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Blackstone’s Commentaries:
with Notes of Reference (1803)

St. George Tucker

VOLUME 3, NOTE D
The Manner of Obtaining Grants of Land, under the Commonwealth of Virginia

HERE it may be proper to notice the mode of obtaining grants of land from the commonwealth of Virginia.

The rights upon which such grants might be obtained, at the time of opening the commonwealth’s land office were noticed before. Appendix note A. It only remains to mention the mode of proceeding in order to complete such right, by obtaining a patent for the land.

By the act of May, 1779, c. 13, any person may acquire title to so much waste and unappropriated lands as he may desire to purchase on paying the consideration of forty pounds (paper money, but now fixed at two dollars in specie) for every hundred acres, and so in proportion; and obtaining a certificate thereof from the auditor of public accounts; which being lodged in the land office the register grants a printed warrant under his hand, and the seal of his office, specifying the quantity of land, and authorizing any surveyor duly qualified to lay off and survey the same; which warrants shall be always good and valid until executed by an actual survey, or exchanged as the act directs. The person having the land warrant must lodge it with the chief surveyor of the county, wherein the lands, or the greater part of them lie; and the party shall direct the location so specially and precisely, as that others may be able with certainty to locate other warrants on the adjacent residuum; the location must bear date the day on which it is made, and must be entered in the surveyor’s book, in which no blank leaves or spaces must be left. If several persons apply to locate lands at the same time, they shall be preferred according to the priority of the dates of their warrants; but if all are dated on the same day, the surveyor must settle the priority by lot. Every surveyor must at the time of making entries for persons not inhabitants of the county, appoint a time for surveying their land, and give notice thereof in writing to the persons making the entry: … the chain-carriers must be sworn by the surveyor, and the surveyor must see that his survey is bounded by marked trees, except where a water-course or ancient marked line shall be the boundary; and shall make the breadth of each survey at least one third of its length in every part, unless where it may be restrained on both sides, by mountains unfit for cultivation, by water courses, or the bounds of land before appropriated…. A fair plat and certificate of such survey must within three months be delivered to the party, with the quantity of land, and its boundaries, whether natural or artificial, and the name of the persons, whose former line is made a boundary, therein expressed. The plat and certificate of such survey, together with the
warrant on which the lands were surveyed, are to be returned to the land-office, within twelve months, at farthest, (which time by a great variety of subsequent acts, has been enlarged from time to time,) and on failing so to do, or if the breadth of the plat be not one third of its length, except in the cases before mentioned, any other person may enter a caveat in the land office against issuing a grant, expressing therein for what cause the grant should not issue: or if any person obtains a survey of lands to which another has by law a better right, the latter may in like manner enter a caveat, to prevent the former obtaining a grant till the title can be determined. The proceedings upon these caveats, will he noticed in the third volume. The defendant within three months, and the plaintiff, or person entering the caveat, within six months, after a judgment in his favor, must deliver a copy thereof into the land office, or the land may be caveated again by any other person, for that cause; upon which subsequent caveat the same proceedings shall be had, as upon the original. Due returns in all these matters being made into the land-office, the register, within not less than six, nor more than nine months, shall make out a grant, in the form prescribed by the act, in which no reservation, or condition whatsoever is expressed. This grant is endorsed by the register, and then signed by the governor, and sealed with the seal of the commonwealth, and when recorded, is delivered to the grantee, or his order. Such, generally, are the requisites for obtaining a grant of land from the commonwealth of Virginia. It will readily occur to every reflecting mind, that they are neither calculated to promote population, nor to secure the proprietors of land in the peaceable possession of their purchases; nor even to procure for the state an adequate compensation for the lands granted. The consideration of forty pounds per hundred acres, at the time it was fixed, was not more in value than two dollars, the present price. This is exactly the hundredth part of the price at which the lands belonging to the United States are to he sold, at the lowest rate. So that on one side of the Ohio a man may take up lands from Virginia at two cents per acre, whilst lands of equal quality and situation on the opposite side of the
river command the price of two dollars. Such a waste of the public treasure, uniformly persisted in for near twenty years, bespeaks infatuation in the advisers of such destructive measures. Population, also, must be greatly retarded by grants of principalities, and seigniories, in extent, to persons who propose to themselves no other object in obtaining them, than to dispose of them to some other speculator, who in his turn consigns the patent to another of the same fraternity.

Patents for lands in Virginia, land-warrants, military rights to land, certificates of survey, nay, even bonds to procure, survey, and patent lands, have, for the space of the last ten or twelve years, become a species of mercantile paper, passing from hand to hand, sometimes in a depreciated, and sometimes in an opposite state, and contributed to swell the vast influx of paper money that has deluged the United States for some years past. The evil has not rested here; emissaries have been dispatched to every part of Europe with bales of these patents; fictitious plats, and maps of the country, have been offered to the public eye; rivers and streams have been made to flow where nature has denied water; mountains have been sunk into meadows, and rocks as barren as the sandy deserts of Zaara, have been -represented as possessing the fertility of the banks of the Nile. Thousands of ignorant and innocent persons have been defrauded, and, with their families, plunged into irretrievable ruin by these nefarious practices. The facility of acquiring patents for such a vast extent of territory, was greatly promoted by an act passed in June, 1788, of which, as there is scarcely a copy of it remaining in print, I shall subjoin a copy.

    “An act to authorize the Governor to issue certain grants,

    PASSED THE THIRTIETH JUNE, 1788.

    “Whereas sundry surveys have been made in different parts of this commonwealth, which include in the general courses thereof, sundry smaller tracts of junior claimants, and which, in the certificates granted by the surveyors of the respective counties are reserved to such claimants; and the governor or chief magistrate is not, authorized by law to issue grants upon such certificates of surveys.

    “For remedy whereof, Be it enacted by the general assembly, that it shall, and may be lawful for the governor to issue grants, with reservations of claims to lands, included within such surveys. Any thing in any law to the contrary notwithstanding.”

The ostensible reason for making this act, was, that at. every person was at liberty to locate his warrants wherever he pleased, locations were not made adjacent to each other, so that considerable tracts of unlocated lands were sometimes interspersed with small parcels which had been taken up and patented, and those who entered for the intermediate unappropriated lands, were sometimes obliged to go quite round the others, so as to include them within the general courses of their patents. This could never have happened if the law had either required the locations to be made adjacent to each other, or had limited the quantity of land to be granted in any one patent, to any reasonable number of acres. But the secret reason for proposing the law, which was made in consequence of a petition from some individuals, appears to be this: Some rapacious land-mongers, not satisfied with getting their lands for almost nothing, but the expense of surveying, and wishing to grasp as much as possible at once, without even the expense of an actual survey, had made their entries by referring to some well known natural boundary, as from the mouth of one river to it’s head, or where another river, or water course, united it’s stream with the former, thence up the second river, to another well known point, from thence by a straight line of five, ten, or fifteen miles, to another water course, and down the same, to another well known point, and from thence by a straight line to the beginning, including all the lands within these limits, with a reservation of prior claims, of which there might be an hundred or five hundred, founded upon prior patents. In some entries the courses referred to a straight line to be drawn from the top of one mountain, to the top of another, and from thence to a third, and so on. As none of these entries were made according to law which required, that every location should be so especially ami precisely made, as that others might be enabled to locate other warrants on the adjacent residuum, it was necessary for the purposes of these speculators, to procure that act to be passed, for which a plausible reason might be assigned, whilst the true object was kept out of sight. By these means, patents were easily obtained for millions of acres, without the trouble, in many
instances, of an actual survey, or, with the trouble of surveying one or two lines at most. The patentees thus possessed an immense extent of territory to appearance, whilst perhaps in reality there was not a single acre of arable land within their bounds, which was not comprehended in the reservation of prior claims. And even if there should happen to be any good land remaining, innumerable other surveys, and endless law-suits, could alone determine the spot, which the inclusive patentee was entitled to;. whereas every patent ought to carry upon the face of it all the evidence necessary to the complete knowledge of the thing thereby granted. But how can this be the case where there is an indeterminate exception of prior rights, which are not specifically described, and where, even the names of the persons whose rights are thus excepted do not appear? These things, whenever the country comes to be settled (if that event, under such unfavorable circumstances, should ever take place) must produce endless contention, and controversies between those who may be unfortunate enough to derive their titles from such an impure source. In 1795, the legislature seems to have discovered the pernicious tendency of the last mentioned act, and enacted, “that the register of the land office be restrained from receiving into his office, any plat and certificate of survey, which evidently comprehended the rights of others, and shall bear date after the first day of January, 1796, notwithstanding any deductions or reservations; and that all such surveys thereafter shall be deemed illegal and void.” 1795. c. 9. Unfortunately the remedy is too late to prevent the evils of which the former act was the fruitful parent. The act of 1796. c. 47, declares all entries for lands, whatsoever, absolutely null and void, unless the lands be surveyed within two years from the first day of November, 1796.

For a more intimate acquaintance with this subject, the student must consult the acts of May, 1779, c. 12, and 13. Oct. 1T83, c. 32, Edi. 1785, Edi. 1794, c. 86, and the numerous acts referred to in the appendix to this volume, Note A, the contents of which it is impossible to abridge.

Grants of land for the United States may be obtained for lands lying in the territory north-west of the river Ohio, and above the mouth of Kentucky river, in the manner prescribed by L. U. S. 4 Cong. c. 50.

The act directs that the ungranted lands be laid out by north and south lines, and by others crossing them at right angles, so as to form townships of six miles square, except where the line of the late Indian purchase, or of tracts before surveyed, or patented, or the course of navigable rivers may render it impracticable. The townships, alternately, are to be subdivided into sections, by parallel lines, containing 640 acres each, as near as may be, and the sections numbered; all salt springs, and four sections at the center of every township are to be reserved for the future disposal of congress. Whenever seven ranges of townships shall be surveyed pursuant to the directions of the act, the sections of 640 acres shall be offered for sale at public vendue, and the remaining townships in tracts of one quarter of a township lying in the corners thereof, and excluding the four central sections and other reservations, shall be sold in like manner, with a proviso that no part of the lands shall be sold for less than two dollars per acre.1 The purchaser at the time of the sale must deposit a twentieth part of the price, which is to be forfeited if one half the price, including the deposit, be not paid in thirty days; and upon such payment being made, he is to have one year’s credit for the remainder; but on failure of payment the sale is to be void, and the money paid, forfeited to the United States, and the lands again disposed of. But on complying with the terms of the sale, the purchaser is to receive a patent for the land, from the president of the United States, which patent is to be countersigned by the secretary of state, and recorded in his office. This act has been amended…. 6 Cong. c. 55.

It would be an insult to the meanest capacity to suppose it incapable of discriminating between this regular system, and that which we have just before noticed. The effects will be correspondent. The United States will obtain as much for one acre of their land, as Virginia gets for an hundred. Whoever wants to set down in peaceable possession of his lands; to improve them, and to transmit them to his posterity will turn his eyes to the northwest of the Ohio for an establishment. Those who wish only to deceive and defraud others, who buy, merely to sell; who regard not in what miseries or perplexities they may involve ignorant persons, and foreigners, will, until the bubble bursts, continue to traffic in parchment, without inquiring into, or regarding the consequences, further than they are likely to affect some future speculation.

Another mischief not yet mentioned is the probability that the same lands may be patented by a number of different persons, whose locations may interfere with each other, by being made in a desert, where their several boundaries may cross each other an hundred times, without being noticed by the parties making the entries, or regarded by those employed to survey them. This in a country where there are no settlements, or but very few, and those remote from each other, is an inconvenience scarcely to have been avoided,-but by the most exact regulations.

By the act of 1797, c. 10. which recites, that many persons possessing lands in this commonwealth have been harassed and vexed by the location of warrants on the same, as if they were still waste and unappropriated, although the present possessors thereof, and those under whom they claim have held the same quietly and peaceably under the former government, and paid quit rents and taxes for more than thirty years; and it being unreasonable to presume, that persons who have been thus long possessed under those circumstances, should not have obtained patents for their lands, which may have been casually lost; it is therefore enacted, that no entry, or location on any lands in this commonwealth, which have been settled thirty years prior to the date of such entry or location, and upon which quit-rents, or taxes can be proved to have been paid at any time within the said thirty years shall be deemed valid; and any title which the commonwealth may be supposed to have is thereby relinquished. But that act shall not extend to any case of an entry or location regularly made according to law, previous to the passing thereof, nor be construed to affect the right of the commonwealth to lands, forfeited by non-payment of taxes: or to alter or change the construction of the act for limitation of real actions.


NOTES

     1.    A map of the whole territory, as surveyed pursuant to this act, may be found in the Atlas to Carey’s edition of Outline’s Geography.