Part 4 of 5 part series by James W. Petty

Abuses of the Headright system

Headright Certificates were originally intended as warrants to obtain property. But as shown, the Headright Certificates were a commodity, which became a currency in Colonial Virginia. The Land Office and County Courts became the Colonial Mint. As the Headright Land Patent system developed, abuses set in. As mentioned, previous writers on the Headright system have declared the concept that using Headright Certificates as a currency was an abuse of the patent system. This author disagrees, proposing instead that the use of certificates as a currency, like Tobacco, was popular and well accepted throughout the 17th Century in Virginia. The abuses pertained to how these documents were administered. It is not our role to evaluate the ethics of colonial businessmen, but understanding the abuses of the Headright system, the records, and the courts, help us to better understand these people.

In 1697 Henry Hartwell, James Blair, and Edward Chilton published a tract pertaining to the state of governmental affairs in the colony. They present the following description concerning headright abuses:

A…all Courts were very lavish in allowing certificates for rights: for if a master of a ship came into any Court and swore that he had imported himself and so many seamen and passengers at divers times into the country, and that he never elsewhere made use of these rights, he presently obtained an order for so many rights (i.e., so many times 50 acres of land) and these rights he would sell for a small matter. Perhaps the same seamen at another Court swore that they had adventured themselves so many times into the country and had not obtained an order for so many rights.

Likewise the masters who bought the servants thus imported would at another Court make oath that they had brought so many persons who had adventured themselves into the country and obtained so many rights. Thus the land still went away and the adventurers who remained in the country had the least share of it.

Again great liberties were used in issuing certificates for rights by the County Clerks, and especially by those of the Secretary’s office, which was and still is, a constant mint of those rights, where they may be purchased at from one shilling to five shillings per right… (My emphasis)

One must bear in mind that Henry Hartwell, James Blair, and Edward Chilton were concerned that large numbers of acres of land were being granted to just a few individuals as a result of the fraudulent duplication of headright certificates. They also complained about the improper sale of headrights, especially through the Land Office, which undercut the value of land through the inflation of the certificates.

Fairfax Harrison in his volume Virginia Land Grants – A Study of Conveyancing in Relation to Colonial Politics (The Old Dominion Press, Richmond, 1925), stated his opinion of the problem with the certificates was A…to point out that, to the serious injury of the colony, head rights had become a colonial currency. Harrison may have understood statements like the one given above by Hartwell, Blair and Chilton, as a condemnation of the use of certificates as currency. But, unlike the improper use, of surveys, resulting in legislation to resolve the abuse, Headright Certificates used as currency, had existed for nearly 80 years with no sign of discouragement from the government. Actually, their condemnation was directed at those who were justified in acquiring land, and those who were not; as well as the fraudulent methods being used to administer the system.

An example of possible duplication appears in the patent for Lewis Burwell on June 12, 1648, at which time Burwell was granted 2,350 acres for transporting 47 headrights. His list included Thomas Vand, Hump. Vand, Gerrard Hancorne, Robert Throndon, Susan Bayard, Henry Hubberd, William Cromp, Mary Wood, William Webb, Thomas Mase. There is no record of a Headright Certificate in York County issued to Lewis Burwell prior to this patent, but six weeks after the patent was recorded, on July 25, 1648, Thomas Vause appeared in York County Court and declared his personal right, and nine others, namely, Robert Thorndell, Mary Wood, Humphrey Vause, Susan Byard, Wm. Webb, Jarrott Hawthorne, Henry Hubart, Tho. Mace, and William Cro’pe. Vause was issued a Headright Certificate for 500 acres of land.

This list of ten names are the same ten noted above in Burwell’s patent, which raises some interesting possibilities. First, the name AVand, in the patent list, became AVause in the Court Order. The patent list would have been transcribed from a previously written certificate, whereas Thomas Vause actually appeared in County Court and gave his name. Therefore the Court Order record should be the most accurate. Second, Vause appears to be the original owner of his list of headrights, but he apparently sold it, along with his personal right, to Burwell, sometime prior to June 12, 1648, then after Burwell used this list to obtain a patent, Vause walked into a different court, and declared his right to his own personal adventure, and nine other headrights. Having no means to refute this claim, Vause was issued a Headright Certificate entitling him to 500 acres. Third, Vause’s list, given by himself in court, gave the same names as that part of Burwell’s list, but in a different order. Vause apparently wasn’t reading the list off of another certificate, suggesting the possibility that he was drawing upon his memory as to who he transported. This suggests that Vause may actually have transported and traveled with these nine people.

Edmund S. Morgan, like Harrison, also expressed a disparaging view about headright certificates used as currency. In a review article of the volume White, Red, and Black: The Seventeenth-Century Virginian, by Wesley Frank Craven (Charlottesville: The University Press of Virginia, 1975), he noted the example of one Howard Pryse, clerk of the Charles City County Court, Morgan showed that Pryse, between 1655 and 1657 took out 13 certificates in his name, pertaining to 672 headright names. Of those, only 20 headright names were used by Pryse to redeem for land. 446 headrights appear in the land patents of 19 different persons, and the remaining 226 names do not appear in the land patents at all. Professor Morgan went on to say: These were hardly typical cases. So far as I can tell from other samples, a majority, though a small majority, of the certificates were used by the persons who initially obtained them. Nevertheless, the existence of a trade in certificates makes one wonder about the number which may have floated in the market for some time before finding their way into patents.

Remember Petty’s paradigm…? Morgan is clearly mistaken here. He cannot know if a majority of certificate owners used their own certificates to obtain land, because all of the certificates submitted at the Land Office were destroyed at the end of the patent process. Therefore, one cannot state in whose name the certificates were originally given. As for the county certificates, it has been shown that perhaps 54% or more of those issued, never completed the patent process. And 80% of the county certificates were not redeemed for land by the people who originally received them. His own example showed an individual who redeemed only 3% of the headrights he obtained certificates for, and who apparently sold the remainder on the open market, which was an accepted practice in that day.

Morgan further cited as abuse, the high use of headright certificates in the mid 1660’s as: A…clearly signify land grabbing…but given the wide and varying gaps between arrivals and certificates, and between certificates and patents, it seems more plausible that the speculators were drawing on headrights earned by earlier immigrants. Morgan is correct that speculators were drawing on headrights earned by earlier immigrants! But if certificates were a salable commodity, which they were for over eighty years, what makes this Abuse?