Jefferson wrote in 1780 that the irregular claims and settlements which had covered the western country had become so extensive that no prudent man could venture to locate a new claim, and so numerous that in the common administration of justice it would have engrossed the whole time of the ordinary courts for years to have adjusted them.30 "So multifarious were they at the same time, that no established principles of law or equity could be applied for their determination; many of them being built on customs and habits which had grown up in that Country, being founded on modes of transmission peculiar to themselves, and which, having entered into almost every title could not be absolutely neglected." Such species of titles as "tomahawk improvements," "cabin rights," "corn rights," and "sugar-camp rights" were common. These rights were bought and sold just like more extensive improvements, or warrants, or land scrip.
"Tomahawk" rights were acquired by deadening a few trees near the head of a spring and marking the bark of some one or more of them with the initials of the name of the person who made the improvement. This practice was in the nature of a caveat issued against locations by others, and probably arose in the older colonies. In Maryland, at about the period of Cromwell's protectorate, Kilty says people began making locations for the purpose of guarding the lands they had in view from the operation of younger warrants until they should find it convenient to make their surveys; and at the same time grew up the custom of marking trees on lands the person had in view, preparatory to actual survey. The surveyor-general himself gave permission to do this. Many pioneers believed that land north of the Ohio could ultimately be got "for taking it up," as it had been in the western parts of Pennsylvania and Virginia; in anticipation of this a large tract of country between the Ohio and Muskingum was parcelled out in tomahawk improvements, not confined to such small tracts as the usual four hundred acres, but including very large areas. "Many of the land jobbers of this class did not content themselves with marking the trees at the usual height, with the initials of their names; but climbed up the large beech trees, and cut the letters in their bark from twenty to forty feet from the ground. To enable them to identify those trees at a future period, they made marks on other trees around them as references." In the summer of 1786, Colonel Harmar wrote the secretary of war:
''These men on the frontier have been accustomed to seat themselves on the best of lands, making a tomahawk right or improvement, as they term it, supposing that to be a sufficient title.'' There could not have been much efficacy in such improvements. Occasionally, people who wished to settle on the tracts thus staked off bought up the tomahawk improvements rather than enter into quarrels with those who had made them. But sturdy, determined settlers usually disregarded them, and held their own against claimants under such rights. Often a man would not insist on his rights gained so cheaply. Isaac Van Meter came to Virginia in 1736 and made a tomahawk improvement on some lands immediately above the '' trough.'' He then returned north, and did not come south again till 1740, at which time he found a settler on his land. He bought him out and then moved there himself.
Cabin rights and corn rights were rights to land acquired by ' building a log cabin or raising a crop of corn. But these did not have much vogue till after the Virginia land legislature of 1779.33 In this year, Virginia found it necessary to give way to the torrents of people pouring into the region now formed into West Virginia and Kentucky and to open a land office. No title by settlement had been recognized under the royal government, but now the laws were passed which granted not only preemption rights to new settlers, but also introduced the generous system of "settlement rights." The two are so intimately connected that they must be explained together. Out of the medley of claims a few definite ones were selected as the basis for a title.
Settlement rights were rights to four hundred acres of land allowed to every person or family who had really settled or caused at their cost others to settle themselves before January 1, 1778, on any waste lands to which no one else had any legal right or claim. For this they should pay practically two cents an acre—two dollars and a quarter for every hundred acres. Settlement was defined to mean making one crop of corn in that country, or residence there of at least one year since the time of first settlement. Those who had settled in villages before January 1, 1778, were also to receive for each family four hundred acres, adjacent to the village. Any settler who had had a legal survey made for him since 1763 for less than four hundred acres might claim enough adjoining waste land as would make up that quantity. In addition to these generous gifts, preemption rights to 1,000 acres of unappropriated land were allowed to all who, previous to January 1, 1778, had selected a tract and either built a house on it or made other improvements. To all other actual settlers since January 1778, preemption rights only to the standard amount (400 acres) were granted at the state price. The same privilege, practically, was granted to the squatters on companies' lands, as the law required the company to confirm to them their titles upon payment of the price (plus interest) at which such lands were offered for sale when they •were settled. Great care was exercised to safeguard the possessions of the early settlers. Locations by officers and soldiers on lands actually settled were void; the register of the land office was ordered to prevent people claiming under warrants for preemption from interfering with those claiming under certificates ef settlement. Due preference was to be given the latter.
These ideas were not new in Virginia thought and practice. The head-right system was ingrained in Virginia traditions. Jefferson, in his Summary View of 1774, had declared that each individual of a society might appropriate to himself such lands as he found vacant and occupancy would give him a title." And in the proposed Constitution for Virginia drawn up by him in 1776, it was provided that "every person of full age neither owning nor having owned fifty acres of land (should) he entitled to an appropriation of fifty acres or to so much as shall make up what he owns or has owned, fifty acres in full and absolute dominion." An early preemption act was passed in 1776 hy the convention of delegates. Inhabitants of the western frontier had sent in petitions complaining of the exorbitant demands on them by people pretending to derive titles from Indian purchases and deeds. The convention ruled that all persons who were actually settled on any unlocated or unappropriated lands in Virginia to which there was no other just claim, should have the preemption or preference in the grants to such lands. This appears to be the first use of "preemption" as applied to individual settlers. The legislation of 1779 was not only a recognition that some allowance was due first settlers for the charge and risk they had incurred; it was a legal expression of a wide-spread sentiment that the value of improvements compensated for any lack in the title, that the squatter was really a benefactor to the state, and not a trespasser. This was natural as in most of the colonies from the beginning the need of settlement had been emphasized. Land had been freely offered to any one who would actually take up his residence in the wilderness, and most grants were conditioned on settlement within a given time and lapsed if this were not done. All this made settlement the predominant consideration, and so long as that was carried out, it seemed a small matter whether it anticipated or followed a regular grant.
And those who bore the burden of actually cultivating the soil and introducing some elements of civilization could not be regarded, except by the wealthy landholders, in any but an indulgent view, even if they had no legal right thus to occupy the land. A good defence of the squatters was made in 1738 by a Pennsylvania surveyor in a letter concerning one settler without valid title: " It is my opinion that the Improving and cultivating the Land in Pennsylvania is a General Interest and Credit to the Province in Part as well as to the laboring man that gets his living upon the Improvements, for it adds to the supply of the Market at Philadelphia, and elsewhere among ourselves, besides the Commodities that's transported and the addition that is made to the Bulk of our Trade; and besides, the poor settlers under that Favorable Indulgence of our Worthy Proprietors do their suit and service, pays Taxes, maintains Roads as well as free holders.""
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