In 1675, after some four decades living more or less easily with the English adventurers by the falls of Maine’s Great Works River, the ailing Pennacook sachem called those neighbors to his lodge. Mr. Rowle (the only name the English leaders of Piscataqua Plantations ever knew him by) wanted to place a deed in the official records of the town confirming that he and his children belonged on what he had always considered his land.¹ He told them he could sense trouble coming and said that he wanted the world to be able to recognize what uncounted generations of tradition had assured his family: a place on the land. To do that, Mr. Rowle asked the town leaders to write out a statement of his right to that land, to have it validated by a public official and then to deposit it in a place where anyone, for generations to come, could inspect it. This was a procedure still new both to Mr. Rowle and to the Piscataqua Plantation delegation, but it was one that two of those Englishmen had arranged some years before when Mr. Rowle granted them some land along the river.² Those earlier records are still there for anyone to see, in the first Deed Book of York County, Maine. One declares that that Humphrey Chadbourne had “bought of Mr. Roles … Half a mile of ground” six years earlier. Another, that Mr. Rowle had granted his “Right of the Ware [weir] at the falls of the Great Works River to Chadbourne “except for … so much smale Alewive” as he and his heirs “shall have Occasion to make Use of for Planting.” This transaction was carefully described as a grant by bargain and sale—legal terms that do not describe a purchase but that mean a transfer of rights to land without a guarantee that others might also have rights there. A third deed involved a sale of land to Thomas Spencer for £5 of “a Parcell of Land called by the name of Quamphegon.” There is no record, however, in the town or county land records of the deed for his own land that Mr. Rowle sought. That deed, if written, was never recorded in the town book. Unrecorded, his children’s right to the land by the falls would cease to exist; unrecorded, the way he understood his place on the land and among his neighbors would, too.

Mr. Rowle’s deeds were recorded barely 15 years after the first enactment into law of what was then the brand-new idea that land records ought to be the responsibility of the state to validate and make public. They detail a variety of ways for individuals to place themselves on land that is far more complicated than the fee simple (exclusive ownership) that now are validated in public land records in North America, Australia, and many former colonial territories. Mr. Rowle’s deeds, for instance, detailed use and access rights for a fishing weir and reserved a portion of that half mile of ground for a cornfield.³ This was far from uncommon in the first public land records. The first law requiring recording and public access to land records, a Massachusetts Bay Colony statute of 1634 , directed town constables to enter into a book “a surveyinge of the howses backeside, corne feildes, moweing ground & other lands” of the townspeople; that is record ownership (frank-tenems) and use rights to such commons as marshy hayfields (moweing grounds) and pasture (backeside).⁴ Back in England, land records, whether of ownership or tenancy or use rights, were held privately and were not accessible for just anyone to see.⁵ There would have been no need in England—customary rights, routinely passed on from generation to generation, were rarely questioned or transferred outside a family. The need for a manor court or tenant to consult the private records came up relatively infrequently. At the same time, community consensus and custom, confirmed for generations, long had been enough for Mr. Rowle, like his father and father’s fathers, to know where he could set his weir in the spring for alewives, which maples he could tap for syrup in the last days of winter, where his wife could plant her corn, beans, and squash come summer and in which stretch of woods he could hunt for deer and set traps for beaver.

In Mr. Rowle’s long-forgotten request, then, is a story about how we think about our place on the land and how it has changed. It is a story, too, about power and how it is exercised over people and over natural resources. Mr. Rowle’s place by the Great Works River would end up belonging to others, by virtue of the same town records where he had hoped would secure rights to his land for his children. His mistake was not only to rely on others to record his rights. It also was to misunderstand this point: that saying that you belong on the land is not quite the same thing as to say the land belongs to you. Documentation and, even more importantly, public proclamation, tended to obscure that distinction, both with recorded deeds and two centuries later with the innovation in 1858 on another barely settled shore: South Australia’s Torrens system of registering state-certified, indefeasible title to land.

The questions, then, are: first, what did the introduction of deed recordation signify about the ways people thought about their place on the land in the early days of imperial expansion across the Atlantic and, second, what did the registration of title on the South Australian model suggest about how those concepts had evolved over the course of the nineteenth century with transformations in thought that new industrial and financial techniques sparked. Both recordation and registration made it easier to express a notion of property and land just taking shape in more formal theories of political philosophers, legal scholars, and political economists: that land was simply one more kind of asset, its value not found from how people lived on it but merely through the price it fetched on the market. While the idea of owning land is in many places quite ancient, easy commerce in land is less so.⁶

There is this question, too: why did deed recordation and title registration emerge when and where they did, in seventeenth century New England and mid-nineteenth century South Australia? The one was where Puritans hoped to make a new, moral society in what they insisted was a vacuum domicilium (empty house) even as they promised to convert its indigenous peoples to Christianity. The other was where English Dissenters sought a new permanent home on lands of the Kaurna, Ngarrindjeri, Peramangk, and Ngadjuri, with the promise (possibly with fingers crossed) that they would not act as other Australians had and treat the land as terra nullius (no-man’s land). Both shared subtly distinctive features. In neither colony could settlers sustain the myth that they were moving onto land that nobody else wanted. This posed a moral challenge, since both Massachusetts Bay and South Australia were intended to be permanent havens for religious outsiders, unlike the first British ventures in North America or Australia—the overwintering fishermen in Newfoundland, the gold-seeking adventurers of Virginia’s Jamestown, and the prison colonies of New South Wales and Van Diemen’s Land. In both New England and South Australia, emigrants were supposed to settle in ordered, nucleated groups. In New England, entire church congregations moved together onto lands granted to township proprietors. In South Australia, the official policy was to sell public land (i.e. Aboriginal land) at high prices to encourage clustered settlement around market towns. It was the distinctive situation of those Puritan and Dissenter emigrants—the physical pattern of settlement, the search for a religious haven in a new land, the marginally troubled consciences that came as they confronted indigenous peoples—that, in their minds, demanded the legalistic niceties of official documentation and proclamation of rights. The perceived need to proclaim land rights in both New England and South Australia arose from emigrants’ realization that they had arrived on a shore that was supposedly empty of people and free for the taking, only to find that it in fact was not. And if settlement was to be well-ordered, any individuals right to be in his or her specific place seemed essential.

Later waves of imperialists would seize on the comfort of public land records as they encountered societies across the Pacific, in Southeast Asia, and in Africa with land tenure practices that frustrated plantation agriculture and the extraction of natural resources (timber and minerals, in particular). The sense of uncertainty that came with finally accepting that terra nullius was not so empty of people persisted. It persisted well after the first few generations of settlers managed to dispossess indigenous people. It persisted, too, even after the force or threat of arms secured imperial control over, for instance, Fiji, the Philippines, Malaya, and East Africa. Uncertainty was why the deed recording Nathaniel and Mary Witcher’s sale of the land at Casco Bay, Maine, repetitively declared that they:

Hath given granted bargained sold Aliened Enffeoffed Conveyed & Confirmed & by these presents Doth fully clearly & absolutely give grant bargain Sell Aliene Enfeoffed Convey & Contirm” to Joseph Maylem “his heirs & Assignes for ever all their right Title Estate Inheritance property possesion claim & demand whatsoever in & unto any Lands Commages Grants Claims & possessions of Land … Together with all such liberties proffitts previlidges Commoditys & Appurtenances (repeated twice in the deed)

and, just in case that was not enough, that they also “doth hereby Covenant promise grant & agree to & with ye sd Joseph Maylem” that they

are ye True Sole & Lawfull owners of all ye afore bargained premisses Haveing in themselves full power good Right & Lawfull Authority to sell & dispose of ye same … & that ye sd Joseph Maylem his heirs & Assignes shall & may henceforth for ever Lawfully peaceably & quietly have hold use occupie possess & enjoy ye above granted premisses with ye Appurtenances thereof free & Clear & clearly acquitted & discharged of & from all & all manner of … incumbrances whatsoever.⁷

But such floods of words were not necessary in law. They addressed a perceived rather than real insecurity about the status of land in law. “I...