Deeds normally locate the land tract by some legal description with a survey. The thirty states where the federal government granted land each use the federal township and range system and include a special subcategory called private land claims. Before discussing them, however, this chapter will describe the remaining twenty states, called state-land states, which granted their own lands and have various surveying systems.
The twenty state-land states are the thirteen original states from New Hampshire to Georgia, plus Maine, Vermont, West Virginia, Kentucky, Tennessee, Texas, and Hawaii. For the last two, consult the 'Summary of State Land Records' at the end of this chapter. The remaining eighteen can be divided between the six New England states, which used the New England town system, the transitional state of New York, and the remaining states from Pennsylvania and New Jersey southward, which used the Southern system of metes and bounds.
Southern Land Grants
The 'tomahawk' grant is part of American folklore. The buckskin-clad squatter cut blazes on a perimeter of trees that surrounded his newly picked tract of wilderness, and then off he went to a land office to get a deed. He entered his claim (the petition) and got official authorization (a warrant) to have the tract surveyed to produce a legal description (the plat) so that the government could grant title to that piece of land (the first-title deed, usually called a grant or patent).
In the absence of a surveyed grid of meridians, baselines, townships, and ranges by which the land can be legally described, the description must use local features, usually called 'metes and bounds,' which requires the 'measuring' and 'naming' of boundary features. The distances in patents and deeds were usually in poles, rods, or perches, all sixteen and a half feet.
Here is part of a simple description: 'Starting at the ash tree in the split rock, then 139 poles to where the spring branch enters Crooked Creek, then up said creek its meanders to a three-notch oak, then. . . .' A surveyed compass course read: 'Starting at the ash tree in the split rock, then North 41 degrees East 139 poles to where the spring branch enters Crooked Creek, then up said creek its meanders South 14 poles, South 3 degrees West 25 poles, South 9 degrees East 13 poles to a three-notch oak. . . .'
Strictly speaking, because they used compass bearings, nearly all southern tracts were not in metes and bounds. A more correct term is the 'indiscriminate' survey, meaning that the survey was not part of any larger survey grid. This chapter, however, will employ the common composite term of 'indiscriminate metes and bounds.' Since the natural or man-made features of the description tended to disappear over the years, the property owner, in the company of local officials, neighbors, and sometimes a surveyor, might retrace the property bounds and mark again from memory or from a new survey those points that were disappearing or lost. This walking and remarking of the bounds was called 'processioning.'<ref>Winslow, 'Land Records,' 227'28.</ref>
Unlike in New England, lands in the Southern system were usually allotted directly to individuals. In New York, a transition zone, large grants were often made to wealthy individuals who subdivided and sold the grants in small parcels. In Pennsylvania, New Jersey, and the colonies to the south, the allotted lands were usually farm-size tracts that went directly to individuals. There were some very large grants in the southern colonies, especially Virginia. Two of the largest were 92,000 acres to Benjamin Borden and 118,000 acres to William Beverley, both in 1739 in the upper Shenandoah Valley, and both part of the total 539,000 acres granted by 1740 to eight individuals or partnerships.<ref>Robert D. Mitchell, Commercialism and Frontier: Perspectives on the Early Shenandoah Valley (Charlottesville: University Press of Virginia, 1977), 31'33.</ref>
Land offices handled the paperwork of petitioning and obtaining the individual grants. It is extraordinary that in the colonies from Pennsylvania to Georgia and their offspring of West Virginia, Kentucky, and Tennessee, no land offices were destroyed in a major fire. In the Civil War, the state capitals of Virginia and South Carolina were burned, yet the land office records survived. Nearly every one of the early states south of Pennsylvania still has a land office either as a distinct section of the state archive or as a division of an active state office.
The authority granting colonial lands was not always the government. There were three variations: (1) The English monarch controlled the government and granted the land through the governor. Examples are New York after 1689, South Carolina after 1729, and Georgia after 1754. (2) The monarch controlled the government but gave a private citizen or citizens (proprietors) the right to grant the land; examples are the Northern Neck Proprietary of Lord Fairfax in Virginia and the Granville District of Earl Granville in North Carolina. Or (3) the English monarch allowed a private citizen or citizens to control the government and grant the land, as in Pennsylvania under the Penns and in Georgia under the trustees, 1733 to 1754. Where the proprietors were distinct from government, there will be land office records distinct from government records, as in New Jersey, Virginia, and North Carolina, though these records may later have been added to the government archives, as in Virginia and North Carolina but not New Jersey.
There were several ways to acquire first title to lands, but usually the four steps of petition, warrant, survey/plat, and grant/patent were followed. (Patent and grant sometimes have different meanings.<ref>Margaret M. Hofmann, writing in chapter 31, 'Land Grants,' in North Carolina Research Genealogy: 'The terms land grant and land patent often are used interchangeably to denote the document transferring ownership of vacant land from a granting authority to a private person. The technical term for the document, however, is patent and the government action, a grant of patent' (313).</ref> In this chapter, however, they are used interchangeably to mean the first-title deed.)
The petition is a request to take up land. The petitioner may have gone before the appropriate officials'the colony's council or the land office clerk'and presented a satisfactory reason for getting land, such as paying the purchase price, being promised land for military service, bringing an immigrant into the colony and thus becoming eligible for the headright land bounty (especially used in the South), or being able to produce a government order for a specified amount of land.
The warrant certifies the right to a specific acreage and authorizes an official surveyor to survey it, assuming no prior and conflicting claims.
The plat, sometimes called a survey, is the surveyor's drawing of the legal description so that the land is identifiable'his certification that everything is in order so far as the warrant, approved acreage, and legal description are concerned.
The patent/grant is the government's or proprietor's passing of title to the patentee/grantee. This is the first-title deed and the true beginning of private ownership of the land.
The government or proprietor usually entered a copy of the patent in a bound volume as a permanent, official record. The plats were sometimes recorded in volumes, and the surveyor's loose copy was sometimes also kept. The North Carolina Land Office, for example, has many loose surveys. Some land offices kept permanent warrant records; some did not. The petition was rarely recorded because the warrant was the formal statement of an authorized petition, though petitioner information is occasionally found in council minutes'especially for colonial headrights.
Bringing oneself or another person to the colonies entitled the importer to a 'headright' of land at specific historical periods. Virginia granted fifty acres per importation, but sailors abused it by claiming fifty acres every time they sailed to Virginia, then sold their claims. In the case of indentured servants, the fifty acres went to the person who paid the servant's passage. These headrights could be bought and sold, so the person claiming two hundred acres for importing four persons was not necessarily the person who actually paid the passage costs. Thus, if Mark Randle claimed 450 acres for transporting nine persons, including Mary Randle, it is possible Mark merely bought headrights to nine persons and never saw or knew Mary. It is also possible that Mary paid her own passage and sold her headright rather than claim the land. Furthermore, the nine persons need not have come on the same ship nor arrived in the same year.<ref>Headrights are well-discussed in James W. Petty, 'Seventeenth Century Virginia County Court Headright Certificates,' Virginia Genealogist 45 (2001): 3'22, 112'22; and James W. Petty, 'William Gany and Thomas Savage's Headright,' Magazine of Virginia Genealogy 42, no. 2 (May 2004): 91'96.</ref> New England did not have this system of headrights as a rule, though granting free land to town settlers was a form of reward for immigration. The Northern proprietors rarely gave headrights'the Calverts did for a time'because they sold land for a profit. The Crown tried at times to make the colonies grant lands to indentured servants at the end of their service, but this was uncommon. Despite these caveats, the headright lists are valuable as the major or only immigration record for most colonial immigrants from the British Isles to the South.
The patent and related documents rarely give kinship information, so their great value is in locating the grantee in a specific time and place. See Creating a Plat.
New England Towns
While the Southern and New England land systems shared most of the same terminology, they differed fundamentally in that New England grants usually went to a group of men called town proprietors. Upon receipt of a block of land, these town proprietors surveyed parts of their large tract, apportioned out village home sites and field strips for themselves and others, and oversaw the subsequent disbursements of 'divisions' of land until all the grant had passed into private ownership except for the town commons and local government lots. Thus, whereas the Southern grants to individuals created a rural landscape of scattered farms with very few towns, the New England grants created a society of villages.
The origin of the New England town extends back to the first settlers of Plymouth and Massachusetts Bay, where the Pilgrims and Puritans strove to establish a congregation-community uniting church and civil government into God's commonwealth. As new lands were needed to feed the growing population, groups of prospective settlers would petition a colony's government for land to establish a new town, praying to be constituted the official proprietors to distribute the land within the town. The town was a geographical unit extending beyond the village to some agreed boundaries with the neighboring towns. The early towns were irregularly shaped; the later ones tended to run six miles by six miles in size. Thus, the town bounds had to be established so that a formal grant could be issued to the proprietors. The religious fervor of Puritanism later declined, but the town form of the congregation-community survived and was carried throughout most of New England and even into eastern New York and northeastern New Jersey. There was, however, a pressing tendency for people to move out of the village to be nearer their fields, which led to the buying and exchanging of land parcels to consolidate property into farms.
The classic analysis of the origins of the New England town is Sumner Chilton Powell's Puritan Village: The Formation of a New England Town, a book with valuable English local sources on the origins of English immigrants.<ref>Sumner Chilton Powell, Puritan Village: The Formation of a New England Town (1963; reprint, Middletown, Conn.: Wesleyan University Press, 1970).</ref> The literature is accessible through David Grayson Allen's In English Ways: The Movement of Societies and the Transferral of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century.<ref>David Grayson Allen, In English Ways: The Movement of Societies and the Transferral of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill: University of North Carolina Press, 1981).</ref> For colonial land history in New England, see Edward T. Price's 'Dividing the Land: Early American Beginnings of Our Private Property Mosaic,' and Roy Hidemichi Akagi's The Town Proprietors of the New England Colonies: A Study of Their Development, Organization, Activities and Controversies, 1620'1770.<ref>Edward T. Price, 'Dividing the Land: Early American Beginnings of Our Private Property Mosaic,' geography research paper no. 238 (Chicago: University of Chicago Press, 1995); James W. Petty and Roy Hidemichi Akagi, The Town Proprietors of the New England Colonies: A Study of Their Development, Organization, Activities and Controversies, 1620'1770 (1924; reprint, Philadelphia: Press of the University of Pennsylvania, 1963).</ref>
The New England town system has several implications for genealogists, starting with the need to determine which records are on the county level and which are on the town level. Early Massachusetts Bay towns recorded their own deeds until counties were created in 1643. Early towns on eastern Long Island also recorded their own deeds until the Duke of York's New York proprietary required registration in Suffolk County. Connecticut, Rhode Island, and Vermont recorded and still record deeds on the town level. Aside from deeds, the researcher should also check for early proprietor minutes on the town level. More generally, New England research requires that towns be treated as mini-counties. Thus, while counties are not as important as in the South, there are three levels of jurisdiction in New England'state, county, and town.
Features of Town Land Distribution
Some of the technical aspects of the New England land system have been well summarized by genealogist David Stoddard:
- A. Commoners and Non-Commoners . . . The term[s] 'commoner' and 'proprietor' are synonymous. 'Proprietor' simply replaces 'commoner' as the proper legal term.
- Commoners were originally those to whom the General Court [the legislature] had made a grant of land in common for settlement, very often without giving them entire control. They formed a quasi-corporation. The right of a commoner might be conveyed in a land transaction or inherited and one who thus became entitled to a right was not necessarily entitled to vote in the town meetings when township privileges had been conferred upon the inhabitants. On the other hand, because a man was entitled to a vote in the town did not entitle him to a voice in the control of the common lands. . . . The land community and the political community were distinct and separate bodies.
- The town could enter into transactions with the proprietors; and they in turn could make grants to the town. In plantations where the inhabitants were all commoners, the two bodies acted as one and there would be no 'proprietors' records' kept. For instance, Groton, Mass., was settled in 1655, yet there are no proprietors' records until 1713.
- As the population of the towns increased, it became necessary to protect the commoners' rights. Hampton, now in New Hampshire, is a good example: (1) 1641'Persons who were not freemen present at town meetings; (2) 1662'Voted 'that no man be considered an inhabitant, or act in town affairs but he that hath one share at least of commonage, according to the first division'; (3) 1700'Voted that no one should vote unless a freeholder and none to vote to dispose of lands, unless he is a commoner. In towns such as these, the serious researcher will generally find separate proprietors' records either in a separate book or as the initial part of the first town book. . . .
- Two ways existed for the satisfying of claims by non-commoners: (1) Increase the number of commoners; (2) Grant lands to newcomers without accompanying the rights to commonage, either to an individual by name or to all of a given class, such as Barnstable granting 4 acres to every widow.
- B. Division of Common Lands . . . The valuation of a man's estate, made from the tax-list, was the principal basis of division (Haverhill, Ipswich, Dedham, Hartford, many Connecticut River towns, settlements along Long Island Sound).
- C. Restrictions Upon Alienation . . . Great care was taken to preserve the original character of the community and to control its membership. A Connecticut law of 1659 declared no inhabitants shall make sale of house and lands until put forth to the town for approval; an item in Guilford, Connecticut, Town Book refers to no one being able to sell OR purchase unless by consent of the community; Watertown, Massachusetts, in 1638 had a provision 'against selling town lots to forrainers.'
- D. Common Field . . . The proportions of land cultivated in common varied greatly throughout New England; largely based on necessity. Connecticut and Massachusetts laws gave authority to townsmen or selectmen, or, when there were none, to the major part of the freemen.
- Common fields were found in most towns. They were formed: (1) Due to lack of means to fence separately; (2) Due to difficulty of fencing (land along the Connecticut River); (3) Due to convenience. Fences were maintained by each owner according to his share of land enclosed.
- E. Home Lots, Acre Rights, Pitches . . . Home/house lots differed in size in different New England towns, and quite often in the same town; (1) Barnstable, 6 to 12 acres; (2) Haverhill, 5 to 22 acres; (3) Groton, 10 to 20 acres. They were often proportioned as to the 'quality and estate' of the possessor. . . .
Acre rights or lots indicate the share owned by any one person in the common lands. It is entirely different from home/house lots. Value varied greatly. In Billerica a ten-acre lot or right in common land was equivalent to 113 acres of upland or twelve acres of meadow. In Groton there were sixty-acre rights; twenty-acre rights, and so forth. with 755 rights in all. A sixty-acre right would have entitled the owner one complete partition to 3242 acres of common land. Pitches are rights drawn in a division that entitled the drawer to lay out a lot of land in the commons wherever he might choose.<ref>David F. Stoddard, 'Land System of the New England Colonial Colonies,' Connecticut Nutmegger 11 (1979): 556'64. Capitalization standardized.</ref>