Bill concerning Escheats and Forfeitures from British Subjects
[4 June 1779]
Whereas during the connection which subsisted between the now United states of America and the other parts of the British empire, and their subjection to one common prince the inhabitants of either part had all the rights of natural born subjects in the other and so might lawfully take and hold real property, and transmit the same by descent to their heirs in fee simple, which could not be done by mere aliens; and the inhabitants on each part had accordingly acquired real property in the other: and in like manner had acquired personal property which by their common laws might be possessed by any other than an alien ennemy and transmitted to executors and administrators: but when by the tyrannies of that prince, and the open hostilities committed by his armies and subjects inhabitants of the other parts of his dominions on the good people of the said United states they were obliged to wage war in defence of their rights and finally to separate themselves from the rest of the British empire to renounce all subjection to their common prince and to become sovereign and independant states the said inhabitants of the other parts of the British empire became aliens and ennemies to the said states and as such incapable of holding the property, real or personal so acquired therein and so much thereof as was within this commonwealth became by the laws vested in the commonwealth.
Nevertheless the general assembly tho provoked by the example of their enemi[es] to a departure from that generosity which so honourably distinguishes the civilized nations of the present age yet desirous to conduct themselves with moderation and temper by an act passed at their session in the year 1777 took measures for preventing what had been the property of British subjects within this commonwealth from waste and destruction by putting the same into the hands and under the management of commissioners appointed for that purpose that so it might be in their power if reasonable at a future day to re[sto]re to the former proprietors the full value thereof:
And whereas it is found that the said property is liable to be lost, wasted and impaired without greater attention in the officers of government than is consistent with the discharge of their public duties and that from the advanced price at which the same would now sell it may be most for the benefit of the former owners, if the same should be restored to them hereafter or to the public if not so restored that the sale thereof should take place at this time and the proceeds be lodged in the public treasury subject to the future direction of the legislature:
Be it therefore enacted by the General assembly that so much of the act beforementioned as may be supposed to have suspended the operation of the laws of escheat and forfeiture shall be hereby repealed and that all the property real and personal within the commonwealth belonging at this time to any British subject or which did belong to any British subject at the time such escheat or forfeiture may have taken place shall be deemed to be vested in the commonwealth the said1 real estate, by way of escheat and the said personal estate by forfeiture:
The Governor with the advice of council so far as their information will enable them and the commissioners of the tax within their several counties aided by their assessors shall forthwith institute proper proceedings of escheat and forfeiture for all such property real and personal in which they shall be advised and assisted by the several attornies for the commonwealth.
Where any office in the cases beforementioned shall be found for the commonwealth and returned to the General court it shall remain there but one month for the claim of any pretending right to the estate; and if within that time no such claim be made, or being made if it be found and discussed for the commonwealth, the title of the owner to such estate real or personal shall be for ever barred, but may be afterwards asserted as to the money proceeding from the sale thereof with equal force and advantage as might have been to the thing itself; and such further proceedings shall be had for making sale, of the2 lands so found, in parcels not greater than 400 acres (to be described by the commissioners hereafter mentioned and measured and marked by metes and bounds by a surveyor where they shall think it necessary)3 and of the other property as in other cases of escheat and forfeiture; save only that the Governor with advice of council for every such sale shall appoint two commissioners to superintend and controul the proceedings of the said escheator, which commissioners shall be sworn to use their best endeavors to have the estate to which their trust extends sold to the best advantage. The said sales shall be for ready money to be paid to the Escheator, who shall retain thereof4 five per centum for his trouble. His certificate of such paiment in the case of lands and of the person purchasing, to the register of the land office shall entitle the purchaser to a grant of the said lands.5 If the said Escheator shall fail to pay the said money into the hands of the treasurer within a reasonable [time] after any such sale (which reasonable time shall be accounted one day for every 20 miles such sale was distant from the public treasury and [twenty] days of grace in addition thereto he shall pay interest thereon from the time of the said sale at the rate of 20 per centum per annum; and moreover it shall be lawful for the auditors on the last day but one [of] any general court, or at any court to be held for the county wherein such property was sold, after the expiration of the time allowed for paiment to obtain judgment on motion against such Escheator his heirs executors and administrators for the principal sum and such interest together with costs. And for the information of the auditors the commissioners of the sale shall immediately on such sale certify to whom and for how much such sale was made and transmit such certificate by some safe and early conveyance to the Auditors which certificate shall be legal evidence against such Escheator. The Auditors shall allow the commissioners so appointed the expences of the surveys by them directed and made, and other their reasonable expences and such compensation for their trouble as to them shall seem proper. Where the commissioners shall be of opinion that it will be more to the interest of the owner or public that possession of such property real or personal should be retained for finishing and removing a crop or other purpose it shall be lawful for them to stay the possession as it now is until the day of6 giving notice of such their intention at the time of the sale.
And for preventing doubts who shall be deemed British subjects within the meaning of this act it is hereby declared and enacted that (1.) all persons, subjects of his Britannic majesty who on the7 day of April in the year 1775, when hostilities were commenced at Lexington between the United states of America and the other parts of the British empire, were resident or following their vocations in any part of the world other than the said United states and have not since either entered into public employment of the said states, or joined the same and by overt act adhered to them; and (2.) all such subjects, inhabitants of any of the said United states as were out of the said states on the same day, and have since by overt act adhered to the enemies of the said states; and (3.) all inhabitants of the said states who after the same day and before the commencement of the act of General assembly intituled ‘an act declaring what shall be treason’ departed from the said states and joined the subjects of his Britannic majesty of their own free will, or who by any county court within this commonwealth were declared to be British subjects within the meaning and operation of the resolution of the General assembly of8 and the governor’s proclamation founded thereon; shall be deemed British subjects within the intention of this act.
But this act shall not extend to debts due to British subjects and paiable into the loan office according to the act of General assembly for sequestering British property; nor take effect [on the property of such British subjects as are infants, femes covertes, or of insane mind, who within one year after their disability removed and hostilities suspended between his Britannic majesty and the United states shall become citizens of any of the said states; nor]9 on any lots of land within the town of Richmond as the limits of the said town now are, or shall be at the time of the inquest found, which by the directors of the public buildings shall be included within the squares appropriated for such buildings further than that an office shall be found as to such lots of land and the estimated value [there]of be disposed of hereafter as the price would have been by this act had they been exposed to public sale; nor on any other such lots within the same town10 as shall by the said directors be declared proper for the public use until buildings be erected on the squares beforementioned11 and so long as they shall be [applied] to such public use.
MS (Vi); in TJ’s hand. Endorsed by him: “A Bill concerning escheats & forfeitures from British subjects.” Docketed: “To be engrossed. Engrossed.” MS is much faded and the parts in square brackets (except where otherwise noted) have been supplied from text in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 66–71. Accompanying this is a MS (also Vi), in the hand of John Beckley, headed: “Amendments to the Bill concerning Escheats & forfeitures from British subjects.” Ford (ii, 182–6) prints this Bill, but confuses its legislative history with that of the Bill Concerning Escheators (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 115–17; see also Bill No. 24, Report of Committee of Revisors, 18 June 1779), a bill which was also passed at this session.
On 4 June 1779 a committee composed of Charles Carter, Mason, Henry, Baker, Lyne, Thomas Hite, Munford, and Page was ordered to bring in a Bill providing for the sale of all real and personal property owned by enemy aliens. This Bill was reported by Harvie (not a member of the committee) on 19 June; it passed the first two readings the same day and was committed to the committee of the whole; on 22 June it was debated by the committee and several amendments offered; on 23 June it was read the third time and passed, being carried to the Senate by Carter (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1779, 1827 edn., p. 35, 59, 61, 62). TJ may have drafted the Bill before the session began (see George Mason to TJ, 3 Apr. 1779); since he became governor on 2 June, he was obliged to entrust the measure to his colleague from Albemarle, John Harvie.
It is to be noted that TJ, in the preamble to this Act, does not rest its justification upon the recommendation of the Continental Congress of 27 Nov. 1777 that real and personal estates of disloyal persons be seized and sold and the proceeds converted into Continental Loan Office certificates (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , ix, 971). Van Tyne, Loyalists, appendixes B and C, contains an analysis of legislation against the loyalists in various states. In some states confiscation was effected through acts of attainder, but Virginia passed only one such act during the Revolution—that against Josiah Philips, which TJ drew. Instead, sequestration was effected, as in the case of confiscation of property in England, under the customary process of office found. This was a process of inquiry, or inquest by virtue of office, held by the sovereign’s sheriff, coroner, or escheator to determine the validity of the sovereign’s title to the personal or real property involved (Tucker, Blackstone, 1803, ii, 60). It is interesting to observe that TJ, whose legislative reforms generally were in advance of those undertaken by other states, should in this instance have been the only one to advance such a traditional legal concept to effect confiscation. It is impossible to determine how much property of loyalists was sold under this law; the auditor’s accounts from 1779 to 1795 show a total of £3,041,167; “With the exception of £13,126, this money was paid to the commonwealth prior to 1782 in depreciated paper currency; the benefits to the state were small” (Harrell, Loyalism in Virginia, 1926, p. 84–98). Not all of this property was sold. The clauses at the conclusion of TJ’s Bill concerning lots in Richmond show that escheated real estate there was to have title confirmed in the commonwealth through process of office found and the lots used for such purposes as the state might direct. Under this clause, the property of James McDowell was set apart for the auditor’s office; that of French Crawford for the treasurer’s office; that of Ninian Minzies was leased to Penet, Windel, & Company as a repair shop for the ordnance department; and, until the completion of the capitol in 1789, the General Assembly met in a house that had belonged to Cunningham and Company (same, p. 99). With materials scarce and building costs high, this use of loyalist property by the state was one that resulted in considerable benefit to the commonwealth. Yet neither the sequestration of debts due British subjects nor the confiscation of loyalists’ property had the effect that TJ expected of stabilizing state finances and of halting the rapid inflation of the paper money.
1. The first of the amendments noted above altered this to read, as it does in the Act: “the lands, slaves, and other real estate.” This, of course, involved deleting the second “said” also. This and the following amendments were keyed to TJ’s MS Bill by page and line references; all but the last few of these marginal numerals were in his hand, indicating that he, though governor, sat in the House during debates.
2. Act as adopted reads: “right, title, claim, and interest, legal and equitable, of any British subject in and to the lands so found.”
3. Act as adopted reads: “and in and to the other party as in other cases of escheat.”
4. Act as adopted reads: “three per centum on the first thousand pounds arising from the sale of any such estate, and one and a half per centum on the remainder for his trouble.”
5. The Act as adopted adds the following at this point: “free and fully exonerated from all the rights, title, claim, and interest, legal and equitable, of any British subject thereto; and also from the right, title, claim, and interest of all and every person whatsoever, by or under any deed of mortgage, the equity of redemption whereof had not been foreclosed at the time of the sale, but such mortgages [thus in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 68, but correctly given as mortgagees in MS list of amendments noted above], their heirs or assigns, may nevertheless afterwards assert their claim and title to the money proceeding from the sale thereof, with equal force and advantage as they might have done to the land itself before such sale.”
6. Act reads “sixth day of December next,” and the following was added by amendment at this point: “and in such cases postpone the sale of the slaves, tools, and other personal property, necessary for their subsistence, and making the said crop, until the said sixth day of December. The money for which such property was sold being paid into the publick treasury, and all expenses allowed and deductions made, the balance thereof shall be extended in nett tobacco, at the market price as the same shall be estimat on oath by the grand jury of the succeeding general court, and such balance of tobacco shall be considered in future as the true measure of retribution to be made to the individuals interested; if retribution be made, and in such case shall be repaid to them by the publick in quantity and kind. The duties which, under this act, are to be performed by an escheator in the several counties of this commonwealth, not being within the territory commonly called the Northern Neck, shall in the counties within that territory be performed by the sheriff of such counties respectively, which sheriff shall have the same powers, be entitled to the same allowances, and subject to the same penalties, conditions, and legal proceedings as escheators are in the other counties.” The exception concerning British property in the Northern Neck may have been inserted at the suggestion of George Mason.
7. TJ evidently did not remember the exact date of the battle of Lexington; the Act reads “nineteenth.”
8. Act reads: “of the nineteenth day of December, 1776, for enforcing the statute staple”; the words “and the governor’s proclamation founded thereon” were deleted by amendment.
9. The words within square brackets (supplied) were deleted by amendment.
10. The Act as adopted reads: “whether held in severalty by any British subject or subjects, or by a citizen or citizens and a British subject or subjects, as joint tenants or tenants in common, which shall by the said directors.”
11. The remainder of this sentence (“and so long … public use”) was deleted by amendment and the following added: “except that an office shall be found as to the interest of any British subject in such lots, and such interest estimated by the same jury which found the office, and at the same time, as also the interest therein of any citizen who is joint tenant or tenant in common with such British subject, and the value of the interest of such citizen shall be paid to him, in like manner as is directed in the case of squares of ground appropriated to the publick buildings by an act passed at this present session of assembly, entitled, ‘An act for the removal of the seat of government,’ and the value of the interest of any such British subject shall be disposed of hereafter as the price would have been by this act, had they been exposed to publick sale, and the property in such lots shall be vested in the commonwealth; provided that the estates real and personal of such British subjects who have wives, widows, or children, residing within this state, shall be appropriated as follows: Such estates where there is a widow and no children, shall be subject to the widow’s dower; where a wife and no child, to the like claim; but where a wife and child, or child and no wife, the whole of the estate belonging to such British subject shall be without the perview of this act. The residue of any estate not appropriated as hereby directed, shall be subject to the dispositions of this act.”