The land system in Maryland 1720-1765

Front matter

OassHJlLU.

Book _J?U&^ -

THE LAND SYSTEM IN MARYLAND 1720-1765

Preface

These four chapters form part of a larger work intended to cover the economic history of Maryland in the period designated. The research for the entire work is about finished, and several additional chapters are now complete ; but it has seemed desirable to publish as a monograph the part relating to the Land System, and to present later the other factors in the colonial life of the eighteenth century.

The author is under obligations to Professors J. M. Vincent and Charles M. Andrews for aid and suggestion in the preparation of this work. He also wishes to acknowledge indebtedness to his mother for many of the arithmetical calculations.

C. P. G.

vn

THE LAND SYSTEM IN MARYLAND 1720-176?

Chapter I

According to the terms of the charter of Maryland, Lord Baltimore was given the land " in free and common socage ; " and was empowered to "assign, alien, grant, demise, or enfeoff so many, such, and proportionate Parts and Parcels of the Premises, to any Person or Persons willing to purchase the same, as they shall think convenient, to have and to hold ... in Fee-simple, or Fee-tail, or for Term of Life, Lives, or Years; to hold of the aforesaid now Baron of Baltimore, his Heirs and Assigns, by . . . such . . . Services, Customs and Rents of this kind, as to the same now Baron of Baltimore, his Heirs and Assigns, shall seem fit and agreeable, and not immediately of Us."

With such large powers over land, and with the experience of the earlier colonies concerning the unprofitableness of trade, it is easily seen why the proprietor, to reap his profit, turned toward the exploitation of the soil. Following the plan which had worked so successfully in Virginia, Lord Baltimore provided in his early conditions of plantation for the granting of land to those who would transport settlers into the colony. By each grant there was reserved to the proprietor a perpetual quit-rent, which, though originally payable in wheat, was fixed in 1671 at four shillings sterling per hundred acres. In 1683 transportation of settlers ceased to be the basis for the granting of lands, which were thereafter obtainable only on the payment of a purchase price, called caution money, of two hundred pounds of tobacco per hundred acres. This was raised in 1684 to two hundred

IO THE LAND SYSTEM IN MARYLAND, I72O-I765

and forty pounds, which rate was doubled during the royal period. In 1717 the purchase price was changed to money at the rate of one penny for each pound of tobacco, making forty shillings sterling per hundred acres.

These terms remained unchanged during the continuance of the commutation law, 1 but after its expiration in 1733 an increase in the land rates again became very tempting to the proprietor. By the instructions to Edmund Jennings, judge of the land office, in that year, the purchase price was left at forty shillings sterling per hundred acres, but the quit-rent was raised from four shillings to ten shillings. 2 Under these terms the number of land grants showed a sharp decrease, so that in 1738 the four shilling quit-rent was restored, but the purchase price was advanced from £2 to £5 sterling per hundred acres. At the same time the land officials were informed that these were but minimum rates, and that higher rates should be demanded wherever, in the judgment of the governor, the secretary, and the judge of the land office, the desirability of the land would admit of it. 3 In practice, however, increased rates were seldom, if ever, demanded. After 1738 there was no further change in the land rates until the Revolution.

The proprietor, however, was not entirely pleased with this settlement. Charles, Lord Baltimore, satisfied with his experiment with a ten shilling quit-rent, seems never to have contemplated raising the rates again; but Frederick, who succeeded Charles in 1751, began almost at once a long series of efforts to increase his revenue from lands. Knowing that the population was rapidly increasing, and seeing that the Penns were obtaining higher rates from their lands, it is not strange that Frederick should have concluded that his charges were too low. In 1753 he appears to have given

1 See p. 34 et seq.

2 Land Office, Warrants, Liber EE, p. 306; John Kilty, The Landholders' Assistant and Land-Office Guide, p. 232.

3 Lower House Journal, May 25, 1744; Land Office, Warrants, Liber LG No. A, p. 135. This instruction bears date "at London 15 Dec r . 1738," but the precise date on which it reached the colony and went into force cannot be determined.

THE GRANTING OF LAND II

instructions to grant no land at less than ten shillings sterling per hundred 1 acres, and to require within a specified time the settlement of a certain number of people on each grant. Both Colonel Lloyd, who was then agent, and Governor Sharpe wrote strongly opposing the change, and pointing out that although the rates as then established were not so high as those of Pennsylvania, where agricultural conditions were different, they were, nevertheless, much higher than those of Virginia. Sharpe's advice was accepted, and the rate was allowed to remain as before. 4

About three months later, Sharpe again wrote opposing an advance in the price asked for land, but this time the advance suggested was of a little different nature. The system of granting lands was such that irregular bodies of ungranted lands were left interspersed among the lands granted, 5 and the proprietor seems to have suggested that these lands in the more populous sections of the province should bring a higher rate than land on the frontiers. Sharpe objected to this advance because the interspersed parcels were always the less desirable land, and were in such small quantities as to be worthless to any but the owners of adjoining tracts. 6 Again the advice of the governor prevailed.

On the breaking out of the Old French and Indian War it became hopeless to think of any advance in land rates, 7 but scarcely was peace declared before Secretary Calvert 8 was sounding the temper of the leading men of the colony on the subject of an increase in the purchase price. His

4 Archives of Maryland, vol. vi, p. 37.

"Until the accession of Frederick the secretary of Maryland was an officer who kept the provincial records at Annapolis and controlled the county clerks. In that year — 175 1 — the proprietor appointed as joint secretary his uncle, Cecilius Calvert, who lived in England, and who acted as private secretary and adviser. He was paid by contributions demanded from the higher officers of the colony. Being of a suspicious nature, he maintained correspondence with many persons in Maryland, apparently as a check on the governor. He died in 1765, and was succeeded by Hugh Hamersley.

letter to Daniel Dulany brought out a strong reply in which Dulany discussed the whole land situation, and blamed the low price of Maryland land as compared with that of Pennsylvania largely on the enormous fees which were collected by the land officials. 9 The opposition thus developed was sufficient to cause the proprietor again to give up the idea of an immediate advance. Thus, although very anxious to stiffen the terms on which his lands were granted, he was repeatedly induced to abandon the plan by the advice of his own officers, who lived in the colony and were acquainted with conditions there.

Persons who were willing to take up grants of back lands along the disputed borders obtained terms much more liberal than were granted to the patentees of land more desirably located. It is impossible to say just when this policy was inaugurated. In 1697 Governor Nicholson, writing to the Board of Trade, advised that the lands around the head of the bay be peopled as the first step toward the settlement of the boundary question. 10 A similar desire to take possession of the lands in dispute between Lord Baltimore and the Penns may have given rise to the policy of cheapening the back lands, for it is of this same disputed country that Philemon Lloyd was speaking when, in 1722, he wrote, " Now, th*. we are about Lycencing our People, to make Remote Settlem ts , we must likewise use the Proper Measures to protect them." 11 Though these words of Lloyd suggest that the policy of encouraging border settlements may have been springing up in 1722, there is nothing to prove that special rates were offered for the border lands before 1732. By that time the tide of German and other immigration was streaming from Pennsylvania across Maryland into the Valley of Virginia, and it is possible that the plan was partly intended to induce some of these people to settle in Maryland.

At all events, it was proclaimed in 1732 that any person

9 Calvert Papers, No. 2, pp. 241-42.

10 Calendar of State Papers, Colonial Series, America and West Indies, 1696-1697, p. 422.

having a family, who would actually settle on any of the back lands of the north and west boundary between the Potomac and the Susquehanna river, might have two hundred acres in fee without payment of any part of the forty shillings per hundred acres caution money, the quit-rent at the rate of four shillings sterling per hundred acres to begin three years after settlement. Unmarried persons might have one hundred acres on the same terms. 12 By the instructions to Edmund Jennings in the next year provision was made for the continuance of this policy by permitting the governor and the judge of the land office to grant lands on the frontiers or borders at whatever rates seemed to them proper. 13 These favors were not confined to the boundary and western lands, however, for we find that many settlers seized an opportunity to take up land on the borders of Somerset and Worcester counties, with an indulgence of six months in which to pay the caution money. The judges of the land office spoke so favorably of this scheme that the proprietor empowered Governor Ogle to extend it to the rest of the Eastern Shore. 14 It was later found advisable to appoint separate officers to carry to the frontiers the facilities for taking up lands without coming to Annapolis. 15 Land office papers show special accountings by these men for lands disposed of below the regular rates. 16 This policy contrasts with the proprietor's tendency toward increasing his demands ; but by enabling settlers to occupy back lands and make one or more crops before being called on to pay any charges, it must have aided greatly in the settlement of the frontier, and ultimately must have increased the proprietary income.

In 1 68 1 and 1684 the proprietor organized an office to manage the sale of his lands. Though the system was wrecked during the troubles of the royal period, the idea was retained, and after the restoration a new organization

"Archives, vol. xxviii, pp. 25-26; Kilty, p. 230.

13 Land Office, Warrants, Liber EE, p. 306; Kilty, p. 232.

"Calvert Papers, MS., Nos. 921 and 924.

was set up. In 1715 Philemon Lloyd was commissioned as deputy secretary by Thomas Beake and Charles Lowe, who at that time were jointly secretaries. By virtue of this commission Lloyd assumed the title of " judge of the land office," and appointed Edward Griffith to be register and keeper of the land records. Lloyd was formally commissioned by the proprietor four years later. He was succeeded by Edmund Jennings in 1732, Levin Gale in 1738, and Philip Thomas in 1744. In 1764 two judges were appointed, and the office continued to be double from that time to the Revolution. By their commissions the judges of the land office were to grant warrants for taking up lands, to hear such cases as might arise in connection with this business, " and to decide them according to right reason and good conscience" and the several instructions sent them by the proprietor. 17 That is, they were to take entire charge of the issue of land patents, and to hear and decide all disputes that should arise in the course of these transactions. The instructions show, however, that the land office was always under close scrutiny by the proprietor, and that on important matters the judges were often required to have the advice and consent of the governor and the agent. 18

Under the judges of the land office the chief officials were the surveyor generals and the examiner general. The surveyor general was an officer of old standing; before the close of the seventeenth century it had become customary to appoint a surveyor general for each shore. After the restoration of the province in 171 5, however, the person who held the governorship was always commissioned surveyor general of the Western Shore. 19 About the only duties of these officers were the appointment of a deputy surveyor in each county and the transmission of instructions and warrants to and from these deputies. After the appointment of the examiner general the surveyor general even ceased to see the warrants returned by the deputies.

18 See instructions to Jennings, in Kilty, p. 232. "Archives, vol. xiv, p. 557.

In 1722 John Gresham was appointed "examiner general of all plats and surveys made by the several surveyors of each county." 20 It is probable that his and his successors' duties were to see that the surveys returned by the deputy surveyors were in due form, to make certain that the amounts included were correct, to see that the land lay in a compact body and was not strung out so as to include none but good land, and to take care that the lines coincided as nearly as possible with the lines of former grants so that there should be no small parcels of ungranted lands left interspersed among the granted lands. These duties were very badly carried out, — probably, Kilty thinks, because of a conflict of powers between the examiner general and the surveyor general in the control of the deputy surveyors. 21

In order to take up lands through the land office the applicant came first to the proprietor's agent and paid the purchase price 22 for the amount of land required. The receipt for this was an order to the judges of the land office for a common warrant for the specified number of acres. The warrant, when made out by the clerk or register of the land office and signed and sealed by the judges, was directed to the surveyor general of the proper shore, and theoretically was delivered by him to the deputy surveyor of the county in which the patentees desired the land to be located. In practice, however, the patentee himself probably took the warrant to the deputy surveyor. 23 The deputy surveyor then surveyed the land in whatever part of the county the patentee desired, and having done so, returned to the examiner general the warrant, with a certificate describing the situation and bounds of the land. When satisfied as to the correctness of the certificate, the examiner affixed his endorsement of approval and sent it again to the land office,

20 Kilty, p. 295 ; Archives, vol. xxv, p. 346.

21 Kilty, pp. 271-72; Archives, vol. vi, p. 405.

22 This was £2 sterling per hundred acres from 1717 to 1738 and £5 sterling per hundred acres from that time until the Revolution.

23 Such was the case with a warrant mentioned in the Lower House Journal, August 5, 1732. The sale of warrants also shows that the patentees must have had possession of them.

so that a patent might be drawn up. When this patent was sealed by the chancellor, it might be taken out by the patentee whenever called for, and it constituted a title to the land described. If, however, the land to be taken up had been cultivated by some one who had no right to it, or if it was contiguous to land already held by the applicant, the procedure had to be varied so as to permit the officers to collect an extra payment to cover the value of any improvements there might happen to be. In this case the applicant came at once to the judges of the land office, and petitioned for a special warrant to survey certain specified land or for a warrant to resurvey his own land with leave to include the contiguous tract. This warrant then followed the same channels as the common warrant, with the exception that the deputy surveyor returned a full description of the land and its improvements, from which the judges of the land office placed a valuation on the property, and that the patent issued only after the patentee had settled with the agent for the regular purchase price and any additional sum that might have been demanded for the improvements. 24 Governor Sharpe wrote that he could suggest no improvements in this procedure, and he tells us that it was generally recognized as the most regular and unexceptionable scheme of land-granting in all North America. 25

Though the grant was not complete until the patent issued, yet the warrant was salable at any stage of its progress. Moreover, the applicant might even divide his warrant and sell it off in parcels, so that on the one warrant several patents would issue granting parts of the land to various

24 This scheme was abused by persons who secured warrants and permitted them to go as far as the return of the certificate, but did not take out the patent. By this means the land was held, but neither purchase price nor quit-rents were paid. In 1730 it was proclaimed that after the expiration of two years all lands held on such certificates longer than two years would be considered again open to warrant and survey. On August 13, 1732, this threat was proclaimed to be in effect, and several later warrants show that it was not idle.

25 Archives, vol. vi, pp. 403-5 ; Case of Lord Baltimore, 1733, among uncatalogued state papers in the Maryland Historical Society.

persons. In 1712 Charles Carroll, while agent in control of land affairs, was instructed not to permit this petty assignment of warrants; but the practice was never stopped. 26 Throughout the period persons frequently took out warrants without any intention of taking up the land, but merely for the purpose of selling the warrant either as a whole or in parcels.

Notwithstanding the fact that the land office was open to all comers, the warrant had a monetary value because of the caution money and the enormous fees which had to be paid before obtaining it. Each official mentioned above and many deputies and subordinates who are not mentioned were paid entirely by the fees of their offices, so that every possible service in preparing and executing the papers demanded a separate reward. Since the land was looked upon as the private property of Lord Baltimore and the land office was regarded as his personal affair, these charges were left untouched by the wholesale reductions in fees made by the legislature. Only now and then did the Lower House show a tendency to find fault with the costs of the land office. 27 When the tobacco inspection bill was under consideration in 1747, the legislature was about to reduce the land office fees along with all others; but a reminder of the private nature of land affairs was sufficient to cause them to leave those charges as before. 28 Thus it happened that in the later colonial period the fees of the land office were much higher than those in any other branch of the government, and constituted a severe burden on the settler. In 1764 Daniel

28 Kilty, p. 276; see also numerous assignments among the land warrants.

27 Upper House Journal, October 31, 1724.

28 "When the Inspection Law first took place & the Assembly were for applying their pruning Knife to the Fees of the Land-office etc., they were told, that this office was peculiarly his Lordship's; that, as he might demand what he pleased for his Lands, so might he regulate these Fees, as he thought fit; that it was nothing to the People^ it was not a publick office to which They were obliged to apply, it being in their option whether They wou'd take up Lands, or not; that the Fees were to be consider' d as part of the Terms of the Purchase, w ch my Lord, had a right to fix" (Dulany to Calvert, in Calvert Papers, No. 2, p. 242).

Dulany wrote to Secretary Calvert, " Petitions, Draughts of petitions, orders, Warrants, Renewments, Recordings again, Examinings, Patents, Recordings again, Seals, to say nothing of Perquisites, contingent Hearings, & Lawyers fees, are very expensive in Maryland," He further estimated "that the Fees charged by the Judges or Registers of the Land-office, Surveyors, Examiner, Clerks, Chancellor, amount to an annual sum of at least, by the most moderate Computation, Half a Million of Tobacco/' 29

True to this policy of non-interference with the proprietor's personal affairs, the Lower House during the period under consideration never made a serious effort to meddle with the land business; but mutterings of discontent were frequently heard. There seems to have been woeful ignorance of land matters both in England and in America, 30 as the only documents relating to them were in private letters and books of instructions. In 1729, therefore, it was resolved by the Lower House to be a grievance that the terms on which land was granted were not made public, and it was ordered that the committee which was then transcribing the records should collect these conditions in one book. 31 In the same year the judicial powers of the judge of the land office were taken into consideration ; and though the house showed discontent that such wide jurisdiction should be exercised by one not responsible to the legislature, yet the matter was passed over without action. 32 In 1732 the Lower House undertook an extended investigation of the method of reserving lands on warrants without issuing patents. The committee appointed to look into the matter found that several warrants issued for amounts of land varying from ten to ten thousand acres each had been located in enormous tracts which were not definitely fixed, thus tying up all other warrants for land in those territories until the surveys should be made. In this way three or four men held

80 Lower House Journal, August 4, 1729.

31 Ibid.

options on all vacant lands on the Potomac, between the Monocacy and the Susquehanna, and back of the Eastern Shore settlements from the Pennsylvania line to Dorchester County. 33 Although these abuses were causing prospective settlers to pass on to Pennsylvania and Virginia, yet the matter was held over to the next session and nothing was done. 34 Probably mere exposure of the abuse was sufficient to bring it to an end.

On one point the assembly did interfere in a small way with land affairs. In the erection of towns the act granting the charter sometimes made special provisions regarding town lots, fixing the prices at which they might be purchased, interfering with the escheat, and even abolishing the quit-rent. Acts of this sort led to controversies between the two houses of assembly, and one act for Princess Anne Town even received the proprietary dissent. 35 It was not very important for the legislature to control land affairs, because in the patenting of lands the interests of the proprietor and of the people were not very divergent. Both were benefitted by getting the lands taken up and settled, and difficulties arose chiefly through the selfishness of a ring of officeholders and grantees who disregarded the rights of proprietor and people alike.

One of the greatest frauds against the proprietor was in the matter of surplus lands. The ignorance, and often the knavery, of deputy surveyors caused them in many cases to include within the lines run much more land than the warrant called for. It was very easy for a surveyor to satisfy his conscience by the argument that a little land more or less cut out of the forest would be a matter of indifference to Lord Baltimore, who still had thousands of acres going to waste. It would, therefore, be folly to take any

88 The same object was accomplished in a smaller way by failing to mark the boundary tree and showing different lines to persons who contemplated patenting adjoining land; thus land was held open on each side of the true grant (Chancery Record, December 26, 1752, Liber BT No. 1, p. 176. Lordship v. Spalding).

"Lower House Journal, August 5, 1732.

great trouble in measuring accurate lines through difficult places, to refuse to oblige a friend, or even to reject a tempting bribe. Under these conditions it was to be expected that the grants would show great inaccuracies of acreage. Two, three, five, and even ten times as much land was sometimes included in the survey as was called for in the grant. 86 The excess was generally called surplusage.

The resumption of these surplus lands by the proprietor was an undertaking of considerable difficulty. In the first place, the surplus had to be discovered, and the owner himself was probably the only one who knew of its existence. It was very difficult, therefore, for the proprietary authorities to proceed of their own accord. It was also claimed that the grantees had nothing to do with the surveying, and that if there was any mistake, it was made by the grantor's own agent and the proprietor should be the loser. Moreover, the legality of the proprietor's claim was questioned. The patents were always for lands within certain bounds containing a certain number of acres "more or less," and the holders of surplusage insisted that this phrase precluded all claims for land above the specific amount. During the last half of the seventeenth century the doctrine was worked out that these words covered not over ten per cent, one way or the other, 37 but it was impossible to get any such rule accepted by the people.

In the early period of the proprietary government, probably through the activity of the officials, many persons were brought to resurvey their land and take up the surplus ; but this ceased when the proprietor's grip was loosened during the royal period, 1689 to 171 5. 38 The legal disputes at this time caused Lord Baltimore to submit the case to Sir Edward Northey, one of the crown attorneys, who returned an opinion unfavorable to his client. 39 With this additional handicap, nothing could be accomplished under the govern-

36 Case of Lord Baltimore.

ment as it then existed; and though the claims were not abated, all active support of them was suspended.

On the restoration of the province, however, it was inevitable that the matter should be fought out. to a conclusion. We shall see reasons for suspecting that an act for maintaining boundaries, passed in 1718, was a veiled attack on this claim. 40 But the proprietor's victory on this occasion did not embolden him immediately to take any aggressive action, and not until 1733 was there any decided move in the matter. Among the instructions to Edmund Jennings, judge of the land office, in that year was one commanding him to inform the attorney-general of any surplusage that might come to his attention, in order that proceedings might be instituted to make void the patent. In case of annulment of the patent, Jennings was to issue a new one to the patentee for the same number of acres that the old one had called for, and to regrant the surplusage to any one who should apply, charging for caution money whatever seemed proper to the chancellor (governor) and the agent, and reserving a quit-rent of four shillings sterling for every hundred acres. 41 On June 14, 1733, the very day after the dating of these instructions, a proclamation was issued calling attention to the fact that in spite of repeated warnings many persons, depending on the clause " more or less," had neglected to take up their surplusage. Notice was given that all who failed to take up such surplusage within two years should be proceeded against by law to vacate their grants as fradulently gained. The proclamation further threatened that no person who allowed the time to elapse should ever obtain a grant for such surplus ; any one discovering it should have a preemption on the land and two years' rent free. 42

This was a bold attempt, and it created a stir among landholders. Sir Edward Northey's opinion that surplusage was not recoverable by the proprietor was much made use

41 Land Office, Warrants, Liber EE, p. 308; Kilty, p. 233. ^Archives, vol. xxviii, p. 44; Kilty, p. 200.

of among the people to assure themselves of the impossibility of that procedure. Consequently, on the advice of the governor, it was decided that the case as stated to Northey was unfair to the proprietor, 43 and it was again presented to a crown lawyer, this time to Thomas Lutwyehe. Again, however, the decision was unfavorable; 44 but in spite of the lawyers' opinions the proprietor went on to execute his threat. On January 12, 1735, 45 there was issued the first warrant to a discoverer of surplusage, giving the right to resurvey the lands of another, as had been promised in the proclamation ; and such warrants continued to be issued for several years, the last being dated July 12, 1738. They created much confusion among the holders of surplus lands, and caused an outcry all over the province. 46 But the proprietary authorities braved the storm, and the attorney-general filed several cases in chancery for the purpose of vacating grants on the plea that they contained surplus. This seems to have increased the opposition, and in the legislature of 1739 it was reported as a grievance that the lord proprietor had issued these proclamations of pernicious consequence to the peace and safety of the people, tending to raise law suits and dispossess families of long tenure. It was also considered a grievance that the attorney-general had filed his suits in chancery "to the subver-