Genealogists are often confronted with the problem of interpreting the meaning of an ancestor’s appearance (or absence) among Virginia’s patent headrights. Assumptions are often made from these headright lists, which may not be valid. For example, it is often assumed that the patentee was the importer, or that the importation took place at approximately the same time as the issuance of the patent. It is further assumed that the headright was imported into the same county in which the land was located. But are these reasonable assumptions? Most, on inspection, prove not to be valid.
The following is specific to Virginia headrights and patents, but the same general system was followed in the Carolinas and Maryland.
Through most of Virginia’s colonial period, headrights were an important means of obtaining land. Until 1699 it was the only means of obtaining a patent (except for a certain few favored individuals and those in the Northern Neck.) The details of the headright system, though, are surprisingly vague.
Its origin is found in the London Company’s “Greate Charter” of 1618:
“That for all persons…which during the next seven years after Midsummer Day 1618 shall go into Virginia with the intent there to inhabite, if they continue there three years or dye after they are shipped there shall be a grant made of fifty acres for every person… which grants shall be made respectively to such persons and their heirs at whose charges the said persons going to inhabite in Virginia shall be transported…”
Clearly, the headright grant was available to any settler who financed the transportation of others into Virginia, or to a non-resident who did so, or to anyone who paid for his own transportation. There probably existed no better stimulant to immigration and settlement, with the obvious bonus of assuring that the expense was borne by private individuals.
In 1624, James I dissolved the Company and established Virginia as a royal colony. In March 1625 Charles I, now on the throne, gave to Governor Yeardley the same power and authority to make grants as under the former company. The form of letters patent issued immediately after dissolution of the Virginia Company reflect this commission. Charles I confirmed this authority to make headright grants on several later occasions using similar language.
For instance, in 1634 the Privy Council wrote to Governor Harvey that: ”…in pursuance of His Majesty’s gracious intention, wee doe hereby authorize you to dispose of such proportions of lands to all those planters beeing freemen as you had the power to doe before the year 1625.”
The commissions to the Royal Governors were quite vague as to details. For example, the 1639 commission to Governor Francis Wyatt, as found in the letters patent, instructed him to continue headright grants “according to the orders of the late Company…and likewise 50 acres of land to every person transported thither…until otherwise determined by His Majesty.” The commission to Governor William Berkeley in 1641 instructed him to grant fifty acres “for every person transported thither since Midsummer 1625 and… continue the same course to all persons transported thither until it shall otherwise be determined by his Majesty…” Note that the apparently indiscriminate use of “to” rather than “for” raises the question of whether the imported person was to receive the acreage, as in the Maryland colony. It seems obvious that this was not the intent in Virginia, for it was not observed and subsequent language reverted to earlier phrasing.
In 1651, the Act of Parliament for the settlement of affairs in Virginia confirmed that “the priviledge of haveing ffiftie acres of land for every person transported in that collonie shall continue as formerly granted.” This language was subsequently repeated in instructions given to the Virginia Governors, and is also repeated in various forms of patents issued after 1651. For example, the patent form adopted by the General Assembly in 1677 confirmed “the antient privileges and power of granting fifty acres of land for every person imported into this, his Majestie’s colony of Virginia…”
In 1699 the Governor and Council restricted headrights to British citizens, thus eliminating the headright for slaves (and for the small number of immigrating foreigners). In the same year treasury right patents were introduced, permitting one to patent land by simply paying a fee of five shillings per fifty acres. Although headright patents continued to be issued for several decades, their numbers declined considerably.
Who could be used as a headright?
The short answer is that any person immigrating into Virginia was a potential headright. As the documents quoted above make clear, anyone transported into Virginia with the intent to inhabit was a valid headright. (The early records of the Company suggest that those who died on the voyage were valid headrights as well.)
- There were initially no stated restrictions on point of origin. While the vast majority of 17th century immigrants to Virginia came from England, persons entering Virginia from Europe, the Caribbean, Africa, or even from other North American colonies were also legitimate headrights. There are several known cases of headrights who had simply moved across the Potomac River from Maryland. Some of the Indians claimed as headrights must surely have migrated from other mainland colonies. In 1699 Governor Nicholson eliminated the use of slaves as headrights, and restricted headrights to English citizens.
- There were no restrictions on age or gender. Headrights could be, and often were, children. Indeed, many if not most imported indentured servants were teenagers.
- Persons settled in Virginia who subsequently left the colony and returned were sometimes successfully claimed as headrights. A number of patents claimed importation of a specific person “the second time” or the “the third time” (or in one case, a total of six times.) Although this seems contradictory to the spirit of the system, it appears to have been an accepted practice from the very beginning, for several Ancient Planters claimed multiple rights for their own arrivals in Virginia.
- Because there was no system for validating or accounting for headright usage, headrights were often claimed more than once, and persons who had no “intent to inhabit” were used as headrights. More on this later.
Process for claiming headrights
The process required one to first produce a receipt, or make oath, of their right to the importation of one or more persons and to testify that no previous certificate had been issued for those persons. This proof could be produced either at a local county court or to the Council itself. The clerk issued a certificate of importation, which was then validated by the Secretary’s office. In counties where court records of the period survive, the issuance of hundreds of these certificates are recorded. Unfortunately, these records rarely indicate the date or other circumstances of the importations.
The certificate became, in effect, a land warrant. (The Secretary’s office actually issued a separate document which served as the warrant.) It was used to order a survey, at the completion of which both the certificate and survey were submitted to the Secretary’s office where the patent was prepared and the names usually copied into the patent. There was apparently no time limit on the use of these certificates. Most were used within a few years, but a few cases are known in which the certificate was not used for several decades.
Relationship between patentee and headright
Genealogists tend to assume that a headright was imported by the patentee who claimed him. This seems an unwarranted assumption. Unless we find a court record for the certificate, we can’t know the importer’s identity. Once obtained, headright certificates could be bought and sold like any other property, and the evidence is that they frequently changed hands prior to being turned into patent claims. Thus the person receiving the patent may have neither imported nor employed the headrights he claimed.
In fact, studies comparing court-issued certificates to the resulting patents indicate that about half of all patents were issued to someone other than the original headright certificate holder. For headright certificates issued 1637-1652 in Lower Norfolk, about 40% of headrights were claimed in patents by someone other than the person to whom the original certificate was issued. For Surry certificates issued a generation later in 1673-92, the percentage rose to 64%. [See the studies of Surry and Lower Norfolk headrights elsewhere on this website.]
Both studies also showed that personal headrights were transferred in about the same proportion as other rights. That is, persons who obtained headright certificates for the importation of themselves and family members transferred them to others about half the time.
What can we assume about the date of importation?
Genealogists also often assume that the importation of a headright occurred at about the same time as the patent date. In reality, the headrights had more than likely been imported at least a few years before the patent and perhaps several years earlier. There are two factors to consider:
- The lapsed time between the issuance of a headright certificate and the resulting patent for which it was used was typically several years. The referenced studies showed an average lag time of about five years in Surry County and about three years in Lower Norfolk County. However, the lag time varied considerably from patent to patent. A few certificates were used within a year, but others not for a decade or more. As an extreme example, Nicholas Sessums of Surry County obtained a certificate in 1710 for importing himself 44 years earlier, and that certificate was used by a different person to obtain a patent in 1716 using Sessum’s headright – 50 years after Sessums actually arrived in Virginia.
- As the Sessums example illustrates, the certificate itself may not have been obtained until some years after the person’s arrival. While the great majority of rights were surely secured in a more timely fashion, examples abound in both counties of certificates issued for transportation of persons who were already established in the community. In theory at least, a headright did not become usable until either dying or surviving for three years. Unfortunately, we don’t really know the extent to which this limitation was observed by the county courts because the date of importation is very rarely noted in court records. (The only instance I am aware of was for transportation of the claimant and his wife precisely three years earlier.) Further, numerous examples exist of patentees claiming the transportation of two and sometimes three wives, who were surely transported at different times.
Were all headrights used for patents?
We should be cautious about drawing any conclusion from the absence of an ancestor from the headright lists. Oddly, the majority of headright certificates were apparently never used to obtain patents. My own analysis of Surry and Lower Norfolk certificates, and an unpublished study of Accomack certificates, compared the names in headright certificates issued by county courts to the headrights claimed in patents (as published by Nugent), and found that more than half of all headright certificates were never used. [Some patents contain the number, but not the names, of the rights but even if we consider these the conclusion is not significantly altered.]
Certificates for large numbers of rights tended to be more likely to be used for patents, so that a somewhat smaller proportion of headrights, perhaps 40%, were unused. There are several reasons why rights may have been abandoned. Perhaps the rights holder died. Or the imported person, so that the number of rights available simply outnumber the available workers and therefore exceeded the demand for land for them to work. With an essentially unlimited land supply the value of labor significantly exceeded that of the land, and high mortality rates reduced the number of immigrants available to develop it. The average cost of passage from England in the mid 17th century was about £6 and the cost of outfitting a servant roughly doubled that cost, resulting in an expenditure that greatly exceeded the value of fifty acres of undeveloped land. The investment was recouped, not with land, but with the tobacco produced by the immigrants who lived.
Abuses of the system
With little or no auditing of rights, the system was capable of being abused. One form of abuse was the duplication of headrights. (Genealogists should be aware that the spelling of the name may have varied considerably.) Clerks either did not identify or ignored duplicate rights, so that the same certificate might be used more than once or the same person included on multiple certificates. The same claim might be submitted to more than one county court, thus resulting in a person being claimed more than once. (The studies of Surry and Lower Norfolk certificates found a few cases of the same person being claimed more than once within the same county.) Merchants, who acted as agents to supply servants, the planters to whom they were indentured, and perhaps even the ship master who transported them all could potentially have claimed the same persons.
Another form of abuse was the claim of rights for persons who had no intent to inhabit, such as sailors and traveling merchants. Hartwell, et al’s Present State of Virginia and the College, written in 1697, suggests that ship masters submitted entire manifests of both sailors and passengers, even though the sailors would leave on the next sailing and the passengers were also claimable by whoever paid their passage. Ships masters, having made no actual outlay, could afford to sell these rights at a low price and augment their profits from a voyage. Some apparently used their own rights to patent land, for there are several recorded patents to mariners which may have been granted on the basis of this type of right.
How extensive these practices may have been is difficult to determine, since many of the rights awarded were apparently never used for patents and perhaps half of the rest were transferred by the original certificate holder before surfacing in a patent record. The referenced studies of headright certificates, though they generated several examples of duplicate names, do not suggest that either practice was particularly common.
Perhaps more importantly, it appears that the use of fictitious or irrelevant names was common by the late 17th century. In 1696 the Board of Trade, in an effort to reform the land system, began soliciting testimony on a variety of subjects, including headright corruption. It received testimony from former Governor Francis Nicholson that the sale of headright names by his clerks in the early 1690s was “common practice.” Edward Randolph reported that “I have heard of many false certificates of rights. The practice is common…” Yet another report called the Secretary’s office a “mint of [head] rights, at which they may be purchased at from one shilling to five shillings per right.” It is understandable how this practice might have become both practical and customary in the years before the reintroduction of fee-simple patents. It is perhaps not entirely coincidental that the price of these patents was fixed at five shillings per fifty acres.
For more detailed information and a detailed analysis of seventeenth century Virginia headrights, see the following two papers: