of England be hung up in every orthodox Church and duly observed, and you are to endeavour to get a Law past in the Assembly of that province (if not already done) for the strict observation of the Said Table.

79. And you are also with the assistence of the Council and Assembly to find out the best means to facilitate and encourage the conversion of Negroes and Indians to the Christian Religion; more especially you are to use your endeavours with the Assembly that they make provision for the maintenance of some Ministers to inhabit amongst the five Nations of Indians in order to instruct them, and also to prevent their being Seduced from their Allegiance to us, by French priests and Jesuits.

In the instance not only of Cornbury but of each Governor, it must be remembered that these "Instructions" were, not merely directions to him personally, but were the binding constitutions of the Province in all things civil, military, and ecclesiastical, during each Governor's period of office. They were the law of the land both for the Governor and the people, which was to be obeyed by both. They were laid down, and set forth, by each Sovereign, in his Kingly capacity, under the law of England for the government of his or her Province of New York. This fact has not been considered by American historians, or by English ones either, in treating of the civil and religious, especially the religious-aspects and conditions of the Royal Provinces in America in general, and of New York in particular.

What then was the Kingly authority in these respects? Whence came the monarch's legal right to govern his Royal Provinces by "Instructions" to his representatives the Governors? What were the powers then vested in the Crown by the laws of England?

3

The attributes of the Monarch of England, sovereignty, perfection,' and perpetuity, which are inherent in, and constitute, his political capacity, prevail in every part of the territories subject to the English Crown. "In such political capacity as King he is possessed of a share of legislation, is the head of the Church, generalissimo throughout his dominions, and is alone entitled to make war and peace. But in countries which, though dependent on the British Crown, have different local laws, as for instance the Colonies the minor prerogatives and interests of the Crown must be regulated and governed by the peculiar law of the place. But if such law be silent on the subject," or if the place has become by conquest or cession a Colony or Province of the Crown, having never before been possessed by the English nation, "it would appear that the prerogative of the King in his political capacity as chief of the State, as established by English

1 This is expressed by the well-known legal axiom "The King can do no wrong."

2 This is expressed by that other well-known axiom "The King is dead, long live the King."

3 Chalmers' Opinions, 150.

974

law, prevails in every respect.' "When a country is obtained by conquest or treaty the King possesses an exclusive prerogative power over it, and may entirely change or new-model, the whole, or part, of its laws, and form of government, and may govern it in all respects by regulations framed by himself, subject only to the Articles or Treaty on which the country is surrendered or ceded, which are always sacred and inviolable according to their true intent and meaning.5 Lord Mansfield thus most fully and succinctly lays down the law on this subject, citing New York as an example. "A country conquered by the British arms becomes a dominion of the King in right of his crown. . . After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles 2d changed the form of their Constitution and political government, by granting it to the duke of York, to hold of his crown under all the regulations contained in the letters patent." "It is not to be wondered at," continues the Great Chief Justice of England, "that an adjudged case in point has not been produced. No question was ever started before but that the King has a right to a legislative authority over a conquered country; it was never denied in Westminster Hall; it was never questioned in parliament." This decision was made in the Court of King's Bench in 1774-a century after the practical application of, and action under, its principle, by Charles the Second, and James the Second, and William & Mary in their Province of New York, to say nothing of Queen Anne and her successors. There can therefore be no question as to the law itself, or the legality of the power by which the Sovereigns of England, by their "Commissions" and "Instructions" to their Governors, established the Church of England in their American Province of New York.

This term,

Now what was a "Province" in law? in Latin Provincia, was first used by the Romans to designate a portion of territory outside of Italy, which they had subjected by conquest. Its general use, however, says Chief Justice Stokes of the Colony of Georgia, is "to denote the divisions of a Kingdom or State, as they are usually distinguished by the extent of their civil or ecclesiastical jurisdiction. With us, [the English people] a Province signifies-1st. An out-country governed by a Deputy or Lieutenant; and 2dly, The circuit of an Archbishop's jurisdiction. When the British settlements in America are spoken of in general, they are called the Colonies or Piantations. If it is a Government on the Continent [in contradistinction to the West India Islands] where the King appoints the Governor it is usually called a Province, as the Province of Quebec; but a Plantation in which the Governor was elected by the inhab

4 Chitty's Prerogatives of the Crown, 25 and 26.

5 Ibid. 29; Cowper's Rep. 208.

6 Hall v. Campbell, Cowper's Reports, 208, 211. Calvin's Case 4 Coke's Rep. 1.

itants, (under a charter of incorporation from the King) was usually called a Colony, as the Colony of Connecticut." Thus the very name was expressive of the character of the King's power by virtue of which he erected and established in New York Manors, Parishes, Churches and a General Assembly. Sir William Blackstone in speaking of the American Provinces, says, "In the Provincial Establishments (commonly called King's Governments) their constitution depended on the respective commissions issued by the Crown to the Governors, and the Instructions which usually accompanied these commissions; under the authority of which Provincial Assemblies were constituted with the power of making local ordinances, not repugnant to the laws of England." It is clear, and beyond question, that the very authority by which New York was granted the right to possess and elect a representative Assembly of its own people, a privilege granted to it by William and Mary in 1691, which continued from that time without interruption as long as it remained a British Province, sprang from precisely the same source, as the establishment of the Church of England within its limits-the Commission and King's Instructions to his Governors; To say nothing of the first granting of the right to elect and hold Assemblies by James II. himself as Duke of York to Governor Dongan in 1683, eleven years before; which assemblies sat for three years, and the laws which they passed in those years, still in existence, are the earliest English statutes of New York; and which assemblies were called and held solely by virtue of James's "Commission" and "Instructions" to Governor Dongan.

There is another point of importance in this connexion. Every Commission to every Governor from every Sovereign of New York, contained in it a clause, delegating to him the power of collation to church benefices, a power under the law of England which could be exercised only in the Church of England. It was in these words, " And we do by these presents authorize and impower you to collate any person or persons to any churches, chapels, or other ecclesiastical benefices within our said province and territories as aforesaid, as often as any of them shall happen to be void."

This was the delegation by the King of his own power as Ordinary. This word derived from the Civil Law primarily signifies one who, of his own right, has authority to take cognizance of causes. In the common law it is usually applied to the Bishop of a Diocese, who only could certify to ecclesiastical and spiritual acts in his own diocese. The King as the Head of the Church possessed this temporal right throughout his whole Kingdom, and could delegate it. The Bishop could only delegate his power in temporal ecclesiastical matters in his own diocese.

1 Constitutions of the British Colonies in America, 2.

21 Blackstone's, Comm. 108.

3 Stokes's Cons. of the Am. Colonies, 158. And see the different Commissions themselves in the volumes of the Colonial History.

As there were no dioceses as such in the British American Colonies, the King delegated the power of collating to benefices here to his different Governors as his personal representatives. From the same source came their power to grant probate of wills, and marriage licenses.

The spiritual supervision of the Church of England in America, was, as we have seen, first committed by King James to the Archbishop of Canterbury. Later it was deemed most convenient to attach this supervision to the Bishop of London, who appointed "Commissaries" in different parts of America, to oversee the clergy in their different districts, in such matters not purely episcopal, as a Bishop did in his Diocese in England.

As there were then no Dioceses in America, the King in the different Instructions to the Governors, directed them to retain these powers, of collation, to benefices, of granting probate of wills, and of licensing marriages to themselves. This was in virtue both of the King's Legislative power, and his power as Head of the church. Perhaps nothing has been, or is, more misunderstood, and that very honestly, in America than the Royal Supremacy of the Church of England. Of course, it cannot be treated at length here. We can only state the popular idea of it, and then show what it really is. The popular idea of it in this country is, that the Sovereign of England was, and is, the head of the Church of England in spiritual as well as temporal matters, and is the superior of the Archbishops and Bishops in all that relates to their offices as such, and is governed by his or her own ideas of what is true and right in matters of doctrine and discipline. Of course this is only the common idea, but it is held by many people of education and general intelligence nevertheless, who are, and are usually considered, well informed.

A recent writer after citing and examining the legal authorities, and writers of England since the Reformation, on this subject, says, "These numerous authorities repeat again and again the same opinions touching the supremacy of the Crown. According to them the Royal Supremacy is simply and strictly a temporal or civil power over all causes and persons in things temporal, and over spiritual persons and causes as far as their temporal or civil accidents are concerned. But it has no inherent spiritual power as such, nor ecclesiastical authority, whatsoever, the spirituality alone possessing the power of the Keys.' Lord Selborne the learned and eminent Lord High Chancellor in Mr. Gladstone's late Government says, "The Sovereign has not (as some suppose) a temporal supremacy in temporal things and a spiritual supremacy in spiritual things; it is one undivided temporal supremacy, extending to all persons, causes, and things, whether ecclesiastical or civil, of which the law of the land takes cognizance, and upon which that law has

Fuller's Appellate Jurisdiction of the Crown, 186.

operation. It does not and it can not extend to the province of religious belief, or to moral and spiritual obligations recognized by the conscience as springing from a source higher than the laws of the land." That most eloquent and able prelate, Wilberforce Bishop of Winchester, when Bishop of Oxford, in a debate in the House of Lords, in which this subject was brought up, thus spoke out :-" he did not believe that it was a correct or constitutional interpretation of that supremacy, to say that the occupant of the throne should settle in his or her individual capacity, articles of faith or any other questions whatever. He was sure that the exalted personage who at present occupied the throne would be herself the first to repudiate so unconstitutional a doctrine. The Supremacy of the Crown meant nothing more than this, that the Crown had the ultimate Appeal in all questions ecclesiastical and civil, deciding such questions not of herself, but through her proper constitutional agents." And Mr. Gladstone himself writes, in his Letter on the Royal Supremacy;-"I contend that the Crown did not claim by statute, either to be by right, or to become by convention, the source of that Kind of action which was committed by the Saviour to the Apostolic church, whether for the enactment of laws or for the administration of its discipline; but the claim was that all the canons of the church, and all its judicial proceedings, inasmuch as they were to form parts respectively of the laws and the administration of justice in the Kingdom, should run only with the assent and Sanction of the Crown."

This full statement has been written to show, that in their Province on the Hudson, the Sovereigns of England in virtue of their political, ecclesiastical, and legislative, capacities, as Sovereigns under the laws of England, through their direct "Commissions" and 'Instructions" under their own signs-manual, legally established and maintained in that Province, by precisely the same legal instruments and methods, the same form of civil government and the same form of religious belief, that was established in England, as far forth as both could possibly be there done, consistently with the Surrenders and Treaty by which the Province became a possession of their Crown. And it also shows, that historically, the existence in New York, of a General Assembly of elected representatives of the people, of Manors, of the Church of England with its Parishes, and taxation of all inhabitants for the support of its Ministers and churches, had one and all exactly the same origin, and were equally the legitimate results, of the legitimate action, of its legitimate Sovereign authority, the monarchs of England.

12.

The Manors and the County in their Mutual relations, with the Origin and Organization of the latter. The six Manors of the County of Westchester, in

1 Letter of Lord Selborne, then Sir Roundell Palmer, Atty. Gen., of 30 Dec. 1850, in Plymouth Herald of 11th Jan. 1851. Fuller, app. B. 251.

the order of their erection, were 'Fordham' in November 1671, 'Pelham' in October 1687, ' Philipsborough' in June 1693,' Morrisania' in May 1697, 'Cortlandt' in June 1697, and 'Scarsdale' in March 1701. As the 'Manor of Cortlandt' comprised the whole northern part of the County from the Hudson to the Connecticut line, and was ten miles in width, it will be described first, then following the order of location of the others down the eastern side of the county to its southern extremity, 'Scarsdale,'' Pelham,' 'Morrisania,' and 'Fordham,' will be suceessively treated, then 'Philipsborough,' which comprised the entire western portion of the County bordering upon the Hudson as far north as the south line of the Manor of Cortlandt, and extended eastwardly to the Bronx River which runs through the centre of the County from north to south and was the boundary between it and the manors of the east side.

The general nature and history of Manors in a legal point of view, the origin of the ancient manorial system of England, its tenures, and the modern manorial system of New York with its incidents, and tenure introduced by the English upon its capture from the Dutch, have been described. But before treating of each of the Manors separately, the general Province and County Jurisdiction as it affected the Manors as a whole, and the origin and formation of the County itself will be shown.

The authority of the Governor, as Governor, of the Governor and Council in the Executive capacity of the latter, and of the Governor, Council in its legislative capacity, and the General Assembly, the three together forming the Legislature of the Province, extended throughout the manors of New York in all respects save one. Neither of these authorities could in any way whatever alter, change, abridge, or in any way interfere with the franchises, rights, powers, privileges, and incidents, vested in any Lord of a Manor by his Manor-Grant. The Lords might not choose, or desire, to exercise any one or more of the franchises, rights, powers, privileges, and incidents of their Manors. This was a matter in their own discretion. but none of them could become void by non-user, nor could the Province authorities of any grade modify them in any way. If the Lords preferred, or had no objection, to have any local duties, legal acts, or offices, exercised by justices of the peace, assessors, constables, and other minor officers, either chosen by their tenants alone, or by their tenants in connection with the inhabitants, freeholders of any adjoining nonManorial lands, this could be done by an act of the Provincial Legislature. But no act of such a nature could be passed against their wishes. Hence there are to be found many acts of the kind alluded to in the Colony laws.

The jurisdiction of the "Supreme Court," of the "Inferior Court of Common Pleas " and of the Court of Sessions, extended to all lands whether Manorial or non Manorial.

So too, in the matter of elections, the inhabitants of all the Manors, (except that of Cortlandt which had a representative of its own as a franchise of its ManorGrant) united with the people of the non-Manorial | lands in the choice of Members of Assembly for the County.

The power of the High Sheriff of the County, who was always a gentleman, was appointed by the Governor, and served without pay, as in England, was as complete and thorough in the Manors as out of them. The fees of the office, which were vastly lighter in proportion, than those of elected Sheriffs now, went after being reported to, and scrutinized by the High Sheriff, to the Undersheriff and the one or two deputies, who were all that the business of the County required in the Colonial era. If any overcharge or oppression, was attempted, a complaint properly proven, to the High Sheriff himself, was all that was necessary to right the wrong.

Again, in military matters, the military organization of the County was effected in the County as a whole without regard to the Manors. Sometimes, however, their names were given to the companies enrolled within their limits.

A Colonel for the County commissioned by the Governor, commanded the one regiment, which was formed of the enrolled companies within its limits, all of which were infantry. Toward the close of the Colonial period, when the population had increased, a Light Horse organization of one or two troops for the County in general was formed, the Commander of which was a Lieutenant-Colonel, or Colonel. The inhabitants of the Manors were enrolled in both precisely as were those of the rest of the County.

The third act passed by the first Assembly under William and Mary in 1691, provided for the annual election in each town of a certain Freeholder" "to supervize and examine the Publick and Necessary Charge of each respective County, which persons so duely chosen shall elect and constitute a certain Treasurer for each respective County." It also provided for the election of two Freeholders in each town as Assessors. This was the origin in New York of County Assessors, Supervisors, and Treasurers.1 Only Freeholders could be electors, and the second Act of 1691, defines a Freeholder to be, "every one who shall have Forty shillings per annum (N. Y. Currency) in Freehold." 2 And the same act apportioned to Westchester County two Members of Assembly. In the second year of Queen Anne, eleven years later, this third act of 1691 was re-enacted in an enlarged and amended form. Its provisions are worth quoting in full as showing the early internal economy civil and political of the County and how all interests manorial and non-manorial moved in harmony and unison. Its words are "That there be elected and chosen once every year, in each respective Town within this Prov

ince, by the Freeholders and Inhabitants thereof, one of their Freeholders and Inhabitants, to compute, ascertain, examine, oversee, and allow the Contingent public and necessary charge of each County, and that each and every Freeholder in any Manor, Liberty, Jurisdiction, Precinct, and out-Plantation, shall have liberty to joyn his or their Vote with the next adjacent town in the County where such Inhabitant shall dwell, for a choice of Supervisor (except the Manor of Rensselaers wyck who shall have liberty to chuse a Supervisor for the same Mannor). And also, that there shall be in each Town, Mannor, and Precinct, by the Freeholders and Inhabitants hereof, in every respective County annually two Assessors, and one Collector, which Supervizors, Assessors, and Collectors, shall be annually chose in every Town on the first Tuesday in April, or such days as is appointed by their Charters or Patents, which Supervizors so chosen shall annually meet at the County Town in each respective County, on the first Tuesday in October, and at such other time and times as the said Supervizors shall judge and find necessary and Convenient," to perform the duties of their office.3

In 1722 the number of Supervizors was increased in the County of Westchester by a special Act, passed on the 6th of November in that year, as the former Act which applied to the whole Province, worked unequally in some respects in Westchester. It provided "for such Mannor or Mannors as (in their Rates and Taxes) have usually been or hereafter may be divided into two or more Divisions. That a Supervizor may in like manner be chosen for each of such Divisions by the Freeholders and Inhabitants thereof. And where the said Inhabitants shall omit to make such annual choice in any of the said Divisions, or in such Mannor or Mannors, where not above twenty Inhabitants do dwell or reside, the Owner or Owners of such Mannor or Mannors, or of such Division thereof as aforesaid, or their Stewards or Deputies, shall be deemed and esteemed the Supervizors thereof respectively, and have the same Powers, to all intents, constructions, and purposes, whatsoever as those chosen by virtue of the Act above mentioned.*

The act of 1703 called for the annual meeting of the Supervisors at the "County-town," which then was the Town of Westchester. In 1745 the population had so much increased as to make a change to another part of the County desirable, therefore an act was passed on the 27th of November in that year changing the place of meeting as "much for the ease of the people," which provided that "the annual meeting shall be at the School House in the Town of Rye," and that the majority shall have power to adjourn to such time and place as they see proper.5

The next change did not occur till 1773, twenty

II. And be it Further Enacted by the Authority aforesaid, That if any Sheriff of the said Counsy of Westchester, or Deputy of the said Sheriff, Shall after the Publication of this Act, in the Execution of any Writ or Writs for the electing "Representatives for the Said County, to serve in this or any future Assembly, act contrary to the Directions, and true Intent and Meaning of this Act; they shall respectively forfeit the Sum of One Hundred Pounds ($250), to be recovered in any Court of Record within this Colony, by any person aggrieved; and the said Election so

The first law on the subject passed in 1699 directed that the Sheriff "shall hold his Court for the same Election at the most publick and usual Place of Election within City or County where the same has most usually been made." This was usually at Westchester before it was chartered as a "Boroughtown " and after that at Eastchester.

But in 1751, on the 25th of November the place was changed by a special act of the Legislature," which is of such curious interest for its reasons and choice of a new place, and its stern enforcement of that choice that it is here given in full.

"Whereas the County of Westchester is very extensive, and the extreme parts thereof to the Northward, have of late years become very populous; and whereas the Elections for Representatives to serve in the General Assembly for the said County, have, from the first settlement of the said County, been held at the Southern Part of said County; it now becomes extremely inconvenient for the Freeholders of the Upper or Northern Parts thereof, which are now become, by far, the most numerous, to attend those Elections at so great a distance from their respective Habitations: For Remedy whereof for the Future;

I. Be it Enacted by his Excellency the Governor, the Council, and the General Assembly and by Authority of the Same, That in All Elections hereafter to be Made in the said County of Westchester, for electing Repre

11 Van Schaak's Laws, ch. 690.

2 II. Bradford 33. The reference here is to the elections held for the Assemblies for 1683 to 1685 inclusive under the Duke of York, the last of which was under James as King.

3 Ch. 1411 of I. Liv. & Smith, 453.

Meaning of this Act, shall be null and void to all Iutents, Constructions, and Purposes Whatsoever."

Not only does it prove the great change of population, south of the Manor of Cortlandt, to which it not apply as that Manor elected its own representative, but the severity of the last clause would seem to show that there was some opposition, probably political, to the change. It applied to the whole County except the Manor of Cortlandt and the "Borough of Westchester, which elected their own representatives.

No other change was made during the Colonial era, and from 1751 to 1776, all the County "Courts of Election" were held at the Presbyterian Church in White plains.

The Colonial elections were not held at fixed times as at present, but at whatever dates the" writs" of election were issued to the Sheriff by the Secretary of the Province, at the command of the Governor and Council. Consequently they were held at various seasons of the year, but usually early in the spring or in the fall.

The qualification for electors "in the Cities, Counties, and Mannors" of the Province, was the having by "every one of them," "of Land or Tenements improved to the value of Forty Pounds in Freehold, free from all Incumbrances, and have possessed the same three Months before the Test of the said Writ." As soon as the writ was received by the Sheriff, he was obliged in six days to give at least six days previous public notice of the time and place of election, to each constable in his bailiwick to be affixed to the most Public Place in each Town, or Mannor. At the time and place fixed the Sheriff attended with his Deputies and presided at the "Court of Election." The electors met, the candidates being present, the Sheriff announced the names of one side, when all of their supporters held up their hands; then he announced the names on the other, and their supporters held up their hands. He then announced who had the most. In case the election was not determined by this