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CHAPTER II

THE LAND SYSTEM OF THE LATER PROPRIETARY PROVINCES

The most prominent feature of the New England land system was the town grant, which in every case became the territorial basis of a group settlement. Though grants were made by the general court to individuals, they were the exception rather than the rule. The result was that the landed estate of nearly every individual in New England was located in one or more towns, and was subject to the regulations which were made by towns for the management of land. The territorial affairs of the colony were largely administered through the towns as agencies. Land passed from joint control to individual ownership chiefly by means of town allotments. The towns came nearer to performing the function of proprietors than did any other administrative bodies in New England.

In the corporate colonies, moreover, the characteristic elements of the fief were lacking. The quitrent does not appear as a distinct form of income, and land was not extensively leased. The result was that the tenement or holding, which was so characteristic of English land law, was practically obliterated, and an allodial system was substituted. Had the New England governments sought revenue from the land in the form of rents, this result could not have followed. A system of tenure would have been perpetuated, and the general court would have acted as a proprietor. As it was, the court avoided the private legal attitude toward land, and kept itself well within the range of public law. The only revenue which it sought from land was in the form of taxes. This is one of the most notable consequences which resulted from the founding of the corporate colonies of New England.

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The territorial relations within the provinces were quite unlike this. Though the provinces, in this as in all other matters, exhibit much variety of practice, the distinction between them and the corporate colonies, when considered territorially, is clear and indisputable. The proprietary grant was an estate of inheritance, descending to heirs. The attitude of the proprietors toward their provinces, both legally and actually, was that of landlords toward a private estate. They were investors, speculators if you please, in land. They advertised for settlers, and, in doing so, an ever present motive with them was the desire to secure more private income from their land. Like the Duke of York, they might watch carefully the trade of their provinces, in order that revenue from that source might be increased. Like William Penn, they might be idealists. But investors in land they must be by virtue of their proprietary relation. This, when combined with powers of government, made them territorial lords, and in order to collect their quitrents and fines on alienation, they had to institute a system of territorial administration.

Such a system of administration Virginia had while the London company was its proprietor. Had the company continued to exist until individual property had become firmly established within the province, a land system like that of the other proprietary provinces would doubtless have developed in Virginia. But in one respect Virginia under the company would have differed from the provinces with individual proprietors or proprietary boards; and in this respect its position would have resembled that of the corporate colonies of New England. As a province, whose proprietor was a corporation, it would have passed to successors, and Would not have been liable to the conditions of natural inheritance. As long as the corporation continued, the province was not likely to have been divided or the continuity of its existence broken by a sudden change of owners or rulers. In Virginia, as well as in the corporate colonies, these conditions have furnished a suggestion of the territorial, as well as the political unity of the modern state.

Provinces whose proprietors were natural persons did not

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enjoy this guaranty. Not only might the entire province be sold, mortgaged, leased, devised, or conveyed in trust, like a farm or homestead, but simply by the process of inheritance it might be divided among any number of heirs.

The Duke of York, in 1664, sold New Jersey to Lord Berkeley and Sir George Carteret, and the sale was effected by deeds of lease and release.¹ By that act the province which the duke had just received from the crown was divided, and his territorial rights over a part of it went to the purchasers. But this was only the beginning of the process of subdivision. By subsequent agreements and conveyances not only was New Jersey itself divided, but the number of proprietors of each share was very largely increased. In the case of West Jersey this was effected by the creation of trusteeships, and by the admission of settlers to the position of proprietors. The proprietors of East Jersey were increased from one to twenty-four by successive sales of individual shares of the province. So large became the number of proprietors that it was necessary in each of these provinces to choose a council or committee for the management of their affairs. The history of New Jersey suggests the process by which the fiefs of continental Europe were subdivided.

In 1708 William Penn, for £6600, mortgaged Pennsylvania to Henry Gouldey, Joshua Gee, and seven other individuals in England. When, in 1718, Penn died, the mortgage had not been entirely paid off. In his will he devised the government of the province and territories to the Earls of Oxford, Mortimer, and Powlett and their heirs in trust, to dispose thereof to the queen or any other person, as advantage should dictate. To his widow and eleven others, part resident in England and part in America, he devised all his lands, rents, and other profits in Pennsylvania, the territories, or elsewhere on the continent, in trust with instruction to sell or otherwise dispose of enough to pay his debts. Of that which remained, all except thirty thousand acres should be bestowed by the trustees on the three sons of the founder

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by his second wife—John, Thomas, and Richard Penn. All the personal estate and arrears of rent he gave to his wife for the equal benefit of herself and her children, and her he made sole executrix. As, after his father’s death, William Penn, Jr., the heir-at-law, claimed the government of the province, some delay arose, resulting in a suit in chancery. It was, however, finally decided that the sons by the second marriage should inherit both the territorial and governmental rights as designated in the will.¹

By transfers and the process of natural inheritance the personnel of the board of Carolina proprietors had been changed, and in the case of some seats repeatedly so, when in 1729 the act of parliament was passed establishing an agreement with seven of their number for the surrender of their title and interest in the province to the crown.² Here, as in the case of other provinces with multiple proprietors, the colony might upon agreement have been divided. The undivided shares might at any time have become divided shares. That the single proprietor could do the same has been shown by reference to the origin of New Jersey. That this did not occur in the history of Maryland is due to good fortune and good management. In the American proprietary provinces there was the same possibility of the indefinite subdivision of territory which in the middle age we find working itself out in the states of continental Europe. These general observations will open the way to the more specific discussion of the proprietary land system.

In all the later proprietary charters, except that of New York, the operation of the statute quia emptores was expressly suspended, so far as relations between the proprietor and his immediate grantees were concerned. By virtue of this provision each proprietor, or board of proprietors, as mesne lord, became the centre from which originated an indefinite number of grants. These were held directly of the proprietor, and through him of the crown. In practice the same was true also in New York, although no reference was made to the statute quia emptores in its charter. In the provinces of

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this class it was left to the proprietor to make grants on such conditions as he chose—limited by the nature of his own patent,—to erect or permit the erection of manors, to devise the machinery necessary for surveying, issuing, and recording grants and collecting rents.

Preparatory to the exercise of the power thus bestowed in the charters, the proprietors issued so-called “concessions,” or “conditions of plantation,” stating the terms on which they would grant lands to colonists. As settlement progressed these were modified, either by new concessions or by instructions to the governors. These were not infrequently accompanied by statements of the physical advantages of the country and relations of recent voyages thither, all intended as a form of advertisement for settlers. Lord Baltimore issued conditions¹ of plantation in 1633, 1636, 1642, 1648. The earliest issue contained offers made to the first body of settlers before they left England, which when accepted became a contract between them individually and the proprietor. It provided that each free planter should pay the cost of his outfit and transportation, which amounted to about £20. To every married man who thus provided for the voyage, and for that of his family, the proprietor promised one hundred acres of land for himself, and one hundred for his wife, if she accompanied him; one hundred acres also for each adult servant, and fifty for each child under sixteen years of age. Two thousand acres of land should also be given to each adventurer who, in the year 1633, should take into the province, for the purpose of settlement, five men between the ages of sixteen and fifty.² In 1636 these conditions were extended so as to apply to settlers who had arrived subsequent to 1633. One thousand acres were now promised for every five men whom a colonist or adventurer brought over. By each new issue, which came in the form of a proclamation or an instruction to the governor, former conditions were amended or revoked. In 1642 the amount of land promised to each individual settler of adult age was reduced

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from one hundred acres to fifty acres. The conditions of 1648 were especially elaborate, and provided at length for the erection of manors, the reserve of one-sixth of each manor as demesne, and the grant of the remainder by the lord to tenants under such terms as should not infringe on the jurisdiction of the proprietor or prevent his collecting the rents reserved in the original patents. These privileges were to obtain in every grant of two thousand acres, though under earlier conditions grants of one thousand acres might carry with them manorial rights.

The conditions of plantation involved simply the renewed application of the system of head rights, which obtained in proprietary Virginia and continued in that province long after it came under the government of the crown. As land was the largest and most important factor in production over which the proprietor had control, he could not do otherwise than dispose of it somewhat freely for the purpose of encouraging emigration. The system served this purpose well throughout the early history of all the provinces. Still these rights were subject to transfer, and fraud was sometimes attempted or committed¹ in the proof of claims which were alleged to have originated under them. For this reason, among others, in 1683, by proclamation of the proprietor, this method of obtaining land in Maryland was abolished. Henceforth land could be procured only by the payment of purchase or caution money, the sums being payable partly in tobacco and partly in specie.²

The concessions which were issued by the proprietors of Carolina, of the Jerseys, and Pennsylvania, differed in no essential particular from those which had as their object the encouragement of colonization in Maryland. In 1663 the proprietors of Carolina offered one hundred acres of land to very “present undertaker,” fifty acres for every man servant, and thirty acres for every woman servant whom he should bring or send into the province.³ When, in 1665, the Barbadians undertook to settle at Cape Fear, the proprietors

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reached a special agreement with them.^l It provided that five hundred acres of land should be granted in return for every thousand pounds of sugar which were subscribed toward the enterprise, and more or less in proportion to the amount of subscriptions. At the same time the conditions which were to apply to the entire province were prescribed in the Concessions and Agreement of 1665. In these provision was made for an elaborate system of head rights, varying with each successive year between 1665 and the close of 1667. Within the county of Clarendon the maximum for freemen should be one hundred acres and the minimum fifty acres. The larger amount should be bestowed on those who arrived in 1665, and the smaller on those who should delay till 1667. In Albemarle the corresponding offers were eighty and forty acres respectively. The Fundamental Constitutions, though they designated the areas of the baronial grants alone, were in the nature of a great territorial concession for the entire province. During the period when efforts were being made to put them into force, various instructions concerning grants of land were issued by the proprietors.

In New Jersey the Concessions and Agreement were put into force in 1665. Though the document was an almost verbatim reproduction of that issued the same year by the Carolina proprietors, in the provisions concerning land the grants offered in the form of head rights were larger by one-half than those which were intended for Clarendon county in Carolina. In both provinces they were modified or wholly abandoned by later instructions, while the later proprietors of both the Jerseys issued a variety of concessions of their own.

William Penn, as soon as he had secured the charter of his province, offered land for sale in “proprieties” of five thousand acres each, the price of each to be £100. Smaller estates of two hundred acres each would also be granted, subject to the immediate payment of a quitrent. Masters should receive fifty acres for each servant they brought over, and fifty acres should be given to each servant

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when his term of service expired.¹ The “first purchasers” were those who took up land under these and other conditions which were issued before Penn left England on his first visit to the province. In an elaborate series of “conditions,” which were issued in July, 1681,² the proprietor sought to regulate the granting of land both in town and country. In one clause of these Penn insisted that every grantee, within three years, should begin the settlement and improvement of his land, or it might be granted to others. A condition like this, whenever possible, was insisted on by all proprietors. Penn was always careful to assert his right to dispose of the land of his province on such terms as he chose to make with would-be settlers, and this led to many changes in the terms of grants. These were occasioned not only by differences of location and soil, but by the wishes of both parties to the contracts.³ The same course was followed by all proprietors, and in each instance it furnishes an additional illustration of the fact that the land of the province was always regarded as a private estate.

The course of development in New York differed somewhat from that of other provinces, owing to the fact of its early occupation by the Dutch. The settlement of Dutch in New Jersey, and of both Dutch and Swedes on the Delaware, had a slight modifying effect there also. Penn confirmed titles of this origin,⁴ so far as they lay within his province. New Netherland, as will be shown at greater length in a subsequent chapter, was a Dutch proprietary province, of which the West India company was the immediate proprietor. The company may be said to have inaugurated a land system in New Netherland with the issue, in 1629, of the Freedoms and Exemptions. They were the equivalent among the Dutch of the conditions of plantation which were issued by the English proprietors. Through them provision was made for the extension of settlement outside of Manhattan island and its immediate vicinity. The patroonships and

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colonies which originated under the authority of the Freedoms and Exemptions, together with villages and very many small grants, the English found in existence when they took possession of the province. They were, therefore, not compelled to advertise for settlers, as was the case when the colonization of a province had to be begun. Both in 1664 and in 1674 Dutch titles were confirmed, and on both occasions there was a general renewal of patents. By this means tenure of the English proprietor, and afterward of the crown, was substituted for the very similar Dutch tenure, and the change was accompanied by the administration of the oath of allegiance to the king.¹

By confiscating the estate of the West India company—one of Governor Nicolls’s earliest acts—the proprietors secured all of the unoccupied land in the province. Conditions for new planters were issued by the governor, in which regulations were prescribed for the purchase of land from the Indians, temporary exemption from taxes and settlement of towns. Special reference was made to land at Esopus, as being ready for occupation.² When, after the Dutch reoccupation, Andros became governor, he was ordered in the assignment of lands to select his rules both from those which were followed in New England and from those which obtained in Maryland.

Upon the conditions of plantation, and the extent to which they were observed, depended the size and variety of estates within the provinces. In general, estates were much larger in the provinces than they were in the corporate colonies. The few score of acres which, as the result of a series of town allotments, ordinarily came into the possession of a New England farmer, were almost insignificant when compared with the princely estates of the Dutch patroons, with the seigniories and baronies which the proprietors of Carolina intended for themselves and their provincial nobility, with the manors which the Calverts or Penn reserved for themselves

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or granted to their wealthiest colonists. The territory within the New England colonies was limited, when compared with the broad stretches which were included in many of the proprietary grants. Moreover, though exceptions appear in the cases of a few trusted magistrates and others, yet generally the system of town grants in New England necessitated small estates. We have already seen how it tended toward agrarian equality.

The proprietary policy did not impose so strict a limitation. The system of head rights was elastic, and it could be made increasingly so by more or less illegitimate traffic in them.¹ In New England there was no opportunity for proprietary reserves, but in the provinces they, with manors, occupy a large place in the projects of all the proprietors. In Maryland, prior to 1676, about sixty manors were erected, containing on an average about three thousand acres each.² As the special manorial privileges which accompanied those grants were exercised in only a few cases, the great majority of them were only large freehold estates.

In 1665 the proprietor issued instructions that in every county at least two manors, each containing not less than six thousand acres of land, be surveyed and set apart as reserves for himself.³ These, in the beginning, were placed under stewards, who leased them in parcels to tenants. Reserves were also made by the proprietors for the purpose of securing control of unusually rich land or land thought to contain mineral deposits, or in order to confine settlement to parts of the province where it was thought desirable that it should be made. Though parts of the proprietary reserves were leased, they were not surveyed or named, as were the manors.⁴ As all land was liable to escheat, measures were adopted to secure the rights of the proprietor in this relation.

In the projects of the Carolina proprietors manors and proprietary reserves occupied a leading place. In the proposals of 1663, which were intended for Cape Fear, the board

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announced that it would reserve twenty thousand acres of land near each settlement that might be formed, and this should be laid out for the proprietors by their agents in such a way as not to incommode the colonists. Later in the same year they announced that a tract of the same size should be located in Albemarle, near a town which it was proposed to found there. In the agreement of 1665 with the Barbadians, provision was made that the land of the counties of Clarendon and Albemarle, exclusive of cities, towns, and lots adjacent thereto, should be divided into tracts varying from twenty-two hundred to twenty-two thousand acres each, and one-eleventh of these by lot should be reserved for the proprietors. In the scheme of the Fundamental Constitutions the eight seigniories in each county—each consisting of twelve thousand acres—were intended to be proprietary reserves. The eight baronies in each county were to be bestowed on the provincial nobility. In order to keep these estates together, it was provided that, after 1701, neither proprietors nor provincial nobles should have the power of alienating or dividing their estates. Tracts of more than three thousand, and less than twelve thousand, acres might be erected into manors.

To the dozen or more individuals who in Carolina were created landgraves patents of a general character¹ were issued, calling in each case for a grant of forty-eight thousand acres. The same was done in the case of those who were created caciques, each patent in that case calling for twenty-four thousand acres. In many cases these grants were never located or surveyed, and later their legality was for this reason denied. The seigniories, likewise, dwindled to ordinary proprietary reserves, taking in a few instances the form of a project for a large plantation. In one instance an attempt was made to locate such a grant within one of the colonies.² Ashley, Carteret, and Colleton, who had formed a partnership for the purpose, ordered that forty-five hundred acres should be reserved at Port Royal, which they intended to people with servants. The reserve was actually

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made at Albemarle Point, and it apparently contained only four hundred and twenty acres.¹ We lose sight of it when the removal was made to Oyster Point, or Charlestown. Later the Earl of Shaftesbury began a plantation at Locke island, but in less than a year it was abandoned.² We hear of various grants ranging from one thousand to two thousand acres each; but of enormous estates, such as were contemplated in Locke’s scheme, none took permanent form.

In New Jersey about fifteen thousand acres of upland and meadow near the junction of the Hackensack and Passaic rivers were granted to Captain William Sandford. Adjoining it on the north another large grant was made to Captain John Berry. A large purchase which had been made in the Dutch period, and which lay west of the Raritan,³ was confirmed. But neither these, nor other similar grants in New Jersey, were organized as manors. The proprietors, however, announced that they would reserve to themselves one-eleventh of all grants.

The sale of East Jersey in 1682 by the heirs of Sir George Carteret to William Penn and his eleven associates⁴ was followed by the settlement of the valley of the Raritan. But before their plans for this and for the building of the town of Perth Amboy were completed, each of the twelve proprietors sold one-half of his share in the province to a new associate, thus making a board of twenty-four for East Jersey. As many of the new proprietors were Scotchmen, an appeal for colonists was specially addressed to that nation. Various new concessions were published, the object of which was to open the way for the grant of moderate-sized freeholds to colonists, and to secure for the proprietors ample estates in the province. The grants ranged in most cases from three hundred to two thousand acres each. Many of them were made to proprietors, and to individuals who were directly associated with them in the enterprise. Both the English

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and Scotch proprietors made reserves for themselves,¹ individually and as distinct groups or partnerships. Successive divisions of unimproved land were made among the proprietors in 1686, 1698, 1702, 1739, 1740, and 1744.² Each proprietor sought to plant colonists, either as servants or freeholders, on those parts of his share which he did not choose to retain. By means of sale and inheritance very many changes of ownership took place in the proprietary shares. Many of them were divided and subdivided, till in some cases they appear as a thirty-second or a fortieth of an original twenty-fourth of the province.³

West Jersey consisted, at the beginning, of Fenwick’s colony, and of the undivided nine-tenths of the province which was held by three trustees. Fenwick’s colony, which comprised one-tenth of the province, was founded among the sparse settlements of the Dutch and Swedes near Salem. It had a distinct land system, which was essentially that of a manor. With the nine-tenths the trustees—Penn, Lawrie, and Lucas—dealt more systematically than did the East Jersey proprietors with their share of the original province. In 1677 an elaborate set of Concessions and Agreements was prepared, mostly by Penn himself, containing regulations for the granting of land and organization of government in West Jersey.⁴ It was provided that this business should be actually done by commissioners acting under appointment from the proprietors, assisted by such subordinate officials as might be necessary. The land along the east bank of Delaware river from Assunpink creek⁵ to Cape May was divided into ten equal parts, of which one went, as has been stated, to John Fenwick. Each of these parts was known as a tenth. They were gradually to be taken up as the number of settlers

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increased. To this end each tenth was to be divided into ten proprieties, which might be disposed of piecemeal, or all together, for the founding of what in Fenwick’s case, and in similar cases in other provinces, was called a colony. Provision was made for the customary system of head rights, varying in extent with the date of the claims. The commissioners were ordered to reserve proper sites for towns, and to see that the towns were regularly built. Settlement within a specified time was required, later commissioners insisting that it should begin within six months after the survey.

The first considerable groups of colonists which came to West Jersey were Quakers from Yorkshire and London.¹ The Yorkshire people selected for their place of settlement a tenth which lay immediately below the falls of the Delaware. The colonists from London first established themselves in a tenth near the later town of Gloucester. But, subsequently, at the request of the Yorkshire proprietors, the Londoners removed up the river, and the two companies united in the settlement of the town of Burlington.

William Penn made provision from the outset for grants of considerable size within his province. In the “conditions and concessions” which he issued in England, and which were intended for the “first purchasers,” the purchase of estates of a thousand acres or more was regarded as likely in many cases to occur. Those who should take up five thousand acres or more might be organized into townships. For every hundred thousand acres which were granted the proprietor announced his intention of reserving ten thousand for himself.² The reserves in Pennsylvania were therefore known as proprietary tenths. A considerable number of estates from this land were organized as manors, though none of them ever possessed manorial courts. A few grants, as for example that to the Free Society of Traders, were also known as manors, but they were never really anything more than large estates of land on which lived certain rent-paying tenants.

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The only fully developed manors which ever existed within the English-American colonies were in New York. The institution was of Dutch origin, though it was perpetuated by the English until, in the eighteenth century, it became a leading feature of the land system of that province. In the Freedoms and Exemptions, which gave rise to the system, provision was made for two varieties of grants—patroonships and colonies. All land within New Netherland, outside of Manhattan island, might be granted under one or other of these forms. At first, steps were taken which seemed likely to make the patroonship—the large estate—the predominant form of grant. Presuming that, as elsewhere, the patroons would prefer sites along the river courses, it was specified that their grants might extend for sixteen English miles along one side of a navigable river, or eight miles on each of both sides, and as far back into the country as conditions might determine. It thus appears that no exact limit was set to the size of these estates. The grants of land should be absolute, with the right of perpetual inheritance in the grantee, and should carry with them high and low jurisdiction, fishing and milling rights, and liberty to dispose of the heritage by will. Adjacent lands might also be made use of by the patroons so long as they were not granted away by the company, and none could settle near their bounds without the consent of the patroons. The officials, free settlers, servants, cattle, and farming implements that were needed in the colonizing of these grants should be transported to New Netherland at specified rates in the ships of the company, or, if these were lacking, in vessels sent under license by the patroons. For ten years the colonists should be free from taxes and customs, and the patroons themselves should be exempt for eight years, except from customs on fish caught on the coast of New Netherland and exported. Though subject in many ways to the control of the company, especially in respect of trade and defence, the patroonships were intended to be centres of local government, and for that reason the lords were given the right to issue instructions to their colonists, though these must be in harmony with the law of the company and of the province.

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In the patroonships many of the features of continental feudalism were reflected. They carried with them more definite judicial powers than did any similar English grants, while specific provision was made for the banalities and for rights of trade. The Exemptions also contemplated estates which would be larger than any Virginia plantations, Maryland manors, or Carolina baronies. They might easily reach the area of two hundred thousand acres each, while about fifty thousand acres was the maximum contemplated in Carolina grants, and eighty thousand or one hundred thousand acres in the Virginia grants. If many of them developed, they would certainly imperil the supremacy of the company, though they might well give rise to a certain type of colonization that was more vigorous and beneficial than any which rested mainly on the fur trade.

Immediately certain wealthy directors of the company secured grants, and the patroonships of Rensselaerswyck and Pavonia on the North river, and that of Swaanendael on the South river, were secured. The area of the first soon reached upwards of seven hundred thousand acres. In order to facilitate settlement two associations¹ were formed by the patroons—Van Rensselaer, Godyn, Blommaert, and the rest—among themselves and with other influential directors. One of the associations was to assume charge of Rensselaerswyck and the other of Swaanendael. Neither De Pauw, nor his patroonship, was included. But in 1634, a settlement at Swaanendael having been destroyed by the Indians, the rights of the patroons on the South river were bought up by the West India company. Three years later Pavonia and Staten Island, with the small settlements which had been founded there, came again into its possession in the same way. Rensselaerswyck alone remained—now in the exclusive possession of the Van Rensselaer family—to contend with the company over its seigniorial rights. A few smaller patroonships were granted later; but these soon disappeared and had no special influence on the development of the province. Owing to these events, toward the close of the period of Dutch rule the manorial influence declined and

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ceased practically to exist in the southern part of the province. From time to time, however, both by Stuyvesant and by the early English governors, grants of considerable size were made. Some of these, notably Fordham, Pelham, and Phillipsburgh in Westchester, assumed the name and to an extent the organization of manors. Toward the close of the Dutch period the Van Cortlandt family began to build up its large estate. During the administration of Governor Dongan the first grants were made which resulted in the development of the Livingston manor. By these events the manorial system began again to assume a prominence in New York like that from which, since the dissolution of the early association of patroons, it had declined. The social and political development of New York has been deeply affected by the family alliances and the system of tenant right which, as the result of these grants, extended so widely within its borders.

Provision was also made in the Exemptions for smaller grants to private persons, who should settle in the province on their own account or in the service of masters—not patroons—who lived in the Low Countries. With the consent of the director and council of the company in New Netherland, they might take up as much land as they could properly improve, and enjoy it, with the customary rights, as their own property. In the end this form of grant played a more important part in the development of the province than did the larger fiefs for which such detailed provision was made. In the Exemptions of 1640 greater stress was laid on the necessity of encouraging small grants than was done in the issue of 1629. Individual grants of moderate size, followed later by organized settlement, were multiplied at the western end of Long Island, on Staten island, and on the west bank of the Hudson, in the northern part of Manhattan island, and in the region northeast of the Harlem river.

If we compare the provinces as a whole, it will be clearly seen that grants of moderate size vastly predominated within them. They were larger than the average estate in New England, but it will probably appear that the majority of them did not exceed one thousand acres in extent. In

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proprietary instructions we hear much of manors and large reserves. But in many cases the bounds of manors were not surveyed, the rents of tenants who were settled upon them were not collected, leases were lost, and the estates fell into general neglect. In not a few instances they had simply a nominal existence, no effort being made to settle or organize them under a system of lordship. As the province developed and filled with population, the relative importance of grants of this kind steadily diminished. Varieties of soil and contour, dearth of settlers, lack of means and enterprise on the part of both proprietors and grantees, all combined to defeat cut-and-dried schemes for the settlement of provinces, whenever they were put forward.

During the first decade of Maryland’s existence the presence there of Catholic priests involved possibilities in the management of land, as well as of religion, which were of considerable importance. The work of the priests among the Indians put them in the way of obtaining deeds from the natives for large tracts. The numerical and social strength of the Catholic settlers was a guaranty to them of support in a natural effort to procure large landed estates in the province for the Jesuit Order or for the church itself. But these hopes were crushed by the proprietor in the proclamation of 1648. In this was a provision excluding from its benefits all corporations, societies, fraternities, and guilds, whether temporal or spiritual, and forbidding any grantee, without license from the proprietor, to alienate land to such a body for any uses forbidden by the statutes of mortmain. In no other British-American colony was such a precaution necessary, but it kept the land law of Maryland in harmony with that of the mother country and of the other colonies. Though usually overlooked, it was really, for a Catholic proprietor, a concession as important as the more famous toleration act of the following year. The two acts had their origin in similar motives, and were complements the one of the other.

The private or strictly feudal income which was derived by proprietors from the land thus granted assumed the forms of quitrents, purchase money, fines on alienation, income from ferries, and port duties. The last two call for no

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special reference in this connection. So far as the author has been able to discover, fines on alienation were actually enforced only in Maryland. The proprietary instructions of 1658¹ in Maryland contained a requirement that, upon the alienation of land thereafter to be granted, a fine equal to one year’s rent of such land should be paid. If this was not paid and duly recorded within one month after sale, the alienation should be void. The regulation continued in force throughout the colonial period. After 1671 the fines became payable in tobacco at 2d. per pound. They continued to be payable in this form until 1733, after which date they were received in money. In the other provinces the only restraints on alienation were the few which were intended to prevent the division of manors; and they seem in most cases to have been inoperative.

In the early history of the provinces, where it was desirable to give the maximum of encouragement to colonists, land was rarely sold. In New Netherland and New York, in the Carolinas and New Jersey, during the period of which we are speaking, a price seems never to have been put upon the land. Land was sold in Pennsylvania from the very first.² As soon as he had secured his title, Penn offered for sale shares of five thousand acres at £100 each. After 1684 this land was also to be liable to a quitrent. The practice of selling land was steadily continued, the prices varying with the period of time which had elapsed since the settlement of the province, with the character and location of the land, and with such other conditions as might affect a bargain. After 1732 prices became more permanent. For thirty years from that date the price was £15, 10s. per hundred acres. Prices were always fixed by the proprietor and his officials.

Until 1683 no price seems to have been fixed upon land in Maryland. But in that year, whether or not it was an imitation of Pennsylvania practice, the proprietor began to insist upon the purchase of land. The price first set upon land in the interior of the province was one hundred pounds

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of tobacco for every fifty acres. At later dates the price was somewhat increased, and in the eighteenth century the form of payment was changed to money. Escheated land, with such improvements as had been made upon it, was sold at auction, and the larger part of the purchase money went to the proprietor. It was a requirement in all the provinces that land should be settled within a brief period—often designated as three years—after the issue of the patent. Squatters’ rights, as evidenced by “improvement,” were as a rule generously recognized.

The most characteristic form of territorial revenue was the quitrent, paid annually at a rate prescribed by the proprietor and received in lieu of all services. It appears in all the provinces. Upon the Maryland grants which were promised in 1633 the quitrent was twenty pounds of wheat for every hundred acres. In 1642 the rate was changed to 2s. for every hundred acres, and in 1659 and 1660 to 4s. sterling, on simple freehold as well as manorial grants. But owing to the internal disturbances and a probable hesitancy on the part of the government, not till a decade later was it possible to begin the regular collection of rents at the last-mentioned rate.¹ At the same time a premium was set on the status of a freeholder by the issue of writs of election for the lower house in 1670 which restricted the suffrage to freeholders. In 1671 the well-known act was passed imposing an export duty of 2s. per hogshead on tobacco, one-half of the revenue from which was to go to the proprietor, provided he accepted, in payment of his quitrents and alienation fines, good tobacco at 2d. per pound.² By an act of 1669 it had been provided that tobacco should be received in the payment of ordinary debts at the rate of three halfpence sterling per pound, while its market price was about one penny per pound. The law of 1671 was, therefore, naturally regarded by the people of the province with favor, and was continued in force till long after the beginning of the eighteenth century.

The quitrent which at the beginning was demanded by

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the Carolina proprietors was one halfpenny per acre.¹ Governor Berkeley of Virginia, as the member of the Carolina board who was nearest to the province, was ordered to impose this rate upon the land which should be granted in the Albemarle settlement. But a large proportion of the colonists had come from Virginia, and there the quitrent was one farthing per acre. Having settled in Albemarle before Berkeley’s instructions were published, or without special reference to their terms, they sought a reduction of the rate. The assembly of Albemarle county petitioned the proprietors that they might have their lands on the same terms as the inhabitants of Virginia. In 1668 the petition was granted, the “Concessions” being suspended to that extent. So valuable did this seem to the colonists, that they came to call the concession the great “deed of grant,” and to regard it as irrevocable. The proprietors, however, did not so consider it, and in the Fundamental Constitutions provided that after 1689 the quitrent should be one English penny per acre. But as late as 1694 Governor Ludwell was granting land at the rent of one farthing per acre, and referred to the “deed” for his authority. Later still, in the eighteenth century, the question of the inviolability of this deed became an important issue between the colonists and some of the royal governors.²

In all transactions, and in all the colonies, the form of payment was a matter of importance to the people. So scanty was their supply of money, that payment in kind was always strongly their preference. The proprietors, and afterward the crown, always found their interest in securing money payments whenever it was possible. This in many cases gave rise to controversies over quitrents, which in turn occasioned the interference of the assembly in a matter which the proprietors claimed as exclusively their own. Such a dispute agitated South Carolina for several years previous to 1690. It arose from the omission of the words “or the value thereof” in the form of patent which in 1682 was sent over for use in land grants. The effect of the omission

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was to make rents payable in money.¹ At the same time strict regulations were issued for the payment of arrears. The agitation which followed contributed to the overthrow of Governor Colleton in 1690, and forced the proprietors to consent to acts which provided that rents should be paid in money or in certain designated staple products at fixed prices. The regulations concerning the payment of arrears were also made easier.

In all the provinces quitrents were an object of aversion. They were continually falling into arrears. Payment was avoided whenever it was possible; and it was not infrequently resisted. In the last resort payment could be enforced by distress, the assistance of the sheriff being called in for the purpose. In Pennsylvania, as in other provinces, these conditions were ever and anon recurring. But in the history of New Jersey the question of quitrents played a more important part than in any other province. This was due to the fact that the settlers of the Elizabethtown and Monmouth patents, who had previously received their grants from Governor Nicolls of New York, did not acknowledge the claim of Berkeley and Carteret to the province.

When, in 1670, quitrents first became due, the three towns within these grants refused to pay them, and declined in other ways to recognize the authority of the proprietors. The legal right of Berkeley and Carteret to administer government within the province was also in doubt. In Woodbridge the disinclination to take out patents from Governor Carteret was so great that he had to warn delinquents that they could not be regarded as freeholders or entitled to any of their privileges, and further that their lands might be disposed of to others. Some of the inhabitants of Elizabethtown,² alarmed by the demand for a quitrent, and by other acts of the governor which they considered to be encroachments on their privileges, tore down the fence about a lot which had been granted by the governor to one Richard Michell, who had been one of his servants. When summoned before the court on the charge of riot, the accused

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refused to plead, and in their absence were found guilty and fined. All the inhabitants of this town and of two towns within the Monmouth Purchase claimed to hold their land independently of the proprietors, while the Monmouth towns claimed independence in all things.

So great was the confusion thus occasioned, that in 1672 Governor Carteret returned to England to make the situation known and obtain fresh authority. It was then proven to the satisfaction of the Duke of York¹ that the Nicolls grants were void in law, because they were issued later than his grant of the province to Berkeley and Carteret. Therefore the duke ordered the governor of New York to take no further notice of those patents, and to inform the parties concerned that he would in no way countenance their pretensions against the proprietors. The king also wrote, commanding all persons within the province to obey “the laws and government” of the proprietors, they “having the sole Power under us to settle and dispose of the said Country, upon such Terms and Conditions as they shall think fit.”

Governor Carteret also obtained from the proprietors renewed declarations² that all land in the province must be held of them, and that the rent due therefrom might be collected by distress. As an interpretation of the sixth article of their concessions, they declared that the governor and council should have the exclusive power to admit persons to be planters and freemen of the province, and that no one should be counted a freeholder, or have the right to vote or hold office, unless he held his land by patent from the lords proprietors. The proprietors, and their agent the governor, in accordance with the practice in the provinces generally, proceeded on the supposition that territorial affairs should be regulated wholly by the executive. According, also, to the opinion just mentioned, the exercise of political rights was to depend wholly on the form of land grants. It is true that in provinces where the territorial rights of the proprietors met with no opposition this practically followed as a matter of course. The proprietors were not forced to declare

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the principle according to which they acted. But in New Jersey a considerable element among the settlers insisted, not only that the exercise of political rights should be regulated by the legislature, but that certain of the towns had the exclusive right to determine who should be residents and freeholders within their limits. Owing thus to the peculiar way in which the northern part of New Jersey was settled, questions of land, of rent, of the relation between these and political rights, had, and were always destined to have, an unusual prominence.

The attitude of the board of twenty-four proprietors toward the claim of those who still clung to their grants from Nicolls was the same as that of Carteret had been. The settlers were told that purchase from the Indians gave them “no Right¹ but what is duly confirmed by us, or our legal Predecessors, unless you would renounce all Interest and Protection from the King of England, and so Subject your all to a just forfeiture.” But such a result they deprecated, and instead referred the inhabitants of Elizabethtown and of the Monmouth Purchase to the scheme of government they had sent over for proof of the kindly spirit which the proprietors cherished toward them.

A general inspection of patents was discussed, but it was not undertaken, and quitrents in East Jersey continued largely in arrears.² The proprietors were never able satisfactorily to establish their rights to government, and that fact furnished a chronic incitement to agrarian troubles. The executive remained weak, even after the proprietors had resigned their political rights to the crown. Therefore, during long periods in the eighteenth century, New Jersey was plunged into anarchy by agrarian disputes which the government was too weak to control.

In the Dutch ground briefs no definite provision was made for the payment of a rent. In some of the patents the payment of a tenth of the products of the soil was required. In many only the general obligation of submission and allegiance was enforced, with some special duty, such as that

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of fencing the land.¹ The West India company owned six boweries, which were situated on the east side of Manhattan island outside the limits of the Dutch town. They were furnished with buildings and with cattle, and were leased for short periods, with their stock and other outfit, on such terms as were customary throughout the province.² The farms of the colony of Rensselaerswyck were managed according to the same system of stock leases. Some were let at a fixed rent, payable in grain, beaver, or wampum, while others were let at halves or thirds, including one-half of the increase of the stock and a few pounds of butter³ as a recognition. The tenant was bound to keep the buildings and tools in good repair.

The English conquest in 1664 resulted in no immediate change in the land law of the province. The articles of capitulation’ provided that the Dutch should “enjoy their own customs concerning their inheritances,⁴ and all public writings which contained the record of them should be carefully preserved. In the Duke’s Laws also the permanency of property rights was carefully guarantied.⁵ This, however, did not preclude the necessity of a general renewal of patents and town charters, as a means of breaking the tenure by which land had been held of the Dutch government, and as an accompaniment of the oath of allegiance to the English crown. Provision was made for this in the Duke’s Laws⁶ and their subsequent amendments. “To the end all former Purchases,” it was declared, “may be ascertained to the present possessor or right owner, They shall bring in their former Grants, and take out new patents for the same from the present Governoure in the behalf of his Royall Highness

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the Duke of York.” It was also carefully provided that all patents and bounds of towns, also surveys for new purchases, should be deposited in the office of records at the city of New York, as well as in the towns and in the custody of the courts of sessions. Wills, drawn now not according to Dutch precedents but according to forms which, for lands held by socage tenure, had been legal in England since Henry VIII, were likewise to be filed in the city of New York.

In the Duke’s Laws also the fact was recognized that by 12 Charles II, c. 24, all military tenures in England had been abolished. Free and common socage was therefore the tenure which was substituted for Dutch law and custom.

Dutch ground briefs and transports were very generally submitted to the English officials for confirmation, and in most of the English patents or deeds which were granted in their stead no express mention was made of a quitrent.¹ This is emphatically true in the case of confirmation of city lots. Confirmations of Indian deeds and new grants were made subject to “the accustomed rent of new Plantations in this country,” or to such payment and conditions as should be designated by the Duke of York and his officers. In some cases the annual payment of a lamb, or of a barrel of codfish or a bushel of winter wheat, was demanded. Confirmations of patents on the Delaware and the issue of new grants in that region were always accompanied by the condition that a quitrent should be paid in wheat.

At the close, in 1674, of the Dutch reoccupation there was another renewal of patents. But even then the system of quitrents was not fully introduced. In 1686 Governor Dongan reported² that the quitrents, at his arrival in the province, were very inconsiderable, the larger part coming from the Delaware region under the terms of the patents granted by Andros. But Andros even had renewed Indian purchases and township grants with the former reservation of a lamb only as a quitrent. Dongan, however,³ insisted

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that all patents or deeds which were recorded during his administration should contain provision for a quitrent. No exception was made even in the case of city lots.

Rent in the city was made payable in money, but in the country it was payable in wheat, fish, or other commodities. Albany was made the place of payment for the northern part, and New York for the southern part, of the province. At first rents were payable to the duke, but later, after his accession, to the king. Dongan himself explains how he succeeded in increasing the quitrent in some of the towns. He found that certain tracts of land within their limits had not been purchased from the Indians and were at the disposal of the government. By threatening to grant them to outside parties, he induced the proprietors of the town to submit to an increase of rent. By these measures the system of quitrents was extended throughout New York, and its practice in this respect was brought into conformity with that of the other English provinces.

The fact that under this system the proprietor was the grantor of land and the recipient of revenue therefrom, necessitated the creation of an administrative body within the province for the performance of the duties which these rights implied. Under the conditions of plantation those who were entitled to head rights had to record their claims, and on the basis of them warrants were issued for the survey of the tracts to which the claimants were entitled. When the survey in each case was duly made and return thereof submitted, the patent or deed for the land was made out and title¹ was thereby conveyed. As the rents and other forms of income from land became due, provision had to be made for their collection.

During the early history of Maryland this work was done by the governor, council, and secretary—who was a member of the council,—and mainly through the secretary’s office. Surveyors, and especially the surveyor-general, who was also a member of the council, were continuously called into requisition. Warrants and deeds were made out under the order of the governor, and the deeds passed the great

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seal of the province. In the collection of rents the sheriffs were brought into requisition, while in prosecutions the services of the attorney-general were sometimes needed. In 1685¹ an examiner was appointed, who signed the certificates of survey. Previous to that time this duty had been performed by the surveyor-general.

About 1670 there was a notable increase in the territorial business of the province.² In that year the secretary was instructed to prove all claims to land; to inquire after, and enter on record, all escheats, also all proprietary manors and reserves; to prepare a rent roll, and in connection therewith to discover and report to the proprietor and governor all attempts to conceal the obligation to pay rent; to secure, if possible, the payment of alienation fines and to enter upon record a list of alienations. In 1673 and earlier the sheriffs were ordered to return lists of escheats for their respective counties. In 1671 the surveyor-general was instructed to hold annually courts of inquiry in the several counties for the purpose of examining titles, and ascertaining whether more land was held than was due and what rents and services should be paid; these facts should also be recorded and one copy sent to the proprietor and another to the receiver-general.³ At this date or a little later two receiver-generals were appointed by the proprietor, with authority to collect rents and dues and to appoint deputies to assist them in the work.⁴ In 1678 the formation of a complete rent roll was in progress, for then the clerks of the county courts were ordered through the justices to transmit to the office of the secretary a complete list of alienations of land within their counties, which might be used for the purpose.

In 1680 this increased activity took shape in the organization of a land office which, though connected with the office of secretary, should be distinct from it.⁵ The chief clerk of the secretary’s office was placed in charge of the new bureau, under the title of clerk and register. The land records were transferred to his care, and he was authorized

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to prove claims, issue warrants, and draw patents. In 1684, just before leaving the province, Charles Calvert, the lord proprietor, commissioned a land council of four members, all of whom were members of the council of state. This body received elaborate instructions concerning all matters relating to land, and were intrusted with full care of the proprietor’s territorial interests. Two of its members, who were the secretaries of the province, were to sign warrants and examine all patents; two other members, who were keepers of the great seal, were, during the absence of the proprietor, to sign all patents. Thus the business of granting land, collecting the revenue therefrom, and keeping the land records was organized under one distinct office, which continued in existence until 1689, and after a suspension of five years was reopened and remained in activity, with certain administrative changes, as long as Maryland was a province.

In New Netherland territorial affairs were administered by the director and council, and no separate land office was organized. The same was true of the Carolinas, of New York, and of New Jersey prior to about 1680. In those provinces the governor, the secretary, the surveyor-general, and the receiver-general, with their subordinates, attended wholly to the making of surveys, the issue of patents, and the collection of rents. No evidence appears that in this capacity the governor and secretary acted under separate commissions. The procedure which was followed in the making of surveys and the issue of warrants and patents was much the same in all these provinces, and in all essential particulars it was the same as that of Maryland.¹ This included provision, especially in New York and in the Fundamental Constitutions of Carolina, for the registry of all leases, mortgages, and conveyances. New York also included wills under the requirement for registration. Florence O’Sullivan, the first surveyor-general of the Ashley River settlement, was ordered,² not only to survey

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all bounds and allotments under warrants from the governor and council, but to make a return of such surveys and keep a record of such returns in his office.

In New Jersey the office of surveyor-general was one of the first¹ to be created, while that of receiver-general was in existence at least as early as 1672. But owing to the large number of proprietors, after the division of the province into East and West New Jersey, it became necessary to delegate authority to a part of the board. In East Jersey authority was first given, in 1684 and 1685, to the governor and the proprietors who were resident in the province, with their deputies, to grant lands and settle disputes with the planters. This soon became known as the Board of Proprietors of East Jersey, and it continued to have the chief management of territorial affairs in that part of the original province.

In West Jersey the trustees,—Penn, Lawrie, and Lucas,—who for a time took charge of the province on behalf of the creditors of Edward Byllinge, appointed a board of commissioners to administer territorial affairs. Had that board been continued through appointment of their successors, West Jersey would have retained the form of other proprietary provinces. But such was not the case. In chapter third of the Concessions it was provided that, on March 25, 1681, the proprietors, freeholders, and inhabitants, resident within the province, should meet and elect from among themselves ten commissioners to take the place of those who had at first been appointed. This process should be annually repeated. Its effect was to give the control over territorial affairs into the hands of the inhabitants, to democratize the land system as well as the political system. In other words, it indefinitely multiplied the number of those who in the technical sense were proprietors; all grantees retained a joint interest in the enterprise. Therefore when, after settlement of the province had begun, commissioners are mentioned, a board chosen by the colonists is meant. West Jersey was like a New England town—greatly enlarged. It is possible that, during the interval between 1681 and

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1687, the commissioners were not regularly elected. But in the last-mentioned year, forty or more of the proprietors met and resolved that eleven of their number should be annually chosen to act as commissioners and trustees for the entire body. In this act originated the Council or Board of West Jersey Proprietors, which has continued in existence from that time. This board, as well as that of East Jersey, may be regarded as constituting a land office, and neither the governor nor the other officers were ex officio members of it.

The course of policy which in these matters was followed in Pennsylvania was similar to that of Maryland and the Jerseys. Like them, Pennsylvania had a land office, though until after 1732 its affairs were very much in confusion. Even then records were kept and affairs were managed with less care than was shown by the Calverts and their officials. The long absences of Penn from his province made it impossible for him to attend in person to the details of selling and letting land and collecting rents. Not until 1741 was the care of these matters intrusted to the governors. Instead, a commission or board of property was from time to time designated, which acted as the special agent of the proprietor. The board consisted of a secretary,—who was at the same time secretary of the province,—the surveyor-general, and from three to five special commissioners. Closely associated with the board was the receiver-general, the keeper of the seal, and master of the rolls. The special duties of the commissioners related to the granting of lands, but, as their powers developed, they also became concerned with the collection of rents.¹ After 1741 the governors became members of this board, but their authority to act with it was conveyed through a special commission. In its divorce of territorial business from the office of governor, the practice of Pennsylvania and that of the Jerseys, as well as that of Maryland in its later history, were similar.

In all the provinces the land system was kept as free as possible from the control of the legislature. It was organized and regulated under instructions and proclamations of the proprietors and their appointees. Any attempt to regulate

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it by legislation was resented and opposed. It was regarded as the private concern of the proprietor and its administration as distinctly an executive function. Until 1690 it remained under executive control in Maryland, and few laws of importance were passed for its regulation. The most important act of the period affecting land was the one passed in 1671, specifying the price at which tobacco should be received in payment of quitrents. In 1649 the principle always insisted on by the proprietor, that titles should be derived from him and not through Indian deeds, was confirmed by statute. In 1642 an act was passed prescribing the time subsequent to a grant when the payment of quitrent should begin. The act was also intended to prevent undue delays in surveying and recording grants. The same year the fees of the surveyor-general were regulated¹ and acts for that purpose were repeatedly passed thereafter. Irregularities on the part of surveyors received attention after 1660,² but no laws on the subject were passed.

In New Netherland, and in New York during its proprietary period, there was, of course, no question of executive control versus legislative regulation. In the absence of a legislature such an issue could not arise. But in the Carolinas, the Jerseys, and Pennsylvania it arose, and the occasion which usually brought it to the front was some dispute over the payment of quitrents. It was at this point that the territorial regulations of the proprietor touched the pocket of the colonist. Like a tax, the rent was a constantly recurring burden. Over its amount and the form of its payment the individual desired in some way to secure such control as had been effected in the case of taxation. Efforts to secure this helped to initiate the process of legislation relating to territorial affairs.

Group settlements, which were so characteristic of New England, appear in the proprietary provinces with very unequal prominence. The towns of eastern Long Island³ were

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exclusively of New England origin and type. The same may be said of the five English towns—Hempstead,¹ Gravesend, Jamaica, Newtown, and Flushing—which lay immediately to the westward and were settled under Dutch rule. The English towns of Westchester county² belonged, in the main, to the same class, as did Newark, Elizabethtown, Shrewsbury, and Woodbridge in northern New Jersey.³ Viewed collectively, the towns to which reference has just been made were a projection of New England into the middle colonies. If the enterprise of New Haven on the Delaware had succeeded, one or more New England towns would have been planted still farther south. In so far as the inhabitants of these towns at a later time became subject to a quitrent, they departed from the New England model and approximated to the conditions of tenancy by which they were surrounded.

The fact that in the proprietary provinces land was granted by the proprietor and was held of him, could not fail, when it was really operative, to have an effect on the formation of group settlements. The system itself was pre-eminently favorable to individual grants. The economic impulse, under which the provinces were settled, operated upon individuals and families more than upon groups and entire communities. Migration and the progress of settlement within the provinces were, in most cases, distinctly individualistic in character. This is true among the Dutch, as well as among the English. In New Netherland individuals pushed out into unoccupied territory, extinguished Indian titles, and then obtained sanction from the company for what they had done. The form of early deeds implies this. To cite one among a large number of examples: ⁴ On

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June 16, 1637, the director and council declared that certain Indian chiefs, whose names are given, came before them and stated that, with the consent of the tribe and in return for certain merchandise which had been transferred to them, they had conveyed to George Rapalje a piece of land upon Long Island, with bounds loosely specified in the document. This simple recognition by the director and council in writing of what private parties had done is the essence of the Dutch ground brief, and in this case it sanctioned the first step that was taken toward the settlement at Wallabout.

Similar steps were being taken elsewhere. On the open flats, north of the present Coney island, Hudde, Van Corlaer, Gerritsen, and others took out patents, some of which were afterward revoked, for tracts estimated at fifteen thousand acres. A part of this was known as the plantation of Achtervelt, of the buildings, stock, and growing crops on which, as they were in July, 1638, we have an inventory.¹ After settlers in sufficient number had bought or leased farms and built dwellings within these large grants, rights of local government were bestowed by the director and council, and the settlement became, not the manor, but the village and town of Amersfoort, later called Flatlands. Breuckelen originated in a similar way from grants to individuals at Gowanus, Red Hook, The Wallabout, The Ferry, and finally at a point some distance east of The Ferry, where a church was built, and the village of Breuckelen proper was founded. In 1667, after the English conquest, these settlements were bound together into one bundle, and made a town by a patent from Governor Nicolls.² The other Dutch towns in Kings county consisted of grants to individuals, made originally by the province, and at a later time bound together by a town patent, itself also a grant from the chief authority in the province. Haarlem and Bergen³ originated in a similar manner.

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After a local magistracy had been established, and especially after the issue of the town patent, the locality itself granted land, though it had not the exclusive power to do this, and such grants might be subject to confirmation, to quitrents, or to other conditions under which land was generally held in the province. Within towns thus organized unoccupied land was treated as commons, and the system of common fields, pastures and woods, with town herds and common fences, appears, much as in New England. As time progressed the towns divided their commons by lot,¹ as they did in New England. A genuine village community system existed among the Dutch, as it did among the New Englanders. But in the two sections it came into existence in a somewhat different way. In New England, as a rule, the group of settlers was original, and secured the town grant and managed it from the first. Among the Dutch, as a rule, the villages originated from aggregations of farms, and attained their corporate life in consequence of such preexistent aggregation. When the Dutch village community had once been formed, it exhibited most of the characteristics of the New England village, though it was always subject to certain limitations which did not attach to the latter. Moreover, in New Netherland the village was by no means the only form of settlement, and it did not determine the form of society to the extent which was true of the villages in New England.

As one passes to southern New Jersey, to Pennsylvania, and the provinces still farther south, he will find the village or town diminishing in importance, and the isolated farm or plantation appearing still more distinctly as the chief form of settlement. This tendency culminated in the tobacco-planting and rice-growing provinces south of Pennsylvania. Though such a form of settlement was in close harmony with the proprietary system in general, it was the result of natural and economic causes which are familiar, the working of which has often been explained.

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When, in the provinces to which reference has just been made, the village or village community appears, it will in most cases be found to have originated after the manner of the Dutch rather than after that of the New Englanders. And yet one would not be warranted in inferring that the English of the provinces were in this feature of their colonization imitating their Dutch neighbors. It would be safer to infer that both Dutch and English were acting under similar conditions, both economic and administrative.

Perth Amboy, in East Jersey, was laid out by the proprietors, and lots were granted or taken up by them. Over the settlement of Salem John Fenwick exercised the control of a chief proprietor. After the location and general plan of the town had been decided upon by him in consultation with the intending purchasers, one-half of the site was set apart for their home lots and the other half was reserved by Fenwick, to be granted exclusively by him. Burlington and Gloucester were laid out by the proprietors—who were the principal freeholders of the tenths where they were located—in accordance with the democratic method¹ of procedure which was generally followed in West Jersey.

In Pennsylvania, as well as in Maryland, towns were laid out and lots in them were granted under the immediate authority of the proprietor and his appointees. In the case of Philadelphia this was literally true, and proportional allotments of land within the town were made in connection with the grant of country lots. Quitrents were reserved upon both alike.² When transfers were made from the original grantees to third parties, quitrents were also reserved, and they were payable directly to Penn. In reference to land the relations between the proprietor and individuals in Philadelphia proper was as direct as it was in any other part of the province. Land in the beginning was not transferred to the inhabitants of that city as a group, but as individuals. They came to form a city, because within that particular

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tract settlement was compact and not dispersed. When Philadelphia was incorporated, the records of land titles remained with the officials of the province, or in the custody of the county of Philadelphia.

Germantown, on the other hand, originated as a group settlement, and was not merely an aggregation of grants to individuals. The initial step was taken in Europe with the founding of the Frankfort land company.¹ Though none of the members of that company, except Francis Daniel Pastorius, came to America, he, acting as their agent, bought land of Penn, to which settlers came from Crefeld and other points on the Rhine. A patent was procured from Penn’s commissioners of property for 5700 acres. This contained a grant of 200 acres to Pastorius and 150 acres to Hartsfelder, and provided for the transfer of the remaining 5350 acres to Pastorius for the German settlers. This tract was divided into two equal parts, one half going to the Frankfort company and the other half to the Crefeld purchasers. From the entire grant a quitrent was reserved by Penn as proprietor, though rents on estates within the tract were frequently made payable to intermediate parties. But the surveying of the tract, the locating of streets and lots, and the assignment of land to settlers was left to Pastorius and his associates. In October, 1683, they laid out fourteen lots for the first comers, and these were assigned. Successive allotments were made as groups of colonists arrived, and three townships besides Germantown itself were soon founded within the large tract. Deeds were executed by Pastorius, or others, under the authority of the Frankfort company or the Crefeld purchasers. Records of these grants² were kept, as was done, though less systematically, in New England towns. In 1689, by charter from Penn, Germantown was made an incorporated borough. Authority was thereby given to the bailiff, burgesses, and commonalty of the borough to manage and improve their

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lands and stock in trade. A borough court was established, with authority to issue local ordinances; and in the exercise of this power by-laws were passed which went as far in the regulation of allotments and common lands as did the orders of New England towns.¹ But local powers of this extent were the exception in the provinces, and were the result of special conditions.

In Maryland the straggling settlement at Saint Mary’s and the more compact and permanent town of Annapolis were subject in all their territorial arrangements to regulations which were issued by the government of the province, or by county officials who were acting under its authority. Annapolis originated in a grant in 1649 of 250 acres to ten families, led by Richard Bennett, who had recently arrived from Virginia. This tract was surveyed and divided into lots, probably by surveyors who were acting directly under authority from the proprietor. Later, as the settlement grew, other farms, on the lower course of the Severn, were surveyed and occupied. Thus the town grew by the addition of homestead to homestead rather than by joint and simultaneous acts of a considerable group of colonists.² In 1683, when the rage for founding port towns was at its height, an act was passed by the Maryland legislature which provided a cut-and-dried scheme for the establishment of towns in the various counties. As, about ten years later, the same plan was applied especially to Annapolis, and since it well illustrates the methods by which in the southern provinces attempts were made to found towns, a brief reference to it is necessary.³

In the act commissioners for each county were named, and they were empowered to buy one hundred acres of land conveniently situated at each of a certain number of designated points where it was believed that port towns could be developed.

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After any one of the given tracts had been surveyed, the commissioners should cause it to be laid out in streets and alleys, reserving open places for a church, a market-house, and other public buildings. What remained of the tract should be laid out, as nearly as might be, into one hundred numbered lots, and these should be sold to intending settlers. For the period of four months the lots should be reserved for purchase exclusively by residents of the county in which the town was situated; at the end of that time they should be thrown open to purchasers from outside. Prior owners of the land might be compelled to sell at an appraised value, while the grantees should be under obligation, not only to pay for their lots, but to build a house upon each of them within the period of two years. County surveyors should be required to lay off the lots, as well as the streets and commons, and a quitrent on the land should be reserved to the proprietor. By the act of 1694, relating to Annapolis and Oxford, provision was made in each case for purchasing and fencing a town pasture. A board of possibly resident commissioners was also designated for each town. But, as under the act of 1693, the laying out of streets and lots, and all else which was connected with the founding or extension of the town, was to be done under provincial rather than local authority. A town thus founded would be only a more densely settled area within a county. It would have little or no organic life apart from the county.

Although the plan of 1683 to promote town life within Maryland proved a failure, Annapolis survived, and in 1696¹ a board of resident trustees was created for it. They were incorporated and empowered to meet from time to time as a court to regulate town affairs and administer local justice. The resident freeholders were also recognized as freemen of the town, and were empowered to fill vacancies in the board of trustees. The trustees were authorized to buy land for common use, and from it or other ungranted land to sell lots to newcomers. By this measure Annapolis for the first time attained to the conditions of corporate life.

North Carolina, until near the close of the period which

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we are discussing, was almost destitute of group settlements. On the Ashley river there was only one of importance—Charlestown on Albemarle Point, which was afterward removed to the site of the same name on Oyster Point. This town was the residence of the provincial authorities, and was the place where the legislature met, and where government centred. Notwithstanding the fact that provision was at once made for individual ownership in the management of its land, and in everything which pertained to its life, Charlestown was quite as much under provincial control as was Jamestown in Virginia. Indeed, the remoteness of Charlestown from the other English settlements, and its exposure to attack, both from Indian and Spaniard, remind one of Jamestown during the early decades of its existence. The resemblance is strengthened when we find that the proprietors gave minute instructions concerning its settlement¹ and that these were followed as strictly as possible, though the site which was chosen was quite different from the one which the proprietors had in mind when the orders were drawn.

The origin of the settlement at Albemarle Point cannot be better described than in the words of the provincial council as written to the proprietors:² “When we arrived here, we thought it most conducing to our safety to build a town, where we are now settled, it being a point with a very convenient landing, and safely fortified, being almost surrounded with a large Marsh and Creek, and after the first joint planting, upon our arrival, which necessity had soe put upon us: that the people might have sufficient land to plant and keep a small stock, and that we might keep as near together as we could, for the better security of this place, we were forced to grant them town lotts cont: eleaven poles or thereabouts per head, and Tenn acres per head to plant as aforesaid, which tenn acre lotts were and are laid out to them and about the Town from the South, westward to ye North, by which we humbly conceive we shall prevent any sudden surpriseall.”

We are told that no person was settled more than two miles from the town, whether up or down the river.³ The

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town enclosure itself, which was christened Charlestown, seems to have contained about nine acres, and was surrounded by a palisade. It was located about midway of the settlement, where it was protected on three sides by marsh. A plan¹ which has been preserved in the Shaftesbury Papers shows that grants were made to the settlers, extending back in long, rectangular strips from the marsh adjacent to the river, and that these grants varied in extent from less than twenty acres to forty-two acres. A list of sixty-two grants, apparently smaller than most of those which appear on the plan, has also been preserved. This may be the list of town lots, while the plan shows outlying farms. The largest grant which appears on the plan was one of 420 acres to the partners Ashley, Carteret, and Colleton, who had undertaken jointly to settle a plantation within the colony. Of this, West, the storekeeper, took special charge, as the agent of the partners, and on the plantation their servants were settled.

Over the territorial arrangements at the second Charlestown—that on Oyster Point—the control of the proprietors was even more complete than it was over the settlement which has just been described. In the fall of 1671 instructions² were issued to Sir John Yeamans, who was then governor, that he should have surveys made for a port town at the healthiest spot available upon the Ashley river, and the Point was selected as best meeting that condition. This was in accordance with the provision of the Constitutions that there should be one port town on each navigable river in the province.³ The governor was instructed to lay out land for six colonies about it,—which would make a precinct,—but

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not to grant any seigniories or baronies among them. The town, according to the plan of the proprietors, which was known as a “grand model,” should be regularly laid out in plots three hundred feet square, on each of which one house might be built.

The squares should be separated from one another by streets and alleys. With each square as a town lot should also be granted eighty acres in the colony of which the town formed a part, and four hundred acres in some of the other five colonies of the precinct. The town should be palisaded, and outside the palisade should be a ditch. Immediately without the palisade the land, for the breadth of one-third of a mile, should be left common, and in order to insure its being cleared, the inhabitants might be temporarily allowed to plant or make gardens there. But its final and permanent use should be as a common for the cattle of the town, and the grantee or grantees of every square in the town should have their proportional share in the use of it.

Preparatory to the settlement on Oyster Point, the surrender of a few tracts of land which had already been occupied there was procured. References appear in the council records to gradual progress in the occupation of the new site. The inland boundary of the “new town” was at a line corresponding to Hasell and Beaufain streets in the modern city. The first buildings were erected along the eastern side of the peninsula. Many creeks and marshes obstructed settlement even here. But the seat of government was removed to the new town, and the settlement at Albemarle Point was officially abandoned.¹ In 1679 and 1680 the proprietors issued the decisive orders which changed its name to Charlestown, removed the government offices, and made it thenceforward the chief town in the province. A general removal of the inhabitants from Albemarle Point—the older Charlestown—followed. No town in this province during the period which we are discussing was made a borough, or in any way enjoyed distinct corporate rights.