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 Crevecoeur 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[ans] 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.

By 1658 the Assembly had received from several Indian tribes so many complaints of being deprived of their land, either by force or fraud, that measures were again adopted to protect the natives in their rights. No member of the colony was allowed to occupy lands claimed by the natives without consent from the Governor and Council or from the commissioners of the territory where the settlement was intended. To decrease the chances for cheating the Indians, all sales were to be consummated at quarter courts where unfair purchases could be prevented.

Efforts to protect the Indians in the possession of their lands were subject to modification from time to time. The treaty of 1646 designated the York River as the line to separate the settlements of the English and the natives. But the colony at that time was on the eve of a great period of expansion. With an estimated population of 15,000 in 1650, the colony increased by 1666 to approximately 40,000, and by 1681 to approximately 80,000. To stem the tide of the advancing English settlement was apparently an impossibility. Therefore, Governor William Berkeley and the Council, upon representation from the Burgesses, consented to the opening of the land north of the York and Rappahannock rivers after 1649. At the same time the provision making it a felony for the English to go north of the York was repealed. This turn in policy, based upon the assumption that some intermingling of the white and red men was inevitable, led to the effort to provide for an “equitable division” of land supplemented by attempts to modify the Indian economy which had previously demanded vast areas of the country.

Endeavoring to provide for this “equitable division” of land, the Assembly in 1658 forbade further grants of lands to any Englishmen whatsoever until the Indians had been allotted a proportion of fifty acres for each bowman. The land for each Indian town was to lie together and to include all waste and unfenced land for the purpose of hunting. This provision did not relieve all pressure on Indians’ lands, partly because some of the natives never received their full proportion and partly because some had been accustomed to even larger areas. But it did serve as a basis for reservation of land for different tribes.

Two years later the Assembly in 1660 took definite steps to relieve the pressure of English encroachments upon the territory of the Accomac Indians on the Eastern Shore. Enough land was assigned to the natives of Accomac to afford ample provisions for subsistence over and above the supplies that might be obtained through hunting and fishing. To insure a fair and just distribution of these lands, the Assembly passed over surveyors of the Eastern Shore and required that the work be done by a resident of the mainland, who obviously would be less prejudiced against the aborigines because of personal interest. When once assigned to the natives, the land could not be alienated.

By 1662 this last provision, forbidding the Accomacs to alienate their lands, was extended to all Indians in Virginia. The Assembly had realized that the chief cause of trouble was the encroachment by the whites upon Indian territory. Efforts, therefore, had been made to remove this cause of friction by permitting purchases from the natives provided each sale was publicly announced before a quarter court or the Assembly. But the plan had not been a complete success. Various members of the colony had employed all kinds of ingenious devices to persuade the natives to announce in public their willingness to part with their land. Dishonest interpreters had rendered “them willing to surrender when indeed they intended to have received a confirmation of their owne rights.” In view of these evil practices the Assembly declared all future sales to be null and void.

Twenty-eight years later in 1690 the Governor and Council in accord with this restriction nullified several purchases made from the Chickahominy Indians. By order of the Assembly in 1660 this tribe had received lands in Pamunkey Neck. Since that time several colonists had either purchased a part of their land or encroached upon their territory without regard for compensation. In neither case were the white settlers allowed to remain. All leases, sales, and other exchanges were declared void by the Governor and Council, and all intruders were ordered to withdraw and burn the buildings that had been constructed. George Pagitor, being one of the settlers affected by this order, had obtained about 1,200 acres in Pamunkey Neck from the natives. He had built a forty-foot tobacco barn and kept two workers there most of the year. When his purchase was declared void, he was ordered to return the land to the natives and to burn the barn that had been constructed. Accompanying this executive decree was an order to the sheriff of New Kent County authorizing him to carry out the will of the officials of the colony and to burn the barn himself, if necessary.

Commissioners were also employed for the supervision of Indian lands. Upon the recommendation of the committee appointed for Indian affairs, the Assembly in 1662 authorized the Governor to appoint a commission “to enquire into and examine the severall claimes made to any part of our neighboring Indian land, and confirme such persons who have justly invested themselves, and cause all others to remove.” The English with rights to land within three miles of the natives were to assist in fencing the Indian corn fields. This was done to prevent harm to the Indian crops by hogs and cattle of the colony. Commissioners appointed were to designate the time and number of English to aid in the construction. Other commissioners were to view annually the boundaries separating the two people.

The commissioners diligently enforced the provisions of these laws which underwent few changes until the outburst of hostilities in Bacon’s Rebellion. In 1678 the additional expense of the Indian war led the colony to modify temporarily its former provisions in order to obtain more revenue from land. All territory recently assigned to the Indians but then abandoned and any land then occupied that should later be deserted were to be sold. The proceeds from the sale were to be used in the public interest to defray the expense of the war.

This regulation applied only to land abandoned by the Indians. The colony continued to protect the natives in other lands assigned them as is exemplified in the region south of the James River. In 1665 the Indian boundary line for the area was designated to run from the southern branches of the Blackwater River to the Appomattox Indian town, and from there to Manakin Town located only a few miles above the Fall Line. By 1674 some of the colonists had crossed this line and were settling on the territory of the Nottoway Indians. When the encroachment was called to the attention of the Governor and Council, they ordered the English to withdraw immediately, and in the next instructions to the surveyor of the colony they again forbade the location of new grants in the region designated as Indian land.

The number of the aborigines gradually dwindled in this section as in other parts of the colony, due mainly to wars, smallpox epidemics, spirituous liquors, migration, and the abridgement of territory of a people who lived principally on the “spontaneous productions of nature.” Because of the decrease the Burgesses in 1685 appealed to Governor Howard for permission to allow grants to some of the land in the area. The Governor failed to comply with their requests. Later, in 1690, an order was issued for the immediate removal of several persons who had obtained illegal patents to land south of the main Blackwater Swamp. All members of the colony were again forbidden to settle beyond the boundary line, and any who had already constructed houses were ordered not to repair them nor to finish any other uncompleted buildings. The sheriffs and justices of the peace of Charles City, Surry, Isle of Wight, and Nansemond counties were instructed to be on the alert for violators of the order.

However, the Indians themselves, residing in the region on the south side of the Blackwater River and in Pamunkey Neck had requested in 1688 that colonists be allowed to settle across the boundary line in the area now made vacant by the gradual dying out of their tribes. The basis for the request seems to have been a desire for relief in their precarious economic condition and the fear of invasion by hostile Indians, whom they regarded with more apprehension than they did the English. By 1705, the colony, influenced by the request from the natives revoked its former law regarding the Indian boundary, permitting a limited number of white settlements in Pamunkey Neck and in the region south of the Blackwater Swamp and Nottoway River.

Thus in the seventeenth century the pendulum moved from a position of the colony ignoring any Indian rights in the land to a gradual recognition of the Indian right of occupation. This sweep of the pendulum brought the establishment of boundary lines between the whites and the Indians with reservations being designated for certain tribes. By the end of the century the diminution of the tribes found the pendulum swinging back to open the area to white settlement which had once been reserved to the natives, yet still retaining the recognition of the Indian’s right of occupation where tribes survived. With this survey of the problem of the red man’s title to land, let us now turn to a consideration of the white man’s title and how it was obtained in seventeenth-century Virginia.