How Colonists Acquired Title to Land in Virginia

land patents were handwritten documents in the colonial era
land patents were handwritten documents in the colonial era
Source: Library of Virginia, patent for Wren, James. grantee (April 5, 1773)

The English who settled in Virginia starting in 1607 asserted that they owned the land. During the colonial period, individual colonist acquired real property primarily through grants by the Virginia Company, headrights, treasury rights, and military warrants.

The pre-existing ownership rights of the Native Americans, the current occupants, were dismissed. At various times the English stated simply that they owned the land through "right of discovery" and "right of conquest." Treaties were negotiated with different tribes in the 1600's and 1700's to extinguish Native American claims, but land was seized rather than purchased from the original inhabitants. The chain of title for parcels in Virginia starts with colonial records created by the English.

Charters issued by James I did acknowledge the land claims of the Spanish in the New World, based on prior settlement. The first charter issued to the Virginia Company in 1606 authorized the investors "to make Habitation, Plantation, and to deduce a colony of sundry of our People into that part of America commonly called VIRGINIA, but settlement was allowed only on territory "not now actually possessed by any Christian Prince or People."1

The Europeans who settled first at Jamestown were employees of the Virginia Company. The investors in that company controlled all the initial English land claims in the colony. That lasted less than a decade, after which land titles for individuals were established by treasury rights, headrights, creation of "hundreds," militia rights, and land grants.

The Virginia Company was not a successful investment. The Spanish had found gold in the Caribbean, then seized vast wealth from organized Native American societies in Mexico and Peru - but there was no gold on the Coastal Plain of Virginia, and the paramount chiefdom led by Powhatan offered no stores of mineral wealth to exploit.

After John Rolfe made a profit from shipping his crop of Nicotiana tabacum tobacco in 1614, the Virginia Company recognized that it might generate a positive return on investment from agriculture. If farming was the answer, then the company certainly had one of the key requirements: land. The Third Charter issued in 1611 had granted the company a block of land 400 miles in one direction (200 miles north and 200 miles south of Jamestown), plus all the land "from Sea to Sea West and North-west."2

Tobacco farming required large amounts of land because the plant exhausted key nutrients in the soil in just 2-3 years. New fields had to be cleared and planted regularly, so growing tobacco required owning large tracts of land.

At the same time as Rolfe revealed a basis for profit in Virginia, the company was struggling to find new workers willing to be transported across the Atlantic Ocean. Negative reports from returning colonists discouraged even the poor in England from choosing to go to Virginia. After the Starving Time of 1609-1610, Lord de la Warre (as governor) and Sir Thomas Gates (as first marshal) had turned Jamestown into an armed camp with military discipline. They issued Laws Divine, Moral, and Martiall to control the behavior of the company's employees and soldiers.

Growing tobacco was a labor-intensive operation; large numbers of workers were needed to plant, weed, and harvest the crop. Owning a massive block of land in Virginia generated no profit for the investors unless there were farmers growing tobacco on that land. The Virginia Company needed to increase immigration to Virginia, and to decrease emigration of servants who had completed their time of required service.

The company adapted. Investors retained dreams of finding valuable minerals or generating profits from manufacturing items in Virginia such as glass, but the revised business plan took advantage of the company's greatest asset - its ownership of a vast amount of fertile land.

In 1613, Governor Sir Thomas Dale began to grant three-acre parcels to colonists willing to stay after their seven-year indentures expired. Those who stayed could work for themselves on their private three-acre plots, rather than serve the company by working full-time on its common land.

In 1616, colonists in Virginia ("ancient planters") were given 50 acres in exchange for remaining rather than returning to England. Since the Virginia Company had no cash to distribute as a dividend in 1616, investors were also each given rights to claim 50 acres. Another 50 acres were granted for each new share purchased in the joint stock company, for twelve pounds ten shillings per share. The right to purchase land, in exchange for a payment of twelve pounds ten shillings into the company's treasury, established the principle of land sales for cash.3

Any additional investment in the company became a speculation on the value of the land, rather than on the potential for company profits from manufacturing, mining, or trading.

In 1617, the company declared that all new immigrants to the colony who paid their own costs for transportation would be rewarded with 50 acres of land. Immigrants unable to pay their own costs would also be worth 50 acres each, but the immigrant would not get that land.

For each new immigrant ("head"), the company granted a "headright" to survey and own 50 acres of land to the person who financed the trip. The headrights could be sold, so ship captains and could sail home with cash for investors rather than paper claims to land that they did not desire to own.

The "headright" system did not provide 100% free land to the initial investor. Transportation costs were as high as six pounds per person in the 17th Century.

Englishmen interested in a free trip to Virginia could sign contracts to provide seven years of labor, earning 50 acres of land at the end of their term of service. The opportunity to own land was the primary attraction for colonists to risk a trip across the Atlantic Ocean to the colony in Virginia in the Seventeenth Century. In England, social and economic mobility was limited. Few of the farmworkers had an opportunity to acquire land and enter the gentry class. Travel to Virginia was risky, but the chance to end up as a landowner provided strong motivation.

In 1618, the dividend was increased to 100 acres/share. Colonists who had financed their own trip to Virginia before 1616 were also given rights to claim 100 acres. To qualify, new colonists had to stay three years or die in Virginia before three years were completed. The first 50 acres would be distributed in an initial division of land, and the additional 50 acres would be distributed once the initial division of land was occupied by colonists:4

If they continue there three years or dye after they are shiped there shall be a grant made of fifty acres for every person upon A first division and as many more upon a second division (the first being peopled)

The Virginia Company also invited investors to create "particular plantations" or "hundreds" in the colony, separate from the company-managed communities such as Jamestown and Henricus. The company granted large amounts of land to investors willing to recruit settlers and establish new communities in the colony. Those communities would not be responsible to company officials; decisions made in Jamestown would not apply to the particular plantations.

The settlement of Bermuda set an example of providing investors some extra control over the settlements they sponsored. The island was surveyed and specific parcels of land called "tribes" (later called "parishes") were allocated to individual investors.

In Virginia, those who established particular plantations could also be company officials. The decision to create independent units within the colonies created confusing loyalties and conflicts of interest, but did stimulate some of the company's investors to provide new funding for colonization.

An investor who chose to fund a "particular plantation" rather than buy more shares in the Virginia Company was betting on the success of colonizing Virginia, independently from betting on the success of the Virginia Company. Tobacco could be grown profitably and shipped to market in Europe, and doing so on private land minimized the risks that the Virginia Company might not generate an overall profit.

to maximize profit from tobacco production, colonial investors acquired title to private parcels separate from the Virginia Company's lands
to maximize profit from tobacco production, colonial investors acquired title to private parcels separate from the Virginia Company's lands
Source: Colonial National Historical Park, National Park Service, Tobacco Production

By creating private land rights, the London Company traded total control over its land in exchange for profits from handling tobacco and collecting property taxes ("quitrents") at the rate of 2 shillings/100 acres. It was a long-term strategy. Collection of most quitrents was deferred initially to encourage new investment, and ensure there would be enough colonists to defend against Native American attack or repel a sea-based raid by a European rival.

The Virginia Company loosened its control even more in 1618. A faction of investors led by Sir Thomas Sandys outmaneuvered its opponents in the company. They forced Sir Thomas Smith out of the role of Treasurer, which was equivalent to Chairman of the Board and Chief Executive Office, and issued the 1618 Charter of Orders, Lawes, and Privileges.

That "Great Charter" was a set of instructions from the investors in London, not a fourth charter from the king. It gave greater responsibility for local government to the colonists, and authorize the first General Assembly which met in 1619. Under Sir Thomas Sandys, the company expected that granting land and freedoms to colonists would increase the population enough so investors could finally make a profit.5

Governor Wyatt issued patents to land based on headright claims until the Virginia Company failed. After Charles I took direct control of the colony in 1625, his appointed royal governors continued to issue headrights. The colony, rather than the private comany, collected the annual quitrents of 2 shillings/100 acres.

The award of 50 acres for everyone imported into Virginia incentivized people in England to sign indentures and spurred wealthy individuals to find and transport indentured servants to Virginia. Within 50 years, 70,000 people came to Chesapeake region.6

Servants would work 3-7 years clearing new land, moving the edge of English settlement further west into the North American continent and increasing the volume of tobacco exports. At the end of their term of indenture, the contracts usually required that the freed servant be given some basic clothing and farming equipment.

There was no automatic grant of land to immigrants. If an indentured servant had been transported by a investor who claimed the 50-acre headright, then that servant did not acquire title to any land despite their term of service.

Without land of their own, the freed servants had four choices. The first three were to return to England, negotiate a deal to work for someone else in exchange for support and wages, or find unclaimed land on the edge of settlement and become a squatter.

The fourth option was to purchase low-cost land (typically on credit), then "improve" it by cutting down the trees and preparing fields suitable for growing crops such as corn and tobacco. That was the dream of many of those who signed indentures, trading up to seven years of labor for the chance to become a landowner. Those who lived through their period of indenture struggled to become landowners, but the potential in Virginia was greater than that in England until the 1660's.

As the forested frontier was converted into farms, many of the servants managed to become landowners. In Virginia, they could provide their children a better opportunity at gaining wealth. The risks were high, but so were the rewards.

The former servants may have been cash poor, but they could buy land on credit from one of the many members of the gentry. The gentry were the wealthy top 5% at the top of Virginia's stratified society.

Some were "Cavaliers," supporters of King Charles I who had moved to Virginia during the English Civil War. They arrived with sufficient wealth to acquire large tracts of land, speculating that it would gain in value over time. The investment was successful when someone acquired title to large blocks of land at a low cost per acre, and then to found settlers willing to pay a higher price per acre for small parcels.

Abuses of the headright system allowed some people to expand legitimate claims. Some ship captains arranged for county officials to award headrights for sailors who came to Virginia but did not stay. Sometimes both a ship captain and a person paying the transportation costs obtained headrights for the same individual(s) transported to Virginia. In most straightforward corruption, a claim could be filed for more immigrants than actually arrived in Virginia and granted by the Secretary of the Colony in exchange for other favors.

Virginia planters who imported slave labor from the West Indies or directly from Africa were awarded 50 acres per slave, just as they were awarded 50 acres per indentured servant. Both large and small landowners imported slaves, or purchased them from ship captains who brought them to the colony for sale.

George Menefie was the first to claim a large number of headrights for one shipment of slaves, obtaining 1,150 acres for the 23 slaves he imported along with 37 other (white) servants in 1638. The headright claims for the indentured servants listed the names of the individuals, but the claims for slaves rarely identified individual slaves.7

The colony had an excess of land and a shortage of people. It was public policy to encourage population growth through immigration, and to induce immigration through promises of cheap land. This policy was not limited to the colonial era. The United States passed the Homestead Act in 1864, to provide free land and encourage immigration to the unsettled western area. The Homestead Law was not repealed until 1976, with passage of the Federal Land Policy and Management Act.

in the Northern Neck, Lord Fairfax could sell land in whatever sized parcels he wished, without regard to headrights or treasury rights
in the Northern Neck, Lord Fairfax could sell land in whatever sized parcels he wished, without regard to headrights or treasury rights
Source: Library of Virginia, patent for Crossthwait, William. grantee. (November 10, 1751)

Technically, the headrights system lasted from 1618 until cancelled by the General Assembly in 1779. Starting in 1699, after European immigrants became harder and harder to attract, the colony began to sell "treasury rights." They allowed purchasers to claim 50 acres for 5 shillings, without having to import an immigrant. 8

The process of converting a headright or treasury right into a deed of land ownership involved several steps. In theory, the process prevented invalid headright or treasury right documents from being used to acquire land.

The process started when the person claiming headrights went to a county court and got the justices to certify how many people had been imported. That certificate of importation would be provided to the Secretary of the colony in Jamestown or, after 1699, in Williamsburg. The Secretary then issued a document, a "right," certifying how many acres were authorized for survey. After 1699, a person could purchase a treasury "right" directly from the Secretary.

The documentation from the Secretary, the "right" based on importing people (headright) or a purchase (treasury right), would be delivered to the county surveyor. That person, or someone hired to do the work, would identify parcels matching the total acreage authorized. The county surveyor, an appointed official responsible to the county court, would deliver the survey to the Secretary in Jamestown/Williamsburg.

colonial surveys were simple documents, referencing features on the ground such as red oak trees
colonial surveys were simple documents, referencing features on the ground such as red oak trees
Source: Library of Virginia, survey for Wren, James. grantee (April 5, 1773)

The Secretary of the Colony prepared a "patent" (land deed, known later as a "grant") based on the survey. He kept one copy and forwarded another to the Governor. After the Governor approved the patent, the copy would be delivered to the new landowner.

The chain of title starts with the patent issued by the Secretary and bound into books at his office. Land was subdivided, re-surveyed, and re-sold over the years, but the Secretary was not involved in subsequent land transfers. Later deeds and surveys documenting new parcels and new ownership were recorded in the files of just the local county court.

Once a patent was issued, the land was supposed to be settled within a period of three years. Unless trees were cleared and crops planted, ownership was supposed revert back to the colony. That requirement was designed to spur settlement and deter land speculation. It may have affected individual "minor" grants, but land speculation was a major part of the gentry's acquisition of wealth and power throughout the colonial period.9

Those who obtained warrants, surveyed tracts, and actually acquired the documents which certified their exclusive ownership of a particular parcel (land patents), might sell 100 acres for as much as three pounds (60 shillings). For land purchased by a treasury right at 10 shillings/100 acres, that was a 600% markup - but far cheaper than the price required for land in Pennsylvania, which sold at 10-15 pounds/100 acres. (When Virginia created a Land Office in 1779 and began to sell unappropriated western lands to finance Revolutionary War costs, the price was 40/100 acres.)10

The Northern Neck had a slightly different process for selling land. The two major land sales completed before 1689 were handled by Culpeper in England. After he fled in 1689, Margaret Culpeper inherited his 5/6th's share. Her son-in-law, Thomas Fifth Lord Fairfax, began to manage the Northern Neck land claims. His wife owned 1/6th, and his mother-in-law Margaret Culpeper owned 5/6ths.

Thomas Fifth Lord Fairfax relied upon land agents who lived on the Northern Neck to sell parcels. The land agents for the proprietor, including Philip Ludwell, George Brent, and William Fitzhugh, processed the paperwork for Northern Neck grants (i.e., land sales) rather than the Secretary and Governor in Jamestown/Williamsburg.

Warrants authorizing surveys of parcels within the boundaries of the Fairfax Grant could be provided to surveyors other than the official county surveyors. George Washington completed several in Frederick, Hampshire, and other counties outside of Culpeper where he was the county surveyor in 1749-50.11

George Washington surveyed parcels pursuant to warrants from the Proprietors Office
George Washington surveyed parcels pursuant to warrants from the Proprietors Office
Source: Library of Congress, Plat of survey for John Lindsey of 223 acres in Frederick County, Va. (by George Washington, 1750)

Virginians could also acquire land through special military service in Lord Dunmore's War, the French and Indian War, and the Revolutionary War. Annual, routine militia service did not qualify for special compensation. To recruit the soldiers and officers, Virginia's General Assembly authorized issuing military warrants that could be used for future land grants.

On June 22, 1779, over three years after declaring independence from Great Britain, the General Assembly authorized giving away parcels of land to attract volunteers to serve during the Revolutionary War. Western lands in Kentucky and Ohio, which Virginia claimed ownership based on its 1609 charter, were offered as the inducement.

To qualify for a land bounty, a soldier had to shift from short-term local militia duty and commit to serving for three continuous years in the State Line (within Virginia) or Continental Line (which served primarily in other states, until the 1781 Yorktown campaign). Men could also serve as sailors in the State Navy. For many families, the continuous commitment took a key worker away from the farm for three harvest seasons.

After the military service was completed, affidavits testifying that a person qualified for the bonus were submitted to the governor. As described by the Library of Virginia:12

When a claim was proved, the Governor's Office issued a military certificate to the register of the Land Office... authorizing him to issue a warrant specifying the amount of land to be received and directing the land to be surveyed. The amount of land awarded was based on the rank of the soldier and the amount of time served.

William Grymes earned 200 acres from his Revolutionary War military service as a corporal in the State Line
William Grymes earned 200 acres from his Revolutionary War military service as a corporal in the State Line
Source: Kentucky Secretary of State, Revolutionary War Warrant 1368.0

Documents to authorize veterans of their heirs to claim land based on military service were issued between July 14, 1782 - August 5, 1876. Heirs were entitled if the soldier or sailor died while in the military, prior to completing three continuous years of service. Descendants claiming their ancestor was entitled to a land bounty had to prove 1) the ancestor met the qualifications and 2) they were the legal heirs entitled to exercise the military warrant.

Many soldiers sold their military warrants for quick cash, soon after getting the documents. Land speculators with capital to invest, including George Washington, purchased many of the military warrants at a discount. Years later, the speculators used them to acquire tracts and then sell the land for a profit.

The Kentucky Secretary of State "Frequently Asked Questions" page explains how military warrants were converted into land. The process for the Revolutionary War warrants also applied to warrants issued for Lord Dunmore's War in 1774 and the earlier French and Indian War.13

What is the procedure for patenting land with a Revolutionary War military warrant?

First, the veteran or his heirs received a warrant or warrants for service in the Revolutionary War.

Second, under the authorization of the warrant(s), the veteran or his heirs or assigns filed an Entry with the Surveyor of the military district, which reserved the land for patenting until the field survey could be made (usually after fees were paid or it was established that the land was eligible for patenting). If there were other claims on the land being reserved, the Entry could be withdrawn or amended.

Third, a field survey was made by the principal surveyor of the military district or his deputy in the presence of the surveying team, which consisted of two chainmen, a marker to blaze the trees used as corners and a housekeeper (sometimes called a pilot or director). Fourth, after the survey was completed, the warrant, survey and any supporting papers (such as a will stating the heirs' right to the land being patented) were sent to Frankfort for the issuance of the governor's grant finalizing the patenting process.

No one had clear title to any land being patented until the governor's grant was issued.

land grants were used to recruit soldiers and officers to serve during the French and Indian War
land grants were used to recruit soldiers and officers to serve during the French and Indian War
Source: Library of Congress, Three-thousand acre land grant to the heirs of Hugh Mercer, Kentucky County, Virginia

The Role of the Governor in Granting Virginia Land

Virginia Military Reserve

Links

References

1. "The First Charter of Virginia; April 10, 1606," Avalon Project at Yale Law School: Documents in Law, History and Diplomacy, http://avalon.law.yale.edu/17th_century/va01.asp (last checked February 2, 2016)
2. "The Third Charter of Virginia; March 12, 1611," Avalon Project at Yale Law School: Documents in Law, History and Diplomacy,, http://avalon.law.yale.edu/17th_century/va03.asp (last checked February 2, 2016)
3. Fairfax Harrison, Virginia Land Grants, Old Dominion Press, 1925, p.16, https://books.google.com/books/about/Virginia_Land_Grants.html?id=XyZBAAAAIAAJ (last checked February 2, 2016)
4. "Instructions to George Yeardley," Virginia Company of London, November 18, 1618, posted online by Encyclopedia Virginia, http://www.encyclopediavirginia.org/_Instructions_to_George_Yeardley_by_the_Virginia_Company_of_London_November_18_1618 (last checked February 2, 2016)
5. Grizzard, Frank E. and Smith, D. Boyd, Jamestown Colony: A Political, Social, and Cultural History, ABC-CLIO, Santa Barbara, 2007, p. 189-xliv, http://books.google.com/books?id=555CzPsGLDMC (last checked August 10, 2009)
6. Bernard Bailyn, The Barbarous Years, 2012, Alfred A. Knopf, p.79, https://books.google.com/books?id=TcDQWS16BLYC; Thomas Perkins Abernethy, Three Virginia Frontiers, Peter Smith, 1962, p.54, https://books.google.com/books?id=XmgatAEACAAJ (last checked April 5, 2018)
7. Croghan, Laura A., "'The Negroes to Serve Forever': The Evolution of Blacks's Life and Labor in Seventeenth-Century Virginia," Masters Thesis, William and Mary, 1994, p. 18-20
8. Library of Virginia, "Headrights," VA-NOTES, http://www.lva.lib.va.us/whatwehave/local/va4_headrights.htm (last checked September 27, 2003)
9. "About the Virginia Land Office Patents and Grants/Northern Neck Grant and Surveys," Library of Virginia, http://www.lva.virginia.gov/public/guides/opac/lonnabout.htm; "The Virginia Land Office," Research Notes Number 20, Library of Virginia, https://www.lva.virginia.gov/public/guides/Research_Notes_20.pdf (last checked April 5, 2018)
10. Thomas Perkins Abernethy, Three Virginia Frontiers, Peter Smith, 1962, p.39, p.55, p.60, https://books.google.com/books?id=XmgatAEACAAJ; The Virginia Land Office," Research Notes Number 20, Library of Virginia, https://www.lva.virginia.gov/public/guides/Research_Notes_20.pdf (last checked April 5, 2018)
11. "Washington as Public Land Surveyor," George Washington Papers, Library of Congress, https://www.loc.gov/collections/george-washington-papers/articles-and-essays/george-washington-survey-and-mapmaker/washington-as-public-land-surveyor/ (last checked April 5, 2018)
12. "Revolutionary War Rejected Claims for Bounty Land," Library of Virginia, http://www.lva.virginia.gov/public/guides/opac/rejectedabout.htm (last checked April 6, 2018)
13. "FAQs," Kentucky Secretary of State, https://www.sos.ky.gov/admin/land/military/Pages/FAQs.aspx (last checked April 6, 2018)


Exploring Land, Settling Frontiers
Geography of Virginia