Mother Earth: Land Grants in Virginia, 1607-1699

Chapter One

The Land and the Indian

Among the motives for English colonization of America in the seventeenth century, the desire for free land occupied a prominent place. The availability of land in the New World appealed to all classes and ranks in Europe, particularly to the small landholder who sought to increase his landed estate and to the artisans and tenants who longed to enter the ranks of the freeholder.

The desire for land and the opportunity to provide a home for one's family, according to Professor C. M. Andrews, "probably influenced the largest number of those who settled in North America." Land also had its appeal as the gateway to freedom, contributing substantially to the shaping of the American character. When analyzing the factors that helped make this "new man, who acts upon new principles," De Crèvecoeur in 1782 emphasized the opportunity to "become a free man, invested with lands, to which every municipal blessing is annexed!"

Formulation of a land policy confronted the officials of all the colonies in early America. Its importance is reflected in the statement by C. L. Raper in his study of English colonial government that the "System and policy concerning land determine to a very considerable extent the economic, social, and political life of the colonists." The existence of the American frontier with unoccupied land was a potent force in America, and Frederick Jackson Turner stated in his famous essay in 1893 that the "Most significant thing about the American frontier is, that it lies at the hither edge of free land."

Before analyzing the nature of landholding and the land policy that was adopted in early Virginia, let us examine first the problem that arose by virtue of the presence of the Indians in North America.

At the time of the settlement of Jamestown in 1607 the area of present-day Virginia was occupied by Indians of three linguistic stocks: Algonquin, Siouan, and Iroquoian. Generally speaking, the Algonquins which included the Powhatan Confederacy inhabited the Tidewater, reaching from the Potomac to the James River and extending to the Eastern Shore. The Siouan tribes, including the Monacans and the Manahoacs, occupied the Piedmont; while the Iroquoian group, containing the independent Nottoways and Meherrins, partially surrounded the others in a rough semicircle reaching from the headwaters of the Chesapeake through the western mountains and back to the coast in the region south of the James River.

The presence of these tribes in the areas of proposed colonization confronted the colonizers of the sixteenth and seventeenth centuries with the same problem that has faced imperialists of a later date, the question of "right and title" to land. The British, like other European nations, did not recognize the sovereign right of the heathen natives but claimed a general title to the area by the prevailing doctrine of right by discovery and later by the generally accepted doctrine of effective occupation. As stated in the charter to Sir Walter Raleigh in 1584 with essentially the same provision included in the first charter of Virginia in 1606, the colonizers were authorized to occupy land "not actually possessed of any Christian Prince, nor inhabited by Christian People." Over the Indians the British maintained a "limited sovereignty"; and when acknowledging any claim, they recognized only the Indian's right of occupation and asserted the "exclusive right" to extinguish this title which occupancy gave them.

In the first years of the colony not even these tenure rights were recognized by the British. While a few gifts of land had been made by the natives and one of these confirmed by the London Company, there was no admission, either direct or by inference, that the Indians possessed a superior claim to the land. When such an implication was made in a land grant to Barkham in 1621, the company reacted with bitter resentment. Governor Yeardley, striving to maintain peace with the natives, made the grant conditional upon the consent of the Indian chief Opechancanough. According to stated practice under the company, the grant then had to be approved in England by a quarter court of the company's stockholders. When Barkham's petition was presented for ratification, the members of the court held the provision concerning the Indian chief to be "verie dishonorable and prejudiciall" for it infringed upon the company's title by acknowledging sovereignty in that "heathen infidell."

Disregard for the aboriginal occupants of Virginia called forth anew the question of "right and title," a problem subject to discussion in England even before Jamestown. To allay these attacks, several proponents of colonial expansion attempted to justify the policy of the crown and the London Company.

Sir George Peckham in A true reporte of the late discoveries pointed out as early as 1583, relating to the discoveries of Sir Humphrey Gilbert, that it was "lawfull and necessary to trade and traficke with the savages." In a series of subsequent arguments, he then expounded the right of settlement among the natives and the mutual benefit to them and to England. This theme was later extended by the author of Nova Britannia, who maintained that the object of the English was to settle in the Indian's country, "yet not to supplant and roote them out, but to bring them from their base condition to a farre better" by teaching them the "arts of civility." The author of Good Speed to Virginia added that the "Savages have no particular propertie in any part or parcell of that countrey, but only a generall residencie there, as wild beasts have in the forests." This last opinion, according to Philip A. Bruce, prevailed to a great extent and was held by a majority of the members of the London Company in regard to the appropriations of lands.

In spite of these views entertained by the company, there were several instances in which the natives were compensated for their territory. This was done primarily through the initiative of local authorities, for they were usually better informed concerning Indian affairs. They were in much closer contact with the natives than the company's Council in London and realized that the goodwill of the aborigines could be cultivated by giving only minor considerations for the land occupied by the English. On other occasions the Indians voluntarily gave up their land such as the present from Opechancanough in 1617 of a large body of land at Weyanoke. At still other times land was seized by force. When any attempt was made to justify the seizure, it was done on the basis of an indemnity for damage inflicted upon the colony or for violations of agreements by the natives. By 1622 settlements had been made along the banks of the lower James River and in Accomac on the Eastern Shore, the land having been obtained by direct purchase, by gifts from the natives, or by conquest.

Any attempt to determine the extent of the areas acquired by purchase in Virginia is hindered by the indefinite nature of the Indian holdings and by the lack of complete records for the early periods. Thomas Jefferson thought much of the land had been purchased. Writing to St. George Tucker in 1798, Jefferson stated:

At an early part of my life, from 1762 to 1775, I passed much time in going through the public records in Virginia, then in the secretary's office, and especially those of a very early date of our settlement. In these are abundant instances of purchases made by our first assemblies of the indi around them. The opinion I formed at the time was that if the records were complete & thoroughly searched, it would be found that nearly the whole of the lower country was covered by these contracts.

Jefferson overestimated the amount of land that was purchased by Virginia during the early years. While the records now extant show that the colony often purchased lands, they likewise indicate that frequently land was appropriated without compensation. Especially during the years following the first massacre of 1622, "The Indians were stripped of their inheritance without the shadow of justice." The greater part of the Peninsula between the York and James rivers was taken by conquest; the right of possession was later confirmed by a treaty with Necotowance in 1646, without, however, any stipulation for compensating the natives for the land they relinquished.

The treaty of 1646 with the successor of Opechancanough inaugurated the policy of major historical significance of either setting aside areas reserved for Indian tribes, or establishing a general boundary line between white and Indian settlements. Influenced by the desire of individual settlers to fortify their claims and by the opposition of the natives to white encroachment, the colony designated definite lands for the Virginia Indians and began to follow more closely the custom of purchasing all territory received from the natives. To see that this was done, the Assembly passed numerous laws, pertaining in most cases only to the specific tribes of Indians mentioned in each act.

In 1653 the Assembly ordered that the commissioners of York County remove any persons then seated upon the territory of the Pamunkey or Chickahominy Indians. At the same time both lands and hunting grounds were assigned to the red men of Gloucester and Lancaster counties. The following year the Indian tribes of Northampton County on the Eastern Shore were granted the right to sell their land to the English provided a majority of the inhabitants of the Indian town consented and provided the Governor and Council of the colony ratified the procedure. Soon other tribes were given the same privilege. So anxious were they to dispose of their land when allowed to convey a legal title, that it became necessary for the colony to forbid further land transfers without the Assembly's stamp of approval. Such a step was taken in order to prevent the continual necessity of apportioning new lands to keep the natives satisfied.

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