USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume III > Part 68
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The scheme of the reform intended was the abolition of all passive trusts in lands, the restriction of the lawful special trusts to fewer purposes, the abolition of secret resulting trusts in favor of persons paying the consideration, and lastly to cause the legal title to devolve according to the canon of descents in a greater number of instances than formerly. In the application of the revisers' scheme to the ac- tual work of revision, many minor sections contribute to the result. In the abolition of former trusts several things were to be accomplished, such as the consistent devolution of the legal title in cases where formal or other unlawful trusts were attempted to be created or then ` existed. Every avenue for a continuance of formal trusts was skil- fully closed by the revisers, and in cases where the special trust pur- pose was converted into a statutory power, it was provided that the legal title, as it was not a necessary adjunct, should pursue that line
1 29 Car. II. 32 N. Y., 307. 3 12 N. Y., 403.
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of devolution it would have pursued had there been no "power" affecting it. For abundant caution all executed uses in possession were confirmed so that the revised statutes of uses and trusts should not be retroactive. The adjective law of trusts was not affected by this article of the revision ; it naturally belonged to a more extensive work, which should include procedure.
The revisers had not only to effect the reforms mentioned, but they had to harmonize the revised laws of uses and trusts with the revised laws concerning legal estates; for the revision preserved those distinct conceptions of property which the antinomy of the English juridical system had introduced here 1
The revisers had to some extent contemplated the destruction of the former analogy between legal and equitable estates in lands. They provided that the cestui que trust should no longer take an estate in lands, and converted his right into an equitable interest enforceable in chancery. This was, however, a verbal rather than a substantial change; but in view of that clause of the Revised Statutes preventing anticipation by the beneficiary interested in a trust for the receipt of the rents and profits of lands, it certainly seemed logical to term such a beneficiary right an "interest," and not an "estate"; for a right that is not assignable bears little similarity to an estate which is nomen collectivum, including the right to dispose of it. In some other respects there is no longer a perfect analogy between the natures of legal and equitable estates in lands. Legal life estates must be lim- ited to persons in being, but trusts will inure to the benefit of per- sons not in being when the trust is created .?
Whether on the whole any great reform in the former law of trusts has been produced by the Revised Statutes, is an open question. A new learning of trusts, founded on the revision, has certainly arisen,
1 In English jurisprudence the distinct concep- tions of legal and equitable interests in property were soon discovered to be artificial, and a ten- dency to assimilate the two distinct interests be- gan. This reactionary tendency ultimately pro- duced striking analogies between legal and equitable estates. An equitable tenant in tail could even alien his equitable interest by fine, and the courts talked gravely about the seizin and deseizin of equitable estates. Subsequent to the Revised Statutes some attempts to revive the former analogy between legal and equitable estates were made. Why, it was reasonably asked, should the rule concerning the limitation of legal estates now differ from the rules concerning equitable estates or interests in lands ? In cases where a remainder in a legal estate was limited on more than two lives in being, such remainder, by the section accelerating remainders, was pre- served. Why should this not be the rule where a perpetuity by way of trust was created antece- dent to the remainder ? But the courts intimated that the Revised Statutes had destroyed any anal-
ogy between legal and equitable estates in land. Limitations beyond the legal trust period were now vitiated by statute. 9 N. Y., 403.
2 As the Revised Statutes restricted anticipa- tion, many difficult questions involving the jus disponendi of an equitable estate (e. g., 8 N. Y., 9) ceased, although others, perhaps as difficult, have succeeded them. Attempts to reach what is obvi- ously a property right- the interest of a cestui que trust in a permanent trust for the receipt of the rents and profits of lands -have from time to time been attended with many embarrassments, owing to the change in the law (31 N. Y., 9; 35 id., 361; 70 id., 270).
The estate which the trustee took in all cases of valid express trusts - though apparently enlarged by the Revised Statutes, which declare that the trustee shall be vested with the whole estate, in law and in equity, subject only to the execution of the trust- was in reality not extended at all. As before the Revised Statutes, the trustee's legal estate was commensurate with the trust duty to be performed ; and when the duty was performed,
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and the present law of uses and trusts, now as formerly, is to be found in reported cases rather than in a statutory form. In the hands of skilful conveyancers, real property continued susceptible to very subtle modifications and limitations. Whether this is a healthy con- dition of the laws of real property, it is for the hustings and for our statesmen to determine. Any of us is entitled to the opinion that it were better had the revisers gone farther. It is not an interference with the rights of property to abridge a power of testamentary dis- position, and to destroy the power of accumulating overgrown or ill-gotten fortunes by means of trusts. But on the whole the reforms in the land law of New-York conduced to simplicity and were a sound reform. They have created a new learning founded on the statute, but a learning much simpler than the old, yet on the whole still susceptible of great improvement in the future. Such obscurities as those relating to lineal and collateral warranties ceased by their abo- lition. Landed property was rendered easily subject to the payment of debts. The canon of descents, and many other matters relating to real estate, were modernized and improved. Among the more im- portant reforms embodied in Part II of the Revised Statutes, were those concerning the law of wills, which the revisers reduced to much simplicity. The laws relating to marriage in New-York were in great confusion prior to the Revised Statutes. This evil was also corrected, and the law made plain and certain 1
Part III of the revision, relating to the courts of justice, was generally declaratory, and, while of great practical utility, introduced fewer novelties than the other parts by reason of the limitations im- posed by the constitutions on this subject. Part IV, relating to
eo instanti, the trustee's estate ceased (3 N. Y., 525; 43 id., 363), and oftentimes, by virtue of the statute, instantly devolved upon the person entitled to the next estate (3 N. Y., 535; 7 id., 571; 10 id., 268 ; 34 id., 555), though in some cases a trustee might still be compelled to execute con- veyances to the next eventual owner, just as the donee of a power in trust might be. (In arguendo, 24 N. Y., 15.)
The revisers made a radical change in the devo- lution of the legal estate on the death of trustees. Prior to the Revised Statutes the trustees might de- vise the legal estate, or it might descend to their heirs cloaked in the trust. But this inconvenient rule was wisely changed so that on the death of a trustee the legal estate, in all cases, passed to the appropriate court of judicature, possessing chan- cery jurisdiction. (44 N. Y., 249.) This canon of descents, if it may be so termed, had, however, no application to trusts ex maleficio. (14 Wend., 176.) The Revised Statutes made no change in the equity power of the chancellor to remove trustees for cause. The peculiar distinction between equi- table and legal interests in property not having been abolished,-even if its abolition were pos- alble,-the courts have been obliged to continue
to recognize such distinct interests, notwithstand- ing the subsequent abolition of the distinction between the remedies correlated to these distinct rights.
1 There has been some discussion concerning the principal authorship of the first three chapters of Part II, involving the leading changes made in the land law of the State; but the general opinion of those most familiar with the subject - an opin- ion borne out by the journals and legislative rec- ords -is that Messrs. Spencer and Duer, in the or- der named, were the responsible authors of these great changes. But they did not stop here. We know that Mr. Spencer carefully considered the scope of the entire revision; for with his own hand he wrote a commentary for the " Ontario Messen- ger," pointing out the principal alterations made by the revisers in the common and statute law of the State. As Mr. Duer was the oldest of the re- visers, being forty-three years of age, while Mr. Spencer was thirty-seven and Mr. Butler twenty- nine, the presumption, in the absence of proof positive, is in accord with tradition and the indi- cations of the public documents, which are cor- roborative.
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criminal law, including a whole scheme of punishment and prison dis- cipline, was very comprehensive in its character. While most of the provisions of the criminal code were taken from the former statutes of the State, some suggestions touching the penal law were adopted from Livingston's justly celebrated "System of Penal Law for Loui- siana," and some from the newer English reformatory acts introduced by Mr. Peel, but never in force in New-York. That portion of Part IV which relates to prison discipline may be said to have introduced too few of the humane reforms which had even then been recom- mended by Edward Livingston of Louisiana, who was much impressed with the suggestions of Jeremy Bentham, the great master of the philosophy of legislation. The revisers announced themselves as quite satisfied with the old system, and evidently were not impressed by the advanced speculations of the theoretical writers. In this sin- gle respect the Revised Statutes of New-York were notably faulty. Several notes to the text, containing a brief outline of the changes wrought by the Revised Statutes, have been inserted because such re- vision constitutes an epoch in the law-making of the State. While they purported to be a revision of old laws, they were more. After they were enacted, all the former laws of the old province made part of the fundamental law of the State by the constitutions of 1777 and 1821 were also repealed. Thenceforth the corpus juris of New-York consisted only of the statute law of the State (the English statutes having been previously recast and the residue repealed), and the common law of England, as previously received and interpreted under the province and State governments; but even this was declared by the constitution to be subject to such alterations as the legislature should make in it. That the legislative power to alter included the most sovereign power of change was not doubted. What the Revised Statutes best demonstrated was, that the common law of English- speaking States and origin was susceptible of important statutory modifications without the destruction of those essential principles of growth which had been unfolded in the course of the history of the English nation, and that such changes could be made by the ordinary legislative machinery without a catastrophe to the body politic. Thus the revision destroyed the fetish of the common law, while it showed that the law itself was not elusive; and it pointed the way, followed in many other States, to important changes in the private jural rela- tions of America. Through it subsequent changes, not yet foreseen, were involved and made easy, while the dead law of the past was rendered the servant and not the master of the State. Though per- haps too frequently and often unskilfully amended, the Revised Statutes of 1829 may be said to be still the chief source of the statute law of the State.
VOL. III .- 41.
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While the constitution of 1821 declared that the common law in force in the colony on April 19, 1775, should continue to be the law of the State, it did not abrogate the small residuum of the ancient Dutch law left standing by that postulate of the common law which gives effect to the laws of the conquered until abrogated.1 Yet this portion of the ancient Dutch law was very slender and rather a rule of prop- erty: the burden of proof was on the proponent to show the particular insti- tute of the Dutch law in force, as the presumption was that the common law controlled in the absence of such proof .: The adjudged cases give evidence of the extent of this slight survival of Dutch law. For example, in 1830, in the canal cases, eminent counsel, including the attorney-general, contended that the Dutch law still determined the right of certain riparian owners.3 In 1817 even Chancellor Kent, who, in a desire to in- Samuel I. Tilden voke the entire ready-made system of English law, often ignored the differ- ences observed in the province of New-York,' held that by the Dutch law a grant to the inhabitants of Hempstead constituted them a cor- poration.5 Still later cases, such as Dunham v. Williams,6 have given effect to a particular rule of the ancient Dutch law. But the great foundation of the unwritten or non-statute law, under the constitution of 1821 as before, continued to be the common law received in the province, as altered by the statutes of the State. What indeed was technically meant by the use of the term "common law"-a term ambiguous enough to denote at times either the jus non scriptum or the entire particular jurisprudence of England -has occasioned much consideration by the more subtle-minded among the lawyers. On the whole, the general and vague definition in Morgan v. King," to the effect that it meant the rationale rather than a particular institute of English jurisprudence, is the most satisfactory. Yet so vague a defi- nition could not be otherwise than an unsatisfactory basis for the common law of a great State.8
We have already noticed some of the changes effected by the con-
1 See Chapter XIV, Vol. I, p. 559; Chapter XIV, Vol. II, p. 593. 2 Canal Cases, 5 Wendell, 446. 35 Wendell, 436; 17 Wendell. 571.
+ See the late B. F. Butler's "Outline of the Con- stitutional History of New-York," passim.
5 Denton r. Jackson, 2 Johns. Chancery, 320. 6 37 N. Y., 251.
7 30 Barb., 14; reversed on another point, 35 N. Y., 454.
8There is in existence an old English book called "Tomlin's Repertorium Juridicum," which, as it is remembered, contains a list of all English deci- sions down to the date of the battle of Lexington, when the English cases ceased to be authoritative
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stitution of 1821 in the greater among the ancient courts of New- York. With the exceptions indicated, they continued substantially as before,' but the chancellor and judges under the new constitution owed their office to the appointment of the governor with the consent of the senate, instead of, as formerly, to the council of appointment, which this constitution abolished. In order to prevent a repetition of the odium fastened on the judges by their State functions under the first constitution, the new constitution provided that neither the chancellor nor the judges should hold any other office or place of public trust during their term of office. The Revised Statutes did not attempt to define the jurisdiction of the Court of Chancery of New-York, which had never been very precisely defined. The act of 1683, which has the credit of its erection,2 gave it general equity powers. The Revised Statutes declared the powers of the court to be vested in the chancellor. How far the Court of Chancery of New- York was vested with the ancient jurisdiction of the English court was discussed in the year 1810, in the most interesting case of Yates v. People,3 which involved a conflict between the chancellor and the Supreme Court, and where it was held that the New-York Chancery possessed only those common-law powers of the court which in Eng- land were exercised in the officina justitie, or that part from which writs issued ex debito justitie, and that the chancellor of New-York possessed the powers exercised by the lord chancellor in that branch of the English court called the Court of Equity in Chancery.
Under the constitution of 1821 the powers of the Supreme Court continued substantially as under the crown,4 and the Revised Statutes declared this to be the fact. The jurisdiction of the minor courts of the justices of the peace was, however, fixed by the Revised Statutes, though the courts themselves were anciently in the province. The county courts for common pleas also were ancient institutions, and were only reorganized by the Revised Statutes. In some of the cities of the State the common-law jurisdiction of the justices and county courts have in this century for convenience been distributed among municipal courts, such as the Courts of Common Pleas in New-York city, or the Marine Court of the city of New-York, which had also jurisdiction of civil actions brought by seamen. The Court of Com- mon Pleas in the city of New-York is one of the most ancient of the tribunals of the State." The Superior Court of the city of New-York was erected in 1828, to have cognizance of local actions.6 It owed its establishment to the long-protracted conspiracy cases which grew out
here, and our own courts took up the amplifica- tion of the common law. 1 Chapter XIV, Vol. II.
+ Graham's "Courts of New-York," p. 141 (edi- tion of 1839).
5 See Chapter XIV, Vol. I, p. 551; Chapter XIV, Vol. II, p. 595.
21 Hoffman's "New-York Chancery Practice," Chapter 1. 6 Laws of 1828, p. 141, c. 137; 3 Revised Statutes, 261.
36 Johns., 337.
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of the heavy bank failure in the city of New-York in 1826, and clogged the calendars of the Court of Common Pleas. Its jurisdiction was statutory, and, unlike that of most of the other courts of New-York, was not defined by a cross-reference to some established jurisdiction of a common-law court of England. Under the second constitution, as under the first, the court for the trial of impeachments and cor- rection of errors, constituted in the upper legislative house, like the old Court of Appeals in the province of New-York, had supreme appellate jurisdiction in both law and equity.
Under the constitution of 1821 the practice in all the courts, both in law and in equity, remained substantially that of England, but with many local variations which had grown up under the crown govern- ment of New-York, and which, if separately studied, proved very interesting phenomena. Singularly enough, under the State govern- ment there was a tendency among the judges to obliterate these dis- tinctions which had grown up in the province, for to follow ancient precedents is easier than to follow innovation. The Revised Statutes did not reform the practice: they systematized many of the old statutes of New-York relative to jeofail practice and proceedings, and embodied some new provisions relative to the limitations of actions in the courts of justice, but no great reform in practice was effected until after the constitution of 1846. The changes made in the judicial establishment by the constitution of 1821 were not sufficient to accomplish much good. In the course of a few years the complaints concerning the delay and expense in legal proceedings became so general as to serve as influential reasons for the reforms instituted by the succeeding convention, called in 1846. The new circuit judgeships, created by the constitution of 1821, proved in the end unsatisfactory to the peo- ple, because of the disposition evinced by suitors to review all their decisions before the Supreme Court in banc.
After so great a change in the form of the law as that involved in the Revised Statutes, the statute-books of the State for some years showed a cessation of legislative activity. Some few rigid rules of the common law, relative to the non-assignability of certain rights of action or to commercial paper, were modernized. In 1831, however, the arrest and detention of the debtor's body in civil actions was abolished by the Stilwell Act, although this monstrous remedy had been retained in 1829 by the revisers of the statutes. The material development of the State, the founding of cities, banks, schools, turn- pike and industrial companies, occupied the larger share of the atten- tion of the law-makers for some years after the Revised Statutes. This was not unnatural, for between the years 1830 and 1845 the popu- lation of the State had increased from 1,918,608 to nearly 2,700,000. The completion of the Erie Canal in 1825 had altered the relation
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of the State to the commerce of the great West; and by 1831 the con- struction of steam railways had added new forces to the civilization and development of the State.
From 1821 to 1846 the constitution of the State underwent few organic changes or amendments. In 1826 the office of justices of the peace had been made elective. In 1833 the franchise for elective officers was conferred on all white male citizens inhabiting the State one year preceding an election. The disability of those of African descent continued as before. In 1835 and 1837 the office of mayor in all the cities of the State was made elective, and ceased to be appointive. With these exceptions, the constitution of 1821 stood unaffected by change until the year 1846.
Between the years 1821 and 1846 immigration had already intro- duced into this commonwealth a very large number of persons of foreign birth. While such constant migrations of strangers into a cultivated and industrious community was reciprocally highly advan- tageous from an economic point of view, it no doubt temporarily complicated civil government to some extent. The new-comers, easily transmuted by naturalization into citizens, and having abandoned the restraints of their old homes, were attracted by those political doctrines which were most novel to them, and which savored of the most abso- lute equality, being opposed to centralization and privilege, or in short to the older institutions perpetuated to some extent by the State constitutions of 1777 and 1821. Thus the foreign element of the population of New-York swelled the ranks of those of our citizens who were opposed to the State constitution as it existed down to the year 1845. By 1845 the balance of political power had about shifted from the rural districts to the growing towns, and the political dis- content was promoted by those in the cities who favored a redistribu- tion of representation. Yet the persons so opposed to the ancient order of things were, perhaps independently of those of foreign birth, in the majority. Many causes had contributed to this disaffection; notably the permanent judicial establishment including the Court of Chancery, the nature of the land laws of the State, and the loose con- dition of the State debt and finances occasioned by the great public works undertaken. The indiscriminate grants of lands already noticed as taking place, both before and after the establishment of the State government, were now producing their legitimate results -agrarian, social, and political disturbances. At different periods in the history of New-York similar disturbances had arisen. It will be recalled that the landlords of the vast grants of lands in the interior of the State had, in accordance with the English land law of the province, made perpetual leases instead of granting estates in fee. Sometimes the leases were on condition of rent, services, or of produce to be rendered
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in kind. The landlords had generally reserved, also, mines and water- power, and, to preserve the character of their estates, had restrained the tenants from assigning their interests except on payment to the landlords of some portion of the consideration received by the tenants The leases were full of subtle and ingenious covenants of distraint in favor of the landlord. The great grants had been protected by the State constitutions of 1777 and 1821. As early as 1811 the legislature had appointed Ambrose Spencer, John Woodworth, and William P. Van Ness to examine the laws of New-York on this subject, and to report what reforms in the land law could be instituted without im- pairing vested rights. A bill was accordingly introduced into the Senate, but failed to become a law. About this same time the tenants on the Clarke estate in various western counties memorialized the legislature to investigate the title of their landlord, and the whole subject was referred to a committee of which General Root was chair- man. Subsequently the manor of Livingston underwent legislative investigation. In 1813 the sheriff of Columbia County was murdered by the "anti-renters," as the uprising tenants were called. In 1837 the settlers in many counties, occupying the lands of the Holland Company, and holding certain contracts of sale with forfeiture clauses, destroyed papers in the land office in Chautauqua County, and an armed multitude of them collected in Batavia, but were dispersed by the military. After the death of the patroon in 1839, it became neces- sary to attempt to collect unpaid rents on the manor of Rensselaer- wyck. This process, being resisted, led to the employment of the militia and a proclamation by Governor Seward, when the tenants consented to refer their grievances to the legislature. A policy of delay and official red tape led to the deplorable scenes of 1844-5, when the turbulent tenants, arrayed as Indians, committed various agrarian outrages and disturbances. Anti-rent newspapers and poli- ticians sprang up to play an important part in the presidential canvass of 1844, while in some counties civil government was entirely para- lyzed. In the midst of these serious disturbances the legislature took steps for a constitutional convention. Meanwhile the civil authorities acted with great propriety in their efforts to maintain law and order, and acts of assembly were passed enabling the governor to declare martial law in disturbed counties, and making it felony to rescue prisoners, to resist legal process, or to appear disguised. Withal, there was a feeling prevalent in the minds of many disinterested per- sons that the lands of New-York had been grossly mismanaged from the foundation of the English government in 1664, and that the present successors of the early land speculators were now really pay- ing off the moral debts of their predecessors. The agrarian difficulties and the natural growth of democratical doctrines served to increase
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