Feudal Prerogative and Colonial Land

I observe in that clause of my commission which impowers [sic] my granting of lands and directs the reservation of a Quit Rent, the words are â€?for what yearly Quit Rent you shall think fit’. Now the words You shall thinkfit are very extensive words, and if I be a knave I will fob the Crown off with a Racoon skin per Ann: out of nine hundred thousand acres of land and will thinke fit to compound with the grantee for a good fine to myself.1⁴

Throughout the first half of the eighteenth century, efforts by governors and lords proprietary to organise quitrents into a source of income were spasmodic and controversial, encountering considerable resistance on the ground in those (non-Puritan) colonies where they had been introduced. Of the royal colonies, the collection of quitrents was most efficient in Virginia and part of the funds collected there actually reached the English treasury?⁵ In 1766 Lord Shelburne sent a circular to the Governors to provide â€?a full and clear Account of the manner of imposing Quit Rents and of levying them, as also the mode of granting Lands in your Colony; specifying the amounts of the arrears of Quit Rents, and the number of Grants hitherto made, and to whom, how many Acres to each, and at what time the Grants have been made’.^{[1046] [1047] [1048] As Shelburne admitted to General Gage, the imperial government was by then looking at land revenue and using the feudal prerogative for a more coherent - and extractive - policy through reform of the quitrent system:}

The forming an American fund to support the exigencies of government in the same manner as is done in Ireland, is what is so highly reasonable that it must take place sooner or later.

Shelburne’s plan did not appeal to his ministerial colleagues, Charles Town­shend in particular who was pursuing other options that involved statute. Nonetheless Shelburne’s circular became known in the colonies and raised fear of tax through prerogative (including governmental pursuit of arrears). The colonists did not object to quitrents as a matter of constitutional principle. They simply did not want to pay them. By the late 1760s any required payment into royal pockets was apt to be seen as a tax and disputed by the colonists.

In all British colonies the quitrent sums actually collected â€?were always af­fected by the refusal of the colonist to pay, by the difficulties of collection, and by the large outstanding arrears that everywhere accumulated’. When one took â€?the British colonies as a whole, there were many instances in which the system worked so badly that the obligation to pay remained little more than a dead letter’?⁸ Nonetheless the obligation remained and became more reviled by colonists into the mid-eighteenth century when feudal principle was reborn as a tool for the integrating and consolidating of imperial authority across its colonies and as some proprietaries sought to squeeze financial return. It was at this stage that the Norman Yoke became one of the symbols of absolutism and suppression of colonial growth.

The feudal land prerogative was the primary means through which imperial authorities had first lost and then sought to regain control of land policy in the seaboard colonies. By the early 1760s the parlous state of colonial land titles was clear and the turbulent politics of access to land were destabilising the colonies individually and in their relation with one another. Preferential pat­enting practices inconsistently applied from one gubernatorial regime to an­other, uneven collection of quitrents, colonial boundary disputes, and First Nations grievances were all grist to this mill and worsened by growth and pres­sure on land for settlement.

The feudal land prerogative further appealed to imperial administrators be­cause it did not require them to call upon imperial or colonial legislation. The Sugar Act (1764) and Stamp Act (1765) controversies raised acute sensitivity to imperial legislation that might touch upon colonial matters. Colonial opposi­tion to such legislation effectively scuppered the comprehensive statutory scheme envisaged by the �Plan of �64’ for the Indian trade and land.^[1049] By the mid-1760s imperial legislation represented a nuclear option best avoided. Co­lonial legislation was also an unpalatable option. The Board of Trade vetted these laws sharply so as to prevent encroachment on the rightful prerogative of the Crown or lords proprietor. Their Lordships knew the colonial assemblies would read any solicitation or even the passive allowance of legislation touch­ing upon land patenting as conferral of authority to the exclusion of preroga­tive. Push and pull as they might, colonial assemblies could make no inroad on the exercise of this jealously guarded prerogative.

It was in this context that Thomas Jefferson became critical of the land pre­rogative and its fiction of absolute Crown ownership of ungranted lands. There was much to his view of its more pointed interposition into the government of the colonies as a recent phenomenon but he glossed over the forces that had made this necessary. His view was that land titling ought to have been within the competence of the colonial legislators. The ancestors of the colonists �who migrated hither, were farmers, not lawyers’, he stated, and so �were early per­suaded to believe real’ the �fictitious principle that all lands belong originally to the king’. Possessions in America were, however, �undoubtedly of the allodial nature’. It was now the �time [...] for us to lay this matter before his majesty, and to declare that he has no right to grant lands of himself’. Land titling was a mat­ter for colonial institutions or, he added, playing to the feisty constituency of squatters and self-help settlers, for individual initiative where those had not acted:

From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself are assumed by that society, and subject to their allotment only.

Jefferson did not explicitly criticise land patenting practices so much as the fictitious use of feudalism to preserve and extend royal authority or a sort that belonged rightly and instead to the colonial assembly. He avoided criticism of the squatter communities who from their impoverished squalor and unlawful occupancy had built their own landholding systems that brazenly challenged governmental authority. By 1774, those assuming the leadership of the patriot cause did not want to alienate these communities by decrying them as lawless rabbles. A few years later Jefferson would be idealising the republican virtue of the small agrarian farmer.

As the doom of the Royal Proclamation showed, prerogative had its limita­tions as a legal means of originating imperial authority even where its disposi­tion was being organized prospectively for future patenting. These were ex­posed time and again with regard to the legal status of colonial land patents issued in circumstances that demanded revisiting. These patents could not be annulled other than by court proceedings, legislation or surrender. The inter­nal self-correction of office was unavailable to undo retroactively the rashness or profligacy of an earlier governor except to the extent the patentees might be willing to engage cooperatively any inquisitorial investigation. First Nations whose land had been fraudulently purchased and wrongly included in patents could not grasp the limited range of responses available to imperial authori­ties. This became a source of mounting friction.

In 1758, at Easton, Governor Denny of Pennsylvania disowned a purchase which had been made in murky circumstances by the lords proprietary four years earlier during the Albany Congress (a meeting of representatives from each of the colonial legislatures held in mid-1754).

Certainly Shelburne and his two Indian Superintendents Johnson and Stu­art were convinced by the mid-1760s that First Nations land grievances were a major cause of instability that had worsened rather than improved after defeat of the French. Reading the dispatches from his Superintendents convinced Shelburne, in 1767, that �the disorders and inconveniences attending the back settlements and Indian trade have principally proceeded from the fraudulent grants and purchases of land that have been so long suffered to prevail'.^{[1051] [1052] Wor­ryingly, any hope that the Ministry might have harboured for the Royal Procla­mation staving off a round of fresh grievances in relation to the western inte­rior was by then disappearing.}

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