History of Westchester county : New York, including Morrisania, Kings Bridge, and West Farms, which have been annexed to New York City, Vol. I, Part 19

Author: Scharf, J. Thomas (John Thomas), 1843-1898, ed
Publication date: 1886
Publisher: Philadelphia : L.E. Preston & Co.
Number of Pages: 1354

USA > New York > Westchester County > History of Westchester county : New York, including Morrisania, Kings Bridge, and West Farms, which have been annexed to New York City, Vol. I > Part 19

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The new Patent of 1674, on its face was an original grant, but in fact it simply revested the Duke with all the rights, powers, jurisdiction and territory he possessed under the Patent of 1664.

These facts are distinctly stated, because the valid- ity of the confirmations of all Dutch groundbrief's, transports, and other grants, and all subsequent Eng- lish grants during the Proprictorship of the Duke of York, and the later Royal Government, as well as those originally made by Connecticut authorities on Long Island, and subsequently confirmed by the Duke, rests upon them.

The tenure by which the Duke of York held his Province in New York was allodial in its nature.

In this respect it was the same as that under which, as has previously been shown, the Dutch West In- dia Company held New Netherland under their charter, and the Patroons held their Patroonships under the different "Freedoms and Exemptions." But it was not to follow a good Dutch example, that this tenure was granted by the King and accepted by the Duke, but because the law of England had then been recently changed, and neither King nor Duke could do otherwise, even if they wished, of which there is no evidence. Four years before New York was given by the King to the Duke, and its surrender by the Dutch, the Parliament of England had passed that Great Act, second only to Magna Charta itself,-if it was second,-in its effect on English liberty, and

the rights of English subjects, the act abolishing feudal tenures, and all their oppressive incidents for- ever throughout the realm.

This was the famous " 12 Charles II, cap. 24," and its title is, "An Act taking away the Court of Wards and Liverics, and Tenures in Capite, and by Knight Service, and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof." It swept away, at one blow, all the grievous feudal military tenures, their great exactions, and the means possessed by the monarch for enforcing them, as well as all charges payable to the King, or any lord paramount under him, arising therefrom; and prohibited their creation afterward, forever. After the clauses of aboli- tion, the act continues,-" And all tenures of any honours, manors, lands, tenements, or hereditaments, of any estate of inheritance at the common law, held either of the King, or of any other person, or persons, bodies politic or corporate, are hereby enact- ed to be turned into free and common socage, .. any law, custom, or usage to the contrary hereof in any way notwithstanding."1 The fourth section pro- vided. " That all tenures hereafter to be created by the King's Majesty, his heirs or successors, upon any gifts or grants of any manors, lands, tenements, or hereditaments, of any estate of inheritance at the common law, shall be in free and common socage only, and not by Knight Service or in Capite."

As this abolition deprived the King of large reve- nucs, and the means of supporting his military, and other governmental expenses, the act granted to him as a recompense duties upon beer, ale, and other articles in common use.2

It is thus seen not only that there were no feudal rights nor privileges granted in New York to the Duke of York by his Patents, but that the King had no power whatever to grant any to him, or to anybody else. And none ever were granted by any British Sovereign, or British Governor, in that Province. The rights and privileges contained in the subsequent Manor grants in New York, were simply those ap- pertaining to, and consistent with, the free socage tenure on which they were granted, and under which they were held.

This allodial tenure of land, though it has been for- merly referred to under the Roman Dutch legal system of New Netherland, may now be more fully described, as it was also the tenure by which all lands in New York under the English system werc held.

1 Section 1 of the act.

2 " Up to the passage of this act, every free land-owner was burdened with military service, which was not considered an incident of tenure, but a duty to the State." Digby's Law of Real Property, 20. Hence, the substitution of taxation in lien of military service by this act, is the foundation of governmental support by taxation, both in England and America, and of the existing systems of taxation in both countries. The military tenures " were sold, or released to the country in considera- tion of the hereditary revenue of excise by the Statute, 12 ch. 2, c. 24." Fourth Report of the English Law Commissioners, 110.

HISTORY OF WESTCHESTER COUNTY.

The law of land hoth in Holland and England was of Teutonic origin. In the former country it was modified earlier than in the latter by the conquest by the Romans, and the introduction of the Roman Law, and at a later period in each, by the introduc- tion of the Canon Law. The Teutonic idea of property in land was based on its conquest by a body of men under a leader or chief,-a successful barbaric invasion. The land so won was considered the com- mon property of its captors, not of the leader alone. He, as chief, had the regulation of the distribution of the conquest among the conquerors, and of the cultivation of the land by the distributees who re- ceived it. As he was the leader of this community in war so he was its head in time of peace.

The land thus belonging to the community was in both Holland and England considered as what we should now call "public land." Among the Saxons it was called " folcland," that is, land of the folk, or people. As civilization progressed and Christianity was introduced, the band of barbaric invaders, or tribe, adopted, of necessity, a political organization. The leader became a chief of a district or principality, or king of a petty kingdom; his followers became his supporters or subjects ; and the land was made the source of revenue, by its being given in separate parcels to individuals in severalty as their private property. Lands so given were granted by a writ- ten " book " as it was termed, which was a dced or charter, delivered to the grantee, and it was then said to be " booked " to him, from which it was called "boc- land," that is, booked land. This " book," or grant, stated that the grantee was to hold the land free from all burdens and from any services or moncy payment, except threc,-military aid in case of invasion, manual, or money aid in the repairing of fortresses, and in the repairing of bridges, which duties were bornc by all landholders indiscriminately, and was termed the trin- oda necessitas, or threefold obligation. This military aid, was simply the liability to be called on to defend the country in case of attack, and not the tenure by knight service under the feudal system, which tenure was unknown in England till after the Norman conquest. Thus before that event all land in England was either ' folcland " or " bocland." 1

All land not made 'bocland' remained 'folcland' and was held in common by the community. Later it became vested in the chief, as its head man, and subject to his control. "Nearly, if not quite coex- tensive with the conception of "bocland," says Dig- by, "was that of allodial land. The term 'alod,' allodial, did not, however, have any necessary refer- ence to the mode in which the ownership of land had been conferred; it simply meant, land held in abso- lute ownership, not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to whom the possessor of the land

was bound to render service." 2 It was another namc for 'bocland' and signified that it was devisable by will, and in case of intestacy was divisible among children equally.' It could be freely sold at pleasure by its possessor ; or its beneficial enjoyment could be granted by him for a longer or shorter term, at the end of which it reverted to him or his heirs; when this last disposition of it was made it was called "laenland," literally loan land, or in modern parlance leased land.

The success of the Norman Conquest of England changed almost entirely these early allodial tenures. William the Conqueror introduced the military tenure of " Knight-service" or "in chivalry," with all its feudal attributes and exactions, which had come into vogue in the western and southern portions of the European continent. That system with its correlative rights of protection by the King or the lord, and of service as soldiers by the tenants or vassals, carried down through all classes of society from the highest to the lowest, termed the feudal system, thus introduced, be- came the basis of the English land system and land law. From William of Normandy to Charles the Second, gradually developed in the earliest reigns of the Norman Kings to its fullest extent, its principles governed English land, English law, and English thought, until the enactment of the statute of 1660 in the twelfth year of Charles the Second abolished feudalism forever, practically restored the old Saxon allodial tenures, and turned to freedom the mind of England. "Perhaps," said that most learned chief justice of Massachusetts, James Sullivan, in 1801, then that State's Attorney-General, " the English Na- tion are morc indebted to this one act for the share of liberty they have enjoyed for a century and a half past, and for the democratic principles by that law retained in their government, than to Magna Charta, and all the other instruments of which they boast." 3

To show how entirely different the "feudal sys- tem" was from the systems introduced into New York by the Dutch and English ; and how erroneous have been, and are, the views that have been ex- pressed by American, and New England, as well as New York, writers, respecting the latter, it will be well to recur to what "feudalism" really was.

Scarcely any subject of an historical nature has been more fully and thoroughly investigated, studied, and written upon, in late years, by modern historical scholars than this. Germany, France, and England, have each produced writers who have given to the world the results of searches and investigations of the most exhaustive character; von Maurer, Waitz, Eichorn, Roth, and Richter, in the former, Guizot,

1 Digby's Hist. Law of Real Property, Ch. I. Sect. 1.

2 The word "alod " (Latinized into allodium, whence the Engli-h "allodial ") does not occur in Anglo Saxon documents before the eleventh century, when it appears in the Latin of Canute's laws in the Colbertine MS. as the equivalent of " bocland " or " hereditas. " Stubbs Cons. Hist. 76, n.

3 Hist. Land Titles in Mass. 52.

THE ORIGIN AND HISTORY OF THE MANORS.

Thierry, Sismondi, Laveleye in France, and Palgrave, Austin, Freeman, Digby, Maine, and Stubbs in Eng- land. The latter, the latest writer on this subject, has treated it so fully, that a short statement almost in his own words will make the matter elear.

Feudalism was of distinctly Frank growth. The principle which underlies it may be universal, but its historic development may be traced step by step under Frank influence, from its first appearance on the conquered soil of Roman Gaul to its full develop- ment in the jurisprudence of the Middle Ages. As it existed in England, it was brought full grown from France at the Norman Conquest ; 1 and "it may be de- scribed as a complete organization of society through the medium of land tennre, in which from the King down to the lowest land owner all are bound together by obligation of service and defenee: the lord to pro- teet his vassal, the vassal to do serviee to his lord ; the defence and service being based on, and regulated by, the nature and extent of the land held by the one or the other. As it developed territorially, the rights of defence and service were supplemented by the right of jurisdiction. The lord judges, as well as defends, his vassal; the vassal does suit as well as service to his lord. In States in which feudal govern- ment has reached its utmost growth, the politieal, finaneial, judicial, every branch of publie administra- tion, is regulated by the same conditions. The een- tral authority is a mere shadow of a name. 2

It grew up from two sources, the beneficiary system and the practice of commendation. "The system tes- tifies to the country and causes of its birth. The bene- ficium is partly of Roman and partly of German ori- gin.3 In the Roman system the usufruet, the occupa- tion of land belonging to another person, involved no diminution of the status (the condition) of the oeeu- pier ; in the Germanie system he who tilled land that was not his own was imperfectly free. Commenda- tion on the other hand may have had a Gallie or Celtic origin, and an analogy only with the Roman elientship." ៛

"The beneficiary system originated partly in gifts of land made by the kings out of their own estates to their kinsmen and servants with a special undertak- ing to be faithful, partly in the surrender by the land- owners of their estates to ehurehes or powerful men to be received baek again and held by them as ten- ants for rent or service. By the latter arrangement

the weaker man obtained the protection of the stronger, and he who felt himself inseenre placed his title under the defence of the church. By the prae- tiee of commendation, on the other hand. the inferior put himself under the personal care of a lord [that is, commended himself to him, hence the term] but with- out altering his title, or divesting himself of his right to his estate; he became a vassal and did hom- age. The plaeing of his hands between those of his lord was the typical aet by which the connexion was formed. And the oath of fealty [faithfulness] was taken at the same time. The union of the bene- fieiary tie with that of commendation completed the idea of feudal obligation ; the twofold tie on the land, that of the lord and that of the vassal, was sup- plemented by the twofold engagement, that of the lord to defend, and that of the vassal to be faithful." 5 This oath of 'fealty' and wherein it differed from 'homage' may be explained best in the words ot Littleton, "Fealty is the same that fidelitas is in Latine. And when a freeholder doth fealty to his lord he shall hold his right hand upon a booke (a Bible) and shall say thus : Know ye this my lord, that I shall be faithfull and trne unto you, and faith to you shall beare forthe lands which I elaime to hold of you, and that I shall lawfully doe to you the eus- toms and services which I ought to doe, at the termes assigned, so help me God and his Saints; and he shall kisse the booke. But he shall not kneel when he maketh his fealty, nor shall make sueh humble rever- enee as is aforesaid in homage.6

The practice of commendation became so very gene- ral, that in the words of Sir Henry Maine, it " went on all over Europe with singular universality of operation, and singular uniformity of result, and it helped to transform the ancient structure of Teutonie society no less than the institutions of the Roman Provincials."7 It was one of the leading eauses of the universality of feudalism in Europe.

Well writes one of the most distinguished living jurists of New York, on this subjeet,-

" Feudalism is compounded of barbarie usage and Roman law. While it resembled in some respeets a Hindoo village community, it is in other respeets quite different. The Hindoo communities gathered together by instinet, and new comers were introduced by fietion. The feudal obligation was created by con- traet. The feudal communities were, for this reason, more durable and varied in character than the aneient societies. Some would hold that the variety of Modern Civilization is due to the exuberant and er- ratie genins of Germanie raees. In opposition to this error, it may be asserted that the Roman Empire bequeathed to society the legal conception to which all this variety is attributable. The one striking and

1 Freeman in his fifth volume denics this in his usual self-sufficient man- ner, aud attacks "lawyers " for saying so, very fiercely. But before he ends that chapter he confines his words to governmental matters, and really admits that " the lawyers" were right after all as to the tenures.

" I. Stubbs' Cons. Ilist., 252.

3 The beneficia, or benefices, were " grants of Roman provincial land by the chieftains of the tribes which overran the Roman Empire ; sucli grants being conferred on their associates upon certain conditions, of which the commouest was military service." Mainc's Village Communi- tics, 132. The same writer also says, "that in the incradicable tendeucies of the Teutonic race, to the hereditary principle, the benefices became descendible from father to son."

4 I. Stubbs' Cons. Hist. 254.

5 1. Stubbs, 252.

& Co. Litt., chap. II. sect. 91.

7 Hist. of Institutions, 153

HISTORY OF WESTCHESTER COUNTY.

characteristic fact in the customs and institutions of barbaric races is their extreme uniformity." 1

The effect of feudalism on the society of the era in which it existed, was two fold. It repressed and harshly kept down the personal rights and freedom of what in our day we now term "the masses," but it also gave rise to, maintained, and established in those who then ruled the masses of that day, those feelings, rules of conduct, and principles of action, to which are really due the vastly higher general civilization of both classes of people at this era. If we investigate feudalism in its social aspects, in the words of the late chief justice of Ceylon, "we shall find ample cause for the inextinguishable hatred with which, as Guizot truly states iu History of Civilization in Europe, it has ever been regarded by the common people. But this ought not to make us blind to its brighter features. There was much in feudalism, especially as developed in the institutions of chivalry, that was pure and graceful and generous. It ever acknowledged the high social position of woman, it zealously protected her honour. It favoured the growth of domestic attach- ments, and the influence of family associations. It fostered literature and science. It kept up a feeling of independence, and a spirit of adventurous energy. Above all, it paid homage to the virtues of Courage and Truth in man, and of Affection and Constancy in woman." 2

Such was the feudal system in reality, its origin and principles. As a system of land tenure, or of govern- ment, it not only never existed in the Province of New York, but it was absolutely the opposite of the systems of both which were there established. No lord para- mount, either as Duke of York, or as a Lord of a Manor, was ever known within this State while an English Province. The former was a Proprietor only, as William Penn and Lord Baltimore were, in Penn- sylvania and in Maryland. The latter was an owner in fee with no powers, rights or privileges, but those appurtenant to, and consistent withi, the freest allodial tenure. Moreover, it not only never existed, but it could not possibly have existed in New York. For it was prohibited by the statute law within the realm of England four years before New York became an integral part of the dominions of that realm.

What then was the tenure described, "as of our mannor of East Greenwich and our County of Kent in free and common soccage and not in capite or by Knight service, upon which the Province of New York was holden under his grant from the King of Eng- land by the Duke of York as Lord Proprietor ?"

Socage 3 tenure was a holding of lands by a certain service or rent. Certainty as opposed to the uncer- tainty of tenure by Knight service, or as sometimes

styled, "in chivalry," was for its essence. It made no matter what the service, or rent, was, so long as it was absolutely certain. It might be by ploughing lands for a fixed number of days at a time fixed, or it might be for a fixed annual rent, payable either in cattle, produce or in money, or it might be by homage, fealty, and a fixed money rent, in lieu of all manner of services, or by fealty only in lieu of every other service.+ This inherent element of certainty was what gave this tenure its power, and has made it the only tenure by which, in different forms and under different modifi- cations, and under systems based upon its principles, lands are now held in the English-speaking nations of the world.

Property in land has a double origin. "It has arisen," in the words of Maine, " partly from the dis- entanglement of the individual rights of the kindred or tribesmen, from the collective rights of the Family or Tribe, and partly from the growth and transmuta- tion of the Sovereignty of the Tribal Chief. . .. Both the sovereignty of the Chief and the ownership of land by the Family or Tribe were in most of Western Europe passed through the crucible of feudalism ; but the first re-appeared in some well-marked char- acteristics of military or Knightly tenures, and the last in the principle rules of non-noble holdings, and among them of Socage, the distinctive tenure of the free farmer." 5 Its essential character was "its liability to rents and services due, not to the State, but to the grantor, who in most cases was the lord of the manor, holding under a charter (meaning a grant or patent) given or confirmed by the crown."6 The word socage is generally believed to have been derived from " soca " a plough. It was " originally applied only to husband- inen who owed fixed services for husbandry. Where these rustic services had not been commuted for a money rent the tenure was called ' villein socage,'7 as distin- gui-hed from ' free and common socage.' 8 In Knight- service tenure, and in the spiritual tenure of Francal- moigne or Free Alms, that is freedom from all earthly services [on which churches, abbeys, and cathedrals, in England held and still hold so many of their lands], and in all the military tenurcs the services were uncertain : from all other free tenants of lands a fixed amount of service, or rent, was due, and their tenures were included in the general name of socage 9

It was a free tenure, the land a freehold, and the

1 Dwight's Introduction to the American edition of Maine's Ancient Law, LXIV,

2 Sir E. Creary's Rise of the British Constitution, 83.

3 The word is now spelled with one " c" only.

4 Litt. ch. 5, Sect. 117, 85a; Reeve's Hist. 3d vol. ch. xxi. 495 ; I. Francis Sullivan's Lectures on the Laws of England, 157; Christian's Blackstone, ii. 81, n 1 ; Sullivan's Mass. Land Titles, 34 ; Maine's Hist. Inst., 120; Stubbs' Cons. Hist., 549. 5 Maine's Hist. Inst'ns., 120.

6 Elton's Tenures of Kent, 29.

7 A villein was an inhabitant of a villa, the ancient name of a farm, and in the earliest times was attached to it permanently. And as many villas were included in a manor, it had often many villeins. These villeins gradually came to be allowed to hold parcels of land, on condition of manuring, or ploughing the lord's demesne lands, or on base or rustic services. Hence arose the tenure termed villein-socage. 8 Elton's Law of Copyholds, 3, note b.

º Ib. 3.

THE ORIGIN AND HISTORY OF THE MANORS.

holder a freeman, because lie, as well as the land, was entirely frec from all exactious. and from all rents and services except those specified in his grant. So long as these last were paid or performed, no lord or other power could deprive him of his land, and he could devise it by will. and in case of his death, intestate, it could be divided among his sons equally.1

At a later period, after the Norman conquest, this latter quality of the tenurc became changed by the introduction of the principle of primogeniture in all parts of England ; a principle of Teutonic origin, and one necessary to the maintenance of the feudal sys- tem as a military system. One of the parts of England which, at thetime of its conquest, first submitted peace- ably to William of Normandy, was the Saxon Kingdom of Kent, afterward, and now, the County of Kent, the southeastern extremity of England. In consequence of this action the Norman king confirmed its inhab- itants in all their ancient laws and liberties. "Kent was firmly attached to the Conqueror by the treaty, which he never broke, that the law of Keut should not be changed.2

One of the provisions of the law of Kent was the custom or tenure of 'Gafoleund ' or ' Gavelkind,' one of the most ancient of the free socage tenures, by which the greater portion of that county was then, and is now held.

According to this ancient relie of the early Saxon law, the land descended to all the sons equally, was usually devisable by will, did not escheat in case of attainder and execution for felony, and could be aliened by the tenant at the age of fifteen.3 It was a freeman's tenure, and so general, though not universal, in the county, that it was con- sidered by the common law of England, and judicially taken notice of by the King's Courts as the " common law of Kent." The only instance in all England of a county having a different common law from the rest of the Kingdom. And it so continues to this day. Much of its area originally gavelkind has been changed by special acts of parliament, or, as it was termed, 'disgaveled,' and thus made knight ser- vice land and subject to the law of primogeniture.4 The name is derived from the Saxon word ' gafol,' or ' gavel,' [the pronunciation of the words being similar in sound] which was the Saxon word for rent, "in- cluding in that term money, labor, and provisions." 5 Gavelkind land therefore means primarily rented land with the privileges above stated.

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History of Westchester county : New York, including Morrisania, Kings Bridge, and West Farms, which have been annexed to New York City, Vol. I, Part 19

Author: Scharf, J. Thomas (John Thomas), 1843-1898, ed Publication date: 1886 Publisher: Philadelphia : L.E. Preston & Co. Number of Pages: 1354

Author: Scharf, J. Thomas (John Thomas), 1843-1898, ed
Publication date: 1886
Publisher: Philadelphia : L.E. Preston & Co.
Number of Pages: 1354