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 Land system of the New England colonies 
 
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THE LAND SYSTE 
 
 OF THE 
 
 NEW ENGLAND COLONIES. 
 
 MELVILLE EGLESTON. 
 
THE LAND SYSTEM 
 
 OF THE 
 
 NEW ENGLAND COLONIES. 
 
 MELVILLE EGLESTO N. 
 
 /s^o. 
 
/I^ /f 75-3 
 
 V 
 
 ORNEl.L 
 
The Land System 
 
 OF THE 
 
 NEW ENGLAND COLONIES. 
 
 The laws of a State are the reflection of the economical and social 
 condition of the people; while their form and spirit indicate the mental 
 and moral status of those by whom the laws are made. They are thus 
 among the most valuable and trustworthy sources of historical in- 
 formation which we possess. Especially is this the case where the 
 people are themselves legislators. Yet the history of American legisla- 
 tion has not received the attentive study which it deserves, and which 
 will surely some day be given to it. I have here subjected to ex- 
 amination a small portion of this interesting field. The close con- 
 nection between the institution of land in any community and its 
 political and social history are now well understood, and the importance 
 of such an investigation as I have here undertaken, will, I think, be 
 recognized, however successful or unsuccessful the writer may be in his 
 treatment of it. 
 
 I have endeavored to trace the origin and early history of our exist- 
 ing land system ; a system than which none has yet been devised 
 better suited to the conditions of any people. A complete presenta- 
 tion of the subject might well contain a fuller account of the laws of 
 alienation and succession ab inkstato than has been given ; but it seemed 
 best for several reasons to consider them separately in another place. 
 Enough has been given, however, for the present purpose, and the land 
 system of New England, however, was mainly determined by the legis- 
 lation and customs here described. 
 
 In explaining the process by which the soil of New England was 
 distributed among the occupants, I. have followed what seemed to be 
 the natural order, stating first the origin of rights in the land, and then 
 describing successively each link in the chain of title, grants from the 
 crowH, grants from the great council, colonial grants, and finally, the 
 division of lands among the members of the land communities. Local 
 ordinances and recognized customs have been treated as important 
 parts of the system. 
 
4 
 
 I.-ORIGINAL SOURCES OF TITLE. 
 
 I. — Right of the Crown. 
 
 In the New England colonies all titles to landed property were 
 derived originally froto an actual or constructive grant of the English 
 Crown. The title of the Crown itself was based upon that union of 
 discovery and possession which, in the opinion of English jurists, could 
 alone give a valid title to a new country. Mere transient discovery 
 indeed amounted to nothing unless followed in a reasonable time by oc- 
 cupation more or less permanent under the sanction of the state. ^ But 
 these, conditions, it was held, had been fulfilled by the discovery of the 
 coasts of America by the Cabots, in the years 1497-8, and the subse- 
 quent visit of Sir Humphrey Gilbert in 1583, when he formally took 
 possession of the country under letters patent. Long as was the 
 interval, it was in the eyes of England riot too long, and that nation 
 always based and maintained her claims to possessions in America, 
 upon the grounds here given. ^ 
 
 The rights of the crown were not merely those of the head of a 
 state, or of the feudal lord paramount. The king was the immediate 
 owner and lord of the soil, and exercised unlimited power in the dis- 
 position of it. He made grants which could not be made under 
 English law, as, for instance, when he authorized the proprietaries of 
 Maryland and other colonies to erect manors, "anything in the Statute 
 of ' Quia implores ' to the contrary notwithstanding."^ He claimed also 
 the right to establish local governments, and conferred powers of legis- 
 lation upon his grantees, whether these were colonists in America, or 
 groups of courtiers in England. The rights of private ownership and 
 royal prerogative were in him too closely combined to be readily dis- 
 tinguished. 
 
 2. — Right of the Aborigines. 
 
 But although it was the theory of the British Government and of the 
 colonists that the absolute, ultimate title to land was in the sovereign, 
 
 ^ 3 Kent. CcTim., 380 n. 2 //./<:/., and Thurlowe, State Papers. 3 Hazard, State Papers, I., 
 160, 327, 4i2, &c. 
 
that title Was subject to a right of occupancy in the Indians. This 
 natural right of the natives was entitled to protection ; but the sole 
 right of acquiring it by purchase or by actual conquest was in the 
 Crown or its grantees, and the natives had no right to dispose of it to 
 any other, i 
 
 The colonial governments uniformly acted upon these principles, 
 so that although individuals were disposed to deal less hberally 
 with the natives, and even such a man as Cotton Mather deemed 
 it unnecessary to recognize in any way their title, ^ the rights which the 
 theory of the government left to them received, as a rule, the pro- 
 tection required. 
 
 In Maine, owing to peculiar circumstances, the title conveyed by 
 Indian deeds assumed especial importance, and a high degree of 
 authority was accorded to such evidences of property. At about the 
 time of the English Revolution, the colony of Massachusetts was 
 striving vigorously to extend its boundaries, and, in order to weaken 
 its enemy Gorges and render him unpopular, the colonial government 
 supported the theory that the native right must be superior to that 
 conferred by such an extensive patent as his. Purchases from the 
 Indians which in consequence became frequent and of great extent, 
 were regularly upheld by the local courts. ^ When Massachusetts in 
 1716 appointed commissioners to record claims to lands, these Indian 
 deeds were revived with other claims, and thus gained a standing as 
 legal titles. The government, however, became alarmed at their 
 extent, and in 1731 passed an act forbidding all purchases from the 
 natives without license of the legislature, and declaring all deeds taken 
 without such license to be null and void. * 
 
 This enactment was merely an extension to new territory of a 
 policy already generally adopted in New England. Massachusetts 
 herself had in 1633 passed a restrictive law applying to the territory 
 then held by her.' Plymouth had done the same in 1643,' and 
 Connecticut made similar regulations at an early date. '' 
 
 ' 3 Kent., 379, &c. " Magn., I., 72. ■ Sullivan. Land Titles, 43. 4 Acts and Res. of 
 Mass. Bay. 5 Mass. Rec, I., 112. " Plym. Rec. Winslow's letter in Hazard, II., 531. 
 7 Conn. Col. Rec, I., 214, 364, 402. 
 
That these laws were enforced is abundantly shown by the constant 
 formal authorization of purchases, ' as well as by the recorded cases of 
 refusal to confirm purchases made without authority. ^ A grant of 
 land, indeed, carried with it the right to extinguish the Indian title as 
 of course, and no special authorization was needed. Yet even then, 
 if the conditions of the grant were not fulfilled, the government claimed 
 the acquired title, if the planters had purchased. ^ 
 
 Not only was the necessity of acquiring the Indian title uniformly 
 recognized, but in some cases, especially when beyond the boundaries 
 of an acknowledged local government, the colonists would seek no 
 other titles, contenting themselves with that derived from the natives, 
 without confirmation or authority from any other source. Roger 
 Williams Sven took the ground that the planters could have no just 
 title except what they derived from the Indians, in consequence of 
 which heresy he was summoned before the court, and was also con- 
 demned by a council of ministers. * But in the settlement of Rhode 
 Island his principles were strictly followed, and it is possible that no 
 grant would have been sought there, except at the hands of the actual 
 possessors of the soil, had not some formal authorization of their acts of 
 self-government been found essential to safety. Parliamentary and 
 royal grants were then obtained. 
 
 Connecticut was settled, and its government organized without any 
 charter or grant, and the lands were purchased- by the planters from the 
 Indians as they had need of them. Mr. Trumbull says " the settlers 
 of the river towns had not — before or after the agreement with Mr. 
 Fenwick — any right of jurisdiction, except such as grew out of occupa- 
 tion, purchase from the native proprietors, or (in the case of the 
 Pequot territory) of conquest. " Their policy seems to have been to 
 dispose as quietly and as cheaply as possible of the claims of such as 
 challenged their title, into the exact nature of which they were not 
 disposed to provoke too close an investigation. ^ But the General Court 
 
 1 Mass. Rec, II., 8=, III., 225, &c.; Conn. Rec, I., 151, 418, 420, &c. ^ Mass. Rec, IV., 
 427, 430, 440, &c. 3 Mass. Rec, IV., Pt. II., 529. J Arnold, Hist, of R. I., I., 279. 'Conn, 
 Rec, I., p. 569. 
 
as early as 1638, was given the sole power to "dispose of lands undis- 
 posed of, " and regularly exercised the power. 1 
 
 The titles to land in Nantucket and Martha's ^^ine\'ard originally 
 were derived merely from Indian deeds, although the islands were 
 soon placed under the jurisdiction of Massachusetts by the Congress of 
 the United Colonies, and in 1692 were regularly incorporated by royal 
 charter into the province of Massachusetts Bay. ^ JTitles from the 
 crown were also acquired through the Earl of Stirling. 
 
 A careful examination of the records will satisfy a candid en- 
 quirer that there is no ground for materially modifying the 
 statement of Chancellor Kent, that " the people of all the New 
 England Colonies settled their towns upon the basis of a title procured 
 by fair purchase from the Indians with the consent of government, 
 except in the few instances of lands acquired by conquest after a war 
 deemed to have been just and necessary. "^ Even where the title had 
 been regularly acquired by purchase, the General Court of Massa- 
 chusetts spoke of the native right as one "which can not in strict 
 justice be utterly extinct," and refused to dispossess the Indians, 
 although it gave compensation in other lands to the town interested. * 
 
 II.-ROYAL GRANTS. 
 
 No fruitful attempts at colonization were made under the letters 
 patent granted to Gilbert, and after his death, to his half-brother 
 Raleigh. But the zealous persistence of the latter, and the remarkable 
 success of English merchants engaged in trading to distant lands — 
 especially in connection with the operations of the famous Muscovy 
 Company— -prepared the minds of men for an enterprise in another 
 quarter, which promised great results, and indeed secured them, 
 although not in the precise way expected. Gosnold's expedition in 
 1602, under the auspices of the Earl of Southampton, of which glow- 
 
 ^ Conn. Rec, p. 25, &c. * Sullivan, 38, 55. " 3 Kent Comm., 391. * Mass. Rec, IV., 
 
 Pt. II., p. 49. 
 
ing reports were made by him and his companions on their return, was 
 the immediate fore runner of a rnovement which resulted in the pro- 
 curement of a charter, and the subsequent colonization of the coasts of 
 America under the encouragement of its provisions. ^ 
 
 The Charter of 1606.^ — The letters patent issued in 1606 to Sir 
 Thomas Gates and others granted to them the territories of America 
 between the 34th and 45th degrees of north latitude, or from Cape 
 Fear to Halifax, together with all islands within one hundred miles of 
 their shores. The patentees were to divide themselves into two dis- 
 tinct companies, one of which, afterward called the London Company, 
 was to have an exclusive right from 34° to 38° north, while the other, 
 the Western, or Plymouth Company, was to have control between 41° 
 and 45° north. The intermediate space was open to colonization by 
 either. The London Company was dissolved by quo ivarranto in 1624. 
 But it was not until 1635 that the Plymouth Company ceased to exist, 
 and even then the surrender of its charter was voluntary. ^ 
 
 The Charter of 1620. * — Before any successful attempt at settlement 
 had been made by the Plymouth Company it was, with some changes of 
 membership, made a separate body politic and corporate, under the 
 name and style of "7%e Council established at Plymouth in the County 
 of Devon, for the planting, ordering, ruling and governing of New Eng- 
 land in America." ^ The charter of 1620 granted to the new corporation 
 certain territories to be called New England, extending between the 
 40th and 48th degrees of N. latitude, and from sea to sea ; to be held 
 "as of the manor of East Greenwich in free and common socage." It 
 gave also rights of legislation and government ; yet nothing came of 
 any attempts to exercise these rights, for deep hostility to the patent 
 was soon manifested, and from this, together with other causes, 
 the difficulties of the situation became so great that the company 
 in 1635 surrendered its charter to the .King. « It did not, however, do 
 this until after making a number of grants, which from ignorance or 
 carelessness as to previous conveyances and the want of accurate 
 
 1 Graham, Col. Hist, of the U. S., I., 44, &c. 2 The Charter is in Hazard, State Papers, 1. 
 SO. 3 Palfrey, Hist, of New England, I., 81-2, Hazard. 4 Hazard, I., Z03. b Palfrey, Hist, 
 of N. E., I., 192. 6 Graham, Col. Hist. I., 183. 
 
knowledge of the geography of the country were, in the words of 
 SuUivan, "but a course of confusion."' Among these grants, about 
 which there has been so much dispute, were some of importance, from 
 the fact that through these is traced the title to a great part of the soil 
 of New England. These grants will therefore be more particularly 
 described hereafter.' 
 
 Grant to Gorges. — Another royal grant was made in 1639 to Sir 
 Ferdinando Gorges, ^ conveying a tract of land called the Province of 
 Maine, lying between the Piscataqua and the Kennebec, and extending 
 inland one hundred and twenty miles, from which the whole State of 
 which it is a part has taken its name. All necessary powers of govern- 
 ment were included in the grant, and its tenure was in free and common 
 socage. But, this grant was at an early date assailed by settlers, and indi- 
 rectly by the government of Massachusetts Bay, which in order to weaken 
 its enemy, supported the theory that the native right was paramount to 
 such an extensive patent. Titles from the natives were produced and were 
 strongly upheld, and it is said by Sullivan that what was not taken 
 from Gorges' patent by other means, was generally swallowed up by 
 Indian deeds. * 
 
 Eventually, in 1677, the province was sold by the grandson of 
 Gorges to Lt.-Gov. Usher, for the use of the Colony of Massachusetts 
 Bay. 6 
 
 "The Incorporation of Prffuidence Plantations, in the Narraganset Bay 
 in New England," received its charter from the Parliamentary Govern- 
 ment of England in 1644. Its charter from the King was granted in 
 1663.* The grant of lands covered substantially the territory of the 
 present State of Rhode Island, which had already been occupied by 
 settlers under a government established by themselves. 
 
 ' ' The Governor and Company of the English Colony of Connecticut 
 in New England in America," were incorporated by royal charter in 
 1662. ' The territory granted comprised what is now the State of Con- 
 
 1 Land Titles, 36. 2 See page 11, post f ^ seq. 3 Sullivan's Land Titles, 42. i Ibid, i,-^, 
 6 Willis, Hist, of Portland, 239, and Hutchinson. 6 Arnold, History of R. I., I,, 114, 284. 
 
 T Trumbull, Hist, of Conn., I., 259. 
 
10 
 
 necticut, and also a part of New York. Parts of it were already in the 
 hands of settlers belonging to the Connecticut and other plantations. 
 
 The royal province of New Hampshire was constituted in 1680, the 
 chief justices in England having decided that the title and jurisdiction 
 were in the Crown, subject, however, to the vested rights of John 
 Mason in the soil ; a reservation which rendered land titles in that 
 province for many years uncertain. 1 The territory subsequently re- 
 verted to the jurisdiction of Massachusetts, for a short time, but from 
 1692 it remained a separate province.^ It included, as was claimed, 
 the territory now known as Vermont. Grants both to individuals and 
 towns were made by the governments successively in power. 
 
 The country called Sagadahock, lying between the Penobscot and the 
 St. Croix, the possession of which had been long contested by the 
 English and French, was by the Charter of 1692 placed under the 
 jurisdiction of Massachusetts, and that province had authority to grant 
 the lands. But if the King did not consent to a grant within two 
 years after it was made, it became void. By the same charter' the 
 Province of Maine (lying between the Piscataqua and Sagadahock) was 
 incorporated with the Province of Masachusetts Bay. ^ 
 
 The rights to land conveyed by these royal grants were in all cases 
 substantially the same. The tenure was as of the manor of East 
 Greenwich, in free and common socage, and not in capite or by knight 
 service ; the conditions, fealty, and the payment for rent of one-fifth 
 part of the gold and silver ore. 
 
 The effect of the provisions relating to tenure has been generally, 
 and in some cases strangely, misunderstood. But to discuss the sub- 
 ject fully here, would require too much space. It must suffice to say 
 that the tenure was not more favorable, and not different from that 
 established by grants of lands in England of that period, and even of 
 much earlier date.* The words, " as of the manor of East Green- 
 wich, " were used, not with reference to the customs of that manor, or 
 
 1 See documents printed in Bellcnap's Hist, of N. H., vol. i, Appendix. 2 Graham, Col. Hist., 
 I., 244-5. 3 Sullivan, Land Titles, 45, 55 ; Maine Hist. Coll., I., 239. 4 I have met with several 
 grants of *the kind made by Queen Elizabeth, one as early as 1560. Madox, Hist, of the Ex- 
 chequer, I., 621. History of Surrey, ]VI. & B., I., 356, 357. 
 
11 
 
 of the County of Kent (gavelkind, &c. ), but simply to negative the 
 otherwise necessary inference that the grant was to be held in capite, or, 
 to speak more accurately, ut de corona, ' which would have carried with 
 it some disadvantages under the feudal law. The words "not in 
 capite," add nothing to the substance. The tenure, however, was un- 
 doubtedly as favorable to the grantees as it could well be made. 
 
 III.-GRANTS OF THE COUNCIL FOR 
 NEW ENGLAND. 
 
 The title to land in New England is traced through the Great 
 Council for New England, which in 1620 became seized of the whole 
 territory, and at the time of surrendering its charter, in 1635, had 
 already granted a great part of its lands, and taken steps for a division 
 of the remainder among its leading members.' But the division was 
 not perfected, and the ungranted lands again came into the possession 
 of the crown. 
 
 The confused and careless way in which the grants of the council 
 were made has been already spoken of. The subject is exceedingly 
 complicated, and entire accuracy could only be attained, if at all, by a 
 long and tedious investigation. But for the present purpose, fortunately, 
 such accuracy is not necessary, as only a few of these grants are of im- 
 portance either in tracing the title or illustrating the tenure of lands. 
 
 Disregarding the grants that were forfeited or abandoned, those 
 which failed to obtain judicial support, those which were substantially 
 confirmations of previous grants, or which covered too little territory to 
 be described here, we find six grants which deserve particular mention. 
 These are : 
 
 I. In 1 62 1, a grant to John Pierce, said to have been for the 
 benefit of the Pilgrim Colonists.' This was rather in the nature 
 
 Lowe's Case, Bacon's Works, IV., 238, &c. 2 This is ihe common theory. But the lan- 
 guage of the charter, and of a deposition by Samuel Welles, published in Maine Hist. Soc. Coll., I., 
 p. 3*^, make it doubtful, and tend to show that the settlement under it was on the coast of Maine, 
 
12 
 
 of an agreement to convey than an actual grant of definite ter- 
 ritory.' 
 
 2. In 1628, a grant to Sir Henry Roswell and others of the territory 
 afterwards known as that of Massachusetts Bay, which will be more 
 fully described elsewhere." This grant was followed two months later 
 by a royal charter confirming it and granting powers of government. " 
 Under an interpretation afterwards held incorrect, parts of New Hamp- 
 shire and Maine were comprised within its limits. 
 
 3. In 1628, a grant to William Bradford and his associates of terri- 
 tory intended for a fishery of the colony of New Plymouth, extending 
 fifteen miles on each side of the Kennebec, and up the river to 
 Cobbiseecontee. * This tract was conveyed to the freemen of the 
 colony in 1640, and by them in 1661 sold to Tyng and others for 
 ;^500. It was afterward known as the "Kennebec Purchase."' 
 
 4. In 1629-30, a grant to Wm. Bradford and his associates of the 
 territory afterwards known as that of the colony of New Plymouth ; and 
 also of the territory on the Kennebec, already granted in 1628.* 
 
 5. In 1630, a grant to Beauchamp and others, called the Muscou- 
 gus grant, of a territory thirty miles square on Penobscot Bay and 
 River. This was afterwards known as the "Waldo Patent," and is 
 still held by the heirs or assigns of the grantees. ' 
 
 6. In 1632, a grant to R. Aldworth and G. Elbridge of the 
 Pemaquid tract of 12,000 acres, and 100 more for every person trans- 
 ported within seven years. This is still held under title from their 
 assigns. " 
 
 In 1629 a large tract was granted to John Mason, between the 
 Merrimac and the Piscataqua, afterwards known as New Hampshire. 
 A tract called Mariana, extending from the Naumkeag River (Salem) 
 to the Merrimac, had been previously granted to him.' Lands 
 throughout this territory were settled and granted without regard to 
 
 1 Haven, Grants under the Great Council, &c. 2 Sullivan, Land Titles, 48. 3 Mass. 
 
 Rec., I., p. 3, &c. 4 Gardiner, Hist, of Kennebec Purchase, in Maine Hist. Soc. Coll., II., p. 275, 
 &c. 5 Gardiner, Hist, of Kennebec Purchase, in Maine Hist. CoU., It., 276. Sullivan, Land 
 Titles, p 40 (where the latter date is given 1655). 6 Plymouth Col. Rec. 7 Sullivan Land 
 
 Titles, 44. s Ibid. 9 Belknap, Hist, of N. H., HI., App. 
 
13 
 
 Mason's asserted rights ; but the controversies about them played a 
 great part in the poHtical and social history of the Colonies for a long 
 time. These controversies were not settled until 1746, when Mason's 
 representative finally conveyed his remaining rights to twelve persons 
 sometimes spoken of as the Masonian proprietors. The proprietors 
 quit-claimed on easy terms to settlers, and made grants for towns with- 
 out claiming any quit-rent, and often without fees.' Mason's heirs, 
 through one Allen, made claims as late as 1790, but the matter was 
 practically disposed of long before that time. ' 
 
 A few other grants have been sustained, but they do not seem to 
 have affected the prevailing systems of tenure. This, indeed, is true 
 also of some of the grants enumerated above ; but they have been 
 noticed here merely as the sources of title to extensive tracts. 
 
 The lands in New England which had not been alienated at the 
 time of the surrender of the company's rights in 1635, are included in 
 grants of the crown already mentioned. ' 
 
 IV.-COLONIAL GRANTS. 
 General Provisions. 
 
 The territory under the jurisdiction of Massachusetts Bay included 
 not only the original grant to the company, but also, during the more 
 important part of their history, the territories of Maine, under its 
 various names, and of Plymouth. The colony also claimed for a time 
 the southern part of New Hampshire, and exercised powers of govern- 
 ment there. It made itself felt for a long time in Rhode Island, and 
 gave to the emigrants of Connecticut their first authority to form a 
 settlement. Nor was this all. Owing to the ample privileges of the 
 charter, the intelligence and the prosperity of the people, its land 
 system was developed more fully, and at an earlier date than those of 
 the other colonies. Superior numbers, wealth and power secured for 
 
 1 Belknap, II., 205. 2 Hid., III., 14. 2 N. H. Rep., 31. 3 See page 9, ante. 
 
14 
 
 its legislation and established usages in this as in other matters a 
 marked influence upon the law and customs of all New England, so 
 that the land systems of the other colonies as they were successively 
 developed, took substantially the forms of that of Massachusetts Bay. 
 
 In addition to all this, it must be remembered that a great part of 
 New England was settled directly by emigrants from the Bay, and in 
 other cases the planters were men who had at least remained long 
 enough in that colony to become acquainted with its institutions, and 
 to learn to look upon them as natural and necessary under the new 
 and strange conditions of the country. 
 
 For our purpose, therefore, a careful examination of Massachusetts 
 laws and customs is by far the most important and useful ; while in 
 regard to other colonies it will be necessary to notice only those points 
 in which their systems differ from that which may properly be con- 
 sidered the typical system of New England. 
 
 Following this line of inquiry with sufficient care, we may hope to 
 gain a clear idea of the body of rules relating to land which prevailed 
 in this part of our country, guiding its settlement, and deeply in- 
 fluencing its civilization. 
 
 Orders of the Company in England. 
 
 On ihc 5th of March, 1629, a committee was appointed to consider 
 a method of dividing lands so as to "avoid all contention twixt the 
 adventurers." The subject was debated by the company a few days 
 afterward, and referred to a new committee.' The plan finally adopted 
 was as follows :° 
 
 1. Each adventurer (or shareholder) of ^^50 in the common stock 
 was to have two hundred acres, and holders of other amounts in the 
 same proportion. 
 
 2. Every adventurer might, personally, or by his servant, request 
 the government to allot him land. If this was not done within ten 
 days, he might occupy any land not already improved, not exceeding 
 one half of his share. 
 
 1 Mass. Rec, I., 30, 34. 2 Mass. Rec, I., 43, 43, 44, 363. 
 
15 
 
 3. But if the town plat was made, and known publicly, no one was 
 to build elsewhere (except in Massachusetts Bay, under direction). And 
 if his lot in the town plat was not assigned him within ten days after 
 application, he might build anywhere within the plat, and improve half 
 an acre for each ;^5o of stock, unless otherwise directed as to quantity 
 by the government. 
 
 4. Adventurers who went, or sent others at their own charge, were 
 to have fifty acres for each person transported. Persons other than 
 adventurers, going at their own charge with families, were to have fifty 
 acres for the master of the family, and such further portion "according 
 to their charge and quality, " as the governor and council might deter- 
 mine, unless otherwise agreed. 
 
 5. Conveyances under seal were to be made by the company to 
 such as desire it. 
 
 6. If a settler disliked a place taken by him under section 2, he 
 might choose within the allotment whenever dividend was made.' 
 
 In the case of colojiists who were not adventurers in the common 
 stock, the company held it fit that " they should hold and inherit their 
 lands by services to be done on certain days in the year," as a good 
 means ' ' to enjoy their lands from' being held in capite, and to support 
 the plantation in general and in particular."' 
 
 There was a reason for making a distinction between the adven- 
 turers and others, for the common stock bore at first all the public 
 charges, fortifications, support of the ministry, &c. This form of tenure, 
 however, does not seem to have been established. ' 
 
 Up to this point, the regulations might have been those of any 
 trading company, made with a view to the careful management of the 
 common property. But the request made in a letter to Endicott, the 
 company's agent in America, that he would "accommodate such as 
 wish to have their lands together, " shows already some consideration of 
 the social needs of the settlers. "• 
 
 Another order was made for the benefit of the stockholders, when, 
 
 1 The dividend here referred to may indicate an intended general distribution by lot to all the 
 adventurers. See letter to Endicott, in 1629, Mass. Rec, I., 391. 2 Letter to Endicott, May 28. 
 1629, Mass. Rec, T., 405. 3 Young, Chronicles of Mass. Bay, 187. -i Mass. Rec, I., 399. 
 
16 
 
 owing to losses, it became necessary to reduce the amount of the joint 
 stock by two-thirds ; it was then agreed that the old adventurers should 
 have in compensation "a double portion of land, according to the first 
 portion of two hundred acres for /50.''' Later, when an increase of 
 stock was needed for general purposes of the colony, it was ordered 
 that land should be allotted at the same rate, according to the sums 
 subscribed.^ 
 
 Whether intended or not, the result was that grants under these pro- 
 visions could not well in any case.be large enough to form great estates 
 and so interfere with the natural growth of settlements. There was no 
 temptation as yet to hold lands with a view to an advance in price ; no 
 way of making a grant profitable, except by "improving" the lands 
 granted. And it was long before this ceased to be true. 
 
 The restrictions as to the place of settlement were wise precautions 
 against such a state of things as gave so much trouble to the Dutch 
 of New Netherland, where, for a time, this point was neglected. 
 
 Orders after the coming of Winthrop. 
 
 It is quite possible that up to the time of the transfer of the company to 
 America, a division of the land was contemplated, which would have 
 entirely frustrated the purpose of these judicious rules, and, perhaps, 
 have caused the failure of the whole enterprise. ^ But, fortunately, the 
 rules had been for some time in force when Winthrop came to the Bay, 
 and the wisdom of their spirit had already become evident to those en- 
 gaged in the establishment of the new State. The general division was 
 not made, and the rules were observed by the new government. Before 
 the transfer of the company to Massachusetts Bay in 1630, grants were 
 probably made by the company's representative in America in accord- 
 ance with his instructions ;" but afterwards, all grants were made by 
 the General Court, and were generally made upon petition." 
 
 At first, all islands were reserved and appropriated to the public 
 benefit, to be let and disposed of by the Governor and Assistants,' and, 
 
 1 Mass. Rcc, 64. 2 /(^/(/., 68. ^ Ibid.t I., 391. -i /^/(/., 391, 405. h Ibid.,passun. 
 
 6 Ibid., I., 89. 
 
17 
 
 accordingly, many leases of islands were made, both to towns and indi- 
 viduals. ' But at a later day they were granted like other lands. All 
 swamps containing above one hundred acres were to lie in common.'' 
 But with these exceptions, all lands were available for grants, either to 
 plantations or individuals. 
 
 The estate granted was generally a fee without reservation. But in 
 a very few cases grants were made for life, or other term, and upon 
 payment of rent." 
 
 Before making a grant, the court appointed a committee to view 
 the desired land, and report as to its suitableness.^ The order for a 
 grant sometimes gave the intended boundaries,' but it usually only in- 
 dicated the locality, and but rarely (except when made to an individual) 
 mentioned the quantity of land.' 
 
 The order for a grant sometimes named a committee to lay it out,' 
 otherwise such a committee was subsequently appointed at the request 
 of the grantee.^ The latter course was more usual, and the committee, 
 after "laying out" the grant, submitted their report to the court, 
 whose confirmation of it was essential' But committees did not 
 always do their duty. In 1634, it was found necessary to appoint a 
 general committee to set out the bounds of towns not yet set out, or in 
 dispute ;'° and in the grant made for Sudbury, in 1656, it was provided 
 that the grant should be void, if the committee named did not make 
 return to the next court of election." 
 
 Care, too, was taken that the bounds thus granted should be well 
 surveyed, and the. lines preserved. In 1641, it was ordered that every 
 town should set out its bounds within a twelve month after they were 
 granted ;''' and in a case of gross neglect by a town, the court upheld 
 the title. of one who had in good faith laid out a farm within the limits 
 of the grant. " 
 
 l/(5/rt^., 94, 104, us, &c. "i Ibid.,1., i-Lt. 3 As in the case of some of the islands just men- 
 
 tioned. 4 Mass. Rec. ; Conn. Rec., passim ; but not when the grant was to an individual. Yet 
 
 see Conn. Rec, I., 359. o As in Endicott's and Cradock's. Mass. Rec., I., 97, 141. 6 Mass. 
 
 Rec; Conn. Rec. 7 Dummer's grant, Mass. Rec, I.. 141. 8 As in Endicott's, 75/;^., II., 259. 
 
 s Ibid. .passim. lo/fe'rf., I., 125. 11 /foVi?., IV., 264. 12 /&'(f., I., 319. In 1647, towns were 
 
 also required to perambulate their bounds every three years. Mass. Rec, II., 210. In Connecticut, 
 it was to be done every year. Conn. Rec. I., 513. la Mass. Rec, IV., 368. 
 
18 
 
 The committees were expected to take cognizance of the usual pro- 
 vision that the land should not be laid out ' ' to the prejudice of other 
 grants;" and in grants to individuals, the description was often 
 " where he may find it without prejudice to any plantation, made or 
 to be made. "' Yet it will be noticed that grantees had but a very 
 limited range of choice, and that grants were for some time confined to 
 the immediate vicinity of Massachusetts Bay. And when settlements 
 where authorized beyond Cape Ann on the eastern coast, it was proba- 
 bly with a definite purpose of anticipating' the threatened movements of 
 the French in that quarter ; perhaps, also, of Englishmen, who 
 were stranger to the undertaking of the Bay colonists. '•' 
 
 All these provisions relating to land grants sufficiently indicate the 
 watchful care that was exercised by the Government. The purpose, 
 evidently, was not to make individual settlers rich in lands, nor even 
 simply to dispose of land to those who would actually occupy and 
 cultivate it all. But the resources of the company were to be used in 
 building up a compact state of freeholders, covering a territoiy ample 
 for the requirements of comfortable living — and nothing more. No 
 inducement, no excuse was to be given for a loose, an isolated mode of 
 settlement, which would have enfeebled the political development of 
 the colony, and left it at the mercy of its enemies, or at best, dependent 
 upon the protection of England for its very existence. 
 
 V.-COLONIAL GRANTS. -(Continued.) 
 
 GRANTS TO PRIVATE PERSONS. 
 
 Although the leading provisions relating to this subject have already 
 been given as applying to all grants of public lands, the grants made to 
 individual settlers during the first period of the colony's existence, 
 merit attentive examination. We will first consider the extent of 
 
 ^ Mass. ^^c, passim. The Johnson grant was exceptional. III., 189. 2 Winthrop, New 
 
 England Hist., I., 99. 
 
19 
 
 grants, as a thing deeply affecting the whole question of land 
 tenure. 
 
 The first grant to a private person appearing in the records of Massa- 
 chusetts Bay, is one of 600 A. to Winthrop, in 1631, and it is the only 
 entry for that year. In 1632, there were six grants, averaging 148 A. 
 each ; in 1633, one grant only of 50 A. In 1634 the number rose to 
 nine, including one of 1,000 A. to Haynes. The average, however, 
 was only 383 A, A large tract was granted in 1635 to Cradock 
 (formerly governor), extending " a mile from the riverside in all 
 places ;" and there were two other grants of 500 A. each, besides that of 
 Taylor's Island. In 1636 there was a grant of 1,000 A. to SaltonstallJ^ ^ 
 In 1637 Dudley received 1,000 A., and there were two or three small;,, 
 grants besides. In 1638 there were fourteen grants, including one of 
 1,500 A., which brought the average up to 372 A. for the year. 
 
 At this time a committee was appointed to report on all applications 
 for lands, and in 1639 there were twenty-three grants, averaging 360 A. 
 each. But after this time the number of grants is much smaller. The 
 wants of the leading men have been provided for, and all others were 
 referred to the towns. Thus in 1640 there were but five grants, and 
 the same number in 1641. In 1642 and 1643, there were three each ; 
 in 1644 one; in 1645 two; in 1646" and 1647 none. But in 1648 
 there were five — three of them, however, in the Pequot countiy. In 
 1649 again five ; and in 1650 there were two large grants. One of 
 these was to the exectuors of Isaac Johnson, 3,200 A., in consideration 
 of his large " adventure in the stock." The other, of 3,000 A., to Sal- 
 tonstall, was in lieu of a former grant. In 1651, 1652 and 1653, there 
 were three grants each year ; in 1655 there was but one ; in 1656 there 
 were six. Thus, during a period of twenty-five years, there were little 
 more than one hundred grants, the largest being those to Isaac John- 
 son's representatives (3,200 A.), Mr. Nowell's (2,000 A.),' Mr. 
 Saltonstall's (3,200 A. in all), Mrs. Winthrop's (3,000 A.),' and Gov. 
 
 1 Even this was ordered to be laid out "in two or three farms.'' Mass. Rec., IV., 282. 2This 
 was made at a time when large voluntary contributions were made by towns and individuals to 
 relieve the Governor's financial embarrassment, caused by the unfaithfulness .of his bailiff. 
 Winthrop, N, E. Hist., II., 3 ; Savage's note. 
 
20 
 
 Cradock's tract. John Winthrop received 3,000 A. in the Pequot 
 country. Veiy few of the others received above 500 A., and most of 
 the grants were not more than one-half so large as that.* 
 
 It will be noticed' that these grants were made to the men most 
 prominent in the history of the company and of the colony — many of 
 them magistrates and clergymen. In many cases they are expressly 
 said to be in consideration of the " adventure" of the grantees or their 
 ancestors, and we may safely assume that most of them were so. 
 
 But after the first, few years we find a new class of grants, made in 
 consideration of services rendered to the colony, moneys disbursed for 
 it,' or else in encouragement of undertakings likely to be beneficial to 
 it. So at a very early date we find that the grant to Mr. Eaton, a 
 teacher, is on condition that he continue his employment with us for 
 life.^ E. Rawson's is on condition " that he go on in the business of 
 powder."' In 1641 Stephen Day received a grant, " being the first 
 that set upon printing."" Goodman Stowe's, in 1642, was "for writing 
 the laws."' A large grant was made in 1645 to the owners of iron 
 works for mining;" and in 1648, one was made to J. Winthrop, Jr., 
 on condition of his establishing salt works on Massachusetts Bay. ' In 
 1 65 1, Gov. Endicott received one on condition that he set up copper 
 works.^ Others received large grants for services in arranging the re- 
 lations of settlers to the eastward, ' and in the Pequot war, " &c. Of these 
 was Mr. Nowell's grant, already mentioned ; and there were a number 
 of grants of this class from 300 A. and 500 A., given for ordinary 
 civil services of different persons. 
 
 For some grants no cause or consideration is assigned, but it is fair 
 to assume that these, like others, were either for services rendered, or, 
 in the earliest years of the colony, for shares in the "adventure." 
 
 In the particulars mentioned, the early land systems of the other 
 colonies were in substantial agreement with that of Massachusetts, 
 
 *The statements in regard to the grants of each year are made from a careful examination of 
 the colonial records for the whole period, and are believed to be accurate. 1 Mass. Rec, III., 
 
 413. 2 //>/</., I., 262. 3/fo'(/., I., 263. a/feV., I., 344. 5 /&■(/., II., 14. e/i/rf., II., 125. 
 
 7/(5/rf., II., 243. Conn. Rec, I , 410. 8 Mass. Rec, III., 256. 5 lii'd., III., j^g. to Conn. 
 Rec, I., 70, 208, 408, 
 
21 
 
 except that in some («. g., in Connecticut) there was greater freedom in 
 regard to place of settlement. In the territory now known as Maine, 
 the large grants from the crown and from the council at Plymouth, 
 made an apparent exception to the rule of small holdings which pre- 
 vailed elsewhere. Yet these large estates were not the result of the in- 
 stitutions of the country ; but, on the contrary, were looked upon with 
 disfavor by the people of the colonies, and with difficulty maintained 
 among them. The transplanted feudalism of Gorges found no nourish- 
 ment in the alien atmosphere of his own settlements, and many grantees 
 would gladly have seen the breaking up of their estates. But the 
 scarcity of settlers, and ihe confused state of titles, prevented the sale of 
 lands. The great grants of Maine were doubtless an injury to the 
 province, and hindered its development ; but they have probably had 
 no other effect upon the prevailing land system than to obstruct its 
 natural working in the territory covered by them, which was in conse- 
 quence to a great extent left waste. 
 
 A careful husbanding of vast agricultural and other resources in the 
 interest of the whole commonwealth, a methodical occupation of its 
 territory, involving great restraint upon the individual wills of settlers, 
 with a view to the greatest safety and prosperity of all ; an avoidance of 
 even the beginnings of great accumulations of landed property, are the 
 clearly marked features of the early system of grants to private persons, 
 and the same things will again appear in examining the history of 
 grants to communities. 
 
 VI.-COLONIAL GRANTS.-fCoNTiNUED.) 
 
 GRANTS TO COMMUNITIES. 
 
 It has been shown that during the earlier years of the colonies, 
 grants to individuals were small in number and in extent, and were 
 made either on the ground of interest in the stock of the company, or 
 of services rendered to it. But by far the greater part of the land dis 
 
22 
 
 posed of was granted to communities of settlers, who were sometimes 
 members of some existing community, sometimes men who had never 
 lived in the country, — grouped together from various causes. The 
 formation and development of these communities constitute one of the 
 most important chapters in the histoiy of the political and social insti- 
 tutions of New England. 
 
 To what extent the formation of land communities in the colonies 
 was connected with the existence of similar institutions in ancient times, 
 in England and on the Continent, is an interesting question. The 
 studies of Maine, Maurer, Nasse and Laveleye, have shown that 
 the village community is probably a primitive Aryan institution, and 
 the researches of Nasse especially have shown how much of it has sur- 
 vived in English law and in English life. It is possible that at the be- 
 ginning of the seventeenth century some features of the earlier land 
 system no longer in actual existence were yet known to the people of 
 the West of England, by tradition or otherwise, and certainly some 
 traces of the ancient system were familiar to all even then. ' 
 
 Old habits of thought survived, too, in the customs of the manor 
 and the burgh, and especially in the parish ; and, doubtless, similar 
 economical conditions tended to produce similar social institutions. 
 
 It is not possible to adequately consider the subject in this place, 
 nor, indeed, has it as yet been sufliciently investigated. But the re- 
 semblance between the 'land communities of New England and those 
 of the Old World', is certainly too striking to be overlooked. 
 
 " In the true village community," says Maine, " the village itself is 
 an assemblage of houses, contained, indeed, within narrow limits, but 
 composed of separate dwellings, each jealously guarded from the intru- 
 sion of a neighbor. The village lands are no longer the collective 
 property of the community ; the arable lands have been divided between 
 the various households ; the pasture lands have been partially divided ; 
 only the waste remains in common."'' This would be recognized by 
 any one acquainted with the early history of our towns, as a ver}' good 
 
 1 Nasse, Uber die Mittelatterliche Feld-gemeinschaft in England, and see evidence cited by 
 Maine in his " Village Communities." 2 Early History of Institutions, p. 8i. 
 
23 
 
 description of them. Some other remarkable correspondences will be 
 noticed in the course of this essay ; but whatever may be thought of 
 their importance, the consciously provisional nature of the land com- 
 munity in this country must not be lost sight of 
 
 The immediate cause of the formation of these communities is more 
 easily discovered. When men came in ship-loads from the mother 
 country, large grants of land were called for, and those who had been 
 neighbors in England, naturally wished to be together in their 
 new homes. ' Emigrants from the older settlements, too, were often 
 kept together in a body from the same fact of former neighborhood, 
 and often formed a genuine colony of some older plantation.' The 
 importance of local church relations, and the need of mutual protec- 
 tion, were always strongly felt, and the sentiments of the whole body 
 of colonists favored the settlement of the country by "plantations." 
 
 Efficient measures were taken to secure good organization and good 
 management at the outset. In the oldest settlements the leading 
 members of the Government were leaders also in their respective 
 towns, and general legislation for a time was not needed. But the 
 principles of the founders of the colonies required that new plantations 
 should be managed in strict subordination to the interests of the whole, 
 and this they accomplished by the aid of various provisions connected 
 with the grants. 
 
 To this end, in addition to the measures already mentioned, com- 
 mittees were named to take charge of the allotment of lands and the 
 admission of inhabitants, thus insuring conformity to the policy of the 
 government. So, in 1634, Winthrop, Humphrey and Endicott were 
 ordered "to divide the lands at Ipswich to particular persons as in 
 equity they shall think meet."' When the settlement of Hampton was 
 authorized, it was ordered that nothingshouldbedonewithoutallowance 
 of a commission consisting of Messrs. Bradstreet, Winthrop, Jr., and 
 Rawson.'' The same thing was done in the cases of Sudbury," Nash- 
 
 1 Mass. Rec, I., 399. The Dorchester church was formed in Englfind. Weymouth people 
 came from England with their minister. Winthrop, N. K., I,, 163, 2 Thus Windsor w.is a 
 
 Dorchester colony ; Wtjodstock was settled by men from Roxbury, &c. 3 Mass. Rec, I., 136. 
 
 </(^/af., 236. 5/(5/^., I., 271. 
 
24 
 
 away, ' and other plantations, ' and it became the general practice. 
 That it was not always done, may be due to the fact that the court was 
 careful not to authorize new plantations unless they were to be in a 
 measure under the influence of men in whom confidence could be 
 placed, and commonly acted upon their application. When such 
 leadership of the undertaking was secured, the court was ready to give 
 its sanction and its aid. 
 
 The earliest settlements in Massachusetts Bay had, so far as appears 
 on the records, no formal authorization. They were so near to each 
 other that all questions could be disposed of by common agreement or 
 the word of the magistrate ; but they soon crystallized into a number 
 of separate communities. 
 
 In 1633, reports that the French were attempting the colonization of 
 the coast to the eastward, excited apprehension, and it was decided that 
 a plantation should be begun at Agawam (Ipswich), " lest an enemy, 
 finding it void, should possess and take it from us. '''* Two months later, 
 John Winthrop, Jr., with twelve others, went there to begin the 
 settlement,** and the General Court then ordered that no others 
 should go there without its leave." The next year a committee 
 of the court was authorized to allot lands within four miles of 
 the village." This was the first plantation in New England made under 
 the auspices of any colonial authority. 
 
 A year later (1634), the pressure for land began to be felt at the 
 Bay, and the colonization of the interior and the remoter sea-coast 
 began ; a movement which, although stronger at soriie times than at 
 others, was thenceforth practically continuous. 
 
 The inhabitants of Newtown (Cambridge), were the first to 
 complain for the want of land, and obtaining leave of the court 
 to seek some convenient place, they sent men to Agawam and 
 Merrimack to report.' Some also went to visit the Connecticut 
 River, and at the next court they asked leave to remove thither. 
 The subject was long and earnestly debated, but the adverse vote 
 
 1 Masis. Rec, il., 136. 2 Sometimes in Comi., see Conn. Rec , I., 414 ; 71., &c. 3 Winthrop, 
 N. E., [., p. 99. ilbid.,^. xoi. 6 Mass. Rec, I., 103. 6 See ««/<?, p. 23. 7 Mass. Rec, I., 
 119 ; Winthrop, I., 132. 
 
25 
 
 of the assistants for the time prevented the giving of the desired 
 authority. ' 
 
 The next year some of the leading men of Ipswich were allowed to 
 form a plantation at Newbury,* and a company of t\^-enty-one families 
 from England, with their minister, was authorized to form a plantation 
 at Weymouth, where there was already a small setdement. ^ 
 
 The state of affairs in England was rapidly growing worse, and im- 
 migration to this country was in consequence gready increased. Grants 
 were made for plantations at several places, not far from existing settle- 
 ments. But the time had come for the occupation of more distant 
 points, and preparations were made for emigration on a large scale from 
 the plantations of the coast. 
 
 In urging their request for permission to remove, the petitioners 
 had set forth the fruitfulness and commodiousness of the region, and 
 the danger of leaving it to be posse!3sed by others, Dutch or English.'* 
 The latter was a strategic reason, which doubtless had its weight (as in 
 the course of the settlement of Ipswich).^ 'But the principal attraction 
 was, without doubt, the prospect of abundant provision for cattle in the 
 great meadows of the central valley. The colonists had much live 
 stock. Wood says, in 1634, that they had " 1,500 head of catde, be- 
 sides 4,000 goats, and swine innumerable. "" Lechford also speaks of the 
 "good store of cattle,''' and it appears that the transportation of cattie, 
 horses, &c., with Winthrop, cost ^12,000.* The neat cattle carried to 
 New Plymouth in 1624, throve and increased exceedingly,' and in 
 1642 there were already 1,000 sheep.*" It is evident, therefore, that live 
 stock was very abundant, and in our climate a supply of hay as well as 
 pasturage is so essential that Wood, in describing towns, always men- 
 tions that they " have hay-ground ; " but we know now that his accounts 
 of unlimited sources of supply were exaggerated. We cannot be sur- 
 prised, therefore, to find that the course of settlement follows the line 
 
 1 Winthrop, 1., p. 140. 2 Winthrop, I.. i6o ; Mass. Rec, I., 146. 3 Winthrop, T., 163. 
 
 i Ibid., 140. ^ Ante, p. 24. 6 New England's Prospect, p. 54. 1 Plaine Dealing, 
 
 sjosselyn, Two Voyages to New England, p. 132. ^ Ibid., p. 146. 10 New England's First 
 
 Fruits, p. 39. Winthrop, I., 160. The Dorchester colonists lost near ;£2,ooo worth of cattle the 
 first winter in Conn. Winthrop, I„ 184. 
 
26 
 
 of wide alluvial valleys, especially those of the Connecticut and its 
 tributaries. Rich meadows were the main object of the emigrant's 
 desires, and this accounts for the order of settlement of different places. 
 It explains, too, why the orders for grants frequently directed^ (and 
 seem always to have implied) that the tract granted was to comprise 
 both upland (including timber) and meadow, thus supplying all the 
 wants of the community. This practice was followed by the plantations 
 in alloting lands and regulating their use. 
 
 The extent of grants made to communities is a point of interest, 
 both because the lands thus came into the hands of a definite 
 number of persons, and were also for the most part soon divided among 
 them, and also because of the political subdivisions which were based 
 upon them. 
 
 As to the extent of grants, we have seen that at Ipswich 
 the lands were to extend four miles from the town. There were 
 other cases where tracts of eight miles square were granted, e. g. , Gro- 
 ton,° Mendon,^ and the grant on the Saco River for Newbury,^ and a 
 ten miles square was offered to Captain Hawthorne and others proposing 
 to make a settlement forty or fifty miles west of Springfield. On the 
 other hand, some of the oldest towns were quite small ; but in gen- 
 eral, a tract six miles square or its equivalent, was thought of the best 
 size for a plantation. As to its relation to the number of planters, we 
 find in the case of Groton, that a committee of the General Court 
 thought that the tract was large enough for sixty families, which would 
 have given them over one square mile each.' But the report of the 
 same committee shows that this was not looked upon as the permanent 
 limit of population, and we are told by Winthrop that "a principal 
 motive which led the court to grant * * such vast bounds was that 
 when the towns should be increased by their children and servants grow- 
 ing up, &c. , they might have place to erect villages where they might be 
 planted, and so the land improved to the more common benefit."" 
 
 Many villages grew up within the limits of the older plantations. 
 
 iMass. Rec, I., 156. 2 Mass. Rec, HI., 388. 3 /W(/., IV., 445. 4 /&'</., 402. 
 
 ^Ibid., p. 9. 6 Winthrop, N. E., II., 254. 
 
27 
 
 and eventually became separate towns. Thus, Charlestown originally 
 (until 1 641) included, what afterwards became the towns of Maiden, 
 Stoneham,Woburn, Burlington, Somemlle, West Cambridge, Medford, 
 and part of Cambridge.' Many plantations received additional grants 
 for the express purpose of enabling them to form new villages. Thus, 
 in 1639 l^iid 'was granted to Salem for a new village' (afterwards Wen- 
 ham), and the next year Shawshin (Bellerica) was granted to Cambridge 
 for the same purpose.^ Dedham also received additions which became 
 Wrentham and Medfield.'' And so in other places. In 1683 a tract in 
 the interior eight miles square was granted to Roxbury, which when 
 settled received the name of Woodstock (Conn.).^ The granting to 
 towns of tracts at a distance for settlement subsequently became a com- 
 mon practice. The settling of a new plantation was a very important 
 matter, and was formally resolved upon and prepared for by the mother 
 town. The Scituate people who settled Barnstable when expecting to go 
 to Sippecan, "prayed for direction in electing committees for setting 
 down the township."' The land was sometimes sold by the proprie- 
 tors in the old town to the settlers. Thus, Dedham in 1661 in voting 
 to settle what was afterwards Wrentham, grants six hundred acres to 
 the settlers, and afterwards gives up all claim to them, for which they 
 are to pay ;^ 1 60, in instalments.' Roxbury, in settling Woodstock, 
 voted that if thirty men should go they should have one-half of it, in 
 one square, at their selection, and ;^500 to assist them, to be laid out 
 in public buildings. The other inhabitants were to have the rest.' 
 
 It was important that when a tract of land was granted, either to an 
 individual or for a new plantation, it should be speedily occupied, as 
 the making of still other grants might depend upon it. But it would 
 seem that some neglected to improve their grants, for in 1634 it was 
 ordered that if any large grant was not improved within three years, the 
 court might dispose of it.' In the case of plantations, it was generally 
 made a condition that a certain number of families (commonly twenty) 
 
 1 Brook's Hist, of Medford, 2. 2 Mass. Rec, I., 279. 3 Ibid., 330. 4 Annals of 
 
 Dedham. 6 Ellis' Hist, of Roxbury! 72. Letter of Rev. Mr. Lothrop, in Freeman, Cape 
 
 Cod, II., 275. 7 Annals of Dedham. 8 Ellis' Roxbury, loc. cit. 9 Mass. Rec, I., 114. Mr. 
 Dudley, however, had a grant of 1,000 acres, " without limit to time of improvement." Ibid.t 206. 
 
28 
 
 should be settled within a given time (usually from one to three years) 
 so that a ministry might be supported. Sometimes, also, it was stipu- 
 lated that settlement should begin within a certain time. ' 
 
 It was necessary that unfriendly settlers should be excluded from 
 the new plantations, and also that existing settlements should not be 
 unnecessarily weakened'. So it was ordered, in 1635, that none should 
 go to the new plantation at Marblehead without leave of court or of two 
 magistrates;' and the following year the same powers were conferred upon 
 the majority of the magistrates with reference to all new plantations.' 
 
 But the Government went further, and aided the settlement of new 
 plantations more actively, and when important to the colony, by ex- 
 traordinary acts and measures. So, when setdement was authorized at 
 Newbury, an advance post, it was resolved that the court should have 
 power to see that it received a sufficient number to make a town.'' 
 
 Again, when Concord was settled, the magistrates were authorized 
 to impress carts, &c. , for those who had goods to be carried thither ; ' 
 and at Hampton, men were so impressed to build a house forthwith.' 
 
 The new plantations were exempted from the payment of public 
 charges for a variable number of years up to six, or even more, in the 
 more reinote and hazardous situations. ' 
 
 The interests of individuals were often made subordinate to those 
 of plantations, as those were to the colonies." A house built with- 
 out leave from the town, if prejudicial, might be demolished and the 
 persons removed.' Private lands might be taken for the purposes of 
 the settlement, but the rights of grantees were protected, and pro- 
 vision was made for compensation in case of damage." 
 
 VIL-LAND COMMUNITIES. 
 Commoners and Non-Commoners. 
 The last stage in the process of distribution is that in which lands 
 pass from the community to its individual members, involving the 
 
 1 Mass. Rec , Conn. Rec. 'i-lhid., T., 147. ^Ibid,, I., 167. A settlement at Hampton was 
 
 first authorized. i Ibid., t^b. ^Ibid.,i$-j, 182. Q Ibid,,\., i6-j. T Mass. Rec, /rt^j/w. 
 
 Saco River settlement, IV., 424. s Ibid., I., 147; 11., 48. 9 Ibid., I., 168, '° J., 68, 147. 
 
29 
 
 dissolution of the community itself, or its transformation into a politi- 
 cal community. 
 
 " In Swiss villages, " says Laveleye, "the Beisassen, or simple resi- 
 dents, frequently have no share in the ' Allmends. ' The Beisassen 
 have often complained of this distinction, which has given rise to vio- 
 lent struggles between the reformers, who demand equal rights for all, 
 and the conservatives, who endeavor to maintain the old exclusion. 
 * * * Generally, arrangements have been adopted securing certain 
 rights to the mere residents, "i We have here, in a few words, the 
 history of the land communities of our own colonial period, wherever 
 the inevitable collision of hostile interests has not been prevented 
 by some happy combination of circumstances. 
 
 The distinction between "commoners'' and "non-commoners," was 
 very early made, and these names themselves were in general use. But 
 the term " proprietor " was also employed with the same meaning as 
 "commoner," and soon came to be considered the proper legal term ; 
 and we find now in our towns the records of the owners of common 
 lands, always under the name of "proprietors' records." The " com- 
 moners ' were originally those to whom the General Court had made a 
 grant of land in common for settlement, very often, as we have 
 seen, without giving the grantees entire, unfettered control. They 
 formed, as has been held, a quasi-corporation, having the powers of 
 other corporations for certain specified purposes. ^ The right ot 
 a commoner might be conveyed or inherited like other real estate, 
 and one who thus became entitled to a right was not necessarily 
 an inhabitant, nor was he necessarily entitled to vote in the town 
 meetings, when township privileges had been conferred upon the 
 inhabitants of a plantation. On the other hand, it by no means fol- 
 lowed that because a man was entitled to a vote in the town, he 
 was also entitled to a voice in the control of the common land.=, 
 or that he had any right to them whatever. The land community 
 and the political community were distinct bodies, capable of dealing 
 
 1 La Propriete Primitive, 23. 2 3 Verm. Rep., 553. Mass. Rep. 
 
30 
 
 with other persons and bodies, and with each other as separate juristic 
 persons. ^ 
 
 Thus we find votes of the town according rights to the "pro- 
 prietors," or even making engagements with them. 
 
 The proprietors, too, might make grants to the town as to any other 
 parties, as in the case of Ipswich (Mass.), where they granted the "cow 
 commons," north of the river, comprising 3, 244 acres, to the inhabitants 
 of the town (which probably included all the commoners), to be im- 
 proved. ^ The same proprietors, in 1788, granted to the town their 
 whole interest in the commons, to help pay debts incurred in the 
 Revolution. ^ 
 
 But although the distinction between the two bodies is well marked 
 and generally observed, in practice they were sometimes blended, and 
 the strictness with which they were at any time kept apart, depends 
 upon a variety of circumstances. 
 
 In plantations, where the inhabitants were all commoners, or where 
 there were few who were not such, the distinction was commonly disre- 
 garded at first. The two bodies were substantially identical, and acted 
 as one. At the meetings of the freemen, matters relating both to the 
 land rights of the community, and to the local government of the 
 plantations, were settled, and the same records served for the town and 
 fjr the proprietors. So, for instance in Groton, settled in 1655, there 
 were no separate meetings of the proprietors prior to 1.713* But as 
 the number of non-commoners became considerable, the original 
 settlers multiplying, and new comers streaming in, the commoners 
 found it necessary to look after their rights. In the town of Hampton 
 (N. H.), where three years after the settlement (1641), persons who 
 were not freemen were present at the town meetings, as appears by the 
 records, it was voted in 1662 that no man be considered an inhabitant. 
 
 1 This is the case in many Teutonic village-communities, the result of a long course of changes 
 in the original system. See v. Maurer, Gesch. d. Dorfverf, IL, 247, &c. Especially in Switzerland, 
 idfd., p. 253. Comp. Laveleye, /oc. ctt, 2 Felt, Hist, of Ipswich, &c., p. 14. 3 Ibid., p. i6r. 
 
 The tract called the Town Common was granted to the Town of Cambridge (Mass.), by the proprie- 
 tors, to lie undivided, &c., forever. Proprietor's Records in Holmes' Hist, of Cambridge, p. 35. 
 4 Butler, Hist, of Groton. 
 
31 
 
 or act in town affairs, * * * but he that hath one share at least of 
 commonage, according to the first division, i 
 
 In 1700, it was voted that no one should vote unless a freeholder ; 
 and " none to vote to dispose of lands, unless he is a commoner, &c."^ 
 Thus, by this simple contrivance, the necessity of two organizations was 
 for a time avoided. But this was not long deemed sufficient, and 
 separate meetings of the "proprietors" and of the town became the 
 rule, and were held so long as any common lands remained. Separate 
 records of these proprietors meetings are very generally found in the 
 older towns, where they form legal evidence of title. 
 
 In some of the towns, the need of protecting the rights of com- 
 moners was strongly felt almost from the beginning. This was especially 
 the case in the oldest plantations, which were most directly affected by 
 the stream of immigration from England. In Watertown (Mass.), 
 even in 1635 it was voted, "In consideration there be too many in- 
 habitants in the town, and the town thereby in danger to be ruinated, 
 that no forrainers coming into the town, or any family arising among 
 ourselves, shall have any benefit, either of commonage or of land un- 
 divided, but what they shall purchase, except they buy a man's right 
 wholly in the town.''^ In 1660, it was said in Ipswich, that "the 
 common lands are overburdened by dwelling-houses. No house hence- 
 forth erected is to have any right to commonage, or to the common 
 lands, without express leave." And this order was confirmed by the 
 General Court.* 
 
 The distinctive rights of the proprietors were in general fully ac- 
 knowledged by the town. At Haverhill, in 1702, the town refused to 
 act on a petition, " because not directed to the proprietors of lands, 
 but to the town, many of whom have no power to vote in the disposal 
 of lands. "^ 
 
 At Wenham, when the power of the commoners to divide lands 
 was questioned, the town confirmed it, and granted the lands to those 
 who had drawn them.^^. But the rights of the respective parties were 
 
 1 Records of the Town of Hampton. '^ Hid. 3 Bond. Hist, of Watertown, 995. 4 Felt, 
 Hist, of Ipswich, 16. Mass Rec. 5 Chase, Hist, of Haverhill, 205 R Allen, Hist, of Wen- 
 
 ham, p. 50. 
 
32 
 
 not always so clearly understood, and it is certain that some had honest 
 doubts upon the subject, and in some cases opinions prevailed which 
 were exactly wrong. It mayi be conjectured that the readiness of 
 the towns to recognize the rights of the commoners depended very 
 much upon the relative strength of the commoners in the town meet- 
 ings. Where the majority of the voters were commoners, although 
 there might be discontent, and although that discontent might be loudly 
 expressed, there would be no attempts to seize the power to control or 
 dispose of the common lands. But there is abundant evidence that where 
 the numbers of the non-pommoners were sufficient, either alone or in 
 combination with a fraction of the commoners, there was no lack of a 
 disposition to get control, and to exercise that control for their own 
 advantage, and this was done sometimes with little regard to legal rights. 
 
 In the same town of Haverhill, to which I have referred as an in- 
 stance of clear recognition of the proper ownership of common land, 
 there were long continued troubles about that very point, and the non- 
 commoners, after making to the commoners a proposition to share with 
 them, which was refused, tried to exercise control, and to grant lands. 
 As the commoners proceeded to make divisions of the commons, and 
 continued to do so, the feeling became very bitter. In 1723, com- 
 mittees were chosen by both parties to make some agreement, and some 
 small grants were made to the non-commoners to quiet them. But the 
 troubles revived, and the strife grew worse. Two sets of town officers 
 were chosen, and the General Court had to decide between them. But 
 the proprietors prevailed, and at length the opposition was given up. ^ 
 
 But in other cases the proprietors did not fare so well. In Sims- 
 bury (Conn.), in 171 9, the town after reserving commonage, voted to 
 sequester the rest to the town, and to grant it as the majority, not in 
 numbers, but in rateable estate, should determine. -jThis gave great 
 offence, but the town made many grants. In 1723, a town meeting 
 
 1 The Selectmen of Roxbury were directed, in 1692, to consult authority and obtain their judg- 
 ment concerning the right proprietors of common lands. " Some claimed that ihey belonged to the 
 first proprietors, and^ not to the body at large." Ellis, Hist, of Roxbury, pp. 72-3. And in Barn- 
 stable there were hot debates upon the same questions. Freeman, Cape Cod, 2, 202-3. 2 Chase. 
 Hist, of Haverhill. 
 
33 
 
 was held which lasted for three successive days, and nearly one whole 
 night, and grants were made to the greater part of the inhabitants. 
 
 The proprietors appealed to the legislature, but got no relief until 
 the general law was passed some years later. After that they managed 
 exclusively what lands were left, but it does not appear that they ever 
 received any redress for the injuries inflicted by the action of the town. 
 
 In the nature of things, there must have been contentions about 
 these questions very generally in the towns of New England, although 
 under some circumstances they were long postponed. i In the towns 
 of the Connecticut Valley the subject of dividing the commons, was 
 not much agitated until the latter part of the 17th century. But the 
 agitation continued with intervals for half a century or more. Jonathan 
 Edwards in a letter written in 1751, said there had been in Northamp- 
 ton for forty or fifty years, ' ' two parties, somewhat like the court and 
 country parties of England, if I may compare small things with great. 
 The first party embraced the great proprietors of land, and the parties 
 concerned about land and other matters."^ 
 
 In some cases the differences between the two parties were settled 
 by committees from their own number, ^ or by referees from other 
 towns. * 
 
 But extreme measures and even the necessity of arbitration were 
 commonly avoided by the good sense of both parties, and by the pub- 
 lic spirit frequently shown by the proprietors. The reason for making 
 grants of more territoiy than was needed for the immediate wants of 
 the first settlers has already been stated, ^ and it was in most cases well 
 understood. The legal title was in the original planters, but iher^ was 
 in most casps a moral trust in favor of later comers, and although 
 sometimes only under pressure, the obligation was very generally re- 
 cognized, at least so long as the commons exceeded the requirements 
 of the commoners. There were two ways of satisfying the claims of 
 non-commoners. The first was by increasing the number of common- 
 ers, and this was not infrequently done. The old records give evi- 
 
 l Phelps, Hist, of Slmsbury, p. 80, et seq. 2judd, Hist, of Hadley, &c., p. 281. Comp. 
 Maine, Early Hist, of Inst., 84. 3 See page 32, ante. i As at Barnstable, see Freeman, 
 
 Hist, of Cape Cod, II., 202. f Ante, p. 26. 
 
34 
 
 dence of the custom, mentioning without comment, the admission of 
 commoners. ^ And in some cases the number of commoners varied 
 according to a fixed system. 
 
 But more usual was the granting of certain lands to new comers, 
 without any accompanying rights to commonage. This was done 
 either for individuals by name, or to all of a given class. At Barnstable, 
 four acres were voted to every widow. ^ Oftener still, the new comers 
 were included with the commoners in a general division of lands to all 
 the inhabitants, by which, however, no rights to share in further divisions 
 was conveyed. Thus at Eastham, in 1652, a division of common lands 
 was made "to first settlers and newcomers. "^ So, too, at Ipswich, 
 as we have seen, a large tract was granted to the inhabitants, with the 
 commoners to be improved. * In the towns of the Connecticut Valley, 
 and some towns of the New Haven Colony, it seems to have been 
 usual to make such division, the rights of the original settlers being 
 sufficiently protected by the principle of the allotment, of which we 
 shall speak. ^ 
 
 VIII.-LAND COMMUNITIES.-(CoNTiNUED.) 
 
 Division of Common Lands. 
 
 In the allotment of lands in the different towns, several things were 
 taken into consideration. For the simplicity of the rules adopted by 
 Wenham (Mass.), with but one dissenting voice " that all commoners 
 should stand equally, both as to quantity and quality,"* had but few 
 imitators. Numbers were, of course, an essential element in the com- 
 putation, but estate was of still more consequence and prominence, and 
 was very generally made the principal basis of division. 
 
 1 Felt, Hist, of Ipswich, i6i ; 144 new commoners were admitted there. Records of Hamp- 
 ton, &c. At Duxbury, in 1710, the young men were granted, on petition, half a share. Town 
 Records, in Winsor, Hist, of Duxbury. 2 Freeman, Cape Cod, 2, p, 379, 8 Ibid. 4 Felt, 
 
 Ipswich, 14. 5 Lambert, Hist, of New Haven, &c. Judd, Hist, of Hadley, &c. 6 Allen, Hist, 
 of Wenham, 2. 
 
35 
 
 The valuation of each man's estate was for this purpose made from 
 the tax-Hst, according to the rates paid by him toward the pubhc ex- 
 penses. Thus, at Haverhill, in 1643, it was voted that "he that was 
 worth ;^20o, to have 20 acres to his house-lot * * * and so eveiy 
 one under, that sum to have acres proportionable for his house-lot, to- 
 gether with meadow and common, and planting ground, proportion- 
 ably."'' At Ipswich, 1665, lands were divided among the commoners 
 according to rates.''' So, too, at Dedham,' where a somewhat compli- 
 cated rule prevailed ; in Hartford and the other Connecticut River 
 towns f in the settlements along the Sound, '^ and in many other places. 
 
 Where the town itself did not prescribe the mode of division, the 
 committee having the division in charge would commonly favor those 
 having estate, as we see in the case of the Boston committee, about 
 whose election there was so much trouble in 1634. Winthrop says : 
 "The inhabitants of Boston met to choose seven men who should 
 divide the town lands among them. In their choice they left out Mr. 
 Winthrop, Coddington and other of the chief men ; only they chose one 
 of the elders and a deacon, and the rest of the inferior sort, and Mr. 
 Winthrop had the greater number before one of them by a voice or two. 
 This they did as fearing that the richer men would give the poorer sort 
 no great proportions of land, but would rather leave a great part at 
 liberty for new comers and for commons, which Mr. Winthrop had oft 
 persuaded them to as best for the town. " The elders were offended 
 and Winthrop declined. But a new election was held, after a talk by 
 Mr. Cotton, and Winthrop and other leading men were appointed to 
 dispose of the lands as they should see fit. Winthrop says of their 
 course that it " was partly to prevent the neglect of trades * * 
 and partly that there might be place to receive such as should come 
 after ; seeing it would be very prejudicial to the commonwealth if 
 men should be forced to go far off for land, while others had much, and 
 could make no use of it more than to please their eye with."" This 
 account well illustrates both the spirit of the leaders, and the opposition 
 
 1 Records of Haverhill, in Chase Hist, of H., p. 56. 2 Felt, Hist . of Ipswich, i6, a Annals 
 of Dedham, 82. 4jiidd, Hist, of Hadley, &c. 5 Lambert, Hist, of New Haven, &c. 
 
 6 Winthrop, N. E., I., 152. 
 
36 
 
 sometimes found. But we have seen that at an early day it became the 
 practice of the General Court to name committees to superintend the 
 organization of new plantations, and one of their most important 
 functions was the division of lands among the first settlers. In a few 
 cases the government fixed a maximum which no grant could exceed 
 until a certain number had joined the community.' But the whole 
 subject was generally left to the discretion of the committee. In this 
 way conformity to the policy of the government was insured. 
 
 The opposition to such a plan of division which might have been 
 expected, was prevented in great measure, partly by the evident 
 reasonableness of the general principle, that land should be given to 
 those who could use it, and partly by the provisions made to guard 
 against excessive inequality in the shares alloted to different persons. 
 
 At Springfield (INIass.), it was the original agreement (1636), that 
 every inhabitant should have a convenient proportion of land for a 
 house-lot, " as we shall see meete for every one's quality and estate." 
 Then, further, " we shall observe this rule about dividing of planting 
 ground and meadow, in all planting ground to regard chiefly persons 
 who are most apt to use such ground. And in all meadow and pasture, 
 to regard chiefly cattle and estate, because estate is like to be improved 
 in cattle, and such ground is aptest for their use. A7id yet we agree, 
 that no person that is master of a lot, though he have not cattle, shall 
 have less than 3 acres of planting ground, &c.''' In Northampton, 
 allotments were to be to families, according to "names, estates and 
 qualifications," but every single man was to have 4 acres of meadow, 
 besides the rest of his division, and every head of a family 6 acres. ^ 
 In the division of Hadley lands, each proprietor received allotments 
 according to a sum annexed to his name, called estate, varying from 
 ^"50 to ^"200, and probably the result of amicable agreement. At 
 another time, an estate of;^i5o was credited to each proprietor, per- 
 
 1 Mass. Rec, IV., Pt. 2, 500 ; V. 22. 2 Records of Springfield, in Holland, Western Mass., 
 
 I., p. 25. ilbid., I., p. 47. 
 
 Barnstable, by general consent, divided } to every house-lot equally ; \ to the number of names 
 that are immovable, i. c, to such as are married or 25 years of age, and the other \ according to 
 men's estates. Freeman, Cape Cod, II., 256. 
 
haps in addition to his "rate." In this town, although lands were di- 
 vided according to each one's real estate, as it stood in the tax list, we 
 find that the head of a family without real estate, drew on different occa- 
 sions, 50, 50, and 1 1 acres, respectively. In one, a ;f 50, allotment 
 was given to every householder, and £2 5 for each male minor above 
 16. 
 
 Although in this way " the wealthy man had as much on account 
 of his slave as the poor man on his own account,' the poor man was 
 well provided for, and we are told that, apart from the grants just men- 
 tioned, among the original proprietors of Hadley, the largest share was 
 only four times greater than the smallest, and later five times greater ; 
 and that "the equity of divisions was never called in question."' In a 
 division made at Ipswich in 1665, lands were divided according to rates 
 in the proportion of 4, 6 and 8, thus giving the poorest one-half as 
 much as the richest/ The same proportion was observed in some 
 other towns, although sometimes the inequality was much greater, and 
 the rates varied in diiferent divisions even in the same town. The 
 later divisions of wood-land in the river towns was far more unequal 
 than the earlier distributions of intervale. ^ 
 
 Dedham (Mass.), had some additional special rules for allotment, 
 and among them that servants should be referred to men's estates, and 
 according to men's estates, that allotments should be " according to 
 men's rank, quality, desert and usefulness, either in church or com- 
 monwealth. That men of useful trades may have material to improve 
 the same, be encouraged and have land, as near home as may be con- 
 venient, and that husbandmen that have abilities to improve more than 
 others, be considered."'' 
 
 In this town (Dedham) a portion of land was always reserved for 
 town, church and school, and reservations of land for school, church 
 and ministry, were usual in the towns, even if not required by the con- 
 ditions of their grant. ° 
 
 In making a grant for a plantation near Lake Quinsigamond, the 
 
 1 Holland, I., 33. 2FeIt, Hist, of Ipswich, i6i. 3judd, Hadley, &c., 30, 31. 
 
 4 Annals of Dedham, 82. 5 Jbid., and see Freeman, Cape Cod, II., p. 202 (Barnstable); 379 
 
 (Eastham) : p. 245 (Sandwich) ; and Lambert, New Haven, &c., 96, &c. 
 
38 
 
 court inserted the condition that in the allotment of lands, 200 or 300 
 A., with meadow, should be reserved for the commonwealth.' The 
 precedent was followed in 1670 in the grant for a plantation south of 
 Springfield and Westfield/ in those for Squakeage^ and Lancaster,^ Dun- 
 stable,^ &c. , and soon became the general practice. 
 
 In the first case cited, power was given to the committee of the 
 court to settle tenants for lives, or for terms, paying a small rent. But 
 nothing is usually said of such a plan in making the later reservations." 
 
 The case of the plantations along the Sound differed somewhat from 
 that of other towns in New England. These did not occupy territory 
 granted by any colonial or other government. The lands had 
 been bought outright by the principal men, and were held in trust for 
 the people who, after contributing to pay expenses, drew lots in propor- 
 tion to their contribution.' 
 
 In the New Haven Colony, it was ordered ' ' that every planter give in 
 the names of the heads of the persons in his family (wherein his wife, 
 together with himself and children, only are to be reckoned), with an 
 estimate of his estate, according to which he will both pay his propor- 
 tion in all rates and public charges, * * and expect lands in all 
 divisions, which shall be generally made to the planters.'" In the first 
 division the rate was 5 acres to /"lOo, and 2^ acres for each person.' 
 
 In Guilford, it was agreed that ' ' every one should pay his propor- 
 tional part or share toward all the charges and expenses for purchasing, 
 settling, surveying and carrying on the necessary public affairs of the 
 plantations, and that all divisions of the land should be made in exact 
 proportion to the sums they advanced and expended." Divisions were 
 made accordingly. But, even here, no one could put in more than 
 /"500, without permission of the freemen." 
 
 Milford, however, "sequestered" a belt of land around the town, 
 two miles wide, and divided lands from time to time among the in- 
 
 1 Mass. Rec, IV. Part 2, p. 409. zMass. Kec, IV., Part 2, p. 469. i Ibid., 529. ilbid. 
 545 (i sq m. reserved). ^ Ilud., c^jj. 6 Leases of public or common lands, by colony or town 
 
 were not very common. But Duxbury seems to have leased extensively, especially meadows. 
 Town records, in Winsor Hist, of Duxbury. 1 Dwight, Hist, of Conn., 84. 8 New Haven 
 
 Col. Rec, 192. ^Il)id. 10 Lambert, New Haven, &c., p. 163. 
 
39 
 
 habitants according to their estate in Hsts of diflferent years. The num- 
 ber of proprietors was, therefore, variable, rising, e. g., between 1686 
 and 1712 from 109 to 197. But a division of 1805 was based upon 
 the hst of 1686, the earlier number having been thus fixed upon.' 
 
 Divisions and grants of common lands could generally be made by 
 a majority vote, and the power was often delegated to selectmen or com- 
 mittees. But Milford required the consent of three-fourths of the in- 
 habitants, " and in Eastham (Mass. ), the action of the majority was re- 
 stricted by provision that the grant, to be valid, should "be sub- 
 jected to the negative of men chosen for that purpose, and shall be 
 laid out and bounded on their approval. ''' 
 
 In addition to the division of lands among the proprietors, or the 
 inhabitants, the towns, like the colonial governments, sometimes 
 made grants to individuals, especially to those whose services were or 
 might be valuable. Thus Groton made grants to encourage the estab- 
 lishment of a mill,'' Haverhill did the same,^ as did many other towns. 
 Lands were also sold occasionally, for various purposes, as at Barn- 
 stable in 1691 (to raise money for the expenses of obtaining the 
 Colony Charter),' but this was never done to any great extent. 
 
 IX.-LAND COMMUNITIES.-(CoNTiNUED.) 
 Restrictions upon Alienation. 
 
 A very interesting feature in the early history of the institutions of 
 New England, is the care taken to preserve the original character of the 
 community, and to control its membership. As the entire right of 
 commoners might be assigned, and usually passed with a grant of land 
 by a commoner, it was not enough for the town to retain the right of 
 admitting freemen; it also needed to have control over sales of land 
 
 1 Lambert, New Haven, &c., 96. llbid. a Freeman, Cape Cod, II., p. 376. 
 
 ler. Hist, of Groton, 32. sChase, Haverhill, 84. i> Freeman. Cape Cod, II.. 279. 
 
40 
 
 made by its members, especially of house-lots. This control has been 
 very generally claimed and exercised by land communities wherever 
 found, and for similar reasons ; and the resemblance in this respect be- 
 tween the institutions of communities so widely separated in time and 
 place, is very marked and worthy of notice. 
 
 In the village communities of Russia, a man may not sell his house 
 and land to one who is a stranger to the " mir," without the consent of 
 the inhabitants of the village, who have always the right of pre- 
 emption.' Similar rules prevailed in Germany,^ France" and Ireland;'' 
 and the right of the inhabitants of a village to reclaim land in case of 
 sale to a stranger is, according to Laveleye, found everywhere.' 
 
 The land communities of New England formed no- exception to 
 this, but the rules which were adopted in them to eifect the purpose, 
 although similar in substance, were of varying degrees of strictness. 
 
 In Connecticut, a law of 1659, declares that "No inhabitant shall 
 have power to make sale of his accommodation of house and lands 
 until he have first propounded the sale thereof to the town where it is 
 situate, and they refuse to accept of the sale tendered." Elsewhere 
 the subject was left to the towns. The General Court of Massa- 
 chusetts did, indeed, once raise the question whether towns could re- 
 strain individuals from sale of their lands or houses ; but no action is 
 recorded, and the proceedings of the towns were not interfered with. ' 
 At Guilford (Conn.), no one could sell or alien his share, or any part 
 of it, or purchase of another, unless by consent of the community.* 
 Watertown (Mass.), in 1638, made a provision " against selling town 
 lots to forrainers,''' and Wenham, 1642, voted that " in case any wished 
 to remove from the village, they were to offer their places for sale first 
 to the plantation.''" Barnstable ordered the same, and further, "in 
 case the plantation buy it not, then he shall provide a purchaser whom 
 
 1 Laveleye, La Propriete Primitive, ii. sMaurer, "Das weit verbreitete Vorkaufsrecht der 
 
 Dorfmarkgenossen,'' u. s. w., see Dorfverf., L, 320. 3See the Contume de Bayonne, cited by 
 Maurer in the same, p. 322. "Le voisin et habitant de la dite ville est prelere a I'ettanger 
 acheteur.'' i Ancient Laws of Ireland, cited in Maine, Early Hist, of Institutions, log. 5 La 
 
 Propr. Prim., 152. 6 Conn. Rec, I., 351. 7 Mass. Rec, L, 201. 8 Lambert, New Haven, 
 
 &c., 163. 9'i'own Records, in Bond, Hist, of Watertown, 995. 10 Allen, Hist, of Wenham, 26. 
 
41 
 
 the town shall approve, and if the town do not provide a chapman in 
 two months, he may then sell it to whom he will. "' Billerica allowed 
 the proprietor of "lo acre privilege" to sell a "5 acre privilege," and 
 one who had not more than a " 10 acre privilege could not dispose of 
 it even to his children unless the town had refused to make them a 
 grant." Meadfield imposed the restriction for seven years only." The 
 need of such legislation after some years was not felt as at first, and the 
 restrictions eventually were every^vhere disregarded. 
 
 Common Fields. 
 
 The proportion of land cultivated in common varied greatly, at 
 different periods, and in different places. At first, common cultivation 
 was on a much larger scale than it was at a later day. For, the 
 practice being adopted as a matter of necessity in most cases,'' whenever 
 the necessity ceased to be felt, the practice was no longer favored. 
 They sometimes included nearly all the "improved" lands of the town, 
 as at Simsbury (Conn. ), where a committee of the General Court laid 
 out two fields, extending 7 miles on each side of the river." In other 
 cases, although they did not include all the lands, they yet included 
 some lands in which all the people of the town were interested. It 
 was to such fields that the laws of Connecticut and Massachusetts re- 
 ferred, giving authority over them to the townsmen or selectmen of the 
 town, or were there were none, to the major part of the freemen,* to 
 order the manner of their improvement. Massachusetts afterward put 
 the power over common meadows and pastures in the hands of the 
 proprietors of the greatest part,' as she had done at first in case of corn 
 fields.* It is probable, however, that this law refers to groups of owners 
 smaller in number than the whole body of commoners. Common 
 fields of this sort were found in most of the towns. Sometimes they 
 were formed from lack of the means to fence separately ; sometimes 
 
 1 Freeman, Cape Cod, II., 254. 2 Farmer, Hist. Memoir, 8. 3 Annals of Dedham, 99. 
 
 4 " Necessity constraining the improvement of much land in common." Conn. Col. Rec. , I. 
 loi. 5 See Phelps*, Simsbury, 80. 6 Mass. Rec, II., 49 ; Conn. Rec, I, loi, 214. i Mass. 
 Rec, II., 19s. 8/&Vf., 39. 
 
42 
 
 from the difficulty of fencing, as on the extensive intervale-lands of 
 the Connecticut, and often, from mere considerations of convenience. 
 In Milford (Conn.), the town lots were at first fenced in common, 
 and soon after, three large common fields were formed. Much of 
 the land in that town was thus cultivated, and " field meetings" were 
 held to manage the common property.' 
 
 Lands were even granted, to be thrown together into a common 
 field.'' They were sometimes meadow, sometimes pasture, and some- 
 times plowing land.^ 
 
 Fences were maintained by each owner according to his share in the 
 land enclosed. Sometimes gates or bridges were thus maintained in- 
 stead of a portion of fence, and in Milford and Stratford, lands were 
 held upon condition of such service,* the proper care of them being of 
 importance to the whole town. 
 
 The bounds of lands lying in common were to be perambulated by 
 the particular proprietors, and boundary marks (mere stones) to be 
 carefully kept up. ^ 
 
 A resemblance will be noticed between these smaller groups of 
 cultivators in common and the alp and vineyard communities in 
 Europe." 
 
 Home Lots, Acre Rights, Pitches. 
 
 Home Lots or House Lots. — The exact meaning of these terms in 
 the earliest years of the Colonies it is not easy to fix. They differed in 
 size in different towns, and often in the same town. But sometimes 
 they are all of the same or nearly the same size, and the difference 
 only one of situation. At Barnstable they are said to have been from 
 6 to 12 A., at Haverhill 5 to 22, Groton 10 A. to 20, &c. , &c. When 
 they were of variable size in the same town, they were often pro- 
 portioned to the ' ' quality and estate '' of the possessor, as at Spring- 
 
 1 Lambert, New Haven, &c., 96-7 (from Town Records, Lib. I., 87). See also Town Records 
 of Stratford, Lib. I. 2 Bond, Watertown, 995 . 3 Mass. Rec, II., 49. •) Milford Town 
 
 Records (in Lambert, New Haven, &c., g6). Stratford Town Records. 5 Conn. Rec„ I., 513. 
 
 6 Maurer, Gesch. d. Dorfverf., I., 27. 
 
43 
 
 field, ' Haverhill, ' and other places. Sometimes the right to choose a 
 house lot was drawn for "according to estate," as at Hadley,' 
 
 Whatever their size or the mode of allotment, the house lots were 
 an important part of the New England system. They were laid out so 
 as to form a village as the centre of a plantation, and thus ensure the 
 security of one compact settlement and the various advantages of 
 village life. A certain dignity attached to the original lots, and it was 
 considered important to the community that they should not be 
 abandoned or neglected, or even thrown together. 
 
 In Connecticut, to remedy and prevent so " great an abuse,'' it was 
 ordered that "all dwelling or mansion houses that are or shall be allowed 
 in any plantation or town in this jurisdiction shall be upheld, repaired 
 and maintained sufficient ;" also that owners of lots not built upon are 
 to build within tweh'e months after date.'' 
 
 Acre-rights or Lots. — This is an expression of entirely different 
 nature, and merely indicates the share owned by any one in the 
 common lands. Their value varied greatly in the different towns, 
 but was of course a fixed quantity in each town. In Billerica, for 
 instance, a lo acre lot or right was equivalent to 113 A. of upland and 
 12 A. of meadow, and so on, in exact proportion.' In Groton there 
 were 60 A., 20 A., &c., rights, and there were 755 rights in all. A 
 60 A. right would have entitled the owner on complete partition to 
 3,242 A. of common lands." 
 
 Pitches. — These were rights drawn in a division which entitle the 
 drawer to lay out a lot of land in the commons wherever he might 
 choose. The practice was common in the later history of the 
 colonies, although not always judicially approved. 
 
 I Holland, Rec. of Springf. in West Mass., I., 25. 2 Chase, Haverhill, 56. " He that was 
 
 worth ;£2oo to have 20 A. to his lot." sjudd, Hadley, &c., 287. 4 Conn. Rec, I., 563. 
 
 6 farmer. Hist. Mem., 8. 6 Butler, Groton, 29. 
 
44 
 
 From the examination of our subject which has been made, thus far 
 it appears that the exemption from feudal burdens, in which we rejoice, 
 is not due to any merit of the colonists, for the free socage tenure 
 flows from the language of the grant, which as we have seen, was not 
 exceptional, even in England at that day. The founders of the Ameri- 
 can colonies were not in this respect in advance of public sentiment 
 in the mother country, as may be seen by reference to the journals of 
 Parliament under James I. 
 
 But apart from this, in every other respect, the excellence of our 
 land system is certainly due to the wisdom and patriotism of the leaders 
 of the infant commonwealths — men who held their leadership by virtue 
 of education, character, and independent position. 
 
 The essential feature of the plan adopted in the settlement of the 
 soil was that it was accomplished by organized colonization, and that 
 the unit of colonization was a small plantation, which, whether from 
 tradition, or inherited, instinctive prepossession — a survival, if you 
 will— closely resembled the ancient village communities of the old 
 world. 
 
 The organization of these communities and the character of the 
 members were mainly determined by committees chosen with care by 
 the central authority. The persons who were to compose it were 
 selected by that authority or its committees, so that the principles of 
 the larger commonwealth were adopted in the new settlement, and 
 carried out in the further division of the soil. Great- pains were taken 
 to guard against excessive grants and the accumulation of large estates ; 
 and the perpetual maintenanee of this division into small holdings was 
 secured by the laws of succession, while the registry laws adopted at an 
 early date tended to the]]saine result by making the alienation of land 
 by deed easy and simple. Freehold tenure was the universal rule. 
 
45 
 
 In the division of the soil of New England among the settlers, our 
 ancestors were guided by no visionary theories of equality. Land, 
 however abundant, was to be given to those who could use it. Yet no 
 great inequality was countenanced, and every one had enough. As a 
 rule, all the land granted was soon occupied, except the parts reserved 
 for a time as common. In the few instances where land was allowed by 
 non-resident holders to lie unimproved, legislation was promptly 
 brought to bear, providing for its equitable taxation, and the threatened 
 evil was thus prevented. ^ Many grants were also by their terms made 
 forfeitable if not improved within a given time. Provision was made 
 for the maintenance of the ministry in all grants to communities, and 
 the plantations generally reserved lands for school purposes. ^ 
 
 Of scarcely less importance were the orders by which the planters 
 were directed or encouraged to settle closely together, ' ' for safety, 
 Christian communion, schools, civility and other good ends. "' The 
 fruits of this policy are seen in the villages which form to-day so attrac- 
 tive and characteristic a feature of New England life. 
 
 In later days, as the settled portion of the colonies grew in extent, 
 the forming of new plantations was sometimes left to the enterprise of 
 leading men, and the order of the court then took a slightly different 
 form from that which has been given. * But even then, the purpose, 
 conditions and exemptions of the grant are still carefully expressed in 
 the usual terms. In New Hampshire, under the royal governors, less 
 care was exercised, and grants often remained unimproved for long 
 periods. In Connecticut the action of the planters was less under the 
 direction of the colonial authorities. Yet the general character of New 
 England plantations was everywhere and at all periods substantially 
 such as has been described in these pages. 
 
 Having seen how the public lands were settled and distributed among 
 the colonists, it remains to mention briefly some of the rules of law 
 which governed the ownership and transfer of land in the hands of 
 
 ^ Mass. Rec , V., 375. A. & R. of Mass. Bay, I[., 616, 941; III., 251. 2 In New Hamp- 
 
 shire the grants of the royal governors re.served certain shares for public or pious uses. 10 Verm. 
 Rep., g. Maulden was granted 1000 acres for the use of the ministry forever ; but this was ex- 
 ceptional. Mass. Rec, IV., Pt. 2, 45. 3 Mass. Rec, V., 214. -* (?.^,, Mr, Thomson's 
 grant. Mass. Rec, V., 408. 
 
46 
 
 private persons, and to show their adaptation to the general policy of 
 the colonies, which has been here set forth. 
 
 The private law of real property in New England was, in the main, 
 that of the mother country, so far as that applied to free socage hold- 
 ings. But two principles were adopted at an early day, which, in the 
 words of Chalmers, "not only mark the spirit of the people, but were 
 probably the cause of most lasting consequences. "* 
 
 The laws for the distribution of intestate estates in the colonies gave 
 the same equal payment to all creditors, and (except in Rhode Island) 
 the same equal shares to all the children, save that the eldest son re- 
 ceived a double share. This modified preference was, not quite in- 
 genuously, described by some of the colonies' agents, as " like that of 
 England ;" but the right of primogeniture in that country was a very 
 different thing, and the colonial rule was probably of Mosaic origin. 
 Just as the law in England had, and has to this day its effect upon the 
 voluntary distribution of property by will in the custom of making 
 " eldest sons ;" so the more natural provisions of colonial law encour- 
 aged the equal division of property in this country among all the 
 children of a testator. 
 
 Laws subjecting the lands of a debtor to levy and execution, and 
 those making the heir or executor in effect a trustee for creditors, had 
 much to do with the prosperity of the colonies.^ To them, says 
 Chalmers, "much of the populousness and the commerce of Massa- 
 chusetts is owing. " 
 
 The transfer of land, as has been said above, was greatly facilitated 
 by laws passed at an early day providing for the registration of titles and 
 the simplification of conveyances, and the law thus established was 
 substantially that which prevails at the present time. 
 
 All these rules of law, it will be seen, harmonized with the general 
 spirit of colonial legislation, and favored the perpetuation of that order 
 of things which the founders of New England sought by their system of 
 settlement to produce. 
 
 For their wisdom and foresight in all these regulations respecting 
 the disposition of public lands, and in the private law of real property, 
 
 * MS. in possession of Mass. Hist. Soc, (cited Acts and Res. of Mass. Bay, I., 107). 2 Ibid, 
 
47 
 
 a great debt is due to them ; and the more closely the causes 
 of the prosperous social and economical condition of New England are 
 studied, the fuller will be our appreciation of the benefits which have 
 enured to us as the result of the land system whose foundations were 
 laid in the early days of colonial history. 
 
 Evening Post Print, 208 Broadway, N. Y. 
 
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