Nine-tenths of the Law - Hannah Dobbz

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as Massachusetts began a series of preemptive measures to transfer title to squatters in those states. Massachusetts (still in possession of Maine at the time) recognized occupancy rights of squatters who had improved the land, particularly in the Maine territory, which Massachusetts had hoped to settle.[a] Not having title to land was common, at one time, particularly in the original colonies and before the revolution. In 1776, Virginia handed out 400 acres free of charge to each settler, and the next year North Carolina gave away 640 acres of unclaimed land to any settler who wanted it. The faster land was transferred to private ­ownership, the faster the government could accrue revenue from it.[10]

      The United States continued to voraciously consume land. In 1819, the federal government acquired Florida from Spain. In 1845, it acquired Texas from the Republic of Texas. In 1846, it acquired Oregon territory from Great Britain by treaty. In 1848, the Mexican Cession granted the United States California, Nevada, New Mexico, most of Arizona, and parts of Colorado and Utah. The 1853 Gadsden Purchase transferred the rest of Arizona, and in 1867 the U.S. acquired Alaska from Russia. Over the course of fifty years, the country padded itself by 300 percent. It was described at the time as being the “best system in the world.”[11]

      There was something fishy about the pattern of land distribution, however. With the government continuously selling the public domain in order to fund its ever-expanding presence, matters of equitable distribution were overlooked. By 1792, for example, only six people owned half of the current state of New York.[12] According to historian Paul W. Gates, “In New York, revenue and even promotion of settlements were of minor importance. Instead, the emphasis was on large grants of members of the governor’s council and other favorite individuals and families, with all settlement or improvement requirements quite generally disregarded.”[13]

      Gates explains further that independence from Britain scarcely impacted the course of land management in the state. At the time of the first national census in 1790, New York was significantly stunted in terms of population and economic growth when compared with Pennsylvania, Massachusetts, Virginia, and North Carolina, despite its longer history. This was because a small number of land barons owned a very large ­acreage of land.[14]

      One of the most incredible stories to come from New York’s bizarre history of land tenure—and resistance to its injustices—is that of Rensselaerwyck and the Anti-Rent War, which began on July 4, 1839, and marked the beginning of a new era in land law in the Hudson River Valley. The twenty-four square miles of Rensselaerwyck (which is now Albany and Rensselaer Counties) was owned by Stephen Van Rensselaer III, and had been in the family for 207 years since New York was New Netherland. The Van Rensselaers ran their manor as a patroonship—an archaic form of feudalism rooted in Dutch property law. Under the patroonship, each of the 3,063 families on the manor signed leases that lasted “forever” and amounted to, in their own words, “voluntary slavery.” The Van Rensselaers had successfully peopled their land by offering prospective settlers the first seven years rent free. Many of the contracts had also been signed by very poor or illiterate settlers who did not understand the outrageous terms of the lease.[15]

      When Stephen III, whom many had regarded as the “richest man in America,” died in 1839, his tenants were relieved to think that their unpaid rents might be forgiven. They were infuriated to learn that his son, Stephen IV, intended to collect the back-rents, or rents in arrears, and apply them toward his own personal debt. The tenants refused to pay. When the under-sheriff arrived to collect the rents, anti-renter Isaac Hungerford stopped him and, while brandishing a large jackknife, said, “You had better go home and be in some other business. We have pledged ourselves that no officer shall travel through here to serve process for the patroon. We have made up our minds to die, and we are ready to die in the cause of resisting any officer that should come there on the patroon’s business.”

      The next time a Van Rensselaer hireling came to serve the tenants writs, they set a tar barrel on fire and told the collector that they would spare his life if he burned all the writs. When he did this, they made him buy a round of drinks for everyone present—after which they took him to burn all the writs that he had already served, and then had him buy two more rounds for everyone at the tavern. After each round, the tenants lit another barrel on fire and debated whether or not to tar and feather the man. When police came to the manor to restore order, they were turned away by 300 anti-renters, wielding clubs and shouting, “Down with rent!” The next time, police were met by 1,500–1,800 protesters, who blocked the road completely.

      Finally, just before the government brought in 2,000 military troops from New York City, Governor William H. Seward gave the anti-renters one last warning. He said, “Organized resistance to legal process is insurrection, and if death ensue the penalties of treason and murder are incurred. The only lawful means to obtain relief from any injuries or redress of any grievances of which they complain are by application to the courts of justice and to the legislature.”

      To avoid a stalemate, both sides heeded Seward’s suggestion and attempted to employ the law to remedy their dilemma. But in order to legally deconstruct the disaster of Rensselaerwyck, anti-renters and the State of New York alike would have to determine how Rensselaerwyck was legally constructed in the first place. Every person involved was equally baffled about how the estate could have ever legally come to be.

      While most property law in the United States is based on English Common Law, the brand of feudalism practiced at Rensselaerwyck had been outlawed by Parliament and King Edward I with the statute Quia Emptores almost 600 years earlier. This is explained by New York having been under Dutch control before the British acquired it. No American lawyer by the time of the revolution remembered the Quia Emptores statute; thus, it was never migrated into American property law.

      Quia Emptores outlawed the form of fee-farm rent known as rent service. The closest statute that America had to the British Quia Emptores was the Act Concerning Tenures of 1787, which banned feudal properties and established all real estate as allodial—that is, owned absolutely and independently of a lord. If nothing else, the Act Concerning Tenures should have at least converted all rent-service leases into rent-charge leases, but this statute appeared to have been largely ignored in Upstate New York until 1839 when tenants began examining the legal dilemma.

      If anything was more difficult to explain than where this patroonship came from, it was how to get rid of it. Any suggested method of taking away a person’s “vested property rights” was immediately dismissed as unconstitutional. The only legal way to divest the Van Rensselaers of their land was through the use of eminent domain. A process still used today, eminent domain allows the state to appropriate private property for the “public good,” as long as the owner receives “just compensation” from the state.[16] This might have worked had the whole country not been battling an economic depression in 1841: The State of New York was so under-financed that it had to abandon its work on the Erie Canal. So the idea was put on the backburner and Congress continued debating. Meanwhile, anti-renters were recruiting residents of other nearby counties to join the rent strike. And because Congress was still discussing a legal resolution to the feudal tenures problem, writ-bearing deputies were kept off the manor as the rent strike continued.

      The “Indians” continued their intimidation tactics until September when the military sent four companies to the manor to squelch the movement. They threw rocks at the soldiers but retreated after two anti-renters were cut by the soldiers’ bayonets. In response, a week and a half later, the “Indians” kidnapped Deputy

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