By: Edward Spannaus
Part 1: Who was Tankerville?
People coming into the Lovettsville Museum often ask: “Who was Lovett?” Our answer is generally that he was a land speculator who never lived here.
But David Lovett was a piker compared to the real land speculators and absentee landlords who previously owned the land on which the German Settlement developed. The largest of these were two British noblemen: Thomas the 6th Lord Fairfax, and Charles, the Earl of Tankerville. The latter owned almost the entire eastern half of the German Settlement before, and even for some years after, the Revolutionary War.
My interest in this was aroused during my research into the lives of settlers in the German Settlement, and in particular Revolutionary War Patriots. I was struck by the fact that most of the Germans did not actually own the land that they farmed until well after the Revolutionary War; most don’t appear in the County land records at all until after the Revolution. The year 1793 jumps out as the year in which a number of the German settlers were finally able to purchase the land on which they had lived and farmed for many years or even decades. Notably, this was ten years after the end of the Revolutionary War.
The explanation often given for this, is that the Germans who came here from Pennsylvania were just “squatters” who were tolerated by the big landowners because they were good farmers and improved the land. That seems to be true, but it’s not a complete explanation.
To understand not just why the German settlers didn’t buy land, but why they couldn’t buy land, we have to start with the British manorial system of landholding which dominated Virginia and other colonies.
The Manorial System
In feudal England, land was the basis of wealth and social standing. The nobility owned the land (at the sufferance of the monarch, of course), collecting annual quitrents, and commoners had no possibility of ever possessing the land on which they lived and labored. (You know something about how that social system and its rigid class stratification worked, if you’ve watched films based on Jane Austen novels, or the knock-off series Bridgerton and related British dramas. The common story line is the desperate struggle to keep the country estate in the family and be able to pass it down through the generations.)
In the North American colonies, all the land technically belonged to the King, or Queen, and it was granted to the colonial officials through proprietorships or through charters. In northern Virginia, we have a clear case of this, where the five million acres of the “Northern Neck” – the land between the Potomac and Rappahannock Rivers – was granted by Charles II in 1649 to a syndicate centered on the Culpeper family. Through marriage and other devices, this vast territory was consolidated in the hands of Thomas Culpeper, the Fifth Lord Fairfax. His son, Thomas, the Sixth Lord Fairfax, inherited the land as a single tract, and he managed and controlled it until his death in 1782.
From time to time, Thomas sold or granted large chunks of the Fairfax Proprietary to various land speculators. One of these was a merchant and sometimes mariner named John Colville, who acquired various large parcels of land directly or indirectly. The tract that concerns us constituted the eastern half of the German settlement, which was acquired by Colville in 1742. It stretched from Dutchman’s Creek and the north side of what is now Lovettsville’s Broad Way, to almost everything east of Milltown Road to the Catoctin Mountains.
The Earl of Tankerville was Colville’s biggest creditor (they were related through marriage), and when Colville died in 1756, Tankerville was given large amount of land in Virginia and Maryland, and a large number of slaves, in satisfaction of Colville’s debts. He thus became one of the largest landowners in northern Virginia – although there is no indication that this nobleman from the north of England had any previous interest in the American colonies — and he is therefore of interest to us, since a large chunk of his landholdings were in the German Settlement, in what became Loudoun County in 1757.
Who was (or were) the Earls of Tankerville?
First of all, their name was Bennett (or Bennet). The “Earl of Tankerville” was a noble title bestowed upon Charles Bennett, the 2nd Baron Ossulton, in 1714. (An Earl is a higher rank than Baron). He was the father of another Charles Bennett (1716-1767), the 3rd Earl of Tankerville, who was the one who acquired lands in Loudoun County from John Colville. Charles the 3rd Earl was also a Knight of the Most Ancient and Noble Order of the Thistle, and was one of the “Gentlemen of the Bedchamber” to the Prince of Wales.[i]
Charles, who like the rest of his family never set foot in America, controlled his approximately 16,000 acres of land in northern Loudoun County through an agent, John Patterson. In March of 1759, Charles went before the Lord Mayor of London and designated Patterson to depart from England within six weeks for Virginia and take possession and management of Tankerville’s new lands as his agent and manager. Patterson arrived in Leesburg in 1760, and in 1761 he purchased a house and lot (Lot No. 11) on Loudoun Street just east of King Street in Leesburg, to set up his Land Office.
Colville’s “Catoctin Tract” now became known as “Catoctin Manor.” During the period 1760 to 1763, Patterson only executed formal leases for 13 parcels of land, in the range of 100 acres each.[ii] These were in the form of a long-term “lease for lives,” a feudal mechanism by which land was leased for the duration of the lives of three specified family members, such as the lessee, his wife, and a son; or the lessee, his son, and a daughter.[iii]
These leases amounted to a total of only about 1400 acres, out of more than 16,000. What was he doing with the rest? Much of it was being farmed by German settlers from Pennsylvania, who for the most part lived and labored at the pleasure of the landowner. As low-born and as aliens, they were not regarded as being entitled to buy the land, or even to have the protection of a formal lease. They could be thrown off at the whim of the absentee landlord, and it doesn’t appear that there was anything they could do about it.
In fact, these German farmers were the vast majority of those living and farming on Tankerville’s land. As we will see in a later article, when the Tankerville family sold off their holdings in the 1790s, of about 100 transactions over three-fourths of these were to German-named individuals.
Charles, the 3rd Earl of Tankerville, died in 1767. In his Will he left his landed property in America to his two sons, Charles, the 4th Earl of Tankerville, and Henry Astley Bennett. They held on tightly to the family property: I found no land transactions from 1763 until 1789. The late Robert Constantino, in his three-volume Colonial Catoctin work, published in 2006, says there were no further transactions by the Earls of Tankerville and their agents, after the 1760s until the late 1780s. For reasons we shall see, during the Revolution and for a number of years thereafter, there was great uncertainty about land owned by “aliens,” (non-citizens of the new United States, particularly British subjects), and this may account for the lack of any sales, or even recorded leases, of the Tankerville lands.
Last Will and Testament
The Thomas Balch Library has in its possession a hand-written copy of the Last Will and Testament of Charles Bennett, the 3rd Earl of Tankerville – apparently the only such copy existing in Virginia. This document, signed by Tankerville in 1762, is of interest in that it sheds some light on the customs and mind-set of the English nobility at that time.
This Will, along with the 1756 Will of John Colville, continued to be cited up through the 1790s, often at great length, in leases and deeds executed by Tankerville and his attorneys.
Tankerville specifies that he is to be buried “without pomp,” and that any arrears of rents which were owed to him, are to be collected with all convenient speed.
His wife, Alicia Astley, “the Right Honorable Dowager of Tankerville,” is to be provided with 500 Pounds (Sterling), jewels, a plate marked with the Ossulton Arms, china, and household goods (but not those from Chillingham Castle which were to go to his son Charles of Ossulton).[iv] His wife was also to be provided with coaches, carriages, and coach horses, as well as his two organs, musical instruments, and books. His son Charles is to provide his mother with a monthly annuity, “enabling her to live in a house proper for her Station and Quality.”
Tankerville’s Will then cites property to which he (Tankerville) is entitled, under the earlier Will of John Colville, who is identified as being of England and of Fairfax County in Virginia. Tankerville specifies that he is entitled to “diverse Plantation Lands, horses, utensils, Negroes and Stock” belonging to those various Estates, and a 2/9 share of a copper mine and 200 acres of land at Difficult Run in Fairfax County, and that this property is to go to his son “Charles Lord Ossulton.” All other Colville lands were to go to his other son Henry Astley Bennett for the term of his natural life, and after his death, these lands were to go to “the heirs of his body, to take as “tenants in common, not as joint tenants.”[v] But if Henry were to die “without issue (i.e. childless, which probably meant “without male issue”), then his portion would revert to the estate, to then be given to Charles Lord Ossulton. Tankerville also made a provision for his daughter Francis Alicia if she lived to age 20 or married with her mother’s consent; if she married without consent, it seems that she would be cut off.[vi]
You can see how these provisions are designed to keep the land holdings within the family. Another provision in Tankerville’s Will also shows this. If his sons were to sell the lands in Virginia and Maryland, the proceeds were to be used for the purchases of “lands of inheritance” in England. All in the family.
[i] The British Compendium, or, Rudiments of Honor (London: Bettesworth and Hitch, 1731), pp. 495-497. (Accessed through Google Books.)
[ii] In the Loudoun County Deed Books, these 14 transactions begin with a lease to Grant Williams (Deed Book B 342), on 24 June 1760, and end with a lease to William Trammill on 1 May 1763 (Deed Book C 660).
[iii] Of the 13 transactions, only two appear to have been Germans: Teel (Diehl), and Counts (Koonz).
[iv] The family had at least one other house, the Mount Felix Mansion in Walton, a village in Surrey on the Thames, about 15 miles from central London. The Ambulator, or Tour Around London (London: T. Gillet, 1800), p. 225. (Accessed through Google Books.)
[v] The distinction today seems to be that tenants in common can sell their share to anyone, and upon their deaths their property can be conveyed to anyone. When a Joint Tenant dies, their property automatically passed to the other Joint Tenant(s). It may have been different in the 18th century.
[vi] It seems that this is what did happen. According to an online discussion group about the English peerage, “Alicia, Dowager Countess of Tankerville,” left “one shilling each to her `unworthy and undutiful daughters Camilla Elizabeth, widow of Count d’Onhoff (?) and Frances Alicia, wife of Peirson Bouson.’” Her first beneficiary was her “dearly beloved and dutiful” son Henry Astley Bennett.
Part II: The Dowager and the General
In June 1783, as the Treaty of Paris to end the Revolutionary War was being finalized, the Countess of Tankerville wrote a letter to George Washington from England, granting him Power of Attorney to aid in the disposal of the Tankerville lands in Virginia.
In October that year, General Washington responded to the Countess, informing her that he must decline the trust with which she and the Earl of Tankerville have invested him. “I am not yet returned to Virginia after an absence of almost nine years from My family & home,” Washington wrote, adding that both his private affairs and the affairs of others entrusted to his care were in a “deranged” state. “To recover all these from the disorder into which they have run will be attended with more difficulty & require a much longer time than comports with that ease, & freedom from care, of which I stand very much in need.”
Washington advised the Countess that he had forwarded the Power of Attorney to Edmund Randolph, the Virginia Attorney General, who, he wrote, “no doubt will advise you of his intention, & what further ought to be done.”
Countess Alicia Astley Bennett, also known as the Dowager of Tankerville, was the widow of the 3rd Earl of Tankerville, and the mother of Charles Bennett, the 4th Earl of Tankerville, and also of his brother, Henry Astley Bennett. Her two sons had inherited her husband’s lands in Virginia and Maryland.
But how did such a member of the British nobility happen to be seeking the aid of George Washington, who was still in the service of his country in its war against Great Britain?
Washington’s entangling alliance
The affairs of all British land holdings in America were thrown into confusion during the Revolutionary War, and for a number of years after. This was the context in which Lady Tankerville, and her sons, were asking George Washington for his assistance. The first issue was the sequestration and the threat of complete confiscation of the Tankerville lands during the Revolution, and the second was the matter of establishing clear title to the Tankerville lands, so that the brothers Charles and Henry could sell them off, avoid confiscation, and to wind up their property affairs in the new United States.[i]
Washington’s ties to the Bennett/Tankervilles flowed from his relation to the Fairfax family. That relationship went back many years, and he and others regarded Thomas the Sixth Lord Fairfax as his benefactor, since Fairfax had employed the young George as surveyor of the Northern Neck Proprietary. The Tankerville lands, as we have noted, were derived from the Fairfax Proprietary, through John Colville. When John’s brother Thomas Colville died in 1766, he had, shortly before his death, appointed Washington as an executor of his estate. That inevitably drew Washington into the affairs of the Earl of Tankerville and Henry Bennett, to whom much of John Colville’s lands in America were to pass.
The Revolution Targets Loyalist Property
However, overall, sequestration proved ineffective as a revenue measure, and the Virginia General Assembly began looking favorably at confiscation. In June 1779, the House of Delegates passed its Confiscation Act, which authorized the seizure and sale of alien property.
Those whose lands were subject to confiscation under the 1779 Act, were British subjects who had been absent from the colonies on April 19, 1775 (the Battle of Lexington and Concord), and who had not since then adhered to the revolutionary cause, and also to those, alien or not, who had adhered to the enemies of the United States.
In July 1779, Governor Thomas Jefferson ordered all British subjects to leave Virginia. (Many did so then, or had done so already, but many of these returned on the coat-tails of Benedict Arnold’s and Cornwallis’s invasion of Virginia in 1780-81.)
The administration and the operation of the Confiscation Act was uneven at best, and was often rife with corruption and cronyism. Noted Virginia Revolutionary War historian H.J. Eckenrode called confiscation “the saddest” and “the most regrettable feature of the Revolution.” He points out that the sale of confiscated estates for which payment was made in depreciated currency brought in little revenue to the Commonwealth, but it greatly benefitted purchasers. Most Loyalist properties were bought by gentry who already had significant property holdings. However, Eckenrode concedes that sales of Loyalist properties did “pave the way for the rise of numerous small farmers to affluence.” It certainly was not revolutionary land reform, but nonetheless it was, in Eckenrode’s terms, “one of the most important social results of the Revolution.”
What happened in Loudoun?
Lord Fairfax, who still owned much of Loudoun County, was a special case. The Northern Neck was treated differently under the state law, and Fairfax, who enjoyed the respect of his northern Virginia neighbors, was not subject to having his lands confiscated during his lifetime (he died in December 1781). Although legally a British subject, Fairfax had lived in Virginia for many decades, and was thus regarded as a citizen of Virginia. Whatever his thoughts about the Revolution, he kept them to himself.
However, as we have seen, the Tankerville lands were sequestered but apparently not confiscated – although that threat was always there, as is reflected in the trans-Atlantic correspondence.
The Loudoun County archives appear to contain almost no records pertaining to land sequestration and confiscation (other than the sequestration order against the Tankersville lands cited above). However, there is evidence that there was some public controversy here about the law. On October 25, 1779, the Journal of House of Delegates reported on a petition from Loudoun County, which complained that Confiscation Law was “indiscriminate in its operation,” and asked that the law allow forfeitures and sequestration to be used only for the benefit of the Commonwealth. The Journal reference seems to be the only record of this petition that exists; neither in the Loudoun County archives, nor in the state legislative archives, can any other trace of this petition be found.
In October 1779 the House of Delegates appointed George Mason and Patrick Henry to amend the confiscation law; the amended law was passed and went into effect in December 1779. Most important for our purposes is that the new law guaranteed title to purchasers of Loyalist lands, ensuring that they would not be returned to their previous owners. The highest concentration of sales of Loyalist properties was in Norfolk. There were six Loyalist estates sold in Fairfax County in 1780, and if any were sold in Loudoun, no one has yet found any record of such. Almost all of the seized property belonged to English and Scottish merchants, not to owners of large estates or manors.
After the surrender of Cornwallis in 1781, the war was effectively over, although hostilities continued in South Carolina, much of which was in the form of civil war between local Patriots and Loyalists.
In Virginia, during 1782, there were instances of reprisals against Loyalists, a result of the bitterness and anger stemming from the British invasion of Virginia in 1781 and the depredations that took place. By the end of 1782, alarming rumors were circulating in Virginia that the peace treaty would restore confiscated lands. In response, the General Assembly passed a resolution justifying confiscations.
The terms of the Treaty of Paris, being negotiated by John Adams, Ben Franklin, and John Jay, were becoming clear by the Spring of 1783. A report sent to Virginia’s Gov. Harrison, which was made public, indicated that the treaty would recommend restitution of Loyalist property, prohibit future confiscation, provide for creditors to recover pre-war debts, and allow British subjects to come to America to recover debts and property.
In Virginia–which still prohibited Loyalists from entering the state–the Spring session of legislature considered legislation suspending Confiscation Act and repealing the law forbidding any commercial dealing with Loyalist Britons. But nothing was passed, being deferred to the Fall session.
Washington’s dealing with the Tankervilles
These were the circumstances under which the Dowager of Tankerville sent her letter to Gen. Washington in June of 1783.[v] Her letter was followed up by another to Washington from her son Charles, the 4th Earl of Tankerville, sent in July.
In November, Lady Tankerville and her son took Washington’s direction, and wrote to Randolph about the Power of Attorney. Randolph immediately contacted Robert Hooe (an Alexandria merchant and politician, and the Bennett’s land agent[vi]), as to what was expected of him; Hooe said he didn’t know, and that they had to wait for Gen. Washington’s return to Mount Vernon – which didn’t occur until the end of December.
In January 1784, Washington wrote to Lord Tankerville (Charles Bennett), enclosing a copy of his reply to the Countess of Tankerville. Washington repeated that it was impractical for him to take an active role in the disposal of the Tankerville lands, but he advised the Earl that he had sent Lady Tankerville’s letter and the Power of Attorney to Virginia Attorney General Edmund Randolph, and that when he realized the she was referring to Robert Hooe (not “Howe”), he placed the Power of Attorney in the hands of Hooe, whom he calls “an exceedingly good man, & very competent.” He also praised Charles Little (who was managing the sequestered Tankerville properties), and opined that Little “may, from his peculiar knowledge of the Estate, be very serviceable in the disposal of it to the best advantage.” Washington politely concluded: “I beg you to be assured My Lord, that no apology was necessary for the request you made to me—that I shall always feel pleasure in obliging your Lordship whenever it may be in my power.”
The Treaty of Paris was signed on September 3, 1783, but with the slow communications of the time, the final terms were not known in Virginia until December. Of the nine Articles of the Treaty, two dealt with confiscated property. Article 5 stated that the U.S. Congress shall recommend restitution of confiscated estates and properties belonging to British subjects, shall recommend to the states that they revise or repeal states laws pertaining to confiscation, and make restitution of confiscated estates. Article 6 stated that there would be no further confiscations.
At this point, it was clear that the laws of Virginia and the terms of the Treaty of Paris were in direct conflict – a conflict which was not to be resolved for many years.[vii] The Revolutionary War was over, but sorting out the changes in property and economic relations was to take a lot longer. The Tankerville lands would prove to be a clear example of this.
[i] Fortunately for us, enough correspondence among George Washington, Edmund Randolph, and Alicia, Charles, and Henry Bennet, and their attorneys, has survived, that we can learn a great deal about how they attempted to deal with the turmoil caused by the Revolution–and how this affected property relations in Loudoun County and the German Settlement. The two primary sources of correspondence relevant to our inquiry are: (1) The “Founders Online”” website, hosted by the National Archives and Records Administration and the University of Virginia. Within the correspondence of George Washington compiled here are a number of letters involving the Tankerville/Bennett lands, as well as the Fairfax family. (2) The “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” collection at the Wilson Library of the University of North Carolina at Chapel Hill. In this collection are found original handwritten copies of correspondence to and from Robert Townsend Hooe of Alexandria, Virginia, who represented the Earl of Tankerville’s interests after the American Revolution. The Wilson Library generously provided scans of these letters, which have never been transcribed, to this author.
[ii] Local histories of the Revolutionary War are bereft of information on sequestration and confiscation during the Revolutionary War. I am indebted to the Library of Virginia for bringing to my attention various sources on confiscation during this period, the most important of which is a doctoral thesis by Peter M. Mitchell entitled “Loyalist Property and the Revolution in Virginia,” submitted to the Graduate School of the University of Colorado in 1965. This article draws heavily on the Mitchell dissertation.
[iii] The Council, modeled on the British Privy Council, was both an advisory body to the Governor, and served as the high court. Together, the Council and the House of Delegates comprised the General Assembly.
[iv] The entry on March 16, 1778 read: “Charles Little esquire is appointed Commissioner for the Estate of Henry Bennet in Fairfax & Loudoin [sic] Counties agreeable to Act of Assembly for Sequestering British property.” Little was a Scottish-born merchant who was previously involved with the Colville-Tankerville properties.
[v] The Dowager’s June 1783 letter has never been located, but it is referenced in other letters which have survived.
[vi] Robert Townshend Hooe (1743-1809) was a merchant, who served on the revolutionary Committee of Observation in Charles County MD, as delegate to the Maryland Constitutional Convention, and then as an officer in the Revolutionary War; he was the first Mayor of Alexandria VA in 1780-82, and served as High Sheriff of Fairfax County in 1790.
[vii] The conflict between Virginia’s confiscation laws and the Treaty of Paris was only resolved definitively by the U.S. Supreme Court in 1816.
Part III: The Revolution Puts Tankerville Lands at Risk
The Dowager Tankerville was not one to be put off. When nothing had happened to free up the family estate in the Virginia colony, she attempted to appeal to the United States Ambassador to Great Britain, John Adams – who happened to be a neighbor of hers on Grosvenor Square in London.
Lady Tankerville asked the American ex-patriot, sculptor, and sometimes spy, Patience Lovell Wright – a friend of the Adamses – if she would ask the Ambassador whether the U.S. Congress had repealed the law against the Tankerville Estate in Virginia and in “Lord Fairfax’s County.” She also asked Wright to inquire of Adams if he had heard that no trade agreements with America are to be settled until the laws regarding confiscation of Tory lands are repealed. She reported other intelligence about the King preventing any implementation of the Treaty of Paris until the Americans complied with the article of the Treaty regarding restoration of Loyalist Estates. Wright did send a note to John Adams, but there is no evidence that the Ambassador did anything about it. [i]
Why was the Dowager getting so impatient? Let’s pick up the story where we left it in the previous installment.
As he often did on personal legal matters, George Washington turned to his former aide-de-camp Edmund Randolph, now Virginia’s Attorney General.[ii] Randolph, who was familiar with the issue from the November 1783 letters from Lady and Lord Tankerville, responded in February 1784, that he will advise Tankerville’s land agent Robert Hooe if he can do it “here,” but it is impossible for him to be “active” (i.e. he couldn’t to do anything publicly).[iii]
The trail of correspondence then dried up for a couple of years, during the period in which the status of Loyalist estates was up in the air for a while after the ratification of the Treaty of Paris, which took place in early 1784. There was much opposition in Virginia to the restoration of Loyalist property, and it wasn’t until four years later, in 1788, that the Virginia legislature repealed the last piece of legislation pertaining to confiscation and repayment of British debts.
Randolph’s advice
Some light on Randolph’s thinking on the matter is shown by a December 1787 letter from Hooe to Charles Bennett, the Earl of Tankerville, which seems to be the first letter in four years.[iv] Hooe says that although George Washington had declined the Power of Attorney, now-Governor Randolph will work with the him (Hooe), and will be ready for any court action – but of course as Governor, “it was not to be expected he could take an active part.” Randolph had first told Hooe, that he had thought there was no danger of any more confiscation, because the Treaty of Paris, which prohibited further confiscations, was the law of the land. But a few days later, upon reconsideration, he thought there might still be an attack on the Tankerville Estate under the Common Law of England, which still applied in Virginia. So the Tankerville estate was not yet secure from confiscation.
Randolph’s behind-the-scenes advice was to change the title (ownership) of the property, or to dispose of it. Then Hooe, adding his own advice concerning the depreciation of Virginia’s currency, wrote: “As to selling Land, Negro’s or Stock of any kind, it cannot be done at this time, without great loss, there being the greatest Scarcity of Money ever known.”
In early May 1788, after Hooe had been in Richmond and had a further consultation with Randolph, he wrote to Tankerville again.[v] Hooe reported that Randolph was “still more confirmed in his opinion that sales of Your Lordship’s and Mr. [Henry] Bennett’s landed Estates had better be made without loss of time.” With Randolph being Governor of Virginia, Hooe said, “he declined giving me his sentiments in writing.”
Hooe’s letter included copies of proceedings against Tankerville in Fairfax and Loudoun Counties, which he says were quashed by the General Court in Richmond (no record of those cases in the General Court can be found today).
Who can they sell to?
Most importantly, Hooe advised Tankerville that the estates were again considered as the property of the Earl and his brother Henry Bennett – an indication that the sequestration of their property had been lifted. But, he went on to warn Tankerville that, as things stood at that moment, neither the Tankerville/Bennetts nor their heirs could inherit the estates, nor could they sell them to anyone who was not a citizen of the United States. However, Hooe emphasized, they did at that time have the legal right to transfer or dispose of the land by a Deed of Sale to any who are U.S. citizens. Hooe also recommended that Henry Bennett come over to Virginia to be present for any land sales—which he apparently never did.
Hooe also added an optimistic note, referring to the fact that the new federal Constitution was about to go into effect: “However it is the general and prevailing opinion that the new proposed new federal system will take place in July at farthest, and as it will be the means of restoring good Government and confidence, these lands will be in demand, and sell very high upon Potomack, as we are making rapid strides in opening both the upper and lower falls … so as to navigate as high as Fort Cumberland. In that event you will run no risk in making Sales on Credit, and thereby I am certain You will be most amazingly benefitted.”
Then Hooe added a warning of some intrigue apparently underway: “In the mean time I beg recommend to you to be upon your guard against some Persons in Loudoun County, who I am informed mean to make you offers thro’ friends of theirs in London.”
Hooe concluded by advising Tankerville that the previous Power of Attorney sent to him was “not competent” for the purpose of selling all of his Virginia lands – should Tankerville resolve upon that – and a new one would be required. This would remain a problem for some time.
A few weeks before Hooe’s May 1788 letter, the Dowager of Tankerville wrote another letter to Hooe,[vi] telling him that she had sent various documents pertaining to Thomas Colville’s Will and estate, and suggested that Hooe might want to look into the ₤700 that Thomas Colville had left as a legacy to her son Charles, the Earl.[vii] “My Son Lord Tankerville is still in agreement,” the Dowager assured Hooe.
Trouble on the horizon
The next letter that survives was written by Hooe to Lord Tankerville at the end of 1789,[viii] but Hooe refers to a couple of letters earlier that year. This letter displays Hooe’s alarm that he has not yet received the documents he needs to defend against a growing number of lawsuits. Foremost among these missing papers is the Will of the 3rd Earl of Tankerville, who had died in 1767.
As opposed to the tone of his earlier letters, where he was confident that the courts would quash any challenge to the Tankerville estate, Hooe is now lamenting that he is having great difficulty in defending against lawsuits by tenants, and he complains that they are now being forced to grant leases to the tenants. And if they don’t get the needed documents soon, they may soon “see Mr. Bennett’s title to the whole Estate destroyed” for lack of his father’s Will.
In our next installment, we will look at some of the lawsuits filed by Tankerville’s tenants, and we will see what we can learn as to how Tankerville’s agents such as Hooe and Little treated, and abused, their tenants in the German Settlement.
[i] Massachusetts Historical Society, Papers of John Adams, Vol. 18, “From Patience Lovell Wright,” ante 19 Feb. 1786. An Editor’s Note indicates that is no evidence of Adams following up on Wright’s request.
[ii] Randolph’s father had returned to Britain at the outset of the American Revolution, but Edmund served as an aide-de-camp to Washington at the beginning of the Revolution. He was elected Virginia’s Attorney General, and also Mayor of Williamsburg in 1776, and also served as a delegate to the Continental Congress and later the 1787 Constitutional Convention. In 1786, he was elected Governor of Virginia. Washington appointed him the first Attorney General of the United States in 1789, and Secretary of State in 1794. Randolph was aligned with Jefferson in maintaining close relations with France during the French Revolution, and in trying to minimize Hamilton’s influence over George Washington. See Biography of Edmund Jennings Randolph, U.S. Department of State.
[iii] Edmund Randolph to George Washington, 19 February 1784, “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” collection at the Wilson Library of the University of North Carolina at Chapel Hill. collection at the Wilson Library of the University of North Carolina at Chapel Hill. See Endnote 1 in previous article. The language and spelling have been modernized for readability.
[iv] Robert T. Hooe to Charles, Earl of Tankerville, 21 December 1787, “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” cited above.
[v] Robert T. Hooe to Charles, Earl of Tankerville, 3 May 1788, “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” cited above.
[vi] Lady Alicia Tankerville to Robert T. Hooe, 28 March 1789, “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” cited above.
[vii] Thomas Colville was the brother of John Colville, from whom the 3rd Earl of Tankerville had acquired the 16,000-acre “Catoctin Tract.” When the 3rd Earl died in 1767, his sons Charles and Henry inherited the Catoctin Tract and other Virginia lands. George Washington was an Executor of Thomas Colville’s Will.
[viii] Robert T. Hooe to Charles, Earl of Tankerville, 23 December 1789, “Hooe, Hamilton, and Henderson Family Papers, 1756-1912” cited above.
Part IV: The Tenants Speak
It is obvious from the Loudoun County Court Order Books, and from land records, that there were a great many legal actions brought against the Tankervilles and their agents – and preceding those, many lawsuits brought by the Tankervilles and their agents against the settler/tenants and those who had been occupying their lands for many years, even decades. Unfortunately, few court documents from those lawsuits have survived.
We have been able to examine a couple of cases where documents can still be found. Both arose from actions taken by Charles A. Little, who was appointed as Commissioner to manage the Tankerville lands after they were sequestered under the March 1778 Act of the General Assembly against British and Loyalist properties. One such case, is a 1784 legal action against Charles Little brought by a Waterford Quaker, Samuel Schooley, and two German settlers, Adam Wolf and Thomas Davis. The other case was filed in 1787 by tenant Nathan Laycock.
Let’s listen to what these tenants had to say about how they were treated by the self-styled “Gentlemen” who were put in charge of the Tankerville lands by either the General Assembly or the Tankervilles themselves. (Charles Little was both: when he was appointed as Commissioner of the Tankerville Estates by the General Assembly, he had already been involved with the Tankerville lands and had worked with Robert Hooe. Such cronyism was typical of the manner in which sequestered and confiscated Loyalist properties were handled in Virginia during the Revolutionary War.)
The Schooley-Davis-Wolf Case
Schooley, Davis, and Wolf filed their action in the Chancery Court of Loudoun County on December 13, 1874.[i] A little background will be helpful in understanding this. Virginia, as had other colonies, inherited a dual court system from the English, with Courts of Law and Courts of Chancery. The Chancery Courts were intended to serve as courts of equity, created to remedy injustices rendered by a strict application of the Common Law.
The action brought by the plaintiffs in the Schooley case was effectively what we would call a “class action” today, since they were speaking of unjust actions that affected other tenants as well as themselves.
The major injustice of which these tenants complained, was that after the lands were sequestered in 1778, Commissioner Charles Little and William Ellzey[ii] had come onto the land which the tenants occupied, and demanded that they pay back rents to Little at inflated rates. When the tenants couldn’t pay immediately, Little seized the tenants’ personal property, and forced it to be sold. All of this was accompanied by threats and legal maneuvering.
Many of these tenants were essentially “squatters” without formal leases. The Tankervilles, as well as the Fairfaxes and other large landowners, wanted people to settle the lands and improve them, since under the original land grants (Culpeper, Fairfax, etc.), the lands had to be improved within a certain number of years, or they would be forfeited. These provisions were not strictly enforced, but for many of the landlords, having the land improved was more important than collecting rents – although at times they would do both.
Because many, if not most, of the settler/tenants on the Fairfax and Tankerville lands in northern Loudoun County did not have formal leases, they did not have any legal protection from arbitrary actions from the landlords. Schooley, Davis, and Wolfe stated that for those without leases, there was great uncertainty as to both the quantity of land they were occupying, and the amount of rent they were obliged to pay.
From other court actions brought by Tankerville, Bennett, and their agents such as Hooe, it seems clear that many of the tenants had not been paying rents regularly. One should keep in mind that the Revolutionary War years were a time of great hardship in Virginia, which was exacerbated by the runaway inflation of paper money. In the period after the Revolutionary War, and even during the last years of the War, there was an aggressive effort by the Tankervilles’s agents such as Hooe, to collect back rents—whether or not they had already been paid. This is what Little seems to have been doing, under the color of being a state-appointed “Commissioner.”
When Little and his assistants came onto the tenants’ lands and threatened the tenants if they did not meet their demands, the tenant/settlers were understandably frightened, and they made their best efforts to comply.
The Schooley complaint, really a petition to the Chancery Court, stated that these settlers, “being mostly Germans, unlettered men, unacquainted in the Law and Customs of this County,” tried to meet these demands in the best manner they could. They raised the funds from the sale of their horses, cows, and other property, and held the money until, “to their great surprise,” the legislature declared the money to be no longer lawful currency.[iii]
Nonetheless, Little continued to demand payments of arbitrary amounts of claimed arrears, “contrary to the known laws and usages of this State,” and he persuaded the courts to seize the tenants’ personal property, using the legal actions known at the time as “distraint” or “distress.”
Furthermore, the tenants said, they had wanted to get legal advice to show that the legal “distress” was “illegal, and contrary to justice and equity.” But they couldn’t find any lawyers, because Little and Hooe had already retained all the attorneys who practiced before the Loudoun courts!
The tenants then prepared to act “of our own accord” (what today we would call “pro se,”) and seek an order (a “writ of replevin”) from the court for the return of their seized property.
But Little attempted to intimidate them, by “menaces and threats,” to dissuade them from bringing an action, and he threatened that they would have to pay double damages if they proceeded to bring this action. But the tenants went ahead, asking the Court to keep in mind that they were unlettered men, acting without counsel. Their sense of urgency was driven by the fact that the appointed date was approaching for the distress sale of their personal property, by which they would be “greatly injured and oppressed.”
They also raised an interesting issue, of whether it would even be legal for them to pay the Tankervilles’s agent Charles Little, since, the tenants said, they had been informed that the General Assembly had passed an Act prohibiting the payment of British debts, and Little was of course acting on behalf of Henry Bennett, a British subject. During the war, under the Sequestration Act, revenues from sequestered properties were supposed to be paid into the State Treasury.[iv] However, with the war’s end, and the Treaty of Paris, the status of sequestered properties was unclear, and it seems that Little was now trying to collect rents and arrears aggressively for the direct benefit of himself and the Tankervilles – since no evidence has been found that Little paid any more monies into the Treasury after 1779.
The petitioners, noting they had no remedy under the strict rules of the Common Law, appealed to the Court of Chancery, asking the court to issue a subpoena to Little, so that he could be asked a number of questions which they spelled out. These included:
- Had Little been appointed by the State of Virginia, and under what authority was he acting?
- Was it under the State Government that he was continuing to act, or under what authority?
- Had he agreed with the tenants to have the lands surveyed, and was this ever done?
- Had he ever received any part of the rents during the period of paper currency? Where and when?
There were also a number of questions which implied that Little was taking advantage of those tenants who didn’t have leases, and charging them at a higher rate than those who did have leases.
The relief that the tenants asked the court to provide, was to compel Little and his agents to return the seized property to those from whom it had been unjustly taken, that all obligations created under the legal proceedings in the Common Law Court be declared void, and that all monies be returned to the tenants, so that they might be restored to the situation they were in “before these cruel seizures were made.”
They pleaded to the court to provide them with the benefit of the laws, of which they have been deprived by “oppression on one side, and ignorance and mistakes on the other.” They concluded by asking the Chancery Court to issue an injunction against Little and his agents from taking any further action until the matter could be fully heard by that court.
From the documents remaining, it appears that the case was quickly dismissed on the next day, December 14, 1784, and Schooley, Davis, and Wolf were charged with bearing the costs of the proceeding. It would be a couple of more years, before the tide would begin to turn and Tankerville’s tenants could successfully assert their rights.
Nathan Laycock’s case
More light is shed on Charles Little’s abusive practices by another Chancery case brought by one Nathan Laycock against Little in June 1787.[v] Laycock had purchased a lease from Col. James Hamilton on the property of the late Earl of Tankerville, at a rent of ₤3 per year, starting in 1766. But after the beginning of the (Revolutionary) War, Laycock had been charged for taxes, and he paid these taxes after being advised that his property could be seized if he didn’t pay them. He did this, even though under the terms of the lease, he wasn’t liable for any taxes or quit-rents.
After Charles Little was appointed Commissioner under the Sequestration Act, he starting coming around to collect rents. In April 1779, about a year after Little was appointed, he came to a settlement with Laycock, and gave him receipts for 11 years’ rents – which Laycock said he was prepared to produce in court. But even after reaching the settlement with Little, Laycock still paid the taxes on the land, for fear of being evicted.
On September 1782, Little sent a certain George Muir around to collect rents from the tenants on behalf of Henry Bennett. Laycock paid, and was given a receipt.
Despite everything that Laycock had paid, in March 1783 Deputy Sheriff John A. Binns, at the direction of Little, made “distress” (i.e., seized his personal property) upon Laycock for upwards of ₤39. Laycock posted a (replevin) bond for the whole amount of the distress. Little acknowledged that he had distressed Laycock for more rent than would have even been due had Laycock made no payments or advances after the April 1779 settlement.
As Laycock described it, Little pretended that he would give Laycock credit for what he had already paid, and would only take a judgment for what was actually due. But instead, he combined (i.e. conspired) with diverse persons and obtained a judgment against Laycock for ₤22.8, with interest.[vi] This included all the rent arrears which Little pretended were due. Plus, Laycock had greatly overpaid the amount of taxes due on the land, because he was told (wrongly) that he was compelled to do so.
Charles Little didn’t give Laycock credit for any of the amounts he had already paid, but instead he threatened to execute the judgment on Laycock’s personal property immediately. All of Little’s actions “are contrary to equity and good conscience,” Laycock asserted in his complaint.
As Schooley et al. had done previously, Laycock then set forth a series of questions about which the Chancery Court should interrogate Little. These pertained to the amount of rent and taxes which Laycock had already paid, whether Little had given Laycock any credit for these payments, the circumstances of the distress against Laycock, and so forth.
Laycock asked the Court to enjoin Little from proceeding to execute the judgment against him–except for a small amount of interest which Laycock had agreed that he owed–and he requested that the Court should issue a subpoena to Little so he could be questioned by the Court.
With the Treaty of Paris now signed and ratified, and the federal Constitution under consideration, the courts seemed to be looking more favorably upon tenants’ complaints than they did in the Schooley case a few years earlier. The Chancery Court appears to have reached a compromise. Shortly after Laycock filed his action, the Court did grant his request for an injunction against Little, barring Little from proceeding with the distress sale of Laycock’s personal property. But Laycock was required to post a bond.
The case was continued (postponed) for over two years, by which time public sentiment had apparently further shifted. In early 1790 the case was settled, with Laycock paying costs, but without his property being sold. From scanning other similar cases, this seems to have been the pattern by this time. (Those court papers which still exist are tiny pieces of paper, with even smaller handwriting which is often indecipherable to the modern reader.)
In our final installment next month, we will look at the changes in landlord-tenant relations, and how the feudal manor system was abolished—even though it took over a decade after the end of the Revolutionary War, to complete this process.
[i] Samuel Schooley et al. vs. Charles Little, Agent. In Chancery, Loudoun County 1784-001, M-7060. Available at Library of Virginia website, and Loudoun County Clerk of Court, Historic Archives Division.
[ii] Wiliam Ellzey was, among other things, a Virginia State Senator from Loudoun County.
[iii] This may be a reference to the action of the General Assembly in late 1781, when it abolished highly-depreciated paper money (“Continentals”) as legal tender, and issued a new currency.
[iv] Little and Hooe did pay ₤1,219.42 into the state treasury on May 13, 1779. No further payments have been found.
[v] Nathan Laycock vs. Charles Little, agent for Henry A. Bennett. In Chancery, Loudoun County 1790-015, M-1359. Available at Library of Virginia website, and Loudoun County Clerk of Court, Historic Archives Division.
[vi] It appears that this judgment of ₤22.8 was re-issued on April 10, 1787, in the case styled Bennett vs. Laycock and Myers.
Part V: The Manor System Nears its End
On the eve of the American Revolution the inhabitants of the area of northern Loudoun County – mostly Germans and Quakers from Pennsylvania – had almost no legal rights in the land they were occupying and farming. As with much of Virginia, the system of property ownership was modelled on the British manor system, with ownership in the hands of large planters or absentee landlords, and tenants being subject to the whims of the landowners with little or no legal protection.
Why did it take two decades after the Declaration of Independence for these industrious farmers to be able to own the land which they had improved and developed? Shouldn’t the end of the Revolutionary War in 1783 have given these family farmers the right to own property? Why did things actually get worse for these people for a couple of years after the Revolutionary War, before they started to get better?
To answer these questions, even in a preliminary fashion, has meant assembling information from a number of sources.
- First are the land records themselves, which are very sparse for the period before and during the Revolutionary War. This was where my curiosity was piqued for a number of years, when I noticed that land ownership among the settlers here seemed to take off around the year 1793. A number of leases and deeds, starting around 1789, cite judgments having been obtained by tenants, suggesting that they had been parties to court cases.
- This led to a frustrating search of court records, which consisted of two elements: (a) Order Books, which record judgments and orders of the court, usually in very summary fashion, and (b) what are called “Loose Papers,” the pleadings or the case files of individual cases. These are tiny pieces of paper (which was scarce in those days), many of which are missing, and sometimes difficult to decipher.
- Then there was the correspondence between the Tankervilles in England, their land agents in Virginia, and with political leaders such as George Washington and Edmund Randolph whose help the Tankervilles sought to deal with the sequestration and potential confiscation of their lands during the Revolutionary War.
- To understand how sequestration of Loyalist properties worked in Virginia, it was necessary to study this subject, including examining detailed financial ledgers of the Commonwealth of Virginia during the war. The Library of Virginia in Richmond was very helpful in identifying these records.[i]
How the leases came about
In the last installment we saw that legal actions brought by tenants did not fare very well in the courts. In addition to the couple of court cases we examined (from 1784 and 1787), we had land agent Robert Hooe writing to the Tankersvilles in 1788 that he had been successful so far in defending their property against both the threat of confiscation, and against lawsuits brought by tenants. Hooe had been advised behind-the-scenes by Virginia Attorney General Randolph, that the Tankervilles should sell their landed estates while they still could. But Hooe was complaining that he lacked the documentation to prove that the Tankervilles had the legal right to sell the properties, and he expressed increasing concern that the Tankerville interests were being damaged, perhaps irreparably.
In the late 1780s there were a number of tenant actions against the Tankervilles (or the Bennetts, as they are better called). But there were more cases brought against the tenants by the Tankerville agents.
In the Spring of 1789 (coinciding with the establishment of the new federal government led by George Washington), the Tankersvilles begin granting leases to their tenants. This begins on March 4, and by the end of 1789, Henry A. Bennett (the Earl’s brother), has granted leases to 30 tenants, generally for 100-acre tracts of land. On April 1, a long-term lease-for-lives is granted to Adam Wolf, one of the plaintiffs in the 1784 Chancery case we examined last month.
That’s what you find out from looking at the land transactions recorded in the Deed Books.
If you look at the court files (“the loose papers”), you see a sudden flurry of judgments –with cases being settled – in August of 1789. However, just from the case records, it’s difficult to draw any conclusions except that these cases involved some sort of compromise, with neither side getting everything they asked for. This in itself is a shift from the previous years.
The correspondence files shed a lot of light on this. On December 23, 1789, land agent Robert Hooe wrote a letter to Charles Bennett, the 4th Earl of Tankerville, expressing his alarm at the current state of affairs.[ii]
I am extremely concern’d at the disappointment in not receiving the several Papers I then wrote for, in as much as they are all indespensibly necessary in conducting the Business of Your Brothers Estate here, and for want of the Will in particular we have already experienced great inconvenience & loss too, and if it does not come to hand soon, I cannot say what may be the consequences resulting from the want of it.
So Hooe is complaining that they have been suffering losses in court for lack of documentation – most importantly, the Last Will and Testament of the 3rd Earl of Tankerville — and that it may soon get a lot worse. He goes on:
Ever since August Court last, when a number of Mr Bennetts suits was called for Trial we have been obliged to take them out of Court & Arbitrate upon Terms that we would never have Submitted to had not our Lawyers Advised us that no Action could be maintaind on the ground of the Copy of the Will in our Possession, because it was not Authenticated in the Proper Office for Probate of Wills in England.
Now we can see why so many cases came up in August, and we find out that Hooe and the attorneys felt compelled to submit these cases for arbitration, because they were afraid that they would otherwise be thrown out of court because they couldn’t prove clear title to the lands. This explains why these cases appear to have been resolved by a carefully worked-out compromise.
For example, the court files show Jacob Stoneburner confessing (acknowledging) a judgment against him of ₤40, but the final order was for ₤21.4.8. (Bennett’s agents had originally claimed ₤273 in rental arrears and had had the sheriff seize Stoneburner’s furniture and livestock.) In another case, Oliver McCaslin was discharged by a payment of ₤8.8, although he had confessed judgment for ₤20, and the land agents claimed ₤44 in back rents.
Hooe then makes a startling admission. Continuing to discuss the 3rd Earl of Tankerville’s Will, Hooe says that when they tried to prove his son Henry Bennett’s title to the land, the arbitrators were ready to throw the whole thing out.
And even before the Arbitrators, the instant we produced it to show Mr Bennetts title to the Estate, it was Struck at by the Tenants Attornies & declared by the Arbitrators to be of no validity for want of Authentication. This would have finished the whole Business at a single stroke, had we not there agreed that John West not only has a Power of Attorney but Admitted it to be legal, which we intended to deny, & with great Justice & truth we could have done, & saved too much thereby to lose by not doing so; for by doing this we have been forced to grant upwards of Thirty Leases under promises proved to have been made by him whilst Agent. Whereas his Power never was properly executed in England, nor Recorded in Virga.[iii]
So in order to avoid losing everything, they had to agree that John West had a legal power of attorney, which they were about to deny!
Why was this so important? Hooe is grousing that they were forced to grant 30 leases because of promises West had made. The horror of it all! Tenants who had been farming the land for 20 or 30 years were finally going to get formal leases which would be recorded by the court. The feudal land system was slipping away, but not yet entirely.
The Arbitrators’ Accounts
Two court orders – more detailed than most – issued in September and November 1789, explain what was happening here.
In September, in the case of Peter Holler (Haller, a German settler) against Bennett, the court ordered that where the tenants could show that a lease had been promised, by someone who was authorized to make such a promise, they would get a lease, and execution of a judgment against them would be stayed (stopped). It appears that Joshua Daniel and John Littlejohn were appointed as arbitrators, “with power to choose an umpire in case of disagreement” between them.[iv]
In reviewing the care records (“loose papers”), this writer was struck – and somewhat puzzled — by the neatly-drawn up statement of Accounts in most of the case files.
To take one example, the account of how much Charles Menix was alleged to owe to Henry Bennett. The statement begins by stating when the tract of land (or “plantation”) was settled. “This plantation was settled by Christian Ruse or Rouse, Spring 1771 for 50 Acres.” (Christian Ruse, a German settler, should be known to many of our readers.[v]) At the bottom, is a listing of settlers on that parcel of land: “1st Settler, Christian Rouse or Ruse; 2nd Michael Rouse or Ruse; 3rd John Copsy and William Richmond; 4th Charles Menix.”
Back at the top, after stating when the land was first settled, it lists three years rents, under the statement “above 3 years allowed for Settling” – in his case amounting to ₤7. Then 12 years, totaling ₤24, with a balance of ₤17 (subtracting the first three years). The it shows ₤10 “By Charles Little” in March 1779, which would refer to rent collected by Little to be paid into the State of Virginia sequestration accounts for Loyalist property. This adds up to a total of ₤27, with a ₤17 “Balance Due The Honorable Henry Astly Bennett, Esquire.”
These account statements are both interesting and curious.
- They list all the settlers on a particular tract of land, usually 100 acres, since the Tankervilles began seeking settlers for the land in the late 1760s. It seems like a fairly high turnover of settler/tenants, which might be expected when the tenants were “squatters” with no formal leases.
- They generally show rent collection by Charles Little in 1778-1779, when the Tankerville lands were sequestered as Loyalist property. These rents presumably made up part of the ₤1,219.42 that was paid into the State Treasury on May 13, 1779 on behalf of Henry Bennett.[vi]
- Some show additional rent collection by Little in 1783-84, although at this time Little would not have been acting as Commissioner for Sequestration, but simply as the Tankerville land agent.
- The assumption is that no rents were ever collected, except by Little, and that the current tenant was somehow liable for the entire balance due—although the arbitrators and the court did not seek payment of the full amount.
It may well be that the Tankerville/Bennetts did in fact not collect rents from many of their tenants. Hooe hints at this in the section of his December 1789 letter, quoted below. The allowance for three rent-free years for settling the land was set by the Arbitrators. The Tankervilles were probably more interested in owning the land itself, rather than in collecting rents. The tenants were expected to improve the land by erecting houses and barns, and by planting orchards and crops. This increased the land’s value, and, as we have noted, was a requirement under the land grants obtained from the Virginia colonial government.
Back to the Hooe letter, where he reports that the spate of litigation has forced them to conduct surveys of the land tracts, and how this has brought some order to what was “darkness and confusion.”
Since last Spring both Colo. Little & myself with two surveyors, Chain carriers &c at Catoctan & Louden County together have on the whole attended upwards of Eighty days in [determining] the outlines of the Land & the Lotts and Tenements & disputes within & frequently [we] have been obliged to have a number of Witnesses, generally two Lawyers & two Arbitrators with us, which has made the survey an expensive piece of Business, but there was no avoiding it for we have been obliged to fight our way thro’ Inch by Inch to get things so far Settled as they are, and altho’ not yet finished, yet we are happy to say we have reduced the greater part from out of darkness and confusion into System & order, and altho’ it has been done at a heavy expense, it has turned out a Profitable piece of Business to Mr Bennett. By disputing quarrelling, & Arbitrating we have at length recovered by Bond & Security & Money to the amount received, ₤3029.11.7 back Rents, many of which have been standing 27 Years unsettled.
What the Court decided
How this worked out, in this phase, can be gleaned from a long statement, dated 10 September 1789, apparently from the two Arbitrators, which was approved by the court and published in the Order Book for the court session in November, 1789.[vii] This order covered 13 tenants who had sued Henry Bennett and his bailiffs, and apparently was the template for many more in this phase.
The Arbitrators decided that three of the tenants (Holler, Cecily Minix, and Neis) were entitled to a lease for two lives, and nine others (Moon, Lambach, J. Stoneburner, Charles Minix, McCashland, DeSedorius, J. Grove, Weast, and Crook) were awarded only year-to-year leases. The Arbitrators noted that it was their decision to allow three years rent-free from the first settlement, and that they had fixed the rents at ₤3 per annum per 100 acres. Those not entitled to leases were assessed rents that the same rate as the others, except that after 1779 (a time of great inflation) the rents were ₤10/annum “until the time of making the distress” (i.e. the seizure of personal property) when all arrears were considered due. With respect to the payment of taxes, they said that they had “proportioned” the taxes for 1780 between the landlord and the tenants,
… and in the year 1781 we allowed each tenant the whole of the rent in consideration of the payments of the said taxes; on this we were governed by the Acts of the Assembly and the nature of the submissions, tho’ we thought it hard upon the landlord.
Interestingly, one of the arguments made by the lead tenant-plaintiff in this case, Jacob Grove (Groff), was to challenge whether Bennett, as a British subject, had the legal right to bring or maintain any action in the Virginia courts. Grove argued that:
Henry Astley Bennett is, and was at the time of the taking the goods and chattels, an alien born in the Kingdom of Great Britain under the ligeance of the King of Great Britain, and that he is … a Subject and under the ligeance of George the Third, King of Great Britain and as such is incapable of maintaining any real or mixed Action within the Commonwealth of Virginia …. Jacob prays for judgement and his damages by Occasion of the taking and unjustly detaining the said goods and chattels….
By this time, the Treaty of Paris had been ratified, which allowed for restitution to British property owners and for British creditors to seek payment of debts. However, Virginia was slow to recognize these provisions of the Treaty, which may be why Grove/Groff raised the issue in the Loudoun County Court.
We mentioned above that Adam Wolfe, one of the tenants who sued Bennett in 1784, did eventually get a formal lease, in April 1789.[viii] That award was based on the promise that was made by John West, who was mentioned in Hooe’s letter to Tankerville. The lease states that Adam Wolfe has obtained a judgment for the award of a lease for three lives, for 100 acres as promised to Moses Heaton (the prior tenant) by John West, agent for Charles, the 3rd Earl of Tankerville. In compliance with the judgment, Bennett is granting a long-term lease for the property, which was at that time occupied and being farmed by of Adam Wolfe.
A number of other promises made by John West are cited in the leases granted in August 1789, for example, to Devault Nies, Thomas Davis, and Peter Holler
The result of all this litigation, was that Henry Bennett was compelled to grant 30 leases in the year 1789, eight more in 1790, and the last one in 1791.
The Bennetts were still not selling land to their long-time tenants, but just leasing it under the semi-feudal system of lease-for-lives.[ix] How they finally did sell off their Loudoun County land holdings, bringing their piece of the British manor system to a close, will be the subject of our next and final installment.
[i] This included microfilm copies of the ledgers of the Auditor of Public Accounts, which showed all deposits, including sequestered land revenues, which went into the State Treasury. There is still much to be explored in these records and related records.
[ii] These letters were transcribed by the author and reviewed by a colleague. I have removed some of the cross-outs, and added some punctuation for clarity.
[iii] John West was John Colville’s son-in-law, who with Colville’s daughter Catherine had inherited 1000 acres of land under John Colville’s Will.
[iv] Loudoun County Order Book L, Grove v. Binns et al., 14 September 1789.
[v] Christian Ruse was owner for many years of the property that became Lovettsville Community Park. See article http://www.lovettsvillehistoricalsociety.org/index.php/the-ruse-family-a-typical-story-of-our-german-settlers/
[vi] Receipts of State Loan Office, compiled by Auditor of Public Accounts (APA 54, Vol. I, 1778-1787). This was also later stated in dollars as $4,064.72, in a report to the General Assembly in 1790.
[vii] Loudoun County Order Book L, 11 November 1789, pp. 305-307.
[viii] Lease for lives from Henry Bennett to Adam Wolfe, April 1, 1789, Loudoun County Deed Book R 373.
[ix] This description of the lease-for-lives system in the manors of northern Viriginia as “quasi-feudal,” was made by historian John T. Phillips II in The Historian’s Guide to Loudoun County, Virginia (Charlottesville: University of Virginia Press, 1996). These types of leases, also known as “farm leases,” were generally for the lives of three named family members.
Part VI: The Slow but Certain End of the Feudal Land System in North Loudoun
At the end of the American War of Independence, the Earl of Tankerville’s family was still anxious. Land was everything for the British nobility, yet the Tankerville land holdings in America were still in jeopardy. They had “dodged the bullet,” so to speak, in avoiding outright confiscation of their lands under Virginia’s war-time laws targeting Loyalist property. And they did have friends in high places in Virginia: they were being advised by Virginia’s Attorney General, later Governor, Edmund Randolph, to whom they had been referred by none other than General George Washington himself.
But even after the 1783 Treaty of Paris formally ended the “American War” – as it was known across the Atlantic – Randolph was advising the Tankervilles and their land agents in Virginia, that the danger of confiscation was not over.
On the other hand, Tankerville’s tenants in northern Loudoun County were anxious too. The War of Independence did not bring independence from their British landlords: in fact, things got worse. They were being hauled into court in Leesburg over claims of back rents being due, and Tankerville’s agents were seizing and selling off their essential personal property such as livestock and furniture. And, as we saw in Part IV of this series, the court in Leesburg was not very sympathetic to the tenants’ side of the story.
It look another 13 years after the Treaty of Paris for the Tankervilles to safely divest themselves of their Loudoun landholdings, and for their tenants to finally obtain the right to purchase the land which they had been improving and farming for decades. How this played out, is the subject of this concluding article of this series.
A full twenty years after the Declaration of Independence, the British feudal land system finally came to an end.
In our most recent article, we noted that the Tankervilles (the Eart of Tankerville, a.k.a. Charles Bennett, and his brother Henry Ashtey Bennett) had been compelled to grant formal leases to about 30 of their tenants in 1789, and to 11 more in 1790-91. This was a result of settlements in lawsuits and court orders.
It is striking that in many of these court actions initiated by the Tankervilles and their agents, the court orders show that the defendants (the tenants) did not appear in court. Whether this was due to lack of proper notification, or ignorance on the part of these non-English speakers as to what they should or could do, we can’t tell. But what we do know, is that in many of these cases, the tenants’ personal property such as livestock, crops, and furniture, was seized and sold, forcing the tenants to either accept the losses, or go into court after the fact, to try to recover their property.
Clearing the land titles
Robert Hooe, the Tankerville’s land agent in Virginia, had advised the Tankerville family in 1787-88 to dispose of their lands as quickly as possible, warning them that the danger of confiscation was still looming despite the Treaty of Paris. Hooe was relying on the behind-the-scenes recommendation coming from the then-Governor of Virginia, Edmund Randolph. Randolph had also urged that the Earl’s brother Henry A. Bennett, “repair to this country” as quickly as possible. (This advice was ignored, and neither the Earl nor his brother ever set foot in the new United States of America.)
Hooe also insisted that he needed the proper documents to be able to sell the lands, or even to properly defend the Tankervilles in court. In response to Hooe’s demands, the Dowager Tankerville took matters into her own hands, and sent off some of the needed documentation to Hooe in March of 1789. But it wasn’t sufficient, and in late 1789, Hooe wrote to Lord Tankerville complaining that without the properly-authenticated Will of the 3rd Earl of Tankerville, in which he granted the Virginia lands to his sons Charles and Henry, he (Hooe) could not say what the consequences would be. He warned that for lack of the Will, they might see the whole title to the estate destroyed.
Hooe apparently got their attention. On February 9, 1790, a notary public in London, William Newton, certified a true copy of the 1762 Will of the 3rd Earl of Tankerville. The copy of the Will was described as an Exemplification of the probate granted by the Archbishop of Canterbury in 1768.
The certified copy of the Will was then immediately dispatched to Virginia by Lady Tankerville and was filed with the District Court in Dumfries in May.[i]
Along with the Will, Lady Tankerville sent a revised Power of Attorney which had been executed by her two sons on December 22, 1789, which stated (as required by their father’s 1762 Will), that they had mutually agreed to sell the lands which their father had acquired from John Colville under the terms of Colville’s 1755. They further appointed Robert Townsend Hooe and Charles Little as their attorneys in fact, to dispose of and convey the lands and estates to which John Colville, deceased, might have had any right, title, or claim. In other words, they authorized Hooe and Little to sell off the Tankerville estate in Virginia.
The first sale of the Tankerville lands since 1765 took place on November 11, 1790. This was a “Bargain and Sale,” for two tracts of land totaling 211 acres being sold to Joseph Braden by Henry A. Bennett.
The deed to Braden, as with all the Tankerville/Bennett deeds issued until the last one in 1796, devotes approximately two pages out of four, to “whereas” clauses reciting how the lands came into the possession of the Tankerville/Bennetts. It begins by recounting how John Colville, during his life, and at the time of his death in 1755, was “seized” of several tracts of land in Fairfax County, Virginia, and in Frederick County, Maryland, and how in his Last Will and Testament, he “devised” some of these lands to his brother Thomas and to John West, Jr. The remainder, together with two-ninths of a copper mine and tract of land lying on Difficult Run [Fairfax County], “and all his negroes & personal Estate [went] unto the then-Earl of Tankerville, his heirs & assigns forever,” in payment of debts owed by John Colville, as stated in Colville’s Last Will and Testament recorded in Fairfax County, Virginia. It then recounts how the 3rd Earl of Tankerville did leave to his eldest son, Charles, the share of the copper mine and the Difficult Run tract of land, and the remainder of the (Colville) lands and “negroes stocks and personal Estate” he did bequeath to his son Henry Ashtey Bennett, both of them to hold the lands as tenants in common. And that he did give his sons the power to sell the lands if they mutually agreed to this, under the terms of the Will of Record filed in the Dumfries District Court. And that “the said Charles, the Earl of Tankerville, and the honorable Henry Ashtey Bennett, have mutually agreed to sell the aforesaid lands,” and by their Letter of Attorney, dated December 22, 1789, they did nominate and appoint Robert Townsend and Charles to sell and dispose of all their lands. The documents stresses that this gives the agents the basis to acknowledge “proper and sufficient Deeds” for conveying and disposing of the Tankerville lands.
There was a lot more verbiage than that, but this same recital of facts and events from 1755 to 1789, is essentially repeated in the 100 or so transactions up through 1796, when the Tankervilles seem to have sold off most or all of their Virginia lands.[ii]
For this time period, this writer has found 98 deeds of Bargain and Sale recorded in the Loudoun County Court. Was this everything? It seems unlikely, but these are the last transactions recorded under either the Tankerville or Bennett names. They had essentially divested themselves of their American lands, although it seems probable that there were some residual lands which remained unsold – such as those being occupied by tenants under the “lease for lives” system which, in many cases, involved three lives of family members, including young children. More research is needed to determine this.
But what we can know for sure, is that the British Manor System was at an end – at least as far as the Tankervilles were concerned.
What had been an estate of in excess of 16,000 acres, the “Catoctin Manor,” where the tenants farmed and improved the land while having no legal rights in it, had been transformed by the mid-1790s into a land of freeholders, with full ownership of the land now being vested in its former tenants and squatters, and others.
The Revolution had come to North Loudoun.
Postscript:
Once the Tankervilles had the legal documentation in hand to prove their title to the land, not only did their agents in Virginia take steps to dispose of the properties, but they did something else significant, in an attempt to alleviate their losses during the Revolutionary War.
On October 21, 1790, the Tankerville land agents, Hooe and Little, lodged a petition with the Virginia House of Delegates, seeking to recover the funds that had been paid into the Treasury of Virginia under the Act for sequestering British property. The reader will recall that Charles Little, as Commissioner of the sequestered Tankerville estates, had paid at least ₤1219 into the Treasury, which funds were to be used for the support of the Revolutionary cause, rather than to “strengthen the hands of our enemies” with whom we were at war.[iii] (In Virginia currency, the ₤1219 seems to have amounted to about $4,064 current money.)
Two days later, on October 23, Mr. Richard Lee, from the Committee of Claims, reported to the House as follows:
It appears to your committee, that the petitioners are the agents of Henry Astley Bennett, of the Kingdom of Britain, who under the will of his father Charles Earl of Tankerville, became possessed of a considerable real and personal estate within this Commonwealth; that under the act, entitled “an act, for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such are parties,” the said estate of the said Henry Astley Bennett was sequestered; and that Charles Little, one of petitioners, was appointed pursuant to the directions of the said act, a commissioner of sequestration, for the particular estate of the said Bennett.
It further appears to your committee that on the 14th day of May in the year 1779, there was paid into the loan office of this State, by the aforesaid Charles Little, the sum of four thousand and sixty four dollars, and two seventy-seconds of a dollar, accruing from the estate of the said Henry Astley Bennett, of the Kingdom of Great Britain, and sequestered according to the above recited act.
Resolved that it is the opinion of this committee, That the petition of Robert Townshend Hooe and Charles Little, agents for Henry Astley Bennett, of the Kingdom of Great Britain, praying to be paid the sum of four thousand sixty-four dollars and two seventy-seconds of a dollar, according to the scale of depreciation at the time the same was carried into the loan office of this Commonwealth, is reasonable.
Now, it is well known, probably then as well as now, that legislative committees tend to be composed of persons most interested in the subject matter at hand—i.e., cronyism. So while the Committee on Claims seemed to be sympathetic to Hooe’s and Little’s request, when it was taken under consideration by the Committee of the Whole, that is, the entire House of Delegates, that body was somewhat less sympathetic to the claims of the British land-owner. The Committee of the Whole reported out its finding on Monday, October 25, 1790:
Resolved, that it is the opinion of this committee, That the petition of the said Robert Townshend Hooe, and Charles Little, agents for Henry Astley Bennett, of the Kingdom of Great Britain, praying to be paid the sum of four thousand and sixty-four dollars and two seventy seconds of a dollar, according to the scale of depreciation, at time the same was carried into the loan office of this Commonwealth, be rejected.[iv]
[i] A handwritten copy of the Tankerville Will, as certified by the Prince William County Clerk in 1814, is now held by the Thomas Balch Library in Leesburg, having been transferred to Balch from the Loudoun County Library in 1978. The Balch Library’s description of the document states: “It is not clear how this copy of the will came into the possession of Loudoun County Public Libraries.”
[ii] The last Bargain & Sale by Henry Bennett was executed recorded in 1794, and the last Bargain & Sale by Charles, Earl of Tankerville, appears to have executed in 1796. However, since both were aliens, the deed had to be “proved” (i.e. approved) by the court, with Hooe and/or Litte appearing in court and swearing to the accuracy of the deed, and to the legitimacy of the transaction; this sometimes took as long as two years before the deed could be recorded. The last instances in which the deeds were proven, in 1798, were that of Josias Clapham and Anthony Souder.
[iii] Hening, Statutes, IX, 378.
[iv] Journal of the House of Delegates, Thursday, October 21, 1790 (p. 7); Saturday, October 23, 1790 (p. 12), and Monday, October 25, 1790 (p. 15).