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The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030043123 
 
A CHAPTER OF HISTORY, 
 
 OB 
 
 THE F'B^OG-RES^ 
 
 OF 
 
 jdCicial usurpation. 
 
 Quid Tetat?- 
 
 -Dicere Terum' 
 
 What shall forbid a man, in sooth, 
 6t Judges,' even; to speak' th6 trutll'? 
 
 BY A. G. JOHNSON. 
 
 TKOY, jr. Y.:' 
 A\ yr. scribner; book and job printer, CANNbu place. 
 
 1863; 
 
 1^ 
 
h>^\<\0 
 
 1"% 
 
A CHAPTER OF HI8T0EY. 
 
 It would seem to be an easy matter to decide what constitutes tlie 
 relation of landlord and tenant. But if a man sets himself to the inves- 
 tigation of the propositions: "Land, and who owns it^ rent, and who 
 owes it," he will soon find out that the legislation and the judicial decis- 
 ions of this State hav.e still left the question in a state of most delightful 
 uncertainty. 
 
 It was supposed .up to 1779, aad 1787, that the tenure of land in this state 
 was feudal, and the legislature, under that supposition, passed laws abolish- 
 ing that tenure, and all its incidents. Between the years 1780, and 1805, 
 Stephen Van Rensselaer, claiming to be Patroon, or Lord Proprietor of 
 the Manor of Renseelaerwyck, as granted to his ancestors by Queen 
 Anne in 1703, had sold and conveyed the greater part of the Manor by 
 instruments which he supposed_to_ be .leases, in which he reserved rents 
 and conditions, which are precisely the same as those which a feudal tenant 
 owes to his military superior, or landlord. 
 
 Other men, owning large tracts of land in other counties, had also sold 
 upon similar instruments. 
 
 Comiplaints of th« onerous character of these grants and reservations 
 were frequently brought before the Legislature. In the Assembly Jour- 
 nal of 1812, we find a Report of Ambrose Spencer, Wm. P. Van Ness, 
 and John Woodworth, made to the Assembly, Feb. 17, 1812, pursuant 
 to a Resolution of the Assembly, passed April 9, 1811. 
 
 The resolution was passed upon petition of Moses Rich and others, of 
 ■Otsego County, complaining of George Clarke's oppressive leases. 
 
 At the time this report was made, Spencer was one of the Justices of 
 the Supreme Court of the State ; and both Van Ness and Woodworth 
 subsequently became Justice of the same court. 
 
 This report, and the bill mentioned in it, had reference to actual leases, 
 not grants in fee, for George Clarke never executed grants in fee reserving 
 rent. He made leases for years, and for lives, but always took care to 
 retain the reversion in himself and his heirs. 
 
 If these distinguished jurists considered fines for alienation, quarter 
 sales, double rents, and other contrivances to restrain the tenant's rights of 
 
alienation, unreasonable and oppressive in actual leases, how much more 
 objectionable ought similar restraints to be considered when attempted to 
 be reserved in grants in fee. 
 
 " In obedience to a concurrent resolution of the Honorable the Senate 
 and Assembly, of the ninth of April last, the undersigned have the honor 
 of reporting a bill to obviate some of the evils of the existing laws m 
 relation to landlprd and tenant. We trust it will not be exceeding the 
 line of our duty if we enter into some explanation of the motives and 
 reasons which influenced us to propose the several sections of the bill. 
 
 " The first section of the bill is intended to abolish a rigid and unrea- 
 sonable burden to tenants ; restraints in the nature of fines, or quarter 
 sales, against alienations, are exceedingly objectionable. Whatever tends, 
 under a government like ours, to interrupt or prevent the free course of 
 alienating real property, is opposed to sound policy and the genius of our 
 political institutions. If it should be objected, that tenants enter into such 
 kind of stipulations voluntarily, and that every man should be left free to 
 contract in such manner as he pleases — we answer, that the public is 
 bound to protect and guard individuals from oppression. On this basis, 
 stand the law against usury, and many other salutary provisions. 
 
 " Covenants and conditions which coerce the tenant to pay a penalty 
 for leave to change his residence are generally without consideration ; for 
 it cannot be pretended that in settling the terms of the lease, the landlord 
 agreed to accept a lower rent on the contingency that his tenant would 
 change his mind and become disposed to part with his lease, The rights 
 of the landlord are left perfectly unimpaired by the section under consid- 
 eration ; for should the tenant assign to even at} insolvent person, the 
 right of re-entry for non-payment of the rent, will be his security against 
 that event. It may be also remarked, that the tenant in entering into 
 stipulations to pay a fine or a quarter sale, on alienation, does so under 
 circumstances which may induce him to believe that he will never be 
 disposed to alienate ; but his circumstances change, and a variety of 
 unforeseen causes impel him to a change of residence, 
 
 " It can never be right to suffer the landlord who is not prejudiced by 
 the alienation of his tenant, to grasp a part of his earnings, for his yield- 
 ing to imperious circumstances, or for his changing his mind. 
 
 " The second section of the bill is intended to remedy what is considered 
 as a great imperfection in our laws, whilst, at the same time, it secures a 
 perfect remuneration in damages for any covenants or conditions violated 
 by the tenant, and eventually secures to the landlord his remedy for 
 re-entry. 
 
 "It is a well settled rule, that where a forfeiture can be compensated 
 for in damages, settled by the contract of the parties, there a court of 
 equity will grant relief by compelling the party to accept an equivalent 
 with interest, notwithstanding the cause of forfeiture. In case of a mort- 
 
gage, whatever be the contract of the parties in providing for a forfeitoire 
 equity looks into the intention of parties, and it regards the payment of 
 the money as the essence of the contract, and will relieve against Ae 
 forfeiture on compensating the mortgagee with principal, interest swi 
 costs. 
 
 " With respect to collateral acts, when the breach of covenants, as' 
 regards them induces a forfeiture of the estate pursuant to the agreement 
 of the parties, the reason why equity does not relieve against She forfeit- 
 ure, is, that it cannot know what value the observance or non-observance 
 of the covenant, working the forfeiture, is to the party covenantee. This- 
 reason appears to be a very insufficient and inadequate one, for it is 
 presumed that a jury can in all cases ascertain the value of the covenants 
 broken; and if the landlord recovers that value, he obtains a just equiva- 
 lent for the violation of the contract. 
 
 " It is also to be observed, that in many iustahces the tenant is charge- 
 able with a breach of his contract, without having been guilty of culpable 
 conduct, and the petition which induces the Legislature to make this 
 reference, furnishes several examples of that kind," &c. 
 
 In his Message, 1840, Gov. Seward holds the following language 
 respecting the pretended leases upon the Manor of Eensselaerwyek : 
 
 " The lands in that manor are held under ancient leases, by which 
 mines and hydraulic privileges, rents payable in kind, personal services, 
 and quarter-sales are reserved. Such tenures, introduced before the 
 Revolution, are regarded as inconsistent with existing institutions, and 
 have become odious to those who hold under them. They are unfavora- 
 ble to agricultural improvement, inconsistent with the prosperity of the 
 districts where they exist, and opposed to sound policy and the genius of 
 our institutions. The extent of territory covered by the tenures involved 
 in the present controversy, and the great numbers of our fellow citizens, 
 interested in the questions which have grown out of them, render the 
 subject worthy of the consideration of the Legislature. While full force 
 is allowed to the circumstance that tlie tenants enter voluntarily into such 
 stipulations, the State has always recognized its obligation to promote the 
 general welfare, and guard individuals against oppression. The Legisla- 
 ture has the same power over the remedies upon contracts between 
 landlord and tenant as over all other forms of legal redress. Nor is the 
 subject altogether new in the legislation of the State. It was brought 
 under consideration in 1812 by three jurists of distinguished eminence and 
 ability. I trust, therefore, that some measure may be adopted which, 
 without the violation of contracts, or injustice to either party, will assimi- 
 late the tenures in question to those which experience has proved to be 
 more accordant with the principles of republican government, and more 
 conducive to the general prosperity and the peace and harmony of 
 society." 
 
In 1844, a select committee of the Assembly reported a bill author- 
 izing all rents due on leases for more than twenty years to be extinguished 
 on payment of their value, to be ascertained by a Commissioner appointed 
 for that purpose. In this report it was assumed that the Van Kensselaers 
 were landlords and the farmers tenants. 
 
 The select committee consisted of the members from Albany and 
 Rensselaer counties. The Assembly did not dare either to adopt or reject 
 the bill reported, and so referred said bill and the whole subject to the 
 Judiciary Committee. This committee, in order to avoid any political 
 capital to be made out of the subject, gave the go-by to the whole matter 
 by referring the question of taxmg ground rents, extra rents, &c., to the 
 Comptroller. The Committee, however, enter into a long argument, 
 first, to show that the bill proposed by the select committee would be 
 unconstitutional, and, fm'ther, they make an elaborate exposition of the 
 patent and title by descent of the Van Rensselaers; and, second, to prove 
 that they are still proprietors and landlords, and the farmers leaseholders. 
 They close by a resolution that " the Legislature has not power to inter- 
 fere with and vary the relations that exist between landlord and tenant 
 under contracts heretofore made." 
 
 Gov. Wright speaks of them as " contracts onerous in their exactions, 
 and tenures in their nature and character uncongenial with the habits and 
 opinions of our people.'' 
 
 Gov. Young in 1848 says : "The principle which has been so often 
 asserted, that these tenures are not in harmony with our institutions, 
 exists no longer in mere speculation. It has received the sanction of the 
 Constitution of the State, and is now a part of its fundamental law." 
 
 Gov. Fish, in his Message of 1851, says: "The perpetuation of lease- 
 hold estates, embracing a large agricultural population, is repugnant to our 
 national policy, and to the liberal spirit of our institutions. The manly 
 independence which belongs to the character of an American citizen de- 
 mands the absolute control and ownership in fee of the soil improved and 
 cultivated by his labor, and on which he is to spend his life and rear his 
 children. Experience has shown that leasehold estates are peculiarly 
 unfavorable to the development of the country and the progress of the 
 people in improvement and enterprise." 
 
 In 1845, a Mr. Constant, from another select Committee of the 
 Assembly, made a report in which the Van Rensselaers were assumed to 
 be lessors, and the -farmers leaseholders, and which denied the power of 
 the Legislature "to alter, modify, or in any way interfere with existing 
 covenants in leases." 
 
 In his Message of 1846, Gov. "Wright says: "The change of the 
 tenures from leasehold to fee-simple estates he has ever understood and 
 supposed to be the great object of desire on the part of the tenants." 
 
And he thought this object must be reached " by contract and compro- 
 mise between the landlord and tenant.'' 
 
 Joshua A. Spencer, from a committee of the Senate to whom the 
 Governor's Message was referred, made a long report, in which the Van 
 Eensselaers were assumed to be proprietors of the soil and the farmers 
 tenants, and the grants to be leases. 
 
 In another report, the same year, Mr. Spencer, however, in arguing 
 against the taxation of these rents, took the ground that the whole estate 
 had passed to the grantees, and that the so-called rent was a rent-charge 
 springing out of the land. 
 
 Another committee of the Assembly, in 1846, of which Mr. Tilden 
 was Chairman, speaks of the Van Rensselaer lease as a warrantee deed. 
 The committee actually take the ground that " the fee of the land is con- 
 veyed to the person who is called the tenant, but who in truth is the 
 owner. The title is in the person called the tenant, who is the owner of 
 the land in contemplation of law and in fact, just as much as a man is of 
 his farm who owes a mortgage or judgment. Mr. Van Rensselaer has no 
 title — he has conveyed it to the tenant. Nobody but the tenant has any 
 title. 
 
 And yet the Committee still go on to treat the parties as landlord and 
 tenant, and consider the laws of landlord and tenant applicable to them. 
 
 In 1S51, a select committee, favorably disposed, strongly denounces 
 the leasehold tenure. 
 
 It will be remembered, that in 1840 Gov. Seward recommended a com- 
 mission to be composed of President Nott of Union College and others to 
 appraise the value of the Van Rensselaer reversionarj' interest in the land, 
 and to propose some mode in which his tenants should buy it, and become 
 owners of the fee. 
 
 In 1840 also, William Duer, of the Assembly, in a report on the sub- 
 ject, , recommended the State to take the landlord's reversionary interest 
 under the power given in the constitution, to take private property for 
 public use upon just compensaticm. 
 
 Baniel D. Barnard, in the American Review, in the year 1845, discussed 
 the question at great length, and while admitting that Stephen Van Rens- 
 selaer had granted the fee, of which the farmers were the owners still 
 claimed for the grantor the character and riglits of a landlord, on the 
 strength of his manorial proprietorship. 
 
 It is Kot at all strange, therefore, in view of the gubernatorial and leg- 
 islative opinions, above quoted and referred to, that the people in other 
 parts of this State and in other States, and foreign countries, should regard 
 the Anti-Rent controversy, so miscalled, as a contest between landlord 
 and tenant. It is not at all Strange that popular symp-athy should havo 
 been in favor of the supposed landlord. Van Rensselaer. Every owner of 
 land and real estate was inclined by feeling and interest to take sides 
 
against tenants who refused to pay rent. If the true state of the case 
 had been known ; if it had been understood that the pretended landlord 
 ■was a landless pretender, and the supposed leaseholders were the real land 
 owners, popular sympathy would have been with the farmers. 
 
 In the year 1848, petitions were sent into the Legislature from many 
 parts- of the State, asking that a suit m ight be instituted in behalf of the 
 State, to test the title of the manorial lords to the lands claimed by thfem. 
 The Legislature directed such a suit to be' brought. See laws of 1848, 
 page 582. Suit was accordingly brought hf John Yan Buren, Attorney 
 ■General, and' those who' are curious to see what the Court decided, may 
 consult 5 Selden, page 582. 
 
 The case and the decision are of no consequence whatever, except so 
 far as they show the continual attempts by the' people of tlie State up to 
 that time to' get rid of the exactions made upoh them for pretended rents. 
 
 Governors, Legislators, Politicians and the public generally, still 
 believed the manorial lords to be the bbna fide owners of thte' land, and the 
 people' to be subject to do them service, and pay them rent. 
 
 Now let us see what our Courts and Judges have held to be the legal 
 construction of the Manor grants, and what the relation to' each other of 
 the parties to the grants, and the relation of their respefctive assignees. 
 
 Previous to the year 1800, a question had been raised in our Courts 
 concerning the mutual relations of the parties and their assigns, and 
 the nature and legal effect of the contracts themselves. See Johnson's 
 Cases vol. 2, p^ges 1 7 and 24 : 
 
 A suit was brought by the executors of one Johtt Van Rensselaer to 
 recover certain rents alleged to be due from the grantee of said John Van 
 Rensselaer. The declaration or complaint, set forth a demand for rent, 
 which had accrued both before and after the decease of said Van Rens- 
 selaer. The judge, at the trial of the' cause gave judgment for the de- 
 mand. A motion in arrest of judgment was made, on the ground that 
 the executors could maintain suit only for the rents accriied previous to 
 the death of the testator,' and not for rents due after his decease. The 
 motion was granted. In this case it was heldUhat at comtnbti'law, exec- 
 utors had no remedy for reht iii arrear in the life time of their testator, 
 because they could not represent their testator, as to any contracts relating 
 to the freehold. A statute was passed authorising executor^ to maintain 
 such suits. 
 
 The judges who decided this case, were John Lansing,' Morgan Le'wis,- 
 JIgbert Benson, James Kent and- Jacob Radcliff 
 
 In the same year was decided a' suit by the Devisees of the same John' 
 Van Rensselaer, and the same defendants executors of Jacob Platner. 
 Ambrose Spencer, afterwards Chief Justice of the State, was counsel for 
 'defendants, and James Emott, father of the present Judge Emott, of the' 
 iSecond District, was counsel for plaintiffs. 
 
The case was decided by the same judges, John Lansing, Chief Justice, 
 delivering the opinion of the Court. 
 
 The Counsel for the parties were as able lawyers as ever graced the 
 bar of the State, and the judges who composed the Court have never been 
 excelled for learning, judgment and integrity. 
 
 And what renders their decision more worthy of our respect and admi- 
 tation, is the fact that they nearly all belonged to the families, which in 
 colonial times; held the first rank in society. Their prejudices, if they 
 had any, would have led them to sustain the plaintiffs. But they looked 
 only to the case before them and applied to' it the law as it existed, 
 without regard to the standing of the parties, or the "great interests 
 ■which might be affected by the legal consequences " of their decision. 
 
 The facts in this case were similar to those in the former case except 
 that the devisees claimed only the rent subsef[ueht to the death of the' 
 devisor. 
 
 It must be understood that a devisee, who takes by last will ah\3 testa- 
 ment, is simply a grantee. A last will and testament, devising real estate,- 
 is nothing more nor less th-an a deed, allowed by statute to take effect 
 upon the death of the testator. A devisee has the same legal status or 
 position, the same legal rights and remedies,- no more and' no less, as a 
 grantee. 
 
 Judgment for the plaifttiff had been givett at the circuit. 
 The defendants moved in' arrest of judgment. 
 
 1. Because the plaintiffs cannot legally sustain this action' as deviSeSs. 
 And 
 
 2. Because the defendants are n<5t liable,' the estate on w'hich' th'e rent 
 is charged having passed to the heirs.' 
 
 In his decision. Judge Lansing' refera' to' the laws of New' York,- 11th 
 session, chap. 7, entitled "An Act to enable grantees of reversions' to 
 take advantage of the conditions to be performed by lessees,'"' passed 
 February 1Y88, and says that it applies only "to the persons against 
 whom a remedy is provided to the execators,- administrators aiid assigns 
 of lessees /or lives of years." 
 
 Justice Lansing thus states the case : 
 
 " The covenant imports that Jacob Platner',- the defendants' testator, for 
 himself, his heirs, executors, administrators and assigns, covenanted, etc., to 
 and with John Van Eensselaer, the plaintiff's testator,' his Jieirs,- executors, 
 administrators and assigns,- to pay the rent." 
 
 " As long as both parties were in full life this ooveWailt bound the 
 defendants' testator to pay.- If he died,' from the terms of the contract, 
 the grantor might charge the heir, or executor at his election, on the per- 
 sonal contract of their ancestor, or testator ; but when both the contract- 
 ing parties were dead, their representatives must either clan-n, or be liable,' 
 
10 
 
 on the privity of contract, or on the privity of estate, subsisting between 
 them." 
 
 The learned Justice then quotes the case of Butt vs. Cutnberland (Cro. 
 Jac. 521,) in which it was held that a rent created by contract is not 
 chargeable upon parties any longer than the privity of contract continues. 
 
 He then declares that the statute of 1788 does not apply to the case, 
 because that "remedy was only intended to be applied to estates, in legal 
 eontemplation, capable of being transmitted through the personal repre- 
 sentatives." 
 
 This was a rent charge which could not be thus transmitted, and "the 
 personal representatives cannot, after the death of both parties, and for 
 rents accruing after the death of both, either maintain, or be subject to an 
 action." 
 
 Jackson ex dem. Lewis and wife against Shutz. Johns. Rep. vol. 18, 
 page 174. 
 
 Ejectment tried bpfore Justice Yates, at the Dutchess Circuit, Septem- 
 ber 1816. 
 
 It was a suit in fact, by Morgan Lewis and wife lessors, against Shutz, 
 assignee of the lessee. 
 
 In this case, the Supreme Court held that the instrument called a lease, 
 was "a fee simple conditional" and that the condition "not to alien" 
 which would have been void, if it had been general and absolute, was in 
 this case good and valid, because coupled with ii condition that the lessee, 
 if minded to sell, should first offer the premises to liis landlord and obtain 
 his license- to sell. 
 
 Judge Piatt gave the opinion of the Court and calls the instrument a 
 leaser and the parties lessor and lessee, landlord and tenant. He says, 
 " The conditions stipulated in this lease are, that the lessors should have 
 a preemptive right, and that on every sale, they should receive one tenth 
 of the purchase money. These conditions were neither unlawful, impossi- 
 ble nor repugnant ; they formed an essential part of the consideration for 
 the grant. Therefore, as the lessee failed to comply with those conditions, 
 the estate derived under the lease has become void, and the Plaintiff is en- 
 titled to judgment. 
 / It was in this case that Justice Spencer expressed his opinion that the 
 • statue quia emptores was never in force in the colony of New York. 
 
 Demarest vs. Willard, 8 Oowen, 206. 
 
 This was an action in which the construction and intent of the statute of 
 1805, was directly involved. 
 
 The Plaintiff had assigned a lease and all the rents to grow due thereon. 
 
 The lease contained covenants that no alterations should be made in the 
 house, and that it should be delivered up in good repair. 
 
 The Court, by Savage, Chief Justice, decided that the assignment of the 
 lease and rents to grow due, did not assign the reversion, and that conse- 
 
11 
 
 quently the 'Plaintiff could not recover arrears of rent, but could recover 
 for breach of the covenant to repair. The Chief Justice in the course of 
 his opinion, alluding to the statute of 1805, says, "Our,statute to enable 
 grantees of reversions to take advantage of conditions to be performed by 
 lessees, which is substantially, a copy of 33 Henry 8, Chap. 34, relates 
 solely to grantees of reversions, and as the reversion has never been grant- 
 ed in this case, the statute has no apphcation." 
 
 In another case, 2 Hill 475, Judge Savage, referring to the statute of 
 1805, as re-enacted § 23, Revised Statutes, Vol. 1, 789, says, "This act 
 was taken from the 23 Henry 8, Ch. 34 and 37, and was designed to ex- 
 tend to the grantee and assignees of the reversion iiiho were stranger^ to 
 the lease, and to their personal representatives, certain remedies upon the 
 covenants therein, which were at least doubtful at common law.'' 
 
 The People on the relation of E. H. Rosekrans vs. W. P. Haskins, 
 Sheriff of Renuselaer. 7 Wendell, 463. (1832.) 
 
 This was a case in which Rosekrans, holding a judgment against one 
 Amaziah Payne, offered to redeem lands sold by the Sheriff on prior 
 judgments. The sale to Huntington was Oct. 24, 1829. Payne held the 
 land under a lease in fee, subject to an annual rent-charge. In 1824, 
 Dec. 14, Payne had sold the land, with the exception of nine acres, to one 
 Hull. The nine acres were in three parcels, which Payne had sub-let, 
 reserving an annual rent-charge to himself. One of Huntington's judg- 
 ments was docketed 1823, Feb. 23. Rosekrans' judgment was docketed 
 April 26, 1826. 
 
 In this case the Court, Nelson, Justice, and Sutherland subsequently 
 concurring, held " that a rent-charge, that is, a rent reserved upon a lease 
 in fee, containing a clause to enter and distrain for the rent, is an interest 
 in land which is bound by a judgment, and ma;y be sold on execution as 
 real estate, and forms a specific portion of the premises on which it is 
 charged." 
 
 Payne vs. Beal, 4 Denio, 405. 
 
 In this case the same Amaziah Payne brought ejectment for one of the 
 aforesaid small pieces leased by him to Braddner Yale April 1, 1815, for 
 $30 a year. 
 
 Parker, Circuit Judge (1844) nonsuited the Plaintiff, holding that the 
 case above cited was decisive of this case. 
 
 But the Supreme Court, by Jewett, held that the Sheriff's deed to 
 Huntington did not convey to him the 1 J acres previously sold to Yale. 
 
 The Court say : " The Plaintiff was not on that day, or any time 
 afterward.?, either seized or possessed of the one and a half acres of land 
 in controversy. He had several years before sold and conveyed it to 
 Yale in fee, reserving, it is true, a certain rent, with the right of distress 
 and reentry. He had therefore no vested estate, right, or interest in the 
 land or thing remaining on which the lien by judgment could attach." 
 
12 
 
 The Judge held that " the interest of the Plaintiff in the land itself was 
 therefore but the mere possibility of an estate. That interest in my 
 opinion is neither ' lands, tenements, or real estate' within the meaning of 
 our statute. " 
 
 So Judge Jewett overruled Judge Nelson. 
 
 The Court of Errors in 1843, in the case Huntington vs. Torkson, 
 decided that the sale of the Sheriff to Huntingt&n did not pass to him 
 the three lots previously leased by Payne, but did not decide whether or 
 not a rent-charge was subject to the lien of a jfjdgment, and to sale upon 
 execution. 
 
 Van Eenss. vs. Bradley, 3 Denio 135. 
 
 In this case, the relation of landlord and tenant was admitted, and the 
 Court, Jewett, assumed the rent to be a rent-service, although the same 
 Justice had before styled it a rent-charge. 
 
 The point in the case was, whether rent was apportionable upon the 
 separate parcels of a farm held by different owners. The Court decided 
 that rent was apportionable, and suit could be maintained against the sev- 
 eral owners. But the days service could not be so apportioned. 
 
 In the following cases, Jackson vs. Collins, 1 1 Johns. 1 ; Van Rensselaer 
 vs. Jewett, 5 Denio 121 ; Same vs. Hays, 5 Denio 477 ; Same vs. Jewett_ 
 2 Coras. 141 ; Same vs. Snyder, 3 Kernan 299, the relation of landlord 
 and tenant was admitted. 
 
 Prescott vs. De Forest. 
 
 In this case it was held that the right of distress for rent was incident 
 to and inseparable from the reversion. The lessee of certain premises had 
 sublet a part of them for the same time for which he had taken them. 
 The Court held that this subletting for the whole of his time was in fact 
 an assignment and not an underletting. It was decided that a distress for 
 the rent was illegal, and that the purchaser upon a sale of the goods dis- 
 trained acquired no title to them. 
 
 In this case the Court below admitted proof that in the city of New 
 York it was the euslom for lessees to sublet for the whole time, and to 
 distrain for the rent. The Supreme Court decided that " we cannot allow 
 "any custom in this State to control the general rules of the common law. 
 " When a custom is of such antiquity that we cannot trace its origin, it is 
 "coeval with the common ;law itself; and then it forms ^n exception to 
 " the general rule, because there is ground to presume that they are of 
 " equal authority, and that the same power which established the rule, also 
 " made the exception." 
 
 Van Rensselaer vs. Chadwick. 
 
 In this case the point at issue was the apportionability of the rent 
 claimed. Tlie Defendant occupied a farm, which was composed of half of 
 the land granted by two deeds in fee reserving rent. The Plaintiff had 
 released and discharged from his clnim the other half of the land. The 
 
13 
 
 defence was that the release of part released the whole. Harris held that 
 the rent in question was a rent-charge. But while conceding that a rent- 
 charge was not apportionable, he decided the case for the Plaintiff on the 
 ground that the Defendant in the partition of the premises had entered 
 into a contract to pay the rent. The case went to the Court of Appeals, 
 /in which it was decided that a rent-charge is not apportionable. / 
 
 Tn another case, Main vs. Cooper, which arose in the Justices' Court of 
 Troy, the Plaintiff sued, as assignee of Van Rensselaer, for the rent 
 reserved upon one of the Manor grants. The Plaintiff produced in evi- 
 dence his title deeds down to the father of the Defendant, and thus 
 proved the occupancy of Defendant. The Defendant thereupon objected 
 that the title to land was in question by the showing of Plaintiff. The 
 justice overruled the objection and gave judgment for Plaintiff. The case 
 came up to the Supreme Court and Harris reversed the judgment, on the 
 ground that " the rents claimed were real property.'' 
 
 (The Court of Appeals have since affirmed the judgment, but gave no 
 opinion.) 
 
 Main vs. Feathers was a case upon demurrer, in which the complaint 
 alleged a grant in fee, with a covenant to pay a certain number of bushels 
 of wheat annually. In his opinion, Gould, Justice, assumed that there 
 was a covenant for the right of re-entry and distress. He then assumed 
 that a covenant to pay rent lessened the value of the land, and argued 
 that because a covenant of warranty, making a part of its value, runs 
 with the land, so, by parity of reasoning, a covenant to pay rent, decreas- 
 ing its value, ought to run with the land. Gould also put his decision on 
 another ground, that the words " yielding and paying" create a condition 
 which attaches to the land, although in two previous cases- our own 
 Supreme Court had decided to the contrary. 
 
 Main vs. Green is another of Gould's decisions, or rather opinions. He 
 has in this case dropped his pecuUar pet phrase, "an entity assignable,'' 
 and adopted in its stead, ''statute reversions," and "legislative reversion." 
 This would be ridiculous if it were not wicked. The wickedness is in the 
 assumption that the Legislature can step in between two contracting par- 
 ties, grantor au,d grantee, and give to the former what he has sold to the 
 latter, without the latter's consent. 
 
 Van Eensselaer vs. Bonesteel, 24 Barb. 365. 
 
 In this case Judge Harris held that "In order to sustain an action for 
 rent upon a lease in fee, against an assignee of a grantee, it is not requisite 
 that the Plaintiff should have a reversionary interest in the land, as in the 
 case of landlord and tenant. It is enough that at the time of making the 
 covenant, an estate passed between the covenanting parties. 
 
 Van Rensselaer vs. Hoag. 
 
 In this case Judge Harris gave an opinion that the assignee of a grantor 
 in fee, could not maintain an action of covenant against the assignee of 
 
14 
 
 the grantee. That the rent reserved in all such cases was a rent-chargej 
 and not a rent-service. That there was no privity between tlie assignee 
 of a grantor and the assignee of a grantee upon which an action of cove- 
 nant could be founded. 
 
 It will be noticed that in all these cases, from 1787 down to 1852, no 
 Defendant in a suit for rent, had denied his liabiHty on the ground that the 
 relationship of landlord and tenant did not subsist between the parties to 
 a grant in fee. In all suits for rent, and in all ejectment suits, in cases 
 arisinn- upon so called perpetual leaies or leases in fee, the parties litigant, 
 by iheir attorneys and counsel, have tried and argued them as if they 
 stefJd towards each other in the relation of landlord and tenant. 
 / Tlio cases of D ePuyst er against ^Iichflel, and Overbaugh against Patrie, 
 (2 Sclden 467) were ejectment suits, brought to recover the possession of 
 land on the ground that the Defendants had not performed the covenants, 
 contained in the so called perpfefual leases, by which the grantee and his 
 assigns were bound to pay to the grantor and his assigns, one quarter of 
 the purchase money upon every sale of the premises. 
 
 The Court of Appeals decided that the covenants to pay quarter sales 
 did not run with the land, upon the ground that the grant, though called 
 a lease, was in fact an assignment, and the grantor had no reversionary 
 interest to which covenants could attach. 
 
 In effect the Court decided that the grantor was not a landlord, because 
 he had no interest in the land, and the grantee was not a lessee, because 
 he was the owner of the whole interest. By the operation of the statute 
 of tenures, the grantee took the same estate, and all the estate of the 
 grantor. The covenants to pay quarter sales, and the covenant of re-entry, 
 were personal, and did not attach to the land. 
 
 After the publication of this decision, the farmers and land owners of 
 the counties of Albany and Rensselaer, could not see why they should 
 still pay tribute to the Van Rensselaer family. The Court of Appeals 
 had decided that their title deeds was not deeds of lease, but deeds of 
 assignment, by which the State was substituted in the place of the Van 
 Rensselaers as their landlord, and by which they became the tenants of the 
 State. The State by its Constitution and by statute, has declared their 
 tenancy, or their estate to be allodial, that is, an estate held of nobody, in 
 other words, owing service and fetJty to nobody. m i 't^ ^' 
 
 The decision in the De Peyster case was announced in Oct. 1852.^ In 
 July and August 1853, Stephen Van Rensselaer sold all his rents &c., to 
 Walter S. Church and Oscar Tyler. This sale comprised all that he 
 claimed in Albany County, of a manorial character, leases, back rents, 
 notes and judgments, and every interest in, or growing out of, his sup. 
 posed property in the grants in fee reserving rents. 
 
 The amount of the purchase price or consideration was made Up as 
 follows : Wheat at one dollar per ljn;;hrl, days service at two dollars, and 
 
15 
 
 fat hens at one shilling apiece. The value of the back rents was computed 
 at the same rates, and no interest was added. The rent for one year thus 
 computed, was estimated at one hundred dollars for every six dollars, and 
 this sum was added to the back rents, and the two amounts made up what 
 was called the gross value of the interest of Van Rensselaer. 
 
 Of this gross sum, the amount agreed to be paid was fifty cents on the 
 dollar for the first $100,000, and sixty cents for the residue, whatever it 
 might be. 
 
 If the interest on back rents had been included, the purchase money 
 would have been about twenty-five per cent of the aggregate valuation. 
 
 Church bought out his partner, Tyler, in 1855, and henceforth assumes 
 to be a millionaire, and struts a, lord. But asTiches in possession some- 
 times take to themselves wings and fly away, so riches in prospect vanish 
 like the misty mirage of the desert. 
 
 Church was unable to meet his payments, and in 1861 a new bargain 
 was made, in which two new parties, but old acquaintances, were admit- 
 ted. The whole was resold to Peter Cagger, James Kidd, and Walter S. 
 Church, for $75,000, cash down, and $75,000 to be paid. The nature of 
 this transaction, and the parties to it, will be learned from the testimony 
 of Church, given before a legislative committee in 1862, as appears from 
 Assembly Document No. 237. 
 
 -Waltbe S. Chdkch, being sworn, says : I am a resident of the city of 
 Albany ; have lived here eight or nine years. My principal business has 
 been the collection of rents and the selling out of the reservations on 
 leases of Van Eensselaer, on the Manor of Rensselaerwyck, in the coun- 
 ties of Albany and Rensselaer. I made purchases of Stephen Van Rens- 
 selaer of all of his leases in the towns of Knox, Berne, Rensselaerville, 
 and Westerlo, and parts of New Scotland, Guilderland, and Bethlehem. 
 They were what we term leases in fee. This was in 1853. There are 
 two contracts in writing made the same year. Oscar Tyler was originally 
 interested with me in these purchases. The first contract was made in 
 July, 1853 ; this covered all of Berne, part of Rensselaerville, and a few 
 leases in New Scotland, Bethlehem, and Guilderland. The second con- 
 tract was made in the same summer or following fall ; this contract cov- 
 ered the remaining leases in Rensselaerville, and all in Knox and "Wester- 
 lo. I subsequently took Tyler's interest in '54 or '55. I purchased from 
 Van Rensselaer at from fifty to sixty cents on the dollar. All the towns 
 previously mentioned are in Albany county. I made purchases of Wm. 
 P. Van Rensselaer, on the other side of the river, in Rensselaer county. 
 These purchases were made in '58. The first contract, InformAI, was exe- 
 cuted In February, 1858 ; that contract was consummated by a further 
 contract in March, 1858. 
 
 Committee adjourned to 3^ P. M. the next day ; also to sit during the 
 evening. 
 
16 
 
 : April 4, 1861. 
 
 Church's examination continued. 
 
 Question — Between fifty and sixty cents on the dollar ; how did you 
 get at the amount? 
 
 Answer — By estimating the arrears of rent accumulated by each lease, 
 and valuing the reservation by estimating wheat at $1 a bushel, fowls at a 
 shilling each, day's service with carriage and horses at $2 each day, then' 
 taking a capital sum, the interest of which, at six per tfent, would produce' 
 a revenue equal .to the annual rent at the prices I have named. There' 
 was no interest entered into the estimate. 
 
 Question — In case you collected under this contract with Mr. Van 
 Kensselaer, what you call rent with interest, what would you actually 
 pay — what percentage on the whole would it actually have cost you? 
 
 Answer — At the time I purchased, the interest accumulated would 
 amount, I should judge, to about fifteen per cent of the whole sum. This 
 is a vague, general estimate. 
 
 Question — Was your contract with Wm. P. Van Rensselaer ou the 
 same basis? 
 
 Answer — My contract with him was on the basis of 55 cents on the 
 dollar, with the 15 per cent interest deducted. 
 
 Question — In your contract with Wm. P. Vau Rensselaer, what towns 
 in Rensselaer county did you purchase ? 
 
 Answer — I purchased the rents in Schodack, GreenbiMi, East and 
 North Greenbush, Brunswick, Poestenkill, Sandlake, Nassau, Stephen- 
 town. 
 
 Question-^Did you know of the argument in several cases in the Su-' 
 preme Court in May, 1857, one of which was ejectment in favor of 
 Stephen Van Rensselaer against Peter Ball, of the town of Berne, Albany 
 co'unty, Defehdant ; the same Plaintiff against Robert Hays, of the town' 
 of Berne, Defendant ; two cases on the other side of the river, one against 
 Bloomingdale, the other against De Freest, for ejectment, in which Christy 
 & Bell, assignees of Wm. P. Van Rensselaer,' were Plaintiffs ? 
 
 Answer — I knew of an ejectment case against Peter B^all, one againSt 
 Bloomingdale and De Freest, but of no such case against Robert Hays. 
 
 Question — Were you interested" in those cases, or any of them, at tho 
 time of the argument in the Supreme Court in IS51 ? 
 
 Answer — The leases on which' the suits werebrought Were included in 
 the contracts to which I have referred". So far as tliose contracts gave nre 
 an interest I was interested. 
 
 Question — Did you kuow, Mr. Church, when the deCisibn in thtjse cases 
 was ahnounced? Was it' not in May,- 1858 ? 
 
 Answer — I probably heard of the decision when it was aanounced, but' 
 at what time it was annouhced, I do nbt know.- 
 
 Question — Don't you know that they were not decided'until 1858 ? 
 
Answer — 1 do not, nor do I recollect that they were argued in '57. 
 
 Question — Did you not know that they were argued ? 
 
 Answer — I doubtless knew at the time when they were argued. 
 
 Question — Did you not make your purchases of Wm. P. Van Eenase- 
 laer after those cases were argued in the Supreme Court, and before they 
 were decided ? 
 
 Answer — Of that I am not certain. I don't think I was present when 
 they were argued, but am not certain. 
 
 Question — Can you name the Judges by whom those cases were de- 
 cided ? 
 
 Answer — I understood them to be Justices Gould, Wright, and Harris. 
 
 Question — Have you any personal acquaintance with George Gould, 
 one of those Justices ? 
 
 Answer — I have. 
 
 Question — When did your acquaintance with him begin ? 
 
 Answer — I think about the time of that decision, or soon after he 
 made it. 
 
 Question — Was you acquainted with him before he was elected Judge? 
 
 Answer — I never saw him before, to my knowledge. 
 
 Question — When you made the purchase of Wm. P. Van Rensselaer, 
 did you have any information how the Supreme Court was to decide the 
 Ball case and others? 
 
 Answer — None whatever. 
 
 Question — Did you see or hear read any of the opinions of the Judges 
 before the opinion was announced ? 
 
 Answer: — No, sir. 
 
 Question — Are you a bachelor or a married man ? 
 
 Answer — I am a bachelor. 
 
 Question — Did you, in 1857, 1858, and from that time up, keep house 
 in the city of Albany ? 
 
 Answer — I did. 
 
 Question — Where ? 
 
 Answer — No. 1 1 North Pearl street, in the city of Albany. 
 
 Question — Was Judge Gould from May, 1857, to 1858, an inmate or 
 visitor, or occasional guest at your house ? 
 
 Witness' counsel objects to the question. 
 
 Majority of the committee hold that the answer be waived for the 
 present, as not authorized by the resolution. 
 
 Question — Are you the owner now of these leases in Albany county, 
 or have you sold or conveyed your interest to some other person or 
 persons ? 
 
 Answer — I am not the owner ; the contracts have been conditionally 
 assigned, or rather the contracts have been assigned under an agreement 
 3 
 
18 
 
 that I hold the residuary interest, after the debts still remaining due are 
 paid to the original parties, and other parties who have made advances to 
 me upon them shall be repaid what is due to them. 
 
 Question — "When did you assign, and to whom ? 
 
 Answer — I assigned to Peter Oagger and James Kidd, within the last 
 six weeks. 
 
 Question — ^What was done with the assent of Mr. Van Rensselaer ? 
 
 Answer — I don't think I asked his assent to it. It was a negotiable 
 interest. I mean by a negotiable interest, it was given to me, my heirs 
 and assigns. 
 
 Question — What was the consideration to be paid ? 
 
 Answer— I should think about $210,000. 
 
 Question — Was any of it paid in cash ? 
 
 Answer — Yes, sir. 
 
 Question — How much ? 
 
 Answer— $75,000. 
 
 Question — Who was that cash paid to? 
 
 Answer — Stephen Van Rensselaer. 
 
 Question — Any security given for the balance ? 
 
 Answer — There were six personal obligations entered into — not notes, 
 an agreement between Peter Oagger, James Kidd, and myself. 
 
 Question — Were they to pay you, or you to pay Van Rensselaer ? 
 
 Answer — We are to pay Van Rensselaer. 
 
 Question — Was that a contract signed by all three to Van Rensselaer ? 
 
 Answer — It was. 
 
 Question — Did Van Rensselaer execute any paper back ? 
 
 Answer — He did ; he required the same contract. 
 
 Question — Did that contract recite the purchase you had previously 
 made from Van Rensselaer ? 
 
 Answer — It referred to it. 
 
 Question — Did it affirm it ? 
 
 Answer — It affirmed it, and extended the time for payment. 
 
 Question — Are the parties to these covenants dead who gave the origi- 
 nal leases, or rather are any of them alive, to your knowledge ? 
 
 Answer — I think some of them are ; there have been within the last 
 year. 
 
 Question — Of whom do you demand the payments of the service and 
 the fat fowls ? Is it from the parties in possession of the lands ? 
 
 Answer — ^In some instances I do, I claim that those who own the 
 lands are liable for the rent accruing during their ownership, whether oi 
 not they are the covenantors. 
 
 Question — If the persons who own the lands don't pay, do you claire 
 the right to eject them, whoever they may be ? 
 
 Answer — We do, if they are occupants. 
 
19 
 
 Question — Have you assigned your contract for the other side of the 
 river ? 
 
 Answer — I assigned it to George Bowdoin, of New York city, abont a 
 year ago, I think. 
 
 Question — Has Bowdoin assigned to any other person? 
 
 Answer — ^I don't think he has. The contract was forfeited, and a new 
 one was executed between Mr. Van Rensselaer and James Kidd, who 
 only has it to secure advances. 
 
 Question — Who, besides Kidd, is interested in it? 
 
 Answer — Dean Richmond and Peter Cagger. We three are not all 
 equally interested. They are entitled to a return of the moneys ad- 
 vanced ; that being returned to them, and a certain remuneration, how 
 much is not entirely fixed yet (can't tell till I settle with Mr. Van Reus 
 selaer), somewhere from $20,000 to $30,000 (I give them that interest 
 in the contract), the residue belongs to me. The total amount of the sum 
 to be paid Mr. Van Rensselaer I don't know, can't say ; it was less than 
 $100,000 ; think it can't vary far from $100,000. 
 
 Question — If collectable, what is the nominal value in Rensselaer? 
 
 Answer — What I paid $100,000 for is nominally worth between 
 $200,000 and $300,000. Most of these instruments bear the date of 1783 
 up to 1800. The nominal amount of what is due on this side is, I should 
 think, $550,000, including the value of the reservations. I meant, in 
 the other estimate, to include the value of the reservations. 
 
 Question — Are these lands now generally owned on both sides of the 
 river by parties who did not make the covenants ? 
 
 Answer — They are ; the covenantors generally are dead ; the parties 
 to the deeds are generally dead. 
 
 Question — Do you know if twenty of the original covenantors are 
 living ? 
 
 Answer — Think there may be twenty of them living, not more. 
 
 Question — By Mr. Porter. 
 
 Answer — The contracts were executory. 
 
 Let us now turn to Rensselaer County. In the year 1848, just nine 
 years after he came into possession, Wm. P. Van Rensselaer, after build- 
 ing a " Manor House " at Bath, and a stalking Park for deer, and a house 
 and office for his steward, found that loudly as he called for his rents, they 
 would not come, and he was forced to make an assignment for the benefit 
 of his creditors. 
 
 In process of time, and we believe in 1857, the assignees reconveyed 
 to Wm. P. Van Rensselaer, and, it is said, without having fully executed 
 the trusts in the assignment. 
 
 On the 5th day of March, 1858, Van Rensselaer made a contract of 
 sale to Walter S. Church, of all his claims for rent past, present and 
 
20 
 
 future, all actions pending, judgments, notes &c., in the County of Bens- 
 selaer. 
 
 B7 the contract Church covenants to pay " a sum of money to be fixed 
 and ascertained as follows; each bushel of wheat rent reserved is to be . 
 estimated at one dollar ; each day's service with man and team, or carriage 
 and horses, at two dollars; and each fowl at 12^ cents; and the value of 
 each and every lease shall be determined and taken to be a sum, of which 
 the interest at six per cent, shall be equal to the amount of all the wheat) 
 fowls, services and money, annually payable on, or by, such lease, and to 
 the amount of principal thus ascertained as the capital represented by 
 said rents, the money value of the rents in arrears, without interest thereon 
 as they have been charged from year to year, is to be added ; and the 
 sum thus ascertained is the sum in this contract meant when the value 
 of such lease is mentioned. The consideration, or price which said Church 
 is to pay for said property, is eleven twentieths, or 55 cents on the dollar 
 of the value of said leases as above defined, and which consideration is to 
 be paid as follows: $5000 on the execution of the contract ; and $25,000 
 on or before the 10th day of May, 1858, and afterwards 10,000 a month. 
 
 "When $30,000 should be paid, Van Rensselaer was to deliver to 
 Church, all books, papers, vouchers, &c. Prior to May 10th, 1858, 
 Church had paid the $30,000, and received possession of all books, papers, 
 &c., and kept them until handed over to Peter Cagger, in 1861. 
 
 Church borrowed the $30,000 of Robert Martin, paid him a shave of 
 $10,000, and mortgaged certain rents as security. The defeasance, was 
 by parol, the conveyance being absolute on its face. In other words it 
 was verbally agreed that the conveyance should be void, when the 
 $30,000 should be repaid. 
 
 On the 18th of October, 1859, Church and Van Rensselaer made 
 another agreement in place of the first. By this agreement the rents 
 were sold to Church, and he was to pay $57,303, -.-Vy; first $15,000 on 
 the Butler mortgage, and then $500 a month until the first of March, then 
 next, and then $5000 a month until the whole should be paid. 
 
 Church failed to perform this contract, and Van Rensselaer, in the 
 spring or winter of 1861, gave Church notice and annulled it. 
 
 On the 3d of May, 1861, Van Rensselaer sold and transferred to James 
 Kidd, all his rents &c. in Rensselaer County, past, present and future, for 
 $41,983, AV 
 
 There are now claiming rent in Rensselaer County, who have brought 
 suits : 
 
 1. Kidd, Cagger & Co., who sue in the name of Wm. P. Van Rens- 
 selaer. 
 
 2. Dexter Reynolds, who sues in the name of R. C. Martin, and who 
 pretends to have purchased from the Receiver of the National Bank, and 
 refuses to state what he paid. 
 
21 
 
 3. James S. Knowlson. 
 
 4. James T. Main. 
 
 5. Ebenezer Stevens. 
 
 6. John "W. Stevens. 
 
 7. George Day. 
 
 8. Cornelia Trumbull. 
 
 9. Kendrick Baily. 
 
 10. Oscar Tyler. 
 
 11. David F. Worthington. 
 
 12. Samuel E. Lyon. 
 
 13. Eobert D. Silliman. 
 
 14. The Commercial Bank of Troy. 
 
 15. Alexander S. Devin. 
 
 16. John Magee. 
 
 17. Henry C. Spaulding. 
 
 18. Walter S. Church. 
 
 19. James Kidd. 
 
 20. S. Van Eensselaer. 
 
 21. The Central Bank of Troy. 
 
 AU these parties are seeking to wear the old clothes of the defunct 
 Patroon, and share in the profit of the rent-rolls. And some of them 
 deny the rights of others. The highest price paid, or agreed to be paid, 
 has not exceeded twenty-five cents on the dollar, and the lowest has been 
 down to five cents. 
 
 In 1858, four cases were decided at the General Term of the Third 
 District by Justices Gould, "Wright, and Harris, two for the recovery of 
 rent in arrear, and two in ejectment, in which the defence was, substan- 
 tially, that the relation of landlord and tenant did not subsist between the 
 parties, for want of a reversionary interest in the original grantor. It 
 was claimed by counsel for Defendants that the De Peyster case was 
 decided upon grounds that disposed of these cases ; that a reversion was 
 quite as necessary to hang a rent upon as to attach a quarter sale. 
 
 Justice Gould gave the leading opinion, in which he admits the claim 
 of the Defendants that there was no reversion left in the grantor, but rests 
 his conclusion in favor of the Plaintiifs upon a statute of 1805, as follows : 
 
 " ' Whereas it hath been doubted whether the provisions contained in 
 the act entitled ' An act to enable grantees of reversions to take advantage 
 of the conditions to be performed by lessees,' hereby intended to be 
 amended, extend to any but assignees of reversions dependent on estates 
 for life or years ; and, whereas, leases or grants in fee, reserving rents, 
 have long since been in use in this State ; and to remove all doubts re- 
 specting the construction of the aforesaid act : Be it enacted. That all the 
 provisions of saidact, and the jemedies thereby given, shall be construed 
 to extend as well to grants or leases in fee reserving rents as to leases for 
 
2a 
 
 life and years, any law, usage, or custom to the contrary thereof notwith- j 
 standing.' 
 
 " Here is legislative information that the rents, &c., reserved in these 
 'leases in fee,' are 'the rents and services which have heretofore obtained, 
 among our citizens,' spoken of by the revisors. Secondly, this is a legis- 
 lative declaration that ' leases in fee reserving rents' are valid, subsisting 
 leases, in the hands of the assignees of both parties to them, and at the 
 very least brings this case within Lord Holt's decision (Carthew, 289, 
 fully affirmed 1 Saunders, 241, a b), that by force of the statute, 'the 
 very privity of contract' is transferred, as between the assignees of the 
 lessor and lessee of such leases. Thirdly, this act makes the lessor's in- 
 terest in such a lease an entity assignable, with its remedies, as against 
 the assignees of the lessee, to be enforced by entry for non-payment of 
 rent, or other forfeiture. Fourthly, applying an act enabling ' grantees 
 of reversions' to hold certain rights and enforce certain remedies by rea- 
 son of being assignees of reversions, it, of necessity, makes the lessor's 
 interest in such a lease, as well in his own hands, as in those of his 
 assignees — pro hac vice equivalent to a reversion. Fifthly, being subse- 
 quent (as was the act it amended) to the law concerning tenure, it is, if, 
 and so fiir as, repugnant to that law, a repealing act, even without the 
 express words 'any law,' &c. 
 
 Judge Wright, while writing his own, evidently had before him Judge 
 Gould's opnion, as he adopted two new law terms invented by the latter 
 for this occasion, ^^ entity assignable" and "pro hac vice equivalent to a 
 reversion." 
 
 It may be asked what have the facts touching the various sales and trans- 
 fers aforesaid, to do with these decisions ? There may be some significance 
 in the fact that Church's contract of 1858, with Wm. P. Van Eens- 
 selaer, was made before the public announcement of the decision of the 
 Supreme Court in the case of Van Eensselaer against Smith, 27 Barbour, 
 and while that cause was pending in that court after argument. The 
 contract was dated March, 1858. The decision had hung fire a long time, 
 and was not made until May term, 1858, and the last day of the term. 
 It was known publicly that Justice Gould had written the opinion of the 
 Court. But it was whispered that "Wright and Harris did not agree. It 
 subsequently appeared that Justice Wright also prepared an opinion, to 
 which Justice Harris signed his approval. 
 
 Not long after the decision Justice Harris sailed to Europe in the same 
 ship with Stephen Van Rensselaer. 
 
 About the same time, too, it appears from the testimony of Church 
 above quoted, his acquaintance began with Justice Gould. Church denies 
 that Gould informed him of the opinion which he had written, or had 
 shown it to him, and it is not suspected that either of the other Justices 
 did. It is known that Justice Gould had submitted the opinion to the 
 
23 
 
 perusal of at least one lawyer in Troy, who informed me of the conclusion 
 to which the learned Justice had arrived. , 
 
 It may not be surprising that Church, who had invested so largely on i 
 credit, in Albany County, should embark upon a like venture in Eensse- [ 
 laer County, but it is not a little reroarkable that he should have chosen 
 that particular time, between the argument, and the decision of an impor- 
 tant case, to make the purchase. It is not at all surprising that Church 
 should desire to make the acquaintance of a judge, upon whose decision 
 so many thousands of dollars were depending. The well known character 
 of Church would lead us all to believe that he must have been lost in 
 admiration of such learning, and integrity. If any one had any thing to 
 gain by such a conjunction. Church had certainly nothing to lose by it- 
 His character would not suffer. 
 
 If he made the purchase on the supposition that the decision about to 
 be pronounced would end the legal controversy, and so replenish hia 
 exhausted exchequer, he never made a greater mistake. The legal de- 
 fences to similar actions were not all disposed of by Gould, and there are 
 enough left yet to bankrupt a good many patroons like Wm. P. Van 
 Rensselaer and Walter S. Church. 
 
 The glories of the Manor of Rensselaerwyck have all departed, and 
 the family that assumed to be lords, and hoped to perpetuate their title, 
 and wealth, and social position, has sunk in the general mass into undis- 
 tinguishable obscurity. 
 
 The great property that was to sustain the title and the family is now 
 the prey of legal vultures and speculators. We do not know whether 
 the "Park" at Bath was ever browsed by a single deer, or its echoes 
 awakened by the bay of a hound ; but the proprietor has kept a pack of 
 hounds in the shape of hungry attorneys, who have beggared him .by! 
 their fees and advice. 
 
 Let us follow up the four cases on which Gould bestowed so much 
 labor, and the decision of which, notwithstanding his denial, we believe 
 to have come in some way to the knowledge of Church before it was 
 pronounced by the Court, and to have been the inducement of his 
 purchase. 
 
 They were carried to the Court of Appeals. The judgment of the 
 Court below was affirmed. Four opinions were written, two by Judge 
 Denio, one upon the cases in ejectment, and one upon the covenant cases 
 
 one by Judge Selden, and one by Judge Strong. Judges Grover, 
 
 Comstock, Gray, and Johnson gave no opinion, but assented to the judg- 
 ment. Judge Allen, being interested, took no part in the decision. 
 
 I will give a pretty full abstract of these four opinions, that my readers 
 may compare them with each other, and with the conclusions of Justices 
 Gould, Wright, and Harris. 
 
24 
 
 OPINION OF DENIO COTENANT. 
 
 Judge Denio wrote two opinions, one upon the issues in ejectment, and 
 the other upon the issue in the suits to recover the rent. 
 
 He begins by saying that "the principles of the statute quia eviptores 
 have, in my opinion, always been the law of this country, as well during 
 its colonial condition, as after it had became an independent State." 
 
 " The effect of this important enactment was that henceforth no new 
 tenure of lands which had already been granted by the sovereign could 
 be created. Every subsequent alienation placed the feoffee (purchaser) in 
 the same feudal relation as his feoffor (seller) before occupied ; that is, he 
 held of the same superior lord by the same^ervices, and not of his feoffor 
 (seller). The system of tenures then existing was left untouched, but the 
 progress of expansion under subinfeudation was arrested. I am of opin- 
 ion that the law forbidding the creating of new tenants was always the 
 law of the colony, and that it was the law of this State, as well before as 
 after the passage of our act concerning tenures in 1787." 
 
 Again Judge Deijio says : 
 
 " Assuming this to have been so, our law in the particular under con- 
 sideration is, and has, at all times, since the organization of political so- 
 ciety here, been the same as the law of England. "We are then to as- 
 certain the effect of a conveyance in fee reserving rent, upon the assump- 
 tion that the statute of quia emptores applies to such transactions. In the 
 first place no reversion in the sense of the law of tenures is created in 
 favor of the grantor, and as the right to distrain is incident to the rever- 
 sion, and without one it cannot exist of common right, the relation created 
 by this conveyance did not itself authorize a distress. The fiction of 
 fealty did not exist. The rent, in terms reserved, was not a rent 
 
 SERVICE." 
 
 The Judge then goes on to show that the rent-reserved was a valid 
 rent-charge. After quoting various authorities to prove that a rent charge 
 could be reserved upon a deed in fee in England, and was descendible to 
 the heirs of the gratttor, Judge Denio admits that it could not be sold, 
 assigned, demised, or bequeathed at common low. It was not a saleable 
 and purchaseable commodity. He further admits that the rent-charge 
 was not assignable in this State, and that an action could not be sustainec 
 for it at common law. 
 
 But when referring to English authorities to show the validity of i 
 rent-charge, the Judge forgets to state that the covenant to pay a rent 
 charge is held by English Courts to be a personal covenant merely, tha 
 does not run with the land, and for the non-performance of which th( 
 land cannot be forfeited. 
 
 But Judge Denio, dismissing all the cases, which have arisen at com 
 mon law, decides that the actions can be maintained by virtue of the ac 
 of 1805. 
 
25 
 t 
 
 This act was passed as an amendment, and enlargement, of an act 
 passed in 1787, entitled "an act to enable grantors of reversions to take 
 advantage of the condition to he performed by lessees.'' 
 
 Previous to this last statute it had been held by our Courts that th6' 
 assignee of a reversion could not maintain an action upon the covenants 
 contained in a lease. 
 
 The right to maintain such an action was expressly given by this act.- 
 But it became doubtful whether the act extended to' what was called 
 deeds in fee reserving rents,- a'nd' the act of 1805 was passed, which 
 declared that " all the provisions of said act, and the remedies thereby' 
 given shall be construed to e'x^telid as well to grants, or leases in fee,- 
 reserving rents, as to leases for life, and years, any law, usage, or c'uatom, 
 to the contrary notwith'standing." 
 
 Stephen Van Rensselaer, the grantor in all tlifese cases, to the Disfen- 
 dants as well as to tfee Plaintiffs, died in i8'39'. The Statiites of 1788' 
 and 1805, had, at this time, both been repeMed, and two' sections of the 
 Revised Statutes of l8'30, substituted in their stead. These' two' sections' 
 are as follows : 
 
 Sec. 23. The grantors of any demised larids, tenements, rents; or 
 other hereditaments, or of the refersion thereof,- the assignees of the" 
 lessor of any demise, and the heirs and personal representatives of the ' 
 lessor, grantor, or a-Ssignee, shall have the same remedies by entry; action, 
 distress or otherwiste, for the non-performance of ahry agreement, contained 
 in the lease so assigned, or for the recovery of any rent, or for the doing 
 of any work, or other cause' of forfeiture,' a.'s their grantor, or lessor, had, 
 or might have had, if such reversion had remained in such lessor or 
 grantor. 
 
 Sec. 24. [Ex^teilds- the same provisions to lessees, tlieir assigns and 
 legal representatives.] 
 
 Sec. 25. The provisions of the' t-wo'last sections shall extend as well 
 to grants or leases in-" fee; reserving rents, as to leases- for life and for 
 years. 
 
 , But there was still a- diflBculty in the case. The title of the acts of 
 1787 and 1805, and thfe language of thfe revised statutes, under a- literal 
 construction, would apply to no grantors but those' -#ht3 had some reversion 
 in the premises. Judge Denio therefore resorts to' a liberal, ratheir than a 
 literal, construction; or rather to a ris-consiructiim,- of the st'a;tnte. He 
 
 " Reading thb languag'fe iti connefction, the enactment in t^tms is^ that 
 the grantor of rents reserved upon grants in fee shall have the same 
 remedy which his' grahtor had. Applyihg' the statute' to this caSe, the 
 provision is, that the Plaintiff shall be entitled to the' same remedy,' which 
 Stephen Van Rensselaer, 'the patroon, • would have if he were' irovr alive 
 and were now suing. It is added " if such reversion had remained in 
 4 
 
such grantor '' and it is argued that as Mr. Yan Rensselaer never had a 
 reversion the provision does not apply. But it applies in express terras 
 to reservations of rents upon conveyances in fee, and in such cases I con- 
 cede that there can be no reversion ; and it applies equally to rents upon 
 leases for life, and for years, where there is a proper reversion. Now the 
 qualification which alhides to the reversion may well be taken distribii- 
 tively, and be confined to the cases within the provision where a reversion 
 existed, reddendo singula singulis. It should be applied in furtherance of 
 the intention, to the subject matter to which it appears by the context 
 most properly to relate. But independently of this answer the legislature 
 had the right to consider the intent of a grantor in fee reserving rent, as 
 a reversion pro hac vice, if it thought proper to do so ; though by the 
 general rules of law it would not be called by that name. The intent 
 to embrace within the purview of the enactment a rent reserved upon a 
 grant in fee is plain and certain ; and effect must he given to that intent, 
 though some of the language should seem to be incongruous." 
 
 When we come to the opinion of Judge Selden, we shall see how he 
 confutes Judge Denio. 
 
 The rest of Judge Denio's opinion in the covenant cases, is an attempt 
 to answer some of the points taken by Defendant's counsel, and an effort 
 to explain away some English cases. His reference to cases decided in 
 Pennsylvania and New Hampshire, is unworthy of the Judge, unless he 
 assumes that his opinion that the statute quia emptorcs was in force iii all 
 the colonies, should overrule the decisions of the Courts i:i those States, 
 declaring that the said statute was never in force there. 
 
 OPINION OF DENIO EJECTMENT. 
 
 Denio begins by saying that every systematic writer since Coke has 
 assumed that contracts like the one in question are legal. He quotes the 
 case put by Littleton : 
 
 " If a man enfeoffs another in fee, reserving to himself and his heirs a 
 yearly rent, with an express condition annexed, that if the rent be unpaid 
 the feoffor and his heirs may enter and hold the lands free of the feoffment." 
 
 Such an estate is called one upon condition. 
 
 Denio then goes on to show that the statute of 180.5 and its subsequent 
 reenactments give to assignees a right to avail themselves of this covenant. 
 
 Chancellor Kent, referring to these very laws, says : " The provision is 
 confined to such conditions as are incident to reversions, or for the benefit 
 of the estate. It only created privity of contract between those who had 
 privity of estate, as between the grantees of the reversian and lessees 
 and their assigns, and did not extend to covenants between grantors and 
 grantees in fee." 4 Kent, 139. 
 
 Again. Kent, in his chapter on conditions in deed, says : " Conditions 
 can only be reserved for the benefit of the grantor and his heirs. A. 
 stranffer cannot \:^\<p. !idv.int!i.crp nf tVin l->v«npli nf fVinm 
 
27 
 
 In law an assignee is a stranger, for he has neither privity of contract 
 or privity of estate. 
 
 Denio, in his opinion, admits that the statute cf 1805 does not in terms 
 extend to and include grantors and grantees in fee. 
 
 He therefore resorts to a strange proceeding for a Judge. He says: 
 " In grants in fee, there being no reversion, these words are inappropriate, 
 or at least incongruous, and to make the provision coherent it should be 
 read as though the language were ' as if said right of entry had remained 
 in the lessor or grantor,' or this particular expression in the statute should 
 be limited to the cases embraced in the provision where the grantor had 
 the reversion, and dropped in the cases where it is made to relate to 
 grants in fee, upon the rule of construction, reddendo singula singulis. 
 
 In this forced construction to extend the application of this law to cases 
 not plainly and in terms included in it, Denio violates the general princi- 
 ple laid down by Kent, that " conditions subsequent are not favored in 
 law, and are construed strictly, because they tend to destroy estates ; 
 and the vigorous exaction of them is a species of summum jus, and in 
 many cases hardly reconcilable with conscience." 
 
 Denio then discusses the constitutional objection that the statute of 
 1805 impaired the obligation of contracts. He says not, for he argues 
 the rights of Van Bensselaer have not been affected unfavorably. They 
 have been manifestly advanced, for the rent and the remedy to enforce 
 it has been improved by having imparted to it a vendible quality. 
 
 He then turns to the grantee and assigns. 
 
 He makes this singular remark : " The estate of the grantee was subject 
 to be destroyed by a re-entry for non-payment of rent, before the statute, 
 and no new or further liabiHty is attached to it now. A re-entry can be 
 sustained in precisely the same cases in which it could before, and in 
 no other. The contract is afTected in precisely the same manner as all 
 existing non-negotiable ohoses in action were by the Code of Procedure, 
 when it rendered them capable of assignment, so as to vest the legal title 
 and the right to sue upon them in the assignee." 
 
 The Judge also places tlie right to bring the action of ejectment upon 
 the ground that, first, it is stipulated for in the conveyance, and, second, 
 that by the statute of 1805 it is assumed that rents reserved in leases in 
 fee have long been in use in this State, and he cannot see any difference 
 between a rent-service and a rent reserved upon a deed in fee, so l;ir as 
 the right to re-enter is concerned. 
 
 He argues that a rent-charge is a rent, whereas every lawyer knows 
 that in every essential of a true rent it is as unlike as a hawk is to a 
 hand-saw. 
 
 Besides, if the lawyer, or any intelhgent layman, will turn to the quota- 
 tion from Littleton upon which Denio builds his whole argument, it will 
 be found that the case put by Littleton is one of strict subinfeuda- 
 
28 ! 
 
 tion. Not a single English case has been or can be found where a rent-| 
 charge is held to run with the land, or where a right of re-entry or suit in 
 ejectment has been sustained, any further than to authorize the owner of a 
 rent-charge to take temporary possession of land, holding it until the 
 profits of the land should discharge his claim. 
 
 It will be observed that Denio rests his argument in this caso, as in the 
 covenant cases, upon the statute of 1805. The reader will therefore sus- 
 pend his judgment until he has read Judge Selden's argument on the same 
 point. 
 
 selden's opinion. 
 
 1. " The effect of our statute concerning tenures was even greater than 
 that of the statute quia empiores in England. Our statute is so general 
 and comprehensive in its terms as to exclude the idea tliat there was any 
 intention to save to the proprietors of manors any peculiar privileges. 
 They can claim no exemption from the operation of that statute. 
 
 2. After the statute quia empiores in England, no reversion whatever 
 remained to the grantor of a fee simple absolute. After our statute con- 
 cerning tenures, by which the escheat became vested in the people, there 
 could not be a possibility of reverter in any subsequent grantor. 
 
 3. A condition annexed to a grant in fee simple, with a clause of 
 re-entry and forfeiture in case of a breach, assuming that such a clause 
 would be valid, leaves neither a reversion, nor anything equivalent to a 
 reversion in the grantor. 
 
 No reversion, therefore, nor estate in the nature of a reversion, was left 
 in the proprietor of the Manor of Eensselaerwick by force of the condition 
 inserted in the deed under which the Defendant claims. 
 
 4. The action is a mere personal action for the recovery of the rent, 
 and does not involve the validity of the claim for re-entry. ■ As no rever- 
 sionary interest remained in the grantor, the deed in question is pot a 
 lease, but the mere assignment of a tenancy." 
 
 The Judge then goes on to argue that although the relation of landlord 
 and tenant does not exist, yet the thing covenanted for in this deed may 
 be an incorporeal hereditament. He calls it a thing sui generis, which 
 must not be judged of by the rules governing the relation of landlord and 
 tenant, nor by those governing even personal actions, but by its own 
 peculiar rules. 
 
 "The validity of the covenant as between the original parties is not to 
 be denied ; but, prior to the code, such covenants did not pass to the as- 
 signees of the grantor, so as to enable them to maintain an action in their 
 own name ; nor to the assignees of the grantee, so as to subject them to 
 the duty of payment." 
 
 5. The action of covenant might have been brought by Van Rensse- 
 laer, the original grantor, against the original grantee. But at common 
 
29 
 
 law, ftovenant would not lie in the name of an assignee for rent due, even 
 upon a lease for years, when there had been no attornment, even when the 
 reversion had been assigned with the rent. To sustain an action of cove- 
 nant, there must have been privity of contract. 
 
 The statute of 1788 and the explanatory statute of 1805, did not give 
 assignees of rents unaccompanied by reversions, a right to avail themselves 
 of its provisions. 
 
 The words of that statute are : 
 
 " All and every person and persons * * * which have 
 or shall have any gift, or grant, &c., of any manor, lands, tenements, &c., 
 * * * or any reversion or reversions of the same." 
 
 It is clear from the terms of the statute that assignees of rent unaccom- 
 panied by a reversion, were not entitled to avail themselves of its pro- 
 visions. 
 
 If authority were needed to show this it is afforded by the cases referred 
 to, viz : Ard vs. Watkins, Marie vs. Flake, Allen vs. Bryan. The only 
 reason for resorting to the common law to sustain these actions was, that 
 the rent having been separated from the reversion, no action could be 
 maintained imder the statute of 32 Hen. 8. It was assumed as undenia- 
 ble in all these cases that an assignee, to avail himself of that statute, 
 must have the reversion. The same view was taken by the Court in the 
 case of Moffat vs. Smith, supra. The act of 1788 is entitled " Aii act to 
 enable grantors of reversions to take advantage of the conditions to be 
 performed by lessees." If then, my previous conclusion is right, that the 
 origirial deed from the proprietor of the Manor left no reversion in the 
 grantor, it follows that the action would not lie by virtue of our original 
 act alone, without the aid of the explanatory act of 1805 (1 R. S., 364,, 
 Sec. 3). Great stress is laid upon this latter statute as having removed 
 all obstacles to the maintenance of the action. 
 
 It is true that when we consider the effect of our acts concerning ten- 
 urea aiid escheats upon the proprietors of manors in this State we can see 
 obvious reasons why they should desire some modification of these laws ; 
 and we might be led to conjecture that the statute of 1805 was passed at 
 their instance and for the purpose of relieving them from some of the 
 consequences of the previous acts. But the difiioulty lies in giving such 
 a construction to its terms as will produce the important effects attributed 
 to it, as none but assignees of reversions could avail themselves of the 
 original act ; it is plain that in order to confer its benefits upon assignees 
 of rents reserved upon grants in fee, the explanatory act must either 4is- 
 pense with the required reversion in the assignee, or must create a rever- 
 sion or its equivalent. In one or the other of these modes only could the 
 object be obtained. Does the act of 1805 do either? The preamble 
 recites that doubt exists whether the provisions of the act of 1788 "ex- 
 tend to any but assignees of reversions dependant upon estates for lives op 
 
30 
 
 years," and the object of the act is declared to be the removal of the 
 doubt. For this purpose it is enacted that the provisions of the act of 
 1788 shall be "construed to extend as well to grants or leases in fee 
 reserving' rents as to leases for life or years." This is so explicit as to 
 admit of but one interpretation. The doubt recited was whether the ben- 
 efits of the original act were not limited to a particular class of assignees 
 of reversions, Viz,, where the reversions assigned depended npon estates 
 either for life or years ; and tlie auxiliary act simply provides that these ben- 
 efits sjiall be held to extend to assignees of reversions depending upon estates 
 in fee as well as' estates lor life or years. There is not a word in the act 
 indicative of an intent to dispense with the necessity of a reversion, or to 
 confer the benefits of the act upon assignees of rents unaccompanied by a 
 reversion. If any such construction is adopted it must be arrived at by 
 presuming an intention which has found no expression in the act. It is, I 
 think, equally clear that the act in question does not create in a grantor of 
 an estate in fee reserving rents, or in liis assignee, either a reversion or its 
 equivalent. The only reversion of which an estate in fee simple admits is 
 the escheat. Unless, therefore, this act takes the escheat from the people 
 and restores it to every grantor of a fee simple which reserves a rent, 
 which would scarcely be claimed, it can create no estate which would 
 safely take the place of a reversidn. This construction does not deprive 
 the act of all force, as it leaves it to operate upon numerous grants and 
 leases in fee reserving rents which were in existence when the act con- 
 cerning tenures was passed. It is quite possible that those who were 
 active in procuring the passage of the act of 1805 intended it to have a 
 more extended operation; but, if so, there is nothing in the language of 
 the act, which indicates that the Legislature participated. 
 
 But although the Plaintiff could not have maintained an action of cov- 
 enant for the recovery of the rent in question either at common law or 
 by virtue of the statute of 1788 or 1805, the subsequent statutory 
 changes in the law of this State have afforded him an equivalent remedy. 
 
 Th4 Judge then concludes that by § 111 of the Code, which directs 
 that all actions shall be prosecuted by the party in interest, this action 
 may be maintained. Here is the section : 
 
 § 111. Every action must be prosecuted in the name of the real party 
 in interest, except as otherwise provided in section one hundred and thir- 
 teen, but this section shall not be deemed to authorize the assignment of a 
 thing in action not arising out of contract. 
 
 But he does not concede even this, unless the rent is a thing that runs 
 with the laud, and then goes on in a long, hair-splitting argument to show 
 that the covenant in this case is one that can run with the land. 
 
 He concludes by stating further that, if he is wrong in his position 
 that the action of covenant is maintainable, still the Plaintiff would have 
 a right, to relief in equity. 
 
31 
 
 Now Chancellor Walworth, in the case Livingston vs. Sickles, 8 Page's 
 Reports, 398, held that a condition and covenant, in a lease in perpetuity, 
 that upon every sale of the premises the lessee or his assigns must obtain 
 the consent in writing of the owner of the rent iuid reversion, and should 
 offer him the right of preemption ; and if sold after such offer one-tenth of 
 the purchase money was to be paid to the lessor, was in restraint of, and 
 in the nature of a fine upon alienation, and inconsistent with the spirit of 
 our institutions. That the remedy, if any, was at law, and not in equity, 
 and that if the landlord had not secured himself a remedy at law, the 
 Court of Chancery would not interfere to help him. 
 
 Our venerable Chancellor turns over these men to the courts of law, 
 and Justice Selden hands them back to the Court of Chancery. 
 
 OPINION OF JUSTICE STBONG. 
 
 "In the view which I take of the controversy its determination depends 
 mainly upon the question whether the Plaintiffs have a subsisting estate 
 or interest in, or some right to, the land which would enable them to 
 recover such lands, or damages by reason of the non-payment of the 
 specified rents." 
 
 The Judge then enters into a historical argument to prove that the Van 
 Rensselaers, under the Dutch grants, were chief lords, and had the right 
 to create fees ; and that the treaty by which the colony was ceded to the 
 English retained for the inhabitants all their rights and customs. 
 
 The Judge either forgets or never knew that many tracts of land 
 within the original boundaries of the Van Rensselaer Manor were granted 
 to other persons by the colonial Government .after the Dutch cession, and 
 before the confirmatory patents of Dongan and Fletcher, which grants 
 have been held against the Van Rensselaers. 
 
 The Judge concludes this branch of his argument as follows : 
 
 " If then, Stephen Van Rensselaer was, at the time when he executed 
 the deeds in question, seized in fee of the lands in controversy, as is estab- 
 lished by the pleadings, and his title was as extensive as that possessed by 
 his ancestors under the dutch government, there could be no feudal supe- 
 rior to- whom any rights would result ; and there can be no question as to 
 his rights to reserve to himself his heirs and assigns in perpetual leases, 
 rents, which are characterized as "rents service," which are conceded to 
 be' sufficient to sustain actions by himself, or his heirs, or his assigns to 
 recover the rents in arrear, or the lands by reason of the non-payment of 
 sueh rents." 
 
 "It is clear that previous to the English statute, quia emptores, the 
 reservations of rent, and of a right of entry for its non-payment, even in 
 a feoffment in fee simple, was valid and effectual." 
 
 " There was an estate reserved in the grantor, as mesne lord, which 
 preserved and supported the right." 
 
33 
 
 " It would seem that it was considered, as was the fact, that a .grant of 
 land yielding rent to the grantor, his heirs and assigns, was not an absO'| 
 lute conveyance of the entire estate and interest to the grantor. 
 
 "JPrevious to the statute quia emptores it was competent to the partie?! 
 to a feoffment so to qualify a conveyance in fee as to retain the necessary*' 
 interest, or right in the feoffor to resort to the lands, or the goods upon it, 
 for the satisfaction of rent." 
 
 OPERATION OF THE STATUTE. 
 
 The effect of the- statute, where it applied,, was to deprive the vendors,, .j 
 subsequent to t^e chief lords, of all rights of lordship, including the right 
 to escheat in tke lands, when the titles conveyed were in fee simple abso' 
 lute ; and thus they had nothing to sustain a claim for rents out of the land', 
 or a right to re-enter in case of non-payment, and terminate the estate of 
 the grantor of common rights They might,- however, by an express cove^ 
 nant, make tlire rent a charge upon the land and authoi'ize a re-entry,- an'(J 
 temporary re-possession for the satisfaction of what might be in arrear.— '- 
 That, it wouTd seem, only crea.ted remedies for the recovery of the rent,- 
 and did not in any manner, retain' for thte grantor, or confer upon him, an 
 interest in the land,, which is absolutely necessary for the' creatioB'of a rent-- 
 service. Whether these principles were cltearly enunciated by the statute 
 it is no'W too late to enquire. Tliey seem to be definitely settled. The 
 statute applies in general terms to a sale or feoffment, and by either I un- 
 derstand an entire disposition of all the' estate of the vendor.- By that, and' 
 as I conceive by that only, the gt-antor deprived himself of the power' to' 
 create iient-service for himself, his heirs and assigns." 
 
 'WHAT DID VAN KlENSSELAEK CONVET. 
 
 The Judge after reciting the conveyance and the various conditibns and 
 reservations says : 
 
 " There can be no doubt but that the operative words attd the habendum 
 clause in these deeds are per se, sufficient to' convey an estate in fee' simple 
 absolute in the lands." 
 
 He then proceeds to' argue that it is- plain from tl5e language of the 
 grants, that such was not the intention of the parties,- but that they intend- 
 ed to create a liase which might be perpetual, or might be defeated by the 
 non-fulfilli»ent of its stipulations. Ke then attempts to" class them among 
 what Chancellor Kent calls " qualified,- base, or determinable fees,- which 
 are interests that may continue forever,- but which are liable to be termina- 
 ted by some act, or event, circumscribing their continuance or extent." 
 
 He then goes on to controvert the' opinion of Judge Ruggles in- the case 
 of De Peyster vs. Michael, and attempts to limit that case to the mere 
 decision that quarter sales are in restraint of aliens. tion and void. The' 
 rule that the learned Judge Ruggles laid down, that the act concerning- 
 
33 
 
 tenures had deprived the grantor in fee of any reversion in the lands 
 granted, and that therefore the covenants in restraint of alienation were 
 void, Judge Strong would not permit to be applied to any other cove- 
 nants. He further controverts the decision of Judge Euggles^as to the 
 effect of our act concerning tenures, and insists that the English stat- 
 ute quia emptores never was in force here, and that the act concerning 
 tenures was unnecessary, and had nothing on which to operate. The 
 whole drift of his argument is to show that Yan Rensselaer retained a 
 reversion in the lands granted. 
 
 He says : " There is no reason to infer that it was the design of the 
 first section of the statute to deprive the grantors of perpetual leases of 
 their reversionary interest. It was not so understood by the accomplished 
 lawyer (Alesander Hamilton) who drew the leases in question shortly 
 after the passage of the statute, when the object of the enactment was 
 well understood." 
 
 The act of 1805 is thus spoken of: 
 
 "The act of 1805 would not, as was justly remarked by the Defend- 
 ants' counsel, confer a new right of property, but it served -to show what 
 had been the design of the Legislature in the passage of the acts referrmg 
 to the same subject, and it might have restored a remedy which had been 
 rendered doubtful by the terms of a previous statute." 
 
 Judge Strong insists throughout his argument that Van Eennselaer 
 never parted with his reversionary interest, and he is not guilty of the 
 absurdity of holding that the act of 1805 gave to the Plaintiff a remedy 
 for a non-existing right. He holds that without a reversion there could 
 be no right for which a remedy could be adopted. 
 
 He then alludes briefly to several decisions — Jackson vs. Shultz, 18 
 Johnson, 170; Folts vs. Huntly, 9 Wend, 210; Jackson vs. Wyckoff, 5 
 "Wend, 53; Van Rensselaer vs. Snyder, 3 Kernan, 209— and remarks 
 that they are brought upon perpetual leases. But he adds, "It is true 
 that the questions so elaborately discussed in these cases were not agitated 
 or decided on then, but it is much against the weight of the objections 
 now raised that they were not discussed by the counsel or the Judges in a 
 case where they were directly involved. I have quoted those authorities 
 to show that it was the general sentiment of our legislators and Judges 
 that the rights which these grants purported to reserve to the grantors, 
 their heirs and assignees, were not at all affected by the provision in the 
 first section of the act concerning tenures, and it was not supposed that 
 such provision conferred any rights upon the people as chief lords of all 
 the lands in the State." 
 
 The Judge admits that at common law rights of entry were not assign- 
 able, but thinks that they are now made available to assignees by statute. 
 He concludes by saying : " If the premises in these deeds exact a rent- 
 service, there can be no doubt but that the covenants run with the lands 
 5 
 
34 
 
 and can be enforced by a devisee or assignee of the lessor against the ; 
 assignees of the lessees, and even if a rent-charge only had been created,^ 
 and rent, according to Lord Chancellor St. Leonards, is an incorporeal 
 hereditament, and issues out of the lands, and the land is bound by it, 
 the covenant may even run with the land in the hands of the assignee. 
 The nature of the subject, which savors of the realty, altogether distin- 
 guishes the case from a matter merely personal." ) 
 
 Here the Judge, like his associate Denio, quotes Sugden (or Lord I 
 Chancellor St. Leonards) on vendors, but does not inform us that the 
 opinion of Sugden is not only not law in England, but directly contrary to 
 law. Sugden was counsellor in a case wherein he attempted to induce 
 the Court to reverse the old rule, and to hold that a rent charge could run 
 with the land. He was beaten, and the Court decided that a rent-charge 
 was a personal covenant, which did not run with the land. Sugden, in 
 his book on vendors, reviews the decision of the Court, and endeavors 
 to show that the Court wa,s wrong and he was right. Our Judges are 
 inclined to follow Sugden, and not the Court. By so doing they justify 
 us, and all lawyers, and all people, in doubting the impartiality and 
 integrity of Judges who thus reject law that they may uphold contracts 
 acknowledged by themselves to be against public policy. 
 
 The extracts from Governors' Messages and legislative documents, show 
 what was supposed to be the nature and influence of the instruments by 
 which Stephen Van Rensselaer had conveyed his great estate. Down to 
 1851, no public man had denied that the relation of landlord and tenant 
 subsisted between him and his grantees. 
 
 My discursive digest of cases and decisions down to 1852, shows that 
 lawyers and courts, until the De Peyster case, had assumed and acted 
 upon the supposition that such was the relation of the parties. And 
 more than this they all admitted that the same relation subsisted between 
 the assignees of the grantor, and the assignees of the grantees. 
 
 But notwithstanding this assumption the courts were exceedingly puz- 
 zled to find and agree upon a legal definition for the peculiar property 
 which the grantor and his assigns really possessed. The difficulty may be 
 accounted for by the fact that there is no definition for it to be found in 
 the nomenclature of the English common law, and I would thank any 
 good lawyer, or any man of ordinary judgment, after reading and com- 
 paring the cases above referred to, to inform me by their light, what ia 
 the true name of the legal relationship between the assigns of the grantor 
 and grantee, of a lease in fee reserving rent. 
 
 In the first case that arose upon one of these instruments. Judge Lansing, 
 distinctly held that the grantor had no reversion, and that, after the 
 death of both parties to the original contract, the personal representatives 
 of neither party could maintain or be subject to a suit for rent. He called 
 the rent reserved a rent-charge. 
 
35 
 
 In 1816, we have Justice Piatt holding that the instrument, called a 
 lease, was a fee simple conditional. 
 
 In the case of Eosekrans against Haskins as late as 1826, Nelson 
 and Sutherland, call the rent-reserved, a rent charge, and hold that it is an 
 interest in land subject to levy and sale upon execution. They say that 
 the rent charge forms " a specific portion of the premises upon which it is 
 charged." 
 
 Subsequently, the Supreme Court, reversed this decision, and by Judge 
 Jewett, held that the grantor " had no vested estate, right, or interest, in 
 the land on which the lien by judgment could attach.'" He had only " a 
 mere possibility of an estate." 
 
 In the case of Van Rensselaer against Bradley, the same Judge Jewett, 
 who had shortly previous held the rent-reserved, to be a rent charge, 
 decided it to be a rent-service, and to be also apportionable. But he held 
 that the days service could not be apportioned. 
 
 In Van' Rensselaer against Chadwick, Judge Harris decides that the 
 release of part of a rent-charge, does not operate as a release of the 
 whole. 
 
 In Van Rensselaer against Bonesteel, Judge Harris decides that if an 
 estate has passed between the covenanting parties, an action for rent can 
 be sustained. The Plaintiff need not have any reversionary interest. The 
 only relationship necessary was that of vendor and vendee. 
 
 But in Van Rensselaer against Hoag, the same Judge held that the 
 assignee of a grantor could not maintain an action against the assignee of 
 the grantee, because there was no privity between them, upon which an 
 action could be founded. 
 
 Then comes the De Peyster case, in which the Court of A.ppeals decides 
 that in all these cases there is no reversion left in the grantor. 
 
 Then comes Justice Gould, followed at a respectful distance by Justices 
 "Wright and Harris, holding that after Van Rensselaer had parted with 
 his land and the reversion thereof, the legislature of 1805, had restored to 
 him, not indeed a reversion, but an entity assignable equivalent to a rever- 
 sion. 
 
 Then we have three Judges of the Court of Appeals giving opinions, 
 each of which conflicts with and confutes the other, and four other Judges 
 assenting to a judgment, without intimating which opinion had their 
 assent. 
 
 Denio and Selden admit that Van Rensselaer had no reversion in the 
 land, and that he conveyed all his interest in it to his assigns, and had 
 none left to be conveyed by his last will and testament. Denio also holds 
 that the act of 1805, imparted a quahty assignable, a vendible character, 
 to the rent-charge. In this opinion Denio, expressly overrules Judge 
 Savage, 8 Cowen, 206, and 2 Hill, 475, who held that the Act of 1805, 
 had reference only to grantors and grantees of reversions. Selden, also. 
 
36 
 
 disagrees with Denio on this point, and thinks the assignable character of i 
 the rent was imparted by the Code of Procedure. Judge Euggles evi- 
 dently agreed in opinion with Judge Savage, as may be inferred from his 
 incidental allusion in the De Peyster case, to the Statute of 1805. 
 
 In the case of Van Rensselaer vs. Chadwick, the counsel for PlaintilB^ 
 in the Court of Appeals, claimed that our statute of tenures did not 
 apply to the Manor of Rensselaerwyck so as to deprive him of his propri- 
 etorship when he made a grant in fee ; that he was a chief lord, in whom 
 the fee still vested after the grant, so as to make the grantee owe him 
 fealty and service ; that he was the seignior and lord of the land, and every 
 grant of any parcel of it would make the holder his tenant. 
 
 In the Smith and Ball cases the counsel for Plaintiff took the same 
 ground, as did also Judge Strong in his opinion. 
 
 In all these cases the Judges, save Strong, have not alluded, in their 
 opinions, to the brief and points of Plaintiff's counsel, but have passed 
 them by in utter silence, as unworthy of notice. They have paid just as 
 little heed to the letter and spirit of Judge Buggies' opinion in the De 
 Peyster case, and have based their opinions, and their decision of the 
 cases, upon a statute (1805) which Chief Justice Savage had decided not 
 to apply to such cases, and which was not deemed worth mentioning by 
 Euggles, and by him alluded to only to declare the analogies drawn from 
 it "frail and feeble." 
 
 The counsel for De Peyster, Mr. Sutherland, had made the following 
 point in his argument (2 Selden, page 481): "From the terms of the 
 act of April, 1805 (28 Session, Chap. 98), explanatory of the act of 
 April 6, 1788, it is manifest that the Legislature supposed that the lessor 
 in fee had, by virtue of a reservation of rent, with a right of distress 
 and re-entry for non-payment, if not technically o reversion, an estate or 
 interest in the lands equivalent to a reveesion dependent upon an estate 
 for life." 
 
 Judge Euggles disposes of this argument by saying that it is " founded 
 on the proposition that the reservation of rent and the right of re-entry are 
 interests in the land remaining in the lessor, analagous to a reversion and 
 equivalent thereto, for the purpose of sustaining the validity of the condi- 
 tion. But there is no equivalent for a reversion for that purpose. The 
 argument is in an attempt to introduce a new reason never heretofore 
 regarded as sufficient for supporting the condition. The reasoning from 
 analogy is still more frail and feeble." 
 
 In another place the Judge says : " The rent and the right to re-entry 
 are not reversionary, whatever they may be' called in the lease ; and it is 
 not enough to say that they resemble or are analogous to such interests." 
 
 Thus we see that the absurd notion that anything can be equivalent to 
 a reversion was borrowed by Gould from the argument of Sutherland, 
 and that without credit ; and we further see that Judge Euggles dismisses 
 
37 
 
 the argument s,s frail and feeble. Yet upon this frail and feeble platform, 
 ■which Judge Ruggles had tossed aside contemptuously, Judge Gould takes 
 his stand, and, with the unflinching pluck of a bantam cock, crows tri- 
 umphantly. He had picked up a grain of argument overlooked by Suth- 
 erland, and christening his discovery an entity assignable equivalent to a 
 reversion, he flapped his wings over the prostrate reasoning of Judge 
 Euggles. 
 
 If the act of 1805 had performed for these grants in fee reserving 
 rents the transmutation claimed by Gould, how came Judge Savage to 
 decide otherwise, and Judge Ruggles to agree with him? Both held that 
 the act had reference only to grantors and grantees of reversions. There 
 is nothing of Gould's argument except the logical trick of inventing a new 
 name for an assumption of law. If the rent, and the right of re-entry, as 
 Judge Ruggles said, are not reversionary, it would seem to a reasonable man 
 that a " legislative reversion^' would be more remote from a rent than a real 
 reversion — would be in truth a legal monstrosity ; not an " entity assigna- 
 ble, but a non-entity unassignable." 
 
 . Judges Gould, "Wright and Harris, and Judge Denio, do not allude to 
 the decision of Judge Savage, as to the intention, and application of this 
 statute, for their contempt of his opinion, would not add any weight to 
 their own. 
 
 Judge Strong, with a boldness and honesty that do him credit, insists that 
 Van Rensselaer never parted with his reversion. He frankly admits that 
 without a reversion the cases cannot be sustained. He scorns the quibbles 
 and subterfuges by which the plainest principles of law, and the long Hne 
 of decisions in the English Courts and our own, are set aside and over- 
 ruled, in order to sustain contracts against public policy and void upon 
 
 their face. 
 
 Our Revised Statutes declare " a reversion is the residue of an estate 
 left in the grantor and his heirs, or in the heirs of a testator, commencing 
 in possession on the determination of a particular estate granted or 
 
 devised." 
 
 But we have no statute declaring any thing to be equivalent to a rever- 
 sion. The Court of Appeals in the De Peyster case, decided that Van 
 Rensselaer had no reversion left in him, after making his deeds of convey- 
 ance. Previous to that case the Courts had some excuse, perhaps, for trea- 
 ting Van Rensselaer as a landlord, in the fact that no defendant had dis- 
 tinctly denied it. It may be deemed, however, somewhat remarkable that 
 Courts and Judges, up to that time, were ignorant of the law, and permit- 
 ted a man to assume that status in Court, when he could not lawfully hold 
 it. But what shall be thought and said of Judges and Courts, that persist 
 in allowing men to come into court as landlords, who by their own show- 
 ing do not own the land they sue for, nor any reversionary interest in it 
 not even the possibility of an estate ! And this upon the assumption of 
 
38 
 
 Judge Gould, who said "applying an act, enabling 'grantees ot rever.^ 
 sions' to hold certain right and enforce certain remedies, by reason of being, 
 assignees of reversions ; it of necessity makes the lessor's interest in such a 
 lease — as well in his own hands as in those of his assignees, — pro hoc vice 
 equivalent to a reversion." 
 
 That is, applying an act, relating only to " grantees of reversions" to the 
 case of those who are " not grantees of reversions," you give the latter 
 remedies where they had no rights, you make one man landlord of another 
 man's land, you change (now you see it, and now you don't see it,) an as- 
 signment into a lease, the grantor into a lessor, and enable the man who 
 had no reversion, and nothing to assign, capable by a mere form of words, 
 (presto 1 change,) of transforming that nothing into an "entity assignable," 
 pro hac vice equivalent to a reversion. We challenge the whole world to 
 produce a similar specimen oi judicial prestidigitation. A man comes into 
 court and admits upon the face of his declaration that he does not own a 
 rod of land, has no reversion in it, and no possibility of reverter, but that 
 Stephen Van Rensselaer assumed to devise land sold and conveyed by him 
 forty years before the date of his will, and that he, the plaintiff, claims un- 
 der this devise, and presto, the Court, by virtue of this will devising what 
 he had already sold, puts the plaintiff into possession of his neighbor's farm. 
 
 Now, although Judge Rugglos had said that there could be no equiva- 
 lent to a reversion. Judge Denio, lighting the lamp of his wisdom by 
 Gould's candle, maintains that the act of 1805, did create a reversion, or 
 its equivalent, by turning a nonentity into a quantity assignable. 
 
 Judge Selden, on the other hand, thought it very clear that the act of 
 1805 did not create such a reversion, or its equivalent. He very sensibly 
 remarks, that the only reversion which an estate in fee admits is the es- 
 cheat, and that belongs to the State. He then pushes Denio's argument 
 to the absurdity of proving that the act of 1805, takes its escheat from the 
 people, and confers it gratuitously upon a man who has assigned both his 
 land and his reversion. 
 
 Judge Strong agrees with Selden in his estimate of the effect of the 
 Statute of 1805. He says it "could not confer a right of property." 
 
 So far as the decision of the Court is shown by the written opinions of 
 the judges, the conclusion is against the judgment of the Supreme Court, 
 and yet that judgment was confirmed. The four judges who silently as- 
 sented to the decision, did not say upon which opinion they based their 
 concurrence. 
 
 The decision of the Court therefore, in these cases, is not authority. — 
 The Court has merely decided that the Plaintiffs in the two ejectment cases 
 shall have the possession of the land ; and in the two covenant cases, shall 
 have the money claimed. That is all. 
 
 Justice Paige in James against Patten, 2 Selden, page 9, says ; " when 
 a Court consists of several judges, two or more of whom deliver opinions, 
 
39 
 
 and all arrive at the same general result in the cause, but for different 
 reasons, and the residue of the judges give a silent vote of concurrence 
 with them, in a decision for the one party or the other ; then as it does not 
 appear that a majority of the Court agreed as to any one question in par- 
 ticular as the ground of the decision, the case cannot be considered as 
 authority on any of .the questions which rose in the cause." 
 
 The opinion of the Court was against the decision of the Court below. 
 That decision rested upon the act of 1805. The Judges who delivered 
 opinions, were two to one against that decision. The silent vote of the 
 four Judges who were not delivered of opinions, may have been grounded 
 on the act of 1805, concurring with Denio, or on the Code § 111, concur- 
 ring with Selden. Who knows ? 
 
 An apparent agreement of the Court, and an attempt to give it the out- 
 ward semblance of authority, has been made by the Reporter who has 
 suppressed the opinions of Judges Selden and Strong. This suppression 
 may have been by direction of one or more of the other Judges. "We 
 protest that this contemptuous treatment of Judges Strong and Selden is 
 most unjust. Strong's argument was the only one that grappled with the 
 real question at issue. He claimed that Van Eensselaer did not part with 
 his reversion, and attempted to prove it. If the Court had followed the 
 lead of Judge Strong, and held that the De Peyster case was rightly de- 
 cided, on the ground that quarter sales are against pubhc policy, and over- 
 ruled it so far as it declared that the grantor on the deed in question had 
 parted with his reversion, there would have been an end of all controversy. 
 Such a decision would have been, indeed, a shameful outrage, but it would 
 have been free from equivocation, subterfuge and doubt. 
 
 And here it is proper to remark, that Judge Strong also adopted the 
 theory and logic of the Plaintiffs. Their counsel had never dreamed of 
 the act of 1805. They placed their claim, always flatly upon the ground 
 that they had the reversion, and had derived it from the grant of Stephen 
 Van Eensselaer. On the argument before the Supreme Court, and before 
 the Court of Appeals, they made it a point that Stephen Van Rensselaer 
 had never lost his title to the Manor and the Lordship thereof f that the 
 escheat was in him, and in his assigns. The resort to the Statute of 1805, 
 which judge Savage had previously disposed of was due entirely to the 
 super-serviceable zeal of Judge Gould, whose logical skill in drawing dis- 
 tinctions has already, in the estimation of the bar, raised him to an eleva- 
 tion on a level with Hudibras — to whom 
 
 " To argue was no more difficile 
 Than to a blackbird 'tis to whistle ; 
 Who could distinguish and divide 
 A bair 'twixt south and sou'west side." 
 
40 
 
 With the De Peyster case, the controversy was virtually determined, and 
 ought to have ended. Indeed so far as the Van Rensselaers were con- 
 cerned, it was ended. They sold out. The late David Buel, who was 
 their counsel in Troy, until the assignment of Wm. P., had always admit- 
 ted that if the grants left no reversion in the grantor, suits could not be 
 maintained for quarter sales, or rent. They probably reniembered hia 
 opinion, and scorned to demand rent when they could no longer be land- 
 lords. It would have been more manly and dignified in them not to have 
 sold at all, but to have abandoned their claim in favor of the grantees of 
 their father. But magnanimity was never yet a virtue belonging to an 
 aristocrat. They sold, and sold to speculators. 
 
 The purchasers belong to the class of men whose business it is to hang 
 around the Capitol and manipulate legislators. They bought under the 
 belief that Courts and Judges can be influenced by the arts and appliances 
 that influence legislation. Whether or not this is the case cannot be 
 known, but we do know that the sale of the Van Eensselaers has brought 
 around our Courts, and into close companionship with our Judges, men 
 who have boasted of owning Senators and buying legislators. 
 
 It was unfortunate for the people and the State, that Judge Euggles 
 who decided the De Peyster case, very soon thereafter resigned his seat 
 upon the bench. He took with him learning, dignity, honor and integrity, 
 and he certainly did not drop his mantle upon one of his successors. 
 
 Let us recapitulate some of the doings of our Courts for the last few 
 years, as appears from their own decisions. 
 
 They have for half a century ignored the Statute of Tenures, and held 
 that parties to grants in fee were landlord and tenant. 
 
 In disregard of the first decision of Judge Lansing, in which the legal 
 character of these instruments was settled, and the rights of the parties de- 
 termined, they have assumed that the assignees of grantors and grantees in 
 fee, also stand in the relation of landlord and tenant. 
 
 They have held that the statute of 1805 does not apply to grants in 
 fee reserving rent, and again that it does so apply. 
 
 They have held that a rent reserved in a grant in fee is a rent-charge, 
 and also a rent-service, which is the same as holding that it is both a rent 
 and not a rent. 
 
 They have held that a rent-charge is an interest in real estate subject to 
 the lien of a judgment, and liable to sale upon execution. They have 
 then held that the same rent-charge is not "lands, tenements, or real 
 estate within the meaning of the statute, and the interest of the owner 
 was at most but a mere possibility of an estate." 
 
 In order to hold the rent reserved to be apportionable, it has been de- 
 cided to be rent-service, and then the decision was held to apply as well 
 to a rent-charge. It was then finally decided that a rent-charge was 
 not apportionable. 
 
41 
 
 It was for more than half a century admitted by counsel and judges 
 learned in the law that grants in fee reserving rent left a re-version in the 
 grantor. It was theii decided that such grants left no reversion nor 
 possibihty of reverter. \ And again, it is ckcided that in either case it 
 makes no difference, a man may be a landlord who owns no land and no 
 reversion in land. '^ 
 
 They have held such rents to be real estate, and a part of the very land 
 on which they are charged, and then again they hiive decided them not to 
 be lands, tenements, or real estate; 
 
 They hold that a man can assign his land so that he has no estate left in 
 it, and can then charge the same land witb a perpetual incumbrance ma- 
 king all subsequent assignees liable without privity of contract, or privity of 
 estate. 
 
 Three judges Write labored opinions, in which one of them argues that 
 the act of 1805; was passed for the benevolent purpose of creating an entity 
 assignable, equivalent to a reversion to be bestowed as a legislative gift 
 upon a man who had sold and assigned his land and the reversion thereof; 
 while the other two- argue oonclusivel'y against him ; -the three-, however, 
 concurring in the same judgment, and their four brethren solemnly acqui- 
 escing in it ; and all seven cotttriving to render a judgment, without hav- 
 ing made a decision. 
 
 It has been held that there could be nothing equivalent to' a reversion, 
 and then again that a statute could create an " entity assi'gnabfe equivalent 
 to a reversion." 
 
 Judge Denio derives a "quality assignable, or vendible character," from 
 the statute of 1805, while Judge Strong ridicules this idea; and Judge 
 Selden finds it ift the Code of Procedure. 
 
 One Judge ejects the owner in fee of land from- his own estate for 
 disloyalty to his landlord, and another thinks- ejectment may be maintained 
 for a mere possibility of an estate. 
 
 Harris writes an opinion denying that rent ca-n be due without privity 
 of contract or estate, and then, after resuming' amicable relations with Van 
 Eensselaer, decides that a rent may hang upon a simple vendition. 
 
 But our Oonrts and Judges have been not merely ignorant, irtoonsistent, 
 and contradictory — they have been- guilty of injustice and judicial robbery. 
 
 Ill Bnglaad the- uniform- rule of law was, and still' is, that interest shall 
 not be allowed on arrears of rent in kind ; that is to say, on wheat rents, 
 fat hens, services, and other similar articles, and there is a good reason for 
 the rule. The value of such things iS n-ot fl:2ed and certain, but is varia- 
 ble, rising and falling as the markets are full or empty, and so changing 
 from year to year, and even from day to day. For a like reason, interest 
 will not be allowed on unliquidated dam-a^es — that is, upon damages 
 which are' not ascertained* and determined:' As early as 1806 the attempt 
 6 
 
42 
 
 was made in this State to recover interest upon wheat rents. But the 
 Court held in Johns. Rep. ], 276, and 4, 183, that interest should not be 
 allowed, and in a subsequent case, that interest should be computed on a 
 money rent only. Courts and Judges were apparently honest in those 
 early times. 
 
 But did the Van Rensselaers and their agents and lawyers obey the 
 law, and refrain from asking and taking interest? By no means. Every 
 farmer in Albany and Rensselaer counties, year after year, had accounts 
 presented with interest cast on all arrears. If he would not pay interest, 
 he could not settle at all, and was threatened with suit, although the 
 claimants and their counsel well knew that the law was against their 
 demand. But the farmers did not know it, or if they did, could not afTord 
 to stand a suit, in which, even if successful, they were pretty sure to be 
 burdened with costs greater than the illegal claim. "When Stephen Van 
 Rensselaer died, he was said to have had claims for rent in arrear 
 amounting to over $300,000. The interest on this sum thus in arrear 
 was larger than the principal. It was worth an effort on the part of 
 somebody to obtain a reversal of the Enghsh common law rule followed 
 in 1806. How this was done it may now be impossible to ascertain. It 
 must be confessed, however, by the stiffest sticklers for law and the advo- 
 cates for the rule, " stare decisis" (stand by the old decisions), that it was 
 no light matter for a Judge or Court to overrule and reverse established 
 law, and thereby take $300,000 from the farmers and put the same into 
 the pockets of the Van Rensselaers. What were the solid and persua- 
 sive arguments that could convince a Court thus to overturn a rule 
 founded on common law, common justice, and common sense? 
 
 The De Peyster case decides that quarter sales and similar restraints up- 
 on alienation, reserved in grants in fee, are illegal and void, because the 
 grantor retained no reversion in the land granted. This decision was made 
 in 1852. How happened it that Courts and Judges and Lawyers, did- not 
 know this bef .ire ? Why should the Van Rensselaers, and others have 
 been permitted for three-fourths of a century, to rob men upon whom they 
 had no claim, of one quarter of the value of their land at every sale ? It 
 may be said that Judges and Courts decide cases upon the points raised, 
 and that the question of the validity of those covenants was never before 
 raised. How does this agree with the recent alacrity of Judges in. find- 
 ing argLtments to sustain the cause of the Plaintiffs, upon points not raised 
 by the Plaintiff, nor suggested by Defendants? Judges ought to know 
 the law, and they are bound in fairness and honesty, not to give an un- 
 righteous judgment, merely because the Defendant is ignorant of his legal 
 rights. Their ignorance, or their indifference to justice, when the people 
 are concerned is as remarkable as their knowledge, and keenness of logic, 
 when the doubtful claims of the Van Rensselaers are to be sustained. 
 
43 
 
 And now that I may not be aconsed of disrespect to Courts, and Judges, 
 I will quote from a speech of Judge Harris, made in the Assembly of 
 this State, April 30, 1846. 
 
 " I said no one knows what the law is before the Judge lays it down. I 
 " ™3,y go farther and say no one knows what the law is after the. Judge lays 
 "it down, unless it happens that their is no superior tribunal to which the 
 "case may be carried. Take any hundred causes that may be brought in 
 "our inferior courts and let them be carried from one court to another until 
 " finally decided in the court of last resort. It will be found that nearly 
 " one half of them will be finally reversed, and much the greater share 
 " of them will have been decided in favor of each party in the course of 
 " their progress. Almost any case where there is any difference of opin- 
 " ion may be decided either way, and the decision sustained by plausible 
 " analogies, the law of the case depends upon the bias of mind — the final 
 " will — it may be, whim, of the last Judge who has jurisdiction over it. 
 
 '• Mr. Worden. Does the gentleman mean to apply his remarks to the 
 " whole common law ? 
 
 " Mr. Harris. I do, to the great body of it. 
 
 " Mr. Worden. T am sorry to hear it. ' 
 
 " Mr. Harris. I know that the views that I have presented raray be 
 " regarded as heterodox by many of my profession — we are educated 
 " with a sort of blind reverence for the common law. It is regarded as a 
 " kind of legal atmosphere which every where surrounds us — and which 
 " like electricity, fills all space and pervades all substances though it is 
 " itself invisible, imperceptible and iudelinable. The very first book placed 
 " in the hands of the law student, teaches him that he inhales this wonder- 
 ^^ful element with his every breath, that he imbibes it at every pore, that 
 when he travels, it attends him, when at home, it ahides with him, — when he 
 sleeps it watches over him, and when he wakes it ministers to him." 
 
 It might have been thought that this out-burst of eloquence was the 
 impulsive answer to the interruptions of Mr. Worden. I should have so 
 concluded, had not the peculiar turn of thought and expression reminded 
 me of Cicero's beautiful eulogy of the liberal studies in his oration in 
 defence of the poet Archias, familiar to every school boy. 
 
 The similarity of thought and expression prove that this passage in the 
 speech was premeditated, elaborated and probably reduced to writing. 
 
 " Hsec studia adolescentiam aliint, senectutem oblectant, secundas res 
 ornant, adversis perfugium ac solatmm prsebent, ddectant domi, uon impe- 
 diunt foris, pernoctant nobiscum, peregrinantur, rusticantur." 
 
 Polite literature nourishes our youth, delights our old age, is an ornament 
 in prosperity, supports and cheers us in adversity, increases the pleasures of 
 home, and lessens the pains of absence, watches with us in the night, attends 
 us upon our travels, and at our country seats is the charm of our leisure. 
 
44 
 
 In the perusal of the foregoing pages, I beg my readers not to blame 
 me, a bumble collator of a few decisions, if the eloquent orator appears to 
 them to have illustrated in his own judicial career the truth of his own 
 remarks, has been the prophet of his own fame, the exemplar and victim 
 of his own pungent satire. 
 
 As we have before said, the case of De Peyster vs. Michael substan- 
 tially decided this controversy against the claimants. The Yan Rensse- 
 laers accepted the decision as against them, and sold out, and their claim 
 has passed to a set of sharpers and speculators. As a consequence we 
 have seen the Courts of the State surrounded by the same men and sub- 
 jected to the same influences that are brought to bear upon the Legisla- 
 ture to procure the passage of railroad laws and special acts for local and 
 individual advantage. 
 
 At first but little was expected from such men as Justices Wright and 
 Harris. They had been Anti-Renters. They owed their political rise 
 and their judicial positions to the Anti-Renters. But by and by fortune 
 rfavored the speculating crew. The Know Nothing effervescence threw 
 up Justice Gould as the associate of the other two. He had been for 
 ; many years the agent and attorney of an estate in Troy consisting largely 
 of rents reserved upon grants in fee. He was educated in their interest. 
 His prejudices as an agent and his opinions as an attorney it was expected 
 would go with him as a Judge. 
 
 His conduct did not belie their expectations. He was not an Anti- 
 Renter, and was not afraid to decide against Anti-Renters. Every case 
 that came before him was disposed of summarily. He could find plenty 
 of cases, and plenty of reasons to give judgment for the Plaintiffs. In 
 one case in Saratoga county he held that a covenant run (not with the 
 land), but with a hole in the ground. In the Smith, Hays, and Ball 
 cases, he was in baste to crowd his opinion upon Harris and Wright. 
 His zeal and pertinacity finally prevailed, not to have them adopt his 
 opinion, but to prepare one of their own. Harris hung fire a long 
 while. He was shortly to be a candidate for reelection. He wanted 
 Gould and Wright to take the responsibility. It was understood that 
 the decision was to be made at the May term, but the term wore away, 
 and the last day came. Church and his friends were in great perplexity. 
 Wright would not put forth liis opinion without the concurrence of Har- 
 ris. At the last moment Harris wrote his approval upon Wright's 
 manuscript, and Gould was overjoyed at his triumph. 
 
 As we have seen, the cases went up to the Court of Appeals, which 
 affirmed the judgment upon grounds entirely different from those laid 
 down by the Court below. The Court was so divided in opinion that, 
 although the judgment was affirmed, the cases were without authority. 
 The whole subject wa.s left in greater doubt and uncertainty than before. 
 
45 
 
 The claimants of rent hesitated and rested awhile. It was deemed wise 
 to have another •decision. 
 
 Accordingly two more cases have been carried to the Court of Appeals 
 in which Stephen Van Rensselaer appears as Plaintiff, although he has 
 sworn that he long ago sold his whole interest. The Court has rendered 
 another decision upon opinions written by Henry R. Selden, who was 
 appointed Judge by Gov. Morgan, and who is now a candidate for 
 election. 
 
 I have before me a copy of his opinion. He begins by assuming that 
 the following principles have been definitely settled touching the rights of 
 parties who are assignees of grantors and grantees of rents reserved 
 upon grants in fee. 
 
 (1.) That since the passage of the Act of 1787, " concerning Tenures " 
 (however it may have been before that time) it has not been possible to 
 create any new tenures in this state, upon conveyances in fee. Such 
 conveyances operate as assignments, and not as leases, whatever name 
 may be given to them, and leave neither any reversion, nor possibihty of 
 reverter in the grantor. 
 
 (2.) That an annual rent issuing out of the lands reserved in such 
 conveyance to the grantor, his heirs and assigns forever, with a covenant 
 on the part of the grantee for its payment, together with aright of distress 
 and re-entry in case of non-payment, although not a rent-service, is a fee 
 farm rent, or if not strictly such, it is a rent-charge in fee, and equivalent 
 to such rent-charge granted by the owner of lands in fee. 
 
 (.^.) That such rent is a hereditament, and descends, in the absence of 
 other disposition, to the heirs of the party to whom it is reserved, and is 
 devisable and assignable in all respects like other incorporeal heredita- 
 ments. 
 
 (4.) The right to distrain, the right to maintain actions of annuity 
 and assize of novel disseizin, at commbn law, followed the ownership of 
 the rent, when it passed from the person to whom it was reserved, whether 
 it passed by descent, or assignment. Attornment by the tenant was 
 necessary to entitle the assignee to distrain, or maintain annuity and actual 
 disseizin of the rent by payment of a part, to authorize an action of 
 assize, but that necessity, at least so far as related to attornment, was 
 reserved in England by the statute, 4 Anne, Chap. 16, § 59, which was 
 early re-enacted in substance, and has since been kept in force in this 
 State. 
 
 (5.) That covenants entered into by the grantee of the lands in behalf 
 of himself, his heirs and assigns, are covenants real, which run with the 
 land and are binding upon the heirs and assigns of the covenator succes- 
 sively as to all breaches of such covenants, which occur during their 
 respective ownership of the lands. 
 
46 
 
 (6.) That a devise, or assignment of the rent, gives to the devisee, or 
 assignee, at least the equitable interest in the rent, and the right to equita- 
 hie remedies for its recovery, without any aid from the act of 1805, par" 
 tially repealed by the act, chap. 396, of the laws of 1860. 
 
 (7.) That the personal representatives of the original grantor, to whom 
 the rent was reserved, can maintain no action on the covenant, for the 
 payment of rent, on account of any default in the payment occurring after 
 the death of such grantor. 
 
 (8.) That the devisee, or assignee of the rent, can maintain no action 
 against personal representatives of the original covenantor, on account of 
 any default in payment of rent, accruing after the death of such covenantor. 
 
 (9.) That the terms of the devise to the plaintiff are suiEcient to vest 
 in him the right to the rent in question. 
 
 A man of plain understanding would be apt to think that the first posi- 
 tion or principle above stated, includes the seventh and eighth, and is ab- 
 solutely inconsistent with the second, third, fourth, fifth, sixth and ninth. 
 
 Nevertheless, Mr. Selden attempts, by a long argument, to show that 'a 
 man can assign all his interest in land, and at the same time reserve, or 
 fasten a rent upon it, to run with it and burden it forever, and that the 
 assignees of the rent may forever have the right to sue the assignees of the 
 land for it. 
 
 I will not take up the whole argument, for I have not time nor space. I 
 will content myself with a brief comment upon some parts of it. 
 
 He first assumes that the claim, the thing called a rent in the assign- 
 ment, is a rent. He bases this assumption upon the ground that, our 
 Courts have never questioned that rent-charges in perpetuity are heredita- 
 ments. It is true, I grant, that no case was ever brought before our 
 Courts until the Smith, Hays and Ball cases, and so our Courts never be- 
 ffore had occasion to question or pass upon their validity. The parties 
 shtigant up to the year 1852, had admitted in all oases, that the instruments 
 ■reserving rents were leases. The late Stephen Van Rensselaer died in the 
 'belief that he owned the manor of Rensselaerwyck, that the grantees of 
 the farms were his tenants, and that he was their landlord, with a rever- 
 sionary interest in the lands. In every case prior to 1852, this relation- 
 ship was admitted. We submit, therefore, that it is unfair and disingenu- 
 ous, to say the least, to refer to those decisions, or the opinions and dicta 
 of Judges, made under that erroneous admission, as settling any principle 
 in this controversy. But Mr. Selden goes further. In his second proposi- 
 tion or principle, he admits that this claim is not a rent-service, that it is 
 not strictly a fee farm rent, but that it is a rent-charge in fee, equivalent to 
 a rent-charge granted by the owner of lands in fee. And to support this 
 proposition, he quotes the Hays case. Now I have shown that the Hays 
 case is not authority. No Judge or Court, high or low, is bound by it. 
 
47 
 
 Every good lawyer knows that in England there was no rent but a 
 rent-service. The things called fee farm rents, rent-charges and rent-sec 
 were not rents, but annuities granted by the owners of land, and no 
 English case can be cited in which such grant was made upon an assign- 
 ment, or by a grantor who was without reversion. 
 
 Mr. Selden holds that the acts of 1788 and of 1805, upon which 
 Gould, Wright, and Harris, in the first instance, and Denio upon the 
 appeal, founded their opinions, do not give the right of action in these- 
 cases. He takes it for granted that the Court of Appeals in the Smith,, 
 Ball, and Hays cases, adopted his brother's opinion and not Denio's, 
 This does not prove it, but it goes to show tha* I am right m saying that- 
 that those cases decide nothing. Mr. Selden distinctly says that the- 
 established construction of the English act (32 Hen. VIII, chap. 34,) 
 from which our acts of 1788 and 1805 were taken, is that its benefits 
 were confined to parties having the reversion of the lands. So this opinion, 
 having been adopted by the Court of Appeals, actually overrules those 
 three cases, and seeks for another reason to justify a judgment. 
 
 Mr. Sehlen finds his reason in the work of Mr. Siigden on Vendors 
 and Purchasers. In my abstract of Strong's opinion I have alluded to 
 this matter. Mr. Sugden admits that the English Courts and Judges- 
 decided against him. They held that a rent-charge is a personal covenant 
 and does not run with the land. That was the decision in Brewster vs. 
 Kidgel, and has been ever since the law of England. But Mr. Sugden 
 was not satisfied with its correctness, and brings forward some arguments' 
 in favor of his opinion. He says, as Mr. Selden quotes him, " The rent- 
 charge is an incorporeal hereditament, and issues out of the land ; the 
 covenant therefore will run with the rent in the hands of an assignee. 
 The nature of the subject, which savors of the realty, altogether distin- 
 guishes the case from a matter merely personal." And again, " Upon.-. 
 th« whole, it is submitted that covenants like those in Brewster vs. Kidgel^ 
 (which was the case of a rent-charge in fee with a covenant for its pay- 
 ment free from taxes) ought to be held to run in both directions, with the- 
 rent or interest carried out or charged upon it (the land) in the hands of 
 the assignee, so as to enable him to sue upon them ; and with the land-' 
 itself in the hands of the assignee, so as to render him liable to be sued' 
 upon it.. 
 
 Now Mr. Sugden says that his opinion is not kw in England. And 
 yet, Selden and Judge Denio, accept and adopt this opinion, and reject- the 
 English decisions. And who is this Mr. Sugden,. who is set up by our 
 own Judges above all the Judges in England of the present A^y, and all- 
 former Judges from the time of Holt? He was merely a common convey- 
 ancer. He got rich by the mere practice of drafting deeds and conveyances. 
 Riches in England bring honor. The Tory party in England having a short 
 
48 
 
 interval of power, made Mr. Sugden Lord Chancellor. He held the office a 
 few weeks. He went out of it, when the Tory party went out of power, and 
 he now sits in the House of Lords as Lord St. Leonards, and his titles 
 are paraded by Denio and Selden, as if they thought them of more weight 
 than his opinion, which indeed with them out^weighs the established law' 
 of England. Lord St. Leonards has sunk into obscurity in England) 
 where he never had any authority, except what he derived from his wealth 
 and his toryism. 
 
 But even if his opinion was of any account, it has no real application' 
 to our cases. He was speaking of rent-'charges, as they exist in England, 
 and we have nothing of this kind in this State. Mr. Selden refers 
 to a case in Pennsylvania, and one in the United States Court, as sustain' 
 ing the opinion of Sugden. But he omits to state that in Pennsylvania, 
 the statute of Quia Emptores was never in force, and that a grant in fee 
 there does not pass the reversion. 
 
 Mr. Selden then attempts to answer the objection, that covenants cannot 
 run with the land, except where tenure exists. He has the effrontery to 
 claim that such is the case in England. 
 
 Now, every student knows that Blackstone broadly asserts that all land 
 in E-ngland is held by tenure. There is not a rod of allodial land in 
 England. 
 
 He pretends to quote some cases in our Courts. He forgets, very con- 
 veniently, that up to the time of the De Peyster case, it had' been supposed 
 by our Courts, and Judges, that the statute of Quia Emptores was not in 
 force at the time the covenants were made. The casesto which he refers 
 may well have been decided on the ground that tenure did exist in tHis 
 State. Other eases cited in support of his opinion that tenure is not nec- 
 essary to' enable a covenant to run with the land, are simply cases of ease- 
 ment,, and privilege, or dedication to tiie public, and bear no analogy to 
 these cases. Indeed, a man with discernment enough to draw an analogy, 
 could not have fallen into the absurdity of dragging such cases into this 
 litigation. If he will study the doctrine of easements, he will never again 
 publicly ease himself of such legal feculence. 
 
 Again Mr. Selden proceeds, "The payments covenanted to be made in 
 this case are not, as is cLiimed by the Defendant's Counsel, purchase 
 money payments, but rent-payments, although the conveyance of the 
 grant in fee constituted the consideration of the grant of the rent. The 
 payments are as clearly rent as they would have been if the like rent 
 had been granted for the same consideration by the original covenantor 
 out of other lands previously owned by him. 
 
 In many of the cases in our Courts, between parties similarlkj situated, they 
 home been spoken of and treated as landlord and tenant, and the decisions in 
 the cases of Van Rensselaer vs. Snyder, (13 N. Y. 299,) and Van Rens- 
 
49 
 
 selaer vs. Ball (19 N. Y. 100) can he sustained on no other ground, as they 
 depended entirely upon a statute applicable only to parties holding that rela- 
 tion.) 
 
 Now, as we have said before, in England a rent-charge is not a rent at 
 all, and the owner of a rent-charge is never a landlord by force of that 
 ownership. There can be no holding or ownership of land in England, 
 and no claim of rent, except by a landlord, and by tenure. A man in 
 England may grant an annuity out of his own land, and it may be called 
 a rent-charge, but he is still the owner and landlord .of the land, and he 
 cannot be ejected from it for nonpayment. If Mr. Selden does not know 
 this, or cannot understand it, when he reads English cases, he had better 
 leave the bench, and go back to elementary studies. 
 
 But the words that I have italicised are the "elegant extract," the logi- 
 cal chef d'oeuvre of this elaborate opinion. He says that the parties 
 to these instruments have in many cases been "spoken of and treated" 
 as landlord and tenant, and certain decisions can be sustained on no 
 other ground. Yes, it is true that the grants in question were 
 called leases, and the parties landlord and tenant, by everybody up to 
 1852. It was not in many cases only, but in all. Every case brought into 
 Court prior to 1850 admitted the relationship. The defence had never 
 taken issue upon this false assumption of the Plaintiff. Governors, legis- 
 lators, lawyers, and Courts have so spoken of and treated them. For 
 nearly one hundred years the ass has appeared in Court clothed in the 
 lion's skin. But in 1S52 his ass-ship brayed too loudly, and Judge Euggles 
 stripped the lion's skin from off his back. Since then his true character 
 has become generally known, but he still persists in intruding himself 
 impudently into Court, every time clothed in the false skin, and the 
 Judges are so enamored with his beauty, his voice, his ancient lineage and 
 wealth, that they still call him by the lion's name. But no Judge, before 
 Mr. Selden, had so stultified himself as to decide that an ass is a lion ; 
 that a lease is a'n assignment, and an assignment a lease. They have 
 merely permitted the ass to occupy the lion's place in Court. Out of 
 respect to his age and social position they speak of him by his leonine 
 alias. Judges Gould, Wright, and Harris furnished him with a legislative 
 equivalent for his lost skin. But Selden insists that he is a veritable lion, 
 and actually fits him with the hide of re-entry and claws of distress. 
 
 Lawyers and Judges have indeed, without discrimination, and without 
 reflection, used the words lease, and rent, and landlord, and tenant, as ap- 
 plicable to grants in fee reserving rents as well as to leases for life or years. 
 The language has been adopted from the instriiments in which it was 
 wrongfully inserted, and has been repeated, and reiterated with as little 
 thought and appreciation as if the Judges and lawyers had been not rea- 
 sonable men, but imitative parrots. And now Judge Selden solemnly 
 adopts this unreflecting and unmeaning talk for law. He would make 
 7 
 
50 
 
 precedent out of senseless prattle. He would have Judges as witlsss as 
 " Poor Poll." 
 
 Is it to be tolerated, that the undigested and indecisive talk of Courts 
 and lawyers is to be, out of respect to its old age of folly, written down 
 as law ; is to interpret contracts contrary to their express language ; is to 
 construe statutes against their legal effect ; is to alter the tenure of land 
 as established by the constitution ; is to change and confound terms as old 
 as the year books, and as distinct and opposite as good and evil ; is to 
 compel a man without his agreement to do so, to pay another man's debts ; 
 is to transfer without grant or consideration, one man's estate to his neigh- 
 bor ; and is all this to be done under the forms of law, and in the name 
 of justice ? 
 
 If this can be done by a Court without statute, and under the pretence 
 that usage and extra judicial talk have changed the meaning of legal 
 terms, what need have we of law, or legislation ? Our Courts have 
 erected themselves into an absolute despotism. We may dispense with 
 all the other paraphernalia of government. We can leave all affairs to be 
 administered by a Turkish Cadi, and a Sheriff, a Judge and an executioner. 
 
 Under Judge Selden's comprehensive commentary, we would respect- 
 fully ask, what becomes of the common law? He allows usage and judi- 
 cial ignorance, (not judicial construction) to change its rules and transform 
 its language. He claims that a misuse of language, in cases without 
 authority, in cases where the language is incidental, confessedly not essen- 
 tial to a decision to establish a contrary meaning, and utterly confuse all 
 our previous notions of the nature of real property. 
 
 Let us suppose that our Courts and Judges by usage, and judicial talk, 
 had for a long while spoken of and called the parties to a lease for life or 
 years, or any short term, vendor and vendee. This might be done on the 
 ground that such a letting is a bargain and sale of the property. After 
 calling them so for a few years, they could readily hold that they are 
 actually vendor and vendee only, and on such holding they could further 
 decide that the landlord had no claim on the assignees of the lessees — on 
 the acknowledged rule that as between vendor and vendee covenants do 
 not run with the land. But let me ask, what is there more absurd, and 
 wicked in such a ruling, than in its converse, viz : that upon an assign- 
 ment covenants run with the land. 
 
 In Mexico and Italy it is the custom of highway robbers, when they 
 meet a traveler, not to demand his money, but to ask for the loan of it, 
 not to take his watch and goods, but merely to borrow them. This has 
 been so long their usage that the terms rob, and steal, have become obso- 
 lete, in those languages. How convenient for such polite robbers, it 
 would be to have a bench of our complaisant Judges, who would at once 
 transfer robbery into borrowing, and thieves mto debtors. 
 
51 
 
 This would seem to confuse somewhat our ideas of meum and tuum, 
 but it would all come easy after we got used to it. "We could just as 
 easily reconcile ourselves to a judicial construction that should convert a 
 thief into a debtor, and a robber into a borrower, as to one that converts 
 an assignment into a lease, or a lease into an estate in fee. In both cases 
 the operation is precisely the same, taking one man's property and giving 
 it to another. 
 
 In one of the territories of the United States there is a usage which 
 was formerly known as polygamy, and is there called marriage. The 
 disciples of Mormon are residents in all of the States, and many of them 
 in this State. It is now about twenty years since the saints have called 
 polygamy, marriagp. There is no law which will exclude one of the 
 saints from our Court of Appeals. If by some political change five of 
 the saints could obtain seats in that Court, we shall have them deciding 
 that marriage and polygamy have long been used to express the same 
 thing, and are interchangeable terms. The Court will decide that mar- 
 riage authorizes a plurality of wives, and will cite Judge Selden and the 
 Court of Appeals in the cases' of Van Rensselaer vs. Ball, and Smith, as 
 justifying a still greater metamorphoses of meaning. The Court and Judge 
 who can decide an assignment to be a lease, would not have to stretch 
 ingenuity or conscience to decide marriage to be polygamy — using the 
 words indiscriminately would legalize the indiscriminate and promiscuous 
 union of the sexes. 
 
 But Judge Selden was not original in his nonsense. He borrowed it 
 all from the work of the late Judge John Willard on real estate. This 
 will appear from the following extract from that work : 
 
 " The durable lease or grant in fee reserving rent, with a power to 
 distrain, was a common conveyance in this State, both before and since the 
 Revolution. Such lease creates a valid rent-charge, which descends to 
 the heirs, and the covenant runs with the land into whosesoever hands it 
 lawfully passes. (Van Rensselaer vs. Hays, 19 N. Y. Rep. 76, Notes 
 235 to Co. Litt. 143 b. by Mr. Hargrave and the cases before cited; Van 
 Rensselaer vs. Ball, 5 Smith 100; S. C. 27, Barb. 104; Bradbury vs. 
 Wright, Douglas 629 ; Note to do. 627.) 
 
 " It has not been unusual, in adopting the law of the parent State, to 
 introduce changes to make it conform to the circumstances, wants, and 
 conveniences of the country. These changes have sometimes been the 
 result of usage alone, and sometimes of statutory regulations and judicial 
 construction. It is upon this principle that the term lease, which in Eng- 
 land denotes a contract for the possession and profits of land for a determi- 
 '"'ate period, with a recompense of rent payable in money or other things, 
 leaving a reversion in the grantor, with us is indiscriminately used, 
 whether the estate granted be for a life or years, or in fee. (Bac. abr. tit. 
 and Oases.) Grants in fee, reserving rent, with a clause of distress and re- 
 
52 
 
 entry, have long been called leases in fee or dttrahle leases in this State, both 
 in statutes and judicial decisions. (Laws of 1805, oh. 98, 1 R. S., 748, § 
 25 ; 3 id. 37, 5th ed. ; De Peyster vs. Michael, 2 Seld., 467 ; Jackson 
 vs.' Collins, 11 John 1 ; Van Rensselaer vs. Jewett, 5 Denio, 121; same 
 vs. Jones, 2 Barb. S. C. R. 643 ; same vs. Hays, 5 Denio, 477 ; same vs. 
 Snyder, 3 Kern., 299; Van Rensselaer vs. Smith, 27 Barb. 104.) 
 
 " In the foregoing cases an estate in fee reserving rent, with a clause of 
 distress and re-entry, is called a lease, and the relation of landlord and 
 tenant is spoken of as subsisting between the parties. The party entitled 
 to the rent is called the landlord, and the party liable to pay it the tenant, 
 and the cases were held to be be within the statute giving a right of re- 
 entry to the landlord for the non-payment of the rent. • 
 
 " There are numerous other cases in the books in which we have used 
 common law terms in a different sense from that which they bore 
 in the mother country, or in the same sense, with some essential modi- 
 fications. Our Courts, for example, have held that railroad bonds are 
 negotiable securities, contrary to the notions of British lawyers. (White 
 vs. Vermont and Massachusetts R. R., 21 How. U. S. Rep. 575.)" 
 
 "Willard on Real Estate and Conveyancing, pp. 207, 208. 
 
 Again : 
 
 " Although the proper definition of a lease embraces only such instru- 
 ments of conveyance as transfer to the lessee a less estate than is possessed 
 by the lessor, thus leaving a reversion in him, yet we have seen, in a pre- 
 ceding chapter that grants in fee, reserving an annual rent, with clause of 
 distress, create a valid rent-charge, notwithstanding there is no reversion in 
 the person entitled to it ; and that the covenant to pay such rent runs with 
 the land, as well as the condition of re-entry for its non-payment." (p. 425.) 
 
 The cases cited by "Willard, do not contain the doctrine about durable 
 leases laid down by him. The Hays and Ball cases decide nothing, except 
 that the Plaintiff's shall recover. They do not decide even so much, upon 
 the construction of the instruments called durable laws. If they decide 
 anything as matter of principle, it is that the rent reserved upon a grant 
 in fee is a chose in action good against the grantee during his life time, 
 and made assignable by the statute of 1805. The decision goes no furth- 
 er. And we have seen that, on account of the conflicting opinions of the 
 Judges, it is not authority ; at least Ex-Judge Paige so holds, and we are 
 willing to put his name against that of Ex-Judge Willard. 
 
 Our statutes are the law of the land. And the revised statutes follow- 
 ing the constitution declare that the common law of England shall be the 
 law of the State in all cases wherein the statutes have not altered or re- 
 pealed it. Judge Willard does not and could not point out any authority 
 given by statute to individuals, or to Courts, to " introduce changes." 
 Any attempt to change the meaning of words or things hy Judicial con- 
 
53 
 
 struction, would be judicial usurpation. It is not the province of Courts 
 to make law or to define legal terms. 
 
 Neither Judge Willard, nor Judge Selden stealing from him, cite a trea- 
 tise on landlord and tenant written and published in this Country or Eng- 
 land, in which a lease is defined to be any other thing than the letting of 
 one man's property to another man, for some stipulated price and for a 
 term less than the terra of the grantor ? If a man own a life estate, and 
 by deed grant it for and during his life, could any authority be adduced to 
 make his grant any thing but an assignment? And would it be any thing 
 but an assignment, even if he should call it a lease ? Can men be per- 
 mitted by contract to charge the tenure of land, simply by substituting 
 and confounding one word for another, or by using words in ignorance of 
 their real meaning ? 
 
 Judge Willard refers to several decisions, running back half a century, 
 and our statutes in proof of his assumption that there is no difference 
 between a lease and an assignment. The cases cited it is true, all admit- 
 ted the relation of landlord and tenant, on the supposition that a reversion 
 remained in the grantor. He refers to them as authority for his position. 
 How could the Judge pretend that a single one of them was decided 
 upon the point he makes, viz : whether the instruments were leases, or 
 assignments ? The question was not raised in one of them. How then 
 can they be cited as authoriey ? If ninety -nine suits are brought by one 
 party on similar instruments against so many Defendants, and neither of the 
 Defendants raises the question that the Plaintiff has no reversion or estate, 
 upon which to base his suit, how can the hundredth Defendant be precluded 
 by their neglect, or ignorance, from setting up that defence. And shall the 
 fact that the Plaintiff so often, and so long assumed to be what he was 
 not, establish his right, against law ? It has been held by our Court that 
 it was not in the power of parties to contract that a deed should be a- 
 lease, and that purchase money should be rent. Is not one such decision 
 worth more as authority than the loose talk, undisputed assumptions, or 
 ignorant admissions of Courts and lawyers ? 
 
 The only statute which the author refers to as sustaining his new law, is 
 that of 1805, and its re-enactments in the Eevised Statutes. The statute, 
 as the author knew, or ought to have known, applied only to the grantors 
 and grantees of reversions, as decided by Judge Savage, and as held by 
 Selden and Strong. 
 
 We might challenge Judge Willard or Judge Selden to produce an in- 
 stance, where we have changed the legal meaning of a legal term, or have 
 used common law terms in a sense different from that which they bear in 
 the mother country, or in the same sense with essential modifications ; un- 
 less the changes have been made by express Statute. The only seeming 
 instance which Judge Willard gives does not warrant his assertion. Eail- 
 roads, and railroad bonds, are modern things. The Common Law never 
 
54 
 
 knew them. In England they exist only by Statute. In this country they 
 exist not by Common Law, but by Statute. The illustration is deceptive, 
 and is a deception intended to cover a cheat. "Would Judge Willard have 
 us believe that he was so ignorant as to suppose that rail road bonds exis- 
 ted by the common law ? The nature of rail road property, the character 
 of its real estate, and the negotiability of its bonds, depend upon the statutes 
 by which they are authorized. An English statute and an American stat- 
 ute may very likely give rail roads difierent powers, and their bonds a dif- 
 ferent legal character. 
 
 "We wish the Judge had informed us what " circumstances, wants and 
 conveniences " in this country, demand a change in the meaning of the 
 word lease. And why should that change, without the aid of statute, sub- 
 vert the common law meaning ? 
 
 Judge "Willard's work on real estate, seema to have been written and 
 published for the express purpose of apologizing for abetting and propping 
 up the radical and revolutionary opinions of Gould and Denio. For I can 
 conceive nothing more radical and revolutionary, than opinions that ignore 
 the arguments of counsel on both sides, assume and reason upon facts not 
 proved or admitted, and not in the cases, and base decisions on a statute 
 previously declared by the Courts not applicable to the subject. It is the 
 first instance in which a respectable lawyer has staked his reputation upon 
 the precarious venture of altering the great rules of the common law, ef- 
 fecting a change in the tenure of real estate by adopting a popular error 
 as a received fact, and converting an assignment into a lease by simply 
 speaking of and calling it so. I know that language in the process of 
 years undergoes great changes, and that words come by usage to lose 
 their original meaning, or become obsolete. But I doubt whether any 
 dictionary, old or new, from Bailey down to "Worcester, any treatise on 
 real estate ancient or modern, from Littleton down to Taylor, until the 
 advent of Willard, can be quoted to show that the words lease and assign- 
 ment mean the same thing. 
 
 But the Court of Appeals, through their mouthpiece. Judge Selden, 
 seem to have followed Judge "Willard, whose work contains nothing new, 
 except what we have quoted ; and we presume the whole edition was paid 
 for by the speculators for whose special benefit those few sentences were 
 inserted. 
 
 Mr. Selden's opinion, which must be taken for the judgment of the 
 Court, concludes as follows : 
 
 "In my opinion however, the right of the Plaintiff to recover in this case 
 is entirely clear upon the ground that the covenants at common law run as 
 was said by Mr. Sugden, with the rent in the hands of the assignee, so as 
 to enable him to sue upon them ; and with the land itself in the hands of 
 the assignee so as to enable him to sue upon them ; and with the land 
 itself in the hands of the assignee so as to render him liable to be sued 
 
55 
 
 Most lame and impotent conclusion ! 
 
 The Court holds the Van Rensselaer deeds to be asssignments, and at 
 the same time treats them as, and gives them the force of leases. And 
 while the claimants are declared not only not to have any reversion but 
 not even a possibility of an estate, they treat them as the owners of the soil 
 and feudal proprietors. 
 
 If the people are liable to the service claimed then they are subjected 
 by this decision of the Court to an involuntary servitude. The famous 
 ordinance of 1787, applicable to the North West Territory, and which 
 prohibited therein slavery and involuntary servitude, ha^ been held to 
 reach and forbid just such claims as these. See Waterman's Edition of 
 Dart on Vendors and Purchasers, page 14. 
 
 And this servitude may be multiplied ad infinitum, by any one who 
 owns land. He has only to covenant that his assignees shall do service 
 and pay a charge, or annuity, and all his successors are thereby bound 
 forever. If this decision is to be taken for law, then all our real estate 
 may be burdened by enormous and ruinous charges, which will entail 
 upon posterity an unbearable load of interminable debt, and involuntary 
 taxation. 
 
 It imposes upon the people of Rensselaer and Albany Counties, the 
 obligation to serve Peter Cagger, James Kidd, Walter S. Church and 
 others, as one of the inevitable incidents of occupying land, as a necessity 
 ■of their social and political existence. They are bought and sold in the 
 market, iiot by any legal right, not by any law of servitude, but by men 
 who boast that they do not care for law, because they can buy legislators, 
 and can control the judges. 
 
 In the case of personal slavery, the service is due because the slave is by 
 law a chattel. 
 
 Under feudal bondage the service is due because the serf occupies and 
 tills his master's land. 
 
 But now our courts have established a new form of servitude for its citi- 
 zens, and their constituents, in which the service is due, because a man 
 occupies and tills his own lands. The claimants may be native or alien, 
 for as the service is not attached to, or connected with land, on their side, 
 they may drain the country of half its annual production, even while the 
 law forbids them to own an acre. 
 
 If this decision is to stand, then the court has found a way to avoid, and 
 annul, the constitutional provisions against leasing agricultural lands for 
 more than twelve years. A man may charge his lands with a perpetual 
 annuity by assignment, and not by lease. What shall hereafter hinder a 
 man in his last will and testament from charging his real estate with per- 
 petual annuities, or charges, to be paid to whomsoever he shall designate? 
 The prohibition extends only to leases of agricultural lands. Who is sd 
 stupid as to think of applying it to grants in fee ? 
 
56 
 
 The fact is, that this decision is too absurd to settle any thing. The 
 court seems not to have considered any thing but the demands of the 
 clainaants. Their ingenuity is exerted to save for Cagger, Kidd, Church, 
 Dean Richmond & Co., the money they have risked upon the gambling 
 venture that they could manage the Courts. 
 
 The litigation is in a greater muddle than ever before. "When driven 
 from one false and ridiculous position they resort to another, still more ab- 
 surd. In short no one can read our true history of the tricks, and subter- 
 fuges, inconsistencies and contradictions of the judges, and have any more 
 faith in their integrity than in their learning. 
 
 The opinion, like those of Judges Denio, Gould and others, who have 
 imitated the example first set by Judge Cowen, is overloaded with indiges- 
 ted learning, and references to cases not analagous. In reading it I am 
 reminded of the epigram upon a man who was very learned and still a 
 fool: 
 
 "Plurima degustat stomachus, nil concoquit seger,] 
 Sic tuacis, fateor, multa ; nibilque sapis." 
 
 Your diseased stomach tastes a little of everything and digests nothing, 
 so that you belch forth an indigested mass of learning ; but you are 
 nevertheless a fool. 
 
 Or if my readers would prefer a less classical but more forcible quota- 
 tion, perhaps the following would not be inapt: 
 
 Still his opinion's always good, 
 Provided this be understood, 
 That when you have it stated nicely, 
 'Tis what it shouldrCt be, precisely. 
 
 In fine, I think His Honor's law-miU 
 Should go by water like a saw-mill. 
 For that his only chance, I trust is, 
 To chance to do our clients justice. 
 
 Or perhaps it might be said of every Judge who has undertaken, for 
 the sake of upholding these iniquitous and illegal claims, to make the 
 worse appear the better reason, he gets involved in a labyrinth of error, 
 and 
 
 " Sometimes to sense, sometimes to nonsense leaning, 
 Is always blundering roundabout his meaning." 
 
 There are three law maxims which have passed into legal axioms, 
 whose truth is admitted without proof, and without dispute. 
 
 1. " Quselibet concessio fortissime contra donatorem interpretanda est." 
 
 Every conveyance must be understood most strongly against the 
 grantor. 
 
 1. " Queestio fit de legibus, non de personis." 
 
S7 
 
 I'lie question is what is the law, and not who are the parties. 
 3. " Qaum sunt partium jura obscura, reo potius favendum est quanf- 
 auctori." 
 
 When the rights of the parties are uncertain the Defendant,, ra-ther thai).' 
 the Plaintiff, must have the benefit of the doubt. 
 
 Courts and Judges have persistently and systematically violated the 
 foregoing maxims. They have wrested grants to the favor of tlie grantor 
 and the destruction of the grantee ; they have had respect to persons, and 
 not to the laws ; they have in all doubtful cases favored the Plaintiff, and 
 even reversed salutary rules of law in order to put money into the poc)setg 
 of the few at the expense of the many. 
 
 We are often called upon to respect the decisions of Courts. We are 
 pautioned not to do, or say aught that shall bring them into odium- or con- 
 tiBBipt. But why should we reverence judges who despise.^their predeces- 
 sors, or why respect decisions of to-day that overrule those of yesterday ? 
 Judge Gould affects to speak lightly of, and disregard wholly, a line of 
 decisions, uniform and unbroken for two centuries, because it is founded 
 on a dictum of Judge Holl. His sagacity excels that of all the lawyers- 
 of England for two-hundred years, who have failed to see that Judge 
 Holt's dictum was not good law, because, it was not the point upon which 
 the case was determined. The Courts and lawyers of England adopted 
 Holt's dictum as good law, and made it law, but Judge Gould has cor- 
 rected their error, and no doubt they will, hereafter, be guided by his 
 superior wisdom. 
 
 , We are free to say that we think Judges and Courts need wa,tching as 
 closely as legislators. '' Judges and Senates have been bribed for gold." 
 Judges in all ages and countries have been disposed to e^rtend their juris- 
 diction and grasp at power. We esteem and honor the judges who had 
 the courage to battle against the royal prerog-ative, and to protect the 
 rights and liberties of the people. We detest the memory of those who, 
 like Jeffries, sold themselves for place and fortune, and became the tools of 
 princes to defraud and oppress the people. 
 
 In all ages Judges have been corrupt. In the middle ages, both in 
 France and England, it was the universal practise for the Judges to accept 
 presents from suitors, and it too frequently happened that the one who 
 gave the most valuable douceur won his case. Lord Chancellor Thurlow 
 was guilty of the most frequent, and meanest political tergiversations, in 
 order to retain his seat upon the wool sack. One of the Judges of the 
 Supreme Court of the United States has been impeached, and another 
 has had charges brought against him in Congress. The old Supreme Court 
 of this State was abolished on purpose to get rid of the unpopular Judges. 
 The present constitution of the State would never have been adopted, had 
 it not been for the purpose of reaching, and ousting Judges who had 
 8 
 
58 
 
 incurred the hatred and contempt of a great part of the people by their 
 gross partizan bias in the libel suits of Cooper, "Webb, "Weed and Greeley. 
 The Court of Chancery was abolished to get rid of the rules and techni- 
 calities of Walworth. One of the brightest and ablest men that this State 
 ever produced, whose eloquence and learning and genius were the admira- 
 tion of the bar and the ornament of the bench, resigned his seat rather 
 than meet an impeachment for bribery, and sunk prematurely into the 
 grave, under the insupportable weight of his own conscious guilt and 
 disgrace. 
 
 The greatest intellect of modern times, and perhaps of any age, was 
 stained by avarice and cori'uption. The man who released philosophy 
 from the sophistry of the school men, and whose genius was such that he 
 touched' nothing which he did not adorn, took bribes, and took them from 
 both parties, and justified himself on the ground which was acknowledged 
 to be true,, that his predecessors in office had 'done the same. He was 
 shamefully dismissed from office on his own confession. He hasj5«en im- 
 mortalized in infamy by the poet, 
 
 "If parts allure thee, think how Bacon shined. 
 The wisest, brightest, meanest of mankind." 
 
 And yet Bacon in his essays, informs us that it is the province of a judge 
 "jus dicere" to interpret the law, and not ^' jus facere," to make the law. 
 
 I would commend this advice to our legislating Courts. Judges may 
 have all Bacon's meanness without his learning and genius. 
 
 Still another great legal luminary, the- oracle of the common law, did 
 not escape censure.. Junius said of him, " For the defence of the truth, 
 of law, and reason, the Doctor's book may be safely consulted ; but 
 whoever wishes to cheat a neighbor of his estate, or to rob a country of its 
 rights, need make no scruple of consulting- the Doctor himself." 
 
 Blackstone has a caution against a servile warship of every man who 
 sits upon the bench. 
 
 "The law, and the opinion of the judge, are not always convertible 
 terms, or one and- the same thing ; since it sometimes may happen that 
 the judge may mistake the law." 
 
 "We leave our readers to choose for themselves whether Blackstone's 
 remark is applicable to Judge Selden's opinion, and how much of the 
 words of Junius have a like application. 
 
 "What chance have the poor and isolated farmers, in a htigation against 
 the combination of speculators, who can draw on Dean Richmond for 
 money, and who can employ in their cause the plausible and winning ap- 
 proaches of Kidd, the pertinacious manipulations of Cagger,»and the un- 
 blushing impudence of Church ? 
 
 In a criminal case a rich man, with a numerous and wealthy family 
 connection, has a thousand means of influence to postpone or wholly pre- 
 
59 
 
 vent an accusation, or to save him from the penalty of the law. His 
 riches, his position, his friends, form around him an unconquerable rampart 
 of lawyers, eloquent and trained in the very sanctuary of justice, and of 
 able writers who have control of the press and employ it in his favor, and 
 who generally succeed in bringing the criminal safely out of a trial, or in 
 saving him from punishment. 
 
 But how is it with the poor man ? He tries in vain to throw off the 
 weight of an accusation. Everything is against ^lim. His poverty is the 
 first proof against liim ; he is condemned by the public as soon as he is 
 suspected ; if he is guilty he cannot escape, and if he is innocent, suspicion 
 clings to him and accompanies him through life. 
 
 In a civil process is it not much the same ? The rich man can employ 
 and pay liberally the most celebrated lawyers ; by their eloquence and by 
 his and their personal influence the minds of the judges are biased ; he 
 can employ bribery ; he can sustain the cost ot a long and expensive liti- 
 gation, and can compel his adversary to follow him through all the tortu- 
 osities of legal cliicanery. The poor man, unable to contend against .such 
 odds, gives up his case and loses his rights. 
 
 Are not Judges men like other men, have they not the same failings, 
 are they not subject to the same passions? Are they apart from, or above 
 humanity? And this confessed, do not the rich have other, means of 
 influence from which the poor are utterly shut out ? 
 
 Mauus ferena munera 
 Pium facit impium ; 
 
 Nummas jungit foedera, 
 Nuramus dat consilium, 
 
 Nummus levit aspera, 
 Nummus sedat proelium ; 
 
 Nummus ia prselatis 
 
 Est pro J ure satis, 
 
 Nummo locum datis 
 
 Vos, qui judicatis. 
 
 ■Nummus ubi prsedicat, 
 
 Labitur justitia ; 
 Et causam quse claudicat 
 
 R«:<H<ira facit curia ; 
 Pauperem dijudicat 
 
 Venicns peounia; 
 Sic dijudioatur, 
 A quo nihil datur ; 
 Jure sic privatur. 
 Si nil offeratur ? 
 
 The hand bearing gifts 
 
 Makes the pious man impious ; 
 
 Money forms leagues, 
 
 Money gives advice, 
 
 Money smooths away rough places.; 
 
 Money settles a iight ; 
 
 Money with prelates 
 
 Stands in place of right, 
 
 And you, ye judges, 
 
 Give way to money. 
 
 When money is plaintiff, 
 
 Justice falls. 
 
 And the Court makes 
 
 A limping cause straight.; 
 
 Money coming 
 
 Decides against the poor.; 
 
 So he loses his cause 
 
 Who has nothing to give ; 
 
 So he is deprived of his right 
 
 Who offers nothing. 
 
 Thus a middle age poet sings in jingling Latin of the power and influ- 
 ence of money. 
 
60 
 
 t haVe sho-vvil the general belief thrit the late Stephen Van Reflssefa«rr 
 ■was the Lord Proprietor of the Manor of Rensselael-wyck ; that he was 
 the owner in' fee of the land and the reversion thereof 7 that he had grant- 
 ed leases ; that he was the landlord, and the farmer's his tenants, and that 
 the law of landlord and tenant, as laid doWn iti our eleihentary books, and 
 enacted in our statutes, was applicable to the parties. 
 
 I have then, in the second place, shown that parties litigant, lawyers, 
 
 [Judges, and Courts adopted and acquiesced in the Same opinion, and that 
 
 I Van Rensselaer, his devisees and their assignees, have always claimed to 
 
 I be landlords, and that the legal right to such designation had never been 
 
 contested until after the De Peyster case in 1852. 
 
 In this casej the true legal character of the grants was settled. But the 
 claimants still clung to the title of landlords, because, they insisted he had 
 a right of reversion, which had been transferred to them. I have shown 
 that even Gould and his associates, "Wright and Plarris, thought that a 
 reversion was essential to maintain suit, and that they resorted, in the 
 absence of a real reversion, to a legislative or fictitious reversion. 
 
 I. have shown how the Court of Appeals, driven to the necessity of 
 deciding that there was no reversion, based a judgment upon the quibble 
 that the statute of 1805, imparted to the so-called rents a vendible charac- 
 ter, a quality assignable, equivalent to a reversion. 
 
 I have shown how being driven from this last reti'eat, the Couft has 
 formally declared the instruments called leases, to be iu fact assignments, 
 but has escaped from the conclusion which the English Courts and the 
 common law (for the decisions of the Courts form the common law of 
 England) make inevitable, by adopting the shallow reasoning of a small 
 conveyancer, whom the Court endeavor to swell into dignity and impor- 
 tance by his titles of Lord Chancellor, and Lord St. Leonards. 
 
 I have commented on the opinion of Selden with not undue severity. 
 
 I have grouped together several cases decided in our courts, and briefly 
 stated the facts, and points a.t issui; in them, and the opinions and dicta of 
 Judges ; all touching the nature and legal character of grants in fee re- 
 serving rents. If they appear conflicting, conlraJicl.ory and absurd; if 
 they betray ignorance, and prejudice, and gross partiality ; if they show a 
 disposition on the part of Judges to sot aside the settled rules of the 
 common law, and overrule former decisions, for the benefit of the rich, 
 and the plunder of the poor ; if they tend to belittle the learning and 
 judgment of Courts, to bring into doubt the honesty and integrity of 
 Judges, and to shake the confidoiice of the people in the judiciary; all I 
 have to answer is, that I have merely transferred these damaging cases 
 from the published reports to this pamphlet, and permitted Judges to show 
 up themselves and each other by comparison and contrast. 
 
61 
 
 A.nd no^ -wha* ought ttie people to do? Ought they to suhmit, and 
 ■iDermit decisions arrived at under such circumstances to be carried into 
 •execution ? I say not. The opinions and decisions are wartliless and 
 wicked, unjust and unlawful, unconstitutional and oppressive. 
 
 When Stephen Van Eensselaer, as owner in fee of the Manor lands, 
 transferred them in fee, or assigned them, the grantees, by virttle of the 
 Act of 1785,. concerning Tenures, became the tenants of the State. By 
 the very terms of that Act Van Rensselaer could not reserve any feudal 
 incident, any rent, or service to himself. 
 
 The Constitution of the State, which declares all lands to be allodial, ' 
 forbids the leasing of land in fee, and permits none but the owners of 
 land to reserve and receive rents. If this is not the meaning of the term 
 allodial, then it has no meaning, or effect at all, and putting the word in 
 the Constitution was an imposition and farce. 
 
 How or in what way they shall resist the execution of these decisions, 
 it is not for me to advise. That will depend upon the mode that shall be 
 taken to enforce them. 
 
 But one thing I am free to advise. Both .Justice Gould and Judge / 
 Selden are candidates for re-election to seats upon the bench. They / 
 depend upon the votes of the people. If there is a man who occupies a i 
 farm still subject to these unjust and illegal claims, if there is a man who 
 has been sued and had judgment against him, and been thrust out of his 
 property and home ; if there is a man who has paid the exactions to 
 escape the costs and perplexities of litigation; it is the duty of each and 
 all to vote against both these men. 
 
 What claim has Gould to your votes 7 From the day he took his seat, 
 he has labored on and off the bench, against the farmers. He took up 
 and carried through the case of Van R. vs. Smith, with the interest of an 
 Attorney, rather than the impartiality of the Judge. His opinion reads 
 as if he was merely striving to establish a foregone conclusion, and not as 
 if he were weighing the rights of the parties in the scales of justice. 
 
 It was about the time that he was writing this opinion that he formed 
 the acquaintance of Walter S. Church. Since that time he has been in 
 the habit of dining with Church and sleeping with Church. There has 
 been, perhaps, nothing wrong or criminal in such intimacy. I can only 
 say that in my opinion it has been a very ill assorted companionship, and 
 one which would have been avoided if the Judge had borne in mind the i 
 proverb that St. Paul borrowed from Bawpides , "Evil communications)/ 1; 
 corrupt good manners.'' One can hardly conceive how a man of the 
 almost finical tastes and refinement of Gould can endure the rude speech 
 and coarser manners of Church. One is scrupulously correct in his own 
 conduct and regardful of the proprieties of life, while the other openly 
 boasts that he has no respect for honesty in man, or honor in women. 
 The probability is that Gould loves Church's dinners and suppers, and not 
 
:62 
 
 Church, and the'latter has made hundreds of -just, such friends, to.ihja great 
 cost. He might wisely ponder on the epigram: 
 
 " Hunc, quem coena tib!, qusm menia paravit amicutn. 
 
 Esse putas fida; pectus amioitiEe ?( 
 ' A'prum airiat, et muUos, et sumen et ostrea, non'te,' '! 
 
 Tara bene si coenem, nostcr'amious erit." • ' : 
 
 The frequent supper's steamy, odorous savor, 
 
 You think, will win the Judge's constant favor. 
 
 Not so;, he loves your wine anrl oyster-stew. 
 
 Your woodcock, salmon, turliey, pig; not you. 
 
 Should I as often aSk the Judge, to dine, 
 
 He'd swear himself the same good friend of mine. [ 
 
 Has Selden any more claim than Gould upon your suffrages? He is 
 the old and intimate friend of Dean Eichmond, who has advanced the 
 money to Cagger, Kidd, and Church, and who expects to be paid out of 
 the profits of their speculation. It is impossible to know what influence 
 ■the desire to gratify a friend plight have upon, a Judge who evidently 
 had never studied the law afiplicable to these cases, and who shows him- 
 ..self incapable of drawing right conclusions from his own admitted prem- 
 ises. There is something strange in the fact that this case should have 
 teen committed by the Court to Mr. Selden, a new man on the bench, and 
 unused to judicial investigations, instead of to Judge Denio or Judge 
 Wright, who had some previous knowledge of the facts and the law. It 
 is said that an opinion had been prepared for the January term, but that 
 it was not. satisfactory to a majority of. the Court. It may be fairly sur- 
 mised that the unfledged Judge had based his decision upon his newly 
 .^-discovered doctrine of easements, and he was required to weed it of such 
 ,an absurdity. The necessity of writing his opinion over again postponed 
 ,a decision to the Summer Term. He was so fond of his former opinion 
 ■that he- could not forbear to draw some analogies from his law of ease- 
 ments. I have been informed that Justice Gould had either seen the 
 .opinion, or had its contents stated to him, for he has said that he knew 
 that the Court had agreed to render a decision for the Plaintiff, but that 
 .the opinion written for the occasion did not meet the views of all the 
 Judges, and had to be rewritten before a majority would approve it. 
 Judges "Wright and Kosekraus did not concur. How the other Judges 
 could unite in a decision based upon an opinion whose first proposition 
 denii^s and overthrows all the rest, except the two which it includes, I 
 -cannot see, unless they have an easy-going way of not interfering against 
 the opinions of each other in the cases committed to them, which would 
 be treating the parties to civil actions much as Pope intimates to be the 
 fate of criminals, when 
 
 " "Wretches hang tha6 jurymen may dine,'' 
 
63 
 
 The people, at any rate, have too much good sense and intelligence to 
 believe that such contradictory decisions and opinions as mark the history 
 of this subject, and this great .litigation, are altogether the result of igno- 
 rance and stupidity. Since the Van Rensselaers sold out, the whole affair 
 has sunk into a mere money speculation, in which as Church testifies, the- 
 purchasers \)f doubtful claims pay fifteen per cent of their gross value, 
 leaving a margin of eighty-five per cent for profits, expenses, and outside 
 influences. How those influences are brought to bear, is unknown. It is 
 not by bribery. The lobbyists have discarded this old fashioned crime. 
 How they do use their money and influence it is unimportant to enquire./ 
 Another thing is important. If the lobby control the Courts, the people/ 
 elect the Judges. I 
 
 But some men may ask in their simplicity, shall we vote for our politi- 
 cal opponents ? My answer is that it would be wiser to vote for your 
 political opponents than your judicial opponents. But how do we know 
 that the candidates opposed to Gould and Selden are any better than they.. 
 I answer that is of no consequence. I would vote for Church and Cag- 
 ger as against them. 
 
 It is well known that Church, Kidd and Cagger made a desperate effort 
 to obtain for Justice Gould the Democratic nomination. I do not know 
 that Mr. Gould sought it. But we may all infer that Peter Cagger, 
 James Kidd, Walter S. Church, and Dean Richmond, would not plot, and 
 spend money to procure delegates, and pack a delegation in order to 
 nominate a man like Gould, not of their party, unless they had some 
 good reason for it. They may have been actuated by gratitude for past 
 favors, or by that more common gratitude a lively sense of favors expected. 
 It is plain that they think liim their friend, and for that cause sought to 
 impose him on the Democratic Party. If he is their friend in Court and 
 out of Court, then it will be safer for the people to have him do his deeds 
 of friendship out of Court. And the same is true of Selden. 
 
 It may be that their opponents will be no better. They cannot be' 
 worse. We have hitherto appealed to the Courts in vain. 
 
 " Asinus lyram, sus audit stolidus tubam." 
 
 But it may not be always so. We may not always have to talk to 
 ears wilfully shut against our arguments. If the ballot box does notr 
 answer, then as a last resort, every man can stand on his own threshold,, 
 and defend his' own home. 
 
Vj.4e 
 
 
 
 
 
 
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