Difference between revisions of "User:Fwding/Sandbox"

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{{DISPLAYTITLE:''Women's Property Rights in Wythe's time''}}
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{{DISPLAYTITLE:''Disputes over land settlement in 18th-century western Virginia''}}
 
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Going through Wythe's Chancery Court's decisions, a reader might notice that whenever a woman is a party in a case, she is almost always represented in her capacity as a party by a man, often the woman's husband. This comes from women's unfortunate legal position in Wythe's day.  
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Some of the cases on Wythe's docket involved competing claims for land. These claims often arose out of Virginia's history in trying to lay claim to its western frontier.
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==Virginia law in the early 18th century==
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==The land companies==
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Virginian law in the early 18th century was a mixed bag for women. The English common law rule of ''coverture'' meant that married women were forbidden could only sue in court through their husband's name and that contracts wives agreed to before and during the marriage were void.<ref>"coverture", ''Black's Law Dictionary'', Bryan A. Garner, ed. (St. Paul, MN: Thomson Reuters, 10th ed., 2014): 446; Davis Thomas Konig, "Regionalism in Early American Law," in ''The Cambridge History of Law in America: Volume I: Early America (1580-1815)'', edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008): 172.</ref> Virginia, however, would often use courts of equity to help married women and widows keep control of what they owned.<ref>Konig, 172.</ref> Virginia women could also take advantage of the common-law rule of ''dower'', which gave a widow the right to one-third of her late husband's estate and some of his belongings for the rest of the widow's life. The rule of dower also said that husbands could not sell any real estate the couple owned while they were married unless the wife approved. A magistrate would speak privately with the wife to make sure that the husband wasn't forcing the wife to agree. Married women in Virginia during this time could also take advantage of the English law of ''separate estates''. Under this rule, the wife's land and belongings were held in trust for her and reserved for her use.<ref>Konig, 173.</ref>
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Virginia's original 1609 charter granted it the land for 200 miles north and south of [https://en.wikipedia.org/wiki/Old_Point_Comfort Old Point Comfort], located in present-day Hampton, from the eastern to western seashore. The Ohio Valley lay within this grant, but France also claimed that area, and the Virginia colonists knew they could not take on the French without help from London. In 1744, though, France signed a treaty that put it opposite Great Britain in the ongoing [https://en.wikipedia.org/wiki/War_of_the_Austrian_Succession War of the Austrian Succession], and Virginia felt comfortable attempting to settle the valley.<ref>Otis K. Rice, ''The Allegheny Frontier: West Virginia Beginnings, 1730-1830'' (Lexington, KY: Univ. Press of Ky., 1970): 33-34.</ref>  
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==Wythe's era and Blackstone's rule of marital unity==
 
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By the late 18th century, though, women lost many of the protections under the common law they had before. Virginia followed the rule Blackstone set down in his Commentaries: an even stricter implementation of the idea of "unity of person between the husband and wife ; it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband."<ref>William Blackstone and St. George Tucker, ''Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia'' 3 (Philadelphia: William Young Birch and Abraham Small, 1803): 432.</ref> The wife still had the right of dower in real estate she brought into the marriage, so her husband was only entitled to the profits made off of that land. Any personal property the wife brought to the marriage, however, was free to be disposed of as the husband desired.<ref>Ibid.</ref> The option for a separate estate for the wife's belongings and land was no more.<ref>Holly Brewer, "The Transformation of Domestic Law," in ''The Cambridge History of Law in America: Volume I: Early America (1580-1815)'', edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008): 317-318.</ref>
 
  
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If a wife wished to file suit in court, or it someone wanted to sue her, it would still have to be done through her husband's name.<ref>Blackstone and Tucker, 2: 443.</ref> Blackstone's rule of a "union of person in husband and wife" likely led to some cases filed in the name of the wife that ran against the wife's true interest - say, by a husband trying to add to the "marital" (read his) property by suing to get rid of an inconvenient restriction.<ref>Edmund Pendleton thought that such trickery was afoot in the case of ''[[Fowler v. Saunders]]''.</ref>  
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Virginia's colonial government arranged deals with land speculators to help settle this frontier because it had worked well before. The speculators would form land companies. Virginia then granted land to those companies, which sold title to the land to would-be settlers. Virginia would granted the land companies 1,000 acres of land for every family settled, so long as those families settled within four years from the original grant.<ref>Rice, 34.</ref>
  
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Blackstone thought that his strict rule of marital unity was for the benefit of women, saying that "(s)o great a favourite is the female sex of the laws of England."<ref>Blackstone and Tucker, 2: 445.</ref> [[St. George Tucker]] was not convinced. In his commentaries on Blackstone, Tucker said that "(n)othing, I apprehend, would more conciliate the good will of the student in favour of the laws of England, than a persuasion that they had shewn a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve."<ref>Blackstone and Tucker, 2: 445, fn. *.</ref>
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The Greenbrier Company was the first land company to get a grant. Its members were powerful and also had previous experience settling frontier lands, which likely helped it become one of the most successful land companies, and managed to successfully survey at least 50,000 acres of land in the [https://en.wikipedia.org/wiki/Greenbrier_%28Great_Smoky_Mountains%29 Greenbrier Valley].<ref>Rice, 34-35.</ref> Another land company, the Loyal Company, did not do as well; the Loyal Company lost at least one 50,000-acre land grant because they failed to settle any families there.<ref>Rice, 35.</ref>
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==The French and Indian War and the Proclamation of 1763==
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The [https://en.wikipedia.org/wiki/French_and_Indian_War French and Indian War] complicated Virginia's expansion efforts. A poorly-executed offensive by British forces in 1755 depleted their ranks and forced them to retreat eastward. As a result, settlers in the Greenbrier Valley were practically defenseless against the French's American Indian allies. Practically all the settlers in the area abandoned their homestead that year to escape the slaughter.<ref>Rice, 40-41.</ref>
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==Military Land Warrants==
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In order to bolster its army's and navy's ranks during times of conflict, Virginia awarded land rights to people who served its military during the French and Indian War<ref>Daphne Gentry, "Colonial Wars Bounty Lands," Library of Virginia, accessed October 24, 2014, [http://www.lva.virginia.gov/public/guides/va16_colonial.htm].</ref> and to those who served for at least three years in the Virginia army or navy or the Continental army.<ref>"About the Revolutionary War Bounty Warrants", Library of Virginia, accessed Oct. 24, 2014, [http://www.lva.virginia.gov/public/guides/opac/bountyabout.htm].</ref> These land grants were often called "military warrants", and gave their holder the right to a certain amount of land in a designated area of Virginia's western frontier. A surveyor would later determine the land's precise boundaries.<ref>"About the Revolutionary War Bounty Warrants."</ref> Many of the veterans would never personally settle their gifted land, opting to sell their military warrants to speculators instead.<ref>"About the Revolutionary War Bounty Warrants."</ref>
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==After the French and Indian War==
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Great Britain gained large amounts of French territory when the French and Indian War concluded, but London still wanted to settle its relations with the American Indian tribes on the colonies' western frontier. As a result, King George III issued the [https://en.wikipedia.org/wiki/Royal_Proclamation_of_1763 Proclamation of 1763].<ref>Reprinted in Clarence S. Brigham, ''British royal proclamations relating to America, 1603-1783'' (Worcester, MA: American Antiquarian Society, 1911): 212, available at [https://archive.org/details/royalproclamations12brigrich].</ref> This proclamation banned any British settlements west of the Allegheny Mountains, and with a few exceptions, settlers grudgingly complied.<ref>Rice, 59.</ref> This proclamation would present a problem for settlers down the road, as it made it effectively impossible for settlers to survey and register any land they had claimed before the French and Indian War began.<ref>Kirtland, 238.</ref>  
  
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Equity courts, however, made efforts to give women separate property rights they had under the common law before Blackstone's doctrine took hold.<ref>Brewer, 317-18.</ref> As the chancellor for Virginia's High Court of Chancery, Wythe followed in this tradition, doing what he could to protect women's property rights against ill-intentioned guardians and husbands.<ref>See ''[[Shermer v. Richardson]]'' for an example.</ref> Wythe's high opinion of civil law traditions may have also played a part. As Blackstone noted, under the civil law followed by many European nations, "the husband and the wife are considered as two distinct persons ; and may have separate estates, contracts, debts, and injuries".<ref>Blackstone and Tucker, 2: 444.</ref>
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The Loyal Company had more success after the French and Indian War was over and gained political influence; at the same time, the Greenbrier Company continued to be a powerful force. The Loyal Company claimed over 200,000 acres of land in western Virginia by the Revolutionary War. In addition, [http://www.history.org/Almanack/people/bios/biodun.cfm Virginia Governor Dunmore] told would-be frontier settlers that they would have to purchase land rights from either the Greenbrier or Loyal Companies or from veterans holding military land warrants.<ref>Rice, 78.</ref> In 1773, Governor Dunmore also issued an order allowing the Greenbrier and Loyal Companies to survey and develop their land grants, even though independent settlers were still not permitted to survey their claims in the area.<ref>Kirtland, 238, referring to "At a Council held December 16th 1773", in Vol. 6 of ''Executive Journals of the Council of Colonial Virginia,'' ed. Benjamin J. Hillman (Richmond, VA: Va. State Library, 1966): 553-554.</ref>  
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==The Virginia Land Law of 1779==
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By the late 1770s, someone who struck out on their own to claim land in western Virginia might have found themselves contending with multiple conflicting claims for the land they had settled; a person holding a military warrant might survey out the land for their use, and the Greenbrier and Loyal Companies still had vaguely-defined claims to thousands of acres. In 1779, the Virginia Assembly passed a law that created the Virginia Land Office as well as a system for settling disputes over land claims. The Land Law of 1779<ref>Ch. 12, 10 Hening 35; Ch. 13, 10 Hening 50 (May 1779 session).</ref> validated claims to land that were surveyed by an accredited county surveyor before 1778. Coincidentally, most accredited country surveyors belonged to either the Greenbrier or Loyal Companies, so rival land companies' claims ended up invalid under this law.
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Surveys of claims under 400 acres made before 1763 were also deemed valid, as were claims made under military warrants from the French and Indian War. Settlers on land who had arrived before 1778 could buy 400 acres for a small fee, and had preemption rights (the right to buy land provided no one had previously established title to it<ref>Bryan A. Garner, ed., "preemption", ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed., 2014): 1369.</ref>) to buy 1,000 adjacent acres at a cost of £40 per 100 acres. The Greenbrier and Loyal companies scored a big win, though, when the law confirmed thousands of acres-worth of their land claims that they had surveyed out.<ref>Rice, 129.</ref>
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The law created divided the area in Virginia around the Ohio Valley into four districts. The Governor of Virginia appointed a four-person commission to each of those districts to rule on any outstanding disputes over land claims.<ref>Rice, 129.</ref> Under the law, someone could appeal the commissions' decisions to the General Court of Virginia, whose word would be final.<ref>Kirtland, 239, citing Ch. 13, Hening, 10: 48.</ref> The Supreme Court of Appeals of Virginia, however, would weigh in on one of these disputes in [[Maze v. Hamiltons]], a case in which both Wythe and his nemesis Edmund Pendleton sat on the court.
 
==References==
 
==References==
 
<references/>
 
<references/>
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[[Category:Cases]]

Revision as of 18:24, 30 October 2014


Some of the cases on Wythe's docket involved competing claims for land. These claims often arose out of Virginia's history in trying to lay claim to its western frontier.

The land companies

Virginia's original 1609 charter granted it the land for 200 miles north and south of Old Point Comfort, located in present-day Hampton, from the eastern to western seashore. The Ohio Valley lay within this grant, but France also claimed that area, and the Virginia colonists knew they could not take on the French without help from London. In 1744, though, France signed a treaty that put it opposite Great Britain in the ongoing War of the Austrian Succession, and Virginia felt comfortable attempting to settle the valley.[1]

Virginia's colonial government arranged deals with land speculators to help settle this frontier because it had worked well before. The speculators would form land companies. Virginia then granted land to those companies, which sold title to the land to would-be settlers. Virginia would granted the land companies 1,000 acres of land for every family settled, so long as those families settled within four years from the original grant.[2]

The Greenbrier Company was the first land company to get a grant. Its members were powerful and also had previous experience settling frontier lands, which likely helped it become one of the most successful land companies, and managed to successfully survey at least 50,000 acres of land in the Greenbrier Valley.[3] Another land company, the Loyal Company, did not do as well; the Loyal Company lost at least one 50,000-acre land grant because they failed to settle any families there.[4]

The French and Indian War and the Proclamation of 1763

The French and Indian War complicated Virginia's expansion efforts. A poorly-executed offensive by British forces in 1755 depleted their ranks and forced them to retreat eastward. As a result, settlers in the Greenbrier Valley were practically defenseless against the French's American Indian allies. Practically all the settlers in the area abandoned their homestead that year to escape the slaughter.[5]

Military Land Warrants

In order to bolster its army's and navy's ranks during times of conflict, Virginia awarded land rights to people who served its military during the French and Indian War[6] and to those who served for at least three years in the Virginia army or navy or the Continental army.[7] These land grants were often called "military warrants", and gave their holder the right to a certain amount of land in a designated area of Virginia's western frontier. A surveyor would later determine the land's precise boundaries.[8] Many of the veterans would never personally settle their gifted land, opting to sell their military warrants to speculators instead.[9]

After the French and Indian War

Great Britain gained large amounts of French territory when the French and Indian War concluded, but London still wanted to settle its relations with the American Indian tribes on the colonies' western frontier. As a result, King George III issued the Proclamation of 1763.[10] This proclamation banned any British settlements west of the Allegheny Mountains, and with a few exceptions, settlers grudgingly complied.[11] This proclamation would present a problem for settlers down the road, as it made it effectively impossible for settlers to survey and register any land they had claimed before the French and Indian War began.[12]

The Loyal Company had more success after the French and Indian War was over and gained political influence; at the same time, the Greenbrier Company continued to be a powerful force. The Loyal Company claimed over 200,000 acres of land in western Virginia by the Revolutionary War. In addition, Virginia Governor Dunmore told would-be frontier settlers that they would have to purchase land rights from either the Greenbrier or Loyal Companies or from veterans holding military land warrants.[13] In 1773, Governor Dunmore also issued an order allowing the Greenbrier and Loyal Companies to survey and develop their land grants, even though independent settlers were still not permitted to survey their claims in the area.[14]

The Virginia Land Law of 1779

By the late 1770s, someone who struck out on their own to claim land in western Virginia might have found themselves contending with multiple conflicting claims for the land they had settled; a person holding a military warrant might survey out the land for their use, and the Greenbrier and Loyal Companies still had vaguely-defined claims to thousands of acres. In 1779, the Virginia Assembly passed a law that created the Virginia Land Office as well as a system for settling disputes over land claims. The Land Law of 1779[15] validated claims to land that were surveyed by an accredited county surveyor before 1778. Coincidentally, most accredited country surveyors belonged to either the Greenbrier or Loyal Companies, so rival land companies' claims ended up invalid under this law.

Surveys of claims under 400 acres made before 1763 were also deemed valid, as were claims made under military warrants from the French and Indian War. Settlers on land who had arrived before 1778 could buy 400 acres for a small fee, and had preemption rights (the right to buy land provided no one had previously established title to it[16]) to buy 1,000 adjacent acres at a cost of £40 per 100 acres. The Greenbrier and Loyal companies scored a big win, though, when the law confirmed thousands of acres-worth of their land claims that they had surveyed out.[17]

The law created divided the area in Virginia around the Ohio Valley into four districts. The Governor of Virginia appointed a four-person commission to each of those districts to rule on any outstanding disputes over land claims.[18] Under the law, someone could appeal the commissions' decisions to the General Court of Virginia, whose word would be final.[19] The Supreme Court of Appeals of Virginia, however, would weigh in on one of these disputes in Maze v. Hamiltons, a case in which both Wythe and his nemesis Edmund Pendleton sat on the court.

References

  1. ↑ Otis K. Rice, The Allegheny Frontier: West Virginia Beginnings, 1730-1830 (Lexington, KY: Univ. Press of Ky., 1970): 33-34.
  2. ↑ Rice, 34.
  3. ↑ Rice, 34-35.
  4. ↑ Rice, 35.
  5. ↑ Rice, 40-41.
  6. ↑ Daphne Gentry, "Colonial Wars Bounty Lands," Library of Virginia, accessed October 24, 2014, [1].
  7. ↑ "About the Revolutionary War Bounty Warrants", Library of Virginia, accessed Oct. 24, 2014, [2].
  8. ↑ "About the Revolutionary War Bounty Warrants."
  9. ↑ "About the Revolutionary War Bounty Warrants."
  10. ↑ Reprinted in Clarence S. Brigham, British royal proclamations relating to America, 1603-1783 (Worcester, MA: American Antiquarian Society, 1911): 212, available at [3].
  11. ↑ Rice, 59.
  12. ↑ Kirtland, 238.
  13. ↑ Rice, 78.
  14. ↑ Kirtland, 238, referring to "At a Council held December 16th 1773", in Vol. 6 of Executive Journals of the Council of Colonial Virginia, ed. Benjamin J. Hillman (Richmond, VA: Va. State Library, 1966): 553-554.
  15. ↑ Ch. 12, 10 Hening 35; Ch. 13, 10 Hening 50 (May 1779 session).
  16. ↑ Bryan A. Garner, ed., "preemption", Black's Law Dictionary (St. Paul, MN: Thomson Reuters, 10th ed., 2014): 1369.
  17. ↑ Rice, 129.
  18. ↑ Rice, 129.
  19. ↑ Kirtland, 239, citing Ch. 13, Hening, 10: 48.
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