There was a certain irony that these newcomers should now be amongst the hungriest of all America’s property-owners, relying on the surveys and chains that had driven them off their homeland. But in 1628 the landed gentry in Parliament had forced King Charles I to accept the Petition of Right which guaranteed the right of the property-owner not ‘to be put out of his land or tenements … without being brought to answer by the due process of law’; and none knew better than the dispossessed how powerful was the lure of owning a farm which could not be taken away.
It was from England that the idea of land as property had originally come, and it was no coincidence that with it had arrived Gunter’s chain – twenty-two precisely calibrated yards, each exactly thirty-six inches long (plus that miserly 0.015 of an inch extra that would not be discovered for almost two centuries) – and the practice of showing an estate’s exact extent on a surveyor’s plat drawn to scale. From England came too the philosophical underpinning developed by John Locke that the individual earned a right to property by ‘mixing his labour’ with what had once been held in common. Every landowner who had ever enclosed, manured and improved a field understood this proposition perfectly, but by 1750 the American idea of property had evolved further.
What surveyors like George Washington, Peter Jefferson and Daniel Boone were doing was speculating on the future value of land. However much they could earn from surveying fees, it was dwarfed by the profits to be made from buying good land cheap. ‘The greatest Estates we have in this Colony,’ the young George Washington acknowledged after a summer spent surveying the vast Fairfax estates, ‘were made … by taking up & purchasing at very low rates the rich back Lands which were thought nothing of in those days, but are now the most valuable Lands we possess.’ In 1752, at the age of twenty, Washington purchased 1459 acres in Frederick County, in the Virginian piedmont, the first step in a career of land-dealing that eventually made him owner of over fifty-two thousand acres spread across six different states. He usually ‘improved’ his holdings by clearing them of trees, but for most speculators their property rights did not depend on any idea of ‘mixing their labour’ with the soil. Their sole claim to ownership lay in the survey and the map that came from it.
In 1751 Benjamin Franklin stated openly what was apparent to authorities on either side of the Atlantic, that the population of the colonies was growing at such speed it would double to 2.6 million by 1775. It would not be long, he predicted provocatively, before ‘the greatest number of Englishmen will be on this side of the water’. To some Americans, that prospect raised constitutional questions about being controlled from across the Atlantic; but to the planters of Virginia and the Carolinas, and to financiers in New York and Philadelphia, it also indicated that the purchase of American land was a wise investment. Nowhere was it cheaper than west of the range of mountains known generally as the Appalachians, but divided from south to north into the Blue Ridge, the Alleghenies and the Adirondacks.
In 1756, a South Carolina surveyor, John William de Brahm, was sent to build a fort at Loudon on the Little Tennessee river on the other side of the mountains, in country that still belonged to the Cherokee Indians. ‘Their vallies are of the richest soil, equal to manure itself, impossible in appearance ever to wear out,’ he reported back in admiration. ‘Should this country once come into the hands of the Europeans, they may with propriety call it the American Canaan, for it will fully answer their industry and all methods of European culture, and do as well for European produce … This country seems longing for the hands of industry to receive its hidden treasures, which nature has been collecting and toiling since the beginning ready to deliver them up.’
Control of all this desirable territory as far west as the Mississippi still remained with the French but in 1763 they were forced to cede it to the British following their defeat in the French and Indian War. Soon other surveyors took the chance to follow de Brahm. Their findings were brought together in a famous map by Thomas Hutchins, not published until 1778, but whose attractions were known a decade earlier.
On the map’s crackling parchment, the Appalachians appear as a black, impenetrable mass of cross-hatching running from the bottom left-hand corner to the top right-hand corner; but west of them are broad rivers and rolling hills denoted by lines which curl gently towards the Mississippi and are interspersed with Hutchins’ own observations in neat italic writing: ‘A rich and level country’, ‘Very large natural meadows; innumerable herds of Buffaloe, Elk, Deer, etc feed here’, and along the Wabash river, ‘Here the country is level, rich and well timber’d and abounds in very extensive meadows and savannahs; and innumerable herds of Buffaloe, Elk, Deer, etc. It yields Rye, Hemp, Pea Vine, Wild Indigo, Red & White clover etc.’
Not even the promise of dancing-girls could have inflamed the colonial appetite more than the prospect of such fertility. That the land belonged to the Cherokee, Shawnee and Six Nations was a detail that could be overcome by personal negotiation, as Judge Richard Henderson and surveyor Boone did, or by killing and terror, as numerous others did. To the planters it was obvious that, with the French claims removed, the entire area between the mountains and the river now lay open for occupation.
But ownership of land is never simple. It includes rights not just to the soil, but to the metals below, the vegetation above, the sunlight and the air; to its use, development, access and enjoyment; and to much more that, for a fee, a lawyer will reveal. Since any or all of these may be rented, leased, loaned or distributed in different ways, landed property is usually described as a bundle of legal rights which can be split up and dealt with separately. Although no one can now claim all of them outright – environmental laws and national needs limit the owner’s rights – under feudal tenure they all belonged to the King. Thus, much of the 1629 charter creating the Massachusetts Bay Company is made up of lists of different types of land, forms of ownership and the way they are to be transferred. King Charles I promises to ‘give, graunt, bargaine, sell, alien, enfeoffe, allot, assigne and confirme’ to the Company all the ‘Landes and Groundes, Place and Places, Soyles, Woods and Wood Groundes, Havens, Portes, Rivers, Waters, Mynes, Mineralls, Jurisdiccons, Rightes, Royalties, Liberties, Freedomes, Immunities, Priviledges, Franchises, Preheminences, Hereditaments, and Comodities’. Nevertheless, ultimately the land still remained the King’s, to be held by the Company ‘in free and common soccage’ – which meant that having given, granted and all the rest, the Crown retained an overriding, feudal competence over that part of America.
It was because they were part of that feudal structure that the original proprietors had charged a quit-rent in place of feudal dues. But most of the proprietors had gone now, defeated by the settlers’ uncontrollable desire for land, and the colonial legislatures, such as Virginia’s House of Burgesses, were effectively forums for the colonists’ interests. It was easy for settlers, squatters and speculators looking longingly towards the land beyond the Appalachians to forget the King’s feudal power.
Then, on 7 October 1763, came a harsh reminder of the legal reality behind American property. By royal proclamation, George III declared it ‘to be our Royal Will and Pleasure … that no Governor or Commander in Chief in any of our Colonies or Plantations in America do presume for the present, and until our further Pleasure be Known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West’. In effect, a line had been drawn along the watershed of the Appalachians beyond which land could not be measured and owned, and everyone who had already settled west of it was commanded ‘forthwith [to] remove themselves from such settlements’.
The King had the right to order this, because legally all the land in British America was his; but it planted feudal authority full in the path of the property-seekers.