USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 6
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The words of the act implied that a warrant and the return of the survey based on it constituted a complete title to an estate of inheritance in land. The proof of this appears in the declaration already mentioned, that land could be claimed and held under warrants, surveys, and "other writings." By the
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general term " other writings," patents were evidently meant, though in reality these were the only legal conveyance of an estate from the proprietors to any grantee." But in a message to the governor, the assembly asserted that a right to a piece of property was vested from the moment the warrant was issued. It stated also that with regard to matters of property the Penns should be considered as private individuals, and that since they were the landlords of whom the people held real es- tate, their interest was necessarily opposed to the popular welfare. It urged that many of the securities and evidences of the people's rights had been lost or destroyed, and that their lands had consequently been resold. The proposed act was therefore intended to secure the evidence and vouchers of their rights, which it did not appear safe to trust in the hands of proprietary officials. Thereby the laying of impositions by those officers on orphans, minors and persons beyond the sea would be prevented.2
When the act was laid before the Board of Trade, the opinion which that body expressed, was that it would establish a title to estates different from that which existed by common law. But this it thought would be unjust to the proprietors, since it seldom happened that, upon issuing a warrant of survey, the whole of the purchase money was paid down, and leniency in this matter was necessary in order that the purchaser might be left with sufficient to cultivate the lands. It is evident that, if the mere warrant and survey conveyed a right not simply conditional but fully available in law, the proprietors would have no remedy against the grantees by ejectment, and the persons holding title might alienate it, so that the proprietary title would cease with the absence of the person to whom the grant was originally made. The Board pointed out
1 " The doctrine of the validity of a warrant and survey without a deed of pur- chase or a patent is not good in law, though possibly a warrant and survey on an " old right ' makes an equitable title." P. L. B., vi, T. P. to Peters, Jan. 12, 1760. 2 Votes, v, pp. 66-67.
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that this would cause the proprietors to grant no warrants till all the purchase money was paid in, which if rigidly observed would prove very disastrous to the province. On account of this and other objections it recommended to the Privy Coun- cil that the act be repealed, though it suggested the founding of an office of record.I But in spite of the repeal it was still the intention of the assembly to pass another act of a similar tenor. The proprietors acknowledged that many people in England looked upon the management of the land office as a secret " unfathomable as the Inquisition,"2 but they directed Gov. Hamilton not to assent to any such act until it had re- ceived their approval, because "it was a matter concerning their private property, and such as they had a right to con- sider."3 The assembly did not offer the bill, since the proprie- tors had ordered the secretary's office to be made more public, and that any person should have the right to demand copies of papers necessary to substantiate legitimate claims.4 In 1765, they also directed their officers to discontinue the practice of opening and closing the land office at pleasure, for while "that might be done in a private gentleman's affairs, it was not proper for the proprietors of a province."5
It had been enacted by 7-8 William III, chap. 22, that no proprietor, without the king's license issued in council for that purpose, should sell or otherwise dispose of land to any but natural-born subjects of England. Still the practice of selling land to aliens continued to be very common in Pennsylvania. Moreover, land upon which no payments had been made was subject to forfeiture, and the property of intestate aliens legally escheated to the proprietor. One clause in the New- castle law of property, however, provided that the property of
1 Col. Rec., viii, pp. 539-540.
2 Penn. MSS., T. P. to Peters, Nov. 15, 1760.
3 P. L. B., vii, T. P. to Hamilton, March 6, 1762.
4 Ibid., vi, T. P. to Hamilton, Nov. 15, 1760.
5 Ibid, T. P. to John Penn, Sept. 14, 1765.
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every unnaturalized alien, whether testate or intestate, should regularly descend to his heirs as if he had been naturalized. But in 1706 the law was repealed, because, among other reasons, this clause was repugnant to the statute just mentioned. Another law, passed in 1705, provided that only in case an intestate had no kindred, should his real estate escheat to the immediate landlord of whom it was held, whether he was the proprietor, or merely the lord of a manor. Personal property however, was regularly to go to the proprietor alone.1 This law also was repealed simultaneously with its predecessor. Thereupon, in 1708, many foreigners in the province, having been informed that their lands would escheat to the proprie- tor, were uneasy for want of assurance as to the validity of their titles.2 But many of them were speedily naturalized by the legislature and the uneasiness ceased. But the question was revived in the act passed by the assembly in 1759, en- titled, " An act for the relief of the heirs devisees, and assigns of aliens." It was declared void, however, by the king in council, because it deprived the proprietors of the right of escheat, and vested the lands in descendants of aliens pre- cisely as it did in those of natural born subjects.3
It is true that Gov. Thomas in 1743 had been empowered to grant escheated land.4 About the same time the secretary was ordered to allow persons who gave notice of estates liable to escheat to have the preference in the ensuing sale, and, when the price had been fixed a proportionate deduction was to be made as an encouragement to such applications.5 But no complaints had arisen that such a power had been exercised. The custom therefore was on the proper request, to make out a new grant to such heirs or devisees, conformably with the
1 Bradford, Laws of Pa.
2 Penn and Logan Corresp., ii, p. 278.
3 Col. Rec., viii, pp. 545-6.
4 P. L. B., ii, T. P. to Thomas, Aug. 21, 1743.
5 Ibid., T. P. to Peters, Feb. 25, and Aug. 22, 1743.
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nature of the inheritance or the purpose of the devisee, with- out imposing any fine or drawing lucrative advantage of any kind from the transaction." But in 1765 the proprietors di- rected the secretary to proceed by escheat against the estate of a certain intestate decedent. Thereupon the receiver-general applied to them for a grant of the property. They expressed their willingness to comply with the request, and asked the opinion of the provincial attorney general thereon. He must have believed it impracticable, for nothing further appears to have been done.2
Taking up now the history of legislative action regard- ing the quit rents, the assembly in the memorable address of 1701 requested that the possessors of land might have the liberty of buying up their quit-rents, as Penn had formerly promised. He replied that if it should be his lot to lose his means of support he must depend on his rents, and therefore would not readily part with them. Many years also had elapsed since he made such an offer, and it had not been ac- cepted. The assembly, however, alleged that originally an agreement had been made that the quit-rents should be paid to him on account of the great expense he would be at in the administration of government; and that he had sold lands for large sums, and had reserved sufficient to maintain himself or his deputy governor in a manner befitting their station.3 Again, in an address to Gov. Evans, May 21, 1705, it asserted that the quit-rent was designed solely for the support of govern- ment ; that it was a contract between Penn and the purchasers, and that the people viewed it as a tax paid in consideration of a speedy confirmation of their lands. The governor replied that no trace could be found of any compact 4 concerning a
1 Col. Rec., viii, pp. 545-6.
2 P. L. B., viii, T. P. to Peters, Sept. 20, 1765; to Chew, April 1, 1766.
8 Votes, i, pt. i, pp. 146-149.
+ Belknap (American Biography, ii, p. 401), echoing Franklin ( Works, iii, p. 123), says that Penn in distinguishing between the character of proprietor and that
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release from quit-rents, except as pretended in the memory of a few, and that really the government had nothing to do with the quit-rents. However, the contention that there was such a connection was persevered in even as late as 1764, and as often strenuously denied by the governors.I
The assembly appears to have been somewhat inconsistent, because if the quit-rents had been intended to support a deputy governor, why should it have endeavored to buy them up ?? The fact, moreover, that in 1683 it gave the proprietor the profits from a duty on liquors and other commodities, indicates that it was not intended to appropriate them for that purpose. Indeed, the claim of the assembly is not substantiated by any law, instrument, or act which was sanctioned by Penn or his successors.3
In 1705 the assembly, while still maintaining its conten- tion over the quit-rents, agreed to pass an act for their easier and more effectual collection. It was stated in the preamble that ever since the first location of lands in the pro- vince, the quit-rent reserved had been irregularly collected, not only to the great loss of the proprietor, who thereby had been kept out of his just rights, but also to the great in- convenience of the owners of property, in that they had no certain or exact accounts of their indebtedness. Moreover, it was declared that upon the transference of lands encumbered with quit-rents, the arrears often became a total loss to the purchaser, and that on account of the people's negligence the quit-rents had been allowed to run so far in arrears that the payment of what might be easy if rendered yearly, became very
of governor, urged the necessity of supporting government with dignity, and that by complying with this expedient, the people would be freed from other taxes. But there is no proof that the proprietor ever made this statement.
1 Votes, i, pt. ii, p. 41 ; Col. Rec., ii, p. 419; Lloyd, Vindication of the Legis- lative Power; Speech of Joseph Galloway, 1764.
2 P. L. B., iii, T. P. to Peters, Oct. 6, 1755.
$ Cadwallader, Law of Ground Rents, p. 45.
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burdensome when paid all at one time. Therefore the receiver general and his deputies should open an office in the counties every March, and there receive the quit-rent from the free- holders, who, having been given ten days' notice, should appear personally or by representatives and pay the necessary amount. The sums paid and the lands on which they were paid, should be entered in a roll made for each county. A copy of this was to be kept in each town within the county, and to be open to the view of every person desiring it. Neglect to pay at the expiration of the ten days' notice warranted the receiver- general or the respective collectors to levy by distress, or the proprietor to bring an action for debt at the county court. Tenants from whom wheat was due should deliver a good merchantable article at a mill within a mile of navigable water, and the miller's receipt shown to the collector or receiver- general was to be accounted a sufficient payment. Further- more, no person could be distrained or sued for rent till six months after the first demand, and he should have recourse to all the rent-rolls, books, and accounts of the receivers or col- lectors, for the purpose of proving any payments already made. In no case should the quit-rent be increased, but the sum first reserved must be continued; and no person, after giving the receiver or collector a proper account of what land he had alienated, and after the same had been entered on the roll, should be sued or distrained for rent at any rate higher than that which had been specified. No one should be obliged to pay quit-rent for such parts of his or her lands or lots as he or she might have conveyed to another, who resided upon land adjoining. No proportions or parts of quit-rent for lots or lands sold or otherwise alienated after 1706 were to be less than one shilling sterling for new tenants, and a bushel of wheat for old tenants. Upon alienations before 1706 the re- ceiver could not be obliged to take less than three pence sterling, or a peck of wheat. The receiver-general or his deputies were also to enter on the respective rent rolls every
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such alienation, and for the entry the purchaser from the original grantee should pay one shilling. Finally, the justices of the peace could grant writs of replevin returnable before a court of common pleas.I
This proved of little avail, for complaints of mismanagement and extortion were unceasing. In 1725 it was stated that the first purchasers paid high prices for their lands, and were subject besides to the payment of a perpetual quit-rent which far exceeded what the proprietors of adjacent provinces re- quired of their tenants ; but in the land office at that time even higher rents were demanded.2 The proprietary officers re- plied that in Maryland the first quit-rents were two shillings sterling, or twenty-four pounds of tobacco per hundred acres, and later four shillings on the same number. If there had been any relaxation, it was given for the consideration of three shillings per hhd. on tobacco shipped to England, which amounted to more than the Pennsylvania quit-rent. The pur- chase money was also paid in Maryland. In Virginia and New York, the quit-rent was two shillings six pence per hun- dred acres, and the charges of the grant frequently were equivalent to a purchase. In North and South Carolina the rate was one penny per acre, while in the Jerseys the whole country being sold off to certain purchasers, they could reserve no quitrent to themselves, but for the lands granted before the sale about four shillings per hundred acres was the customary rate.3
The destitute circumstances of the young proprietors in 1732 made it imperative for them to advance the quit-rents. They also claimed that they should be paid in sterling, or at a corresponding rate in currency, especially since the assembly in 1729 had stated in its address to the Penns, " As the quit- rents are to be paid in English money, or the value thereof in coin current, it is our sense that an English shilling, the com-
1 Bradford, Laws of Pa.
2 Lloyd, Vindication, etc.
* Logan, The Antidote, etc.
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mon quit-rent for one hundred acres, cannot be otherwise dis- charged than by such a shilling, or its real value in coin current."I Notwithstanding this declaration the payment of the quit-rents in sterling was as much disputed as ever, and the assembly insisted on the proprietors receiving paper money at its face value ; but, a compromise was effected by an act passed May 19, 1739. In the preamble of this, as of the pre- ceding act, the statement was made that the quit-rents were greatly in arrears-a fact which, owing mostly to the tedious and expensive methods employed for their recovery, had proved a real loss to the proprietors, and had brought consid- erable trouble on the province. Moreover, it was asserted that the purchase of silver to pay them would involve hard- ship for the freeholders, and that payments in specie might de- preciate the paper money. Hence the Penns for a period of ten years were to be given £130 annually, in addition to a lump sum of £1200 from the interest on the paper money, provided they would agree to take currency instead of sterl- ing. The currency was rated according to the "proclama- tion money " of 6 Anne chap. 30, and was to be used in the payment of quit-rents upon all grants made prior to 1732; but payments on later sales should be governed according to the terms of each transaction, as expressed in the patent. The method of collecting the quit-rent was then carefully specified.2 But the assembly never fully executed the com- promise.3
This completes the history of the land system so far as the assembly had any direct connection with it. We are now ready to consider, finally, the regulations of 1765, and the schemes of the land speculators.' It has been noticed that the proprietors were unable to prevent the occupation of lands on the frontier by squatters, and that toward the middle of the eighteenth century the evil developed with alarming rapidity. Moreover, deputy surveyors and land speculators often sur-
1 Votes, iii, p. 336. 2 Franklin, Laws of Pa. 3 Col. Rec., viii, 537.
:
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veyed land for themselves and their friends. Sometimes they did this under assumed names, without a warrant from the land office, and on the pretense that the land had already been appropriated. But it often happened that other persons had previously found that the land was vacant. Hence these proceedings of the surveyors and speculators made it diffi- cult for the settlers to get their land surveyed till the specu- lators had been satisfied. Again, even in cases where a warrant had been regularly issued, unless the tract was accurately described, they would frequently keep the choice portions for the same purpose.2
It was to check such evils that the proprietors directed new regulations for the land office to be issued, June 17, 1765, and what was known as the "application system " was put into operation. Instead of granting a warrant immediately, the name of the applicant for any tract of land, the date of the application, and the description of the land sought was entered first in the day book, as it was called, and then in the warrant book.3 Not more than three hundred acres should be granted to a single person without a special order from the proprietors. These tracts should be surveyed in each county. Within six months the survey was to be returned to the surveyor-general's office. Then a warrant should be sent from the secretary's office to the surveyor-general, ordering him to accept the sur- vey and file a certificate of its return with the secretary. Within six months after the date of the return the applicant
1 It may be said, however, that legitimate surveys were occasionally made with- out any actual warrant or order from the land office. This gave rise about 1760 to what was called a " warrant of acceptance," which stated that by consent of the land officers a survey had been made, and that the survey was now to be accepted. Smith, Laws of Pa., ii, p. . 147.
2 P. L. B., vii, T. P. to Peters, Aug. 10, 1763; viii, to John Penn, Feb. 10, 1764; and to Peters, June 8, 1764.
3 In September 1769, applications, as such, ceased, and applications on which warrants were to be issued were received and warrants issued thereon. Huston, Original Titles, etc., P. 323.
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should make full payment for the land to the receiver-general, at the rate of £5 sterling per hundred acres or its equivalent in currency. Interest also should be paid from a date six months after the application to the time of payment. But to guard against fictitious applications, i. e., applications for land to be held for speculative purposes, a clause was to be inserted in the warrant requiring bona fide settlement as a condition of its validity. Again, owing to the dilatory practices of the surveyors and to the failure of the the appli- cants to attend them at the proper time and place, many warrants issued several years previous were still in the secretary's office. Hence they were to be sent to the sur- veyor-general in order that the proper return of the surveys should be made. Moreover, as the purchase money in many parts of the province remained unpaid, thereby creating many intricacies in claims, the possessors were required to take out patents for lands long previously surveyed. All who claimed land on account of settlement or improvement must make application to the land office, and bring authentic certificates from some neighboring magistrate of the nature of such im- provements, otherwise the land would be regranted. Neither were improvements to be bought and sold without a warrant specially issued for that purpose. The deputy surveyors were also forbidden to buy them, to receive applications for land, to survey any tracts without orders from the surveyor-general, or to continue their irregular practices.I
Examining now more in detail the schemes of the land speculators, we find that, notwithstanding these regulations, the attention of the proprietors was called to the fact that men of this class continued to make large surveys in localities most suitable for immediate settlement.2 Complaints soon spread
1 P. L. B., viii, T. P. to Peters, Sept. 20, 1765, and to Physick, Sept. 22, 1765 ; ix, to Tilghman, Nov. 7, 1766, and to John Penn, Aug. 5, 1767; Smith, Laws of Pa., ii, p. 160 et seq .; Col. Rec., ix. p. 381.
2 Penn-Physick MSS., iii, E. Physick to T. P., Apr. 10, 1769 ; Ibid., Private Corresp., v, Richard Penn to T. P., Aug. 14, 1770.
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that these were just the lands wanted for immediate occupa- tion. It was clear that the toleration of such monopolies was unwise, as the frontiersmen for fear of the Indians did not care to live in scattered groups, especially when the rest of the country was so inhospitable. On the other hand it was be- lieved by many persons in the province that the proprietors themselves were accustomed to hold large tracts of land on the frontier until fabulous prices could be secured. But this was a fancied rather than a real grievance, for, whatever the truth of the matter might be, the actual effect was not injurious. The proprietors were generally opposed to land speculation, and in fact refused several liberal offers to purchase town squares and other property. Their motive in the refusal was naturally private advantage, because they were as much entitled to the unearned increment as the people of the province. But though the people were unwilling that the proprietors should commit such a grievous injustice as to hold lands for a rise in value, they were themselves not averse to land speculation.
This was clearly shown in the propositions made by the officers of a provincial organization called the Pennsylvania Regiment. They formed an association for the purpose of applying to the proprietors for a large tract of land upon which they might erect a town. Each member should have a plantation according to his rank and to the subscription which he had made toward the capital stock. They desired 40,000 acres, 38,000 of which should be on the west branch of the Susquehanna, and 2,000 acres at Shamokin. For this reason they requested the proprietors to make another pur- chase from the Indians, and to grant them the territory on low terms and on condition of their properly defending it. But the Penns refused to entertain the proposition, on the ground that they had no right to establish a tenure by military ser- vice. They also did not care to plan any settlement before the Indians had sold the land.I Then the officers told the proprie-
1 P. L. B., viii, T. P. to John Penn, July 6, 1765.
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tors that they were willing to take the land on such terms of sale, and on such conditions of settlement, as might be for the public good, and advantageous to the proprietors, but on ac- count of the military service they had rendered, and their offer to settle the land immediately, they desired terms more favor- able than were usually made when common land was granted. The governor, therefore, acting in behalf of the proprietors, offered to make such a grant out of the next purchase from the Indians, the proprietary tenth of course being first surveyed. At the same time he stated that £5 currency per hundred acres must be paid on issuing the order for a survey, and whatever in addition was necessary to make £5 sterling must be paid when the patent was received. The usual quit-rent of one penny per acre, and immediate settlement by families were also demanded.1
The negotiations continued till 1769, when the proprietors agreed to grant 24,000 acres in lots of 8,000 acres each, situ- ated on the west branch of the Susquehanna.2 The stipula- tions were that the whole of the purchase money on the terms just mentioned should be paid before any patents were issued, and that each tract of 300 acres should be settled by a family within two years from the time of survey. Various caveats were then entered at the land office by persons who for the improve- ments they had made claimed a right of pre-emption to the lands in question, but these claims were not allowed by the board of property. The officers, however, were dilatory in their payments and slow in taking out their patents. Hence the whole scheme failed of realization.3
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