History of Westchester county : New York, including Morrisania, Kings Bridge, and West Farms, which have been annexed to New York City, Vol. I, Part 21

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 21

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1 This word is so spelled in the Report, but it is spelled 'Theam ' or 'Team,' by Sir Henry Ellis in the "Introduction to Domesday," vol. i. p. 275.

2 Fourth Report of Commissioners, Appendix, p. 106. 3 Coke's preface to his 10th report.

: 4 Terms of the Law 490, ed. of 1685.

6 In France this was different. Many seignories there did carry with them the right to a title, but it was not the case with all.

6 The Sovereign alone is the " source of honor " in England, and the sole power that can, or ever could, grant a title, or confer nobility, under English law.

HISTORY OF WESTCHESTER COUNTY.

and service. This, it is said, is a violation of the sta- tute called quia emptores terrarum, passed in the eight- eenth year of Edward the First, (Anno 1290). This statute, after reciting that the feudal tenants haye sold their lands to be holden in fee of themselves, instead of the chief lord of the fee, whereby those lords have lost their escheats and other fendal perquisites to their "manifest disinheritance," enaets that " forever here- after it shall be lawful to every freeman to sell at his own pleasure his lands or tenements, or part thereof, so neverthless that the feoffee [the grantee], shall hold the same lands or tenements of the same chief lord of the fee and by the same services or customs as his feoffor [grantor], held them before. A second chapter provides for an apportionment of the services in case of a sale of a part of the land ont of which they issued. (Coke, 2 Inst. 500.)

"The freedom of alienation thus conferred upon the military tenants, was undoubtedly a very material amelioration of the feudal system, but at the same time the main object of the statute would seem to have been to secure to the great barons their profits arising out of these tennres. It is stated in the sta- tute itself that it was ordained "at the instance of the great men of the realm," and it was elearly for their pro- tection, thongh incidentally, and probably by its nnfore- seen operation, proved a relief to the inferior tenants. The evil was that the chief lords were defrauded of the fruits of their tennres, and the remedy provided was, that every tenant, however remote, should re- main the debtor of the chief lord instead of his im- mediate feoffor [grantor] for the services incident to the tennre. But as one may generally waive an ad- vantage secured to himself, so it was held that the chief lord might forego the benefit of the statute by authorizing his tenaut to make a subinfeudation, that is, grant lands to be holdeu of himself; but this eould not be doue by a mesne (middle) lord on aeeonnt of the interest of his superiors.

. .. As the King is lord paramount in all feadal ten- ures, no subjeet, since the statute, can, by his owu authority, create a manor ; and as in England, all the land was granted at, or soon after the Conquest, it fol- lows that English Manors must have their origin prior to (this statnte) the eighteenth of Edward first (Anno 1290). But as the King does not hold of any superior, he may grant land to be holden of himself, " for," says Coke, "hereby no man is restrained, but he which holds over of some lord, and the King holds of none" (2 Inst. 67). Therefore, if there are erown lands in England at this day which have never been granted to a subject, they may, without doubt, be ereeted iuto royal manors. And cannot the King grant to his im- mediate tenant the right to make grants to be held of himself, the tenant, since thus there would be the as- sent of all the lords, mediate aud immediate. The King's tenants in capite could not make such grants before the statute quia emptores without his consent. This was by force of the King's prerogative, and was

an exception to the general rule, which permitted snbinfendations by all lords except the tenants in capite. But I think that as well sinee, as before, the statnte, the King conld lieense his immediate tenant to alieu to hold of himself the tenant."

After citing and quoting several authorities to this effect he continnes, " Assuming the law to be as in these anthorities stated, and assuming further that the grant of a manor and the right to hold manor conrts ex vi termini implied an anthority iu the paten- tees to create manor tenants by means of grauts re- serving serviees to themselves, it still seems clear that the patents (the manor grants) were no violation of the statute referred to. The patent so construed was itself a license to the patentee to make grants to hold of himself. On the making of sueh grants the paten- tees became the mesne lords, holding of the King, and the grantees of the patentees were the teuants para- vail ( so called because they have the arails or profits of the land), holding by license from the King as lord paramount, of their immediate lords the patentees. The statute would prevent auy further snbinfeuda- tions, by the freeholders holding under the patentees, unless, iudeed, the King and patentees should both consent.

"That this was the understanding of the crown lawyers who prepared the patents for lands in the Colonies, is evident from the terins of several Colonial grants. The charter of Pennsylvania empowered Penn, the patentee, to erect manors and to alien and grant parts of the lands to sueh purchasers as might wish to purchase, "their heirs and assigns, to be held of the said William Penn, his heirs and assigns, by such serviees, customs and rents as should seem fit to the said William Penn, etc .. and not immediately of the said King Charles, his heirs or successors," not- withstanding the statute of quiu emptores (I. Wheaton 348 ; 9 Wheaton 256).

"The records of some ten or twelve patents exist in the office of the Seeretary of State, issned respectively in the reigns of James II., William and Mary, Anne, and George I., and the earlier government of the Duke of York [amony which are those of Scarsdale, Philipsburgh, Fordham, Pelham, Cortlandt, and Mor- risania, in Wes'chester County], with powers re- speeting a manor and Manor Courts similar to those under consideration [the English manor grants of Rensselaerswyck]; and the proprietary charters of sev- eral of the Colonies anthorize grants to be made to hold of the proprietaries. If the statute against sub- infeudations was in force iu the colonies, these pro- prietary grants were as much violations of its pro- visions as the grants in question or any other grants from the King. The practice of making sneh grants for a long course of years is pretty strong evidenee that the statute was never understood to apply to the King. ... The general expressions of writers and judges to the effeet that manors cannot have a'eom- mencement since the statute of Edward [iu the year

THE ORIGIN AND HISTORY OF THE MANORS.

1290] is quite correct, if we add the reason, which is always understood, viz., that all the lands in England are already in tenure, and subinfeudations are forbid- den by the statute. The remark was never appli- cable to the ungranted crown lands in the Colonies, upon which the statute, I think, never had any, or only a qualified, bearing.1 I have considered this question as though the statute was in force, and con- trolled the tenures in this Colony (New York) in any case to which iu England it might be applicable ; and I do not think it material to deny the proposition, though it has been questioned by respectable authority. Whether it was generally in force or not, it did uot, in my opinion, apply to the ungranted crown lands ; and in respect to these, the King, I think, was con- petent to authorize his immediate grantecs to create tenants of a freehold manor by granting lands to be held of themselves.

"It will not be supposed that all the vexatious inci- dents of the feudal tenures were engrafted upon these Manor lands (in New York). If the feudal system ever prevailed in the American Colonies, it had been shorn of its most severe features beforc either of the grauts in questiou [or any other of the Manor grants in New York] was made, by the Statute 12 Charles II., ch. 24 (Anno 1660), which abolished the peculiar incidents of the military tenures, and changed them whether holden of the King or others, into free and common socage; and which was re-enacted in this State soon after the Revolution with a retrospect to the time of the passage of the English statute I. Green- leaf, 359, p. 2."

The case iu which the foregoing opinion was de- livered was the famous oue of the People against Van Rensselaer instituted by the Attorney-General of this State expressly to test the validity of manorial grants and privileges in the former province of New York, reported in 5 Selden 291. It was decided by the Court of Appeals unanimously in favor of the de- fondant Mr. Van Rensselaer, in 1853, the decision being, that " Royal letters patent granting lands in the province of New York are not void by reason of their conferring manorial privileges and franchises upon the patentees."

These " privileges and franchises " arc set forth at length in every Manor Grant, being such incidents of the Grant as the Crowu chose to express in the instrument itself, and saw fit to bestow upon the grantec thercin named.

These privileges and franchises of " the Freehold Manors of New York " as Chief Justice Denio styles them, werc, in his words," " free from the vexatious incidents of the feudal tenures. And he further says "the feudal system, which if it ever prevailed in the American colonies, had been shorn of its most severe

feature before either of the grants in question, [or any other of the Manor grants in New York] was made, by the statute of Charles II. ch. 24, which [in 1660] abol- ished the Military tenures and changed them into free and common socage." This teuure as we have seen is purely allodial, save only in the fealty due the King as the ultimate lord of all the land of the realm. It was formally, as has previously been stated, declared by the Provincial Act of 1691 to be the teuure of lands in the Province of New York. No change was made or effected by the Aincrican Revolution, except that the Independent Sovereign State of New York succeeded to the position of the King as ultimately entitled to all the land within its borders. Ou the 20th of February 1787, before the United States had an existence, before the Convention of Independent States out of which this Union proceeded, had been chosen, and two years and twelve days before the Constitution of the United States formed by that convention went into effect, the Legislature of the State of New York, passed an " Act concerning Tenures " of a remarkable charac- ter. It would take too long to give its genesis here, in- teresting as it would be. It was passed teu years after the formation of the Constitution of the State. Its first section (there are six altogether) establishes and admits Manor grants, but calls the Lord of a Manor " the Chief Lord." It is as follows : " Be it Enacted by the People of the State of New York, rep- resented in Senate und Assembly, and it is hereby Enacted by Authority of the same, That it shall for- ever hereafter be lawful for every Freeholder to give, sell, or alien the Lauds and Tenements whereof he or she is, or at any time hereafter shall be seized iu Fce Simple, or any Part thereof, at his or her Pleasure, so always that the Purchaser shall hold the Lands or Tenements, so given, sold or aliened, of the Chief Lord, if there be any, of the same Fee, by the Same Services and Customs by which the Person or Per- sons, making such Gift, Sale or Alienation, before held the same Lands or Teneurents.

Aud if such Freeholder give, sell or alien only a Part of such Lands or Tenements to any, the Feoffee or Alienee shall immediately hold such Part of the Chief Lord, and shall be forthwith charged with the Services for so much as pertaineth, or ought to per- tain, to the said Chief Lord, for the same Parcel, ac- cording to the Quantity of Land or Tenemeut given, sold or aliencd, for the Parcel of the Service so due." The second, third, fourth and fifth sections practically re-enact the statute of Charles II. abolishing military tenures, the fifth being in these words, " Provided always, and be it further enacted by the Authority afore- said, That this Act, or any Thing herein contained. shall not take away, nor be construed to take away or discharge, any Rents certain, or other Services incident or belonging to Tenure in common Soccage, due or to grow due to the People of this State, or any mesne [middle ] Lord, or other Private Person, or thic Fealty or Distresses incident thiercto." The Sixth and final

. 1 Chief Justice Ambrose Spencer, said from The bench that the statule in question never applied to the American Colonies. 18 Johnson p. 180.

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HISTORY OF WESTCHESTER COUNTY.

section enacts "That the Tenure upon all Gifts, Grants, and Conveyances heretofore made, or here- after to be made, of any Manors, Lands, Tenements, or Hereditaments, of any Estate of Inheritance, by any Letters Patent under the Great Seal of this State, or in any other Manner, by the People of this State, or by the Commissioners of Forfeitures, shall be and remain Allodial, and not Feudal, and shall forever hereafter be taken and adjudged to be, and to con- tinue in free and pure Allodium only."

The Statute of Charles seems to have been re- enacted, out of pure cautiou only, for its provisions had been the law of the Province and the State fromu the Dutch surrender to the time this statute was passed. It was pure surplusage. But why the first section was enacted is by no means clear. The act certainly confirms the free socage tenure of all lands in New York, does away with every other tenure and its incidents, except the fealty to the State and to " the Chief Lord " iu the first section stated. While the last section declares the Socage tenure purely · allodial in so many words. It thus actually re-enacted the entire English Provincial system of land tenure, including the manor system as the State land system of New York.

Under this act the State law as to tenures remained without change from its enactment in 1787 to the year 1830, when the Revised Statutes went into effect which declare that all lands since that date are allo- dial and abolish all incidents of the socage tenure, and, the tenure itself, using the word ' feudal' to ex- press it, preserving, however, all rights under the same as they had previously existed. The "Tenure of Real Property " is thus stated.

¿ 1. The People of this State, in their right of sov- ereignty, arc deemed to possess the original and abso- lute property iu and to all lands withiu the jurisdic- tion of this State; and all lands, the title to which sliall fail from a defect of heirs, shall revert or escheat to the people.

¿ 3. All lands within this State are declared to be allodial, so that subject only to the liability to escheat, the entire aud absolute property is vested in the own- ers, according to the nature of their respective estates; and all feudal tenures of every description, with all their incidents, are abolished.

¿ 4. The abolition of teuures shall not take away or discharge any rents or services certain, which at any time heretofore have been, or may hereafter be, created or reserved ; nor shall it be construed to affect to change the powers or jurisdiction of any Court of Justice in this State.1

From and after 1830, therefore, the laud tenure of New York has been and continues to bepurely allodial. The vested rights and incidents of the former socage tennres were preserved. but the crection of auy other tenure than a pure allodial one is forbidden.

The state has thus after the lapse of centuries re- turned to the free and just ' alod' of the earliest Saxon days of England.

The nature of the old Feudal Manors, and the dif- ference from them of the Freehold Manors of the seventeenth and eighteenth centuries in New York having been showu, the incidents, franchises and privileges of the latter next demand atteutiou.

10.

The Franchises, Privileges, and Incidents, of Manors in the Province of New York, and in the County of Westchester, and the Parishes in the latter.

The erection of 'Manors' by the English in New York, like the previous creation of ' Patroonships,' by the Dutch in the same Province, was simply the es- tablishment and carrying out, of what they deemued the best method of promoting the growth and de- velopment of their new possession under their own laws aud customs. To the same idea is due the grant- ing therein of similar large tracts of land which were not manors. The latter, the 'Great Patents,' as they were called, were usually granted to several grantees. The Manors were necessarily granted to one only. The franchises, privileges, and other valuable inci- dents, which the Manors possessed, and which the Great Patents did not possess, were muuch fewer than is generally supposed. The term 'feudal,' popularly applied to the former, has caused much misconcep- tion. The tenure of both classes of these crowu grants was precisely the same, being "in free and com- inon socage as of the Manor of East Greenwich in the county of Kent." which has been already explained. The greatest difference between them lay in the pe- culiar public incidents, as they may be called, which constituted a Manor, incidents essential to its exist- ence, and which related more to the government and good order of the territory of the Manor and the pro- tection of the inhabitants, and their rights as English- men, thau to the power and profit of the Lord. Tenants could, and did, take up lands under the grantees of the Great Patents, as well as under the Lords of the Manors. The former could, and did, settle people upon their Patents under leases, as well as deeds in fee, just as the latter did upon their Manors. Both classes of Proprietors sold in fee, or granted ou leases of different kinds, just as their interests or wishes dictated. The Great Patents, their grantees, and the inhabitants upon them, were subject, in general and local matters, to whatever public territorial divisions of the Province embraced them, aud the laws in force therein. The Manors, their Lords, and their inhabit- ants, whether tenants, or holders in fee simple of manor lands by purchase from the Lords, were sub- ject ouly to the jurisdiction and courts of the Manors in local matters. Both, in all matters uot local, were governed by the laws, courts, and the civil and military authorities, of the county and of the Prov: ince.

1 II. R. S,, Part II. Title I, p. 718, first ed.

THE ORIGIN AND HISTORY OF THE MANORS.

There were in the county of Westchester Six Manors, which together comprised by far the largest part of its area. The Great Patents were much more numerous, bnt together not so extensive in area. These latter and the Borough-Town of Westchester, with a few small original grants, formed the rest of the county as it was originally. The lower part of the " Equivaleut lands " or " The Oblong," received in set- tlement of a boundary dispnte from the colony of Con- necticut was not added to the connty till the year 1731, and this too, was then embraced in a single Great Patent.

The Manors were those of " Cortlandt," " Scarsdale," " Pelham," " Morrisania," " Fordham," and " Philipse- borough," or as it was, and is, usually written and pro- nounced "Philipseburgh." Of thesc, Cortlandt, and Philipseburgh, were much the largest. It will give a correct idea of the great extent and thoroughness of the manorial settlement of Westchester county, as well as the satisfactory nature of that method of settlement to its inhabitants, although a surprise, probably, to many readers, when it is stated that in the year 1769, one-third of the population of the county lived on the two Manors of Cortlandt and Philipseburgh alone. The Manors of Fordham, Morrisania, Pelham and Scarsdale, lying nearer to the city of New York, than these two, and more accessible than either, save only the lower end of Philipsburgh, were, if any thing, much more settled. It is safe to say that upwards of five- eighths of the people of Westchester County in 1769 were inhabitants of the six manors that have been named. As the people upon the manors were free of general jury duty the fact threw upon the rest of the county an increased burden. The 'Burgess ' (or Rep- resentative) of the "Borough of Westchester" in the Assembly in 1769, was John de Lancey of Rosehill, Westfarms, of the second, or Westfarms, branch of that family, being the second son of Peter de Lancey of Rosehill, Westfarms, and his wife Elizabeth, the daughter of Governor Cadwallader Colden. He at- tempted the relief of the non-manorial inhabitants of the county and brought this matter before the As- sembly in this speech, from which we learn the fact above-mentioned,-

"Mr. Speaker,-As the qualification required by the act for returning able and sufficient jurors in the several counties of this colony, entirely disqualifies all the tenants settled upon the Manor of Philips- burgh, and great part of those settled upon the Manor of Cortlandt, in the county of Westchester, from serv- ing upon juries ; which makes that service extremely hard upon the other parts of the county (the Manors of Philipsburgh and Cortlandt, containing at least one- third of all the inhabitants of the said county); I there- fore move for leave to bring in a bill, to enable and qualify the tenants holding lands improved of the value of sixty pounds (8150), either for years, or at will, within the Manors aforesaid to serve upon juries within the said county of Westchester." Leave was given, and

the next day Mr. de Lancey introduced the bill. 1The jury act referred to required all jurors to be possessed either in their own rights and names, or that of Trus- tees, or in that of their wives, of " a freehold in lands, messages, or tenements, or rents, in fee, feetail, or for life, of the value of sixty pounds New York cur- rency ($150) free of all incumbrances." In the City of New York alone personalty of sixty pounds value was permitted as a qualification. The object of Mr. de Lancey's bill was to make the tenants in the Manors, who were not freeholders, subject to jury duty. This legislative action proves that none of the leases in the manor of Philipsburgh were " fee-farm " leases, that is leases in perpetuity, for such leases were "freeholds," and the "tenants freeholders," by law; and that the same thing was true of a "great part " of the leases in the Manor of Cortlandt. Mr. de Lancey's attempt to aid his constituents was not successful. His bill failed to pass, but why, the jour- nals of the House do not show. Probably the tenants of the Manors were in a majority sufficient to control their members in the House. The two members for the County had the tenants of Philipsburgh, and of the four smaller manors of Scarsdale, Pelham, Morris- ania and Fordham among their constituents, and " The Manor of Cortlandt " had its own representa- tive. One of the connty members was Frederick Philipse, the third, and the then, Lord of Philipseburgh (the other being John Thomas of Harrison), and the member for the Manor of Cortlandt, was Pierre van Cortlandt, of Croton, of the second branch of that family, and subseqneutly the first Lieutenant-Gov- ernor of the State of New York. Both the county members had a majority of Manor tenants in their constituency.

The next year, 1770, Mr. Thomas, one of the County members, tried a little different measure, apparently punitive. He introduced a bill relating to the Manor of Philipsburgh alone, entitled " a bill to enable and qualify tenants holding lands improved to the value of sixty pounds, either for years, or at will, within the Manor of Philipsburgh, in the County of Westchester, to serve as jurors in the justices conrts held in said Manor, where the parties concerned in the cause to be tried, are tenants as aforesaid."? This was practic- ally to invest Justices' courts in the Manor, with the jurisdiction of the Courts-baron of the manor, only with a justice instead of the Lord or his Steward as its presiding head, and thus imposed double jury duty on the tenants. This measure also failed to pass. These facts, and the proposed legislative action, first men- tioned, occurring as it did, only five years before the beginning of the American Revolution, show how widely-extended was the manorial system of New York, in Westchester County, how numerous and

1 Assembly Journals. Session from Ist November, 1769, to 27th January, 1770, pp. 6 and ;.

º Assembly Journals, session from 21st Nov. 1769 to 27th Jan. 1770, 1. 80.

HISTORY OF WESTCHESTER COUNTY.

politically powerful were the tenants of the manors there, and how well they were satisfied with their position. The objection coming from those only who were not manorial tenants.

The peculiar incideuts of an old English Manor have not been described, although they have been referred to. The definition of a Manor already given, shows that it had two Courts, a Court-Baron, and a Court-Leet. The scope and duties of the former of these, that in which the Lord exercised jurisdiction, we learn from Coke. "If," says he, "we labour to search out the antiquity of these courts-baron, we shall find them as ancient as manors themselves. For when the ancient kings of this realm, who had all England in demesne, did confer great quantities of lands upon some great personages with liberty to parcel the lands out to other inferior tenants, reserv- ing such duties and services as they thought con- venient ; and to keep courts where they might redress misdemeanors withiu their precincts, punish offences committed by their tenants, and decide and debate controversies arising within their jurisdiction; these courts were termed courts baron." 1

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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 21

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