Bills for Establishing a Land Office and for Adjusting and Settling Titles
These two Bills, despite the attention they have received from careful historians, remain a neglected milestone in public land policy. Abernethy has asserted that “the land office act of 1779 was a colossal mistake. In 1776 Jefferson had advocated the granting of tracts of fifty acres to each family lacking that amount. This would have been an improvement on the colonial head-right system, and it would have been a great aid to the growth of democracy in America‥‥ There is an element of historical irony in the fact that Jefferson, the father of democracy, should have helped to draft the act by which democracy was defeated in Virginia at the moment when it might have had its birth. The result was that within a few years Robert Morris came to own one and a half million acres, and Alexander Walcott a million acres of Virginia’s Western lands, and most of that remaining fell into the hands of other absentee speculators who paid, in depreciated currency, a price equivalent in some cases to about fifty cents the hundred acres. Thus the growth of the country was retarded, the resident population forced to protect the property of those who took no part in its defense, and the great public domain was exploited by a few individuals for their private gain” (Western Lands, p. 228). Insofar as this applies to the two land Acts of 1779, it is a sound appraisal; insofar as it implies that Jefferson’s part in the drafting of the Bills justifies the inference that he approved the final terms of the laws as enacted, it is misleading. The publication of the manuscript Bills, here presented for the first time, makes possible a comparison of what Jefferson and George Mason, his principal co-adjutor in this matter, originally intended with what the legislature finally did to these intentions.
That comparison reveals that what Abernethy considered the fatal omission of the first of these laws—the making of provision for future settlers—was not omitted from the Bill as presented to the legislature. Among the more interesting provisions of the Bill that failed to become law are those “for the Encouragement of Foreigners‥‥ And for the more equal Distribution of Lands, and to encourage Marriage and Population by making provision for the Natives of the Country.” These provisions, which accord so well with the views that Jefferson expressed in his Constitution for Virginia in 1776 and in his letters to Pendleton during the summer of 1776, go far to remove whatever irony there is in the association of Jefferson’s name with the Land Acts of 1779. Jefferson, who had advocated use of western lands for those who would settle there, for opposing monopoly and exploitation, for attracting immigration, for supporting the credit of the state, and for strengthening the bonds of union by securing the adoption of the Articles of Confederation, wrote some of these far-sighted policies into the terms of his Bill as well as in the preamble stating its purpose. He was its chief architect. George Mason assisted in its preparation, though Mason was more interested in the second of the two Bills (see Mason to TJ, 3 Apr. 1779). But the Land Acts of 1779 were not passed until after Jefferson had become governor.
Both of these Bills suffered strenuous opposition. No doubt much of this was due to the feeling of many that opening up the West would drain off population and involve the whole state in costly Indian wars. But much also was due to the fact that, so long as there was no land office, the advantage lay with the syndicates and the large operators as against the individual settlers: fishing in muddied waters promised some advantages. Both Bills were introduced at the busy session of Oct. 1777. Both were postponed, were not submitted at the May 1778 session, and came on again at the October session of that year. The opposition still succeeded in its delaying tactics, and it was not until the session of May 1779 that the Bills finally became law. They are introduced here, some seventeen months in advance of their final enactment, in order to place them approximately at the time at which they were first drawn and also in order to correlate them with Jefferson’s other legislative activities at this time. For example, during the interval that elapsed between the appointment of a committee and the introduction of the Land Office Bill, Jefferson was much preoccupied with the time-consuming dispute with the Senate over the Case of Thomas Johnson, &c. (q.v., under date of 11 Nov. 1777) and with the Supply Bill (q.v., under date of 20 May 1778).
On 13 Dec. 1777 the committee of the whole of the House of Delegates, in considering ways and means “for the better supporting the credit of the paper money issued … and the contingencies of government, and for the more punctual payment of this State’s proportion of the continental expenses,” recommended, in addition to the levying of many taxes and duties, that part of the unappropriated lands be disposed of, “and the money arising therefrom, applied in aid of the funds to be provided for discharging the public debt, and that a land office be established for granting waste and unappropriated lands.” The committee appointed to bring in a Bill for this purpose consisted of Thomas Nelson, Jr., George Mason, Pendleton, Nicholas, Jefferson, Zane, Bullitt, Braxton, and Lyne. The Bill was introduced by Mason on 8 Jan. 1778; it passed two readings the same day and was referred to the committee of the whole. It was then postponed three times until, on 17 Jan., the House resolved to consider it on “the last day of March next”—an effective means of killing the Bill at that session, since all knew that it would end in a few days (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 77–8, 106, 107, 111, 113, 116, 119). Nevertheless, on the last day of the session, 24 Jan. 1778, the advocates of the Bill succeeded in obtaining the passage by the House of the following important resolutions: “Whereas, it is of the greatest importance to this Commonwealth, that the waste and unappropriated lands to which no person having just claim should be disposed of, for the purpose of creating a sinking fund, in aid of the taxes for discharging the public debt, and to the end that the claims to unpatented lands, under the former or present government, may not in the mean time be increased or strengthened; Resolved, That every entry, with the survey hereafter made in the country upon the western waters under any pretence or title whatsoever, until the land office shall be established and the manner and terms of granting waste and unappropriated lands, shall be void and of no effect; and that no persons hereafter settling in the country upon the said western waters, shall be entitled to any land or pre-emptions of land for such settlement, without paying for the same such consideration as shall be hereafter ascertained by the General Assembly, so as no family be entitled to more than 400 acres. Resolved, That all persons claiming any unpatented lands on the said western waters by order of Council, shall lay the same before the General Assembly on or before the 20th day of their next session, and be at liberty in the mean time to take the depositions of any witnesses they may choose, to examine such claims, giving reasonable notice thereof to the person appointed by the Governor and Council to attend such examination in the county, on behalf of the Commonwealth, in case such person shall be appointed” (same, p. 136). The Senate immediately concurred in these resolutions. The opponents of the Bill were apparently willing, temporarily at least, to agree to a limitation on the number of acres permitted so long as the Bill itself could be blocked—a limitation that was removed once the Bill was enacted (Abernethy, Western Lands, p. 219). Neither of the two land Bills was brought up at the next session.
On 14 Oct. 1778 a new committee was given leave to bring in a Bill “for establishing a land office.” This Bill was introduced by Tazewell on 17 Nov. Jefferson arrived only on 30 Nov. at this session and George Mason departed on 5 Dec., circumstances which raise some doubt as to whether the Bill brought in was the same as that introduced on 8 Jan. 1778 (but see Document i, note 24). At any rate, a motion to read the Bill the second time was defeated, whether because of the strength of the opposition or the fact that Jefferson was too much preoccupied at this time with the Report of the Committee of Revisors is uncertain (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1778, 1827 edn., p. 11, 67, 100).
However, as soon as the House was organized for business at the session of May 1779 a committee was appointed to bring in the Bill, consisting of John Taylor, Strother, John Harvie, Moore, Jefferson, Munford, Baker, Tyler, Burr Harrison, John Washington, Carrington, Smith, Peyton, and Pickett. On 17 May, Mason was added to the committee, and at the same time the committee was directed to bring in the related Bill for settling claims to unpatented lands, a Bill in which, as a member of the Ohio Company, Mason was particularly interested. Taylor reported the Land Office Bill on 5 June. It was read the second time on 7 June and was passed by the House on the 17th. On the 22nd the Senate offered amendments which were accepted by the House. In the absence of a MS listing the various amendments, it is impossible to tell which of the many variations between the Bill and the Act that are listed in the notes were made by the House and which by the Senate; many, we may be certain, were made by Jefferson and Mason themselves (see Mason to TJ, 3 Apr. 1779), but the emasculation of the broad and liberal terms of the Bill was undoubtedly the work of the opposition in the legislature. The fact that the session was in its last days and the calendar heavily crowded may partly account for the ready agreement by the House to the Senate’s amendments. It is worth noting that this Bill, for which Jefferson had fought so long, was introduced at its final passage only after he had been elected governor; he was not a member of the House, therefore, during the amending process (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. 6, 12, 37, 38, 49, 51, 53, 61).
One important feature written into the Act by way of amendment to Jefferson’s Bill indicates the manner in which it was deflected from its original purposes and altered to suit the desires of the land companies and large speculators. This was the proviso that permitted warrants to be issued by any county clerk. This was changed so that only the Register of the Land Office could issue such warrants, a change which manifestly gave advantage to the large operator who could afford to keep one or more representatives on hand at such an office. Another feature of a similar purport is to be found in sections iv and v of the Act as adopted, sections not to be found in Jefferson’s Bill. The stated purpose of these sections was to quiet titles, prevent controversies, and do “equal justice to the commonwealth and its citizens” in respect to those persons whose titles to lands—because of the “ignorance, negligence, or fraud of the surveyors”—included more acreage than they were entitled to under the bounds described in the grant. In such cases, anyone might challenge the title of the grantee to the “surplus”: (1) if he took action during the lifetime of the patentee; (2) if he did so before any transference or alienation of the lands had been made by the grantee; (3) if he gave notice of his intentions to the grantee one year in advance; (4) if the grantee did not within the year obtain rights and sue out a patent for his own extra-legal “surplus” lands; (5) if he (the prospective claimant) caused, at his own expense, the whole of the grantee’s parcel to be resurveyed in order to determine the extent of the “surplus”; (6) if he was willing, if successful, to let the grantee assign such surplus land in any part of his tract in one entire piece; (7) if he was willing to obligate himself to pay for the resurvey whether or not a surplus was discovered; and (8) if, finally, “for his unjust vexation” of the grantee, he was willing to expose himself to “an action upon the case at the suit of the party grieved.” Considering also the fact that this section allowed all surveyors a margin of error of 5% (five acres “surplus” in every 100 surveyed), and that there were no corresponding penalties against the grantee for holding surplus lands, except the mere possibility that he might have to yield them up to someone perceptive enough to discover such surplusage and hardy enough to try to gain possession of it—it is obvious that (1) these sections added to Jefferson’s Bill encouraged making plus rather than minus “errors” in surveys; and (2) they favored the holders of large tracts, for the reasons that surplusage in large tracts was much more difficult to discover, the risk and cost of challenging possession correspondingly increased, and many of the surveyors were closely affiliated with the land companies and land speculators (Abernethy, Western Lands, 132–3; 224).
The Bill for Adjusting and Settling Titles was George Mason’s work primarily. This is shown not merely by the fact that the MS bears no indication on its surface of Jefferson’s collaboration—although he indubitably worked with Mason on the Bill—but also by the fact that the major part of it is in Mason’s handwriting. This is confirmed also by Mason’s letter to Jefferson of 3 Apr. 1779 and by Jefferson’s “Notes on my title to 485. acres of land surveyed for me Mar. 27. 1788‥‥” (CSmH: HM5593) in which he makes the following statement: “The Revolution now came on, and suspended the means of obtaining grants of land. Independence was declared in 1776. But it was not till 3. years after that the legislature re-opened the land office. Mr. Mason then came forward with his plan of a land law. His great object was to remove out of the way the great and numerous orders of council to the Ohio co. Loyal co. Misissipi co. Vandalia co. Indiana co. &c. and the thousands of entries for lands with surveyors of counties, which covered the whole Western country‥‥” The object of Mason’s Bill, then, was to remedy a complicated situation that had grown up; that of Jefferson’s Bill to lay down the foundations of a broad and permanent policy.
There is, however, less discrepancy between the second of these Bills and its terms at the final enactment than there was between the Bill for Establishing a Land Office and its corresponding status as an Act. Both the Bill and the Act for settling and adjusting claims provided extraordinary powers for the commissioners. This delegation of judicial power to an administrative body was criticized before the year was out by Thomas Scott of Pennsylvania, who bitingly remarked: “Tryal by Jury is held sacred in their bill of rights and is totally taken away by this law” (Thomas Scott to Joseph Reed, printed below, 29 Nov. 1779). There was provision for appeal in certain circumstances from the commission’s decisions, but even on appeal trials were conducted in summary form. It is ironic that Mason, the chief author of the Virginia Declaration of Rights, should also have been the primary author of this Bill; it is also ironic that the author of the Declaration of Independence should have agreed to such features.
On 5 Jan. 1778 the House gave leave for a Bill to be brought in “for adjusting and settling the titles of claimants to unpatented lands, under the former government” and appointed a committee to bring in such a Bill, consisting of George Mason, Pendleton, Nicholas, Jefferson, Zane, Bullitt, and Braxton. Mason introduced the Bill on 14 Jan., and on the 21st it suffered the same fate as the Bill for Establishing a Land Office—that is, it was killed by being ordered to go through its second reading on 19 Mch. At the October session a new committee was ordered to bring in a Bill for this purpose; Mason was added to the committee on 20 Nov. Hite presented the Bill on 7 Dec. 1778, and it was ordered to be read the first time on 10 Mch. 1779, a date at which the Assembly would not be in session. On 17 May 1779 it was ordered to be brought in by the committee appointed to bring in the Bill for Establishing a Land Office, of which John Taylor was chairman and Jefferson a member; Mason was added to the committee on 17 May. Taylor presented the Bill on 4 June. It was amended both by the House and the Senate, being passed by the former on 16 June and agreed to by the latter on the 21st (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1777, 1827 edn., p. 101, 115, 125; Oct. 1778, p. 43, 75, 101; May 1779, p. 12, 34, 38, 41, 43, 44, 47–8, 49, 51, 60).