The Law of Settlement: Land Law and the Manors “There is nothing,” said Blackstone, “which so generally strikes the imag- ination, and engages the affections of mankind, as the right of property.”1 In choosing thus to open his discussion of the law of real property, Blackstone captured the central importance of land in eighteenth-century English society, as well as the equal significance of the land law in the larger system of the common law. Where, as in seventeenth-century England, land was not only the major source of wealth, but also the basis of political authority, the rules which regulated its possession, alienation and use were the keystones of the social structure. From this social context arose the land law that the lawyers of New York knew and used throughout the provincial period. At the same time, the principles evolved through the application of those rules escaped the initial bounds of land law, and the land law became a seed- bed for the development of other areas of the law.2 This generative aspect of the land law was particularly pronounced in British North America, where the physical settlement of the country was the first order of business, and the rules which regulated the process of physical settlement became the template for the rest of the legal order. In New York, these developments took place in the con- text of a land-holding pattern unique in colonial America—that of the manors of the Hudson River Valley. The manor lords of New York built and main- tained the system of rules which governed the disposition and employment of their own great fortunes; the effect on the settlement of the law was entirely out of proportion to the number of people who inhabited the manors themselves. From the original Dutch settlement of New Netherland, the prospect of apportioning the land upriver from New Amsterdam into large manorial es- tates was present in the minds of colonial managers. The Dutch West India Company’s creation of the patroonship system, which offered substantial land grants and administrative and judicial autonomy to any stockholder prepared to plant fifty immigrant families in the new colony, was a response to initial disappointment with the profits of the wholly-owned commercial settlement as originally envisioned.3 The articles of capitulation in 1664, seeking to secure 12 W. Blackstone, Commentaries *2 (1766). 2The creative power of the land law in the context of the early common law is a basic theme of the remarkably powerful treatment of the subject in S.F.C. Milsom, Historical Foundations of the Common Law 99–239 (2d ed. 1981). 3See Chapter ??, supra. 1 Moglen / Settling the Law 2 the support of the Dutch inhabitants of New York, assured Dutch landholders that their titles to property and their inheritance customs would be respected by the new government. As in other respects, the articles functioned as a source of substantive law in the colony, pluralizing the system of land tenure, like other elements of doctrine, in the interests of peaceful administration. At the same time, however, that Governor Nicolls was protecting titles and inheri- tance for Dutch owners throughout the colony, he was also moving to reduce the autonomy of the remaining patroonship; in 1664 and 1665 he took several steps in this direction, including that of depriving the patroon of Rensselaer- swyck of his right to maintain a local court.4 If Nicolls found the independence of Rensselaerswyck troublesome, he was equally disturbed by the other form of independence prevailing elsewhere in the colony—the disrespectful truculence of the Long Island English towns. Of these towns Nicolls wrote in 1666 that “Democracy has taken so deepe a Roote in these parts, that the very name of a Justice of the Peace is an Abomination.”5 For political and ideological reasons already discussed, the colony’s new man- agers strongly desired an alternative structure for landholding and local gov- ernance. Administrative control over new physical settlement patterns made it possible to encourage the development of these alternate structures, within the constraints set by the need to conciliate rather than overawe local dissenting interests, ethnic and religious. From the combination of imposed rules deter- mined by the proprietor’s agents and the negotiation with possible centers of resistance emerged the pattern of geographic settlement and the contours of the legal regime. Part of Nicolls’ solution to the political problems he faced lay in the cre- ation of “independent patents,” or “manors,” four of which were established in 1665 and 1666. These were Pelham; David Gardner’s Isle of Wight (1665); Constant and Nathaniel Sylvester’s Shelter Island (1666); and John Winthrop, Jr.’s Fisher’s Island (1666). Certainly a territorial motive played a part in the granting of the patents. Shelter Island and the Isle of Wight were claimed by Connecticut, while Thomas Pell himself had been commissioned by Connecti- cut to purchase Pelham from the Indians on behalf of Connecticut. Nicolls no doubt intended to use the patentees to solidify New York’s control over the dis- puted areas. The patent under which Thomas Pell was granted the manor of Pelham was representative in providing that Pelham would be independent of 4See 7 Annals of Albany 97–98 (J. Munsell, ed. 1859); S. Nissenson, The Patroon’s Domain 272 (1937). This step seems to have been undertaken primarily for strategic reasons. Albany was, as noted in Chapter ??, the most crucial military possession of the British in North America, and the only location of a permanent garrison in the seventeenth century. Institutions of local government under even partial Dutch control were difficult to tolerate, and divided control, including the pa- troon, was intolerable. The actual disposition made by Nicolls was to convert the patroon’s right to hold court into the right to nominate three members of a new consolidated court for Albany, Rens- selaerswyck, and Schenectady. Since the Governor nominated the rest of the six-member court, this significantly reduced the possibility of Dutch obstruction of English measures at the strategic pivot of the colony. The outcome of Nicolls’ measures was a long struggle between successive governors and the Van Rensselaers, ending only in 1685. See p. 4 & note 17, infra. 5Richard Nicolls to Earl of Clarendon, April 7 1666, 2 NYHS Coll 119 (1869). Moglen / Settling the Law 3 all other townships, and would fall solely under the administrative authority of the Governor and Council and the jurisdiction of the General Court of As- sizes.6 Pelham was not a manor in the traditional English legal sense, lacking as it did both a court baron, for the conducting of tenurial, civil, and administra- tive adjudications, and a court leet, which exercised petty criminal jurisdiction over the inhabitants of the feudal English manor.7 Through this arrangement, Nicolls hoped to secure the support of larger landholders, while at the same time centralizing authority as a bulwark against New England-style democ- racy. The early success of this system prompted its continuance by Governor Francis Lovelace, who succeeded Nicolls in August of 1667. Among Lovelace’s grants under the independent patent concept was one to John Archer, for the settlement of Fordham, in 1671.8 In 1673, Lovelace went one step further, and ordered the establishment of a local court in Archer’s manor.9 This court, effec- tively equivalent to a court baron, was not an integral part of Archer’s patent; it was, rather, an additional privilege granted at his special request. Nonetheless, this granting of judicial rights associated with the ownership of land marked the beginning of the English experimentation with quasi-feudal jurisdictional privileges in New York, an experiment which gave rise to the colony’s four greatest manors, and which continued down to the opening of the eighteenth century. Whatever the enthusiasm felt by Nicolls and Lovelace for the use of inde- pendent manors as the basis of the colony’s political structure, they found little favor in the mind of Edmund Andros. His land policy, which involved the cre- ation of no manor or independent patent between 1674 and 1680, resulted in part from a shift in the proprietor’s emphasis. The instructions issued to An- dros demonstrated that the Duke and his advisers understood the difficulty of increasing the colony’s population, and regarded measures for the encourage- ment of planter immigration as the primary order of business. Andros was told to heed “the rules and propositions given to planters by those of New England and Maryland” so that prospective colonists might have “equall encourage- ment to plant” in New York.10 The proprietor was prepared for hard-fought 6Thomas Pell’s Patent of the Manor of Pelham (October 1666) (Deed Book A, 240–43, Westch- ester County Clerk’s Office, White Plains, N.Y.). Pelham was, in the language of the patent, an “intire infranchised Townshipp Manor and place of itself,” and was thus freed of any revenue or administrative burden imposed by other towns. 7The functions of these manorial courts can be seen in F. Maitland, Select Pleas in Manorial and Other Seignorial Courts (Selden Soc., No. 2, 1888). 8The original patent is reprinted in 1 J. Scharf, History of Westchester County, New York, Including Morrisania, King’s Bridge, and West Farms 159–60 (1886). 9“Order about Fordham,” April 20 1673, 13 NY Col Docs 471; 30 * NY Col Mss* 125; 31 id. 42. 10See 3 NY Col Docs 216–218. These instructions were not made easier to follow by the fact that New England and Maryland followed diametrically opposed approaches. The allotment system for the distribution of town land in New England could not have been further from the Maryland model, which consisted at this stage of a manorial system closely parallel to the measures under- taken by Nicolls and Lovelace.