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While yet in England he sold large tracts of land in Penn- sylvania to persons who were technically known as "first purchasers." In agreement with them he published certain "Conditions and Concessions." In this document various rules of settlement are laid down, together with directions for build- ing roads and highways, for kindly treatment of the Indians, and for the laying out of a large town or city on the river side, in the most convenient place for health and navigation. To be more specific, it was provided that every one who purchased or leased 500 acres in the province at large, should receive IO acres in the proposed city, if the space therein would allow it. Purchasers of 1,000 acres or more were not to have over 1,000 acres in any one locality, unless within three years they had settled a family on each thousand acres. Purchasers of 5,000 acres or more might form townships. Moreover, within three years after his land had been surveyed, every man must appro- priate and settle it, or, on complaint to the proprietor that the rules of settlement had not been obeyed, new-comers might be given possession. In this case, when the complainant had paid the purchase money, the interest, and the fees for surveying, the proprietor should make him an actual grant of the lands not rightfully settled. Rivers, woods, and all mines save those of gold and silver, whether mentioned in the deed or not, should be enjoyed by the purchaser into whose hands they fell, while special encouragement was given to those who would search for gold and silver mines. Lastly, from every 100,000 acres
1 A Brief Account of the Province of Pennsylvania, 1681; Some Account of the Province of Pennsylvania, 1681.
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the proprietor reserved 10,000 acres for himself, on the condi- tion that in each instance they should lie compactly together."
In October 1681 three commissioners were appointed to superintend the settlement of the colony. These, with Penn's cousin, Capt. Markham, who had been dispatched a short time previous to take possession, were to act in accordance with in- structions, and were to execute the "Conditions and Conces- sions" on behalf of Penn. They were to lay out the town, and 10,000 acres contiguous thereto for its liberties. They were also to assign the proportions of land to which purchasers were entitled within the town. But if they could not find land bordering on the Delaware in quantities sufficient to allow lots of 100 acres for each purchase of 5,000 acres in the province, they were to get what they could, and assign the lots proportionately, even if only 50 acres in the city were allowed for each propriety. If they found all the land suitable for a city already occupied by Dutch, Swedes, or English, they were to secure from them a release, adding inducements even to the extent of freeing the owners from quit-rent, and urging the weakness of their titles, secured as they were only by grants from the governor of New York.2
They were enjoined also to be honest in buying lands from the Indians, and to guard against any deceit on the part of the savages. They were forbidden to sell any land until the proprietor came in person. Finally, they should survey the country and allow no old patents to stand, but offer to renew them and, where the land had been surveyed, return the. survey money.3
1 Hazard, Annals of Pa., pp. 516-520.
2 The Swedes were given 820 acres in the liberties in exchange for the land on which the city of Philadelphia later stood. Reed, Explanation of the City and Liberties, Philadelphia, 1774.
3Hazard, Annals of Pa., p. 527, et seq. On his arrival, by an act of assembly - passed at Chester, Penn naturalized the foreign-born settlers. He was, of course,. desirous of extinguishing titles and claims derived from sources other than himself.
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If, as provided in the " Conditions and Concessions," lots to the extent of two per cent. of the total purchases made in the province were granted in the town, it was found that it would cover six or seven thousand acres. As no available site of that area could be found, the commissioner did nothing but explore the country till the arrival of Penn in October, 1682. In fact such a city would have been absurd and impracticable. Therefore, after mature deliberation, the proprietor laid out a town two square miles in extent, and divided it into lots of various sizes.1 Out of this and the liberties, the first pur- chasers were to have their two per cent.
It is probable that lots in the city proper were granted by Penn to the first purchasers in order to reconcile them to the shifting of their original city lots into the liberty land. Further- more, it is likely that the liberty lands were always considered part of the amount purchased, and were taken out of it when the warrant was issued to survey the common land; but city lots were viewed only as appurtenant to the purchase, not as an actual part of it.2
Hence several instances occur in which the commissioners of property confirmed by patent lands the right to which originated in grants and promises made by Sir Edmund Andros and Gov. Nicolls of New York. Pa. Archives, Ist Series, i, p. 28.
1 Dean Prideaux says that the plan followed in the laying out of Philadelphia .. was based on that of ancient Babylon. The Old and New Testament Connected, ed. 1729, vol. i, p. 135.
In 1690 Penn issued proposals for a city on the Susquehanna. He offered shares at £100 each for 3,000 acres, free from Indian claims and without quit rent for five years after settlement. Each purchaser, also, was to have a lot in the city proportionate to his purchase. But the scheme failed. Hazard, Register of Pa., i, p. 400.
2 The sons of William Penn believed that the "great town " mentioned in the " Conditions and Concessions," and in the deeds to the first purchasers, was really the liberty land, the lots in the city being an afterthought. Penn's instructions to his three commissioners would indicate this, and, as they claimed, had no reference to the tract which was afterward laid out for the city of Philadelphia. P. L. B. ix, T. P. to Tilghman, Aug. 5, 1767; x, to Fell, March 5, 1770, and to Gaskell, May 14, 1770.
The exact words of the instructions were these : " Lay out 10,000 acres con-
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Thus the design of the "Conditions and Concessions ", was so far carried out that each purchaser had a town lot propor- tionate to the extent of his common land, although of a smaller size.
The Schuylkill divided the liberties into two parts, and the lots therein were more or less valuable, according to their lo- cation. The liberty lands laid out on the town side of the Schuylkill were in the proportion of 8 acres to a grant of 500 acres. In the warrants for the northern liberties the propor- tion of 8 acres of liberty land for 492 acres of common land is almost uniform. Those who had warrants for 490 acres of common land were given 10 acres of liberty land lying on the opposite side of the river. Probably the superiority of the land itself was more than a compensation for the one-fifth part taken from the holders of lots in the northern liberties. But when people took up the whole of their grant of the common land, it was presumed that they chose to relinquish the liberty land.1
There is, however, no record of this plan in existence or of
tiguous to the place," i. e., the site chosen for the city, " as the liberties of the town, and the proportion in the said town is to be thus: every 5,000 acres shall have 100 acres of land out of that 10,000 acres." It is difficult to reconcile this order with the statements in the " Conditions and Concessions," that each pur. chaser was to have so much land in the city as would be proportionate to the amount he had bought or rented elsewhere in the province ; " that the land in the town should be laid out together after the proportion of 10,000 acres of the whole country " to 200 acres, " if the place would bear it;" and that " the proportion of lands in the great town or city shall be after the proportion of 10 acres for every 500 acres purchased, if the place will allow it." Admitting that no site could be found for such a large city, covering 10,000 acres, this does not explain why, in July, 1681, the proprietor should agree to give the first purchasers lots in the city itself proportionate to their purchases of the common land, and in October of the same year, before any steps had been taken to locate a site, direct his commis. sioners to lay out these very lots, not in the city, but in its liberties. At any rate, whatever his design may have been, Penn found it necessary to grant city lots in addition to the concessions of the two per cent. in the liberties, in order that the expectations of the original purchasers might be realized,
1 P. L. B. ix, T. P. to Tilghman, Feb. 14, 1767.
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any alteration of the original agreement, nor any written evi- dence of the consent of the purchasers to the new arrangement; but quite a long series of acts in the books of the land office would appear to establish it.I
The original concessions and agreements concerning both the city lots and the common land of course related exclusively to the first purchasers2, there being only one case where a per- son who was not a first purchaser received lots by survey in the city, and he never secured possession.3 Still, when the liberty lands were allotted extraordinary claims based on real and supposed grants from Penn were set up, and continued to be urged with considerable vigor throughout the entire history of the province.
These so called " old rights" of the first purchasers were granted by deeds of lease and release. The lands were not located or surveyed at the time of the grant, but it was pre- sumed that the surveys might be made at a later time. As the deeds were not always recorded, and as the purchases were often made for speculative purposes by persons who never visited the province, titles were frequently defective from the . outset.4
1 The commissioners of property stated, in 1712, that they had " no authority to make any variation from the plan of the city of Philadelphia, as it is laid down in the printed draughts and references, that having been the general foundation of the surveys and titles to all or most of the valuable lots in the city from the first location. The purchasers have no right to any lots in the city for any grants or concessions made by the proprietary by his deeds of sale or otherwise in England, those concessions relating only to what are called liberty lands; but only from his grant after his arrival here, which he then concluded should be the established rule." Pa. Arch., 2d series, xix, pp. 351, 528-532, 547-550; P. L. B. ix, T. P. to Tilghman, July 7, 1766.
1 2 Binney's Reports, pp. 476-486.
3 Penn, Physick MSS., i, J. Willcox to William Penn, Aug. 1, 1701.
+ This fact and the desire to provide for his children prompted Penn, in 1705, to direct James Logan, the secretary of the land office, to buy up the claims of de- scendants of first purchasers and of those to whom their rights had been conveyed. Penn and Logan Correspondence, ii, p. 102.
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The tracts having been neglected, other persons took them up, as the "Conditions and Concessions" had provided. Then transfers of portions of these were made by warrant to third parties, and orders were again issued to survey lots from such shares for new purchasers. In this way a considerable sur- plus might be surveyed beyond the amount of the original purchase. By the accumulation of old rights through pur- chase it happened that with each appropriation of the liberty land entire squares of city lots were bestowed on individuals. Indeed several persons bought up " old rights" and, without . duly proving them, caused the city lots appurtenant to be con- veyed to themselves, much to the prejudice of the proprietors.
The Penns showed that no person had, by virtue of the " Conditions and Concessions," a right to warrants of survey for lots in Philadelphia, except the first purchasers whose names appeared in the parchment list of August 22, 1682,1 who drew for their lots,2 and who, by the original warrant of survey, within a year should have paid the rent, enclosed their lots and, if possible, erected buildings upon them. Had this been literally carried out, the adjacent proprietary land would have increased to a considerable extent in value.3 Therefore, the proprietors believed that claimants whose predecessors had not in any respect fulfilled their agreements, should not have the lots at all. At any rate, the fact that they had failed to observe the regulations was no reason why the rent should
1The number of acres bought by the first purchasers in England, according to Hazard (Annals of Pennsylvania, p. 576, and App. ), was 566,000; according to Reed (Explanation of the City and Liberties), 709,535; and according to Physick ( Pa. Cash Accounts), 860,501. The first estimate was probably the most accurate. There were three lists of the first purchasers, but as only the first two were filed in the land office, the authenticity of the third was questioned by the pro- prietary officers.
2 When the plan of the city was made, large lots were laid out for purchasers of 20,000 acres or less. These were duly numbered in the draught, with a scheme for drawing the names. Map in Reed's Explanation, etc.
3 P. L. B. ii, T. P. to Logan, Aug. 17, 1743.
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not be demanded.I Hence orders were sent to the secretary of the land office, that he should allow no lots or lands to be surveyed on account of these "old rights" without war- rants regularly issued from his office.2 These warrants were to be obtained only in the following way. The persons mak- ing application under color of an " old right " had to produce before the secretary William Penn's original deed or patent, the others under which they legally derived title, and the opinion of the attorney-general thereon. They must also pay the arrears of rent from 1682,3 except where early settlement or improvement had been made, which was considered equivalent to a deed.4 But the secretary was to pay no attention to heirs or to those who held conveyances from them, provided they had only warrants of survey. For, said the proprietors, warrants of survey showed merely the request of a person who had not executed his part of the agreement concerning both the settlement and the purchase money to be paid later.5
All documents offered in support of an "old right" claim had also to be lodged with the secretary, till he and the surveyor general could ascertain whether the land
1 P. L. B. ii, T. P. to Peters, Aug. 22, 1743.
2 Ibid. i, Proprietors to Logan, Feb. 15, 1731. The proprietors thought that, unless a warrant therefor had been regularly issued, no person who owned "old rights" could legally locate them wherever he pleased. Those who chose to evade directions sent in conformity with this view were to be ejected, in order that, on appeal from the provincial court, a case testing the validity of the ejectment might be carried to England for trial. Ibid., x, T. P. to John Penn, May 9, 1769.
3 Several instances are given in which persons into whose possession had fallen " old rights" to city lots, surrendered them to the proprietors because the lots, be- ing subject to rents and other conditions, were worth far less than the arrears of rent with which they were encumbered. Penn MSS., Philadelphia Land Grants.
4 P. L. B., x, Juliana Penn to John Penn, Jan. 10, 1775; to Edmund Physick, Apr. 15, 1775.
5 Ibid., ii, T. P. to Peters, Aug. 22, 1743; ix, to Tilghman, Sept. 12, 1766; Penn MSS. Supplementary Proceedings, T. P. to Peters, May 4, 1743.
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had been previously granted to the person named in them, or to others to whom he had assigned the same. If it had not been so granted, a warrant was issued to survey it in the place where it was originally located, or in some other vacant but not more advantageous spot. When all these regulations had been complied with a patent under the great seal was granted for the land or lot in question. Then an acknowledgment of release, or of receipt of the patent, was signed and registered in the rolls office, while the original deed remained as a voucher in the secretary's office.I
These regulations of course were very disagreeable to the " old right" claimants. They argued that as the lots were appurtenant to the common lands in the same sense that improvements are appurtenant, the proprietors had no right to impose rents.2 They claimed that, if the applicant had deeds of lease and release reciting the "Conditions and Con- cessions," such should be a sufficient title, because a patent would simply impose a quit-rent. They claimed also that when they came to get patents for their lots, they had to pay for the warrant, the survey, the return, the patent, and its re- cording, besides being subjected to a variety of other incon- veniences. Indeed, they went so far as to doubt whether Penn had any right to reserve for himself any land in the city or liberties.3 But, in spite of this opposition, the procedure, as outlined above, was the one usually followed by the proprie- tary officers in dealing with the "old rights."
1 P. L. B., vii, Proprietors to Hamilton, Nov. 13, 1762; ix, T. P. to Tilghman, Sept. 12, 1767, and to John Penn, Jan. 7, 1768.
2 A similar assertion had been made by the assembly as early as 1701. Colo- nial Records, ii, pp. 37-39.
3 Reed, Explanation of the City and Liberties ; Franklin, Works (Sparks" Ed.), iii, p. 556.
CHAPTER II
GENERAL PRACTICE OF THE LAND OFFICE
EVEN though the land were disposed of, it would be useless without settlement. Had the colony failed, the grant would have been resumed. Hence both the benevolent attitude of the founder and his private interest obliged him to encourage immigration and the settlement of a part of the land on reason- able terms. Again, it was assuredly necessary to prescribe the way in which persons demanding grants of land should prove their claims. Provision must be made also for locating and surveying the tracts of land as claimed, as well as for authenticating the surveys when returned, and making out titles by grant or patent.
At the outset it must be remembered that, for many years after the settlement of Pennsylvania began, territorial affairs were in great confusion. If the proprietor formed any definite plan for the granting of land, it was found on trial to be impracticable. He did not have a clear idea of the extent of the province or of the difficulties incident to the set- tling of a wilderness, and to this cause may be traced many of the later disputes and complaints. His failure to make valid his title to the Lower Counties; his absence of fifteen years from the province, between 1684 and 1699; the involved con- dition of his private affairs, and the failure properly to preserve the records of grants, were inconsistent with any system of territorial administration, however rudimentary. To the loose way in which grants were made may be traced the origin of many of the later disputes, while it opened the way to the commission of many frauds against the proprietor and his sons.
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Indeed, the original minutes of property show entries of all kinds of conveyances in abstract, of pedigrees, and to some extent even of intermarriages. As there was but one office of record, often no pains was taken to keep the enrollment of land grants distinct from other public matters, or even from private contracts and business of every description. Hence the territorial administration was the object of complaint through almost the entire proprietary period.
It was not until after the arrival of Thomas Penn, in 1732, that an effort was made to banish confusion from the land office. Under his direction more manors were laid out. Pro- vision was made for collecting a new quit-rent. The price of land was somewhat increased, but large tracts were offered at reduced rates, provided a considerable number of people could be induced to settle on them. Certain measures also were adopted to mitigate the evil arising from illegal holdings, and to enforce the speedier payment of rents. But irregularity and confusion had so long prevailed, that improvement came slowly. In some cases the new rules unquestionably worked hardship to individuals, but gradually a harmonious manage- ment resulted.
The administration of territorial affairs was regularly en- trusted to the officials of the land office." They were the spec- ial agents of the proprietor, and consisted of a secretary, who at the same time was secretary of the province, a surveyor general and from three to five commissioners of property. The duties of the commissioners of property were to grant land and guarantee titles. They were presumably subject to Penn's orders, but owing to his unfortunate circumstances, they were often independent of control.
' In the earlier years of the province justices of the peace often received appli- cations from persons desiring to take up land, and granted warrants to the surveyor to measure it and make return to the secretary's office. All land formerly granted, and not taken up or settled within the time specified by the justices, was consid- ered vacant. Hazard, Annals of Pa., p. 636.
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With reference to the early regulations sent to the commis- sioners, Penn issued a proclamation, February 24, 1686, commanding that they should ascertain what lands were taken up, what were vacant, and what were most likely to give cause for discouragement to those who were able and willing to settle them. He ordered that all lands not properly seated within six months after the date of the proclamation, should be sold, provided the usual time allowed for the settling of plantations had already expired. But any privileges incident to this course of action should not extend to persons who had forfeited their lands by failure to observe their agreements. Such proceedings, however, seem to have had little effect, for no record appears of the forfeiture or regranting of lands.
The following year he ordered that no warrants of resurvey should be granted for land within five miles of any navigable river, and that, as the settlement of the adjoining territory would make it valuable, all land which by resurvey was found to be in excess of the amount purchased, should be reserved for himself. In this connection he also directed that no lands should be laid out adjoining any which were already in- habited, and that one-tenth of every township, and all the "Indian fields " therein should be reserved to himself.1 At the same time he ordered the commissioners to grant no mines. without his express warrant, and to forbid the felling of timber in his manors.2 The regulations issued by his sons to their officers will be noticed as we proceed in the discussion of the land system.
1 It was a common practice with the proprietors to order their officers to survey for new settlers lands which did not adjoin those already purchased or which were under cultivation. Similarly they directed their officers to leave in Phila- delphia and other towns vacant lots lying between those already disposed of, in order that the land thus reserved might become more valuable by reason of the adjacent settlements. Such orders, however, were generally kept secret. P. L. B., iv, T. P. to Peters, Jan. 10, 1756.
2 Huston, Original Titles to Land in the Province and State of Pennsylvania , p. 68 et seq.
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But, as usual, the directions issued by William Penn were soon disobeyed. This fact occasioned the existence of many imperfect rights and claims to land. Moreover, since their task was a thankless one, and their remuneration very small and uncertain, the commissioners were occasionally unwilling to act. They had besides to encounter the opposition of politi- cal faction, which grew apace as the influence of the pro- prietor waned.
Associated with the commissioners were the keeper of the great seal, and the master of the rolls. The former, as the name implies, was in charge of the great seal of the province, and affixed,it to patents, commissions, and other important public documents. The duties of the latter were mainly to enroll the provincial laws and to preserve public records. During the early history of the province the duties of these officers were occasionally performed by the commissioners themselves, but after 1746 the keeper of the great seal was regularly the re- ceiver general.1 The commissioners also acted as receivers of the proprietary revenue until 1689, when the office of receiver general was formally instituted,2 and from time to time as the population increased and the proprietary interests became more extensive, deputy receivers were appointed in the differ- ent counties.
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