Genealogists are often confronted with the problem of interpreting the meaning of an ancestor’s appearance (or absence) among headrights for patents. 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.
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.
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.)
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.
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.
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:
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.
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 analysis, see:
[The headright system was also used in Maryland, North Carolina, and South Carolina, though relatively few persons were claimed in the Carolinas.]
 They contained the language: “…whereas by the Ordinances and Constitutions made and set forth by the late Company, it is ordered and appointed that such lands and dividends as shall be due to any adventurers or planters of what condition or quality soever be laid out and assigned unto them by the Governor and Council here, and whereas the same power and authority is confirmed and granted by his Majestys letters Patent directed unto mee and the Counsell of state bearing date the fourteenth day of March 1625…”