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Landholding in Colonial North Carolina
Posted By Dennis Partridge On In Native American,North Carolina | No Comments
In 1663 His Majesty Charles II, out of the abundance of his American lands, granted the province of Carolina to eight of the chief nobles of his court. These gentlemen retained the property until 1629, when they sold it to the King. Here it remained until the War of the Revolution. Although these two supremacy’s, the one of the Lords Proprietors and the other of the King, represent the two distinct periods in the history of the colony, they indicate but little interruption in the history of its private law. This is especially true of the law relating to land. The basis for the future government was the charter by which the Lords Proprietors received their property. When the purchase by the King was made, there was no beginning the government de novo. The Crown simply stepped into the place vacated by the former owners. Proprietary laws were for the most part confirmed or but slightly altered. We thus see the importance of the charter of 1663, and can understand why the people in their periodic revisions of the laws saw fit to insert this instrument as a preface to their codes. It is therefore from this charter that we begin to trace the history of landlording in North Carolina.
Three facts relating to land stand prominently out in the royal charte:
The charter prescribes the relation between the Proprietors and their future tenants. The Lords, so we read, may at pleasure assign, alien, grant, demise, or enfeoff, the premises or any part, or parcel thereof to him or them that shall be willing to purchase the same, and to such person or persons as they [the guarantees] shall think fit, to have and to hold to them, the said person or persons, their heirs or assigns, in fee simple or in fee tail, or for terms of life, lives, or years ; to be held of them [the Lords Proprietors] and not of us, our heirs and successors.’ This grant involved a return to subinfeudation, and accordingly the King relaxed for the benefit of the Proprietors the statute Quia Emptores. To them also was accorded the right to erect seigniories and manors with the accompanying privileges of courts leet and barons. By way of being sufficiently explicit, the people who should settle in the colony were granted the right to hold their land on the above conditions, and were guaranteed the recognized personal and property rights of Englishmen.
The above-mentioned provisions represent one element in the development of the colonial land laws. That was the superimposed factor. It came from without. As it embodied the distinctive ideas of the promoters of the enterprise it may be called the Proprietors’, or the King’s, contribution to the process of growth which was about to begin. There was another factor, one due to the conditions of life in the colony. As this was interpreted and demanded by the people it may be termed the popular contribution to the same process. These two factors were brought to bear on the English Common Law, which the colonists may be considered to have carried with them across the Atlantic. The charter had granted to the Assembly the right to make laws consonant to reason and as near as may be to the laws of England.’ As more distinctively American conditions arose it was a question as to where the Common Law stopped and where the colonial law began. Confusion arose, and in 1711 the North Carolina Assembly was impelled to declare, not only that the Common Law was binding in the colony, but that all English statutes, especially those confirming inheritances and titles of land, should be enforced. This was not sufficient. In 1749 the Assembly by law declared which of the statutes of England should be recognized in the Colonial Courts. So decidedly did the law swing away from its original mooring that in 1775 it was well out in the stream of a new development. It shall be our task to take up and explain the new features of the law relating to land as they came into existence in the colony.
The most notable kind of landed estates in North Carolina, as in all the southern colonies, was the fee-simple estate held subject to quit rents. It was due to two facts:
The use of quit rents was retained throughout the Proprietary and Royal Periods, but it is doubtful if they were ever collected even fairly well. Yet in the Proprietary Period the amounts received from this source were considerable. At two different times Thomas Lowndes alleged that the quit rents were sufficient to defray the ordinary expenses of the government. Governor Burrington, however, does not corroborate this statement. The long contest over the manner of paying quit rents, which was waged by the Assembly against Governors Burrington and Johnston, reduced the revenues from this source to a small sum. It was also difficult to collect them. The chief trouble was to get a correct rent roll. The basis of this roll ought to have been the records of the original -rants and of the transfer of land between individuals. These records, however, were so carelessly kept that they could not be used for the purpose indicated. Several attempts were made to secure a general registration, but we have no evidence that any one of them was successful.
We cannot pass to the more technical phase of our subject without speaking of the Fundamental Constitutions. As the Proprietors did not seriously attempt to put them into operation a few words will be sufficient here. In respect of personal freedom they were liberally conceived. In respect of landed property and the social organization depending on it, they were decidedly reactionary. They were ill suited to the people for whom they were intended, and met with slight respect from those who originated them. While it is doubtless true that the Lords desired to put them into possession, it is also true that they never seriously attempted to do it. Along with the first copy that arrived in the colony came a set of rules which were to be followed until the more elaborate system could be made to work. These rules constituted a temporary constitution, and under that the government was conducted. This is as near as the famous system ever came to a vital existence. The political development of the people was steadily away from it. Being intended for a full-grown cock it remained but an unhatched chick, with a few oscillations but never a sturdy stroke. It lingered in an uncertain state for about forty years, and then passed out of sight so quietly that the most painstaking research has not been able to determine when it ceased to exist.
The Fundamental Constitutions recognized six classes of landholders; Proprietors, Landgraves, Caciques, Lords of Manors, freemen and leetmen. The first three classes constituted the hereditary nobility. The size of their estates was prescribed by law. Their lands were indivisible, inalienable, and descended according to the rules of primogeniture. These nobles could grant lands for not exceeding three lives or twenty-one years, provided they retained one-third of their property as demesne. Each of these three ranks were to constitute one of the four estates which made up the parliament. There were to be eight properties—one for each Proprietor—one Landgrave, and one Cacique in each County. The land of all these together was to be two-fifths of the County. Manors could be created within certain limits. They were alienable but not divisible. The Lord of the Manor could not grant a part of the manor for longer than three lives or twenty-one years. Each of these four classes had leetmen and could hold courts leet. The freemen held directly under the Proprietors as a body and were required-as well as all other landowners-to believe in a God, who was ‘publicly and solemnly to be worshiped.’ A leetman could not move off from his lord’s estate without that lord’s written permission. The rank was inherited or entered voluntarily. On the marriage of a leetman or a leetwoman the lord was to give the pair ten acres of land for their lives, and for this not more than one-eighth of the yearly produce could be taken as rent.
Sir Walter Raleigh’s first expedition to Roanoke Island carried to England a young Indian chief called Manteo. Him the next expedition brought back so full of Christian ides that he was forthwith baptized and made ‘Lord of Roanke.’ This incident illustrates the attitude of the white man towards the red man’s land. Everywhere the former claimed all the land and then assumed to allow the latter to hold a part of it as a tenant. For a space the two parties lived side by side, usually as allies. Then there was war. The European won and was in possession to establish his claim.
This process is clearly seen in North Carolina. In 1691 the Proprietors declared that they had long since taken the Indians under their protection ‘as subjects to the monarchy of England.’ War came twenty years later, and immediately afterwards the Indians’ lands were surveyed, that is to say, the savages were restricted to what we should now call ‘reservations.’ In order to secure this land to the Indians a law was passed which forbade any white man without the consent of the Council to purchase any land that was claimed, or actually possessed, by an Indian.
The estate of the Red Men in their land was merely one of possession. An Act of 1729 (chap. 2) stipulated that the transaction under consideration should not be construed to ‘invest the fee simple of the said lands in the Indians.’ If, however, an Indian held land individually this Act was not to apply to him. In 1748 (ch. 3, 2d section) an Act was passed to ascertain the bounds of the Tuscarora lands. These lands had been confirmed by treaty in 1713. They were now confirmed anew to the Tuscaroras, their heirs, and successors forever, or so long as they should live on them. The Indians were to pay quit rents, and no person for any consideration was to purchase any of the land. Those whites then living on it were required to leave at once, but persons who had received grants for parts of it might enter and enjoy the same as soon as the savages had moved off. When in 1776 (ch. 29) the Tuscaroras as a tribe sold their lands and left the province, the transfer was sanctioned by the Assembly. The mere consent of the Council does not seem to have been considered sufficient to convey a good title.
Alienation. The ordinary form of land transfer in North Carolina was the deed. Its popularity was perhaps as much due to the fact that it was employed by the Proprietors in granting lands to settlers as to its superior convenience. It seems to have supplanted all other forms, except perhaps lease and release. Certain it is that fines and recoveries were not in use in North Carolina.
The absence of fines and recoveries caused inconvenience in reference to two kinds of transfers:
In regard to the former it was the early custom for the husband to convey with his wife’s consent or for both to convey jointly, acknowledging the conveyance in Court after the wife was privately examined. By Act of 1715 (ch. 28) the latter was made the proper method, but the law was declared not to apply to entails. A difficulty arose from the inconvenience of getting the consent in Court of a feme who was either seriously sick or out of the province. In 1751 this was remedied by requiring in such cases, in addition to the husband’s acknowledgement, a commission from the clerk to some third party who was to examine the wife as to her consent and report under oath to the Court.
In the early period entails were barred by private Acts of the Assembly. The expense of this prevented ordinarily the alienation of small estates tail. In 1749 (ch. 4, 1st session) the Assembly enacted that entailed estates of less than fifty pounds value should thenceforth be alienated by a deed of bargain and sale for a valuable consideration actually delivered. Such a conveyance was to pass the fee and to bar the entail, remainder, and reversion. To determine the value of such an estate the Secretary of the province was to issue a writ ad quod damnum under which the Sheriff was to appoint a number of ‘good and lawful men’ to value the land in question and to report on the same. Such a deed of bargain and sale must be acknowledged in Court and duly registered. The more valuable entailed estates continued to be barred, as formerly, by means of private bills.
Alienation by inheritance followed the general English practice, which was primogeniture. This view is supported by two facts. (1) There is not on the statute book any law which interferes with primogeniture. We should therefore expect the English practice to prevail. (2) We find in various records several references to the ‘heir-atlaw’ in a way which indicates that one of the heirs of an intestate ancestor had landed right superior to those of the other heirs. The Act cited in note 3 indicates that primogeniture was stronger in the colony as a custom than as a right. Its importance was generally lessened by the free alienation by wills and by the ready sale of land for debt. As for wills, they were made under the statutes 32 & 34 & 35 Henry VIII. Social and economic reasons made it difficult for an estate to pay off the debts of its owner,
From the beginning land deeds were required to be registered. In 1665, twelve years before the Statute of Frauds, the proprietors established the office of Registrar. The Registrar’s duty was to record grants from the Lords as well as ‘all conveyances of land house or houses from man to man, as also leases for land house or houses made or to be made by the landlord to any tenant for more than one year.’ The first deed registered was the valid one. At first a deed must be proved by two witnesses before the Governor or ‘some Chief Judge of a Court.’ Gradually the function was taken away from the Governor, and by 1715 it was centered in the local, or Precinct, Courts, where it remained ever afterwards. This law of 1715 (ch. 38) provided that all land deeds, except mortgages, must be registered within twelve months or they would not convey a valid title. Deeds thus executed passed estates in land, or rights to other estates, without livery of seizin, attornment, or other ceremony in the Law whatsoever.’ The first deed registered was the valid one, but if a first mortgage should be registered within fifty days a second one previously registered should not invalidate it. The giver of a second mortgage, the first remaining in force, was to lose its equity of redemption. Finally, a mortgage should not bar a widow of her right of dower.
This law did not entirely accomplish its object. In 1741 many persons through either ignorance or neglect had failed to register their deeds within the proper time. These were relieved by having their time extended one year. In 1756 the same class of delinquents had the time extended two years, and this same law was after that re-enacted five times before 1773.
An interesting fact in this connection is the adherence to the ancient custom of ‘processioning lands.’ In 1723 (ch. 4) an Act was passed providing that ‘the lands of every person in this government shall be processioned and the marks renewed once in every three years.’ Two freeholders, appointed for the purpose, and such others as would go along, were to go over the bounds of the land, finding and renewing the marks. These two men made report of their action to the Precinct Court, where the report was preserved by the clerk. Persons whose lands were twice ‘processioned’ were to be considered sole owners and might plead this Act to that end; provided, however, that this law should not defeat the rights of reversion and remainder, or the titles of orphans, femes coverts, lunatics, &c. Persons having these rights were to have liberty to sue for their rights within three years after the removal of disabilities. The law for processioning remained on the statutebooks in 1773, but it is likely that it was but poorly enforced.
In the laws of 1715 (ch. 27) it was provided that all persons who who held titles through sales made by creditors, by husbands and wives jointly, by husbands in right of their wives or by endorsement of parents and who without suit in law should continue in possession for seven years, these persons should have the legal title. Moreover, persons claiming lands, tenements, and hereditaments must present their claims within seven years after the rights descended or accrued, or be debarred from suing afterwards. Orphans, femes coverts, and infants were allowed three years in which to make claim after the disabilities were removed. This law may possibly be very old law, for as has been said, the laws of 1715 were mostly revisions. Perhaps it is not too much to connect it with a provision of the Propreitors in 1665 which declared that all who quietly enjoyed their land for seven years should not be required to resurvey them for any consideration whatsoever.
The above law deals with occupation where there is ‘color of title.’ As to occupation ‘without color of title,’ we find no mention of it in the early history of the colony. It is as late as 1755 (ch. 5) that we find a law allowing a good title to those who could prove undisturbed possession for twenty years. Here also infants and femes coverts could sue within three years after removal of disabilities. This law was on the statute book of 1765, but in that of 1773 it was indicated as ‘repealed by proclamation.’ It embodies the only legislation on the subject that is to be found in the colonial laws.
JOHN S. BASSETT.
In 1663 the land held by the whites in North Carolina was claimed either by purchase from the Indians or by grant from Virginias. The Proprietors recognized the latter grants since they were settled according to the usual Virginia allotment, but because the former were large and irregular tracts it was thought that they ought to be reduced to the conditions of the regular allotments. After thus stating their opinions they left Sir William Berkeley, then Governor of Virginia and one of the Proprietors, to settle the matter as he saw fit. We hear nothing directly from Berkeley, but we have evidence that in each case holders were compelled to take out new patents.
The lands first taken were always those along the rivers, insomuch that it has been remarked that the early history of the colony was but the story of a search for bottom land. The Proprietors tried to regulate this demand by saying how much of a grant should lie on a stream. In the Royal Period the King tried to secure a similar result, by directing that of a land grant the side lying on the river should not be more than a fourth of the side at right angles to it.
In 1665 the Proprietors made their first formal proposals to settlers. They offered to each free man who had already come into Albemarle county eighty acres of land for himself and, if married, eighty acres for his wife. A free woman who had arrived with a servant was to have a like amount. For each able-bodied man-servant, armed and victualled for six months, the master or mistress was to have eighty acres, and for each weaker servant, ‘as women, children, and slaves’ above fourteen years, forty acres. Every Christian servant was promised forty acres at the expiration of the period of servitude. Those who should arrive in the next three years were respectively to have sixty and thirty acres instead of eighty and forty. Those arriving in the year 1668 were to have just half as much as those who had already settled there. These amounts were repeated with slight variation in the instructions to Governors until 1684 and perhaps still later, but it is possible that they were not put into practice. In 1694 it was the custom to grant fifty acres to each person brought in without regard to sex or condition. This was in imitation of the Virginia custom with which it was identical. At any rate, from 1694 ‘proving a right’ meant in the colony taking up fifty acres of land for importing one person.
Abuses at times crept into the land office. One of these was allowing a man to prove a right for each time lie had come into the country. One James Minge proved on one occasion six rights for himself and four for his Negro Robin. To remedy this evil the Council ordered in 1712 that thenceforth a man could prove but one importation for one person. Another abuse was in surveying improperly. In 1729 Maurice Moore received a tract whose survey called for 1,000 acres. Twenty years later it was resurveyed and found to contain 3,834 acres5. Against this there was a law on the statute-books as early as 1715, and as late as 1752, which provided that if a man suspected his estate to contain more land than his survey specified lie might have it resurveyed, and if the surplus were greater than one-tenth of the whole he should either forfeit the same or take out a patent for it. This, however, was a rather lame remedy, inasmuch as it left the initiative to come from the holder.
The right to receive land for importations could be proved either before the Council, the General Court, or the Precinct Courts. As the province became more extensively settled it was left almost entirely to the last-mentioned body. This condition, however, was reversed in the Royal Period, where we find it almost entirely in the hands of the Council, called for this purpose the Court of Claims.
A noticeable fact in the history of landholding in North Carolina was the usual smallness of the estates. Large estates would scatter the population and consequently would endanger the existence of a young colony. The people understood this, and one of their earliest laws—confirmed by the Proprietors in 1670-declared that no surveyor should lay out for one person more than 660 acres ‘in one devidend,’ unless the person had special permission from the Lords. This law was to expire in five years, but its spirit continued. Early in the next century the Proprietors limited all ordinary sales to 640 acres in one tract, and the royal governors were instructed to the same end. Larger grants were occasionally met with, but these rarely held over three or four thousand acres. To this there is one exception. In 1737 Murray Crymble and others secured a grant of 1,200,000 acres on which they obligated to settle within ten years one white person for each one hundred acres. The enterprise was hardly a success. When it was finally closed up much more than half of the land lapsed to the Crown, and the remainder was left in the hands of smallholders. The whole affair was a speculation and left no impression on the land system.
When the King purchased Carolina one of the Proprietors did not sell his share of the land. In 1744 this share was laid off to him, and it fell in North Carolina. The Proprietor was Lord Carteret, or Earl Granville as he had been created. He possessed his estates like any other private citizen. He continued to collect his fines, escheats, and forfeitures, as formerly, and to sell land for quit rents. When war broke out with Great Britain the State Government confiscated this property.
By their grant the Proprietors had the incidents of escheat and forfeiture as well as the minor rights of wreckage, wastes, fisheries, etc. These are the only survivals of the older feudal incidents in the colonial laws.
Land was granted on condition that it should be properly ‘seated’ within three years. In 1722 it was held that this was done when the grantee had built a house on, and had cultivated one acre of, each tract granted. The Governor and Council decided whether or not this had been done, and the minutes of this body show that a large part of its business was hearing petitions to declare older grants forfeited and to issue new grants for the same.
Land escheated as under the Common Law on failure of heirs and for conviction of felony, treason, or felo de s. We find but slight mention of the latter cause, most escheats being for failure of heirs, which was held to have occurred when there were no heirs in the province. Like its English model, the County Palatine of Durham, North Carolina had an Escheator with various local deputies. His duty was restricted to deciding whether or not the deceased had heirs. This he accomplished with the assistance of a jury of twelve men, whose verdict he communicated to the Council. Escheatable lands reverted immediately on the death of an intestate holder without heirs. This was important, because the person in actual possession at the moment of escheat might make composition for the land at twopence an acre. The relatives of the deceased holder who were not heirs were given a preference in taking the escheated land on the payment of the composition money. The following was the order as established by the Assembly: the widow or the widower; the father; the mother; the eldest half-brother; the half-sister or halfsisters, each sharing alike; the nearest of kin; and finally the nearest person who should petition for it. The composition money was all that was paid to secure the land, ‘ be the improvement more or less.’ Heirs to land that had been escheated for seven years were debarred from suing to recover the same.
By the royal charter the Proprietors were granted the privileges of mines—for which they were to pay one-fifth of all gold and silver ore—together with the right to wrecks, fisheries, chases, etc. At first they reserved mines for themselves, but by 1712 they were granting them to individuals for a share of the minerals taken out. The privileges of hunting, fishing, and hawking they readily granted with the land. They also established wreckers whose duty it was to recover ‘all wrecks, ambergrice, and other ejections of the sea.’ This office is mentioned in the early correspondence only, and it is probable that it was soon abandoned.
and consequently it was thought best to sell it. By an early law the lands of persons who had left the colony were held for debt. This was repealed in 1746. An English statute (5 Geo. II), called. ‘An Act for the more Easy Recovery of Debts in His Majesty’s Plantations,’ related these laws. In 1764 North Carolina made a law supplementary to the British Act, but it was disallowed by the King.
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