USA > Pennsylvania > Colonial records of Pennsylvania, Vol. VIII > Part 37
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Mr. Chew reported that the Message of the Assembly and the. Altercations proposed by them relating to the Bill for recording Warrants and Surveys, &c., had been Considered by Mr. Coleman, Mr. Ross and himself, Mr. Stedman not being in Town, and Mr. Moland not coming to them according to his appointment, and they were clearly of Opinion that the prosed Amendments did not re -- move any of the material Objections, and were trifling and imma- terial.
The Governor reminded the Council that he had some time ago. mentioned Mr. Moland as a proper Person to be called to the Board. The Members said theye remembered it well, and as they all of them then expressed their good Opinion of that Gentleman's, Abilities and Integrity, expected he would have been again men- tioned by the Governor before now ; He was therefore proposed and unanimously approved, and Mr. Peters was desired to acquaint him therewith, and to request his Opinion on the Assembly's Mes- sages and proposed Alterations to the aforesaid. Bill ...
At a Council held at Philadelphia, Tuesday the 19th of June,. 1759.
PRESENT :
The Honourable WILLIAM DENNY, Esq", Lieutenant Gov -. ernor,
Robert Strettell,
Benjamin Shoemaker,
Joseph Turner,
William Logan,
Lynford Lardner,
Richard Peters, Esquires. .
Benjamin Chew,
Thomas Cadwalader,
John Moland ..
Mr. Logan expressed his satisfaction at Mr. Moland's being made. a Member of Council.
Mr. Moland took the Oaths and made and subscribed the. Dec"- laration enjoined by Act of Parliament, and likewise took the Oath for the faithful Discharge of his Duty as a Member of Council for. the Province of Pennsylvania, and Counties of Newcastle, Kent, and Sussex, in Delaware.
Mr. Moland acquainted the Governor that he had carefully pe- rused the Message and Papers of proposed alterations, sent by the
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Assembly with the Bill for recording of Warrants and Surveys, &c., and had, together with the other Gentlemen, given his Judgment in Writing thereon ; Which was produced by Mr. Chew, and read in these Words :
" We have carefully considered the Assembly's Amendments to their Bill Entituled ' an Act for recording Warrants and Surveys, &cª.,' and are all clearly of opinion that the Amendments made do by no Means satisfy the Defects of the Bill taken Notice of in our late written report to the Governor, and that in the most Mate- rial Points mentioned in our said Report, the House has not made the least Corrections or offered any Amendments at all.
"WILLIAM COLEMAN. "BENJAMIN CHEW. " JOHN MOLAND. "JOHN ROSS.
"June 19th, 1759."
Mr. Peters observed that both by the Commission of Govern- ment and Property, the Surveyor General and Secretary were put under the Governor's immediate Protection ; And therefore, as they had never misbehaved, and there was such a Confidence reposed in his Honor by the Proprietaries, towards them and all other Propri- etary Officers, he requested, and hoped the Governor would be pleased to extend to them, on this and all Occasions, that Protec- tion and Countenance which by his Commissions they had just Cause to expect.
Many objections were made by Mr. Chew and Mr. Moland, besides those contained in the Paper of observations, to almost every part of it, and in the Course of their Arguments they de- clared that the faults of the Bill were so many, and the plan so unjust to the present Officers, who were acknowledged to have be- haved well in their Offices, so injurious to the just Rights of the Proprietaries, and might prove so destructive to the Estates and Property of the Inhabitants, that it was not possible to amend the Bill ; but that if another was drawn at more leisure, and on the plan of the Observations, it might be considered and made a very useful Bill, And therefore advised the Governor to reject the Bill, and to desire the House to form another. The Members concur- ring in Sentiment with the Governor, the Bill was sent to the House with the following Message :
A Message from the Governor to the Assembly.
" Gentlemen :
"I have Considered your Amendments to the Bill Entituled 'An Act for recording Warrants and Surveys, &cª", and conceive they by no means Answer to remove the Objections I laid before you, some of the most Material of which, I must observe, you have passed over without taking any Notice of them. The Bill, as it now
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stands, is so very exceptionable, that it is hardly possible to amend it, without framing it anew ; Therefore, I am under the Necessity of refusing my Assent to it, and recommend it to you, when it suits your leisure, to make a new Draught on the Plan of the Obser- vations I lately laid before you.
" WILLIAM DENNY.
"June 19th, 1759."
MEMORANDUM.
On the Twentieth the Governor ordered the Secretary to compare the three Bills to which he had given his Assent as they were en- grossed, with the Originals, and this being done the Governor sent a Message to the House requiring their Attendance in the Council Chamber, where they came, and three Bills respectively entituled as follows, viz. : "An Act for re-Emitting the Bills of Credit of This Province heretofore re-Emitted on Loans, and for sfriking the further Sum of Thirty-Six thousand Six Hundred and Fifty Pounds, to enable the Trustees to lend Fifty Thousand Pounds to Colonel John Hunter, Agent for the Contractors with the Right Honour- able the Lords Commissioners of His Majesty's Treasury, for His Majesty's Service:" " An Act for the Relief of the Heirs, Devi- sees and Assigns of persons Born out of the King's Legience, who have been Owners of Lands within this Province, and died unnatu- ralized ;" and " An Act for the more effectual suppressing and pre- venting of Lotteries and Plays," were enacted into Laws.
The Speaker presented the Governor with an Order for One Thousand Pounds on the Trustees of the General Loan Office, for which his Honour returned thanks to the House, and acquainted his Honour that the House inclined to adjourn to the second Day of July next, to which the Governor made no objection.
Mr. Lardner and Mr. Logan were of opinion as the Bill for re- cording Warrants and Surveys very much concerned the Proprie- tary Rights and Estate, that it should be sent to the Proprietaries and detained by the Governor till he was furnished with their Sen- timents upon it.
At a Council held at Philadelphia, Thursday, the 5th of July, 1759.
PRESENT :
The Honourable WILLIAM DENNY, Esqr., Lieutenant Gover- nor.
Benjamin Shoemaker,
William Logan,
Richard Peters, Benjamin Chew, Esquires.
Thomas Cadwalader, John Moland,
The Governor laid before the Council a Bill presented to him yesterday for his concurrence, Entituled " An Act for recording
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Warrants and Surveys, and for rendering the real Estates and pro- perty within this Province more secure," together with a Message from the Assembly and a Paper signed by Mr. Joseph Galloway, all which was read.
A Message to the Governor from the Assembly.
" May it Please your Honour :
" We have carefully considered the Observations sent down with the Bill entituled " An Act for recording Warrants and Surveys, &cª.,"' and have framed a new One upon the Plan of that formerly laid before your Honour. In this Bill we have taken in such parts of those Observations as we Judge reasonable and necessary, and we cannot but observe that the other parts of them appear to us contradictory to each other, or inconsistent with the Usage of a British Parliament, our own Province, and that of a neighboring Government. We herewith Send such Remarks made upon those Observations by a Gentleman of the Law, a Member of our House, in Point of Law and Reason, as we hope will prove Satisfactory to your Honour, and obviate all Objections, and that upon Considering the great Importance of this Bill to the Freeholders and Inhabi- tants of this Province, you will be pleased to give your Assent to it as now sent up by the House.
" Signed by order of the House,
"ISAAC NORRIS, Speaker. " July 4th, 1759."
Remarks on the Observations on the Bill entituled " An Act for recording Warrants and Surveys, &ca .: "
"Remarks on Observa". 1st.
"The Surveys, Maps, Charts, &cª-, directed to be recorded by the Bill, are those made by the Surveyor General or his Deputies, Offi- cers appointed by the Proprietaries for that Purpose, who give se- curity to them for the faithful Discharge of their Duty, and ever have been deemed Publick Officers. Their Handwriting is generally well known, and must be certainly so to an Officer who is constantly receiving Surveys from them. These Papers have ever been re- turned to the Surveyor General's Office, without any proof of their being genuine or Authentick, or made under a proper Power and Authority, unless the Care Certificate or Signing of the Deputy may be esteemed a Proof; if so, 'tis what the Bill implicitly re- quires, so that the real Estates of the Inhabitants will not be either so insecure or precarious as they at Present are, the Officer to whom such Surveys, &ca., are to be brought and returned in order to be
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recorded, being under the Sacred Tye of a Legal Qualification, and good Security to the Publick to execute his Trust with Fidelity, which the present Officer does not do, but on the Contrary gives private Bond to the Proprietaries, who in this respect can only be Considered as private Persons, whose Interest is as incompatable with the People's, as that of any Buyer or Seller whatsoever.
"Nor will the Surveys, &cª, directed to be recorded, be more sub- ject to Forgery without being detected, from the Originals not be- ing preserved, than Deeds enrolled in Great Britain or in this Pro- vince, the Originals whereof are not directed to be secured in any Office, but delivered back to the Owners thereof after the enrollment. However, if a Proof by Witnesses, or the Acknowledgement of the Surveyor, will render the real Estates of the People more Secure, and the Securing them in the office when recorded may tend to de- tect Forgeries, as it cannot injure the Bill, and only put the people to the unnecessary Expence of a Copy, perhaps rather than lose the . Advantage the Public will receive, it will be best to amend the Bill accordingly.
" Remarks on Observaª. 2d.
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" This Observation contains an evident Contradiction to the first, which insists that the Originals ought to be secured in some office, and in this and the fourth Observation that Exemplications of them by no means ought to be admitted as Evidence while the Originals are in being. Now none can conceive how an Original Survey, or other Paper which is to be secured in some certain Of- fice, can be made use of in evidence in the several Courts of Jus- tice in this Province, some of which are an hundred miles distant from one another, Unless they can conceive it possible for the same thing to be in two different Places at the same time. But further to show the Mischief of this Position, some Surveys con- tinues the Lands of many different people, who are equally inter- ested therein ; to trust the Originals out of the Office to either of the Persons interested would be rendering the Rights and Title of the others precarious and insecure. If not lost, by frequent carry- ing about, they must in time be worn out, or so defaced as not to be legible, and therefore rendered of no use.
Warrants and Surveys are two of the most Essential Links of the chain, upon which all the real Estates in the Province depend, Many of them singly are absolutely necessary to make out the titles of many different Persons, and many of them have been lost or destroyed by their remaining in the Proprietaries private Office without being recorded. And it being highly unsafe and incon- venient, that the Originals in which so many are concerned should longer remain in this loose and precarious Situation, The Legis- lature intended by this Bill to remedy these Inconveniences by in- stituting an Office or Common Repository for them, where they
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may remain on Record in Custodia Legis, under the Care of a sworn Officer empowered to give exemplifications of them, and such exem- plifications are declared to be as good Evidence as the Originals. But if in no Case under this Law Maxim, an Exemplified Copy is to be admitted in Evidence, but in Case of the loss of the Original, and that Original is to be by Law secured in some office, What method shall a Man take to Prove his title in the different Courts of Justice in this Province, or before the King and Council in case of an Appeal? Has not the necessity of the Case prevailed on our Judges since the settlement of the Colony to admit even Certified Copies by the Surveyor General without Seal, who is not under Oath or Autho- rized by Law for that Purpose ? Are not proved Copies or Exempli- cations of the Inrolment of Deeds by the Stat. of Enrollments, and Several other Statutes made for registering of Deeds, &ca., in the sev- eral Parts of England, declared to be sufficient Evidence ? Is not the Chyrograph of a fine good Evidence ? The Chyrographer being by Law appointed to give out Copies of the Agreement between the Parties, that are lodged of Record.
But this sacred Law Maxim seems to be both misunderstood and Misapplied. It never was extended that I can find, to Exemplifi- cations of a Deed inrolled, or other Record, by the Officer under Oath, and appointed for that purpose. The Rule will hold good where a person who is presumed to have an Original deed in his Possession, and without Proof of its being lost, destroyed, or out of his Power, Offers a Copy of it in Evidence. Here the Copy is not the best Evidence the nature of the Case will admit of, for the Ori- ginal is better, which for aught that appears, the Party might pro- duce, and that not being, it induces a Suspicion that the Original, if produced, would make against him, and therefore the Copy is ever rejected. But to apply this Maxim to Exemplification of Deeds or other things Examined and recorded by a Sworn Officer, and en- trusted to give out such Exemplifications, is so far from being the Opinion of the best Judges, that it strikes at and Contradicts the Policy and Wisdom of the Legislature of our Mother Country, as well as our own.
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Remark on Observa" 3d.
'Tis true the Common Law has provided a Remedy for Persons whose Papers and Title Deeds are in the Possession of another. But that Remedy is no. adequate to the Mischief by this Bill in- tended to be avoided. There are many particular Warrants and Surveys under which different Persons claim, and to which many different people have an equal Right, and yet it is impossible all should possess them. And it is by no means consistent with that Security which should ever attend Real Property, That another should keep the Muniments of my Right who may loose or even destroy them at his pleasure, to my great Prejudice. Beside, there are sundry particular papers belonging to the Publick, in which no
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Individual is separately concerned, for which no Action of Detei- - nure can be brought, and which ought to be recovered and entered on Record. To remedy these Inconveniences, the Assembly, by the Bill, have appointed a Publick Officer to Collect, sue for, and recover, and when recovered, to record all such Papers, that the Publick and all the Parties concerned, may have free access to and full Benefit and Advantages from, whenever his or their Title is impeached or called in Question, which End and purpose the Action of Deteinure at Common Law could never answer. And therefore the Legisla- ture of New Jersey, a Province with respect to the recording War- rants and Surveys lately very much in our Circumstances, have in- vested their Publick Officer with the same Powers invested in the present Bill.
As to the new and very extensive Power (as 'tis called) of the Officer appointed in the Bill. It is expressly confined to Warrants granted by the Proprietaries and Surveys, Charts, &c., made and signed by a publick Surveyor or his Deputy. Many of which have never been returned to any Office, nor has the Subject a power by any Law to oblige and enforce such a Return, by which means numbers of Purchasers, for a valuable Consideration, have been rendered incapable of showing their Right., and of course deprived of it. These Officers, under the Proprietaries, gives Security to them for the faithful Discharge of their Duty, and therefore there can be little Danger of their making and signing Surveys without due Warrant. and Authority. Nor can there be any doubt but the Court where the Suit is brought, in this Case as in all others, will Oblige the Party to Prove the Papers Authentick, and that they were made and signed as the bill directs by the Proprietaries or their Publick Surveyors, without which the Officer, as the Bill now stands, could not be entituled to recover. The Power given the Officer by this Bill is much more confined and limitted than in the like Case in New Jersey, where that Multiplicity of suits and end- less Scene of Confusion, so much dreaded as the Consequence thereof, has never yet happened, nor is it reasonable or indeed Charitable to think this abuse will ever happen, as it cannot be done without the Officer's incurring the Penalties of Perjury and forfeiting his Bond, the greatest Security the Law know of, without receiving the least Benefit from this henious Offense and great Risque.
And as to the saving Clause mentioned in this Observation, no good reason can be offered for inserting it in the Bill, as the remedy thereby given, extend no further than that before mentioned at Common Law, with respect to the recovery of the thing sued for, and never could be construed to abridge a court of equity (had we such a one at first) of its power to favor an innocent Purchaser for a Valuable Consideration without Notice. For if a Person has the Deed of another, and a suit or action of Deteinure is brought at the Common Law for it, it is no good plea that he is a Purchaser for a
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valuable Consideration without Notice, but the Plaintiff will either recover the Deed or full Damages for the Detention. To insert such a clause would take away even the Subject's Remedy at Com- mon Law.
Remarks on Observa". 4th.
" The Secretary's and Surveyor General's Offices were originally instituted by the Proprietary, as his Private Offices and private Se- curity has been ever taken from the respective Officers for the faith- ful Discharge of their Trust, and I have been informed they like- wise are under oath for that Purpose. To oblige by Law the same Persons to give Security to the Publick, and to take an Oath for the Discharge of their Duty to the People who are under the like ties and Solemn Obligations to private Individuals, which the Pro- prietaries as to matters of property certainly are, would be a Strange and novel piece of Legislative Policy. It would be imposing on him the hard task of Serving Two Masters, whose Interests in this respect are as diametrically opposite as the Interests of any Buyer or Seller whatsoever : For whatsoever Surveys of Land are lost or destroyed, or the Purchaser thereby rendered incapable of making out his Right, The Land of Course reverts to the Proprietaries, who may sell the same to another, while the Heirs and Representa- tives of the first bona fide purchaser are deprived of their Property. Of this there has been many Instances, and some of them may be readily shown to any impartial Judge; From whence it is evident that the real Properties of the People cannot be Safe and Secure, but in having the Muniments and Evidences which concern their Possessions and Inheritances in the Hands of Officers under the more coercive obligations to preserve them, and perfectly free and disengaged from the Interest and Influence of the Proprietaries or any other Persons whatsoever. Of this Opinion was the late and present Chief Justice and one of his Brother Judges, when they advise the annexing a Power of recording Warrants and Surveys not in the Surveyor General's but in the master of the Rolls. 3 votes, p. 261."
Remarks on Observation. 5th.
"It is the constant practice with the Proprietaries, before a war- rant is granted, to oblige the person to pay down part of the Con- sideration Money, and for the Residue they charge Interest until the whole is paid. A Warrant and Survey returned into the Surveyor General's Office, without more has ever been adjudged by all our Courts of Justice, to give a good Title as well against the Proprie- taries as all Subsequent Purchasers, and this is founded on an Original Covenant on Record with the people. It has therefore been declared by very good Judges, and particularly the late Chief
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Justice John Kinsey, That the Right vested in the People on the Payment of the Money and granting of the Warrant, and that the Proprietaries having an adequate Remedy at law both for the Pur- chase Money unpaid and the Rent agreed for, could have no right to vacate their Warrants granted to the People for a Valuable Con- sideration. But Suppose Argumenti Gratia, That these Contracts are Executory, and that the Proprietaries have the Mischievous and unreasonable Power of Vacating them at Will, tho they are possessed of a part of the Consideration, Is it possible that the Recording the Evidences of an Executory Right can injure any person whatsoever ? Will not the Condition appear on record, and the true Right and Interest of the parties be thereby rendered more easy and secure ?
"By the Clause directing the Deputy Surveyor to return the Surveys as soon as made into the office instituted by the Bill, The House, I conceive, intended to prevent an Innocent Purchaser from being deprived of his Prior Right of Discovery of Vacant Land, and to guard against the Mischiefs which the Delays of the Deputy Surveyors in making their Returns often occasion, by giving Oppor- tunities to others of discovering the same Land, and to himself or the Surveyor General, or Commissioner of Property, of favouring a favourite in prejudice to the first Discoverer, against which Act of Injustice the Subject has no kind of Security, as neither the Com- missioner of Property or the Surveyor General or his Deputies are under any legal Tye or Qualification to do Justice to the People agreeable to the Policy of all good Laws; But as these Mischiefs may be in a great measure avoided, and the Objection made to this Part of the Bill removed, by directing the Deputy Surveyor to re- turn his Survey as soon as may be after it is made into the Surveyor General's Office, where it may be revised and examined by the Sur- veyor General and the Proprietary's Commissioner of Property, and afterwards roturned into the Office appointed by the Bill, within a Convenient Time, It may be prudent to amend the Bill accordingly.
" General Remark.
" Upon the whole, as the present insecure and precarious state of the people's real Estates and Inheritances is fully acknowledged in Observation 4th, and that the Officer who is to be intrusted with the Evidences of their Titles ought to give good security, and be under an oath for the faithful Discharge of his Duty; and as it seems evident, from the plainest Convictions of Reason, that that Officer should be free and perfectly disengaged from any Interest or Influence whatsoever, and particularly from that of the Proprie- taries, That he should be invested with a Power of suing for War- rants and Survey, recovering and recording them, and that his Ex- emplifications thereof should be admitted as Evidence in our Courts of Justice. 'Tis hoped the Governor may be prevailed upon, on further Consideration of this reasonable and necessary Bill, and the
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Amendments which shall be made therein by the House, to enact it into a Law.
" Submitted with all due Respect to the House by "JOSEPH GALLOWAY."
Mr. Galloway's remarks were read a Second Time, together with the Observations to which they are said to be an answer, and the Council observed that it must be Evident to every one that in the material Points the Observations were either misunderstood or per- verted, evaded, or insufficiently answered, and would Introduce the utmost Confusion in the titles of the Estates of the Inhabitants, and were particularly injurious to the Just Rights of the Proprie- taries and their Officers, and as to the second Bill, it differed very little from the first, and none at all in the most exceptionable parts, and was upon so bad a plan, and so defective, that it could not be amended. And it was surprising to all the Council that the House should pay so little regard to the Governor's Message when he re- jected the last Bill.
Mr. Moland acquainted the Council that he had, at the request of the Governor, put down in writing the Heads of a Bill which he thought would fully answer all the good Purposes intended by the Present Bill. And on its being read, it was the unanimous opinion of the Council that it should be transcribed and recommended to the Assembly, which was done with a Verbal Message delivered by the Secretary in these Words:
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