USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 5
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1 Pa. Arch., 2d Series, vii, p. 96.
2 Ibid., p. 131.
3 Penn MSS., Offic. Corresp., ii, J. Logan to J. Steel, Nov. 18, 1729.
4 P. L. B., i, John and Thomas Penn to J. Logan, April, 1730.
5 " With respect to the people, either in large or small bodies, intruding on our" property, it is what we cannot avoid, and our only remedy is to defend ourselves in courts of justice." P. L. B., x, T. P. to Hockley, June 16, 1774.
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chancery, though those who had not done so might be re- moved without legal process.I
During the Indian wars it was often necessary for the accom- modation of the armnies on the line of march, that settlements in the wilderness should be encouraged, and persons who would thus settle were given the preference in event of the sale of the land. As a means of defense for the frontiers, and as military stations, towns were therefore established. Some of their soil was granted by warrant on moderate terms, but still more was appropriated without show of right. Further- more, as an inducement to protect the frontier, Gov. Morris in 1755 offered to grant lands west of the Alleghanies free of purchase money, and with exemption from quit-rent for fifteen years. Such of these lands as should be settled within three years after the removal of the French were to be patented without fees, except those paid for surveying. This offer was extended to all persons in Pennsylvania or the neigh- boring provinces who would join an expedition for the expul- sion of the French. The proprietors as a rule were opposed to the formation of such remote settlements, because they were so far from the seat of government as to be almost independent ; while they excluded the Indians from a fine region for hunting before the advance of settlers had made that course of action necessary. Neither did they approve of the governor's offering land without fees ; but knowing that the country at that time was in the throes of a merciless war, and that the need of aid was imperative, they conferred with the English ministers as to the way in which to make it most effective. The result was that after a time they confirmed in part Morris' proposition. Under the pressure of circumstances they had at first in- tended to grant the territory in question free from all demands, except the fees of the surveyor and secretary. But when they saw that the chances of securing any quit-rent from the class of people who would settle there were very small, and that,
1 Penn MSS., Supp. Proc., T. P. to Peters, May 4, 1743.
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if they agreed to forego the legal right of demanding it, they would be guilty of an inconsistency which might militate against its collection in more favorable localities, they directed Morris to grant the land at the usual quit-rent of a half-penny per acre, or even at a farthing per acre, if no more could be obtained. The payment of this rent, however, was not to commence till March 1786. The governor was also ordered to provide strict regulations for preventing the evasion by the people of the conditions on which the grant should be made. In other words they must actually settle the land and not dis- pose of it to land speculators." On these terms the offer of what was known as the "campaign land " was made. The offer was not accepted, because the mere holding of land would not result in the formation of compact settlements, or oblige the settlers to observe military discipline.
1 Votes, iv, p. 418; Penn MSS., T. P. to Peters, July 3, Oct. 4, Oct. 25, and to Morris, Oct. 6, 1755. P. I .. B., iii, to Morris, Oct. 4, 1755.
CHAPTER III
HISTORY OF THE LAND SYSTEM
HAVING in the preceding chapter outlined the system of ter- ritorial administration, it is proposed now to sketch somewhat briefly its history, until the land office was established in what might be called a more modern form, and with particular reference to the several attempts of the assembly to regulate it. In this connection it may be said that the proprietors were generally careful to distinguish between their public and private territorial rights. They were willing that the legisla- ture should enact, alter, or repeal laws for the recording of deeds, the transfers of land from one individual to another and the like, but with the aid of the crown they resisted all at- tempts to interfere with the terms or conditions upon which they were willing to dispose of their property.I
In May, 1700, Penn offered to the council a bill for the " confirmation of freeholds and surveys," but that body saw " no service in it at that time." 2 Owing to his superabundance of good nature, or to a feeling that only a liberal concession on his part would meet with a favorable response from the assembly, he agreed at its session at Newcastle to pass a law entitled, " An act for the effectual establishment and confirma- tion of the freeholders." On account of past neglect and er- rors both of officers and people, which had injured the pro- prietor and made the inhabitants insecure, it was provided in
1 In 1701, Penn asserted that he would never permit an assembly to intermeddle with his property, lest such an act should be drawn into a precedent. Col. Rec., ii, p. 40.
2 Ibid., i, pp. 607, 610.
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this act that all lands duly settled by virtue of warrants or patents obtained from the governors of New York prior to 168I should be quietly enjoyed ; that the possession of land held under warrants issued by authority of the proprietor or of his commissioners of property should be confirmed; and that, even if no patent had actually been granted, yet if peaceable entry and possession had been obtained by war- rants or otherwise and had continued for seven years, it should give ample title. It was also enacted that all patents should be issued under the great seal, and should give the grantees an absolute title to the lands therein mentioned to be granted or confirmed, whether they were more or less than the number of acres really surveyed, neither should they be sub- ject to further survey, and all tracts already granted should be confirmed. But the proprietor by his surveyors might within two years thereafter resurvey any person's land. If upon such resurvey, allowing four acres in the hundred, over or under, for the difference of surveys, and six acres in the hundred for roads, barrens, uneven ground and the like, there should be found more land than the amount for which the tract so surveyed had been originally laid out, then the proprietor was to have all such surplus land, while the present possessor should have the refusal of it, if he wished to buy. In event of failure to agree as to the terms of sale, the respective claimants should each choose two persons to fix the price, or to determine where the surplus should be taken off; and the proprietor was to make good, upon resurvey, all deficiencies that might be found, with the allow- ances aforesaid, and with the reservation of the possessor's improvements. In cases where after several alienations of the property had been made under the notion that the words originally in the deed of purchase or sale expressed the correct number of acres, and where on a resurvey a sur- plus had been found to consist of one plantation or parts of several, then the proprietor's surplus should be taken off
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the uncultivated residue undisposed of, otherwise off each plantation proportionately. But no surveyor should be al- lowed under a heavy penalty to enter upon any person's land to make a resurvey, without due notice to the owner, and in case any surveyor wilfully or negligently surveyed to the prejudice of the owner, he should give twofold compensation for the damage done. The first hundred purchasers from Penn, if they made speedy application therefor, were to have the liberty of determining the location of their property. But in cases of co-partnership, where one party died before a division had been made, his heirs or assigns could claim their just proportion. Lastly, it was declared that the clause in the charter of privileges of 1683, concerning the confirma- tion of lands and the reservation of such rents and services as were or ought to be customarily reserved to the proprietor, should be in full force in spite of the fact that the charter had ceased legally to exist.1
Not satisfied with the provisions of this law, and induced by a petition from the inhabitants of Philadelphia,2 in September 1701 the assembly desired that in case of absence the proprietor should be represented by persons fully empowered to grant and confirm lands, as well as to make satisfaction in case of error; that there should be no delays and only lawful fees should be allowed;3 and that an instrument should be granted to amply secure the people in their property. The request was also made that no matter concerning property should be laid before the governor and council; that rents should be discontinued
1 Bradford, Laws of Pa.
2 Collections Pa. Hist. Soc., i, no. 4, pp. 275-6.
3 A short time after his return to the province in 1699, Penn had been requested to establish a land office with definite rules of procedure, for granting and con- firming lands, for the want of which office many had been unwilling to pay their rents. It was declared also that, had such an office been established before, it would have promoted the settling of the province. More careful surveyors and surveys, as well as more efficient land officersgenerally, were therefore demanded. Penn-Physick MSS., i, Benj. Chambers to W. P., Feb., 1700.
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and reservations withdrawn from the land on which Phila- delphia stood, as well as that of the liberties; that the original allowance of ten acres in the hundred according to the law above cited should be granted in all cases whatsoever, and that this law should be inserted, with suitable amendments, in a proposed charter. Several other demands were also made, affecting mainly the preservation of deeds and the granting of certain privileges in the Lower Counties.' Penn in his reply protested that several of the articles did not con- cern a house of representatives which was convened on affairs of government. He believed that disputes about unconfirmed property rights ought to lie before him. He denied the right of the assembly to interfere in the agreement between him and the first purchasers concerning Philadelphia, and complained because of its attempt to prevent him from raising his rents and prices in proportion to the advantage which time gave to the property of others, especially as he was under so great expense in his controversy with Lord Baltimore. After acquiescing with some remonstrance in several of the particulars he ex- pressed his willingness to grant the allowance demanded, but only for the ends proposed by law.3 The assembly insisted strenuously that all misunderstandings should be removed, and the allowance granted on all lands whatsoever, whether occupied or to be occupied by purchasers or tenants. In answer Penn stated that, as a rule, he had never intended to make up for deficiencies. But understanding that the people regarded the law as unfair, because when there was a surplus of surveyed land an allowance of ten acres per hundred was made, but when the supply became exhausted only two acres were allowed, he expressed his willing-
1 Col. Rec., ii, pp. 37-39.
2 It was agreed that the proprietor's expense for the preservation of the Lower Counties should be considered a public charge, and should be defrayed from the " {2000 free-will offering money," 1684. Ibid, i, pp. 117-118.
$ Ibid., ii, pp. 39-43.
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ness to make a concession of six acres per hundred to all per- sons upon resurveying. But the assembly refused to accept his offer. At his own home he then expostulated personally with its members, chiding them for their failure in duty not only to him but to themselves and their constituents in that they did not make a proper use of the opportunities which he had given them for their betterment. He advised them not to re- ject his proposition, and for the purpose of coming to a decision persuaded them to hold a session in his private parlor. Then they sent him an unsigned paper stating that they still refused to accede to his offer, because several of their number had re- turned home believing that ten acres per hundred would be allowed to all persons concerned.1 Both parties, however, remained obdurate.
A short time after David Lloyd, the leader of the assembly, prepared a charter of property, which was to settle in the nature of a corporation whatever related to the proprietor's govern- mental as well as territorial powers. Being urged to sign it Penn acquiesced with some reluctance, and directed the secre- retary to affix the great seal to it unless within six months he should send an order to the contrary. Within the specified time after his return to England,2 he did send such an order to Gov. Andrew Hamilton.3 This aroused so much wrath that
1 Col. Rec., ii, pp. 54-55.
2 At his departure from the province, in the latter part of 1701, he empowered the commissioners of property to sell all concealed or vacant lands, to issue patents, to appoint proprietary officers, to grant lands on whatever terms might appear ad- visable, to dispose of surplus land, and after careful resurveys, to make satisfaction according to law for all deficiencies, wherever they occurred. Huston, Original Titles, etc., p. So et seq. These concealed lands were a source of considerable complaint and of charges of fraud against the proprietors. Reed, Explanation of the City and Liberties. They were simply small tracts lying between various surveys of the same piece of property, and whose existence for any reason the pro- prietary officers chose to conceal until a favorable opportunity to dispose of them presented itself.
3 Col. Rec., ii, pp. 62, 325 ; Pa. Arch., Ist series, i, p. 148.
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in August 1704 the assembly connived at sending him an address accusing him of hypocrisy, want of faith and a variety of other serious faults. It was drawn principally by Lloyd and despatched to the proprietor indirectly, so that others might learn of his consummate wickedness.I But the next assembly, and the people in general, rather deprecated this exhibition of temper. Furthermore, on account of this refusal of the pro- prietor to confirm Lloyd's charter of property, and of the re- peal of the act of 1700 by the queen in council February 7, 1705, the commissioners of property had great trouble in re- covering surplus land. In fact, it was exultingly said that Penn was now cut off from all redress, if any injury should be done him. On his part he approved the forfeiture of land for failure of payment, and other stringent measures which the commissioners deemed wise to adopt.2 Three years later the assembly in an address to Gov. Gookin, took as the basis of a representation against a proprietary officer the petition of a number of persons who claimed to be aggrieved because their old patents had been fraudulently obtained from them by the proprietor or his agents. It took exception also to the sup- posed exactions of that officer, and the existence of two receivers general, the one appointed by Gookin, and the other by Penn.3
In 1712 the assembly, taking advantage of the fact that Penn was overwhelmed with financial difficulties, passed a law called " An act confirming patents and grants." By this act it was provided that the law should not be so construed
1 It may be said that in 1699, on account of a burdensome debt to his dishonest steward, Penn had the expectation of raising a considerable sum in Pennsylvania. As this was not forthcoming, he was at first very severe in his exactions, and thereby forfeited the affection of many staunch admirers. The next year however, he made ample amends, but unfortunately at his departure left behind an adverse faction. Penn MSS., Offic. Corresp., ii, J. Logan to the proprietors, Nov. 14, 1731.
2 Fenn and Logan Corresp., ii, pp. 72, 304.
3 Votes, ii, pp. 33, 141.
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as to confirm the possession of any land taken up by virtue of early grants from the governor of New York, and not duly settled or improved by the grantee or his assigns prior to 1682. Neither should it give any right to a claimant or pos- sessor of lands that had not been taken up or surveyed by virtue of a warrant or order from the commissioners of property. So far as grants and patents were concerned, the proprietor or his officer, upon reasonable demands therefor, should make all such grants, patents, and assurances according to the laws of the province, as would insure absolute title to all lands previously sold or thereafter to be sold, for such " estate, terms, lives, years, uses, and under such rents, or acknowledg- ments," as might be agreed upon. A grant or patent from the proprietor, sealed and entered in the rolls office, was to be good in law, and should not require delivery before witnesses, livery and seisin, or such acknowledgments as were necessary for the validity of private deeds. Persons holding claims to unlocated lands by settlement, improvement or otherwise were protected by a clause which stated that a prospective pur- chaser of the territory might have the next most advantage- ous place. But the clause was not to make valid any patent that had been vacated by due process of law. Where any prior right appeared, however, the proprietor should refund to the purchaser the sum received with interest. Finally, no grants or patents should be considered defective or prejudicial 1 to the rights of the grantee by reason of any misnaming, mis-
1 In 1683 a petition concerning the confirmation of patents was sent from the Lower Counties. Penn answered that the people were at fault, because they had not made any efforts properly to secure their patents, after express orders for that purpose had been issued. This was no reason, he thought, for giving them a pre- tense to avoid paying quit rents. With other landlords, he believed such a course of conduct would weaken their titles or " pinch their pockets." Col. Rec., i, p. 86. The following year, however, he sent from England a number of blank forms, which were to be drawn up into an instrument for confirming patents. The president of the council was to affix the great seal to the document, but through his neglect it was not sealed. Hence in 1689 it was cancelled. Ibid., ii, p. 231.
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recital, or non-recital of the lands supposed to be purchased, or of their location, or because of any want of form, or of entry on record, or of sealing with the great seal, or for any failure to ascertain the proprietor's own title, but all such grants should be available in law against the proprietor, and should be ad- judged most beneficially to the grantee.1 The act was repealed 2 by the queen in council, February 20, 1713, but the custom of resurveying as provided for in this and in the preceding act was established and continued.3 Several years later, in 1719, the assembly endeavored to pass an act providing for the survey and confirmation of lands sold by the proprietor and not yet patented, as well as for the confirmation of all old patents and grants. A bill for this purpose however failed to secure the necessary majority.4
For nearly forty years the assembly refrained from attempts to encroach on the control of the land office by the proprietor. But in an address to Gov. Morris, in 1755, it declared that the state and management of the land office were "pretty much of
1 Bradford, Laws of Pa.
2 The reasons for repealing it, as given by the attorney-general, seem based on the idea of supposed injustice to the grantees, rather than on any desire to protect the rights of the proprietor. This was in keeping however with the jealousy cherished by the home government against the proprietary provinces. He sug- gested its repeal to the Board of Trade, because it confirmed the titles to lands bestowed by old grants before William Penn was given the government, as well as to new grants made since that time which had not been duly seated and improved by the grantees before 1682. If Penn had bestowed these lands since the grant prior to 1682, the prior grant would be set aside. Again he found fault with the proviso that the proprietor was not to make good a right to unlocated lands to a purchaser who through inadvertency or misinformation, had obtained a patent for lands to which a prior right existed, to any further extent than could be done by the bestowment of the same quantity of land in the next most advantageous place which such purchaser might choose, after ascertaining that it was vacant and free from other claims. He thought this was unreasonable, because if no such place was found the purchaser would have no satisfaction for his purchase. Pa. Arch., Ist Series, i, p. 159.
3 Penn. MSS., Pa. Land Grants ; P. L. B., vii, T. P. to Peters, Feb. 13, 1762. + Votes, ii, p. 256.
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a mystery."1 Therefore in 1759 it passed a law entitled "An act for recording warrants and surveys." This provided for the establishment at Philadelphia of an office, at the head of which should be a recorder, who was bound under a penalty of £20 to register all warrants, surveys and other documents relating to land. These papers were to be as valid in law as documents issued by the secretary or surveyor general, and copies certified by the recorder as valid as the originals. The recorder was also given the right to demand and recover all warrants, surveys, charts, maps, draughts, and other records of land granted by the proprietors, or made and signed by the surveyor general or his deputies, which were, or ought to have been, returned and lodged in the office of either the secretary, or the surveyor-general, and which might be useful as a means of proof to parties claiming rights to land. In case any docu- ments could not be delivered, and it could be proved to the satisfaction of a jury that they had been burned or otherwise destroyed with the consent of a proprietary officer at any time after the passage of the act, then the recorder might recover to the use of the party aggrieved damages to the extent of double the value of the land. But the costs of the suit, if brought for the benefit of the public, were to be paid out of the public treasury. Moreover, as many of the warrants, surveys, and " other writings" made in pursuance of purchases and contracts with the proprietors had been deposited in the surveyor-general's office as loose slips of paper, and had not been duly recorded, and as the secretary and surveyor-general were not under legal obligation to preserve them, by reason of which many papers had been lost or mislaid, the recorder with his clerks and deputies, was to have free access to all such " writings," and any papers relating to them. The secretary and surveyor general also were commanded to deliver up the papers in their charge, under a penalty of £500 for every paper retained, concealed, or neglected to be given. When.
1 Votes, iv, p. 464.
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they had been carefully numbered and set down in an inven- tory, they should be taken in small parcels to be recorded as speedily as might be, either by their being transcribed in the offices of the secretary and surveyor general, or, after re- moval, in the recorder's office, according as he should think fit. But in the latter case he should give receipts for the. documents as denoted in the inventory. As soon as they had been recorded they should be returned to the proper office, under a penalty of £1,000.
Again, every warrant issued by the proprietary officers should be sent by the secretary to the recorder's office to be recorded before the land was surveyed or located, and the surveyor-general, or the deputy to whom the warrant was directed, within forty days after the request of the warrantee should make a survey according to the warrant, or forfeit £50. Whenever the tract had been properly surveyed and his fees paid, he should deliver a copy of the survey to the warrantee, and make a return with a map and other specifications into the surveyor-general's office under a penalty of £50. The sur- veyor-general on his part was to examine and correct them, and within twenty days send them to the recorder, also under a penalty of £50. John Hughes, an inveterate enemy of the proprietors, was appointed recorder, but in case of his inability to discharge the duties of the office, the act further directed that the provincial court should supply his place, until the assembly could appoint a successor. For the proper perform- ance of his duties, however, he was directed to take an oath and to give bond for $1000, while the fees which he was entitled to receive for recording warrants, surveys, minutes of property, and " other writings " were specified.
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