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Show 62 HISTORY OF PUBLIC LAND LAW DEVELOPMENT settlement and subsequent survey by metes and bounds was inferior to New England's system of prior survey into rectangular units.5 The only important feature of the Virginia system that Jefferson's committee carried over into its recommendations was the delay of months between the filing of the warrant with certificate of location and the issue of the patent; this delay would permit adverse interests to enter a caveat setting forth the nature of their claims. Conflicting and overlapping claims were so common in Virginia that it seemed almost usual for caveats to be entered for the purpose of suspending patent proceedings until evidence could be presented in behalf of anterior claimants and a trial held. The United States was later to allow a somewhat similar privilege by announcing through local papers the imminence of final disposition of lands and warning adverse claimants to appear and offer evidence of why patents should not be issued. Jefferson was an agrarian who in 1776 had said that he was "against selling the lands at all." To make a charge for the public lands would fix upon poor settlers an obligation they could ill afford. "There is no equity in fixing upon them the whole burthen of this war, or any other proportion than we bear ourselves. By selling the lands to them, you will disgust them, and cause an avulsion to them from the common union. They will settle the lands in spite of everybody." The most often-quoted statement of Jefferson on public lands and the land policy of September 6, 1789, is equally forceful: "Whenever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The small land holders are the most precious part of a state."6 In drafting the first plan for a Land Ordinance in 1784, Jefferson drew on his own experience in the Virginia Legislature where he had drafted a bill to establish a land office. In that earlier measure, which was designed to encourage migration of foreigners, "promote Population," increase the revenue of Virginia, and create a fund for the discharge of the state's debts, he had provided for the continuation of headrights to immigrants and had favored grants of 75 acres to each native-born Virginian on his marriage. Beyond that, he favored sale. Headrights and small free grants would assure widespread ownership of land, which he regarded as the basis of democracy. There is close similarity between the two drafts of 1778 and 1784, except that headrights and free grants were not included in the latter. It must have been difficult for Jefferson, who was so sincerely devoted to agrarian democracy and who was, with Madison, critical of the activities of speculators, to have had a part in opening the public lands to them.7 Not only did his Ordinance of 1784 5 Julian P. Boyd, The Papers of Thomas Jefferson (Princeton, N. J., 1950), VII, 141, passim. 6 Jefferson to Edmund Pendleton, August 13, 1776, Boyd, The Papers of Thomas Jefferson, I, 492. 7 For the 1778 bill in the Virginia House see Boyd, Papers of Thomas Jefferson, I, 139. Some economic historians think of the term speculator as one of reproach, almost synonymous with one who manipulates. Since I will have to use it frequently in this account, I must explain the meaning of the term historically. A land speculator in the 18th or 19th century was one who either individually or with others bought up public land, perhaps built roads into it, possibly made other improvements, advertised his land in various ways to attract buyers who might be small speculators or actual settlers. Or, a speculator might have been perfectly passive about his investment, doing nothing to enhance its value and only waiting for the unearned increment which society might give the land. Robert Morris, the most constant land speculator of the late-18th century, whose schemes were scarcely matched in the Western Hemisphere, wrote in a prospectus of the North American Land Company: "The proprietor of back lands gives himself no other trouble about them than to pay taxes, which are inconsiderable. As nature left them, so they lie till circumstances give them value. The proprietor is then sought out by the settler who chanced to pitch upon them, or who has made an improvement thereon, and receives from him a price which fully repays his original advance with interest." (A. M. Sakolski, The Great American Land Bubble [New York, 1932], p. 48.) Misleading |