TNGenWeb Project

By Daniel Byron Dovenbarger, ©



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The transformation of forests and meadows of Middle Tennessee from the domain of American wildlife and Indians to registered and deeded holdings of European settlers created a blurry blueprint for Tennessee's future. Political and legal patterns established then shaped the course of the new state. In imposing order upon the pell-mell rush to acquire land, there arose behaviors and partnerships which were to add much to local loyalties and antipathies. Such divisions were seen occasionally when figures from Tennessee entered the national political arena. Interest in the contribution Tennessee politicians made to the public policy decisions of the young republic leads us to focus some attention on the surveying and registry of land in Tennessee.

The men who became nationally important figures were the product, beneficiaries and controllers of the legal codes regulating the acquisition of frontier lands. An examination of those legal codes will provided substantial insight into the men who shaped the history of the early period.

This study will explore the legal and practical aspects of surveying and registry of land in Middle Tennessee. Judgment made of the land practices will be based on the criteria of the period itself. This will be done by looking at two things. First, this study will examine the laws passed by the legislature of North Carolina and the territorial government regulating the surveying and registry of lands in Middle Tennessee prior to statehood. This period of legislation, between 1777 and 1796, established the boundaries of this study. North Carolina's legislators had passed earlier land laws affecting all of their lands, including what was to become Tennessee, but since no colonists were in Tennessee at the time, those laws are unnecessary to this study. The land law passed after Tennessee became a state has its own interesting history. When those laws created conflicts with the earlier North Carolina precedents, conflicts emerged which lasted well into the twentieth century.(1) Such problems are beyond the scope of this paper however. Here we will focus our attention on the period when the settling of the Tennessee region was most intense and surveying and speculation was begun.

Not all land laws in effect during the settling of Tennessee have been described here. An attempt has been made to concentrate upon the laws having the most impact upon the settlers and surveyors of Middle Tennessee in its beginning years. Some laws passed during this period were of no consequence because of their minor subject matter. Other laws were of no consequence because they were promptly repealed, but vitally important to this study because of what they reveal about the internal workings of the state legislature. Therefore, careful judgment has been exercised to determine which laws are most essential to this study. The effort has been to convey a valid overall feeling of what the lawmakers were trying to accomplish when they confronted the problem of securing valid deeds for the mass of settlers that swarmed into the area after 1780.

In response to the legislation examined, the second part of this study will investigate how the surveying and land registry actually occurred. The laws examined first will detail what were the legal procedures. Then, this study seeks to determine to what extent those laws were observed. Examination of non-legal documents in the form of journals, letters, and receipts, in combination with legal documents such as indictments, records of the county registrar's office, and deed books, provides the method for determining the degree of accord between theory and practice. Judging the past in its own terms in this way gives, perhaps, the most sensitive normative judgment that can be rendered.

This study, therefore, is a two-pronged look at survey law and practice. It is an attempt to gauge the extent of illegal speculation carried out under the laws of North Carolina and the territory. Such an attempt leads to an evaluation of the moral, legal, and ethical quality of the men who parceled and speculated in Tennessee land while it was being settled. Since many of the men involved became influential in the politics of Tennessee, an historical judgment against them raises serious implications. Is the respect generally awarded to the early leaders of Tennessee deserved? Have we overestimated their virtues? This paper aids a re-estimation of the quality of those men by examining the land laws and the degree to which speculators and surveyors obeyed those laws.

Before beginning the examination of laws passed regulating Tennessee land, it is important to grasp the uniqueness of Tennessee in the history of land survey in the United States. This special nature of Tennessee's survey system is evident from the fact that Tennessee is one of a very few states which were not brought into the Union under the public land procedures mandated by the United States Congress.(2) These states are Vermont, Texas, Hawaii, Maine, West Virginia, Kentucky and Tennessee. Of these, several have special distinctions. Texas and Hawaii were brought into the Union from foreign land tenure systems. Of the rest, Vermont, Kentucky and Tennessee are distinguishable by their admission to the Union soon after the Constitution was ratified. Since Vermont was settled in the standard New England township method, Kentucky and Tennessee are in a class by themselves. What this means is that they were substantially settled in an unsystematic fashion largely before the Constitution of the United States was ratified. They were also outside the jurisdiction of the Northwest Ordinance. These two factors allowed the states to be settled and surveyed in a different fashion than subsequent states. In a very real sense, it may be more appropriate to describe Kentucky and Tennessee as being colonized rather than settled. The patterns of growth in Tennessee were closer to those of the colonists who reached the southern shores of America in the previous century than to the orderly pattern of township growth planned for the Northwest Territory and subsequent additions to the public lands.(3)

The exclusion of Tennessee lands from the Federal rectangular survey system left the control of the surveying and settling of land in the hands of the state. Originally under North Carolina's jurisdiction, the lands within Tennessee were subject to a string of legal claims and jurisdictions. Either the inability or the failure of any of the legislative bodies governing Tennessee to develop a systematic plan of survey and settlement is evidenced by the best description of Tennessee land holdings: chaotic.(4) Indeed, one wonders if survey patterns in Tennessee can truly be called a system. Land holdings in Tennessee consist of irregular shapes following little, if any, recognizable pattern.(5) Such a system has little to recommend itself to our modern way of thinking, but it developed out of a particular cultural, political, and social framework. Thus, one of the crucial factors in such a system must have been the particular period in which the land was opened for settlement.

The period in which Tennessee was settled played a role difficult to evaluate. Tennessee began to be settled during the upheavals of the American Revolution. Economic disruption, crowding on the eastern lands, British invasion, and concomitant tax increases all might be seen as reasons for the increasing attractiveness of trans-Allegheny lands. Furthermore, interest increased in opening up new lands that could be sources of great gain for those wealthy enough to shape the policies of the newly independent colonies. Further impetus was added to the westward movement through the ousting of a government trying to impose the limitations created by the Proclamation of 1763. All these reasons and more caused the settlers of Virginia and North Carolina to head west during the Revolutionary era.

At that time, the government of North Carolina was occupied quite extensively with trying to survive and win a war. It can be expected that greater importance was attached to raising and supplying the militia than providing legal direction to the bold men or poor settlers who were foolhardy enough to venture into the still-Indian-infested tangles of the Cumberland Valley. In other words, Tennessee (and Kentucky too, for that matter) was opened for settlement precisely at the moment in our history when little attention could be spared to develop rational and systematic land survey systems. The preoccupation of the colonial governments as they went through the process of becoming states within a Union probably absorbed the legislative energy that might have been used to pass regulations affecting land surveys in the Cumberland area.

The result of all this was to put the government, first of North Carolina and later of Tennessee, continually in the position of passing remedial legislation. As will be demonstrated, most of the laws were a response to some current land survey practice. Seen in this light, the legislation of the period appears, perhaps not so unusually, as an afterthought. The laws we examine here were based upon reactions to abuses or injustices affecting settlers or speculators hungry for land.

The geography of Tennessee played a special role which should be mentioned. The rate at which settlement occurred was accelerated by the ease with which the territory was entered. A major factor in Tennessee settlement was the presence of two long and navigable rivers. Equally fortuitous was the way the Great Valley of Virginia funneled pioneers to the Cumberland Gap and into the broad valleys of the western territory. Combined, these geological features of the landscape permitted the interior basin of Tennessee to fill up rapidly. As it was, economic growth and agricultural development were fostered in the Cumberland Valley by rich soils, easy transportation, and rapid population growth. It can be surmised that such speed of development combined with the preoccupation of the seaboard establishment with its own problems, including the war, provides much of the explanation needed to understand the looseness of the early land law system.

One should distinguish between the land settlements established in Middle Tennessee (what was earlier called West Tennessee) and those settlements in present-day West Tennessee and East Tennessee. The need to make such a distinction is evident from reading the various laws affecting the region. Understanding the difference between these regions facilitates the understanding of the material presented in this study.

East Tennessee was opened by the gradual pressure from the east which pushed the boldest settlers farther and farther into the wilderness. Even though they gradually pushed through and over the mountains, the settlers in East Tennessee were still in contact with the settlements they had sprung from in North Carolina and Virginia. Treaty cessions of land with the Indians in this region allowed the frontier of North Carolina to creep into present-day East Tennessee. As a result, East Tennessee was substantially opened by the time Middle Tennessee settlements were founded. This difference is significant, as is the difference in the geography of the two regions. Since much of East Tennessee was already settled when many of the laws affecting the state were passed, it is assumed that there was a differential application of laws relating to land in the two areas. On the other hand, many of the bills examined in this study were applicable in Middle Tennessee but were passed early enough to have been useful in East Tennessee. Therefore, laws specifically limited to East Tennessee have been eliminated from this study. East Tennessee has special problems and a history of its own that should most properly be treated in another study.

In contrast to East Tennessee, West Tennessee was opened rapidly by a law passed October 23, 1819, authorizing the survey and districting of the lands south and west of the Congressional Reserve Line.(6) The Congressional Reserve Line was a line designated by the United States Congress in 1806. For the most part, this line separated lands west of the Tennessee River from Middle Tennessee.(7) The lands in this area were saved for distribution as military grant lands from North Carolina. Since this land was opened in one short period, it most nearly resembles--if any portion of Tennessee does--the type of land system employed elsewhere in United States public lands. West Tennessee offered to both settlers and speculators a different set of rules from those in Middle Tennessee and is therefore rightly excluded from this study.

The area around Nashville was settled differently than other portions of the state. The earliest trader activity in the Middle Tennessee area has been adequately described by Verner Crane in The Southern Frontier.(8) With the exception of the few traders Crane mentions, however, the Cumberland area had been empty of European man. There is evidence that Andrew Greer and Julius Dugger were the first white settlers to settle south of the Virginia line in the Cumberland region.(9) Other early figures such as Thomas Sharpe Spencer are reported to have been in the area during the last several years of the 1770's, but most such men were wandering scouts, hunters, and traders.(10) This group, present in the Cumberland area at least after 1769, included Kasper Mansker, John Rains, Abraham Bledsoe, John Baker, Joseph Drake, James Knox, Obadiah Terrill, Uriah Stone, Henry Smith, New Cowan, Robert Crockell, Thomas Gordon, Cash Brook, and Humphrey Hogan.(11) Some of these men were to play an interesting role in the subsequent history of the region.

The true opening of Middle Tennessee, however, has been fairly well attributed to the efforts of a group led by James Robertson arriving within a limited period.(12) Using the rivers, a portion of the settlers came by water in 1779, leapfrogging a great stretch of the wilderness that existed between the French Lick on the Cumberland and the older settlements on the Holston. The rest of the party came overland, driving animals and bringing the rest of the necessary belongings with them.

The leader of the first substantial settlement was a man with experience in settling new regions. James Robertson was a Virginian who had moved to North Carolina in the spring of 1770. He became involved with the opening and settling of the Holston region in the mid-1770's. He, along with Joseph Martin, had also had experience dealing with Indians.(13) Both men were to become important figures.

The chief speculators of the period should also be mentioned here. All these men were not frontiersmen in the beginning. They were from or had connections with the wealthy seaboard regions of North Carolina. The wealth they possessed often came from activities such as merchandising. This allowed them the means and security to invest heavily in western lands. For now it is sufficient to know that the Blounts, Robertsons, Seviers, Donelsons, and Winchesters were the principal speculators.(14) These families came to be represented on the frontiers, but they were not the earliest pioneers. There are indications that such men preferred to let others risk opening the western lands. Speculators could use the lower-class men such as Kasper Mansker to achieve what speculation demanded: the elevation of land prices through the stabilizing of frontier communities.(15) In this way, without taking the risks, the best speculators could reap profits denied to the immigrants who assumed the dangers. These early immigrants sometimes saw a surprising portion of their families and friends murdered by Indians.(16) The speculators, arriving later, survived long enough to enjoy the fruits of their profits.

There existed, too, a substantial number of bold men with a background of experiences and connections who survived on the frontier long enough to rise high in the world of early Middle Tennessee. In this category fall James Robertson, Joseph Martin, and some of the Donelsons.(17) Others who reaped the benefits which fell to surveyors were Henry Rutherford, Edwin Hickman, James Mulherrin, and Daniel Smith.(18) All of these men had other appointments, usually in the militia.
Surveying appointments could be lucrative.(19) Compensation for surveying a tract could vary from one-third to one-half of the tract itself.(20) Further income was obtainable from the legal fees paid the surveyor for his preparation of the necessary plats, registers, and certificates. Surveyors were also granted the right to farm out to other assignments they had accepted. Hiring apprentices to do some of their work, the surveyors could accept a great deal more work than personally possible to do. The apprentices, in return for the experience, were usually rewarded with nothing more than their keep and expenses.(21) When laws were passed requiring a specific surveyor to carry out an assignment, the state provided him with chain-carriers, markers, and guards. The state or county paid for food and these helpers.(22) It remains to be seen what additional income might have been generated by the surveyors, entry-takers, or other public officials outside of the legal benefits which their jobs provided.

This then, is the background and beginning explanation for the conditions that surrounded the opening of Middle Tennessee. Exposing some of the complexities accompanying early Tennessee settlements facilitates an understanding of the laws now to be examined.

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Fig. 1. Reserve Lands

SOURCE: Kenneth Wilson Warden, "The History of the Administration of the Tennessee School Fund" (M.A. Thesis, George Peabody College, 1920), p. 16.

Endnotes, Chapter I

(1) Lewis Preston Summers, History of Southwest Virginia 1746-1786 (Richmond: J. L. Hill Printing Company, 1903), P. 746.

(2) Sarah V. Williams, "History of the Tennessee Public School Lands" (M.A. Thesis, Vanderbilt University, 1944), p. 5.

(3) John G. McEntyre, Land Survey Systems (New York: John Wiley & Sons, 1978), pp. 36, 66.

(4) Ibid., pp. 21-22.

(5) These irregular shaped tracts of land serve as blatant evidence of violations of the survey laws. North Carolina had provided by statute that each tract to be granted should be rectangular. For further details of these laws see p. 16.

(6) Edward Scott, ed., Laws of the State of Tennessee Including Those of North Carolina Now in Force in this State from the Year 1715 to the Year 1820, Inclusive, 2 vols. (Knoxville: Heiskell & Brown, 1821), 2:445-46.

(7) A map of Tennessee showing the reserved lands appears on p. 13.

(8) See Verner Crane, The Southern Frontier 1670-1732 (Durham: Duke University Press, 1928).

(9) James H. Pauly, "Early North Carolina Migrations into the Tennessee Country: 1768-1782" (M.A. Thesis, Middle Tennessee State University, 1969), p. 55.

(10) Edward Albright, Early History of Middle Tennessee (Nashville: Branden, 1909), pp. 25-33.

(11) Ibid., p. 25.

(12) See Philip Hamer, Tennessee: A History (New York: American Historical Society, 1933); Archibald Henderson, The Conquest of the Old Southwest (New York: The Century Company, 1920); Albigence Waldo Putnam, History of Middle Tennessee (Nashville: n.p., 1859; reprinted., Knoxville: The University of Tennessee Press, 1971); Pauly, "Early North Carolina Migrations into the Tennessee Country: 1768-1782" (M.A. Thesis, Middle Tennessee State University, 1969); Edward Albright, Early History of Middle Tennessee (Nashville: Branden, 1909); Charles W. Alvord and Lee Bidgood, The First Explorations of the Trans-Allegheny Region by the Virginians 1650-1674 (Cleveland: The Arthur H. Clark Company, 1912); John Morgan Bright, Donelson and the Pioneers of Middle Tennessee (Washington, D. C.: Globe Publishing Company, 1820); John Carr, Early Times in Middle Tennessee (Nashville: C. Stevenson and F. A. Owen, 1857).

(13) Pauly, pp. 108-9.

(14) Gordon T. Chappel, "Land Speculation and Taxation in Tennessee 1790-1834" (M.A. Thesis, Vanderbilt University, 1936), p. 3.

(15) Ibid., p. 9.

(16) See Putnam, p. 271 passim.

(17) Pauly, pp. 9-11.

(18) Harriette Louisa Simpson Arnow, Flowering of the Cumberland (New York: Macmillan Publishing Coimpany, 1963), pp. 311-12.

(19) Harriette Louisa Simpson Arnow, Seedtime on the Cumberland (New York: Macmillan Publishing Company, 1960), pp. 316-17.

(20) Mariella D. Waite, "The North Carolina Land Cession of 1784" (M.A. Thesis, University of Florida, 1965), p. 34; Arnow, Seedtime, p. 45.

(21) Arnow, Seedtime, p. 317.

(22) Arnow, Flowering, p. 312.

This paper is copyrighted by Daniel Byron Dovenbarger, 1981, 1999. All reproduction rights are reserved. This paper is used here with his kind permission.

This online version was typed by Jo Roe Carpenter and coded in HTML by Fred Smoot.

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Chapter II
Chapter III
Chapter IV
Chapter V

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