>>> Item number 345, dated 93/12/02 12:17:32 -- ALL
Date: Thu, 2 Dec 1993 12:17:32 -0600
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@uxa.ecn.bgu.edu
Subject: Colonial land tenure
I asked my question about colonial urban land tenure during
the height of the great PhD/JD debate *and* the week before Thanksgiving -- poor timing on my part! (Although I did get one response, for which I am grateful.) I also did not express myself very well; let me try again, and if I get the same response this time, I will take the hint!
My land tenure question really has two parts: first, how well did English land tenure practices survive in the colonies, and second, how were those practices modified to allow town establishment?
As to the first question, it's easy to say that everything tended over time to free and easy fee-simple ownership, but that doesn't help those of us caught in the transition. I am working with Maryland property, and have seen both fee farm and fee tail tenures, as well as fee simple. The proprietor of Maryland (initially and technically, at least) had more control over Md. property than the crown did in England -- the proprietor could, for example, allow the subinfeudation of land. Does it matter, from the standpoint of either legal or settlement history?
(Which raises another question: did a county clerk who wrote a fee-farm lease know what he was doing, or was he just trying to write a lease using a convenient though archaic form? I tend to think that most county clerks knew enough of what they were doing to prepare solid titles capable of withstanding litigation. On the other hand, I have *also* seen a deed that conveyed "river shore and river shores" rather than "reversion and reversions." Maybe someone was dictating that one from another room.)
As to the second question, Chesapeake town legislation seems to have been designed simply to create fee-simple lots out of large fee-God-knows-what tracts, but again, I have seen entailed town lots. This is important beyond just the study of land tenure because it may provide an idea of what Chesapeake legislators had in mind when they created towns, which contributes to our understanding of the image and reality of Chesapeake "urban" settlement.
So: can anyone contribute suggestions or recommend reading on:
-continuity in the transmission of English land tenure to the colonies?
-the development of urban land tenure in England/UK, 17th and 18th centuries (especially new towns)?
-the development of urban land tenure in the colonies? (In the Chesapeake and the south, especially)
Thanks again!
Jay Thomas
Geography, U of Md
jt9@umail.umd.edu
>>> Item number 349, dated 93/12/03 17:00:07 -- ALL
Date: Fri, 3 Dec 1993 17:00:07 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Colonial land tenure
Jay Thomas: let me recommend Toby Ditz's excellent study on property and kinship (the latter 3 words appear in the now-forgotten title) in conn. river valley. you might also check david narrett's new book on inheritence in colonial new yawk. these are the closest things i have read to what you are doing, but they both approach land tenure issues not from a town planning standpoint, but on the issues of women (dower) and family relationships.
a small part of the roaring silence is that there is no monolithic colonial law to which you could turn for a definitive answer. Friedman's first chapter in his survey makes this eminantly clear, as does Kermit Hall's.
another part of the silence may be because you are asking questions that have not yet been answered (or even asked). this is especially true, i believe, for the south; most of the colonial work has been done on new england. there are probably some good references in the bibliography of Hoffer's _law and people in colonial america_. you might also check out william cronan's book on land in new england for ideas on how you could approach land as a concept.
the not-very-satisfying answer, then, is that you might well be on your own. it is both a blessing and a curse. --
>>> Item number 355, dated 93/12/07 15:39:24 -- ALL
Date: Tue, 7 Dec 1993 15:39:24 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Colonial Land Tenure
Jay Thomas writes,
> I asked my question about colonial urban land tenure during > the height of the great PhD/JD debate *and* the week before > Thanksgiving -- poor timing on my part! (Although I did get one > response, for which I am grateful.) I also did not express myself very well; > let me try again, and if I get the same response this time, > I will take the hint!
I am afraid I contributed a side issue to that debate. I had intended to respond to your original posting, but did not find the time. I am late in responding to the current one--I've been writing exams and things like that.
> My land tenure question really has two parts: first, how well did > English land tenure practices survive in the colonies, and second, how were > those practices modified to allow town establishment?
As to the first question, it almost certainly differed from colony to colony. One work that you may want to look at is:
AUTHOR Hamilton, Alexander, 1757-1804.
TITLE The law practice of Alexander Hamilton; documents and commentary.
Julius Goebel, Jr., editor. Associate editors: Francis K.
Decker, Jr. [and others]
IMPRINT New York, Published under the auspices of the William Nelson
Cromwell Foundation by Columbia University Press, 1964-1981.
DESCRIPT'N 5 v. facsims., maps, plates, port. 24 cm.
NOTE Editors of v. 3-5: J. Goebel, Jr. and J.H. Smith.
Includes bibliographical references and indexes.
Hamilton did a lot of conveyancing work for his inlaws. There is one wonderful story in this book about an action that was commenced by writ of right and the poor coroner--the sheriff was a party to the suit, as I recall, so the coroner assumed his duties--had to make a return that he couldn't find any knights and so was returning the name of four gentlemen instead.
Hamilton set up what amounted to a feudal tenure system for his Van Rensselaer inlaws, neatly getting around Quia Emptores by using a combination of rent charges and conditional fees. Thus, in order to inherit, the heir of a tenant had to pay what amounted to a relief. I don't recall the details, but there was a lot of litigation in the New York courts, which the Van Rensselaers usually won. But then the tenants went to actual war, and the Van Rensselaers military abilities did not match the legal abilities of Hamiltor.
The trouble with early land holdings is that they did not necessarily produce reported law cases, and yet they will still be part of a modern chain of title. I remember when I was in practice in New York we had to determine who had title to a portion of the Old Albany Post Road that had been abandoned when a new bridge was built. We got a title report from the Title Gurantee and Trust Company, which showed that the title was in the Estate of the last members of one of the old knickerbocker families. Since the Post Road was laid out when New York was still New Amsterdam, the title company based their opinion on their interpretation of the Dutch law that was in force in the Seventeenth or early Eighteenth Century.
Thus I would suggest that you also check with local title companies. Their title plants may well include material on the early tenures.
As to the second question I have a question in return: Why should land tenure practices be modified by the establishment of towns? Townships, town sites, villages, and towns are all created today, without changing tenure practices.
> As to the first question, it's easy to say that everything > tended over time to free and easy fee-simple ownership, but that > doesn't help those of us caught in the transition. I am working > with Maryland property, and have seen both fee farm and fee tail > tenures, as well as fee simple. The proprietor of Maryland > (initially and technically, at least) had more control over Md. > property than the crown did in England -- the proprietor could, for > example, allow the subinfeudation of land. Does it matter, from > the standpoint of either legal or settlement history?
Of course it matters, if not from the point of view of legal history, at least from the point of view of a modern conveyancer in Maryland. (I already confessed to having taken part in the JD vs. PhD wars--I only have an LlB myself.) I believe that there is still--or, at least, that there was until recently--some land in Maryland that was held in fee simple upon the service of the delivery to the holder of the seignory of a rose at Midsummer. I believe that it was within the last fifty years that legislation was passed allowing the fee owner to free land held upon a perpetual ground rent from the burden of that service. (But I may be confusing Maryland with Pennsylvania--my recollection of this point is vague.) In any event you should be able to find law review articles in Maryland discussing the effect of subinfeudation and fee tails in Maryland. I remember reading some of them.
I have never understood exactly what sort of tenure was involved in fee farm--I would be very interested in seeing one of the conveyances in fee farm form, or however that should be phrased.
>
> (Which raises another question: did a county clerk who wrote
> a fee-farm lease know what he was doing, or was he just trying to
> write a lease using a convenient though archaic form? I tend to
> think that most county clerks knew enough of what they were doing
> to prepare solid titles capable of withstanding litigation. On the
> other hand, I have *also* seen a deed that conveyed "river shore
> and river shores" rather than "reversion and reversions." Maybe
> someone was dictating that one from another room.) >
I am very interested by your suggestion that it was the county clerk who did the conveyancing. I am quite sure that that would not have been the case in New York. Did the county clerks in Maryland act like civil law notaries?
If language is archaic, but a form still does what it always did, is it fair to call the form archaic? When one deals with performatives, rather than statements, the form is what counts, so how can it be archaic if it still works? (But I again confess my lack of understanding of fee farm tenure.)
I once was at a small real estate closing in Valley Forge Pennsylvania--or maybe it was King of Prussia. When I looked over the deed, I noticed that the habendum clause made no sense whatsoever, at least not as it was punctuated. But then I checked the local printed form of deed, and it had the same clause. And then I checked several of the earlier deeds in the chain of title and they all had the same 'defect'. I suspect that the title company might not have insured the title if I had insisted on changing the habendum clause into comprehensible English.
Matters like that don't turn up in the law reports, but they certainly are part of the law of real property. When dealing with real estate one has to know the local custom and traditions. (I remember being told that in one county up in Maine everyone knew that a particular one of the surveyors who had drawn many of the land descriptions in that county had a link missing from his chain, so his descriptions described a little bit less than they would if they had been drawn by another surveyor.)
> As to the second question, Chesapeake town legislation seems > to have been designed simply to create fee-simple lots out of large >fee-God-knows-what tracts, but again, I have seen entailed town > lots. This is important beyond just the study of land tenure > because it may provide an idea of what Chesapeake legislators had > in mind when they created towns, which contributes to our > understanding of the image and reality of Chesapeake "urban" > settlement.
This sounds very close to modern legislation allowing a land owner to subdivide his land into lots and to file a plat of that subdivision in the county record office.
Often such subdivisions represent aspirations--or a temporary real estate boom--rather than reality. Thus a good bit of Long Island consists of potato fields that have been platted as subdivisions. Nobody knew how to unplat the subdivisions, but their existence raised questions of marketability. So some tried to resolve the problem by registering the land under the New York Torrens Act. (I don't think that that would make the title marketable--Torrenized land is so rare in New York that no one knows how to deal with it; at least that is true in Duchess County.)
> So: can anyone contribute suggestions or recommend reading
> on:
>
> -continuity in the transmission of English land tenure to the
> colonies?
>
>
-the development of urban land tenure in England/UK, 17th and
> 18th centuries (especially new towns)?
>
> -the development of urban land tenure in the colonies? (In
> the Chesapeake and the south, especially)
I would be very interested in seeing any material on these subjects as well.
I hope my remarks may be of some assistance--at least to get a discussion started.
Peter D. Junger
Case Western Reserve University Law School, Cleveland, OH Internet: JUNGER@SAMSARA.LAW.CWRU.Edu -- Bitnet: JUNGER@CWRU
>>> Item number 360, dated 93/12/08 15:57:40 -- ALL
Date: Wed, 8 Dec 1993 15:57:40 -0600 Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@uxa.ecn.bgu.edu Subject: Re: Colonial land tenure
This is a belated reply to the colonial land tenure question, which I just received.
All of which is to say that this is a typical legal history problem: it involves questions of law, procedure, and historical variation. --David Konig, Washington U in St. Louis / dtkonig@artsci.wustl.edu