportionally. On the other hand, if the number of laborers,
including members of the family, was increased beyond the original
number proposed, the owner was entitled to an additional 100 acres for
each extra worker.
Governor Nicholson was instructed to "consider and advise with the
Council and Assembly" about putting these proposals into effect and
about overcoming any difficulties that might exist because of the
current laws of the colony. But instructions to the royal Governor was
one thing; putting these instructions into effect was quite another.
Neither the Council nor the Burgesses were willing to grapple directly
with land reform and no action was taken by the two bodies to implement
the recommendations of the Board of Trade. Governor Nicholson on his own
ordered that no more headrights be issued for the importation of
Negroes. As to the sale of headrights by the secretary's office which
Nicholson found to be still prevalent, the practice was not eliminated
completely. As a substitute measure which arose over the problem of land
taken up in Pamunkey Neck and on the south side of Blackwater Swamp, the
Governor and Council in 1699 authorized the acquisition of land by
"treasury right," stating that title to fifty acres of land would be
granted for the payment of five shillings sterling to the auditor. Thus
during the terminal year of this study, we find the significant
reappearance of sale of land by "treasury right" which increased in
importance as the eighteenth century progressed. Grant by headright
continued immediately to account for the great majority of land patents
issued, but after the first quarter of the eighteenth century it
gradually fell into disuse.
Being unable to inaugurate the proposed plan for land reform of the
Board of Trade, Nicholson turned to the improvement of collection of
quitrents as the most feasible means of achieving the approximate goal.
Payment of rent was an acknowledged requirement, even though frequently
evaded in the seventeenth century; and Nicholson proposed a stringent
collection of quitrents in arrears in order to force the return of
unused land to be patented by others who would actually occupy and
cultivate the vacant areas. Improvements were made in the sale of
tobacco received as quitrents, and the rent roll of 1704/05 was an
improvement over previous ones. Yet many loopholes still existed in the
system, and Nicholson's attempts to make further reforms were hindered
by the arguments that ensued with leading Councilors. His second term as
executive for Virginia came to an end in 1705.
CHAPTER FIVE
The Northern Neck
Before completing this study of seventeenth-century land grants, a brief
analysis will be made of the nature of the land system in the Northern
Neck with some attention given to the major ways in which it differed
from the remainder of Virginia. The included area reached from the
Potomac River south to the Rappahannock River and from the headwaters of
these two streams in the western part of the colony to Chesapeake Bay.
The separate provision for the area went back to the days of exile in
France of Charles II following the execution of Charles I in 1649. As a
reward to those cavaliers who had been faithful to the Stuart regime,
Charles II exercised his royal prerogative by making a grant of the
portions of tidewater Virginia that were not seated. In the year of the
execution the Northern Neck was granted to the following seven
supporters of the King: Lord John Culpeper, Lord Ralph Horton, Lord
Henry Jermyn, Sir John Berkeley, Sir William Morton, Sir Dudley Wyatt,
and Thomas Culpeper. Efforts of the representatives of this group were
frustrated in Virginia by the suspension of royal government, and
therefore the proprietary charter was ineffective for a time. It had,
however, been recorded in chancery in 1649 and was revived after the
restoration of Charles II to the throne. In 1662 and again in 1663
Charles II ordered the Governor and Council of Virginia to assist the
proprietors in "settling the plantations and receiving the rents and
profits thereof." But portions of the area had been seated since 1645,
and legal obstructions were brought forth by Virginia planters and the
Council to defeat the efforts of the proprietors.
A second appeal to the King led to a solution maneuvered in part by the
Virginia resident agent in London, Francis Moryson. The original patent
of 1649 was surrendered and a new charter was issued on May 8, 1669, to
the Earl of St. Albans, Lord John Berkeley, Sir William Morton, and John
Trethewy. The new document required the recognition of grants in the
Northern Neck made by the Governor and Council prior to September 29,
1661, and it limited the title of the proprietors to that land which
would be planted and inhabited within twenty-one years. The political
jurisdiction of the area was still under the Virginia government. The
laws of the colony were to remain operative, and in effect the grant was
"to create a subordinate fief or proprietorship within Virginia." But
considerable confusion prevailed over the retroactive recognition of
grants, and many landholders sought confirmation of their ownership.
"Besides there are many other grants," stated Governor William Berkeley,
"in that patent inconsistent with the settlednesse of this government
which hath no barr to its prosperitie but proprieties on both hands, and
therefore is it mightily wounded in this last, nor have I ever observed
anything so much move the peoples' griefe or passion, or which doth more
put a stop to theire industry than their uncertainty whether they should
make a country for the King or other proprietors."
The confusion that existed was further confounded by the grant of
Charles II on February 25, 1672/73, of all of Virginia for thirty-one
years to Lord Arlington and to Lord Thomas Culpeper, son of one of the
original patentees of the Northern Neck by the same name. These two
proprietors of the whole colony were to control all lands, collect
rents, including all rents and profits in arrears since 1669, and
exercise authority that sprang from grants previously made. Up until
1669 amid all the controversy over control of the Northern Neck, grants
were regularly made by the local government on the basis of headrights
as revealed in the land patent books. After that date the number
decreased; and in March, 1674/75, the first land grant of 5,000 acres,
later George Washington's Mount Vernon, was issued to Nicholas Spencer
and John Washington of Westmoreland in the name of the proprietors with
the common seal being affixed to the grant by Thomas Culpeper and
Anthony Trethewy. By this date Thomas Culpeper had obtained from the
proprietors of 1669 recognition of one-sixth interest in the Northern
Neck for him and his cousin on the basis of their fathers having been
original patentees.
Opposition to the proprietary grant of the Northern Neck in Virginia led
to efforts of the Assembly, encouraged by Governor William Berkeley, to
buy out the rights of the proprietors. Apparently the proprietors were
willing to sell and set the price of £400 each for the six shares then
held in the charter. Negotiations to complete the transaction were
interrupted by the outbreak of Bacon's Rebellion, and the status of the
proprietary grant hung in suspension. Meanwhile, Thomas, Lord Culpeper
was appointed Governor of Virginia but did not arrive in the colony
until 1680. The next year Culpeper bought up the proprietary rights in
Virginia, both the rights of the other proprietors in the Northern Neck
and the rights of Lord Arlington for all of Virginia. In 1684, however,
he gave up the Arlington charter of 1673 to the crown in return for an
annual pension of £600 for twenty-one years.
Lord Culpeper retained the Northern Neck charter and made efforts to
encourage settlement of the area. But the terminal date of the
twenty-one year period stipulated in the charter of 1669 was
approaching, and he appealed for a renewal of the grant on the basis
that the amount of land intended by Charles II had not been taken up.
Considering the restriction an impracticable one, King James II issued a
new charter in 1688 with Lord Culpeper as the sole proprietor and with
no time limit specified. Through changes and additions prompted by
Culpeper's knowledge of Virginia's geography, the area of the grant
included in the Northern Neck was substantially enlarged over the
boundaries stated in the previous charters of 1649 and 1669, the
additions later being interpreted as extending Culpeper's claim beyond
the Blue Ridge Mountains to the foot of the Alleghenies. The area as
outlined in 1688 was as follows with the additions to the former
descriptions shown in italics:
All that entire tract, territory or parcel of land situate, lying
and being _in Virginia_ in America and bounded by and within the
_first_ heads or _springs_ of the rivers of Tappanhannocke alias
Rappahanocke and Quiriough alias Patawomacke Rivers, the courses of
the said rivers, _from their said first heads or springs_, as they
are commonly called and known by the inhabitants and descriptions
of those parts, and the Bay of Chesapoyocke, together with the said
rivers themselves and all the islands within the _outermost_ banks
thereof, _and the soil of all and singular the premisses_.
Soon after receiving this third charter, Lord Culpeper died on January
27, 1688/89. Despite efforts that were again made by the colony to
eliminate the proprietary grant, it was confirmed to Culpeper's
survivors and passed by marriage to the Fairfax family.
After the 1669 charter, the proprietors opened an office in the colony
and an agent was designated to handle land grants and collect fees. The
scant records that survive indicate that from 1670 to 1673, Thomas
Kirton was agent in the land office in Northumberland; from 1673 to
1677, William Aretkin was appointed the proprietor's "agent in
Virginia"; and from 1677 to 1689, Daniel Parke and Nicholas Spencer were
agents in the land office in Westmoreland.
Beginning in 1690 land patents in the Northern Neck were entered
separately and the grant books that have survived give a good account of
the land policy under the proprietors. Philip Ludwell served as agent
from 1690 to 1693 and began an orderly handling of the proprietor's
interest at the land office in Westmoreland. Throughout his term as
agent he used a form for land grants in establishing his authority which
reviewed a part of the checkered history of the Northern Neck. The
introductory portion of this form was as follows:
_Whereas_ King Charles the Seacond of ever blessed memory by his
letters pattents under the broad seale of England beareing date at
Westminister the eighth day of May in the one and twentyeth yeare
of his reigne Annoqe Dom. 1669, His Matie was gratiously pleased to
give graunt and confirme unto Henry then Earle of St. Albons, John
Lord Berkley, Sir William Morton, Knt., & John Trethewy, Esqr.,
there heires & assignes all that intire tract territory or parcell
of land lyinge & being betweene the two rivers of Rapah. and
Patomack and the courses of the said rivers and the Bay of
Chesapeake, as by the said graunts, recourse beinge had there unto,
will more at large appeare, and
_Whereas_ all the rite and title of in and to the said lands &
premisses is by deed enrold and other suffentient conveyance in law
conveyed and made over to Thomas Lord Culpeper, eldest sonn & heire
of John late Lord Culpeper, his heires & assignes for ever, who is
thereby become sole owner and propriator of the said land in fee
symple, and
_Whereas_ Kinge James the Seacond hath beene gratiously pleased by
his letters pattents bearinge date at Westminister the 27th day of
September 1688, and in the fourth yeare of his Maties. reigne, to
confirme the said graunt for the said tract or parcell of land to
the said Thomas Lord Culpeper his heires & assignes for ever, as by
the said graunt, relation beinge there unto had, will more at large
appeare
_And_ the said Thomas Lord Culpeper he beinge since deceased all
the rite title and interest of in and to the said tract of land
lawfully desendinge on the Honorble. Mrs. Katherine Culpeper sole
daughter and heire of the said Thomas late Lord Culpeper, and
Allexander Culpeper Esqr. who cometh in part propriator by lawfull
conveyance from Thomas late Lord Culpeper, and confirmed by the
said Mrs. Katherine Culpeper, who are thereby now become the true
and lawfull propriators of the said tract or territory, and
_Whereas_ the said propriators have thought fitt under there hands
& seales to depute me Phillip Ludwell Esqr. with full power and
authority to act in the prmisses. persuant to the powers granted by
there said Maties. as fully & amply to all intents & purposes as
they the said propriators them selves might or could doe if they
were personally present,
NOW KNOW YEE therefore....
The provisions in the fourth paragraph above designating Mrs.
Katherine Culpeper and Alexander Culpeper as "the true and lawfull
propriators" were obsolete after the former married Lord Fairfax
while Ludwell was still agent. By law the husband also became a
proprietor and should have been added to the list. This omission was
corrected by George Brent and William Fitzhugh, the two agents who
succeeded Ludwell in 1693 and continued to serve during the 1690's
in the land office at Woodstock in Stafford County. In a much
simplified form, Brent and Fitzhugh merely listed the proprietors
including the husband as follows:
Margarett Lady Culpeper, Thomas Lord Fairfax, Katherine his wife
and Alexander Culpeper Esquire, proprietors of the Northern Neck
of Virginia....
The grants made by the various agents of the proprietors in the Northern
Neck were not substantially different in nature from those held under a
Virginia land patent. Both tenures reflected the feudal law of the
manor. The proprietors held their land in free and common socage, and
the planters in the Northern Neck paid quitrents and fees to the
proprietors rather than to the crown.
While the nature of the tenure was similar, there was a marked
difference in the methods of obtaining a grant. Instead of the headright
which we have seen was the basis for Virginia land grants during most of
the seventeenth century, the proprietors turned to what they considered
the more practical procedure--acquisition of title by purchase, or the
"treasury right." To obtain title to land the individual paid a
"composition" which was established at a uniform rate. For each 100
acres in grants less than 600, the price was five shillings; for 100
acres in grants more than 600, the price was increased to ten shillings.
Payment was permitted in tobacco which was valued at the rate of six
shillings for every 100 pounds in 1690. Such a provision could permit
the acquisition of large holdings without the manipulations that were
practiced under the headright system.
In the provision for quitrents, the two areas were similar. The amount
of the quitrent in the Northern Neck was the same as elsewhere in
Virginia--two shillings annually for 100 acres. Under agents Brent and
Fitzhugh one exception occurred with the attempt in 1694 to double the
quitrent and thereby maintain the same scale as was customary in
Maryland at the time. But few grants have been found to indicate the
agents succeeded to any extent in establishing the higher rate.
Relative to requirements for seating to validate the claim, the two
areas followed a different course as the seventeenth century progressed.
We have previously noted the three-year "seating and planting"
requirement for other Virginia patents. Similar provisions were included
in the first proprietary grants as revealed in the earliest patent in
1675. But beginning with the grant for Brent Town in 1687, the seating
requirement was omitted and this precedent was followed for all
subsequent proprietary grants in the Northern Neck in the seventeenth
and eighteenth centuries.