EARLY VIRGINIA LAW CONCERNING INHERITANCE TUCKER'S BLACKSTONE VOLUME 3, APPENDIX, NOTE A Concerning the Tenure of Lands in Virginia, and the mode of acquiring them under the former and present Government Transcribed by Thomas Walter Duda Source: Tucker, St. George. _Blackstone's Commentaries with notes of reference to The Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia_, Vol. 3. South Hackensack NJ: Rothman Reprints, 1969, 5 Vols. Tucker's edition was originally published in 1803. No copyright notice appears in the reprint edition. Transcriber's Notes The note transcribed below was authored by St. George Tucker, a Virginia jurist of note. His edition of Blackstone was widely used in the teaching of law in the United States during the early part of the nineteenth century. Blackstone's Commentaries were published in four volumes. Due to the length of Judge Tucker's notes, his edition of the Commentaries was expanded to a fifth volume. This explains the curious title "Volume Third. Book Second," which is the third volume of Tucker's edition, but the second volume of the Commentaries. The Note gives a brief history of the methods of land acquisition prior to the American Revolution, and then offers a detailed exposition of an Act of the General Assembly of Virginia that was passed in 1779, which means that this act was in force when Tucker's edition was published in 1803. The published text used double quotations marks regardless of the context and, very often, at the beginning of every line, which admittedly was the style of the times. This practice has been modified in the transcription so that a double quotation mark begins and ends each quoted passage. If, within the passage, another citation is given, the transcription uses single quotation marks. The footnotes in the published text were marked with '*', '+', etc. In this transcription, they have been replaced by the modern [1], [2], etc. Footnotes were differentiated from the text proper by being printed in a smaller type. In this transcription, a line of dashes has been inserted between the body of the text and the footnotes. For those who wish to read the statutes cited by Tucker, it will help to know that the abbreviation "V. L." which pervades the footnotes, means "Virginia Laws," and that the most comprehensive edition of these laws are to be found in the series: _The Statutes at Large of Virginia_, William Waller Hening, editor, with supplements produced by Shepherd. The acts are printed chronologically; each act has its own chapter heading, which is the method of citation employed by Tucker. ------------------------------------ APPENDIX to VOLUME THIRD. BOOK SECOND. of BLACKSTONE'S COMMENTARIES. NOTE A. Concerning the Tenure of Lands in Virginia, and the mode of acquiring them under the former and present Government. 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 Chesapeak 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 4 APPENDIX. 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 &c. 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 1630, 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 hath 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 generally 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. APPENDIX. 5 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, &c. 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 conveyance 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 [3] 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 neighbours. This admirable provision hath by several subsequent acts [4] been continued to the present day, and where it hath been complied with, very few disputes about boundaries arise; but there is reason to apprehend that the execution of it hath 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. 1. 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 acts of 1748, c. 41, confirms the grants of the crown within the same limits, antecedent thereto. [5] By the act of May 1779, c. 13, [6] the reservation of royal mines, of quitrents, and all other ------- 1. V. L. 1710, c. 13. Edi. 1733..1748, c. 1. Edi. 1769. 2. V. L. 1662 c. 136. Purvis 97. Ibid. 1705, c. 14. Edi. 1769, p. 52. May 1779, c. 23. Edi. 1785. 3. Constitution of Virginia Art. 21. V. L. 1794, c. 122. 4. V. L. 1710, c. 13. 1748, c. 1. 1785, c. 4. Edi. 1794, c. 86. Sec. 56. 1795, c. 9. 1796, c. 24. 5. V. L. Edi. 1784, c. 3, 4. 6. V. L. Edi. 1785. 6 APPENDIX. 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 no 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 act [1] 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 indented 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. [2] 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 water, 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. ------- 1. V. L. Edi. 1785, c. 12. May 1779. 2. V. L. 1662, c. 68. Purvis. page 52. APPENDIX. 7 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 pretence whatsoever are declared null and void. Provided that all officers or soldiers, their heirs or assigns claiming under the late governor Dinwiddie's proclamation of a bounty in lands to the First Virginia Regiment, and having 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 warrants 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 hath 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 hath 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 hath a legal previous claim, with the like quality 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. [1] III. Grants for lands might be obtained under the act of the same session, c. 13. By the officers and soldiers of the continental, ------- 1. V. L. May 1779, c. 12. Edi. 1785. 8 APPENDIX. 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. 21, were fixed as follows; to a colonel 5000 acres; a lieutenant colonel 4500 acres; a major 4000 acres; a captain 3000 acres; 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 non-commissioned 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 Tenessee River from the Alleghany 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 40L. [1] (paper money, and since fixed at two dollars [2]) 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 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 the lands on the sea shores, the Chesapeake bay, or on any river or creek, theretofore used as common, was likewise made. [3] ------- 1. V. L. May 1779, c. 13. Edi. 1785. 2. V. L. Edi. 1794, c. 86. 3. It appears by the act of 1785, c. 36, that the issuing of land warrants had been before that time prohibited by resolutions of the general assembly, which prohibition was by that act removed for a limited time, and hath 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 25L. 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; 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. APPENDIX. 9 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. 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. 52 ... C. V. Art. 20, 21 ... Acts of May 1779, c. 12, 13, 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, 20, 40, Sec. 4. 17 ... May 1782, c. 5, 18, 32, 39, Sec. 9, c. 47, 49 ... Oct. 1782, c. 1, 3. Sec. 4, 24. c. 13, 24, 30, 33, 34. 45 ... May 1783, c. 31, 36, 38, 39 ... Oct. 1783, c. 4, 18, 21, 29, 32, Edi. 1785 ... Sessions acts of 1784, c. 10, 14, 30, 34, 38, 39, 48, 71, 79. ... 10 APPENDIX. 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, authorising 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, 14 ... 1792, c. 5, 7, 8, 16, 20. Sessions acts ... 1793, 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, 1783, and July 13, 1787, and L.U.S. 4 Cong. 4 30, 46. 5 Cong. 3. Sess. c. 135, 140. 6 Cong. 1 Sess. c. 8, 13, 45, 55, 59. 2 Sess. c. 5, 23 ... 7 Cong. 1 Ses. 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. ************************************************************************ USGENWEB NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. Persons or organizations desiring to use this material, must obtain the written consent of the contributor, or the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. ************************************************************************