James Cooper - The Redskins - or, Indian and Injin. Volume 1

This book closes the series of the Littlepage Manuscripts, which have been given to the world, as containing a fair account of the comparative sacrifices of time, money and labour, made respectively by the landlord and the tenants, on a New York estate; together with the manner in which usages and opinions are changing among us; as well as certain of the reasons of these changes. The discriminating reader will probably be able to trace in these narratives the progress of those innovations on the great laws of morals which are becoming so very manifest in connection with this interest, setting at naught the plainest principles that God has transmitted to man for the government of his conduct, and all under the extraordinary pretence of favouring liberty! In this downward course, our picture embraces some of the proofs of that looseness of views on the subject of certain species of property which is, in a degree perhaps, inseparable from the semi-barbarous condition of a new settlement; the gradation of the squatter, from him who merely makes his pitch to crop a few fields in passing, to him who carries on the business by wholesale; and last, though not least in this catalogue of marauders, the anti-renter.

It would be idle to deny that the great principle which lies at the bottom of anti-rentism, if principle it can be called, is the assumption of a claim that the interests and wishes of numbers are to be respected, though done at a sacrifice of the clearest rights of the few. That this is not liberty, but tyranny in its worst form, every right-thinking and right-feeling man must be fully aware. Every one who knows much of the history of the past, and of the influence of classes, must understand, that whenever the educated, the affluent and the practised, choose to unite their means of combination and money to control the political destiny of a country, they become irresistible; making the most subservient tools of those very masses who vainly imagine they are the true guardians of their own liberties. The well-known election of 1840 is a memorable instance of the power of such a combination; though that was a combination formed mostly for the mere purposes of faction, sustained perhaps by the desperate designs of the insolvents of the country. Such a combination was necessarily wanting in union among the affluent; it had not the high support of principles to give it sanctity, and it affords little more than the proof of the power of money and leisure, when applied in a very doubtful cause, in wielding the masses of a great nation, to be the instruments of their own subjection. No well-intentioned American legislator, consequently, ought ever to lose sight of the fact, that each invasion of the right which he sanctions is a blow struck against liberty itself, which, in a country like this, has no auxiliary so certain or so powerful as justice.

The State of New York contains about 43,000 square miles of land; or something like 27,000,000 of acres. In 1783, its population must have been about 200,000 souls. With such a proportion between people and surface it is unnecessary to prove that the husbandman was not quite as dependent on the landholder, as the landholder was dependent on the husbandman. This would have been true, had the State been an island; but we all know it was surrounded by many other communities similarly situated, and that nothing else was so abundant as land. All notions of exactions and monopolies, therefore, must be untrue, as applied to those two interests at that day.

In 1786-7, the State of New York, then in possession of all powers on the subject, abolished entails, and otherwise brought its law of real estate in harmony with the institutions. At that time, hundreds, perhaps thousands, of the leases which have since become so obnoxious, were in existence. With the attention of the State drawn directly to the main subject, no one saw anything incompatible with the institutions in them. It was felt that the landlords had bought the tenants to occupy their lands by the liberality of their concessions , and that the latter were the obliged parties. Had the landlords of that day endeavoured to lease for one year, or for ten years, no tenants could have been found for wild lands; but it became a different thing, when the owner of the soil agreed to part with it for ever, in consideration of a very low rent, granting six or eight years free from any charge whatever, and consenting to receive the product of the soil itself in lieu of money. Then, indeed, men were not only willing to come into the terms, but eager; the best evidence of which is the fact, that the same tenants might have bought land, out and out, in every direction around them, had they not preferred the easier terms of the leases. Now, that these same men, or their successors, have become rich enough to care more to be rid of the encumbrance of the rent than to keep their money, the rights of the parties certainly are not altered.

In 1789, the Constitution of the United States went into operation; New York being a party to its creation and conditions. By that Constitution, the State deliberately deprived itself of the power to touch the covenants of these leases, without conceding the power to any other government; unless it might be through a change of the Constitution itself. As a necessary consequence, these leases, in a legal sense, belong to the institutions of New York, instead of being opposed to them. Not only is the spirit of the institutions in harmony with these leases, but so is the letter also. Men must draw a distinction between the "spirit of the institutions" and their own "spirits;" the latter being often nothing more than a stomach that is not easily satisfied. It would be just as true to affirm that domestic slavery is opposed to the institutions of the United States, as to say the same of these leases. It would be just as rational to maintain, because A. does not choose to make an associate of B., that he is acting in opposition to the "spirit of the institutions," inasmuch as the Declaration of Independence advances the dogmas that men are born equal, as it is to say it is opposed to the same spirit, for B. to pay rent to A. according to his covenant.

It is pretended that the durable leases are feudal in their nature. We do not conceive this to be true; but, admitting it to be so, it would only prove that feudality, to this extent, is a part of the institutions of the State. What is more, it would become a part over which the State itself has conceded all power of control, beyond that which it may remotely possess as one, out of twenty-eight communities. As respects this feudal feature, it is not easy to say where it must be looked for. It is not to be found in the simple fact of paying rent, for that is so general as to render the whole country feudal, could it be true; it cannot be in the circumstance that the rent is to be paid "in kind," as it is called, and in labour, for that is an advantage to the tenant, by affording him the option, since the penalty of a failure leaves the alternative of paying in money. It must be, therefore, that these leases are feudal because they run for ever! Now the length of the lease is clearly a concession to the tenant, and was so regarded when received; and there is not probably a single tenant, under lives, who would not gladly exchange his term of possession for that of one of these detestable durable leases!

Among the absurdities that have been circulated on this subject of feudality, it has been pretended that the well-known English statute of " quia emptores " has prohibited fines for alienation; or that the quarter-sales, fifth-sales, sixth-sales, &c. of our own leases were contrary to the law of the realm, when made. Under the common law, in certain cases of feudal tenures, the fines for alienation were an incident of the tenure. The statute of quia emptores abolished that general principle, but it in no manner forbade parties to enter into covenants of the nature of quarter-sales , did they see fit. The common law gives all the real estate to the eldest son. Our statute divides the real estate among the nearest of kin, without regard even to sex. It might just as well be pretended that the father cannot devise all his lands to his eldest son, under our statute, as to say that the law of Edward I. prevents parties from bargaining for quarter-sales. Altering a provision of the common law does not preclude parties from making covenants similar to its ancient provisions.