Note A, The Tenure of Lands in Virginia

QUEEN ELIZABETH, by letters patent bearing date March 25, 1584, licensed sir Walter Raleigh to search for remote heathen lands, not inhabited by Christian people, and granted to him in fee simple, all the soil within two hundred leagues of the places where his people should within six years make their dwellings, or abidings, reserving only to herself, and her successors, their allegiance and one fifth part of all the gold and silver ore they should obtain. After some unsuccessful attempts to settle a colony on Chesapeake Bay, Sir Walter granted to Thomas Smith and others, in consideration of their adventuring certain sums of money, liberty of trade to his new country, free from all customs or taxes for seven years, except the fifth part of gold or silver ore to be obtained, and stipulated that he would confirm the deed of incorporation which he had given in 1587. Sir Walter at different times sent five other adventurers to Virginia. In 1603, he was attainted. Some gentlemen and merchants supposing that by his attainder, the grant to him was forfeited, petitioned James the first for a new grant of Virginia to them. He accordingly executed a grant to Sir Thomas Gates and others, under which a settlement was effected at Jamestown the same year. This grant was superceded by letters patent dated May 1609, from the same king to the earl of Salisbury and others, granting to them and their successors by the name of the treasurer and company of adventurers, etc. for the first Virginia colony, all the lands in Virginia, to be held of the king and his successors, in “free common socage and not in capite” yielding one fifth part of the gold and silver ore to be therein found, for all manner of services. Afterwards on the 12th of March 1612, the king granted another charter, confirming all former grants. In 1624, the king suspended the company’s powers by proclamation, and his son Charles the first took the government of the colony into his own hands. The northern parts of the colony were granted away to the lords Baltimore and Fairfax; the former obtaining the rights of separate jurisdiction and government, settled the colony of Maryland. In 1650, the parliament having deposed the king, and succeeded to all his powers, assumed a right over the colonies; the colony
of Virginia which had maintained an opposition to the powers of Cromwell and the parliament, in 1651, agreed to lay down their arms, having previously secured their most essential rights by a solemn convention, which Mr. Jefferson has given us at large in his notes on Virginia. Among these it is agreed, “that all patents of land granted under the colony seal by any of the precedent governors, shall be and remain in their full force and strength, and that the privilege of having fifty acres of land for every person transported into that colony shall continue as formerly granted.” King Charles the second, by his charter, dated October 10, 1676, declares and grants, that for the encouragement of such of his subjects as shall go to dwell in Virginia, there shall be assigned out of the lands not already appropriated, fifty acres for every person so going thither to dwell, as has been used and allowed since the first plantation. How the lands thus granted by the authority of the government of England were acquired, no authentic documents, that the editor has had access to, ascertain. But Mr. Jefferson assures us, “that the lands in this country were taken from the Indians by conquest, is not so general a truth as is supposed. I find in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country; and many more would doubtless be found, on further search. The upper country we know has been acquired altogether by purchases made in the most unexceptionable form.” Notes on Virginia, articles aborigines, and constitution.

The mode of acquiring lands in the earliest times of our settlement was by petition to the general assembly. If the lands prayed for were already cleared of the Indian title and the assembly thought the prayer reasonable, they passed the property by their vote to the petitioner, etc. The company also, sometimes, though very rarely, granted lands, independently of the general assembly. As the colony increased, it was thought better to establish general rules by which all grants should be made, and to leave the execution of them to the governor, for which purpose, what are usually called the land-laws were passed, and from time to time amended. According to these, lands were to be located and surveyed by a public officer: the breadth of the plat was to bear a certain proportion to its length; the grant was to be executed by the governor, and the lands were to be improved in a certain manner, within a given time.¹ Hence, according to Mr. Jefferson, the state claimed an exclusive power to take conveyances of the Indian right of soil, since according to these regulations an Indian conveyances alone, could give no right to an individual. Such conveyances have accordingly been declared void by law;² and the law has in this respect been confirmed by the constitution of the commonwealth. By the act of 1662, c. 78, the bounds of lands were to be renewed every fourth year, by the view of the neighbors. This admirable provision has by several subsequent acts³ been continued to the present day, and where it has been complied with, very few disputes about boundaries arise; but there is reason to apprehend that the execution of it has been very much neglected of late years, especially in those counties which have been settled, and the lands therein granted, since the commencement of the revolution. The several acts of 1680, c. 21; 1710, c. 13. and 1748, c. I. confirm all patents antecedent to the first day of June 1710. The act of 1736, c. 3. confirms the titles of the grantees of land held under lord Fairfax in the northern neck of Virginia; and the act of 1748, c. 41, confirms the grants of the crown
within the same limits, antecedent thereto.⁴ By the act of May 1779, c. 13, the reservation of royal mines, of quit-rents, and all other reservations and conditions in the grants of land under the former government, are declared null and void; and that all lands thereby granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever; in the same manner with the lands thereafter to be granted by virtue of that act; and that ap petition for lapsed lands be admitted or received on account of any failure, or forfeiture whatever, incurred after the 29th day of September, 1775.

By the last mentioned act the land office of the commonwealth was established, and the terms and manner of granting waste and unappropriated lands were ascertained. The legislature at the same time passed an act⁵ for adjusting and settling the titles of claimers to unpatented lands previous thereto. This act declared,

I. That grants might issue for lands founded upon any of the following rights or claims, viz. 1. Upon all surveys of waste and unappropriated lands upon any of the western waters, made before the first day of January 1778. And 2. upon all surveys made upon any of the eastern waters, at any time before the end of that session of the general assembly, by any county surveyor commissioned by the masters of William and Mary College, acting according to the laws and rules of government then in force, and founded either upon,

1. Charter rights:

2. Importation rights; duly proved, and certified according to the ancient usage, as far as relates to indebted servants, and other persons, not being convicts. The ancient usage in this case seems to have been for the party to prove his title, or right, before the governor and council, or to produce a certificate from the county court, to the secretary’s office;

3. Upon treasury rights; for money paid the Receiver General, duly authenticated; upon entries on the western waters, regularly made before the 26th day of October 1763.

4. Or, on the eastern waters, at any time before the end of that session of assembly, for tracts of land not exceeding 400 acres, according to act of assembly, upon any order of council; or entry in the council books, and made during the time in which it shall appear that such order or entry remained in force, the terms of which have been complied with, or the time for performing which, is unexpired.

5. Or upon any warrant from the governor for the time being for military service, in virtue of any proclamation, either, 1. from the king of Great-Britain, or 2. from any former governor of Virginia; all which rights are by that act declared good and valid: but all surveys of waste and unpatented lands, made by any other person, or upon any other pretense whatsoever are declared null and void. Provided that all officers or soldiers, their heirs or assigns claiming under the late governor Dumviddie’s proclamation of a bounty in lands to the First Virginia Regiment, and haying returned to the secretary’s office surveys made by virtue of a special commission from the president and masters of William and Mary College, shall be entitled to grants thereupon; and all officers and soldiers, their heirs and assigns under proclamation wan-ants for military service, having located lands by actual surveys, made under such special commission, shall have the benefit of such locations. Every person, his heirs and assigns, claiming lands under any of the before recited rights, and under surveys made as before mentioned, against which no caveat was theretofore legally entered, should upon the plots and certificates of such survey being returned to the land office, together with the rights, entry, order, warrant, or authentic copy thereof upon which they were respectively founded, within twelve months after the end of that session of assembly (which period has been from time to time extended by a multiplicity of acts) be entitled to a grant for the same, in the manner prescribed by that act.

II. Grants might be issued upon settlement rights accruing, 1. To all persons who before the first day of January 1778, have really and bona fide settled themselves or their families; 2. Or, at his, her, or their charge have settled others, upon any waste and unappropriated lands on the western waters, to which no person has any legal right or claim, allowing for every family so settled four hundred acres of land, or any smaller quantity. 3. Such as have settled in villages or townships, are allowed six hundred and forty Acres, whereon such villages are situate, and to which no person has a legal previous claim, with the like quantity of four hundred acres for every family: but no family was entitled to the allowance granted by that act, unless they had made a crop of corn, or had resided one year, at the least from the time of the settlement.⁶

III. Grants for lands might be obtained under the act of the same session, c. 13. By the officers and soldiers on the continental, or state establishment, to whom a bounty in lands had been engaged, either by ordinance of convention, or any laws of the commonwealth; the proportions of which by an act passed in October, 1779, c. 31, were fixed as follows; to a colonel 5000 acres; a lieutenant colonel 4500 acres; a major 4000 acres; a captain 3000 acres; a subaltern officer 2000 acres; a non-commissioned officer who having enlisted for the war, should serve to the end thereof 400 acres; a soldier or sailor under the like circumstances 200 acres; a noncommissioned officer enlisted and serving for three years, 200 acres; and a soldier or sailor under the like circumstances, 100 acres; with the like provisions for the officers in the navy in proportion to their rank: and where any officer, soldier or sailor shall have fallen, or died in the service, his heirs, or legal representatives, should be entitled to his proportion of land. To satisfy these claims all the lands lying between the Green River and the Tennessee River from the Allegheny mountains to the Ohio River except the tract granted to Richard Henderson and Company were especially reserved, to give them the choice of good lands not only for the public bounty due to them for military service, but also in their private adventures as citizens.

IV. Any person might acquire title to so much waste and unappropriated lands as he might desire to purchase on paying the consideration of 40£⁷ (paper money, and since fixed at two hundred dollars) into the treasury of the commonwealth, in any part thereof, except within the limits of the Cherokee Indians, or on the northwest side of the Ohio, or on the lands reserved by law for any particular tribe of Indians, or on the lands granted by law to Richard Henderson and Company, or those reserved for the army, as before mentioned. By another act passed in May 1780, c. 2. a further reservation of all lands on the sea shores, the Chesapeake Bay, or on any river or creek, theretofore used as common, was likewise made.

It appears by the act of 1785, c. 36, that the issuing of land warrants had been before that time prohibited by resolution of the general assembly, which prohibition was by that act removed for a limited time, and has never since been repeated, that I can discover. In the same session two other acts c. 42, and 47, were passed; the first, for disposing of waste and unappropriated lands on the eastern waters; the price of which was fixed to 35£ the hundred acres: the second related to the lands within the Northern Neck, which the assembly appear to have supposed vested in the commonwealth on the death of lord Fairfax, and authorized grants of accordingly to the purchasers from lord Fairfax’s devisee appear to have relinquished their title to the lands so granted by the commonwealth. Sessions acts, 1796, c. 14.

V. Grants or patents for lands escheated to the commonwealth, might be obtained by any person purchasing the same, under an act passed in May 1779, c. 14, entitled “an act concerning escheats and forfeitures from British subjects,” whereby the purchaser should be entitled to the same fully and freely exonerated from the right, title, claim, and interest legal and equitable of any British subject whatsoever; and also of all and every person whatsoever, under any mortgage, the equity of redemption whereof had not been foreclosed, at the time of such sale. These titles were further confirmed by the act of October 1779, c. 39. And although by the treaty of peace, congress undertook to recommend to the several states that such estates might be restored, upon the purchasers being reimbursed, the price given for the same, yet the titles of the purchasers have not hitherto been shaken, or questioned.

VI. Lands forfeited to the commonwealth for non payment of taxes for the space of three years, might be granted to any person desiring to purchase the same, on payment of 15£ specie for every hundred acres, under the act of 1790, c. 5, and 1785, c. 42, therein referred to. The act of 1792. (Edi. 1794, c. 86,) raised the price to one hundred dollars, but now by the act of 1795, c. 9, any person desiring to locate such lands shall procure from the commissioners of the land tax, a certificate of the price at which the same stands charged, which being paid, and other requisites of the act complied with, the party shall be entitled to the commonwealth’s right therein.

This sketch of the land laws of the commonwealth may suffice in this place; the manner in which the grants of the commonwealth must be perfected, will be more properly considered hereafter. I shall conclude this note with referring to the laws, in general, which respect grants, or titles of lands from the commonwealth: they are so numerous that I may possibly have omitted several, there being no index to help such researches, and the titles being very frequently an insufficient guide. By the act of 1748, c. 1, Edi. 1769, all patents granted before the first day of June 1710, being confirmed, I shall only refer to that, and subsequent acts. Acts of 1769, c. 33; C. V. Art.20,21; Acts of May 1779, c. 12, §14; Oct. 1779, c. 2, 18, 21, 27; May 1780, c. 2, 7, 9; Oct. 1780. c. 11, 12, 27; March 1781, c. 10; May 1781, c. 22; Nov. 1781. c. 5, 13, 19, 29, 40, §4. 17; May 1782, c. 7, 18, 34, 39 §9, c. 47, 49; Oct. 1782, c. 1, 8. §4, 24. c. 13, 24, 30, 33, 34. 45; May 1782, c. 31, 36, 38, §9; Oct. 1783, c. 4, 18, 21, 29, 32, Edi. 1785; Sessions acts of 1784, c. 10, 14, 30, 34, 38, 39, 48, 71, 79; Sessions acts of 1785, c.31, 36, 39, 41, 42, 47, 67; Sessions acts of 1786, c. 3, 4, 11, 104; Sessions acts of 1787, c. 15, 40, 42, 46; June 1788, c. 4, authorizing inclusive patents; Oct. 1788, c. 4,20, 21; 1789, c. 34,39, 49; 1790, c. 1, 5,10, 13, 14; 1791, c. 4, 5,6, I4; 1792,c. 5, 7,8, 16, 20. Sessions acts; l793, c. 38. Sessions acts; 1794; c. 11,47; Sessions acts; Edi. 1794, c. 86; Sessions acts 1795,c. 9, 22; Sessions acts, 1796, c. 24, 47, 51, 52; See also the resolutions of the federal congress, August 14, and 27, 1776. Ordinance of congress, May 20, 1785, and July 13,1787, and L. U. S. A Cong. c. 30, 46. 5 Cong. 3. Sess.c. 135, 140; 6 Cong. I Sess. c. 8, 13,45, 55, 59. 2 Sess. c. 5, 2S; 7 Cong. 1 Sess. c. 30. 44.,…L. V. 1796, c. 14,24,47,51,52,60, 63; 1797, c. 10,13, 17,44; 1798, c. 20, 27; 1799, c. 50; 1800, c. 6, 52; 1801, c. 5, 7.