History of Westchester county : New York, including Morrisania, Kings Bridge, and West Farms, which have been annexed to New York City, Vol. I, Part 25

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 25

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34. And if any person preferred already to a Bene- fice shall appear to you to give scandal either by his Doctrine or Manners, you are to use the best means for ye removal of him; and to supply the vacancy in such manner as we have directed. And alsoe our pleasure is, that, in the direction of all Church Affairs, the Minister bee admitted into the respective vestrys.

And to the end the Ecclesiastical Jurisdiction of the said Archbishop of Canterbury may take place in that our Province as farr as conveniently may bee. Wee doe think fitt that you give all countenance and encouragement in ye exercise of the same ; excepting only the Collating to Benefices, granting licenses for Marriage, and Probate of Wills, which wee have re- served to you our Gov & to ye Commander-in-chief for the time being.

"36. And you are to take especial care, that a Table of Marriages established by ye Canons of the Church of Eugland, bee hung up in all Orthodox churches and duly observed.

"37. And you are to take especial care that Books of Homilys & Books of the 39 Articles of ye Church of England bee disposed of to every of ye said churches, and that they bee only kept and used therein.

"38. And wee doe further direct that noe School- master bee henceforth permitted to come from Eng- land & to keep school within our Province of New York, without the license of the said Archbishop of Canterbury ; And that noe other person now there, or that shall come from other parts, bee admitted to keep school without your license first had."

In the face of these direct, positive "Instructions " of James II. to Governor Dongan there can be no ques- tion that the King in the legal exercise of his power as King, as soon asit was possible after he came to the throne of England established the Church of England in his former Proprietary, and now Royal, Province of New York, subject only to the articles of surrender of 1664, of 1674, and the treaty of Breda in 1667, which guaranteed the continued existence therein of its for- mer established Church of Holland with all its rights of faith, discipline, and property ; and subjectalso as far as Suffolk County was concerned, to the pre-existing Cougregational Church of Connecticut as there prac- tically established under the authority of the General Court of that Colony. If the latter was a legal estab- lishment under the laws or charter of Connecticut prior to the Dutch surrender iu 1664 and the treaty of Breda in 1667, then the King of England was legally bound to maintain it as such. He did immedi- ately after the first Dutch surrender, by his com- missioners make a change iu the civil condition of Suffolk County by deciding that Long Island, of which it was then, as it is now, the eastern end, was not a part of Couuecticut, but was a part of New York. He appointed civil officers in Suffolk County, and instituted there the complete civil and military jurisdiction of New York, but made no change what- ever in its ecclesiastical condition, which continued

1 III. N. Y. Col. Hist. 49.

2 Ibid. 174.

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THE ORIGIN AND HISTORY OF THE MANORS.

precisely the same as when it claimed to be a part of Connecticut.

The above-cited provisions of the Instructions of King James to Governor Dongan relative to the Church of England in New York were continued by William III., Aune, George I., George II., and George III. in their different " Instructions " to the different Governors of New York they successively appointed, with little or no variation iu language and nonc in effect.1 Occasionally a new one was added, as in the Instructions to Lord Cornbury when he was appoint- ed Governor by Queen Anne, dated the 29th of Jan- ary, 1702, in which, clause No. 63, is in these words ;- "You are to inquire whether there be any minister with- in your Government who preaches and administers the Sacrament in any orthodox church or chapel without being in due orders and to give an account thereof to the Bishop of London." The use of the word " Minis- ter" in these various Instructions is shown by the con- text of them, and markedly in this additional one to Cornbury, to mean and to designate elergymen only of the Church of England. And the same thing may be said of the term "Orthodox Church," for by law neither the King nor the Bishop could acknowledge, or have any ecelesiastical jurisdiction over, any Minis- ter or any Church which did not belong to the Church of England. No other church and no other other elergyman could be, in the eye of the law, either of England or New York, orthodox. King William, as King, formally approved the Ministry Aet of 1693 passed by the Legislature of New York, and as by the law of England he could not acknowl- edge any other church as orthodox or any other Ministers, as Ministers, except those of the Church of England, it follows that the words and terms of that act referred to the Church of England and ouly to that church. That this is the sense, and the only legal sense, in which these words were then used, is shown by an opinion of Sir Edward Northey, the At- toruey-General, in 1705, asked by the Board of Trade and Plantations, upon the graut of ecelesiastical power in the Patent of Maryland, which closes with these words, "and the conseerations of chapels ought to be, as in England, by Orthodox Ministers only." ?

No English Governor has been more denounced for his action in regard to the church of England than Lord Cornbury, and his official aets concerning it have been abused in almost every possible way. His action has been taken as the result of pure bigotry, and he termed a bigot, while he was merely carrying out the Instrue- tions he had sworn to support and maintain. His "Instructions " are therefore here given at length, taken from the original Instrument which with his Commission under the hand and seal of Queen Anne, are now in the hands of a gentleman in New York.

From the Instructions to Lord Cornbury, dated January 29, 1702-3.

60. You shall take especial care that God Almighty be devoutedly and duly served throughout your Gov- ernment, the Book of Common prayer, as by Law es- tablished, read each Sunday and Holy day, aud the blessed Sacrament administered according to the rites of the Church of England; You shall be carefull that the Churches already built there be well and orderly kept, and that more be built as the Colony shall by God's blessing be improved, and that besides a Com- petent maintenance to be assigned to the Minister of each Orthodox Church, a couveuient house be built at the Common charge for cach Minister, and a competent proportion of Land assigned him forja Glebe and exer- cise of his Industry. And you are to take care that the parishes be so limited and setled, as you shall find most convenient for the accomplishing this good work.

61. You are not to present any Minister to any Ec- elesiasticall Benefice in that Our Province without a certificate from the right reverend Father in God the Bishop of London, of his being conformable to the Doe- trine and Discipline of the Church of England, and of a good life and conversation, and if any person preferred already to a Benefice shall appear to you to give Scandall, either by his doctrine or Manners, You are to use the best means for the removal of him, and to Supply the Vacancy in Such manner as Wee have directed.

62. You are to give order forthwith (if the same be not already done) that every Orthodox Minister with- in your Government, be one of the Vestry in his res- pective parish, and that no Vestry be held without him, except iu case of Sickness, or that after notice of a Vestry Summon'd he omitt to come.

63. You are to enquire whether there be any Minister withiu your Government, who preaches and adminis- ters thic Sacrament in any Orthodox Church or Chap- pell without being in due Orders, aud to give an account thereof to the said Bishop of London.

64. And to the end the Ecclesiastical Jurisdiction of the Said Bishop of London may take place in that province So farr as conveniently may be, Wee do think fitt, that you give all Countenance and encour- agement to the exercise of the Same. Excepting only the Collating to Benefices, granting Lyeenses for Marriages and probate of Wills, which Wee have re- served to you Our Governour and to the Commander- in-chief of Our Said Province for the time being.

65. Wee do further direet that no Schoolnaster be henceforth permitted to come from England, and to keep Schoole within Our Province of New York, without the Lyeense of the said Bishop of London, and that no other person now there, or that shall come from other parts, be admitted to keep School without your Lycense first obtained.

66. And you are to take especial care that a Table of Marriages, established by the Canons of the Church

1 In the 3d, 4th, 5th and 6th volumes of the "('ol. Hist. of N. Y." near- ly all of them may be found.

2 Chalmers' opinions, 42. The italics are the writer's, and not in the original.

7ł

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of England be hung up in every orthodox Church and duly observed, and you are to endeavour to get a Law past in the Assembly of that province (if not already done) for the strict observation of the Said Table.

79. And you are also with the assistence of the Council and Assembly to find out the best means to facilitate and encourage the conversion of Negroes and Indians to the Christian Religion ; more especi- ally you are to use your endeavours with the Assen- bly that they make provision for the maintenance of some Ministers to inhabit amongst the five Nations of Indians in order to instruct them, and also to pre- vent their being Sedueed from their Allegiance to us, by French priests and Jesuits.

In the instance not only of Cornbury but of cach Governor, it must be remembered that these "Instruc- tions " were, not merely directions to him personally, but were the binding constitutions of the Province in all things civil, military, and ecclesiastical, during each Governor's period of office. They were the law of the land both for the Governor and the people, which was to be obeyed by both. They were laid down, and set forth, by each Sovereign, in his Kingly capacity, under the law of England for the govern- ment of his or her Province of New York. This fact has not been considered by American historians, or by English ones either, in treating of the civil and re- ligious,-especially the religious-aspects and condi- tions of the Royal Provinees in America in general, and of New York in particular.

What then was the Kingly authority in these re- spects ? Whenee came the monarch's legal right to govern his Royal Provinces by " Instructions " to his representatives the Governors? What were the powers then vested in the Crown by the laws of Eng- land ?

The attributes of the Monareli of England, sove- reignty, perfection,1 and perpetuity,2 which are inhe- rent in, and constitute, his politieal capacity, prevail in every part of the territories subjeet to the English Crown. "In such political capacity as King he is possessed of a share of legislation, is the head of the Church, generalissimo throughout his dominions, and is alone entitled to make war and peace.3 But in coun- tries which, though dependent on the British Crown, have different local laws, as for instance the Colonies the minor prerogatives and interests of the Crown must be regulated and governed by the peculiar law of the place. But if such law be silent on the subjeet," or if the place has become by eonquest or cession a Colony or Province of the Crown, having never before been possessed by the English nation, "it would appear that the prerogative of the King in his political ea- pacity as chief of the State, as established by English

law, prevails in every respeet."4 "When a country is obtained by eonquest or treaty the King possesses an exclusive prerogative power over it, and may en- tirely change or new-model, the whole, or part, of its laws, and form of government, and may govern it in all respects by regulations framed by himself, subject only to the Articles or Treaty on which the country is surrendered or ceded, which are always sacred and inviolable according to their true intent and mean- ing.5 Lord Mansfield thus most fully and suc- cinctly lays down the law on this subject, eiting New York as an example. "A country conquered by the British arms becomes a dominion of the King in right of his crown. . After the con- quest of New York, in which most of the old Dutch inhabitants remained, King Charles 2d changed the form of their Constitution and political government, by granting it to the duke of York, to hold of his crown under all the regulations contained in the letters patent." "It is not to be wondered at," con- tinues the Great Chief Justice of England, "that an adjudged case in point has not been produced. No question was ever started before but that the King has a right to a legislative authority over a conquered country ; it was never denied in Westminster Hall; it was never questioned in parliament."6 This decision was made in the Court of King's Bench in 1774-a century after the practical application of, and action under, its principle, by Charles the Second, and James the Second, and William & Mary in their Province of New York, to say nothing of Queen Anne and her successors. There can therefore be no question as to the law itself, or the legality of the power by which the Sovereigns of England, by their "Commissions " and "Instructions" to their Governors, established the Church of England in their American Province of New York.

Now what was a " Province" in law? This term, in Latin Provincia, was first used by the Romans to designate a portion of territory outside of Italy, which they had subjected by conquest. Its general use, however, says Chief Justice Stokes of the Colony of Georgia, is " to denote the divisions of a Kingdom or State, as they are usually distinguished by the ex- tent of their civil or ecclesiastical jurisdiction. With us, [the English people] a Province signifies-1st. An out-country governed by a Deputy or Lieutenant ; and 2dly, The circuit of an Archbishop's jurisdiction. When the British settlements in America are spoken of in general, they are called the Colonies or Pianta- tions. If it is a Government on the Continent [in con- tradistinction to the West India Islands] where the King appoints the Governor it is usually called a Provinee, as the Province of Quebec ; but a Planta- tion in which the Governor was elected by the inhab-

1 This is expressed by the well-known legal axiom " The King can do no wrong."

2 This is expressed by that other well-known axiom "The King is dead, long live the King."

3 Chalmers' Opinions, 150.

4 Chitty's Prerogatives of the Crown, 25 and 26.

5 Ibid. 29 ; Cowper's Rep. 208.

6 Ilall v. Campbell, Cowper's Reports, 208, 211. Calvin's Case 4 Coke's Rep. 1.

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THE ORIGIN AND HISTORY OF THE MANORS.

itants, (under a charter of incorporation from the King) was usually ealled a Colony, as the Colony of Conneetient." 1 Thus thie very name was expressive of the character of the King's power by virtue of which he ereeted and established in New York Manors, Parishes, Churches and a General Assembly. Sir William Blackstone in speaking of the American Provinces, says, "In the Provincial Establishments (commonly ealled King's Governments) their constitu- tion depended on the respective commissions issued by the Crown to the Governors, and the Instructions which usually accompanied these commissions ; under the authority of which Provincial Assemblies were constituted with the power of making loeal ordinances, not repugnant to the laws of England." 2 It is elear, and beyond question, that the very authority by which New York was granted the right to possess and eleet a representative Assembly of its own people, a priv- ilege granted to it by William and Mary in 1691, which continued from that time without interruption as long as it remained a British Province, sprang from precisely the same souree, as the establishment of the Church of England within its limits-the Commission and King's Instructions to his Governors ; To say nothing of the first granting of the right to eleet and hold Assemblies by James II. himself as Duke of York to Governor Dongan in 1683, eleven years be- fore; which assemblies sat for three years, and the laws which they passed in those years, still in exist- ence, are the earliest English statutes of New York; and which assemblies were called and held solely by virtue of James's " Commission " and " Instructions " to Governor Dongan.

There is another point of importance in this con- nexion. Every Commission to every Governor from every Sovereign of New York, contained in it a elause, delegating to him the power of collation to church benefiees, a power under the law of England which could be excreised only in the Church of England. It was in these words, " And we do by these presents authorize and impower you to collate any person or persons to any churches, chapels, or other ecelesiastieal benefices within our said province and territories as aforesaid, as often as any of them shall happen to be void." 3 This was the delegation by the King of his own power as Ordinary. This word derived from the Civil Law primarily signifies one who, of his own right, has authority to take cognizance of causes. In the common law it is usually applied to the Bishop of a Diocese, who only could certify to ecclesiastical and spiritual aets in his own diocese. The King as the Head of the Church possessed this temporal right throughout his whole Kingdom, and could delegate it. The Bishop could only delegate his power in temporal ecclesiastieal matters in his own diocese.

1 Constitutions of The British Colonies in America, 2.

2 1 Blackslone's, Comm. 108.

3 Slokes's Cons. of The Am. Colonies, 158. And see The different Com- missions Themselves in the volumes of The Colonial History.

As there were no dioceses as such in the British American Colonies, the King delegated the power of collating to benefices here to his different Governors as his personal representatives. From the same souree came their power to grant probate of wills, and mar- riage lieenses.

The spiritual supervision of the Church of Eng- land in America, was, as we have seen, first com- mitted by King James to the Arehbishop of Cauter- bury. Later it was deemed most convenient to attael this supervision to the Bishop of London, who appointed "Commissaries " in different parts of America, to oversee the elergy in their different districts, in such matters not purely episcopal, as a Bishop did in his Dioeese in England.

As there were then no Dioceses in America, the King in the different Instructions to the Governors, directed them to retain these powers, of collation, to benefices, of granting probate of wills, and of lieens- ing marriages to themselves. This was in virtue both of the King's Legislative power, and his power as Head of the church. Perhaps nothing has been, or is, more misunderstood, and that very honestly, in America than the Royal Supremaey of the Church of England. Of course, it cannot be treated at length here. We can only state the popular idea of it, and then show what it really is. The popular idea of it in this eonntry is, that the Sovereign of England was, and is, the head of the Church of England in spirit- ual as well as temporal matters, and is the superior of the Archbishops and Bishops in all that relates to their offiees as such, and is governed by his or her own ideas of what is true and right in matters of doetrine and discipline. Of course this is only the common idea, but it is held by many people of education and general intelligence nevertheless, who are, and are usually considered, well informed.

A recent writer after eiting and examining the legal authorities, and writers of England since the Re- formation, on this subjeet, says, "These numerous authorities repeat again and again the same opinions tonehing the supremaey of the Crown. According to them the Royal Supremacy is simply and strictly a temporal or civil power over all causes and persons in things temporal, and over spiritual persons and eauses as far as their temporal or eivil accidents are coneerned. But it has no inherent spiritual power as such, nor ecclesiastical authority, whatsoever, the spirituality alone possessing the power of the Keys." " Lord Selborne the learned and eminent Lord High Chancellor in Mr. Gladstone's late Government says, " The Sovereign has not (as some suppose) a temporal supremacy in temporal things and a spiritual suprem- acy in spiritual things ; it is one undivided temporal supremacy, extending to all persons, causes, and things, whether eeclesiastical or civil, of which the law of the land takes cognizanee, and upon which that law las

+ Fuller's Appellale Jurisdiction of the Crown, 186.

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HISTORY OF WESTCHESTER COUNTY.

operation. It does not and it can not exteud to the province of religions belief, or to moral and spiritnal obligations recognized by the couscience as springing from a source higher than the laws of the land." 1 That most eloqnent and able prelate, Wilberforce Bishop of Winchester, when Bishop of Oxford, in a debate in the Honse of Lords, in which this subject was brought up, thns spoke out :- " he did not believe that it was a correct or constitutional interpretation of that snpremacy, to say that the occupant of the throne shonld settle in his or her individnal capacity, articles of faith or any other questions whatever. He was sure that the exalted personage who at present occupied the throne would be herself the first to re- pudiate so nnconstitutional a doctrine. The Supre- macy of the Crown meant nothing more than this, that the Crown had the nltimate Appeal in all questions ecclesiastical and civil, deciding snch questious not of herself, bnt through her proper constitutional agents." And Mr. Gladstone himself writes, in his Letter on the Royal Supremacy ;- " I contend that the Crown did not claim by statute, either to be by right, or to become by convention, the source of that Kind of action which was committed by the Saviour to the Apostolic church, whether for the enactment of laws or for the administration of its discipline ; but the claim was that all the canons of the church, and all its judicial procecdiugs, inasmuch as they were to form parts respectively of the laws and the adminis- tration of justice in the Kingdom, should run only with the assent and Sanction of the Crown."

This full statement has been written to show, that iu their Province on the Hudson, the Sovereigns of Eng- land in virtne of their political, ecclesiastical, and legislative, capacities, as Sovereigns under the laws of England, through their direct "Commissions " and " Instructions" under their own signs-mannal, legally established and maintained in that Province, by pre- cisely the same legal instruments and methods, the same form of civil government and the same form of religious belief, that was established in England, as far forth as both could possibly be there done, consistently with the Surrenders and Treaty by which the Province became a possession of their Crown. And it also shows, that historically, the existence in New York, of a General Assembly of elected representatives of the people, of Manors, of the Church of England with its Parishes, and taxation of all inhabitants for the snp- port of its Ministers and churches, had onc and all ex- actly the same origin, and were equally the legitimate results, of the legitimate action, of its legitimate Sovereign anthority, the monarchs of England.

12.

The Manors and the County in their Mutual relations, with the Origin and Organization of the latter.

The six Manors of the Connty of Westchester, in

the order of their erectiou, were 'Fordham' in No- vember 1671, ' Pelham' in October 1687, ' Philipsbor- ongli' in June 1693, ' Morrisania ' in May 1697, 'Cort- landt' in June 1697, and 'Scarsdale' in March 1701. As the 'Manor of Cortlandt' comprised the whole northern part of the Connty from the Hudson to the Counecticut line, and was ten miles in width, it will be described first, then following the order of location of the others down the eastern side of the connty to its sonthern extremity, 'Scarsdale,' ' Pelham,' ' Morri- sania,' and ' Fordham,' will be snceessively treatcd, then 'Philipsborongh,' which comprised the entire western portion of the County bordering upon the Hudson as far north as the south line of the Manor of Cortlandt, and extended eastwardly to the Bronx River which runs through the centre of the County from northı to south and was the boundary between it and the manors of the east side.

The general nature and history of Manors in a legal point of view, the origin of the ancient mano- rial system of England, its tenures, and the modern manorial system of New York with its incidents, and tenure introduced by the English upon its cap- ture from the Dutch, have been described, But be- fore treating of each of the Manors separately, the general Province and County Jurisdiction as it affected the Manors as a whole, and the origin and formation of the County itself will be shown.

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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 25

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