Mother Earth: Land Grants in Virginia, 1607-1699

by Walter Stitt Robinson

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.