lEx Htbrts 
 
 SEYMOUR DURST 
 
 When you leave, please leave this hook 
 
 Because it has heen said 
 "Ever'thing comes t' him who waits 
 
 Except a loaned hook." 
 
 Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
t 
 
 )igitized by 
 
 the Internet 
 
 Archive 
 
 
 
 
 in 2013 
 
 
 
 http://archive.org/details/tofriendsoflaworOOfair 
 
TO THE FRIENDS 
 
 OF 
 
 LA W AND ORDER, 
 
 OF 
 
 ALL PARTIES. 
 
 A bill of which a copy is given below, has been introduced into the 
 House of Assembly, on behalf of a class of men, who call them- 
 selves Anti-Renters, some of whom at a recent public meeting, adopted 
 a resolution as follows : 
 
 " Resolved, That we will give our suffrages to no man for a delegate 
 to the State Convention for altering the Constitution, unless he is honest- 
 ly and faiily a friend to our cause" It is fair to infer from the evidence 
 furnished by the votes given at the last election, that the suffrages of the 
 Anti-Renters for Governor, Senators, Assemblymen, and all other elective 
 officers, are to be restricted in the same manner. 
 
 This public announcement to whom their suffrages shall not be given, 
 will not be without effect, upon those who wish to be Governors, Sena- 
 tors, Members of Assembly or Members of the Convention, and who 
 have more ambition than honesty. 
 
 What is the cause of the Anti-Renters, to which every man who wants 
 their suffrages must be a friend ? Let the following bill answer : 
 
 " AN ACT 
 Concerning Tenures. 
 The People of the State of New York, represented in Senate and As- 
 sembly, do enact as follows : 
 
 Section 1. In any action brought to recover the possession of land for 
 the non-performance of any condition contained in the grant or lease, 
 where such grant or lease is in fee or for one or more lives, or for a term 
 
of years exceeding ten years, the defendant shall be at liberty to deny 
 the validity of the original title under which such grant or lease was 
 made ; and in such case the plaintiff shall be required, before he shall be 
 entitled to recover in such action, to establish the validity of the title un- 
 der which he or the person or persons under whom he claims title, claim- 
 ed to hold such land at the time of the execution of the grant or lease 
 containing the condition or reserving the rent, for the non-performance 
 or non-payment of which the action is brought, in the same manner as 
 if the possession of the grantee or lessee had been an adverse possession." 
 
 By the above bill, it is proposed to abolish a most important, long es- 
 tablished and salutary rule of the common law, with no other view, than 
 to take from one class of men their just rights without any compensation, 
 and to exempt another class from a faithful performance of their contracts 
 voluntarily made. The rule of the common law, as well as of justice 
 and common honesty, now is, and for ages has been, that if one man 
 borrowed a horse of another, he thereby admitted that the lender had 
 title to the horse, and the borrower could not, rightfully claim to keep the 
 horse, under pretence that the lender did not own the horse which he lent. 
 So, if a farmer purchased goods of a merchant, he could not rightfully 
 keep the goods, and refuse to pay for them, under pretence, that the 
 merchant had no title to the goods when he sold them ; nor could the 
 merchant, who purchased a thousand bushels of wheat of a farmer on a 
 credit of sixty days, refuse payment, because the farmer had cheated his 
 landlord out of his rent, and refused to pay the laborers who plowed 
 his fields, sowed, harvested and thrashed his wheat. No, the man who 
 borrows the horse must return him, the farmer who buys the goods, and 
 the merchant who buys the wheat, by the purchase, admit the title of the 
 vendors ; the same rule applies to contracts, leases and deeds of, or in re- 
 lation to land. If one man makes a contract to purchase land of another, 
 and takes possession of the land under the contact to purchase, and pay 
 for it, he must abide by his contract, and while he remains in posses- 
 sion, he cannot deny the title under which he entered. So if a man 
 takes a lease of another, in fee, for life or for years, and covenant to pay 
 an annual rent, and in case he fails to pay the rent, and there be no suf- 
 ficient distress on the land, that the lessor shall have a right to re-enter 
 on the land, and eject the lessee ; while he remains in possession under 
 the lease, he is not allowed to deny the title of the lessor. Why should 
 he be allowed to deny that title, any more than the man who borrowed a 
 
3 
 
 horse, should be allowed to deny that the man who lent the horse, owned 
 him ? So, if one man buys a farm and takes a warrantee deed, and gives 
 a bond and mortgage to secure the payment of the purchase money; he 
 cannot keep possession of the land, and refuse to pay his bond and mort- 
 gage, because he may suspect that his grantor had no title to the land, when 
 he gave the warrantee deed. If the borrowed horse should be taken from 
 the borrower, under an execution against the lender, or by some person 
 from whom the horse had been stolen, the borrower would have a good 
 excuse for not returning him according to his promise. So, if the farmer 
 had been deprived of the goods, and the merchant of the wheat, because the 
 vendors had no title, they would have good cause to refuse payment ; 
 and if the lessee should be turned out of possession, by some person hav- 
 ing a better title than the lessor, he might then deny the title of the 
 lessor, and refuse to pay rent ; and if his lease contained a covenant of 
 warranty, he w T ould have a right of action against his lessor, for a breach 
 of that covenant. And if the man who entered under a warrantee deed 
 be evicted, he can resist the payment of the bond and mortgage which he 
 gave for the purchase money, and sue his warrantor and recover dama- 
 ges. But, by the terms of the above bill, every person who has taken a lease 
 or grant in fee, for life, or a term exceeding ten years, and any person 
 holding under such lease or grant, may whenever an action shall be com- 
 menced against him to recover possession of the land, for the non-per- 
 formance of any condition contained in the grant or lease, deny the va- 
 lidity of the original title, under which such grant or lease was made. 
 And, unless the person bringing the action, can show that the person who 
 gave the lease or grant, had a title to the land when the lease or grant 
 was made, the person now in possession, is to hold the land discharged 
 of all the covenants and conditions in the lease, and in violation of his 
 covenant that he would pay an annual rent, and in default thereof, that 
 the lessor might re-enter and eject him. The policy of the legislature, 
 not only of the colony, but, of the state of New York, has been to quiet 
 the title to lands, and put an end to litigation. The legislature of the 
 colony, on the 30th October, 1710, passed an act, " enacting, that every 
 person or persons who, by themselves, their tenants or servants, or his or 
 their assignee or assigns, grantees, their ancestors or others under whom 
 they claim, have been seized to their own use or uses, or taken the rents, 
 issues and profits of any messuages, houses, tenements, lands and here- 
 ditament whatsoever in this colony, in his or their own proper right, for 
 
4 
 
 the space of ten years then last past, and should so continue, whether in 
 their own persons, or by any other person under them in possession as 
 aforesaid, without any claim, either by actual entry, and possession there- 
 upon continued, or suit to be prosecuted to effect until the 1st day of Sep- 
 tember, 1713. Should from and after that clay, and forever, be adjudged, 
 deemed and taken to be the true, rightful and lawful owner of such mes- 
 suage, houses, lands, tenements and hereditaments respectively, and should 
 and might have, hold and enjoy the same. Any claim, right, title, de- 
 mand or pretence to the contrary thereof, by or from any person or per- 
 sons whatsoever." 
 
 This act shows, that the possession of a tenant or lessee t was to en- 
 ure to the benefit of the lessor. That if upon the 30th day of October, 
 1700, any person had given a lease in fee, reserving rent, and he had 
 been in the receipt of the rents from 1700 to the 1st of September, 
 1713, his title to the rents and all the covenants in the lease became per- 
 fect, as against all persons then having any adverse claim. There are, 
 doubtless, many leases in the state which were given before 1700, and 
 under which lands are now held, and under which the rent has been re- 
 gularly paid, until the lessee was lately told, that he ought now to have 
 the right to compel his lessor or his assigns to prove, that the person 
 who gave the lease had a title when the lease was given — but, he now 
 refuses to pay the rent, and takes good care, that there shall be no suffi- 
 cient distress found on the land ; and the only remedy left to the lessor, 
 is to bring an action of ejectment to recover possession of the land in 
 order to compel a payment of the rent. The lessee, or those claiming 
 under the lease, now ask the legislature to pass an act, the object of 
 which is to take from the lessor or his assignee, that which is now per- 
 fect evidence, and it may be, the only evidence of title which it is in the 
 power of the lessor or his assigns to produce. If that title was made 
 perfect by the act above referred to, no witness can be found who can 
 prove a possession from 1700 to 1713, but the lease might be evidence 
 of such possession and of a perfect title in the lessor ; and why should 
 the legislature rob the lessor or his assigns of that evidence for no other 
 purpose, but to enable the lessee or his assigns to violate the covenants 
 in the lease, — that in case the rent was in arrear and no sufficient dis- 
 tress could be found on the land, the lessor or his heirs and assigns 
 might re-enter and eject the lessee, or any person holding under the 
 lease ? On the 26th February, 1788, the legislature of this state pass- 
 
ed an act which commenced with the following recital : " Whereas it 
 is necessary for the peace of society, that certain times be limited for 
 bringing all actions and suits at law." By the first section of that act, 
 it was in substance enacted that the people of the state of New York 
 should not, nor would after the 1st day of January, 1800, sue any person 
 for or in any wise concerning any manors, lands, tenements, rents or 
 hereditaments, or for or in any wise concerning the revenues, issues or 
 profits thereof, or make any title, claim or demand of, in or to the same 
 or any of them, by reason of any title which had not, or should not there- 
 after first accrue and grow within forty years next before commencing 
 such action. The right and title of the people of the state to all the 
 ungranted lands in the state is held to have accrued on the 4th day of 
 July, 1776, when the declaration of Independence was published. If 
 any person was then in possession of land belonging to the people of 
 the state claiming it as his own, his title became perfect on the 4th day 
 of July, 1816 ; after that day the people of the state could not question 
 his title. The counsel for the Anti-Renters when before the legislative 
 committee, was understood to insist, that this statute of limitation did 
 not operate in favor of lessors, but only in favor of the lessees and 
 their assigns, who were in the actual occupation of the land leased ; but, 
 it is believed, that this statute was intended to secure, and did secure, to 
 lessors as well as to lessees, the rights and interests which they respec- 
 tively had, or claimed to have, and which the people should not claim 
 within the time limited by law. It was never intended to secure to 
 any one more than he claimed, if he claimed an estate for years or for 
 life ; that estate, and not a fee was secured to him. By the first section 
 it was further enacted, " that all and every person or persons, bodies 
 politic or corporate, their heirs and successors, and all claiming by, from 
 or under them, or any of them, for and according to their and every 
 their several estates and interests which they have, or claim to have, or 
 hereafter shall or may have, or claim to have in the same respectively, 
 shall at all times hereafter, quietly and freely, have, hold and enjoy, 
 against the people of the state of New York claiming by any title which 
 hath not first accrued or grown, or which shall not thereafter first accrue or 
 grow within the space of forty years, all and singular the manors, lands, 
 tenements, rents and hereditaments whatever (other than liberties and 
 franchises) which he or they, or his or their, or any of their ancestors or 
 predecessors, or those from whom, by or under whom he or they do, or 
 
6 
 
 hereafter shall claim or have, or hereafter shall have, held or enjoyed, or 
 take the rents, revenues, issues and profits thereof by the space of forty 
 years next before the filing, issuing or commencing of every such action, 
 &c." 
 
 Many leases for years, for life or in fee were given before that act was 
 passed, but a much greater number have been given since that time, and 
 more than forty years ago ; in which the lessees respectively covenant- 
 ed to pay an annual rent, and if the rent should be in arrear, and no 
 sufficient distress could be found on the land leased, that then the lessor, his 
 heirs or assigns might re-enter and eject the lessee. When a lease was 
 given before or since that statute, what estate and interest has the lessor 
 and lessee respectively had or claimed to have ? The lessees have had, 
 or claimed to have the estate discribed in the lease, whether for years, for 
 life or in fee, subject to the payment of the rent and the performance of 
 the covenants and conditions in the lease on his part to be performed, 
 and the lessors have had, or claimed to have, the right to the rent and 
 to re-enter and eject the lessee in case he did any act giving to the 
 lessor the right to re-enter. If the land leased did in truth belong to 
 people of the state, when the lease was executed, and the people have suf- 
 fered the lessee to remain in possession twenty years, claiming under the 
 lease, and suffered the lessor to receive the rents, the title of the people 
 is gone, and the title of the lessor and lessee is now as perfect as if the 
 lessor had had a patent under the great seal of the state, when the lease 
 was given. For, by the Revised Statutes, the people of the state cannot 
 bring an action to recover land, except within twenty years next, after the 
 title shall accrue. 2 R. S., p. 221, sec. 1. A title made good by a sta- 
 tute of limitation, is as much under the protection of the constitution and 
 law, as a title acquired in any other way. If a man had possession of 
 land so long, that neither the people of the state nor any individual has 
 the right to turn him out of possession, what better title can he have ? 
 Such a title cannot be taken from him for public use, without a just com- 
 pensation, and it cannot be taken from him for a private purpose without 
 his consent. 4 HHPs Rep., 150. 
 
 To take from a man the evidence of his title, or to forbid him to use it 
 upon the trial of his 'cause, as effectually take from him his estate, as to 
 confiscate it by an act of the legislature. By the 1 3th section of the con- 
 stitution of 1777, it was declared, " that no member of the state should 
 be disfranchished or deprived of any of the rights or privileges secured 
 
7 
 
 to the subjects of this state by that constitution, unless by the law of the 
 land or the judgment of his peers." 
 
 One of the rights secured to every citizen of the state by that consti- 
 tution was, to have the full benefit of all such contracts as were lawfully 
 made to him. If he was a lessor, the lease signed by the lessee, was while 
 the lessee remained in possession sufficient evidence of the lessors title. 
 He had a right to say to the lessee, while you hold under that lease you 
 cannot dispute my title to the rent, or to re-enter according to the lease. 
 Can that right be taken from the lessor, even for public purposes without 
 just compensation ? 
 
 It was stated before the said committee, on behalf of some of the 
 lessees in the county of Delaware, as a matter of serious cause of com- 
 plaint, that the proprietors of the Hardenbergh patent, which was grant- 
 ed in 1708, had wrongfully claimed under that grant, the land between 
 the east and west branches of the Delaware river. It was insisted, that 
 that patent did not in truth extend beyond the east branch of that river, 
 and that the lessees therefore, now ought to have the right to compel the 
 lessors, or persons claiming under them, to prove that the lessors had a 
 valid title when the leases were given. The boundaries of that patent are 
 truly set forth in 10th Johnson's Rep., 429, and neither the eastern or west- 
 ern branch of the Delaware river is named in the grant, " a certain small 
 liver, commonly known by the name of CartwrighVs Kill" is mentioned 
 as the western boundary of the patent. The dispute must have been as 
 to which of the branches of the Delaware was known as " CartwrighVs 
 Kill." Who can now swear what small river was, one hundred and 
 thirty-eight years ago, commonly known by the name of " CartwrighVs 
 Kill?" 
 
 The proprietors of that patent insisted, that that was the name of the 
 west branch of the Delaware ; and the people of the state have acquiesced 
 in that claim until this time ; and can it now be expedient, equitable or 
 just, to seek to disturb the location of a patent after the lapse of one 
 hundred and thirty-eight years ? If that patent was originally located 
 by mistake or fraud, those who committed that fraud or mistake have 
 long since ceased to have any interest in the lands lying between the 
 eastern and western branches of the Delaware. The persons who now 
 own that land, are probably bona fide purchasers, and have given leases 
 of it in perfect good faith. Why take their estates away, to give them 
 to their lessees ? Or why impose on them at this day the expense of try- 
 
8 
 
 ing to prove what stream of water was in 1708 " commonly known by 
 the name of CartwrighVs Kill?" 
 
 A gentleman from Columbia county, on behalf of the lessees, complain- 
 ed that under the grant of Livingston's manor, the grantors had taken 
 possession of much more land than w T as covered by the grant. That 
 grant was made in 1715 — one hundred and thirty-one years ago, and 
 recites three previous grants ; one in 1684, one in 1685, and the other 
 in 1686. The grant of the manor professes to give the boundaries with 
 great particularity, and they doubtless might, at the time of the grant, 
 have been easily ascertained ; but had no location been made, it w r ould 
 now probably be very difficult, if not impossible, to discover many of the 
 monuments mentioned in the grant. The place of beginning is a place 
 called by the Indians Wahancassock ; one monument to which a line is to 
 be run, is a place where the Indians have laid several heaps of stones ; 
 another, a pile of stones on a hill ; another, five linden or lime trees, all 
 marked with Saint Andrew's Cross ; other monuments are trees marked 
 with L. It is doubtful, whether one of these monuments can now be 
 found. The probability is, that the lands in this manor have been held 
 and claimed by the proprietors and their tenants more than fifty years. 
 Why then call upon the lessors who now own the manor, to prove where 
 the linden tress marked with Saint Andrew 's Cross stood one hundred 
 and thirty-one years ago, or submit to lose their estates ? If in locating 
 the Hardenbergh patent or Livingston's manor the proprietors originally 
 claimed too much land, how have the lessees who now T complain been 
 injured by that mis-location 1 The lessees have not been disturbed by any 
 adverse claim, nor have they the least reason to fear any such distur- 
 bance. They have now the full benefit of their respective contracts. 
 
 On the part of the proprietors of the manor of Rensselaenvyck, an 
 offer was made to submit to the examination of the committee, all the 
 muniments of title in relation to that manor ; but the offer did not [ap- 
 pear to be acceptable to the lessees. In relation to that manor, it has 
 been alleged as an apology for the present anti-rent excitement, and as 
 a reason for the interference of the legislature, that most of the lessees 
 were ignorant Germans and Hollanders — w T ho did not know what cove- 
 nants and conditions were in the leases, and if they did know T , they were 
 compelled to sign them, or abandon valuable improvements. Most of 
 this allegation must be founded in ignorance or mistake. In 1767, a sur- 
 vey and large map of the manor w r as made, and all the roads, the location 
 
9 
 
 t)f every dwelling house were designated upon the map, and on it is 
 written the name of every tenant then on the manor. At that time, 
 there were only one hundred and forty-four tenants on that part of the 
 manor, on the west side of the Hudson river, one hundred and seven of 
 whom, then had leases in fee. 
 
 In 1769 the grandfather of the present proprietor of the manor died. 
 The late patroon was then an infant, and he did not come of age until 
 the fall of 1785. During his minority no person had authority to make 
 contracts or give leases, binding on him after he came of age ; but many 
 short leases for years were given by the executors, all of which expired 
 at or befoie he was of age. In the spring of 17S6, Gen. Ten Broeck 
 who had had the principal management of the estate, delivered over to 
 the late patroon all the muniments of the title to the manor, and a list 
 of the tenants thereon, at that time there were about five hundred on the 
 west part of the manor. The four western towns, now in the county of 
 Albany, were then almost an entire wilderness, and up to that time 
 very few farms had been accurately surveyed ; but soon after, the whole 
 manor was surveyed, and leases given as fast as the survey could be made. 
 The late patroon gave all the leases which ever were given fur lands in the 
 manor on the west side of the river, except one hundred and seven ; 
 and he, if any one, must have committed ail the frauds which are now- 
 alleged to have been committed upon the lessees when they executed 
 the leases. If he committed the gross and multiplied frauds now com- 
 plained of, how did it happen that he, during his whole life was al- 
 most universally respected by the lessees and all others ? How did it 
 happen that those frauds were not discovered until after his death and 
 the death of the lessees who were defrauded ? It is not true, that the 
 lessees were generally ignorant Germans and Hollanders — not one-tenth 
 part of the leases were given before the revolutionary war — no leases in 
 fee were given between .1769 and 1786 ; few, if any, ignorant Germans 
 or Hollanders came to this country during the revolutionary war, except 
 German soldiers who were taken prisoners. Before the revolutionary 
 war, Dutchmen were to be found in cities — on the best lands along the 
 Hudson and Mohawk rivers, and the Schoharie kill ; but few, very few 
 of them could then have been found upon mountains. The leases furnish 
 evidence that the lessees were not generally ignorant and illiterate men. 
 More than four-fifths of them wrote their names in English ; not more 
 than four out of a hundred wrote their names in German or Dutch, and 
 
 K 2 
 
 m 
 
10 
 
 the residue made their marks ; and let it be remembered that the leases 
 signed in German and Dutch, and with a mark, are of the same form 
 as those signed by the most intelligent lessee : it is idle, therefore, to 
 suppose that it was not generally known by the lessees, what covenants 
 and conditions were in the leases. Most of the leases for lands, in the 
 towns of Knox, Rensselaerville, Westerlo and Bern, were given be- 
 tween 1791 and 1800; and it is well known that the Helderbergh war 
 commenced in those towns, and not in the eastern towns where Dutch 
 lessees were numerous. In the present town of Watervliet, where a great- 
 er part of the original lessees were Dutchmen, than in any other town 
 in the county, the Anti-rent excitement has found very little encourage- 
 ment or support. A great majority of the persons who now hold under 
 the leases, especially in the four western towns in the county of Albany, 
 are not originally lessees, or the heirs of lessees — but men who have, 
 with a full knowledge of the covenants and conditions in the leases, pur- 
 chased from the original lessees, or their heirs. "What just cause of 
 complaint have they ? What reason have they to lash themselves into 
 a rage, in relation to the odious character of the leases. No man com- 
 pelled them to purchase the farms held under those leases. If they sup- 
 posed it was degrading to freemen, or anti-whig, or anti-republican to 
 agree to pay a rent in wheat, hens, and a day's work, why did they vo- 
 luntarily purchase farms, the rent of which was to be so paid ? Did 
 they purchase the farms with intent to withhold the rent and violate all 
 the covenants and conditions in the leases ? And must the law and con- 
 stitution of the state, and of)the United States, be broken down in order 
 to allay the excitement of such men ? 
 
 The above bill is without object, unless as the law now is, a lessee 
 cannot while in possession deny the lessor's title. The bill is without 
 object, unless the lease as between the lessor and lessee, is conclusive evi* 
 dence of the lessor's title : a lease executed by the lessee is an admission 
 under his hand and seal, that the lessor had, when he executed the lease 
 a title to the land leased. The covenant of the lessee contained in the 
 lease, that he would pay an annual rent, and if the rent was in arrear, 
 the lessor might distrain, and if no sufficient distress could be found, that 
 then the lessor might re-enter and eject the lessee or any person claim- 
 ing under him, is a contract from the obligation of which, the lessee can- 
 not be relieved consistently, with that clause in the constitution of the 
 T '- ; <ed States, which forbids any state to "pass any law impairing the 
 
11 
 
 obligation of contracts.'" The legislature can as well " grant a title of 
 nobility" as to pass a law impairing the obligation of contracts. 
 
 If, as the law now is, all the evidence which a lessor need give to en- 
 title himself to recover possession of the land leased, is to prove the exe- 
 cution of the lease by the lessee, and that he has clone or omitted to do 
 some act, by which he has given to the lessor a right to re-enter, by 
 what authority can the legislature now have, to say to him, " such shall 
 not hereafter be the effect of the lease; the lessee shall no longer be 
 bound by his contract; you shall not recover unless you can prove that 
 when you executed the lease, you had a perfect title ? No matter wheth- 
 er your title has since become perfect by force of any statute of limita- 
 tion, or whether you have since purchased in all outstanding claims, or 
 whether your title depends upon the question whether a patent granted 
 one hundred and fifty years ago, was then located in exact conformity to 
 the monuments mentioned in the grant, not one of which can now be 
 found. You shall be bound to show, that you had forty, fifty, sixty or 
 seventy years ago, a perfect title to the land leased, or you shall no longer 
 be entitled to the rent, nor the benefit of any covenants in the lease, and 
 your lessee shall hereafter hold the land, discharged of all the covenants 
 in the lease V If this would not be taking one man's estate and giving 
 it to others, what would it be? What reason can be assigned for such 
 legislation, other than that the men to be robbed, have few votes to give 
 compared with those who are to be benefited by the robbery ? If the 
 principle of the bill be a just and sound one, why not extend it to all 
 leases \ The lessee who has been fifty years in possession under a lease, 
 has no reason whatever to doubt the title of the lessor, while the tenant 
 who has been in possession but six months or a year, has much less evi- 
 dence of the validity of title under which he entered ; the only answer 
 must be, tenants for short terms have not yet joined the Anti-rent stand- 
 ard and given a public pledge that they will vote for no man unless he is 
 a friend " to their cause" 
 
 Why not extend the principle to notes, bonds and mortgages ? Sup- 
 pose C, seventy years ago owned, or claimed to own, a large tract of 
 land ; A took a lease in fee with warranty, and covenanted that he would 
 pay a rent of twenty dollars a year, and if the rent was not paid, C 
 might re-enter and eject him. B at the same time took a deed in fee 
 with warranty, and gave a bond and mortgage for the purchase money 
 with interest ; the mortgage contained a power, authorizing C to sell the 
 
12 
 
 land at public auction, in case the mortgage was not paid on demand- 
 A has regularly paid his rent, and B as regularly his interest up to the 
 commencement of 1840, and they now both come to the legislature for 
 relief. A wants a law passed, that before C shall be allowed to re-enter 
 under the lease, he shall prove in a court, that he had a perfect title when 
 the lease was given. B wants a law forbidding C to sell, by virtue of 
 the po wer in the mortgage, until he proves that he had a title when he 
 gave the deed. Which of the two repudiators would be most entitled to 
 legislative favor ? A can pay his rent without inconvenience ; but B 
 must sell his farm, or he cannot pay his bond and mortgage. 
 
 As the law now is, the question whether the lessor had a good title 
 when the lease was given, is wholly immaterial, as far as it respects 
 his rights to re-enter; that right, in no degree, depends upon his title 
 w T hen the lease was executed, but, upon the covenants in the lease, and 
 whether any of these covenants have been so violated, as to give a right 
 to re-enter to the lessors — suppose a lessor should commence an action of 
 ejectment against his lessee, and on the trial give in evidence Indian 
 deeds, then Dutch grants, English and colonial confirmations, wills from 
 fifty to one hundred and fifty years old, then an old surveyor to prove that 
 the premises in question were within the grant, then the oldest man in 
 the county to prove by reputation his pedigree, and thus prove that he 
 had seventy years ago a good title, would that entitle him to recover 1 
 No ! The lessee would then give the lease in evidence ; and he might 
 well say to the lessor, " there sir, by that lease seventy years ago, you 
 granted to me all the estate you then had in the land, which you now 
 seek to recover, on condition that I should pay certain rents and perform 
 other covenants ; you might as well have spent a week to prove that you 
 own all Oregon, as in showing your old Indian deeds and Dutch grants, 
 and in proving that your grandfather's grandfather was a patentee. Your 
 counsel know, that your right to recover did not depend upon the title 
 you had when you gave the lease, but upon my covenants in the lease, 
 and my violation of them ; now give the evidence, with which the trial 
 ought to have commenced, prove if you can, that I have violated any 
 covenant in the lease which has give to you a right of re-entry." If a lessor, 
 or any person claiming under him, shall under the above bill be unne- 
 cessarily compelled to prove that the lessor had a good title when the 
 lease was given, would it not be perfectly reasonable to add to the bill, 
 the following clause : " and in every such action in which the defendant 
 
13 
 
 shall deny the validity of the title under which the grant or lease was 
 made, and the plaintiff shall establish the validity of that title, he shall 
 be entitled to recover, notwithstanding such grant or lease, or any pos- 
 session uniler it." If a defendant chooses to put his defence upon a plea 
 denying the validity of the title under which he entered, is it unreason- 
 able that he should abide by the consequences of his own folly ? If a 
 lessor ought to be compelled to prove that he had a good title when he 
 made the lease, before he is allowed to recover the rent, which the lessee 
 covenanted to pay. He who sells a load of wheat, a yoke of oxen, or 
 a horse on credit, should be compelled to prove his title before he is al- 
 lowed to recover the price which the vendee promised to pay, but would 
 a law, requiring that to be done, be a wise innovation ? Suppose a 
 rich Anti-Renter who wished to have money on interest, had seven years 
 ago sold a favorite span of horses for five hundred dollars, payable in 
 six years, with annual interest, and taken a note therefor, suppose he 
 lately called upon the purchaser and presented the note for payment, 
 and the purchaser had gravely answered the application by saying, 
 " it is true that I purchased the horses and gave the note, it is true 
 that you gave me a bill of sale of the horses, with a warranty of 
 title, it is also true that I have had the horses so long, that my title is 
 now perfect ; but I have recently heard insinuations made against your 
 title, one man hinted that you stole the horses in Canada,' another, that 
 many years ago you were amongst the Cherokee Indians, and while 
 there, you got an Indian half drunk, and then cheated him out of the 
 horses for a bottle of rum ; another man says, that a poor man owed 
 you three dollars rent, you issued a distress warrant and sold the horses, 
 and purchased them for fifty cents. I hope no man will for one moment 
 believe, that I am so dishonest as to be willing to cheat you out of a 
 cent, but under the circumstances of the case, my conscience will not 
 allow me to pay that note, until you shall in a court of justice, prove all 
 these stories to be false — and that you had, when you sold the horses 
 to me, a fair title to them. Oh sir, you need not begin to bluster and look 
 surprised. What can be more reasonable, then that you should send to 
 Canada, or to the Cherokee Nation for a witness to prove that you came 
 fairly by the horses ? I have taken counsel upon this matter, and have 
 been informed that it is againt the fundamental principles of our repub- 
 lican institutions to hold, that I admitted your title to the horses by purchas- 
 ing and receiving them from you. Previous to the last election, I stated 
 the case to some counsellors, learned in the law, who wished to become 
 
L4 
 
 members of the legislature, and they told me, that it was perfectly fair 
 and honorable in me, to keep the horses and refuse to pay for them, until 
 you should prove that they were your's bona fide when you sold them ; 
 that it would be most outrageously oppressive to compel me to pay for 
 the horses, while I chose to pretend that, there were doubts as to your 
 title, or that in such refusal to pay, there was anything like repudiation, 
 and, that if the law was not then such as to protect me in keeping 
 both the horses and the money, — if I would aid them to get into the legis- 
 lature, they would have the law altered so as to suit my case. Let me 
 whisper in your ear, that I secured to them a majority of seven thousand ! 
 I understand that you are an Anti-Renter in full communion. That 
 fifty years ago, John Jackson took a lease in fee, with warranty of the 
 farm you now occupy, that he remained in possession twenty-five years 
 and regularly paid the rent, that you then took an assignment of the 
 lease, subject to the performance of all the covenants and conditions in 
 the lease, and have paid the rent down to 1840 ; and now, you not only 
 refuse to pay rent as you covenanted to do, but have entered into a com- 
 bination with all the Anti-Renters in the third district, to vote for no 
 man for governor, senators, member of assembly, member of the conven- 
 tion, or any other elective officer unless he will pledge himself to do all 
 in his power to release you from the obligation of the covenants in your 
 lease, and if that cannot be done under the consitution as it now is, the 
 constitution which is to be, must be so framed as to discharge you from 
 the payment of rent, or the performance of any covenant in the lease. 
 Now sir, tell me which of us is the most honest 1 Tell me which of us 
 is the most of a repudiator ? Your farm has been held fifty years under 
 the lease, you know, therefore, that the title under which you hold can- 
 not be questioned ; but I have had the horses only seven years — and you 
 pretend that, that ought to satisfy me that you had title to them." You 
 cannot pretend that the Anti-rent excitement was got up on account of 
 the reservation of a quarter sale in your lease. No sheriff has ever been 
 tarred and feathered, shot at or murdered, when attempting to enforce 
 the payment of a quarter sale ; but all these outrages have been commit- 
 ted when legal efforts were made to collect rents ; you say that you have 
 never had on an Indian dress — that you have not aided in tarring and 
 feathering, shooting at, or murdering a sheriff; but you have not said 
 a word, or lifted a finger to prevent these violations of law, on the con- 
 trary, you have attended public meetings, you have addressed men less 
 
15 
 
 informed than yourself, you have made them believe that ihey were op- 
 pressed, — that they were vassals and slaves while they submitted to hold 
 lands under a lease, that men who were oppressed ought to band to- 
 gether and resist oppression by force — that the next day John Doe's pro- 
 perty was to be sold on execution for rent, and that every man among 
 them who had strong arms and a stout heart, ought to be present at the 
 sale in his Indian dress, with a bucket of tar, a bag of feathers, a toma- 
 hawk or rifle, and in this way you have occasioned more expense to 
 the people than all the rents due from the lessees on any manor in the 
 state, and encouraged open resistance to the laws, and that has already 
 led, as you expected and intended it should, to murder after murder. 
 
 It is now submitted to the friends of law and order, whether the cause 
 of the Anti-Renters as set forth and embodied in the above bill, is one 
 so important and of such transcendent merit, that a rule of law T , sanc- 
 tioned by the wisdom of ages, ought now to be overthrown, to enable 
 them to violate with impunity, the obligation of their own contracts de- 
 liberately made and upon full consideration ? If it shall be found, that 
 they ask for more than can be granted to them under the constitution of 
 this state as it now is, are they then to have the control of the election of 
 delegates to the convention, in order that a constitution may be formed 
 for the purpose of exempting them from the payment of rents, which 
 they have covenanted to pay ? 
 
 Other bills have been introduced into the assembly, which are supposed 
 to have been drawn up at the request, and for the special benefit of the 
 Anti-Renters. One of them is entitled " an act to equalize taxation" 
 by which it is proposed, that rents reserved in leases in fee, or for one or 
 more lives, or for a term exceeding ten years, and chargeable on lands, 
 shall be assessed in the town or ward in which such lands are situate, to 
 the person entitled to receive the same, as 'personal estate at a principal 
 sum, the interest of which, at six per cent per annum, shall produce a 
 sum equal to such annual rents. Rents due from solvent lessees are be- 
 lieved to be, debts due from solvent debtors within the meaning of the 
 Revised Statutes, part 1, chap. 13, title 1, sec. 3, and to be now taxable 
 as personal estate in the town or ward in which the person entitled to 
 such rents, may reside. Rents, whether reserved upon leases in fee, for 
 lives or for one or more years, the moment they become due, aie personal 
 estate, and on the death of the owner, go to his personal representative* 
 not to his heirs at law. If an annual rent of twenty-four dollars, has be- 
 
16 
 
 come due on a lease tor more than ten years from a solvent lessee, the 
 owner of the rent is now liable to be taxed for that sum as personal es- 
 tate. So if an annual rent of the same amount has become due on a 
 lease for ten years or less, the owner of that rent is now liable to be 
 ta>*ed therefor, the same amount as the owner of the other rent, if they 
 happen to leside in the same town. If a tax of one percent on the 
 amount of each man's estate, be necessary for the public service ; the 
 owners of the rent above mentioned, would have each to pay a tax of 
 twenty-four cents. But this equality is to be destroyed, if the proposed 
 bill becomes a law, then the owner of the rent on the lease for eleven 
 years, is not to be taxed on the amount of twenty-four dollars, but on a 
 sum which, at six per cent per annum, will produce twenty-four dollars, 
 to wit, four hundred dollars, and his tax at one per cent, will be four 
 dollars, while the tax on the owner of the other annual rent recovered on a 
 lease for ten years or less, will remain at twenty-four cents. One would 
 have to pay a tax amounting to one-sixth part of his income, while the 
 other would have to pay only Gnc-hundreth part of his income. The in- 
 come of each being of precisely the same value. Is it not a misnomer 
 to call this " an act to equalize taxation" ? which will increase the tax on 
 one man, more than sixteen fold, and leave the tax on another, the same 
 as it now is, each of them having property of the same character and of 
 the same value ? Why are the owners of rents reserved upon leases in 
 fee, for one or more lives or for a term exceeding ten years, selected as 
 the victims of taxation, and the owners of rents reserved on leases for a 
 term of ten or a less number of years, left untaxed ? Why is it pro- 
 posed to add to the taxes of some rent owners the amount of one-sixth 
 part of their income, and not add a cent to the taxes of other owners of 
 the same description of property ? Will it not be an abuse of the power 
 to impose taxes, to tax the income of one man sixteen times more than an 
 income of the same amount and of the same character, belonging to 
 another ? It may be said, that the proposed tax, is not a tax on rents 
 after they become due, but on the light or title to rents reserved, or a 
 tax on an incorporeal hereditament, not now taxable, by force of part 1, 
 chapter 13, title 1, section 1, of the Revised Statutes, which in terms 
 only includes " lands and personal estate" Admit that the proposed bill 
 was intended to introduce a new subject of taxation, that it was intended 
 to impose a tax upon income. That will furnish no justification for the 
 gross inequality in taxation, which the bill, if it becomes a law, will 
 
17 
 
 produce. The object of the legislature, has heretofore been, so to impose 
 taxes, as to make every man bear the public burthen, in proportion to 
 his wealth, and while that object is fairly pursued, no man can have just 
 cause of complaint. If the owners of a right to rent are now for the 
 first time to be taxed for that description of property, let the law extend 
 to every owner of such property. Suppose that the owners of horses 
 had not heretofore been taxed for that description of property, would not 
 a law imposing a tax, on B, for six horses owned by him, and which 
 should leave C untaxed, although he had as many horses as B, and of 
 equal value, be regarded as partial and unjust ? But is not the proposed 
 tax upon the right to rents equally objectionable, if confined to rents re- 
 served on leases in fee, for life or a term exceeding ten years ? An an- 
 nual rent, of twenty-four dollars reserved on a lease for ten years, is dur- 
 ing the ten years of the same value, as an annual rent of the same amount, 
 reserved on a lease for a much longer term. The sum, which, at six per 
 cent per annum, will produce a sum equal to the annual rent, is a sum to 
 which the lessor, whether in fee, or for ten years or less, is not and can- 
 not be entitled. All the lessor in fee can claim, is the annual rent, un- 
 less the lessee should forfeit his estate. A lessee for life or for years has a 
 reversion, and when his right to the rent ceases, the right to the land 
 itself returns to him ; he has therefore a much greater interest requiring 
 the protection of the law, than the lessor in fee, and it would seem that, 
 if either ought to pay more than the other when their rents are equal, he 
 ought to pay the most, who is soonest to have the possession of the land 
 leased. Although the legislature have power to impose taxes, it would 
 be a violation of the spirit, if not the letter of the constitution, to impose 
 a tax, not because it was needed to defray the public expenses, but to 
 coerce any individual to sell, or abandon any description of property. 
 
 FAIR PLAY. 
 
 Albany, March 17, 1846.