yaleUniyeisityLibfap/ 39002013464566 ;^iiiiiii 'WWM/imi i'^KiLi!,'":!- . :'¦ ¦:¦- 1 "itiMlh. |'ilft'.iH'!' 'I YALE UNIVERSITY LIBRARY THE HARRY WEINBERGER MEMORIAL COLLECTION Gift of HAROLD M. WAYNE ENGLISH CROWN GRANTS English Crown Grants BY S. L. MERSHON MEMBER OF THE NATIONAL GEOGRAPHIC SOCIETY, WASHINGTON, D. C. ; NEW YORK HISTORICAL SOCIETY, NEW YORK CITY; CITY HISTORY CLUB, NEW YORK CITY; STATEN ISLAND INSTITUTE OF ARTS AND SCIENCES; STATEN ISLAND ANTIQUARIAN SOCIETY AUTHOR OF "THE MAJOR AND THE QUEEN" (A narrative of Colonial History) THE FOUNDATION OF COLONIAL LAND TITLES UNDER ENGLISH COMMON LAW NEW YORK THE LAW AND HISTORY CLUB PUBLISHERS 39 CORTLANDT STREET COPYRIGHT, 1918, BY S. L. MERSHON ¦^3z; CONTENTS FACE The Psychology of Crown Grants i The Evolution of Crown Grants 15 Staten Island and Crown Grants 27 The New World and Crown Grants 54 English Common Law and Crown Grants. ... 60 Royal Authority for Crown Grants 75 The Indian and Crown Grants 90 Riparian Rights and Crown Grants 104 Public Bathing Places and Crown Grants 117 Under Sea Lands and Crown Grants 129 Fish, Oysters and Crown Grants 136 The Grip of Crown Grants 151 Title Guarantees and Crown Grants 170 Analysis of One of the Crown Grants 182 Quit-Rents and Crown Grants 203 Manor of East Greenwich and Crown Grants. . 210 Adverse Possessions under Crown Grants 217 The Larger Vision under Crown Grants 228 The Symes Foundation and Crown Grants. ... 236 Section i. Letter from Title Companies to Citizens and Friends of Staten Island 237 Section 2. Certificate of Incorporation of The Symes Foundation 240 Section 3. Contract between American Title and Trust Company and The Symes Foundation 244 FOREWORD The American Bar Associations, Historical So cieties, Colonial Organizations and all thoughtful citizens have a vital interest in the unique history and present-day dominating influence, in America, of the old English Crown Grants. Their virility is unimpaired despite the flight of centuries. The Royalty of the past frequently restricts and restrains the Democracy of to-day. It was the personal will and whim of the English Sovereigns, as expressed in the English Crown Grants, that prescribed the basis of Governmental, Commercial, Educational and Industrial Institutions, in the American Colonies, which Colonies subse quently constituted "the Original Thirteen States." English Crown Grants are to-day powerfully ac tive elements in our National Life. Great Universities, including Yale and Princeton, many ancient and wealthy churches, sit tight and smug under powers received by them, in their char ters, from autocratic hands now long since crumbled into dust. Ferries are now operating in New York because English Kings, centuries ago granted the franchises so to do. Competition therewith is restrained be cause the olden time and long since deceased mon archs decreed that such Ferries should constitute a monopoly. FOREWORD The most powerful title company in the world has recently announced that it will not guarantee its land tide searches covering lands in one of the Bor oughs of Greater New York, if required to make such searches back to the English Crown Grants. Every foot of land, in that designated Borough de pends, for a complete chain of title, upon some one basic Grant from the English Crown. To ignore that fact is fatalistic, to defy it is reck lessness, especially in the face of the indictment of the land titles of an entire Borough of Greater New York by the world's most powerful title company. Incredible disregard of the rights descending un der English Crown Grants, confirmed by treaty be tween Great Britain and the United States of Amer ica, which treaties are " the supreme law of the land," has precipitated costly litigation involving vast areas of lands of immense values in the Borough of the Bronx, on Riverside Drive, at Coney Island, Rocka- way Beach, Oyster Bay, Northport, Lake Cham- plain, the Hudson River and many other places in New York State. Like controversies have involved land titles in Maryland, Delaware, Virginia and other States. The uniform and inflexible attitude of both Fed eral and State Courts has been to sustain the legality and inviolability of the English Crown Grants as covering lands Granted by the English Crown in the American Colonies. The English Crown Grants of lands on Staten Isl and have been selected by the author as the most di versified, yet favorable grouping of Grants, to Illus trate the discussion of the problems Involved. l^OKEWORD Probably no locality in English Colonial America furnishes such an interesting, varied and yet com plete group of Crown Grants as appears on the pub lic records of Richmond County, New York, in which County Staten Island is situated. S. L. MERSHON. Montclair, N. J. THE PSYCHOLOGY OF CROWN GRANTS WHAT IS LAW? Many have been the responses to this query. It has been said that law is composed of three elements: — FIRST: — A command of the lawgiver, which command must prescribe, not a single act merely, but a series or class of acts. SECOND : — An obligation imposed thereby on a citizen. THIRD : — A sanction threatened in the event of disobedience. (Benth. Frag, on Gov.) Blackstone defines law as : "A rule of civil conduct prescribed by the "Supreme Power in the State, commanding what "is right and prohibiting what is wrong." (i B. La. Com. 44.) "The law of the land as used in the Magna "Charta and adopted in many of the earlier "constitutions of the original Thirteen States "means more than the Legislative will. It re- "quires the due and orderly proceeding of Jus- 2 ENGLISH CROWN GRANTS "tice, according to the established methods." (8 Gray 29.) In the United States, the organic law of a^State is termed the Constitution, and the term "laws" gen erally designate Statutes or Legislative Enactments in contradistinction to the Constitution. "Law, as distinguished from equity, denotes "the doctrine and procedure of the common law "of England and America, from which equity "is a departure." Human reason demanded the enunciation of the incontrovertible principles upon which the temple of justice might be reared. Constitutional authorities are in agreement that the true source of all law from which equity and justice flow is in the immutable, un changeable and all-powerful will of God, permeat ing and extending throughout all nature and dom inating and controlling all life. We find, therefore, in its final analysis, or shorn of all confusing and complex definitions that law finds its true interpretation in the correct answer to that ever-recurring question, "What is Truth?" Truth is the rule of "Exact accordance with that which is, or has been, or shall be," as developed by that Su preme Power which makes for Righteousness. In recognition of this generic principle, a Court of Jus tice is designed to discover the truth. Witnesses are sworn in the presence of the Supreme Soverign to declare "the truth, the whole truth and nothing but the truth." The Divine Master, when he would cleanse Humanity from its corruption, put up the petition to the Almighty Father, "Sanctify them ENGLISH CROWN GRANTS 3 through Thy Truth, Thy Word is Truth." This was an invocation that the laws of Divine Justice might find ramification throughout all human rela tions, the culmination of which would be "Peace on earth, good will to men." The highest consumma tion of all law is the rule of the "law of love." "Law is beneficence acting by rule." "Love Is the fulfill ment of the Law." It is a trite saying that in the bosom of every acorn there lies dormant the form and pattern of a majestic oak. Stricken by the winter's cold, forced into action by the summer's heat, and drinking at the font of evening showers, the acorn hears the call of life and starts on its upward toilsome, yet unconseious climb for the fulfillment of the marvelous design of which it has been made the sacred shrine. Law an ticipated its being, co-ordinated its elements and hav ing charged its life with a design, which of necessity presupposes a dominating, directing and governing intelligence, sent if forth on Its beneficent mission of tree building. Every tree represents a Super-Intelli gence, directing and guiding a subservient force, working out an engineering design, embodying me chanical construction and chemical proces&es, along lines of artistic skill and beauty; and all with special adaptation to human needs. Under its shade we may rest and contemplate but never duplicate it by our artifice. A tree is not a thesis in the school of human thought. It Is an axiom. It is a bound volume in nature's law library, indexing, by its trunk, branches, leaves, blossoms and fruit, the intelligent purpose, organizing power and beneficent operation of an in- 4 ENGLISH CROWN GRANTS telligent law that works in nature's arena of human activities. That masterful, dominating Intelligence "that was, is, and is to be," and which is the Creator and Di rector of the forces of Nature, the royal sway of which tends to the highest good and greatest happi ness, has not confined the implanting of His law within the bounds of unintelligent nature. We find in embryonic form in the minds of men everywhere an endowed tendency which when given its true op portunity for development, works out the highest system of justice in human relations. "The Ancients said their laws came from the "gods. The Cretons attributed their laws, not "to Minos but to Jupiter. The Lacedaemonians "believed that their legislator was not Lucurgus, "but Apollo. The Romans believed that Numa "wrote under the direction of one of the most "powerful divinities of ancient Italy, — the god- "dess Egerla. The Etruscans had received their "laws from the god Tages. "There is truth in all these traditions. The "veritable legislator among the ancients was not "a man but the religious belief which men enter- "tained. The laws long remained sacred. "From this we can understand the respect and "attachments which the ancients long had for "their laws. In them they saw no human work, "but one whose origin is holy. It was no vain "word when Plato said, 'To obey the laws is to "obey the gods.' ENGLISH CROWN GRANTS 5 "In principle, the laws were immutable, since "they were divine. "Man did not need to study his conscience "and say, 'This is just and this is unjust.' An- "cient law was not produced in that way. But "man believed that the sacred hearth, in virtue "of the religious law, passed from father to son; "from this it followed that the house was hered- "itary property. The man who had buried his "father in his field believed that the spirit of the "dead one took possession of this field forever "and required a perpetual worship of his pos- "terity. As a result of this, the field, the domin- "ion of the dead and place of sacrifice, became "the inalienable property of the family. "Religion said 'the son continues the worship, "not the daughter; and the law said, with the "religion, 'the son inherits, the daughter does not "inherit, but not the nephew on the female side.' "This was the manner in which the laws were "made; they presented themselves without being "sought. They were the direct and necessary "consequence of the belief; they were religion it- "self applied to the relations of men among "themselves." (Primitive and Ancient Institu tions, pages I06, I07.) The American Indian, in order to express Sover eignty, used the word "Sachem," which being inter preted, means "Power from above." The Peruvian aborigines declared that their Incas were the children of their divinity, the Sun. "The Laws of the Medes and Persians changeth 6 ENGLISH CROWN GRANTS not," they being as was then believed to be divine de crees, which were "the same yesterday, to-day, and forever." According to the Greeks, the sacred fire taught men to build houses. The house was always placed in the sacred enclosure. The walls were raised around the sacrificial hearth to isolate and defend it, and it was the religion of the family that influenced the erection of the house. The house was conse crated by the perpetual presence of the gods. It was the temple idea which preserved them. "Here is his altar, here is his hearth, here are "his household gods; here all his sacred rights, "all his religious ceremonies are preserved." Family tombs, walled in, gradually gave rise to in dividual title to lands. The dead were gods, the ob ject of family worship, and their burial places, through religion, became family properties with title from the gods. The militant spirit conceived the house to be a man's "citadel." The religious Instinct gave birth to the doctrine of the "sacred" rights of proprietorship in a homestead. We of this generation have inherited from our an cestors the doctrine that the original and ultimate title to all property was and is vested in the King, Queen or other Sovereign power. This theory is explainable in several ways as it developed among our different ancestral tribes. They all hark back, however, to the principle implanted in the universal mind of man, that all property rights and titles orig inally vested in and eminated from the Supreme ENGLISH CROWN GRANTS 7 Sovereign of all the Universe. That by the free and voluntary act of the Omnipotent Ruler, lands were apportioned among the children of men. "The Most High divided to the Nations their inheritance." (Ex. 32:8.) Such lands, however, when so apportioned carried therewith "the obligation of fealty and ser vice" to the Great King. Titles having been so con veyed to His subjects, the obligation "followed with the land," so that the Grantees when called upon should appear, in feudal fashion, as loyal retainers and true soldiers of the King to do moral battle for Him. Such a Royal Grant from the Great Sovereign required that the King's Grantee should justly, by gift and bequest, apportion lands among others on like "conditions of fealty and service" to the King. Thus the King's realm would be safe and his sub jects happy. To accept and serve under allegiance to such a divine government is to establish a well- ordered rule of righteousness. This doctrine of original proprietorship and ulti mate ownership of all land as being vested in the Supreme Sovereign of all the earth is most clearly represented in its purest form in the History of the Hebrew Race. Their representative, Moses, went up into Mount Sinai and received their Laws for them, direct from the unseen and invisible Ruler of all the Universe. They receive their Grant to the land "beyond Jordan" from that same Imperial Source — "The land which the Lord thy God giveth thee." (Ex. 20:12.) They entered and took posses sion thereof according to the terms of the Grant. By Imperial decree they evicted the prior owners be cause the latter had not paid their proper quit rents 8 ENGLISH CROWN GRANTS of fealty and service to the Great King from whom they had received the land. Such land, however, so seized and possessed by the Hebrews was still charged with the obligation of fealty and service to Jehovah and was taken over by the twelve tribes of Israel with full knowledge of and consent to the con ditions imposed thereon. The tithing tax appears in the well-known Hebraic code of laws. The Hebrews received and held the title to the divinely granted land, but the original and ultimate ownership was admittedly in their recog nized but Unseen Sovereign, and their tenure thereof was a conditional one. They had a title subject to for feiture, for the Sovereign did subsequently re-enter, taking possession thereof and evicted them from the land when they violated their oath of allegiance, or pledge of fealty to Him, and paid their tribute to other kings or deities. The true proprietor of the lands had, however, duly served advance notice upon them and upon their continued default he escheated the lands. The doctrine of Original Proprietorship and Ultimate Ownership of title by the Supreme Ruler was thereafter re-enunciated when the true Heir to the Throne subsequently appeared in the lands which were still possessed by Israel under the above men tioned Grant. Meanwhile the Romans had levied upon the land in true sheriff fashion and eviction was then pending. Jesus Christ, the Crown Prince of Israel, came to restore. If possible, the original relationship between His Father, the Proprietor, and His about to be dis possessed subjects. He patiently explained to the peo ple His Father's right thereto by telling them that ENGLISH CROWN GRANTS 9 "All things were made by Him, and without Him was not anything made that was made." He further con firmed to them the statement of their own beloved over-lord. King David, who had said that "The earth is the Lord's and the fulness thereof." In this way they were called upon to see that both real estate and personal property, as to ultimate ownership and origi nal proprietorship were vested in the Great King, or Jehovah. In remarkable imagery, so dear to the heart of every Hebrew, this Prince explained to them how the lands had been apportioned out as if the soil was a great "vineyard," while "the owner went into a far country." He gave them to understand their possessory rights, in the well-known term, "occupy until I come." The Hebrews were given to under stand that a renewed grant and continued possession were due to the "profitable servant" while disposses sion would be justly meted out to the "unprofitable servant." He distinctly told them that upon the Great Sovereign's demand for an accounting the Sov ereign had a right to expect that He was "to receive His own, with interest." The enunciation of this principle drew out of the rich young man the avowal, "I give tithes of all I possess." (Luke 18:12.) In American Colonial language, it might well have been stated, "I always pay my quit rents to the Great King of Heaven and Earth." This Royal Crown Prince further laid down an other and very broad principle that Is wider than its application to the Hebrew race. In its scope it is as broad as humanity, and in point of time extends to the limits of human life. He made it plain that all properties, both real and personal, having originally lo ENGLISH CROWN GRANTS issued forth from the Great Proprietor, will ulti mately revert to that Great Proprietor, and that the ultimate dispossession of the entire human race from this planet will, as is now predicted by science, restore complete title and possession to the original, sole and true owner, "the King of all the Earth." God in his earthly solitude will then watch at the grave where the last human sleeps. He it was who held in one vast unbroken estate the solitudes of Earth before Eden heard the footfalls of human life. From him issued the Grants of land to the people whom He created and for whom the world was prepared. A great purpose inspired it and great moral obligations were imposed. The world's greatest law giver, Moses, said, "And all the tithes of land, whether the "seed of the land or the fruit of the trees, is the "Lord's; it Is holy unto the Lord." (Lev. 27 : 30.) That is to say, the "Quit Rents" arc wholly His, and the obligations for the payment thereof "run with the land." This doctrine is basic in the realm of human thought. It has developed the legal maxim current in text books of law. "It is more serious to hurt di vine than temporal majesty." (2 Cor. 29.) There fore, we swear our witnesses in the presence of the Ever Living God, while they hold the Book of His Law in their hands. Among the races of men who originally accepted the theocratic form of government as fundamentally correct were some with materialistic tendencies. They revolted against straining their eyes towards" an in- ENGLISH CROWN GRANTS ii visible Sovereign. Their minds recoiled against an immaterial and invisible government. Mental, moral and spiritual forces were, to their sordid vision, as nothing in comparison with burnished steel and sharp ened lances. A "Commission form of government" residing in a Board of Judges, when put to the test broke down among the Jews and the Hebrews cried out for a king. The spirit of militarism then ran high among them. Jehovah, they thought, was in another world. The prophets and the judges, they concluded, were wise old men, but somewhat passee and without force to back up their decrees. Hence they cried, "Give us a king." Then there promptly ap peared among them the wily politician and ambitious soldiers, who were ready for political place and power. Had not Moses, the autocrat, delivered to the peo ple the very laws of Heaven? The prophets and judges had seemed to the Jews quasi divine. Why then should not a human king of earth voice the de crees of the King of Heaven and back them up with military, in place of spiritual forces? It is impossible In the short space of this state ment to trace from its concept to its conclusion the amazing and now almost inconceivable doctrine of "the divine right of kings." "The King can do no wrong." (2 RoUe 304; Jenk Cent 9-3); Boom Max 52; Sharsw. Bla. Com. 246.) "The King never dies." (Boom Max 50 ; Branch Max 5th Ed. 197 ; Bla Com. 259.) "The King cannot deceive or be deceived." (Grounds and Rud. of Law 439.) This idealized but false conception of the earthly king's perfection was sporadic, infectious and became 12 ENGLISH CROWN GRANTS universal. To the earthly king as successor to the Di vine Sovereign therefoi-e fell the proprietorship of all- "the vacant and unappropriated lands within the realm." To him fealty must be pledged. To him the revenue must be paid. Divinity dethroned. Hu manity enthroned — "Long live the King." Among the prerogatives cf sovereignty, conscrip tion was a "Divine right." Even in these modem days, when the tides of democracy are sweeping with tremendous force about the thrones of Imperial rul ers, we hear enunciated, in royal proclamations under the seal of the Crown, such expressions as "My realm," "My kingdom," "My army," "My navy," and "My people." The doctrine of Original Proprie torship and Ultimate Ownership in the human sov ereign exists today with tremendous force and power. It is recognized to the fullest extent in international law and stands convicted at the bar of Public Opinion as the primal cause of the horrible tragedies being en acted in the world war, the scourge of Europe, and the atheist of a heart-broken world. Divine Sovereignty, as revealed in a true Christian Socialism is day by day steadily and gradually com ing into its own. Mark the term, however. Christian Socialism. The tragic attempt on the part of humanity to de pose Divine sovereignty and to impose in its place a human king, with Divine prerogatives and powers is pathetically illustrated in the prophetic narrative ( i Sam., Chap. 8), from which we make the following citations : "Then all the elders of Israel gathered them- ENGLISH CROWN GRANTS 13 "selves together and came to Samuel at Ramah, "and said unto him. Now make us a king to "judge us like all the nations. "But the thing displeased Samuel, when they "said Give us a king to judge us. And Samuel "prayed unto the Lord. "And the Lord said unto Samuel, hearken "unto the voice of the people in all that they say "unto thee, for they have not rejected thee, but "they have rejected me, that I should not reign "over them . . . Howbeit yet protest solemnly "unto them and show them the manner of the "king that shall reign over them. And Samuel "told all the words of the Lord unto the people "that asked of , him a king. "Nevertheless the people refused to obey the "voice of Samuel and they said. Nay, but we will "have a king over us." Divine Majesty was dethroned ! Then human sov- erignty failed, dispossession of lands followed, and Israel wandered a scattered nation, without a coun try. That most marvelous of all people, the He brews, are now being restored to their own home land, such restitution having been made possible by the great World Powers under the spiritual leadership of that man of all men, that Jew of all Jews, Jesus the Son of David, the climax of all prophecy and the in carnation of "the hope of Israel." Fealty and service will again be required by Je hovah as a condition precedent to renewed possession 14 ENGLISH CROWN GRANTS of this "Holy Land," which was apportioned to the children of Israel when "the Most High divided to the Nation's their inheritance." (Ex. 32: 8.) Then shall "the walling places of the Jews" be flooded with song as the erstwhile escheated land of sacred and sorrowful memories shall once again re sound with the songs of Israel. He who asserts an absolute title In himself to any land whatsoever and claims that the same is exempt from "the obligation of fealty and service" to the Great Sovereign will eventually be adjudged as in default. His land will be finally escheated and he himself will be at last evicted from the Crown Estate for general default, under the terms of the Original Crown Grant. To him who denies fealty to the Highest and evades his true obligations, "the tax dodger of two worlds," the record speaks : "But God said unto him, Thou fool, this night "thy soul shall be required of thee : then whose "shall those things be which thou hast provided? "So is he that layeth up treasures for himself and is not rich towards God." (Luke 12:20, 21.) "It is a mistake to think ourselves stewards in some of God's gifts and proprietors in others." THE EVOLUTION OF CROWN GRANTS It has well been said that in the early ages of the world the condition of the land was probably allodial; that is, it was not subject to any superior. Every man occupied as much land found unappropriated as his necessities required. Over this land he exercised an unqualified dominion. This condition reminds us of the original Adam in the Garden of Eden, who for a time did not even possess a wife to claim "a dower" in the lands beneath his feet, and a Robinson Crusoe "whose rights there was none to dispute." Blackstone did not accept the theory that In the earlier stages of the human race man wandered about alone and in vast solitudes. He believed that fear of the unknown and a sense of human need caused them to group themselves together in their wanderings. When the armies of Caesar were penetrating the forest vastnesses of northern Europe, the Teutonic people were being gradually transformed from no madic tribes into settlers in small villages and hamlets, with fixed habitations. Nomadic groups of people, upon arriving at a river or seaside, favorable for fish ing, acquired the habit of settling there at least for a time. Others, upon reaching a rich and luxurious valley well adapted for herding or tilling would there 15 1 6 ENGLISH CROWN GRANTS erect crude huts and make permanent their stay. Human wanderers, perchance pursued by thievish and hostile foes, upon reaching land easily defended, would there form a simple but definite settlement. These villages or permanent encampments, were the first foundation stones, uncut, rough and un- symmetrical, which formed the original basis of mod ern rights of land ownership among Teutonic peoples and their descendants. Out from such a crude and rugged source has flowed one of the gradual but ever widening streams of land titles, forming a part of the present day codified rights of ownership in real-estate In Teutonic countries. This theory was the antipode of the one according to which land was acquired in the original American Colonies. As civilization advanced from these primitive conditions society became more complex. Every up ward step developed greater needs. Accumulated wealth and broader culture imperatively called for added security, comfort and civic order, until at the present time we are surrounded by conditions, regu lated and controlled by statutes and laws, protecting property rights, guarding human life, also defining and guaranteeing personal liberty. All these are the natural and logical developement of a system called Into existence by human progress, and calculated from actual experience to safeguard human rights. The communities referred to were at first generally composed of kinsfolk in households, or a cluster of families. The bonds binding the members of the set tlements were either those of kinship or a recognized need for mutual defense and protection. ENGLISH CROWN GRANTS 17 As these small, primitive colonies developed among the Teutonic tribes certain questions at once arose in each as to the rights of the respective householders to the soil on which they had pitched their tents, erected their camps, enclosed their flocks or herds, or upon which they were cultivating their needed vege table or grain supplies. At first in all such primitive communities certain "land marks" or lines were drawn upon the ground through the settlements and a general understanding was arrived at by mutual and oral consent, that within the confines of the land so marked out the respective householders alone had sway. It was at first but a possessory right pending the period of occupancy. The theory appears to have been that he who oc cupied such land had but the use of the land so plotted out and did not have any actual ownership in the land itself. As time passed on and families remained es tablished at fixed points, houses replacing huts, the theory of "occupancy for use" gradually developed into a claim of ownership of the soil on which the domicil had been erected. This right of proprietor ship being once established, there naturally developed the right of sale of such property so held. In this manner there were gradually established first villages and then townships in which the houses and what pertained thereto were distinguished as in dividual properties. What had once been communal dwellings were recognized as fixed habitations and became the abode of separate and distinct families, dwelling upon land representing individual proprietor ships. These local settlements were but oases in great 1 8 ENGLISH CROWN GRANTS expanses of forests, hills and dales, which were con sidered to be "No Man's Land," and over which waste places no human sovereign ruled. Such wild and vacant lands were imagined to be largely pos sessed by hybred and nondescript creatures, which were In fact born of human superstition and ignorant fear of the indefinite and unknown. Demonology and witchcraft held sway therein and the popular deities in those vast expanses were conjured up de mons. Under these primitive conditions, house property In villages and towns was generally regarded as hav ing an absolutely independent and separate character from properties located In the agricultural and pas toral outskirts of the villages. The latter were con sidered to be the common lands of the community. From this communal theory of lands so held we in herit what we now term "The Commons." At first little regard was had for individual rights of ownership In cultivatable soil, as agriculture being but crudely and carelessly developed, was of an uncer tain and changeable nature. A piece of land selected by a householder for herd ing his flocks in one season, might be, and very fre quently was, abandoned for another piece or patch of ground the following season. Thus it came about that while definite bounds were fixed for village and town habitations, as of individual proprietorship, the doc trine of lands-In-common, or "the commons" of later days became established. In this way there gradually developed two princi ples of land ownership, known respectively as "folk- lands" or lands owned by individuals and common or ENGLISH CROWN GRANTS 19 communal lands which were owned by the people in common. As human intelligence increased and the importance and value of definite locations became more fixed and determined, a system or method of regulating and defining individual rights and establishing orderly control of the communal properties became neces sary. Thereupon the custom came into vogue of entering in a book a description of the properties Individually claimed and recognized by the community to be folk- land and which had become subject to private owner ship. From that time on such lands were known as "Book-land." The entries so made In such books be came the recognized proofs and established the fact of individual proprietorship in the lands so recorded. These simple books of entry subsequently developed into our elaborate system of county records, brought down to us as a heritage from our early ancestors. Upon frequent occasions members of these early communities desired the temporary use of certain of the commons or communal lands. These demands the communities were ready and willing to grant for a limited period of time, but subject to the reversion of such lands to the community and without altering the character of such lands. When such permission was so given, proper entries were made In the same book and a record of such per mission was entered and defined therein, duly setting forth the right of the lessee to use such lands for a temporary period but in no wise parting with or con- 20 ENGLISH CROWN GRANTS veying to such individual or individuals the actual ownership of such communal soil. From this latter custom has gradually developed the theory of communal leases, now in vogue and con trolled by our elaborate system of legal enactments. Generations came and went while wealth increased. Communities composed of various tribes differing in vocations and languages but equally charged with bar baric impulses multiplied. These groups came into close contact with each other; the friction of which contact resulted in frequent and fatal clashes. A sense of constant fear of attack and the danger of destruc tion pervaded communities which under more Isolated conditions had rested in a reasonable sense of security. Leadership in each community had been generally established by the selection of the physically most powerful and agresslve warrior as chief. Later, al liances between weaker and neighboring communities as a common protection and defense against larger and more powerful neighbors became a necessity. Thereupon strong, brave and daring leaders for such communal alliances were called for by develop ing conditions. This need, once realized and acted upon, rapidly transformed small states into king doms and empires. Thus kings governing large states appeared in Teu tonic history. They might not always supplant the local chieftains, whose authority through the vicissi tudes of time and the expansion of territory was stead ily magnified, but they could co-ordinate and direct them. These formeriy independent but lesser chief tains gradually became the barons, lords and other petty rulers under great imperial sovereigns, called by ENGLISH CROWN GRANTS 21 the people to power or by warrior usurpers of the throne. Whether this evolution from early to later con ditions was generally due to the gradual development of national conditions or usually came through wars of conquest or internal strife is immaterial in this narrative of events. Such evolution or revolution has however much to do with the development of the rights of land ownership both by the people and the Crown. Vivified and fostered by these national develop ments, the doctrine of the Crown ownership of lands evolved therefrom. We have referred to the doctrine of individual proprietorship of land, which was actually possessed, as a gradually developed right of the individual house holder. We have shown communal lands, held in common by the community for the public's benefit and subject to lease or sale by the public authorities. What of the vast area of vacant, unappropriated and waste land in the expanse of mountains, forests and valleys situated between the communities, but without ownership ? How was the king or sovereign to be provided for and what compensation was to be paid to him for his guardianship and protection of the various communi ties over which he had been called to rule? The landed proprietors were naturally warriors: but when their services were placed at the disposal of the King for war, it was at least, in theory, in defense of their own properties, their families, and for their 22 ENGLISH CROWN GKANIS own booty and glory which they to a degree divided with their king. Certain portions of private land, crops and other incomes and accumulated wealth, these land owners likewise pledged to their sovereign and king, but that was, in theory largely, to assist the sovereign in the support of armies which were enlisted for the de fense of the confederated communities. Why therefore, should not the wild, vacant and unappropriated lands become the property of the king, to be held absolutely as Crown property and not as communal lands? No individual owned them. No community claimed them. The title had never passed from the Creator and the King claimed his throne by Divine right. From this theory of compensation to the sovereign who held to a large extent in his hands the safety of the community, grew to a degree the right of Crown ownership in and to all such lands so described. We therefore find in the course of time that the great forests were recognized as the property of the Crown, and that the Crown controlled therein "the hunting and the hawking." We also find the navi gable rivers spoken of as the "royal rivers," because of the fact that the sovereign owned the river bottoms of navigable streams as a part of the vast area of "the vacant and unappropriated lands" of the realm. "And he was the only one who could defend the same, by his mighty army and mighty fleet." We also discover as a fully recognized fact of early English history and laws that the seas were "royal seas" and that the titles to the bottoms of the bays ENGLISH CROWN GRANTS 23 seas and in fact the bottoms of all tidal waters in the realm were vested in the English Crown. The universal existence of some form of propri etorship, law and government is a natural and funda mental concept of the well organized and balanced mind. It will be seen that under colonial conditions, at the period of the American colonization, the King of Eng land, by the natural descent, growth and development of a primitive legal system, which was brought to England from continental Europe, owned all the un- granted lands under navigable waters in the Thirteen Original American Colonies. The doctrine included Crown ownership of the vacant and unappropriated uplands, together with the fishery rights and the un- granted hawking and hunting privileges of the Eng lish realm. This Crown ownership in England was exclusive of folklands, communal lands and the pri vate and communal rights there incident and pertain ing thereto. The title to the communal lands in Eng land was held by the Crown in trust for the people, but with power to grant the same. It is a fundamental principle that the ultimate title of all lands of every kind and nature is vested in the Sovereign power. In monarchical countries that ultimate right is vested in the King, while in demo cratic countries it Is vested in the legislative power, which represents the people. The original and ultimate title of all lands vested in the Sovereign, rests upon the theory that he or it represents the Divine source of power and that the sovereign's life and property will always be available 24 ENGLISH CROWN GRANTS in the defense of the lives and property of his loyal subjects. Blackstone enunciated this doctrine when he said, "The King is esteemed in the eyes of the law as the original proprietor of all the lands in the kingdom." That principle is set forth by another authority as follows : "Under common law principles, all lands with- "in the state are held directly or indirectly by the "King as Lord paramount or supreme propric- "tor: to him every occupant of the land owes "fidelity and service of some kind as the neccs- "sary condition of his occupance." The above theory holds in the United States and is but the re-affirmation of principles which prevail in England and in fact in all countries with well estab lished legal systems. In America, however, the doc trine of the divine right of kings has been repudiated. The people have seized the seat and place of power. They enthroned, have held firmly to that higher al legiance typified by the national adage, "In God we trust." It has been clearly stated by competent authorities that, "In this country the people in their corporate ''capacity represent the state sovereignty. Every "man must bear true allegiance to the State and ''pay his share of the taxes required for her sup- ''port, as the condition upon which alone he may "hold land within her boundaries." This right of ultimate ownership in the sovereign ENGLISH CROWN GRANTS 25 is not simply a theory of political economy, but is most clearly, frequently and very drastically put into force and effect in all civilized countries, so that its practical character is now indisputable. A citizen who violates the supreme law of the land may not only be restrained of his personal liberty, but as a further penalty, his property, both real and per sonal, may be forfeited to the State, as the supreme power. When a citizen is guilty of treason against the Gov ernment under which he resides and to which he owes allegiance, his life may not only be forfeited but his lands and personal property may also be escheated to the State. If a man dies without making proper disposal, by will, of his real and personal property, and if at the same time such person has no blood relatives or nat ural heirs, all of his property immediately reverts to the State as the ultimate owner or proprietor. In fact, a citizen's right to inherit and his right to bequeath are but statuary rights and privileges, which, if repealed would in one generation vest the title to all property in the Sovereign power. It has been stated as a fact of history and it has also been judicially determined by the American and English courts of last resort that, "The American Colonists brought with them "from England the English Common Law and "Code, in so far as the same were adapted to the "conditions on the American continent. (Grant "bv Charles II, King of England, to James, the "Duke of York and Albany, on March l2th, "1664). 26 ENGLISH CROWN GRANTS To what extent early American conditions might have modified the Common Law practice of England, when the same was applied in the Western Hemi sphere, is readily ascertained by reference to the num erous decisions of the English and Provincial Courts, during the American Colonial period prior to the Revolutionary War. Such decisions are remarkably in harmony with the very clear and lucid deliverances of the American State and Federal Courts, subsequent to the Revolution, when judicially passing upon ques tions involving English and American Common law. STATEN ISLAND AND CROWN GRANTS The English Crown claimed the lands on the At lantic coast covered by Sebastian Cabot's discovery. International law fully concedes this claim which vested jurisdiction over the lands in the English Crown by the right of discovery. There has been much discussion as to what extent the English Crown owned Colonial lands as Its own private property and to what extent the English Crown held such land in trust for the people. There has been considerable flexibility in the judi cial decisions as to where the Crown private owner ship ended and the Crown Trusteeship commenced. No authority denies the right of private ownership by the Crown in Crown lands, or the fact of owner ship of other lands In England by the Crown In trust for the people. Where is the line of demarkatlon to be drawn? Be that as It may, certain facts stands out clearly, distinctly and prominently in connection with Crown lands in the State of New York and particularly as to the Crown lands of Staten Island. No ambiguity or uncertainty can prevail as to the regularity and legality of the English Crown Grants made to lands in the State and especially on Staten Island. 27 28 ENGLISH CROWN GRANTS Using Staten Island as an illustration of the exer cise of the English Sovereign Power in the making of Crown Grants, the facts and circumstances relating thereto furnish probably the best and most complete example of English Crown Grants which can be drawn from Colonial history. Staten Island was included in the Cabot Discovery which gave dominion to the English Crown by right of discovery. Staten Island was included In the con quered territory obtained by the EngUsh in the war with the Dutch, which gave political sovereignty over Staten Island to the English Crown, by the right of conquest. Thereupon the English, as was their invariable custom in America, recognized the Indian inhabitants of Staten Island as, "The very true, sole and lawful Indian own- "ers of ye said island," and "as derived to them by their ancestors." The Duke of York, who subsequently^ became James II, King of England, by a fair bargain and for good and valuable considerations, purchased, on April 13th, 1670, the soil of Staten Island from the Indian inhabitants. The terms of that fair and equitable bargain were fully explained and the same were well understood by the native Indians. That honorable and very business like transaction gave title to the Duke of York by the right of purchase. The ceremony carried out in connection with the said purchase is fully set forth in "THE MAJOR AND THE QUEEN", (page 12) and need not be referred to herein, excepting only to show that the ENGLISH CROWN GRANTS 29 Indians received full, complete and satisfactory pay ment therefor, after which they vacated Staten Island without a murmer, giving to the English full and complete possession thereof (THE MAJOR AND THE QUEEN, page 16). It may be referred to as a further interesting fact that for many years thereafter and on or about the anniversary of the sale above mentioned, surviving representatives of the Indian tribes, which had deliv ered possession of Staten Island to the English, called upon the Crown representatives in Manhattan and reaffirmed their satisfaction with the sale so made and their continued friendship for the English Crown. When James the Duke of York, succeeding his bro ther, Charles II, became James II, King of England, Staten Island, which he had purchased of the Indians, became a portion of the private estate of the English Crown, or private Crown lands. It would be utterly impossible to frame a single possible objection to the perfect and complete private title to Staten Island received and held by the Duke of York and retained by him as personal Crown land when he ascended the throne of England. He owned Staten Island before he became King and his inherit ance of the Crown from his brother could by no means work a forfeiture of title to lands which he had previously purchased, nor could it automatically merge the King's personal title into that of the State. After the purchase of Staten Island from the Indians and the accession of the Duke of York to the throne of England, English Crown land Grants were made in due form, to various individuals and covering every acre of land on Staten Island, "with- 30 ENGLISH CROWN GRANTS in the bounds and limits of the County of Richmond." The Grants were always made as of the Crown's pri vate "Manor of East Greenwich, In the County of Kent, England," of which Manor Staten Island formed a part. The boundaries of Staten Island and the boundar ies of Richmond County in the State of New York have always been coextensive. These boundaries were originally established by the English Government and subsequently by the states of New York and New Jersey in co-operation with the Federal Government. There is not one square foot within those boundar ies that was not the subject matter of and which was not clearly included in a good and valid English Crown Grant. The records of the State of New York, as herein before stated, disclose a large number of Crown Grants of Staten Island lands, issued to various parties. These Grants, exclusive of the last and final Grant, were originally intended to cover about one half of Staten Island. The last, final and inclusive Grant, issued to Lancaster Symes, covered all of the remaining lands on Staten Island, together with va rious rights appertaining thereto and at that time be longing to the English Crown and which had been purchased of the Indians by the Duke of York on April 13th, 1670. Each and every Grant by the English Crown, of lands on Staten Island, provided in effect by its terms that the lands so granted should be "Hold-in of us our heirs and successors in free and common soccage ENGLISH CROWN GRANTS 31 as of our Manor of East Greenwich, in the County of Kent, within our realme of England." This final Grant to Lancaster Symes, was issued by the Crown itself in the person of Queen Anne and was confirmed by the Council and by the Governor General of the Province of New York. It was after wards ratified and confirmed by the State of New York. (1816). The Grant made to Lancaster Symes closed out to him all of the remaining rights of the English Crown in land both above and below the water on Staten Island and within the limits and bounds of Rich mond County in the State of New York, except ing only the ultimate ownership of the Crown in the lands as Sovereign and the right to receive quit- rents from and under the Crown Grants Issued. It should be borne in mind that each and every Crown Grant made by the English Sovereign to lands on Staten Island was subject to the payment of annual quit-rents by the Grantee to the Crown. These quit-rents though payable, for convenience, in New York City, were in fact a part of the Crown's private income from its Manor of East Greenwich in the County of Kent in England. The officials of the English Government were originally the house servants of the English Crown. They gradually assumed the duties of public officials. Hence the Crown's personal accounts were kept in the books of State under the doctrine of "My Government," — "My people." These facts of history should satisfy any inquirer as to the complete and perfect title originally vesting in the English Crown, and its supreme right and 32 ENGLISH CROWN GRANTS power to retain, lease or sell any part or all of Staten Island as fully and freely as it could any part or all of its Manor of East Greenwish in the County of Kent, England, of which it formed a part, or as any other property holder had the right to do with his own personal manorial property or real estate. Blackstone said, "The Third Right inherent in every Englishman Is that of property, which consists in the free use, enjoyment and disposal of all his ac quisitions, without any control or diminuition, save only the laws of the land." If the old proverb be true that "a servant is not greater than his Lord," surely it must be true that a sovereign has at least equal rights with his servant in his own personal es tate. The consideration for the final Grant by the Crown to Lancaster Symes was ample. The com bined power and authority of the Crown, the Pro vinces and the Council were represented in the Grant to Lancaster Symes and to his heirs and assigns for ever. It is conclusive on the theory that the English Crown held the lands as a part of its own personal estate as Crown lands ; also on the false theory that it held the same as Crown lands In trust for the English People. The Grant to Lancaster Symes was issued by both Crown and people and its validity is incontesta ble. It was subsequently ratified and confirmed by the State of New York upon the commutation of quit-rents thereunder by the State. (See Books of Quits-Rents, State Comptroller's oflice, Albany, Docket 48, page 106.) Furthermore the English Crown had most certainly the right to make the Grant to Lancaster Symes under ENGLISH CROWN GRANTS 33 the title which obtained by purchase from the Indian inhabitants, there having been paid therefor a large and mutually satisfactory purchase consideration. The personal purchase from the Indian owners by the Duke of York had added Staten Island to the per sonal estate of the English Crown. It was at all times held thereafter as of the Crown Manor of East Greenwich, England. In fact each and every Grant made by the English Crown on Staten Island is based upon as solid founda tions as were or could be laid to colonial titles. The issue of the Lancaster Symes Grant by the Crown, its confirmation under the Great Seal of the Province of New York and its reaffirmation through commutation of quit-rents by the State of New York renders the Grant incontestable. During several centuries prior to the American Revolution the precise relation of the Crown to various classes of what were then designated as Crown lands, varied in accordance with the supremacy from time to time of the monarchical or democratic influences in governmental control of the affairs of England. It is, however, a singular fact that during the reigns of the various sovereigns from 1670 to 1776 A. D., and notwithstanding the many changes of English dynasties, the attitude of Parliament and the decisions of the Higher courts of England relating to Colonial Crown lands, were in accord with the gen eral principles of crown ownership of lands which prevailed at the time of the separation of the Ameri can Colonies from Great Britain. It should be constantly borne in mind by the stu- 34 ENGLISH CROWN GRANTS dent of Crown Grants and by all persons interested in the descent of titles therefrom, that rights obtained under any Grant made by the English Crown to lands in America must be determined by the English com mon law governing the same at the time of such issue. In other words, every Crown Grant must be read and construed under the customs prevailing at the time of its issue, and its verbiage must be interpreted and construed according to the then legal force and effect of the words and phrases used at the time of the Grant. This doctrine has been repeatedly enunciated by the American Courts, as judicial opinions have harked back to and have defined and determined the rights and privileges intended to be and actually conveyed by the Crown at the time of the issue by it of Colonial Crown Grants In America. In no case brought to bar In any of our American Courts relating to English Crown Grants has the fol lowing state of facts been fully involved and pleaded, and which is true of Staten Island Grants. ist — That the English Crown (Charles II) made a Crown Grant to James, Duke of York, covering and including the lands in question, with the quit-rents payable to the Crown's private Manor of East Greenwich, in the County of Kent, England. 2nd — That upon the death of Charles II, his bro ther the said James, Duke of York, inherit- ted as his personal property the said Manor of East Greenwich, thereby merging the ENGLISH CROWN GRANTS 35 title thereto into his personal estate, with the quit-rents payable thereto. 3rd — That prior to the Duke of York's ascension to his brother's throne, he had made a pur chase of the lands in question from the In dian owners thereof, so that a perfect title in fee by right of purchase vested in him before he became sovereign. Hence upon his ac cession to the throne "the lands were the property of the King and not of the king dom." 4th — That he, upon his accession to the throne as James II, king of England, and his succes sors granted all of the lands on Staten Island to private Individuals, thereby conveying to various grantees, (a) All of the personal Crown title thereto. (b) Any Imperial title therein. 5th — That the Province of New York attached to said Grants its Great Seal, thereby binding it. 6th — ^That the State of New York, by the com mutation of quit-rents confirmed and re newed the final Grant and Is thereby estop ped from traversing it. yth' — That the people had no rights therein, and had it been otherwise they were closed out by the act of the Province of the State of New York, and by the State of New York. 36 ENGLISH CROWN GRANTS In the period of approximately one-half century during which all of the Staten Island Crown Grants were issued by the English Sovereigns, there were no changes In Pariiamentary law or Royal Practice af fecting the integrity of Crown titles or their issue. No changed attitude of the English Crown, no ad verse decision of the English Courts, nor any recorded protests on the part of the Province of New York, ap pear of record affecting the title of any Staten Island lands Granted by the Crown. No event of history or legal enactment altered or changed the character or legal force and effect of any of the Staten Island English Crown Grants between the dates of the first Grant issued and the final Grant to Lancaster Symes. In other words, every one of such Crown Grants stands on a parity with the others as to the general authority under which it was issued, the legal con struction to be put upon the terms, provisions and con ditions specified therein and the legal effect of the language or verbiage used to limit and define the force and effect of each such instrument. The English Crown in issuing from time to time, Grants to land on Staten Island did, however, vary to some extent the terms, provisions and conditions of the Grants so made by It. This may be illustrated In the two English Crown Grants made by it to Christopher Billop in the years 1676 and 1687 respectively. In the first one of these Grants, Christopher Billop was granted a large tract of upland on a part of which Tottenville is now situated. This Grant was clearly intended to be an upland Grant and extended to high- ENGLISH CROWN GRANTS 37 water mark. This latter limitation evidently proved unsatisfactory to Billop and for apparently a very good reason which grew out of his life's occupation. Christopher Billop was a sailor and as shown in the book entitled "THE MAJOR AND THE QUEEN" (and in other more elaborate and very ex cellent histories of Staten Island,^ — by Ira K. Morris, R. M. Bayles and J. H. Clute) Billop saved Staten Island for the Province of New York from the claims which New Jersey made upon it when the latter as serted that the Island geographically belonged to that Province. This feat was accomplished when Billop demon strated his ability to sail around Staten Island In twenty-four hours. The fact that Staten Island could be circumnavigated in that time brought Staten Island within the time limit of collections from the New York Custom House. Christopher Billop was a sailor; his home was on land, but he loved and roved the seas. When the English Governor General rewarded Billop for his services in securing the claims of the Province of^New York, by granting him land on Staten Island, it was natural that Billop should desire and receive the point of land extending farthest out into the waters and which by its location and outlook would appeal most to a sailor's heart. When Billop received his first Grant, its limits and bounds on the waters were to high water mark. If Billop's lands extended only to high water mark, and Billop had undertaken to land his boat at low tide, he would have been a tresspasser upon the land be tween high and low water mark. Consequently at all 38 ENGLISH CROWN GRANTS times, excepting at high water, Billop would have been compelled to float his boat at sea waiting for the full ness of the tide to lawfully bring himself and his cargoes to shore. Nor could he construct a dock that would not have been "left high and dry" at ebb tide. Such a situation practically placed an awkward barrier between the sailor's home and the sailor's ship. We learn, therefore, from the records that Bil lop obtained a second Grant from the Crown, which Grant covered all the lands previously granted by the Crown to Billop, but added considerable acreage thereto. This increase included favorable coves for the landing of boats west of the southern point of the Island and also Billop's lands to low water mark. Under this latter arrangement Billop's Harbor facilities were greatly improved and his ability to bring to shore his boats on any and every tide was assured. It is well to notice here that the English Crown changed the shore front lines for Billop because of the fact that there was a good and sufliclent reason for it so to do. The change was one resulting from an expressed reason, was made upon due reflection and to meet an equitable demand based upon a commer cial need. No "riparian right" accrued or inured to Billop by which he could accept a Grant of the Crown's uplands and then compel the Crown to grant him more land on the shore. No such "Riparian right" inured to Billop as against the Crown, or to any other citizen In the British realm. Especially is this Indisputably true when it relates to lands privately purchased by the Duke of York of ENGLISH CROWN GRANTS 39 the Indians and added to the Crown's private lands against which no presumption of title could avail. This denominated Riparian Right is a later doc trine applied to Staten Island by minds unacquainted with English Common Law in the Colonial period and the then rights of the English Crown. Staten Island was a part of the Crown's personal estate. It was property purchased. It was attached to a private Crown Manor. All Grants were construed favorably for the Crown and against the Grantee, excepting as shown herein in the "analysis of a Crown Grant." The Monarchical theory as to the sacred rights of the King precluded a subject from receiving and ac cepting a Crown Grant of lands with fixed limitations and boundaries and then by implication asserting a lien or a "riparian right" to more of the Crown lands than were included in the description contained in the Grant. The lesser title, that of the subject, could not assert itself over the higher or greater title, that of the Sovereign. While the Crown was in a generous mood, it dealt even more liberally with Billop than appears alone by acres and shore privileges. In the second Grant to him, it authorized, in elaborate detail, the founding or establishment for him of the Bentley Manor. The Crown Grants to Billop are interesting instruments and were Issued along the lines consistent with the establishment of Manors in England. While the founding of the Manor of Bentley was a departure as to jurisdiction from the ordinary Crown Grants Issued on Staten Island, the authority to make the Grant, the interest given to Billop in the 40 ENGLISH CROWN GRANTS lands and the legal basis of the title to lands so granted to Billop, were the same as to all other lands granted on Staten Island. The authority given to Billop to exercise certain manorial rights and priv ileges within the limits and bounds of his Grant had no bearing whatever on the rights granted by the Crown to the lands underlying the same. The two are separate and distinct. Manorial rights are those of jurisdiction only, while land Grants are rights of proprietorship. Manorial rights, privileges and authority were swept away by the triumphs of democracy in the American Revolution, but rights of property were not affected thereby. Under the indisputable rights acquired by purchase from the Indian proprietors, Staten Island was owned in fee as personal Crown property. Staten Island might have been held as a part of the private estate of the Crown, its title thereby de scending from Sovereign to Sovereign, by right of personal inheritance in the same manner as the Crown descends. It might have been granted by the Crown to some one grantee of the Crown as a manor. This was done in the case of Gardiner's Island, at the East end of Long Island, by an English Crown Grant to Lyon Gardiner. This latter magnificent estate, so granted in its entirety, has descended from genera tion to generation in the Gardiner family even unto this day. The English Crown, however, for the purpose of developing the Province of New York, as is clearly set forth by it in some of Its Grants to lands on Staten Island, made Grants thereon to more than one hun- ENGLISH CROWN GRANTS - 41 dred and fifty grantees, of which number the final and inclusive Grant was made to Lancaster Symes. There are certain prominent and conspicuous feat ures displayed in the various Grants issued by the Crown to lands on Staten Island. The lands in each case are especially described by metes and bounds, and the Grants are in themselves proof positive that the English Crown at that time, or during the period in which the series of Grants were issued, had a definite and accurate survey of Staten Island. The many references to varying and natural fea tures on the surface of the lands so granted, as shown in the respective Grants, clearly prove the Crown's intimate knowledge of the topography and exact lo cation of such features on the surface of Staten Isl and. This is in strange contrast with the expressed pub lic opinion, prevailing for several generations past, to the effect that no survey by the English Crown had ever been made of Staten Island. In this case may not "the wish have been father of the thought" on the part of some who occupied lands, their titles to which could not be traced back to any English Crown Grant ? The theory that no survey of Staten Island was made in Colonial Days has been completely exploded by the investigation made through a long period of time and at large expense by the American Title and Trust Company, of Wilmington, Delaware, now so largely interested in property holdings on Staten Is land. This latter Company discovered in England and now has In Its possession among its large collection of 42 ENGLISH CROWN GRANTS Staten Island Maps, an English survey of Staten Is land, made by the British Government prior to the American Independence showing the water fronts and uplands on Staten Island. It sets forth in varied and distinctive colors the then existing meadows, marshes, hills, highways, private roads, houses, lakes, ponds, bays, rivers and seas. The Map is drawn to scale and contains the compass and the then variation of the magnetic pole. It is a superb piece of workman ship and displays a painstaking care as to details which might well challenge the admiration and envy of the employees of many modern surveyor's offices were they called upon to duplicate this map by an original survey. In addition to the important general survey re ferred to, the American Title and Trust Company has also secured from official sources a map of Staten Island prepared by Government officials and which map locates each and every English Crown Grant issued for lands on Staten Island. Each Crown Grant is clearly defined thereon by metes and bounds. A compass and the variation of the magnetic needle Is also clearly shown thereon. In addition to the foregoing maps, the American Title and Trust Company has also sought out, found and acquired a vast number of official surveys of the shores and the uplands of Staten Island. Through this wealth of accumulated and authori tative data, commencing with a survey of the shore fronts of Staten Island in the year I728 and extend ing at intervals down to the present time, together with field-notes and field-maps of almost Inestimable value, the American Title and Trust Company is able ENGLISH CROWN GRANTS 43 to locate and map the Crown Grant underlying any single building lot on Staten Island. It may be thought by some that the English Crown did not in fact own Staten Island as a part of its pri vate estate. They may even question Staten Island's vital connection with the Royal Manor of East Green wich in the County of Kent; and may also insist that the Crown lands on Staten Island shall be treated as public Crown lands. They may urge that the char acter of the lands shall determine which were held as personal property of the Crown and which were held in trust for the people. This is but a little longer route by which we will reach the same' final conclusion as obtained by the shorter, more direct and correct theory of absolute private ownership by the English Crown of every square foot of land on Staten Island. This ownership includes uplands, meadows, marshes, streams, shore- fronts and lands between high and low water mark and submerged lands to the very last limit and bounds of Richmond County. Under such an incorrect theory of representative Crown ownership certain questions will naturally pre sent themselves. What was then the character of the English Crown Grants as issued? What lands, if any, under such conditions could have been granted by the Crown in its own right, as the actual owner thereof, and what lands, if any, could have been granted by the Crown, the title to which It held In trust for the people? Furthermore, the natural inquiry might arise as to whether there Is any question or doubt as to the ac tual legal right and power of the Crown, when hold- 44 ENGLISH CROWN GRANTS ing title to land In trust for the people, to grant the same to private individuals with or without the con sent of the people fully and foi-mally expressed? In response to these very proper and pertinent questions, arising from a misconception of the com plete title to and power over Staten Island lands vested in the Crown, the facts of history and the de cisions of courts of proper jurisdiction completely meet the situation. We have clearly and repeatedly stated that the English Crown held a perfect title to Staten Island by direct purchase, which fact legally settles once and for all the foregoing inquiries. Were that fact not established and if the basis of every title to lands on Staten Island depended upon the acquiescence of the people in any and all Grants thereof such objection is fully met upon examination of the original Grants made by the Crown to Staten Island lands. No Crown Grant to lands on Staten Island has ever been judicially voided and the people acquiesced in and recognized the binding force and effect of each such Sovereign Grant. As a proposition of law lands are considered and designated real property without regard to whether the same are uplands or submerged. The fact of the presence of water upon the surface of a tract of land does not in any wise legally alter its character as land. A Crown Grant to all the lands within the bounds and limits of a County covers all the soil within such County whether part of the same is lifted up in hills a hundred feet above sea-level or is sunk beneath the sea a hundred feet deep. In the eyes of the law, land is land regardless as to whether it carries on its ENGLISH CROWN GRANTS 45 surface soil, sand or sea. It is simply a question as to whether such land is included In the description contained in the deed and whether the Grantor has power to convey. The waters themselves independent of the land and composing the seas, bays and navigable rivers are not the subject of private ownership. It has been judicially settled for generations that the sea, bays and navigable rivers are highways of commerce, free to the use of all citizens of the country having juris diction thereover. Commerce thereon may be regu lated by and in the interest of the nation, but the sea itself, that is the waters thereof, can belong to no man as an individual proprietor. It has been clearly determined that the Sover eign while owning the lands under navigable waters, as a part of the vacant and unappropriated lands of the realm, can have no private ownership of the navi gable waters themselves. "The flow of water in the stream of a navigable river is in no sense private prop erty." "Private right to running water in a great navigable stream is inconceivable." (Boviere Navi gable Waters.) The former rights of the Crown to the uplands of Staten Island as a part of the vacant and unappro priated lands of the realm was not and cannot now be successfully questioned. The facts thereof arc too patent and the judicial decisions are too clear and conclusive to even admit of argument in relation thereto. Were it otherwise overwhelming confusion and chaos would exist in relation to the basis of substantially all titles not only on Staten Island but in all of our Eastern States. 46 ENGLISH CROWN GRANTS Discussion has occasionally arisen in respect to the character of the title originally held by the English Crown to the lands between high and low water mark on our Eastern tidal coast. We may state the proposition as follows : Man's domicil is on land, but he has an inherent natural right to navigate the seas. Public necessity, therefore, demands for him a right of approach to and egress from the waters of the Great Deep. To exercise that right he must traverse the shore between high and low water mark. Were It otherwise the inhabitants of an island sur rounded by tidal waters, would be practically im prisoned thereon because of the fact that surround ing the Island there would be a narrow belt of land between high and low water mark owned by the Crown. To impinge the keel of a boat thereon would be to violate the territorial integrity of the land held by the crown. Under such conditions the inhabitants of an island could only launch their boats or approach the shore at the moment of the high tides and then only in a boat of such shallow draft as to be almost unnavi- gable. It has therefore been exaggeratingly claimed as one of the basic principles of human rights that the strip of land between high and low water mark belongs' to the people. This rule does not apply to Crown lands or ,to land granted by the Crown. It is con sidered by some as communal land and is claimed to be similar to what was earlier herein described as the "Commons," the title being held In the Crown as trustee for the people. This theory is contrary to ENGLISH CROWN GRANTS 47 the governing decisions and especially untrue as to Staten Island. A right of egress and Ingress, however, is possessed by the people, but it must be and in the nature of things is a very restricted one. It Is a right to go down to the sea in ships and to return therefrom. It was a right of "access to" and the right of "egress from" the waters of the Great Deep. No proprietor of said ribbon of land could take possession thereof so as to Interfere with the ingress and egress rights of Individuals. The theory of "No Man's Land, apply ing to such an important shore line, and when applied to any land is repugnant to law and contrary to good government, hence the title thereof was vested In the Crown as Chief Lord Proprietor. The argument Is at times advanced that the land between high and low water mark is neither upland nor submerged land. It has been contended that the Crown had no right whatever to make any grants thereof without the direct and fullest authority ex pressly given to It for such purpose by the people or by their duly authorized representatives. This peculiarly situated strip of land, under this theory, is compared by some to the "King's Highway," the title to which is in the Sovereign, but from which highway the public cannot be excluded or of which the public cannot be deprived by the Crown, except ing In case of great public need or danger, or the substitution of another highway therefor. A high way of travel and the right of Ingress and egress are antipodal. On the other hand, authorities have contended that the title to the land between high and low water mark, 48 ENGLISH CROWN GRANTS having been conceded by the people, to the Crown, it had a full and supreme right to make Grants there of and that the grantees were uhder no obligation whatever to inquire into any arrangements or rela tions between the people and the Crown relating thereto. This may be consistently based upon the theory that "the King can do no wrong." That is, the people having conceded the title as being in the hands of the Crown to possess and control the strip of land between high and low water mark, as trustee for the people, then they were bound by the acts of their Sovereign. This presumption agrees with the Monarchical doctrine of "My Kingdom." The above propositions have been at times advanced by parties who may have only superficially examined into the character and nature of the English Crown's title to and the English Crown Grants of lands on Staten Island. In the earlier periods, or "middle ages," when the then sovereigns were given or acquired control of or title to community lands (we do not here refer to the Crown's title to "vacant and unappropriated lands") it was customary for the sovereigns to make Grants thereof either by Lease or otherwise. All such Grants of communal lands were then made, however, upon consultation by the sovereign with his Woden or wIseman. In no instances were tidal lands held as communal lands. They were always held to be waste lands of the realm with the title thereto in the Crown. In the combination of the Sovereign and the wise- man we have the crown representing itself and the Woden advising independently of the people. The ENGLISH CROWN GRANTS 49 wiseman was soon thereafter associated with other wisemen and they, when so combined, became the King's Council, selected and appointed by the Sov ereign, without consultation with or consent by the people. From this first and simple relation of Crown and Woden, there developed later on a limited monarchy composed of the Crown and the King's Council of wise-men, selected from and representing the people. Then Parliments followed on an elective basis with a voice in the Government but not as to Crown Grants in the American Colonies. When civil government was organized In the Eng lish-American Colonies the English system of com mon law was transferred thereto and installed there in. The distance and time consumed in crossing the sea and also in the return voyage, were so great that the direct government of the Province of New York by the Crown and direct legislation over it by Parliament In England, were found to be not only inexpedient but absolutely impracticable. Thereupon a Governor-General was appointed by the Crown for each American Province of Great Britain. These Gpvernor-Generals were to represent and did represent the Crown Itself and Councils were also appointed In the Province to advise the Gover nors. Later on as the Province developed, a Colonial Assembly was established, which Assembly more fully and satisfactorily represented the people. In the earlier Colonial Period in America, because of the wide seas that separated the Colonies from the mother country. It was ordained by Parliament that 50 ENGLISH CROWN GRANTS any laws enacted by a Colonial Assembly and approved by the Governor-General of the Province should immediately have the full force and effect of an act passed by the English Parliament and approved by the Crown. It became operative forthwith upon its enactment. In the event, however, that such action did not meet with the approval of the Imperial Gov ernment at London, then the English Crown had the right to veto or annul such procedure and make void such act. This right of veto was conditioned, however, only and absolutely upon the legality of all. proceedings' under the law during the lapse of time between the passage of the act by the Colonial Assembly with its approval by the Governor-General and the date upon which the ofliclal Crown veto reached the authorities in the Province where the law was en acted. It was however the Council and not the Assembly which ratified the Crown Grant, to protect the Crown. It was done by the Crown's appointees and not by the people's representatives. This statement Is here fully made in order to show that any Grants which may have been properly made by the Governor-General of the Province of New York In behalf of the English Crown and which Grants were approved by the Council in New York, conveyed to such grantees the rights specified therein. The people had no voice In the premises. Every property and political right possessed by a settler in the Province was founded upon a Crown Grant and he had no other title or right In the Crown lands in the Province. ENGLISH CROWN GRANTS 51 This forever estops any and all traversing of the right of the Governor-General and his Council to the making of the English Crown Grants so issued to lands on Staten Island and especially and particu larly to those Grants relating to lands between high and low water mark on Staten Island, and also to lands under water, to the "bounds and limits of Richmond County." The Crown's right to make such Grants has not been traversed in two centuries. The rights there under have been privately held and enjoyed while vast improvements rest now securely upon such rights fully exercised. After the Crown had made about one hundred and fifty Grants of land on Staten Island, largely through the acts of the Governor-Generals and their Councils, the English Crown desired, for reasons fully set forth in "THE MAJOR AND THE QUEEN," to close out to Lancaster Symes all of its remaining titles to lands on Staten Island and within the bounds and limits of Richmond County. In order that no question might ever arise as to the regularity of issue and validity of the Grant to Lancaster Symes it was issued and sealed by and In the name of Good Queen Anne and under her Royal Seal. By direct and Imperial order that Great and Good Queen caused here Royal Grant to be issued 10 Lancaster Symes, closing out to him and to his heirs and assigns forever, as of her Manor of East Greenwich In the County of Kent, all the lands then remaining vacant and unappropriated on Staten Island, within the bounds and limits of Richmond County, together with the rights of fishing, oyster- 52 ENGLISH CROWN GRANTS Ing and other privileges not necessary to relate herein but fully and clearly shown in the books of public lecords. To this Grant was attached the Imperial or Royal Seal, carved in wood with the Royal Arms repre sented thereon. The boundaries of Richmond County as shown upon any standard map issued by the State of New York or by the State of New Jersey, or in fact issued by any responsible firm of map publishers are within the bounds and limits of the English Crown Grant to Lancaster Symes as made by the Sovereign Queen Anne under the Imperial Seal. No other Staten Island Crown Grant was made In which the lands under water conveyed by It touched at every point the limits and bounds of the County of Richmond. No other Crown Grant of lands on Staten Island extended at any point to such bounds and limits. This Grant was not only issued by the Queen but It was approved by the Imperial Council in England. It was approved and ratified by the Colonial Council and by the Governor-General in the Province of New York. Thereupon it was properly patented and recorded. It constituted the highest form of and v/as the most important Crown Grant of lands ever Issued for lands on Staten Island. It was accepted and acted upon by the people during the entire sub sequent Colonial period and has never been chal lenged. Since the date of its issue to the present time, cov ering a period of over two centuries, every generation has exercised the rights of land ownership thereunder through sales, possessions and improvements thereon. ENGLISH CROWN GRANTS 53 In all that period of time neither Federal, State nor City Government has in a single instance denied legality or regularity in the issue thereof. No citizen has denied the full force or effect of the said Grant, while multitudes have enjoyed Its protection and benefits. THE NEW WORLD AND CROWN GRANTS At the close of the fifteenth century the maritime nations of Christendom were all ecclesiastically domi nated by the Roman Pontiff and acknowledged him as the spiritual representative of God on earth. The "known world" prior to the epochal discov eries made by Columbus, had been largely divided up among the so called Christian nations. The waste, vacant and unappropriated lands in each realm, were universally recognized as the per sonal property of the respective sovereigns. These rulers under the doctrine of the divine right of Kings and claiming to represent divine authority in political sovereignty, held title to all lands within their domains over which the Almighty alone held sway and which lands no human held by right of ownership. Suddenly the great navigator Cristoforo Colombo opened a door on the sea's western horizon and a "new world" loomed up out of the great unknown, as a gift from God. These newly discovered continents consisted en tirely of vacant and unappropriated lands, for the heathen inhabitants thereof were adjudged to be pagans, who under the unchristian code of inter-na- 54 ENGLISH CROWN GRANTS 55 tional law then prevailing, had no right whatever to life, liberty or the pursuit of happiness and much less any title to lands which the conqueror felt bound to respect. The title to the virgin lands of the New World was admittedly and undeniably in God, for over them as yet no alleged Christian monarch by a so- called divine right held sovereignty. The Portuguese and Spanish mariners promptly re ported their new discoveries to their respective Sov ereigns and the latter hastened to renounce all claims thereto at the feet of the Holy See in Rome, each however seeking a Grant therefor from the Pontiff. Under the doctrine that the Pope at Rome was the visible head of the Church of God on Earth, there fell to him under international law the control of these virgin lands the title to which was conceded to be in God. It was consistent therefore with such a world accepted theory that on May 4th, 1493, Pope Alex ander VI, just seven weeks after Columbus cast anchor in the harbor of Palos, issued his famous Bull dividing between Spain and Portugal the newly discovered world. The Papal Grant which was at that time Issued to the King of Spain (Castile and Leon) on the one hand and the King of Portugal on the other, recited that it was "given with the liberality of Apostolic grace." Also that, "we at our own motion and not at your solicl- "tation, nor upon petition presented to us upon "this subject, by other persons in your name. 56 ENGLISH CROWN GRANTS "but of our pure free will and certain knowl- "edge, by the authority of God Omnipotent "granted to us through blessed Peter and of the "vicarship of Jesus Christ, which we exercise "upon earth, by the tenor of these presents "given, concede and assign forever to you and "to the Kings of Castile and Leon your succes- "sors, all the islands and main lands discovered "and which may hereafter be discovered, to- "wards the West and South, with all other "dominions, cities, castles, palaces and towns "and with all their rights, jurisdictions and "appurtenances, * * * _" This Bull, of Pope Alexander VI, of which the foregoing is but an extract, "did shape the destinies of both hemispheres for centuries, leaving vast traces even to-day." "It practically gave a monopoly of most of the World's seas to Spain and Portugal and for a century thereafter the ships of all nations but these voyage^ at their peril in the South Atlantic, Indian and Pacific Oceans." Spain's Empire in South America, in Mexico, Cal ifornia and Florida rested upon it. Portugal's sover eignty over Brazil was under it and the title to the Philippines which the United States of America pur chased from Spain eminated from it. Strange analogies run between the original Grant made by Pope Alexander VI covering the New World and the Grant made by the English Crown to Lancaster Symes and others, referred to herein (Chapter 13). ENGLISH CROWN GRANTS 57 The Pope alleges that his right to convey is "by the authority of God.-" The English Crown says that its authority is "by the grace of God." The Pope says that his Grant is issued by him "of Apostolic Grace:" While the English Crown Grant claims to be issued of "Especial Grace," for said the reli gious authorities, "Ordination (of the Crown) is a sacrament and confers a special grace, which is permanent." The Pope further records that he grants by his "own motion," The English Crown Grant represents being isued by "meer motion." The Pope says that he makes the Grant of "our pure free will," And the English Crown Grant says "we being willing." The Pope declares that he issues his Grant having "certain knowledge." The English Crown likewise claimed "cer tain knowledge" or correct and sure informa tion. In both Pontifical and English Crown Grants "lands" and "islands" are granted but with no specific reference to lands under water. 58 ENGLISH CROWN GRANTS In no civilized country nor in any Court is it held that submerged lands were not included in the first great and original Grant issued by the Pope covering the virgin titles of the New World. On the con trary, every nation claiming thereunder maintained its title to submerged lands. Under tjldal waters, according to the universally accepted law of nations. The Pope's original American Grant was made to the Kings of Spain and Portugal and not to those kingdoms. The Grants made by the English Crown to its Grantees in America were in conformity with the same principle, made by the Kings and not by the Kingdom. It should be remembered that the English claims of Divine right as to kingship and Crown land titles in America are, in theory, drawn from the same eternal source as claimed by Pope Alexander VI; that is, direct from God and free from any inter mediary ownership by a subject. The Anglican Church has direct descent from the Catholic Church at Rome. Pope Alexander VI occupied the pontifical chair prior to the seism between Rome and London. The English Crown therefore claimed its right by divine authority manifest In the Church and under the solemn benediction of the Bishop of the Church of God bestowed at the coronation of the Kings. If a written instrument is to be construed accord ing to the intent of those who draw and execute it, then the English Crown Grants to lands in America are to be interpreted in the spirit of the royal minds issuing them. ENGLISH CROWN GRANTS 59 The English Crown recognized that It had re ceived its rights in the New Worid from God Al mighty, whether the discovery was made by the Cabots or Columbus. It then sought In carefully worded written instru ments to convey to its Grantees unimpaired those sacred and solemn rights of property and privilege which it had received in its own solemn relation as a Divinely appointed and ordained Monarch. In harmony with such a concept, Lancaster Symes, upon his receipt of -the Crown Grant issued to him by Queen Anne, "the good Queen of England," cov ering lands on Staten Island and as an act of Fealty and Service to the Great Head and original Source of all titles, immediately endowed St. Andrew's Church at Richmond, Staten Island, the benefits of which endowment that church has enjoyed unto this day. He conveyed to it two large tracts of the same lands granted to him by the Crown, one tract for a church and burial site and another tract for glebe uses. The doctrine Involving the sacred rights of prop erty under Crown Grants harks back to the solitudes of God and Is prophetic of a world's restitution to its Divine Proprietor, when the last man shall sleep amidst its final silences. ENGLISH COMMON LAW AND CROWN GRANTS In Colonial days English Comon Law recognized the issue of Enghsh Crown Land Grants as a mon archical prerogative entirely apart from the people. We, in these more modern days and in this re public, look at English Crown Grants from the view point of democracy or of the dominance of the people. The view point shifted for us in 1776. At that time the people seized the Crown of Sovereignty and absorbed all Crown rights. Justice requires that wc shall not color our present thinking with the prejudice born of our larger liberties, when we consider the basis of certain Grants of land made by the Crown to private owners and which land should In our judg ment, have been retained by the Crown for the use of the public at large. Such self-interest will not justify the seizure and forfeiture of private property rights previously obtained from the Crown, if so obtained in strict conformity with the Common Law at that time prevailing with its full approval and support of both Sovereign and people. We should, in imagination, turn back the wheels of human progress and think out our mental prob lems of Crown Land Grant investigation in the dim- ENGLISH CROWN GRANTS 6i mer, but correct and wholesome light of old English Common Law. To properly interpret the language used in the English Crown Land Gra'nts twhich were issued during the Colonial Period and which conveyed lands in the American Colonies, we must read them in the light of their times, and translate them in accord with the intent of the original Grantor and Grantee. We must interpret such Crown Grants with proper regard for the then exact legal meaning of the words used therein and as at that time understood by the Crown and its English speaking subjects. The language of a people changes as time pro gresses, but property rights acquired do not in the slightest degree alter under a languages shifting meaning. Such changes are not limited to the style of chiro- graphy or to variations in the spelling of words, all of which are but trivial tokens of the deep and rest less pulsations of mind waves, in the ceaseless tide of thought bearing words. Words may grow, ex pand and deepen under the vitalizing Influences of human progress, or they may wither and shrivel from non use and become obsolete, with its benumbing and deadening effect. Words in their evolution of meaning are flexible and absorbent. They take on new shades of thought, while lexographers show us that by their use in some connections they change their import In popular defi nition. Legal definitions also take on new lights and shades as generations pass. He who would voice to us in modern language the thought of the past, or who would cloak the thought of the present in the phrase- 62 ENGLISH CROWN GRANTS ology of by-gone-days, must tread softly and feel his way with care and discernment along the pathway of human thinking. Otherwise his dictum will be inconsistent with the intent and expression of former thinkers and if followed may become subversive of the sacred rights of the present and future genera tions. Justice would not falsify the past to the injury of the innocent in order to forfeit merited properties and privileges and to destroy vested rights. To us, many an old English word has lost from its bosom some rich gem of human emotion. > Other words, through the polishing friction of use, under changing conditions, have taken on a new brilliance and luster. In many of the old English Crown Grants we find that rich and grand old English word, "grace" in scribed therein. That word was formerly full and fragrant with a meaning which expressed a wealth of unselfish love to one beloved and for love's sake. To-day, the word, "grace," in common parlance, practically represents symmetry and the artistic in form, carriage and poise, or it may suggest a suave condescension. Modern grace may be betokened by the handsome and stately feminine form and figure, while the old English word grace found its portrayal in the divine mental and spiritual endowments of the highest and noblest types of true and perfect womanhood. Modern grace may be exemplified in death, but the grace of our forefathers was immortal. It never dies. We Americans with somewhat less of ceremony ENGLISH CROWN GRANTS 63 than brusqueness denied the "divine right of kings," at the same time we accord to our judiciary "the divine right of final judgment" affecting human rela tions. To these our appointed dispensers of supreme jus tice, ancient English Crown Grants are brought for adjudication. These Grants written in the language of the past and under the English Common law are to be in terpreted in the language of the present day, with the sacred rights of vested property depending upon the faithful and correct translation and interpreta tion thereof. Prior to the American Revolutionary war the Common Law of England, in so far as it could be adapted to the western continent became the basic law of the American Colonies. It became funda mental in America. It underlaid the whole superstructure of American Colonial Institutions. In pursuance of English Common Law the- Colo nies were developed. Under it the Governments therein were established, human liberties were therein guaranteed, and property rights were therein safe guarded. Colonial institutions of almost every kind and nature existed by virtue of Royal Grants from the Crown, back of which was the old Common Law of England. _____ ™. Under Crown Grants great commercial and trading comp-anies were organized in America. The English Crown was the source of Granted Charters for the 64 ENGLISH CROWN GRANTS Educational institutions and Ecclesiastical bodies founded in the Colonies. Crown Grants were the source of Colonial land titles. It is very clear that the existance of Colonial in stitutions, the preservation of human liberties in the Colonies and the protection of the rights of private property in the Provinces, all depended absolutely upon the integrity, inviolability and validity of the English Crown Grants which rested upon and acquired their force and effect from and under old English Common Law. The Crown Grants so issued, by their terms, gave in unequivocal language certain valuable rights and properties in exchange for certain revenues or Quit- Rents as the consideration therefor. The Crown under English Common Law had pos sessed the rights and properties so parted with and in return for such conveyances the Sovereign received the consideration provided to be paid under the terms of the Grants. It was a fundamental proposition of law at that time as It also is now, that where two parties entered into contract relations for a valuable consid eration, one of the parties thereto parting with the subject matter of the contract and the other thereto faithfully paying the agreed consideration therefore, and mentioned therein, the contract so made is irre vocably binding upon both parties thereto, unless voided by the free and voluntary consent of each. It was true that fraud might void a contract, but not where the Crown was a party thereto. "The King cannot deceive" and "the King cannot be de- ENGLISH CROWN GRANTS 65 ceived" were maxims of law then well understood and accepted by King and people. How then could the issue of fraud be raised? The people of the realm were fully and com pletely bound by the Royal Grants covering rights and properties in the Colonies and also in England. Crown Grants were "open letters" or letters patent. They were not secret instruments but designedly and by established rule and practice issued in full sight of and with the knowledge of the public. Black stone and other authorities tell us of the great care, precaution and painstaking publicity with which they were considered, prepared and issued. The custom pursued by the successive Sovereigns in England, in this legal procedure with the full knowledge and tacit consent of the people, cannot now be successfully traversed on the theory that the King had no right to grant certain classes of land which he is alleged to have held in trust for the people. Such Grants, if they had been made by tie State in these days of democracy might with a color of credulity be so called in question. In effect our statuary enactments restraining pub lic officials from making Land Grants under cer tain conditions, not prescribed in Colonial days, in themselves admit that such practices were consistent with the common law and usage and can only be now restrained by statuatory enactments. The argument based upon any theory of lack of Kingly power, if made, will not be sustained under our leading decisions. No such attitude was tenable under old English Common Law. It is to be said 66 ENGLISH CROWN GRANTS to the lasting credit of the New York Judiciary that the Courts of the State of New York have never voided an English Crown Grant. England had no constitution. The Magna Charta did not limit the right of the King to make Grants of land in America. "Such is undeniably the doctrine upheld In the State of New York." (Court of Appeals of State of New York.) The English Courts had for generations prior to the American Revolt fully and completely recog nized the English Crown's right to make such Grants throughout the realm. Simultaneously with the issue of Royal Grants in the Colonies the English Crown freely and unrestrainedly Issued multitudes of similar grants In England, Scotland, Ireland and Wales. The American Colonists accepted such Colonial Grant in good faith and paid their Quit-Rents. They then proceeded to lay thereon the foundations of an old civilization in a new world and under the pro tection of English Common Law. All this was done with the full knowledge and con sent by and of the English people. It was in har mony with the latter's free, frequent and contem poraneous Indulgence and participation in like prac tices and policy exercised toward them by the Crown In both England and America. What was sauce for the English goose, was a sauce for the American gander. "The English Crown looked upon America "as but the extension of the soil of England." What was legally and morally right to an Eng lishman in England, was likewise legally and morally ENGLISH CROWN GRANTS 67 right to him when he migrated to the Colonies. There was no double standard of justice and equity, under English Common Law. This statement is so fully made herein, in order to emphasize the fact that the English Crown Grants were no emergency inventions on the part of the Crown to meet conditions suddenly arising in con sequence of the discovery and settlement of America. The English Crown had been making Crown Grants for centuries prior to the discovery of the New World. The Grants made in America com prise but a chapter in the record of England's his toric policy and practice. Suddenly a new English ministry facing a deficit created by vast European War Expenditures, sought to increase the Royal revenues by imposing a tax upon the American Colonists not prescribed in their Grants and demanded increased revenues from the American Colonies. The British Government undertook to "read into the Crown Grants" already issued, the right to abro gate, rescind, limit or amend the same without the consent of the Grantees. It undertook to deprive Connecticut of its pre viously granted Charter and Plymouth Colony of Its privileges. It attempted to enforce the same policy in other directions in America. Yale College (1763) and other great commercial bodies vigorously protested against such attempted invasion of the rights enjoyed by them under Crown Grants. The Colonists asserted and pleaded the sacred rights of contract and the Inviolability of personal 68 ENGLISH CROWN GRANTS and public rights which had been granted to and acquired by them under the Seal of their Sovereigns. The Crown had made the Grants and the Colonists had invoked the accepted rule of Old Eng lish Common Law that "the King can do no wrong." They claimed that the Crown did right when it issued the Grants to them and it could not rescind the Grants for that would be a legal and moral wrong. Accord ing to English thought, this was logic and not sophis try- The Colonists flatly denied the Sovereign's right to demand by taxation any increase in revenues from those who held their properties and rights under well defined and clearly drawn Crown Grants, in which Grants their Quit-Rents were fully specified and their rights were clearly defined. "Staten Island is comprehended in the West "Riding of Long Island but payeth noe tax, be- "ing enjoyned by their patents to pay a bushall "of good wheate for each lott consisting of 80 acres. (Report Commissioner John Lewin to Duke of York.) Taxation, then, without their consent would have been a flagrant violation of their granted rights and an arbitrary exercise of kingly power. On this issue was fought the battles of the Ameri can Revolution. For the Colonist to have admitted the right of the Crown to alter, amend or rescind its Colonial Grants would have been the admission that all of their property rights, commercial privileges and personal liberties were held by Royal suffrance ENGLISH CROWN GRANTS 69 and favor. This doctrine once admitted, then these privileges might have been withdrawn through Royal caprice and at the King's pleasure. Liberty could then have been replaced by servitude and property could have been displaced by poverty at the will and whim of their Sovereign. The Colonists well knew that English Courts and other legal authorities had uniformly maintained that the most dangerous power to be surrendered back to a government was the right to confiscate pri vate property without adequate compensation there for. "So great moreover is the regard of the law "for private property, that it will not authorize "the least violation of it; no not even for the "general good of the whole community. If a "new road, for instance, were to be made "through the ground of a private person, it "might perhaps be extensively beneficial to the "public; but the law permits no man, or set of "men, to do this without the consent of the "owner of the land. "In vain may it be urged, that the good of the "individual ought to yield to that of the com- "munity; for it would be dangerous to allow "any private man, or even any public tribunal, to "be the judge of the common good, and to dc- "cide whether it be expedient or no. "Besides the public good is in nothing more "essentially interested, than in the protection of "every Individual's private rights, as modelled "by the municipal law. In this and similar 70 ENGLISH CROWN GRANTS "cases the legislature alone can and indeed fre- "quently does, interpose and compel the indi- "vidual to acquiesce. "But how does it interpose and compel? Not "by absolutely stripping the subject of his prop- "erty in an arbitrary manner; but by giving him "a full indemnification and equivalent for the "injury thereby sustained." (Blackstone, Book i. Chap, i, p. I39). All the above questions and more set the Colonists aflame and civil war ensued. The Colonial Grants were resealed in the blood of the patriot and ratified and confirmed by victory. The issue referred to was eternally settled in America by the final decree of that Court of last re sort, WAR. By that decision all English Crown Land Grants became inviolate. "They mean what they say, and they say what they mean." That decree settled forever that nothing can be "read into them," or emasculated from them. Crown Grants issued by the English Crown prior to 1778 and covering lands In America were there after to stand, unquestioned, on any ground as to their merits, and should be interpreted under English Common Law with the full force and effect with which they were issued by the Crown and received by the Colonists. In harmony with this final arbitrament of war, the Governments of Great Britain and the United States of America by solemn treaty stipulations, recog nized, affirmed and confirmed the validity of the Grants previously made by the English Crown. ENGLISH CROWN GRANTS 71 The State of New York has likewise in each con stitution adopted by it, solemnly ratified the English Crown Grants, which had been consumated in good faith and thereafter sustained through the horrors of a Civil War. Hence the issued Crown Grants stand unimpeach able under treaty and constitutional provisions, as to the kingly power to issue the Grants or as to any trespass upon the rights of the people. The people themselves denied this trespass by force of arms, compelled the Crown to ratify them and our Govern ment affirmed that decision. Princes and People are alike bound by all treaties of peace made by their Sovereign Governments. To reach a correct understanding of the rights and privileges conveyed under an English Crown Grant we should. First Disregard every statute enacted since such Grant was patented. Second Disregard every judicial decision made since the English Crown Grant in question was patented and relating to old English Crown Grants in general; Excepting Only However The legal definitions and interpretations con tained In such decisions relating to the Common Law of England existing at the date of the issue of the Grant under consideration. We must go back to the "stuffy little old English Court room" of the Colonial period. We must there on 72 ENGLISH CROWN GRANTS consult the decisions of the old Court of the King's Bench, together with the opinions of other old authorities who then determined the rights and pow ers of both King and people, under old English Com mon law. At that time monarchical influences were in the ascendancy and democratic principles were In dormant embryo. The accepted theory in those days was that all pri vate title in and to lands came to the people through the condescension and benevolence of their Sover eign, who had received such title by divine right from God. Therefore, according to that doctrine the title to all vacant and unappropriated lands in the realm had never passed throught or from any member of the human family and no private rights attached thereto or were Inherent therein. "Me und Gott" then as well as now (1918), pro claimed by the ruling Sovereign bespoke a theory of "close corporation," arrogated to itself by human Kingship; a complete monopoly of title by royalty in utter disregard of the comfort, happiness and wel fare of the subjects in the realm. To dispute such a Royal right was considered treasonable to the King and blasphemous to God. To all this the people assented and cried out, "Long live the King." Consequently a Crown Grant when made was accordingly naked and void of any reserva tions in behalf of the public, unless so expressed in the language of the Grant. The old instruments of conveyance cannot at this late date be stretched to accommodate "the expanding rights of the people," however desirable that might be ENGLISH CROWN GRANTS 73 from the standpoint of public policy. Confiscation of private property without adequate compensation is subversive of good government, attacks the very foundations of human liberty. Is contrary to the funda mentals of good law and defies conscience, for which perfidious proceedings our courts will not under any pretext or sophistry stand. The only legal effect which the American Revo lution had upon the titles to Crown lands In the Amer ican Colonies may be safely stated as follows : The Crown's absolute, undoubted and un assailable title to the then vacant and unap propriated lands in the Colonies was acquired by the people. Before the Revolution that title was in the Crown, in contradistinction from the people. They were "Crown Lands," utterly regardless as to whether they were uplands, lands between high and low water mark or sub merged lands. The Crown could grant or lease to or with hold these lands from the citizens. When the American people by Revolution acquired these sovereign rights, the King's rights and the people's rights became merged in the State's title. As it now exists it is a perfect title, "as an incident of Soverignty", but it does not affect the title to any lands previously grant ed by the Crown. The tranfer took place when Democracy was enthroned in America. Such newly acquired popular rights were not retroactive. The Courts, both State and Fed- 74 ENGLISH CROWN GRANTS eral, have settled that question for all time, as appears not only in uniform judicial decrees, but also in every constitution adopted by the State of New York, since Its incorporation as a state. Every English Crown Grant properly issued has been sustained by the Courts of New York when challenged. Not one English Crown Grant has been voided by the Courts of New York. ROYAL AUTHORITY FOR CROWN GRANTS The English Crown took possession of Staten Island principally under two rights or claims of own ership. Its first claim was that by right of discovery, under which the English Crown asserted title thereto and had obtained political sovereignty and jurisdic tion thereover. It maintained that upon taking pos session of the Island it was but entering into lands to which it was fully entitled by right of prior dis covery. This was England's bold and defiant attitude when confronting the land grabbing nations of Continen tal Europe. This doctrine, as originally promulgated by all of the powers of Europe and stripped of all sentiment and finesse, carried with it the cold blooded right to disregard the Indians as having any fixed abode, or any real title in the lands they occupied. They were decreed to be pagans, infidel dogs, objects for missionary effort and pious plunder. To enslave a pagan to a pious master was to put a bad thing to a good use. What shocking perversity 1 England, however, in practice acted upon the more just and humane doctrine of purchasing from the Indians the lands in question. 75 76 ENGLISH CROWN GRANTS Modern Christian sentiment does not tolerate such a pagan conception even though heretofore its taint may have dimmed the lustre of some of our court decisions. Since the time of the conquest of England by William of Normandy, it has been maintained under English Common Law, that the titles to all lands in England must be traced back to an English Crown Grant, by either record or prescription. "He also that has a particular estate by "agreement of parties, must show, not only his "own conveyance, but the deeds paramount, for "there can be no title made to a thing lying in "agreement but by showing such agreement up "to the first original grant." (Introduction to the Law of England, relating to Real Property, Buler 1 79 1 A. D., 6 Ed., p. 251.) It appears to be implied by some authorities and In some decisions, that greater flexibility, latitude and scope should be accorded to a Crown Grant made to a municipality than to a private individual. In other words, it seems to be implied in some cases that a Crown Grant to an individual should be more strictly construed than should the same Grant when made to a municipality. This theory did not exist under old English Com mon Law. Such a dictum is seemingly inequitable, and has not appeared as a governing factor in any final New York decisions. If a sovereign state, with a popu lation of ten millions (10,000,000) of citizens, by its properly constituted authorities, makes a Grant of ENGLISH CROWN GRANTS 77 a Bay or a Harbor to a municipality, where such a municipality has a population of ten thousand people, then nine million nine hundred and ninety thousand people are absolutely shorn of their title and inter est in the land so granted, for the benefit of but ten thousand people. It is of no interest to the people so divested of title whether the same went to an aggregation or monopoly of ten thousand citizens, or to but one individual. The theory that such municipality holds such title as a trust for the people is "fine spun" In face of the fact that it holds it for the municipality to the exclusion and utter disregard of the citizens of the State at large. He who parts with a title or with all his interests in a title has little concern whether it be to a corporation in the form of a municipality or to an individual citizen, provided no further benefits accrue to him and he is divested of all rights therein. In a Crown Grant of land where by its terms tidal water is fixed as a boundary thereof, high water mark is intended. This has been conclusively held and cannot be now questioned. If, however, such Royal Grant is one of political jurisdiction only then the boundary is to low water mark. It has been further held, in the case of Baldwin vs. Brown (16 N. Y. 359) (and in 9 Johns 100) that natural boundaries are more to be regarded than artificial ones or those which are not permanent. "By the Royal commission to Governors, the "Governor with the advice of the Council was "authorized to make Grants of the public lands "on such terms as might be deemed proper; 78 ENGLISH CROWN GRANTS "which ¦ Grants, on being sealed with the "Colonial Seal, and recorded, were to be "effectual." (Town of Brookhaven vs. Strong, 6oN. Y., 56). "It is well settled by authority that a State "has the right to dispose of the unappropriated "land within its own limits, and that when a "grant has been made the title becomes vested, "without any power in the State to rescind the "grant, for fraud or otherwise, when the land "granted has passed into the hands of the bona- "fide purchaser for value, without notice." "Nor unless fraudulent, can it be revoked at "all, if its conditions are performed." "Nor can a State constitutionally confirm a "void patent, so as to divest a title legally ac- "qulred before the attempted confirmation." (Girard on Titles to Real Estate.) It Is a fully established principle of international law, well recognized by all legal authorities, that the title to all vacant and unappropriated lands in the realm is vested in the supreme sovereign. It has been elsewhere explained herein, that in monarchical countries such title rests In the Crown, while in demo cratic countries It vests in the chief Legislative body, representing and voicing the mandates of the people. "The Statute of Westminster, the Second to "cover the case of persons claiming common of "pasture by express Grant, seems to have been "the foundation of the common law rule, that "the absence of proof to the contrary, the soil ENGLISH CROWN GRANTS 79 "of the Manorial Waste or Common is vested "in the Lord." (History of English Law, Jenks, 262.) In fact, the doctrine is larger than this statement. It is conceded that the title to all land was vested in the Sovereign and that the ultimate title to all land is now vested in the Sovereign, be it Crown or Legis lature. It has become a legal maxim, "There is no land without a Lord." It has been to an extent and will be further herein set forth that the Sovereign had and has power to make Grants of any part or portions of the ungrant- ed, vacant and unappropriated lands within the realm. In certain circumstances a sovereign may make such Grants with or without the authority of the people, in accordance with the limitations and restrictions with which the kingly power may be hedged about in these days of constitutional or otherwise abridgement of Kingly powers. The original conception, and in fact the original exercise of kingly power, was without let or hinder- ance. All modifications thereof and all constitutional limitations placed thereon, have been extorted from the Crown by the Irresistible assertion of the right of the people to supreme government in the affairs of men. An English Crown Grant to land in the English realm carries with It precisely those rights and privi leges accorded thereto by English Common Law pre vailing at the date of the issue thereof. In dealing with Staten Island titles to lands, no question can be successfully raised as to the com- So ENGLISH CROWN GRANTS plete and perfect regularity thereof. The Crown Grants from which all true titles on Staten Island must descend, bear the full authority of the English Crown, consented to by the Council, which authority was recognized by the people. The absence therefrom of either the Royal con sent or confirmation by the Colonial Council bete>k- ened an absolutely void Grant. Such authorization, however, by the Crown and Council renders such in struments complete and effective. ' ' u ~ " ?> ' "^^1 f. - ¦ '¦- ¦ -v..-. -^1 ¦f./aMraa "Some, or at least one Grant has been made "without the advice of the Council, which is "conceived to be against the Queen's Comrais- "sion or instructions." (Maladministration of affairs in New York, 1709.) This shows that the Council's approval of Crown Grants was by the Sovereign' s "instructions" and not by any inherent right of any subject of the Crown to interfere in the matter. Fortunately all Grants made by the English Crown to land on Staten Island were made during a period of English History in whicfi there was no increase or diminution of kingly authority, nor any variation whatever in the rights of the people in relation there to. England has no constitution. Therefore, there were no constitutional changes, nor were there any variations in the English Common Law governing the rights of the Crown and the rights of the people in respect to these Colonial lands during the period covering their issue. ENGLISH CROWN GRANTS 8i "From the passing of the Statute of Frauds "in 1677, to the assembling of the first Re- "formed parliament in 1832 we have, as has "been previously pointed out, hardly a single "statute of first class importance dealing with "land law." (History of English Law, Jenks, Page 236.) The discussion, therefore, of such Grants as were issued by the Crown becomes one of regularity in procedure by the Grantor, compliance by the Grantee and correct legal interpretation thereof. This study can be proceeded with under the light of definite knowledge, as to the Common Law of England at that time prevailing, as set forth In the decisions of her courts and the subsequent deliverances from the American bench. Foremost among these governing opinions are the decisions of the Court of Appeals of the State of New York. They are consistent, lucid and profound. In speaking of the vacant and unappropriated lands in the realm, Digby says in his History of the Law of Real Property, "there remained a very large pro portion of the land of the country lying waste and uncultivated and used only for pasture of sheep and cattle, for feeding swine on the acorns and beech mast, or for supplying wood for building, repairs and fuel. It was primarily regarded as the common stock from which grants might be made." Bede, in the eighth century, speaks of it as lands which "ought to be granted to ecclesiastics or to warriors." Vacant and unappropriated land in early day* 82 ENGLISH CROWN GRANTS was sometimes designated "folk land." The title to the same was held by the Crown. Digby again says: "Besides grants of folkland, to be held as book land or as private property, it seems also to have been common to allow Individuals temporary or possessory rights over folk land without altering Its character as public lands. The reversion (to use a later expres sion) still remained in the community at large, or in the King as the representative of the community. There is evidence that in some cases various rents, dues or services, in money or time had to be rendered for the enjoyment of rights over folk land." Bede, in speaking of these vacant and unappro priated lands said, "When the country was brought under the government of a single King, this land seems to have been regarded as in an especial manner the property of the King, and is frequently spoken of as the King's folk land." He further states : "Besides the grant of whole dis tricts of this land, to be held as 'Book land,' we fre quently find that rights of pasture and other beneficial rights over it are granted away to individuals by the King in the usual form. There can be but little doubt that this unoccupied land came to be, more and more regarded as the land of the King — 'Terra Regis.' Hence grew in later time the conception that all the land was originally vested in the Crown; that the King is prima facia owner of all the unoccupied land, even of the shore of the sea below high water mark." In another reference thereto he says: "In early times these rights were probably regarded as rights of common or public lands which the King would share with others. Later the property was looked ENGLISH CROWN GRANTS 83 upon as vested in the King. The commoners having rights in alieno solo." "If It be no longer known of whom the lands "are immediately holden; then the King, as "Great and Chief Lord, shall have them by "escheat: for to him fealty belongs and of him ' they are certainly holden by presumption of law and without the necessity of proof." (Cruise's Digest of the Laws of England re specting Real Property (1808) Vol. 2, title 30.) At the close of the Revolutionary War, the Billop lands on Staten Island were escheated by the State of New York, on the ground that the then owner, (not the original) Christopher Billop, "had given aid and comfort to the common enemy." Digby says, in his Law of Real Property, that if a grantee "Incurred forfeiture for treason, the rights of the lessor would not be affected." In this case, however, the State of New York had stepped Into the shoes of the English Crown and had become the ultimate owner of Billop's lands, subject only to any Grants therefrom. "A grant of land has been defined as a public "law standing on the statute books of the State "and is notice to every subsequent purchaser "under any conflicting sale made afterwards." (2U. S. App. 581.) A patent Is conclusive against all whose rights commence subsequent to its date (7 Wheat, 84 ENGLISH CROWN GRANTS 212). It conveys the legal title and leaves the equities open. (15 Peters 93. ) A patent of land is the highest evidence of title and is conclusive as against the government and all claiming under junior patents or title until set aside or annulled, unless it is absolutely void on its face. (2 Wall 525; 23 Howard 235; 104 U.S. 635.) When the State has once made a valid grant to lands to one party, it cannot afterwards re- convey the same lands to a different person. (Van Home vs. Torrance, 2 Dall, 304 to 320.) It has been held that these provisions, by im plication, confirm all patents and Grants of land by the Crown prior to October 4th, 1775. (Peo ple vs. Clarke, 10, Barb. 120, Aflirmed in New York, 349.) Property rights acquired before the American Rev olution were also protected by provisions in the treat ies of 1783 and 1794, between United States and Great Britain. Article 6 of the United States Con stitution provides that all treaties made, or which shall be made under the authority of the United States shall be the Supreme Law of the land. The Federal Courts, therefore, have jurisdiction In cases involving English Crown Grants, which are protected by international treaties. The Thirty Sixth section of the Constitution of 1777 (New York State) , declares that nothing there in contained shall be construed to affect any Grants of land made by the authority of the King, prior to the 14th day of October, 1775. ENGLISH CROWN GRANTS 85 In the case of the People vs. Clark (9 N. Y. 349) the Court of Appeals of New York declared, "the learned Justice of the Supreme Court, "whose able opinion in this case we are review- "ing, a most respectable authority upon ques- "tions of titles to lands depending upon ancient "grants, has declared that this provision of the "Constitution has always been regarded as con- "firming the Royal patents granted before the "Revolution." In the work entitled, "Two Centuries Growth of American Law, by Members of the Faculty of the Yale Law School," the statement is made that, "Before the Revolution the People had ac- "customed themselves to the assertion that their "charters had made them certain irrevocable "Grants, one of which was that they were to "possess all the rights and privileges of Eng- "lishmen." The authors of that work further state, "An exe cuted grant is Inviolable, because it is a contract. The party who made it has lost certain rights. The party who received and accepted it has acquired them ; and each must stand by his bargain." "President Clap, in 1763, had setup successfully a similar claim as to the Charter of Yale College, when the General Assembly was threatening to amend it without the consent of the Corporation." (Dart mouth College vs. Woodward 4 Wheat, 518.) "The laws which subsist at the time and making of the contract, and where It is to be performed enter 86 ENGLISH CROWN GRANTS into and form a part of it, as if they were expressly referred to, or incorporated in its terms." (White vs. Hart U. B. 13, Wall 646.) The fundamental idea underlying the titles to lands In the United States is that the State, "If one of the old Thirteen," is seized of all the lands within her limits not granted; and as to the new States and Ter ritories the seizen Is In the United States to the like extent. (Clements vs. Anderson, 46 Miss. 581.) On the Independence of New York, the ungranted Crown lands vested in the State and continued to be granted by letters patent under the Great Seal. (N. Y. C. RR. Co. vs. Brockway Brick Company, 158 N. Y. 470.) In New York, when by the Revolution the Colonies became separated from the Crown of Great Britain and a Republican Government was formed, the peo ple succeeded the King in the ownership of lands within the State, which had not already been granted away; and the people thenceforth became the source of all private titles. People vs. Trinity Church, 22 N. Y. 44. Jackson vs. Hart, 12 Johns (N. Y. 77). Wendell vs. People, 8 Wend. (N. Y. 183). But with respect to land that before October 14th, 1775, had been legally granted to individuals by the Crown, or to which the title had been legally acquired by individuals in any other way, neither the Revolu tion nor the change in the fonn of Government, nor the declaration of the Sovereignty of the People worked any change of forfeiture in the ownership of such property." (Gerard on Title to Real Estate.) ENGLISH CROWN GRANTS 87 The Grant made by the English Crown to the Duke of York became vested in the English Sovereign when the Duke of York became King of England. The right of the King of Great Britain to make this Grant to the Duke of York, with all its prerogatives and powers of government, cannot at this day be questioned. "The rivers, bays and arms of the sea and all prerogative rights within the limits of the charter undoubtedly passed to the Duke of York, and were intended to pass, except those saved in the letters patent. The words used evidently show this inten tion." (By Chief Justice, Martin vs. Waddell, 16 Peters 367.) The Grants to the Duke of York contain: "Together with all the lands, island, soils, riv- "ers, harbors, mines, minerals, quarries, woods, "marshes, waters, lakes, fishings, hawking, hunt- "ing and fowlings." It will be observed that this description is even more restricted than the language in the Symes Staten Island Grant, to wit, "Together with all and singular the woods, un- "derwoods, trees, timber, feedings, meadows, "marshes, swamps, pools, ponds, waters, water "courses, rivers, rivuletts, runs and streams of "waters, brooks, fishing, fowling, hunting, "hawking, mines and minerals, standing, grow- "ing, lying or being or to be had, used or en- " joyed within the bounds and limits aforesaid; "and all other profits, benefits, advantages, "hereditaments and appurtenances whatsoever, 88 ENGLISH CROWN GRANTS "unto the said pieces and parcels of land and "premises, belonging or in any way appertain- "ing (except and always reserved out of this "our present Grant all gold and silver mines)." The language of the Grant to Lancaster Symes carries with it all fullness, as far as the same could be applied to the vacant and unappropriated lands on Staten Island and to all vacant and unappropriated lands above and below water within the bounds and limits of Richmond County covering all of the rights received by the Duke of York under the original Grant to him. In the case of Martin vs. Waddell ( i6 Peters, 367) the Supreme Court of the United States held, "According to the theory of the British "Constitution, all vacant lands are vested in the "Crown, as representing the nation, and ex- "elusive power to grant them is admitted to re- "side in the Crown, as a branch of the royal "prerogative. It has been clearly shown that "this principle was as fully recognized in Amer- "ica as in the Island of Great Britain." The Dutch were completely divested of all lands claimed by the English under the Cabot discovery, and such title became revested in the English Crown. (Fowler's Real Property Law, 2nd Edition, Chap, i, Title 2.) This issue was settled in accordance with a treaty made between England and Holland. The Staten Island Indians had always protested that deeds made by them to the Dutch had been obtained ENGLISH CROWN GRANTS 89 by fraud, and that the true consideration and proper compensation had never been paid to them by the Dutch. There was no change in tenure under Crown Grants in consequence of the passing of the statute of quia empores (18 Ed. i; Delancey vs. Piepgras, N. Y. Rep.). "The power now possessed by the Govern- "ment of the United States, to grant lands, re- "sided, while we were Colonies, in the Crown or "its Grantees. The validity of the title given by "either has never been questioned in our Courts. "It has been exercised uniformly over territory "in possession of the Indians. * * * ^\ "our institutions recognize the absolute title of "the Crown, subject only to the Indian right of "occupancy, and recognize the absolute title of "the Crown to extinguish that right." (Will iam B. Hornblower, 14 Amer. Bar. Assn. Rept. 264, 265.) THE INDIAN AND CROWN GRANTS. It is a fully recognized fact of history that when the early European settlers landed upon the shores of Staten Island they then found it in full and com plete possession of the American Indians. The Indians held undisputed sway over its villages, hunt ing and fishing grounds, and stood prepared and ready at any time to defend the same, as was clearly shown in their subsequent deeds of valor when re sisting the unjust and offensive encroachments of the early settlers. Authorities have somewhat disagreed as to the pre cise nature of the title held by the American Indians to the soil which they possessed. The continental chancellories of Europe, promptly upon the discovery of America, promulgated their decrees branding the American Indians as nomads. They laid down the proposition of international law that the European Government had an absolute right to each and every land on the American continents, which either they or their representative citizens should discover. Proprietorship by right of discovery was asserted, with utter disregard to what were the true and in alienable rights of the American Indians. Modem historic research has disclosed the fact 90 ENGLISH CROWN GRANTS 91 that the aborigines of America had their established and accepted forms of government; that the various tribes well understood and recognized the territorial bounds and limits of their respective domains. "That it is a diflicult matter to discover the "true owner of any lands among the Indians is "a gross error, which must arise from ignorance "of the matter or from a cause which does not "require explanation. "Each nation is perfectly well acquainted with "its exact original bounds; the same is again "divided into due proportions for each tribe and "afterwards subdivided into shares to each fam- "ily, with all which they are most particularly "acquainted. Neither do they ever infringe "upon one another or invade their neighbors' "hunting grounds." (Sir William Johnson to the Lords of Trade, 1764 A. D.) In some cases single tribes were independent, self- reliant, and maintained their sovereignty and the in tegrity of their soil against all comers. In other cases a powerful confederation was formed by treaty be tween a group of tribes. In other Instances weaker tribes came by special treaty under the protection of more powerful neighbors. To a large extent, peace and happiness prevailed among the tribes, each respecting the rights of the other in and to its own hunting and fishing grounds. Any invasion of these Indispensable sources of food supply was always met by prompt defense and swift and fierce retribution. 92 ENGLISH CROWN GRANTS A sharp distinction should be drawn between the attitude of the English Government towards the Indians and the general practice of the Colonists towards the natives. The European settlers promptly appropriated the Indian's food supply from sea and land. The great pressure of a new advancing civilization forced the coastal tribes back upon the neighboring interior tribes, in utter disregard of tribal boundaries. An tagonism and conflict immediately developed between the natives, superinduced by the white man's over throw of the Indian's political, economic and tribal relations. Tribes, evicted from the lands which they had in herited from their forefathers, were driven by hunger to pirate upon the hunting and fishing grounds of other tribes which had heretofore been their friends. The latter, unable to spare food from their naturally sparse and limited supply, arose in arms and fought their former friendly neighbors. This invasion by the white race upon the Indian civilization developed a period of intertribal wan that brought to the surface the fiercest elements in the Indian nature. These wars continued until the tribes became almost extinct or were driven far from their native soil. The Indian first fought the white man in defense of his own land, villages and food supply; then the various Indian tribes fought among themselves, as exiles and wanderers struggling together for an in- suflicient food supply. It is well understood that a majority of the first settlers were adventurers, pirates and freebooters of ENGLISH CROWN GRANTS 93 the sea. In many cases they were criminals, exiled from home, or were wild and dissipated sailors who were prepared to venture anything, and to commit almost any crime in order to repair their broken for tunes. The "Mayflower" and other ships with their precious cargoes of religious and freedom-loving ex iles were like doves amidst the hawkes and vultures of the sea. Information from the early Colonies passed slowly to the mother countries. Vivid and distorted ac counts were given of the attitude of the natives and the acts of the settlers. The first impressions formed in England and on the continent of Europe regarding the aborigines were that they composed roving and cruel bands, better classed among the wild animals of the forest than to be considered a part of the hu man family. Impressions formed and conclusions arrived at by European authorities based upon such erroneous in formation developed the doctrine which became woven into international law, that the American Indians were nomads or wanderers; that they were pagans and had no real vested or true title to the soil they occupied, and that they were unworthy of or in fact did not possess any real national life or substan tial political existence. History, however, shows that the English Govern ment soon became better advised, and that the States General of Holland recognized to a degree the in justice of this dictum of the white civilization as pro nounced against the red man. Thoughtful historians and learned legal authori ties have conceded that the Indians had somewhat 94 ENGLISH CROWN GRANTS more than a possessory right to the lands they occu pied and have admitted that they had an inherent right in and to the title to the soil they occupied. The title so belonging to them, however, was vested in the tribe at large and not in the individual Indian. Justice gained a few points in the historic and judicial triumph for the Indian over the doctrine of nomad- ship; but even to this day, as appears in one of the decisions of the Supreme Court of the United States, the impression still prevails in many authoritative quarters, false though it be, that the Indian had only a general possessory right to their lands. (Johnson vs. Mcintosh 8 Wheat O. M., Rep. 543.) In the above mentioned decision, emanating from the most profound and dignified judicial body in the world, the Court says, "The potentates of the Old World found no difficulty In convincing themselves that they made ample compensation to the Inhabit ants of the New by bestowing upon them civilization and Christianity in exchange for unlimited independ ence." The fact remains that, in a deed made and exe cuted by and between the Dutch and the Staten Island Indians for the sale by the latter to the former of Staten Island, the Dutch fully recognized a complete title to the Island as vested in the Indians and as hav ing descended to them from their forefathers. Later on, when the Staten Island Indians sold Staten Island to the Duke of York, the Dutch deed having proved abortive, the English fully recognized the title to the soil as being vested in the Indians and as having been derived by them from their ancestors. These two instruments, both quasi-oflicial, reprc- ENGLISH CROWN GRANTS 95 senting two European powers, in effect committed the civilized world to the doctrine that the Staten Island Indians were the "true and lawful owners" of the Island, as having descended to them as a heritage from time immemorial. Neither party to an executed and fulfilled contract, under which both parties have received and approved the benefits thereof, is in a legal position to deny its premises. In the drafting of the foregoing deed, which in fact conveyed to the English the villages, together with the hunting and fishing grounds of the Staten Island Indians, neither party thereto deemed It essen tial that the said deed should set forth In detailed description the conveyance thereunder of uplands, beach, shore and lands under water. The English Crown well understood that under English common law the presence of water on any portion of lands conveyed need not be set forth in the instrument of conveyance. The Indians fully realized, as did the English, that the conveyance of Staten Island to the English Crown Carried with it the Indian's hunting and fishing grounds as well as the latter's unfailing source of food supply, the natural oyster beds connected there with. Staten Island historians, as well as many of the patriarchs of the villages in Richmond County, tell us that over against many of the old sites of the Indian villages on Staten Island were to be found until recent times enormous mounds of oyster shells that had required the Industry of many generations to accumulate. 96 ENGLISH CROWN GRANTS Modern etymology has opened up the secret of the Indian languages, and lo ! it is found that their rivers, bays, seas and lands possessed names with descriptive meanings, which names had become traditional among the descending generations and were well and fully understood by their tribes. These names now properly interpreted are con clusive proof that the Indians occupied fixed habita tions, generation after generation, "for a period of time wherein the memory of their oldest men ran not to the contrary." At the present time we find a pathetic remnant of the Shinnecock Indians living upon the site of one of their ancient Long Island villages. From time im memorial down to the present they have maintained their right in and to a portion of Shinnecock Bay. In those waters, without failure for centuries, they have planted and grown the almost unequalled Shinnecodc oysters and clams. It is an interesting fact, and worthy of note, that in many respects the Indian common law was strangely analogous to the'English common law. The Indian well understood that he was the owner of the beach, with all that the same implied. Hence, we find a certificate given on January 15th, 1662, by the Shinnecock Indians living on Long Island, to one Captain Topping. In this certificate they acknowl edge the conveyance of a certain beach to him. The Indians did not in anywise limit their titles to the beach. This we discover In an Indian deed to a shore front in King's County, New York. The deed was dated May 13th, 1664. The conveyance was for "both of upland and marshes anyway belonging ENGLISH CROWN GRANTS 97 thereto." We find also, in the same deed of convey ance, "beach or beaches, as namely that running out more westerly." In addition thereto we read, "with the island adjoining and is at the same time by the ocean sea wholly enclosed." It is well to consider the legal force and effect of the words "with" and "ad joining" as used by the Indians. We have In the foregoing deed by the Indians a conveyance of upland, beaches "with the island ad joining" thereto. All these were in close proximity and extending to and under tidal water. This deed made no reference to "riparian rights" or "lands be low high water mark," or "submerged lands." The language was different, but equally clear and in clusive. The Indian, as under English common law, deeded his land and did not consider water on the land as property to be included in a deed or mentioned in the description thereof. That the Indians' and the English Crown's views as to deeds of conveyance for an island coincided most harmoniously is happily illustrated in the case of Gardiner's Island, in Suffolk County, New York. On May 3rd, 1639, the Indians executed a deed of conveyance thereto to Lyon Gardiner. The latter took possession thereof. The Gardiner family has, ever since that date, maintained possession thereof through the lineal descendants of the original grantee. They have held against the world a well recognized and perfect title to uplands, the land between high and low water mark, and the land extending out into and under the great deep below low water mark. We find, however, in the colonial records that the 98 ENGLISH CROWN GRANTS English Crown also made a grant to the said Gar-, diner, conveying under the grant the same island with out any detailed description contained therein cover ing uplands, beach and shore with the submerged lands. The Province of New York joined in this same Grant by the Crown to Lyon Gardiner. Both the English Crown and the Province of New York have always recognized the full and complete title of the said Gardiner in the beach, shores and the land below low water mark. After the Revolutionary War, and the incorpora tion of the State of New York, the policy of the State towards Gardiner's Island was and still is in com plete harmony with the policy of the old Indian, the English Crown and the Province of New York. It has never asserted or claimed any shore front rights about Gardiner's Island. On the other hand, the Gardiner family has never tolerated any trespass thereon by private citizen or body politic. The rights granted to Lyon Gardiner and the rights granted to Lancaster Symes, by the English Crown, the Province of New York and the State of Nev/ York "are on all fours" with each other, ex cepting only, however, that from a legal viewpoint the description of lands conveyed under the Symes Grant is far more comprehensive than in the Grant to Gardiner. The narrow constructionist might imply from this statement relating to Gardiner's Island that possibly the Indian's part in the transaction was but a sale of ENGLISH CROWN GRANTS 99 the upland, they quitting the Island with no particu lar thought as to the lands under water. Such a conclusion is but a misapprehension and misconception of the Indians' claim and right of title. On March 14th, 1648, the Indians made a deed of a certain tract of land to Theophilus Eaton and Stephen Goodyear. The deed covered a tract of land at what was known as Acquabauck, Long Island. The deed recites "together with the land and meadow lying in the other side of the water southward. Here is a deed given by the Indians for land on both sides of and in the waterway, or stream. The English and the American common law both admit that the Indians must have owned from each shore to the center or thread of the stream. The tribe hefd proprietorship below low water mark. The doctrine of Christendom is that "there is no land without a Lord." Unless we strip the poor Indian of the commonest rights accorded to the meanest citizen in England or America under similar circumstances, this latter con veyance by the Indians was a proper exercise of the rights of proprietorship, as the waters of the stream were tidal waters and involved every class of land from upland to submerged land below low water mark. Most assuredly both parties to the transac tion so understood it and acted upon it. To make clear, however, that the Indians really understood what the term submerged lands meant, when making deeds, the Massachusetts colonial rec ords disclose a deed made by the native Indians in which the name used, "Aupauk," in itself, when translated, means, "the flooded or overflowed land." loo ENGLISH CROWN GRANTS The Indian's dear, clean and comprehensive knowledge of his rights to lands under water are also disclosed in an agreement bearing date 1665, which reads as follows: "The bounds agreed upon between the Shinnecock and the Unchechauke Indians before the Governor NicoU are, "That the Shinnecock bounds to the west ward are to Apaucock Creek. That the Unchechauke bounds to the east are Apaucock Creek ; that the mid dle of the river is the utmost bounds to each, but that either nation may cut flaggs for their use on either side of the river without molestacon or breach of the Limetts agreed 1" (Book of Deeds, Vol. II, p. 125, Office of Secretary of State, Albany, N. Y.) This agreement clearly shows that two neighbor ing Indian tribes claimed and each recognized in the other title to lands under water. The agreement also contains a reciprocity clause that would have done credit to the Hon. James G. Blaine or to the Hon. John Hay. In the year 1667 the inhabitants of South Hamp ton, in New York Province, brought an action against the inhabitants of Southold in the New York Provin cial Court of Assize to determine the boundary be tween the two towns based upon the purchase of lands from the different Indian tribes. A witness by the name of Edmund Shaw testified that the Chief of the Montauk Indians had shown him that one tribe owned the land to high water mark on the opposite side of the river, and to prove it took him to the op posite bank and showed him a tree marked by the Indians. Two Indians were called to rebut that tes timony. They testified that each of the two tribes ENGLISH CROWN GRANTS loi on the opposite sides of the river owned to the center or thread of the stream. To prove this they related how a dead bear was found floating in the stream and its carcass was divided between the two tribes, one tribe taking the flesh and the other tribe the skin and the grease. The Court decided that each tribe's title extended to the middle of the stream. This was a tidal river. Important and incontrovertible evidence is at hand revealing the fact that the Indians held proprietor ship to their fishing grounds on the Atlantic Coast as an absolutely necessary and vital source of food sup ply and that it was their custom to resort thereto in time of famine as well as in time of plenty. We quote from a letter written by Roger Williams to Governor Vane in 1637: "The Pequots are scarce of provision and therefore {as usual, so now espe cially) they are In some numbers come down to the seaside (and to islands by name Munnawtawkit and Manattuwond especially) to take sturgeon and other fish, as also to make new fields of corn in case the English should destroy their fields at home." It is a well-known fact that the early settlers found the Indian with his fishing weirs established in the tidal streams. The Colonists quickly imitated him In this practice, and in instances secured Grants for the establishment of the same, by them. In navigable waters. We have in point Governor Andrus's Grant made in 1676 to John Cooper, giving to the latter the right to establish fishing weirs In two tidal streams on Long Island. In order to throw additional light on this subject. It may be stated that there were many places along I02 ENGLISH CROWN GRANTS the Atlantic Coast referredto and described in deeds by the Indians, which, when interpreted, mean "fish ing places." As fishing is not for the uplands, it is fair and logical to presume that such places so re ferred to in deeds made by the Indians comprehended lands under water. The wardship thrown about the American Indians by the English Government in Colonial times was not an impairment or in derogation of the proprietor ship rights of the American Indians, either tribal or as individuals. So keen was the commercial instinct in the white race and so innocent and unsophisticated were the American Indians in the matter of bargain and sale, that had the English Government not thrown about the Indian tribes Its paternalistic protection in the matter of the title to their villages, fishing and hunt ing grounds, the deceit and treachery of many of the early settlers would have precipitated many addi tional frontier conflicts. Pursuant to such benigrf policy, the English Gov ernment, when having political jurisdiction over lands owned and possessed by the Indians, would not per mit the native tribes to sell their lands to the settlers without the sanction of the Crown. Apparently this power asserted by the English Government was never used arbitrarily against the natives. It was not in essence the denial of a title in and to the right on the part of the Indian to sell the land in question. It was but a regulation under the police power pertaining to political sovereignty and solely exercised for the protection of the natives against un scrupulous traders. ENGLISH CROWN GRANTS 103 Until the year 1 871 the policy of the Federal Gov ernment of the United States was strictly correct in Its professed attitude toward the respective Indian tribes as independent sovereignties. It conceded to them the right of treaty with the United States Gov ernment upon terms of national equality. Many treaties were made between the Federal Government and the respective tribes, in reference to lands owned by the Indians, as well as matters of trade and other relations. International law does not admit wandering tribes and roving bands into the sisterhood of nations. Where great Sovereign powers, like the Federal Gov ernment of the United States enters Into treaty rela tions with political organizations on a plane of equal ity and mutual respect, it Is in itself an admission of nationality, which carries with it not only independ ent political sovereignty but fixed habitation on lands of independent proprietorship. It is true that the Federal Government prohibited the Indian tribes in the United States from making or entering into treaties with political powers other than the Federal Government. This had nothing to do with the sovereignty or proprietorship rights of the Indians, excepting only that the necessity of defense of its national life compelled such an attitude on the part of the Federal Government. "Necessity Is paramount to law." RIPARIAN RIGHTS AND CROWN GRANTS It Is an interesting fact that when the Duke of York purchased Staten Island of the American In dians, the same became a part of the Crown's private Manor of East Greenwich in the County of Kent in England. It was to that manorial .office that Queen Anne required ultimate accounting to be made, by her American representatives, of the quit-rents col lected by them from this portion of her East Green wich estate. In other words, the English Crown made leases to its subjects of properties in East Greenwich, England, connected with the estate there. Simultaneously and in like manner and form it made leases or grants to portions of the same estate on Staten Island. The Crown's tenure of land on Staten Island was the same as its tenure in East Greenwich, England. As Staten Island was strictly manorial property of the English Crown, or at least property owned by the Crown through private purchase, the Island had in no wise a quasi-public character. All the lands above and below water and between high and low water mark on Staten Island were in the Crown's private proprietorship. The public had no right or title in the uplands, in the lands between high and 104 ENGLISH CROWN GRANTS 105 low water mark, or in the lands beyond and below low water mark in the County of Richmond. The title to the entire Island was vested in the English Crown, without let or hindrance. Therefore the public did not then have, nor has the public since that time, ever had, by implication or otherwise, any right, title or interest, except by escheat or purchase, in any lands on Staten Island. The State of New York inherited or succeeded to no title to any lands on Staten Island, hence its true and correct disavowment of any such ownership, as made by the office of the Secretary of State at Albany, the Land office and the State Surveyor and Engineer. The doctrine of riparian rights, as commonly understood, does not apply and never has applied to Staten Island lands. It is indisputably true that each and every Grant made by the English Crown to lands, regardless of where or how situated, is limited to the express terms of the said Grant. Such a Grant cannot and never has been construed as im plying, as against the Crown, any more rights and privlliges than clearly stated therein. The lesser title (the subjects title) can never presume as against the greater title (the Crown's title), unless the hab endum to the Grant by proper qualifications shifts such presumption, as It does in the Grant to Lan caster Symes covering lands on Staten Island. Judge Mason, In the case of Furman vs. the Mayor of New York (Superior Court 1851), In passing upon a question of a claim by riparian owners to rights against the Crown covering lands below high water mark, brushed it aside by stating: io6 ENGLISH CROWN GRANTS "There cannot be two owners to the same "piece of land, under the conditions set forth." He further added: "If the owner has the estate in fee it follows "that it can be granted. There is no such quali- "fication in the books that the soil be granted to "any person But the riparian proprietor." Lord Hale quoted two leading decisions (De Por- tubus P. 13) in which it was held that the riparian proprietors, owners of the upland or river bank, had no legal claim as against the King to any land below high water mark. In other words, the owner of the bank of a tidal stream or navigable water had under English Com mon Law, no legal claim to what we now term to be "riparian rights" as against the Crown title to lands below high water mark. "No reason suggests itself why the defend- "ants should have a higher right against the "Grantees of the King than they would have "held against the Sovereign of Great Britain, "had he continued the owner of the soil." (Trustee of Town of Brookhaven vs. Smith, 188, N. Y., 74.) This doctrine Is uniformly held by our courts. The riparian rights are recent and statutory and relate to lands not previously granted and now owned by the State. "Gore was the owner of the uplands adjoin- "ing the lands under water embraced in the ENGLISH CROWN GRANTS 107 Grant. The ownership of the adjacent up lands, however, gave him no title to or interest 'in the lands under water in front of his prem- "ises. The titles to lands under water within the realm of England were by common law "deemed to be vested in the King as a public "trust, to subserve and protect the public right to use them as common highways for com- "merce, trade and intercourse." "The King by virtue of his proprietary inter- "est could grant the soil so that it should be- "come private property, but his grant was sub- "ject to the paramount right of public use of "navigable waters, which he could neither de- "stroy nor abridge." (People vs. The Staten Island Ferry Co., 68N. Y. 71.) The use of navigable waters for commercial pur poses and the title to the land under such waters are an entirely separate and different proposition. Upon the termination of monarchical sovereignty in New York, the State acquired all of the rights of the English Crown in and to lands wherever situ ated but subject, nevertheless to any and all rights previously granted by the English Crown. The Grants so made by the English Crown prior to the American Revolution were guaranteed by the Ameri can Government in its treaties with Great Britain and are also guaranteed by the various constitutions adopted by the State of New York. Therefore, neither the Federal Government at Washington, nor the State Government at Albany, io8 ENGLISin <^kuwjn GKANIS nor the City Government of Greater New York, nor the people at large have any right, title or interest In or to any lands properly granted to private parties by the English Crown, regardless of whether such lands are above or below water, or between high and low water mark. The present theory of riparian rights, as held in the popular mind, developed largely from the habit of the people sailing upon the sea to find at all times and under all conditions a harbor, a haven of refuge, or a landing on the shore without let, hindrance or trespass. It also arose from the theory that the land owner on the shore was the only one excepting the King, who could protect the same against those who would otherwise trespass and take possession of land under water immediately adjacent to his upland on shore. He could best guard the shores against poachers, pirates and smugglers. He could shoot his arrows, throw his lances, or discharge his firearms from his shore at an enemy seeking to land or to anchor his boat near the beach. "The right of jurisdiction and the right of "property must not be confounded." (Delancy vs. Piepgras.) This riparian right of jurisdiction recognized as pertaining to land between high and low water mark and in favor of the littoral proprietor was secondary or subservient to the King's title to all lands under the tidal seas and was exercised by a servant of the Crown. The Freedom of navigation is admitted. The use of the waters for commercial purposes is recognized. ENGLISH CROWN GRANTS 109 but on the contrary New York has penalized trespass upon lands granted under tidal waters. The Crown might have delegated jurisdiction to the owner of the upland for military purposes, that the latter might aid his sovereign in defense of the sea. The littoral owner might have stood guard over the shore for his sovereign, against hostile trespass by the King's enemies. "The King maintained pos session of the lands under the great deep through his mighty navy." The King's subjects settled along the shore and sustained a watch for him over the land ing places where the tide ebbed and flowed, but this loyal attitude gave such subjects no implied right to confiscate from the Crown the lands so guarded by them. The same principle was adopted by the world pow ers In according political sovereignty to a nation over what is known as the "three mile shore limit." At the time of the adoption of this principle the utmost reach of the cannon effectively used by the nations was a distance not exceeding three miles from the shore. Exponents of international law are now agitating the extension of this limit to 20 miles, in consequence of the greater range of modern guns. In the Act settling the boundary between New York and New Jersey, enacted by the Legislature of the State of New York on February 5, 1834, in Article V, Sec. 2 it Is provided that, "The State of New York shall have the ex- "clusive jurisdiction over the wharves, docks and "Improvements made and to be made on the no ENGLISH CROWN GRANTS "shore of Staten Island and of and over all ves- "sels aground on said shore, or fastened to any "such wharf or dock, except that the said ves- "sels shall be subject to quarantine or health "laws and laws relating to passengers of the "State of New Jersey which now exist or may "hereafter be passed." Here we have an express declaration on the part of the Legislature of the State of New York that Staten Island has "shores." There can be no distor tion of language or straining of the true Intent of the words used when we say that the Legislature stands committed of record that such shores belong to Staten Island. It further recognizes that certain wharves, docks and improvements have been made and are to be made on said shores, etc. Neither the Federal nor the State Courts differ as to the fact that "the shore is that piece or tract of land between high and low water mark." No citations are necessary to support this thoroughly known and understood proposition of law. The legal conclusion has, however, been summar ized as follows: "The shore is that space of land on the bor- "der of the sea which is alternately covered and "left dry by the rising and falling of the tide, "or in other words, the space between high and "low water mark." (Amer. & Eng. Encyl. of Law "Shore.") "The State having granted in fee a strip of "land under water extending from high water ENGLISH CROWN GRANTS in mark cannot thereafter give another the right "to erect a public dock thereon." (DeLancey vs. Wellbrock, 113 Fed. 103.) The argument as to the non-ownership by either the City of New York or the State of New York in and to any land on Staten Island between high and low water mark is a simple and plain one. The Indians owned the title in fee to Staten Island. This was admitted by Holland and England in deeds drawn by them with the Staten Island Indians, which deeds were ratified, confirmed and are matters of public record. These deeds admitted the descent of title in all lands on Staten Island to the Indians, and that such descent was by inheritance from their fore fathers. Thereupon the English took title and pos session of all lands on Staten Island by purchase from the Indian owners. Later the English made Grants of certain lands on Staten Island and then made a final and inclusive Grant to Lancaster Symes covering all the vacant and unappropriated lands on Staten Island within the bounds and limits of Richmond County. The State of New York, for a valuable cash con sideration subsequently confirmed and ratified the title in Lancaster Symes. It recognizes, as all authorities do, that all waters about Staten Island in cluding the Fresh Kills are tidal waters. The Legis lature admits that Staten Island has a "shore." It is very trite to say that the shore Is land between high and low water mark. Is on the Island and a part of it. 112 ENGLISH CROWN GRANTS Nearly all Staten Island Grants were limited to high water mark. The Crown Grant to Ellis Duxbury (March 19th, 1691 ) and the second Crown Grant to Ellis Duxbury (August 26th, 1708) both include and Grant to him a shore front of great extent and value, "to low water mark thence by low water mark rounding as it runs." If the English Crown could and did properly and legally grant miles of land on Staten Island between high and low water mark, it is conclusive proof that land between high and low water mark on Staten Island was a part of the Crown's estate. When the Crown granted to Lancaster Symes (October 27th, 1708) all of its unappropriated lands, he unques tionably obtained title to the then ungranted lands between high and low water mark. The final grant to Lancaster Symes covered and included all vacant and unappropriated lands on Staten Island to "the bounds and limits of Richmond County." The human mind is helpless in any attempt to con ceive any theory upon which these admittedly "vacant and unajppropriated lands," between high and low water mark, constituting the "shore" of Staten Island, can possibly be excluded from the scape of the Grant made by Queen Anne to Lancaster Symes. The Courts hold that when the State has once made a valid grant of lands to one party it cannot afterwards reconvey the same lands to a different person. ENGLISH CROWN GRANTS 113 Under modern statuatory enactments the Courts consistently hold that, "A grant by the State of New York of land "under water between high and low water mark "is absolutely void if made to any other than "to the owner of the upland adjacent thereto." (The Champ. & St. Law. R. R. Co. vs. Val entine Barb. 19, 484.) As a corollary thereto, Courts are bound to and do decree that any Grant made by the State of New York to lands under water, which lands had been previously granted by the Crown, is void. The United States Federal decisions are very clear on this point. "A statute which purports to convey only "such right of title as the State may have, be it "valid or invalid, is not unconstitutional as im- "pairing the contract or vested rights of persons "holding under valid, prior independent titles." (Devine vs. Los Angeles, 202 U. S. 313, 335.) It has been held that, "The doctrine that private property shall not "be taken without due process of law, nor wlth- "out compensation being made therefor applies "to private property devoted to public use. "Confiscation without compensation is repug- "nant to the due processes and equal protec- "tion clauses of the 14th Amendment in the "United States Constitution." 114 ENGLISH CROWN GRANTS The Court has also by decree 'duly warned the public that, "Where money is voluntarily paid to a re- "ceiver of the land office after a party's atten- "tlon has been called to a legal risk attending "such an act, the payment must be regarded as "made In mistake of law and not In mistake of "fact and an action will not lie to recover It "back." (Encyl. of the U. S. Supreipe Court Reports "Public Lands.") "When the land between high and low water "mark has been granted to another, the upland "proprietor has no right to land below low "water mark." (Sage vs. the Mayor of New York, 154 N. Y. 154.) At the present time It is and for many years it has been unlawful in the State of New York for the Land Office to issue any grant to land between high and low water mark, excepting to the owner of the uplands. This is, however, by special enactment. "It was not always thus." It was not so in Colonial days, during which period every Staten Island Grant was made. It has been very pertinently held that "a right to the soil is very different and distinct from a mere right to have the first offer when the owner Is obliged to sell. Yet even the latter Is inconsistent with the entire power over a perfect, absolute estate in fee." In the case, however, of (Beach vs. the Mayor) the Grant of land under water made by the State of New York, to one Ward and others, jointly, cover- ENGLISH CROWN GRANTS 115 mg lands about Ward's Island in the East River, the Court held such Grant valid. This was so held, not withstanding the fact that there were certain upland owners who were not included among the Grantees. The Court took the same position in the case involv ing the Grant made by the State of New York to land under water about City Island, where other upland owners were not included among the Grantees. These two Grants were made by the State prior to the enactment of the present statute prohibiting Grants of riparian rights to parties other than up land proprietors. "The owner of land bordering on high water "mark on the tide waters of the State who has "not obtained the State titles to the lands lying "in front of his property and below high water "mark, has no power to charge the latter with "any easement which will be forceful against a "subsequent grant by the State of its title on "those lands." (Atlantic City vs. New And Pier Co. 63 N. J. 644.) "The Andros patent, dated September 29th, "1677, includes the lands between high and low "water mark and substantially all of the waters "of Oyster Bay Harbor." (Condert vs. Underbill, 167 App. DIv. 335-) "Under the Common Law as it existed in "1693 a littoral proprietor had no right to main- ii6 ENGLISH CROWN GRANTS "tain a wharf or other structure on land between "high and low water mark." (Trustees Town of Brookhaven vs. Smith, i88 N. Y. 74.) (Reversed on other grounds but this prin ciple held.) "The mere fact that in the i9tE century the "Crown was a mere trustee for the benefit of "the public should not be utilized to deprive "individuals of rights which they had acquired "from it at a time when It had unquestioned "authority to grant the right." (Water and Water Rights, Farnham, Vol. i, P. 191.) It certainly had the right to make such Grant in the 1 8th century from its personal Crown estate. PUBLIC BATHING PLACES AND CROWN GRANTS The English Common Law doctrine that the peo ple have the right to pass to and fro between high and low water mark on tidal and navigable water is part of the outgrowth of the humanitarian principle that inhabitants of uplands have an inalienable right of exit from and ingress to the sea for commercial and fishing purposes, as well as for the privilege of travel. Such egress and ingress are based upon the simple right of direct passage between upland and water. The people at the present time, however, seek to establish the right of passage at their will, and to meander to any distance along the shore between 'high and low water mark, thereby seeking to give to such strip of land the characteristics of a public high way. This claimed right on the part of the public appears to be coming Into qualified favor with the Courts. In some cases it has been held that If ad mitted the said usage must be one of continuous pas sage, and not of delay, detention or obstruction. The Courts clearly and consistently hold that this right pertains exclusively to ungranted lands and never to lands previously granted. It is judicially settled that in no event can the pub- 117 ii8 ENGLISH CROWN GRANTS lie erect thereon any structure or In anywise conduct themselves in a manner that will interfere with the freest use thereof, by the sovereign owner. A Crown Grantee thereof has admittedly in himself the exclu sive rights theretofore possessed by the Crown and people. It is settled that the owner of the upland must not interfere with the free and unrestrained movement of the public along the strip of land between high and law water mark if the same has not been previ ously granted. Such use by the public Is founded upon custom and usage and obtains while the title thereto remains vested in the Crown or State, but ceases when by Grant the shore becomes private prop erty. Such use by the public, however, may be for bidden by the Crown. This free and unlimited range of movement claimed by the public along the shores of navigable streams, but confined and restricted between high and low water mark had a unique genesis. It was founded upon a custom based upon a commercial necessity, but which custom is now extinct. In the earlier days of English navigation, vessels that sailed the high seas of commerce and which found their motive power in wind and canvass and not in the galley slave, impressed seamen, or steam, were somewhat unwieldy in narrow waters and were difficult to navigate on small winding English rivers. Frequently these commercial vessels appeared at the mouth of a navigable stream and sought to steer their way to commercial towns and villages, situated there on at a distance In from the sea. At times it became ENGLISH CROWN GRANTS 119 necessary to tow these vessels, by horse power, to such interior ports or destinations. Under primitive conditions now prevailing in pres ent day Alaska, we find packs of Eskimo dogs dash ing along the shores of its rapid streams and towing the native canoes, against the swift currents of the rivers. No one, however, has presumed to assert the claim that this practice dedicated those shores to pleasure strolling and other public uses in defiance of Government Grants. The right of free passage along the shore of Eng lish streams, between high and low water mark, for the horses used In towing the vessels to their ultimate landing places was contended for by navigators In early days under the plea of commercial necessity. This claim so made by the mariners, was contested by the land owners. The necessity of the seamen was the basis of a plea which was challenged from the view point of injury to the owners of the uplands. The right was judicially accorded as a temporary privilege in some cases and refused in others. On occasions the Courts permitted the necessitous tres pass on one shore of a stream while it denied the right on the opposite shore of the same stream. In certain cases the mariners were allowed by the Eng lish Courts to travel a distance along one shore, then compelled to halt their vessels and transfer their teams to the opposite bank, such transfer causing con siderable loss of time, expense and labor, to the master of the ship. This was ordered done that the least possible injury from trespass, should occur upon land situated on the banks of the stream. In one case, decided by the King's bench, it was observed I20 ENGLISH CROWN GRAN IS that such passage along certain banks of the Thames River, between the sea and London on which vast and valuable estates had been developed, was not to be entertained by the Court. The Court would not permit substantial Injury to the proprietors of the shore. In that instance, to have permitted such passage along the shore above high water mark would have greatly injured cultivated lands, improved lawns and beautiful gardens. Such travel along the Thames be low low water mark was impracticable while the land between high and low water mark along the river was then Crown land. In general, however, the land between high and low water mark, was not adapted for agricultural purposes nor for any cultivatable use. This ribbon of land between high and low water mark was owned by the Crown. Burden bearing animals in case of necessity could travel It, without making it a public highway. Humans, In case of need, could traverse It, though its sands were wet and its soil heavy. It was not adapted for a public highway for travel, excepting under the pressure of a special and peculiar emergency. No flight of imagination in those practical times pictured It as a pleasure promenade. It was the pro pelling power of a great need and not the allurements of pleasure that gave force and effect to the doctrine of temporary use, by the public, of a strip of land, the title to which was vested in the Crown. From this state of facts was developed. In part, the theory that the land between high and low water mark was held by the Crown In some peculiar way in trust for the people. ENGLISH CROWN GRANTS 121 In no event could such temporary use constitute a restraint or bar upon any improvements thereof by the Crown or its Grantee, which improvements, when made, would make such use impossible. English Courts denied to the public the right to trespass thereon for pleasure purposes, and in cases even held as trespassers those who claimed and appro priated it for bathing uses, and even held that pushing a baby carriage on a beach constituted a trespass upon private rights. Public travel thereon was a right developed from a commercial necessity which is now obsolete and rested upon a custom long since terminated. How ever, some Courts in their decisions and counsel In their pleadings appear to lean toward and favor this as a present inherent public right. The ancient com mercial but restricted access to and egress from the sea, by those who were domiciled upon the uplands and who desired to sail the deep was conceded and provided for but cannot now be successfully demand ed by the public for beach loitering, sea bathing and board walk strolling. Rights that have emanated from and rest upon cus toms that have subsequently become obsolete are deemed at law to have become in themselves, void. "Necessity makes that lawful, which otherwise is unlawful." (10 Co. 61) When necessity ceases, such rights created thereby and founded thereon automatically terminate. It has been shown that the so called "right of the public" to move along the shore of navigable waters is based upon an obsolete cornmerclal necessity, which in the past could only be exercised by the public when 122 ENGLISH CROWN GRANTS and where that commercial necessity existed. "Rea son is the soul of law, the reason of the law being changed the law is also changed." (Leg. Max.) The public could exercise the right on Crown lands below high water mark, but only so as not to inter fere with or trespass on the rights of the true owner of the uplands above that mark. It was Impractic able for the public to exercise such right of travel below low water mark. It was, however, by Royal clemency and favor that the public use of such Crown land was permitted and not by inherent right of the people thereto. The many Crown Grants of Ferry privileges, in the Province of New York, and especially on the Hudson River show the arbitrary exercise of Royal authority over shore fronts and beaches, giving exclusive rights by Grants thereto excluding the public therefrom in utter disregard of the upland owners. These Grants covered in In stances many miles of shore fronting many upland owners and in total disregard thereof. This exercise of authority by the Crown was with out any confirmation by the Provincial Assembly, it being well understood and admitted that it was an indisputable prerogative of the Crown. The present ferry between Newburg and FishklU-on-the-Hudson is operated under such a Royal Grant. The English Courts denied to the public the right of free passage along the Crown's shore front where commercial needs did not exist. Nothing could be erected by the public upon this strip of land, nor could any obstruction be placed upon It by the public in the exercise of any such limited and exceptional rights as hereinbefore described. ENGLISH CROWN GRANTS 123 The King had the right to condemn such obstruc tions if erected, as perprestures, and to seize and de stroy the same or he might retain and operate the same as his own property, provided they did not interfere with the public rights of commerce on the sea. Hence the King's Bench sustained the validity of the Crown Grants to shore fronts and the punishment of those attempting to use without a Grant the land between high and low water mark for bathing pur poses. The very nature and character of this excep tional and temporary right of passage along the shore between high and low water mark explains its intent. "The intent of the lawmakers is the essence "of the law." (Lex. Max.) The right of the public to use the foreshore in England, was and is, very restricted, as is shown in the following decisions: "The public's common law right with respect "to the sea. Independently of usage, are rights "upon the water not upon the land; of passage "and fishing on the sea and on the sea shore, "when covered with water, and although as "incident thereto, the public must have the means "of getting to and upon the water for those pur- "poses, yet it appears that by and from such "places only as necessity or usage have approp- "riated to those places, and not a general right of "lading or unlading, landing or embarking "where they pleased upon the seashore or the 124 ENGLISH CROWN GRANTS "land adjoining thereto except In case of peril "or necessity." (Blundell vs. Catterall 5B and Aid, 268.) Lord's Court of England. "In this country the right of the public to use "the foreshore when not granted in fee is much "more liberal." (State of New York, Steeple Chase Co., N. Y., July nth, 1916.) "The English case of Blundell vs. Catterall "(5B and Aid 268) settled that there was no "common right of bathing in front of a shore, "where the shore the locus in quo had been "actually granted to the Lord of the Manor. "Justice Holrayd states this to be the question." (Estates and Rights of the Corp. N. Y., B. III.) The pleasure seeking public may not exercise a right that overrides private vested Interests, where they demand for pleasure a privilege extended under the pressure of a commercial necessity. They cannot expand the doctrine of necessitous public use of Crown land, accorded by Royal clemency and favor, into a right to trespass upon private land along a pathway that by no inference or Implication can be presumed to be "a highway of pleasure." The strand of land above high water mark is the bank on and In which It Is admitted the public has no common right. The shore or beach Is the narrow strip of land between high and low water mark which is always, excepting for the moment of ebb tide, par- ENGLISH CROWN GRANTS 125 tially or entirely flooded. It is always wet, disagree able, and liable to be overflowed by the surf, dis qualifying it for pleasure purposes, unless artificially reclaimed. This reclamation may only be done by the Crown, or by the State, or, if such shore has been previously granted then by such grantee. With the removal of the original commercial nec essity for the exercise of the right of travel along the shore by a limited portion of the public on excep tional occasions, the demand by the general public for the exercise of the same right, "when on pleasure bent," is untenable. In brief, the rights claimed at the present time by the people to the land between high and low water mark may be explained as follows : The Crown originally owned (a) ; the upland (b) the land between high and low water mark; and (c) the land below low water mark. It alone had power to grant any portion of the three mentioned classes of land. The Crown did frequently and unhesitatingly exercise such right. When the King granted upland extending to tide water the Grant was limited to high water mark, unless by the language of the grant it specifically Included land between high and low water mark or submerged lands. When by some great volcanic upheaval the level of the sea bottom changed and from large areas of submerged lands, water receded, then the ungranted land theretofore under water 126 ENGLISH CROWN GRANTS became upland, the title thereto still remaining in the Sovereign. The right of the people, which were rights of commerce and travel on the water, then went to sea with the water. No special popular rights then adhered to or attached to the land so released from the water. It was Crown land whether submerged or upland and the people's rights pertained to the use of the water alone. There were no mysterious popular rights ad hering to the shore fronts, or to the lands under water. "Ignorance doth cloak our thoughts in Mystery and Is the mother of ghosts and phan toms." The popular right of access to the sea, "the highway of commerce," Is substantially the same right which goes with the sale of a land-locked lot. A reasonable and proper way, lane or road must be provided by the Grantor to the Grantee, so that the owner of the land-locked plot of land may have ingress and egress between It and "the King's highway," or the public highway on land. The owner of such a plot must accept and be satisfied with such a reasonable and proper route as may be designated by the surrounding prop erty holders or holder. The two cases are parallel. A gradual accretion or erosion of a shore front continuing Imperceptibly through a period of years, likewise shifts with It the title to the land between high and low water mark. This is not true, however, when a sudden, vio- ENGLISH CROWN GRANTS 127 lent and radical change occurs. In the latter event the boundaries are readily determined and easily marked. In the case of Staten Island, every Crown Grant now legally accepted was approved by the Crown and the Council. Staten Island passed completely Into or under private ownerships, "to the bounds and limits of Richmond County." The Grants issued by the Crown and failing of confirmation by the Coun cil are admittedly void. The Crown represented imperialism, the Council consisted of the Crown's advisors. The Crown consented to each Grant sub ject to Its approval by its appointed council. When the final Grant of land on Staten Island was made to Lancaster Symes in 1708, not one square foot in Richmond County remained vested in the English Crown. Consequently the State of New York upon its organization did not succeed to the ownership of any land thereon. Hence the candid admission by the State of New York (In 1873) that the State was not the owner of any land on Staten Island. "So great, moreover, is the regard of the law "for private property, that it will not authorize "the least violation of It; no, not even for the "general good of the whole community. "If a new road for Instance were to be made "through the grounds of a private person. It "might perhaps be extensively beneficial to the "public; but the law permits no man, or set of "men, to do this without the consent of the "owner of the land. 128 ENGLISH CROWN GRANTS "In vain may it be urged that the good of the "individual ought to yield to that of the com- "munity; for It would be dangerous to allow "any private man or even any public tribunal to "be the judge of the common good, and to "decide whether it be expedient or no. "Besides, the public good Is in nothing more "essentially interested than in the protection of "every individual's private rights, as modelled "by the municipal law. In this and similar "cases the Legislature alone can and Indeed fre- "quently does Interpose and compel the indl- "vidual to acquiesce." "But how does it Interpose and compel? Not "by absolutely stripping the subject of his pro- "perty In an arbitrary manner; but by giving "him a full indemnification and equivalent for "the Injury thereby sustained." (Blackstone, Bk. I, Chap. I, p. 139.) UNDER SEA LANDS AND CROWN GRANTS. There can be no ambiguity or legal uncertainty as to what constituted originally the boundaries of Staten Island at the time the English Crown Grants were made to lands thereon. We find in the Colonial Law of New York (Vol. I, 1664 to 1719) that on November ist, 1683, the Colonial Assembly of the Province of New York passed "An act to divide this province and depend encies Into shires and counties." In that Act it was provided that "The County of Richmond to contain all of Staten Island, Shutters Island, and the Islands of Meadows on the west side thereof." It should here be observed that what Is now some times called "The Island of Meadows," situated at the mouth of Fresh Kills on Staten Island was not one of the "Islands of Meadows" referred to in the above statute. The present Island of Meadows was not an island, prior to the American Revolution, as Is clearly shown on the official survey by the officers of the English Crown. On October ist, 1683, as shown in Volume I of New York Colonial Laws, the Colonial Assembly again passed an act providing that the County of 129 I30 ENGLISH CROWN GRANTS Richmond should contain all of Staten Island, Shut ters Island and the Islands of Meadows on the west side thereof. In other words, Richmond County was to include no more and no less than the above. The Act does not read that Richmond County shall be composed as aforesaid, plus additional land be longing to the Crown of England, extending under the water about Staten Island but not belonging thereto. It distinctly and clearly states that the County shall be composed of the Islands referred to. Immediately upon the passage of the said Act the boundaries of Staten Island were defined and mapped, as Is clearly shown on the early maps of the County. These boundaries appear In the records of the contention between the State of New York and the State of New Jersey over the boundaries between the two States. This contention was Inherited by the States from the Colonies of New York and New Jersey. The County of Richmond only acquired political jurisdiction over and no proprietorship in the lands referred to. The statutes, however, together with the Crown's Surveyor, clearly show what lands were included in Staten Island. This conclusion Is in strict harmony with the language of the final Grant to Lancaster Symes, which included : "All the before menconed Pieces and parcells of vacant & unappropriated Land and Premises "and all and singular the Heriditaments and "appurtenances thereunto belonging within the "bounds and limitts above In these Presents "menconed and expressed together with all and ENGLISH CROWN GRANTS 131 "singular, the woods, underwoods, trees, timber, "ffeedings, meadows, mashes, swamps, pooles, "ponds, waters, watercourses, rivers, rivulets, "runs and streams of water, brooks, ffishing and "ffowling, hunting, hawking, mines and mlner- "alls, standing, growing, lyeing, or being or to "be had, used or enjoyed in them the bounds "and limitts aforesaid and all other profitts, "Benefitts, Advantages, Hereditaments and ap- "purtenances whatsoever unto the sd pieces and "parcells of lands and premises belonging or in "anywise appurtyying except and always re- "served out of this our present Grant all gold "and silver Mines." The Grant to Lancaster Symes was made after the organization of Richmond County and its terms com prehended all the vacant and unappropriated land In "the County of Richmond, which comprehends the whole of Staten Island." The above deduction, that Staten Island lands ex tended to the bounds and limits of Richmond County is in full and complete accord with Blackstone's authoritative statement : "A stream or watercourse is considered as "part of the land." (Blackstone.) "For land," says Edward Coke, "compre- "hendeth in its legal signification any ground, "soil or earth whatsoever; as arable meadows, "pastures, woods, moors, waters, marshes, "furzes and heath; It legally includeth also all "castles, houses and other buildings, for they 132 ENGLISH CROWN GRANTS "consist," said he, "of two things: land which "is the foundation and structure thereupon, so "that if I convey the land or ground, the struc- "ture or building passeth therewith. It is ob- "servable that water is here mentioned as a spe- "cles of land, which may seem a kind of sole- "cism; but such is the language of the law; and "therefore I cannot bring an action to recover "possession of a pool or other piece of water, by "the name of water only; either by calculating "its capacity, as, for so many cubic yards; or by "superficial measure, for 20 acres of water; or "by general description, as for a pond, a water "course, or a rivulet; but I must bring my action "for the land that lies at the bottom and must "call it 20 acres of land covered with water: for "water is a movable, wandering thing, and must "of necessity continue common by the law of "nature, so that I can only have a temporary, "transclent, usufructuary, property therein: "wherefore, if a body of water run out of the "pond into another man's, I have no right to "reclaim it, but the land, which that water cov- "ers, is permanent, fixed and Immovable: and "therefore in this way I may have a certain sub- "stantial property of which the law will take "notice and not of the other." (Blackstone, Book 2, Chap. 2: 18.) "From the earliest times In England, the law "has vested the title to and control over the "navigable waters therein In the Crown and Par- "liament. A distinction was taken between the "mere ownership of the soil under the water and ENGLISH CROWN GRANTS 133 "the control over it for public purposes. The "ownership of the soil is analogous to the own ership of dry land and was regarded as jus "privatum and was vested in the Crown; but the "right to use and control both the land and the "water was deemed a jus publicum and was "vested in Parliament. The Crown could con- "vey the land under water so as to give private "rights therein, but the dominion and control "over the waters in the interests of commerce "and navigation for the benefit of all the sub- "jects of the kingdom could be exercised only by "Parliament." (Commonwealth vs. Alger 7 Cush. 53.) (People vs. N. Y. Staten Island Ferry Co. 68 N. Y. 71.) "As in England, the Crown and Parliament "can, without limitation, convey land under pub- "lic waters." (State of N. Y. vs. Steeplechase Park Co., N. Y., July 11, 1916.) In 17 1 8, Lord Cornbury granted to the corpora tion of the City of New York, "All that aforesaid vacant and unappropriated "ground lying and being on the said Nassau "Island." (Pg. 161, England 162.) This Grant was confirmed by the Montgomerie Charter of 1730. The language of this conveyance is significant as an illustration of the principle that there is no distinction in fact to be drawn between land covered by water and land above water. The grant of the whole bed of the East River for a con- 134 ENGLISH CROWN GRANTS siderable distance between the Manhattan and Brook lyn shores was made without once referring to the land as being under water. These grants have been upheld by the Courts. As a legal proposition there is no difference be tween land under water and land under air. The air is transitory. "We know not whence it cometh or whither it goeth." It Is on the land now, but in a moment it has fled and other atmosphere takes its place. No deed can bind it, no property rights attach to it. The water Is migratory. The winds chase It, grav ity dominates it and the tides composed of water sweep on in never ending restlessness. It Is on the land for a few moments of time, then away it flows, while other and strange waters take Its place, but only for a hand breath of time, when they too give place to other floods. Birds fly in the air and fish swim in the sea. Boats navigate the one while airplanes navigate the other. The hydro-airplane sails on them both. Docks extend out Into the one while dwellings and skyscrapers pierce the other. The laws of navigation govern them both. The State dictates the length and construction of the docks while at the same time It has full power to limit the helghth of the buildings on land and the construction thereof. The public may sail the seas and navigate the air though the land owner holds title to the land under both. This Is pursuant to the public's right of travel and commerce. The land under each Is fixed, stationary, and Is the ENGLISH CROWN GRANTS 135 object of proprietorship. The elements represented In the water and the air cannot be. Hence the law ignores both air and water in legal izing a transfer of land and looks to land alone as the object of proprietorship. "A grant of land described by metes and "bounds carries with It lands under water within "the bounds." (Condert vs. UndcirhlU, 95 N. Y. S. 134, 107; App. Div. 335.) Therefore, Colonial Legislators did not err when they declared that Sand Bay was "on Staten Island," and again when they declared that it was "on the caster most part of Staten Island." Not East of, but "on Staten Island." The final Crown Grant to Lancaster Symes cov ered by Its description all vacant and unappropriated lands "to the bounds and limits of Richmond County." It did not specify land under air or land under water, but it did set the limits and bounds. It was a correct legal description based upon exact offi cial surveys. To make it definite and certain it speci fied rivers, runs and streams of water, with fishing rights. FISH, OYSTERS AND CROWN GRANTS. It Is fully and freely admitted by all authorities that the title to all lands under water originally vested and ultimately vest in the Crown. The presence of water on land has no bearing whatever upon the sovereign's right to grant the land. History shows that the American Indians made like claims to sovereignty over and title in submerged land. The Indians raised a limited supply of maize or Indian corn, which was to him an important article of food, but his crops, cultivated in a crude fashion, frequently failed or were limited far below his heeds. The Indian looked to the forest for game and pur sued the chase ; but the winters in colonial times, far more severe than at present, oft times left him shorn of food from the hunt. The sea, however, never betrayed him; summer and winter and year succeeding year, it furnished him an unfailing supply of fish, while the oyster beds. In close proximity to his settlements on Staten Island, were an unceasing source and furnished an abundant supply of food oysters. This is clearly and remarkably shown In a very substantial way in the histories of Staten Island, which refer to the period of colonization. They tell 136 ENGLISH CROWN GRANTS 137 us that adjacent to and over against the sites of the Indian villages on Staten Island great heaps of oyster and clam shells were found by the early settlers. These piles of shells were so extensive that the early settlers burned them for lime for use in the construc tion of their houses, and generation after generation resorted to these deposits of shells as a source of sup ply for furnishing the much needed lime for Staten Island lands, used for agricultural purposes. The lands under water, adjacent to the shores of Staten Island, were held by the native Indians. These lands constituted their most important source of food supply, and would have been fought for against all trespassers and invaders. To the Staten Island Indians, the oyster beds of Staten Island were as important as are the wheat fields of Minnesota and the Dakotas to the people of the United States. The Indians had the same conception of the own ership of uplands, shores and lands under water as was entertained by European sovereigns. It was the natural development of that dormant but innate con ception of the human mind hereinbefore referred to, that all titles descend from supreme sovereignty and that every good thing is a gift from the Great and Good Spirit. The South American Indians, under the sway of the Incas, looked upon their sovereign as represent ing a dynasty which descended from the sun, or the supreme God of the heavens. They "out-Heroded Herod" in exalting the theory of the divine right of kings into a divinity of kingship. The Indians on the coast of North America, ruling In their several tribes 138 ENGLISH CROWN GRANTS the districts about New York, looked to their sove reigns or chiefs and to their councils as representing the title to lands occupied by the tribes. The Indians of Staten Island, in 1657, in a deed dated July loth of that year, certified: "We, the undersigned natives of North "America, hereditary owners of Staten Island, "certify and declare." (Col. Hist. N. Y., Vol. 14, P- 393-) In 1658, Wyandance, the famous, peaceable and much beloved Chief of the Montauk Indians, then settled on the cast end of Long Island, made a Grant to Lyon Gardiner of the right of herbage on a large tract of land adjoining Southampton. The assent of certain other chiefs or sachems was secured to this Grant. The chiefs, however, reserved in that Grant "the whales that shall be cast up." In the year following, the same sachem, Wyan dance, granted to the said Gardiner "All whales that might come ashore," on a long extent of sea front. An Interesting fact In connection with this Grant by the Indians to Gardiner Is that all whales, with an occasional exception, when stranded or cast up by the sea, are stranded on the outer bar of sand which forms some distance from the shore or on land below low water mark, and on what is known as "land un der the deep sea," or submerged lands. "Royal fish consist of whale and sturgeon, to which the king, or those who have a royal franchise are en titled, when either thrown on the shore or caught near the coast." (Cruise's Digest of the Laws of ENGLISH CROWN GRANTS 139 England respecting Real Property, 1808, Vol. 2, Title 27.) In this, as in many other respects, there was per fect harmony between English and American-Indian Common Law. At a meeting of the Legislative Council of New York held at Fort Henry, March 23rd, 1698, great indignation was there expressed over the fact that Richard Floyd, Jr., had dared to cut up and carry away a dead whale that had drifted ashore on Long Island. The Council declared it "a high contempt of his Majestie's authority and derogatory of his Majestie's right." The Council ordered that the whale be seized and Floyd arrested and prosecuted. It was a bad case of lese majestic. The minutes of the Council for many sessions thereafter show deep resentment over this poaching upon the Royal fishing preserves. A descendant of this man Floyd "got square" with the English Crown, by adding his signature to the historic "Declaration of Independence," In 1776. In 1726 the Legislative Council of New York ap proved an act to grant one De Langlolsere "the sole fishing of porpoises in the Province of New York during the term of Ten years." Porpoises never invaded the Harbor of New York, though Robbins (Robyns) reef was named after the seal that fre quented it in colonial days. Th6 Fishing Rights granted to Lancaster Symes ( 1708) were valid under English Common Law and consonant with the custom of the Crown in granting such rights. In Colonial days whales were exceedingly plentiful I40 ENGLISH CKUWN GKANIS along the New England and Long Island shores, as is clearly shown in the autobiography of Rev. Lyman Beecher, D.D., pastor of the Presbyterian Church of Easthampton, Long Island. It frequently occurred that whales pursued their food close in to shore, and at high tide would pass in over the outer bar, which bar always forms on that coast beyond where the waves break on the shore. The whales remaining until low tide, would fre quently become stranded In the shallow water on the outer bar, when seeking to find their way out into the deep sea. Thereupon the natives on shore would proceed in their canoes to dispatch them and convert them into commercial products. In fact, whales captured "along shore" by fisher men are generally dispatched and cut up in the water, frequently below low water mark, because of their weight and the depth of water necessary for them In swimming or floating. With this state of facts clearly before us, we dis cover that the English recognized In the Indians their rights to the lands under water below low water mark. The settlers seeking to acquire from the In dians this then most fertile source of income and pro fit on the Atlantic shore, to-wit, the whale fishery, applied to the Indian Chiefs for and received from them Grants to operate an Industry which made neces sary the occupancy and use of lands under water be low low water mark. There can be no doubt of the fact that the Eng lish recognized the Indians' claim of title to such land. The acceptance of such Grants by the settlers. ENGLISH CROWN GRANTS 141 and the English authorities, bound them to such a legal construction. In one of the foregoing mentioned Grants made by the Indians to the settlers (E. H. R., Vol. i, p. 148) a limitation Is set by the use of a single word in the said Grant, to wit, "Enaughquamuck," which, trans lated by the Algonkinist authority, William Wallace Tooker, means "as far as the fishing place goes." It is a reasonable deduction that as fishing places are not on dry land, they must extend out and involve the land under water. Here is a definite recognition of title to land under water claimed as belonging to and granted by the Indians. Further evidence, in support of the Indians' claim to the lands under water at their fishing places and elsewhere is the ever recurring expression in histories of colonial times, "the fishing grounds of the Indians." It is a per tinent inquiry. Why did the natives, the colonists, and the colonial and imperial authorities constantly refer to the "Indians' fishing grounds" if they only meant the waters in which they fished? As conclusive proof of the Indians' claim, and maintenance of title, to lands under water below low water mark, we cite the case of Fisher's Island, situated at the Eastern end of Long Island Sound, the title to which Island, and the fishing grounds surrounding the Island, were claimed and held by the Rhode Island Indians as against all comers. There is a small stream on the eastern end of Long Island by the name of Wading River. Its Indian name was "Pauquacumsuck," which signifies "the brook or outlet where we wade for clams." This Is a tidal stream. It flows into the sea or sound. It 142 ENGLISH CROWN GRANTS was planted by the Indians with clams. It was a source, and an important one, of the Indians' food supply and its name appears in grants and deeds. "What is planted in the soil belongs to the soil." The identification of the fishing grounds as an in tegral part of Indian lands and lands of the early settlers is interestingly referred to in the recent de cision of the New York Court of Appeals, in the case of Lilllus Grace vs. Town of North WInsted (Feb. 26th, 1916), in which the Court recites the attrac tion possessed by Long Island for settlers, caused by the shell fish abounding in its tidal waters and which belonged to and were a part of its submerged lands. It also referred to the Grants and to "the extrinsic facts as to the situation of the colony." It reached the conclusion that the patents embraced the lands under the bay. The subject of Crown Grants of lands under water is thoroughly and comprehensively discussed in the leading case of Rodgers vs. Jones (i John 237). This case has been uniformly followed and is recog nized as controlling in New York State. Rodgers was sued by one Jones, a surveyor of the Town of Oyster Bay, for the recovery of a penalty created by the by laws of the Town, which declared "that no person not being an Inhabitant of Oyster Bay shall be al lowed to rake or take any oysters on the creeks or harbors of the Town of Oyster Bay, under the pen alty of $12.50 for each offense." The Town claimed title under an English Crown Grant. The penalty was enforced by the trial court and the judgment was affirmed on an appeal. The description contained In the Grant under which the ENGLISH CROWN GRANTS 143 Town of Oyster Bay asserted its right Is in nowise as comprehensive as the description contained In the final and inclusive Grant made by the English Crown closing out the Crown's estate on Staten Island to Lancaster Symes. "It has, however, been strenuously but mistakenly insisted that the right of alienation by the Crown was restricted by Magna Charta and other statutes, not only so as to prevent the King from making a Grant of a fishery in severalty but from making any absolute transfer of the soil under water." "What may be the law elsewhere on the strength of reasoning sustaining this view, it must be regarded as the law of New York that no such restraints were imposed by the Magna Charta or otherwise upon the kingly power." (Estates and Rights of the Corp. of the City of N. Y., Vol. i, p. 223.) Fisheries are of three kinds : First, Several. Second, Free. Third, Common. "The right of 'several' fisheries, as already shown, is founded on and annexed to the soil and Is, by rea son of, and concommittance with the ownership of the soil. When the soil of a navigable river is granted, the right of 'several' fisheries therein be gins." (Words and Phrases Judicially Defined, "Fishery.") "The right to fish and take fish is not an easement; it is a right of profit in lands." (Wickham vs. Hawker, 7M 7W 73.) "A fishery is in the river and is not the space be- 144 ENGLISH CROWN GRANTS tween high and low water mark, though the use of that space may be necessary In the use of it and may be Included in the term." (Tinlcum Fishing Co. vs. Carter, 6i Pa. 21, 37.) "A fishing pool or place Is defined by statute to be from the place or places where the seins or nets have been usually thrown into the water to the place or places where they have been usually taken out." (Tinlcum Fishing Co. vs. Carter, 61 Pa. 21, 36.) "The term 'Royal Fishery' at common law was used to designate the right of fishery In a navigable river in which the sea ebbed and flowed, and was so called because the right was a part of the prerogative of the King." (Arnold vs. Mundy, 6 N. J. Law (i Halst) I, 86.) "A free fishery or exclusive right of fishing in a public river is a royal franchise, which is now fre quently vested in private persons, either by Grant from the Crown or by prescription." (Cruise's Di gest of the Laws of England Respecting Real Pro perty (1808), Vol. 2, Tit. 27.) The theory of English Common Law, elucidated by Blackstone and other authorities, that In the granting of the land and the conveyance of same, the presence or nonpresence of water thereon is not taken into account is In strict harmony with the de cisions of the English Courts, contemporaneous with and subsequent to the Crown Grants of land on Staten Island relating to fisheries, as made In 1708 to Lancaster Symes. On November 13th, 1799, the English Crown brought an action for the restoration of a certain M. Harman to an office In a company from which it ap- ENGLISH CROWN GRANTS 145 pears he had been devolved. This is a case known as "the King vs. the Stewart, foreman, treasurer, bookkeeper, and freeman of the Company, of free fishermen, and dredgemen, of the manor and hundred of Faversham, In the County of Kent." In the course of the proofs, and as collateral evidence in sustaining the principal contentions in the case. It was shown that the Lord of the said Manor who had re ceived his Manor by Grant of land from the Crown, held title to the Oyster beds, or Oyster Grounds un der the tidal waters adjacent thereto. It was further disclosed in that case that the com pany of free fishermen and dredgemen of the Manor, held of the Lord of the Manor, the said Oyster Grounds. It was also shown in that case, that In order to preclude any doubt as to the Oyster Grounds being subject to the Crown Grant of land and con» trolled thereby, and that the dredging of oysters thereon was not a common right of the people; "Every person admitted to the freedom (of the Manor) hath before his admission taken an oath that he would be a true tenant to the Lord for the fishing grounds." It appears that this right of oyster dredging which was claimed and held by the Lord of the manor was held by him under his land Grant, and that the com pany of free fishermen and dredgemen "held of the lord of said Manor and hundred, certain oyster grounds within the said Manor and hundred, and during all that time have laid and kept oysters upon the said ground for the common use and benefit of the said company." The right of the Crown to have made the Grant and the right of the Lord of the 146 ENGLISH CROWN GRANTS Manor to have made a Grant to the company of fish ermen and dredgemen under his land Grant was ad mitted and not traversed by either party to the action. The three learned judges thereupon gave opinions as follows : "Upon this state of the case the Court will "consider that the fishery and the soil pass to- "gether." {Chief lustice Lord Mansfield.) "There Is no doubt but that a fishery is a tene- "ment. Trespass will lie for an Injury to it and "It may be recovered in ejectment." {Judge Ashhurst.) "The fact of letting a fishery is sufficient and "we must presume that the soil pass along with "it." {Judge Buller.) (King vs. Alresford (1786), Court of King's Bench, Durnford and East's Report, Vol. I, 360-1.) The above named three Judges constituted one, if not the ablest judicial triumvirate that ever held court in England sitting together on the same bench. The bounds of the Manor of Faversham in Kent, England, are thus given (Hasted, Vol. VI, page 335) : "The Town and parish of Faversham, the "boroughs of Harty, Ore, Ewell, Selgrave, Old- "gold, Scheld, Chetham, Brinnystone, Badles- "mere, Oldebonde Island, Roda Graveyney, ENGLISH CROWN GRANTS 147 "Bourdefield and the lands of Moukendans, In "the parish of Moukton." It will be noticed that Oldebonde Island Is described simply as an Island. It should also he observed that the Court of the Kings Bench held in the case referred to above, that the oyster beds in the waters about the Island were in cluded in and covered by the Grant of the land as on the Island even though the Grant con tained no reference to submerged lands or lands under water. "The customs of Kent are a part of the old "Common Law." (Tenures of Kent, page 77.) The Court of Kings Bench was a royal Court, the Justices of which decided the King's causes, I. e., those affecting the King's Crown and dignity. This Court had no fixed place for holding its sessions, but held Court where the King happened to be. Orig inally the King himself sat with the Court and passed upon the issues involved. (Crab's History of Eng lish Law.) In the case of the Trustees of Brookhaven vs. Strong (60 N. Y. 56-73), the New York Court of Appeals set forth at considerable length the right of fishery under an English Crown Grant. The Issue raised was as to the right of the Town of Brook haven In and to certain oyster beds In the Great South Bay, where such right was not precisely defined in the language of the Grant. The Court, near the con clusion of its very comprehensive opinion, says : 148 ENGLISH CROWN GRANTS "Besides the language of the patents, 'all riv- "ers, waters, beaches, creeks, harbors, fishing "and all other franchises to said tracts apper- "talning' is significant of an intention to convey "this very right. There is no reason why these "terms should not be construed according to "their ordinary meaning, especially when ap- "plied to land under water included within the "boundaries." Nothing Is more certain than a certainty. There fore, how redundant Is the description contained In the Crown Grant to Lancaster Symes and how com prehensively It applies to the Staten Island Oyster Beds, in the light of the foregoing decisions. We read from the Symes Grant, among many other rights conveyed, the following: "All meadows, marshes, swamps, pooles, "ponds, waters, brooks, fishing and fowling, "hunting and hawking," the same "lyeing or be- "Ing or to be had, used or enjoyed in them, the "bounds and limitts aforesaid, and all other "profitts, benefitts, advantages, hereditaments "and appurtenances whatsoever unto the said "pieces and parcells of land and premises be- "longing or in anywise appurteylng." "The bounds and limitts," referred to were the therein before expressed "bounds and lim- "itss of Richmond County." In the case of Robins vs. Ackerly (91 N. Y. 98) the language of the Grant as made to the Town of liNGLISH CROWN GRANTS 149 Huntington is much narrower In its application to fishing rights than is the language of the Symes Staten Island Grant. In that case, however, the Court con strued the Grant as applying to Northport Harbor, with Its oyster beds. In the case of the Town of Southampton vs. Me- cox Bay Oyster Co. (116 N. Y. i), the Court con strued the Crown Grant to the Town of Southamp ton as including the oyster beds under the waters of the Bay. In that Grant also, the language applied to fishing is far more limited In its scope than is the language contained in the Crown Grant to Lancaster Symes, under which all remaining Crown lands on Staten Island were conveyed to him. "A right to take fish, including shell fish in "the sea and in the arms and bays thereof and "In rivers where the tide ebbs and flows, below "high water mark Is common to all citizens, un- "less restrained by some act on the part of the "Government or State having sovereignty over "the same." "An individual may acquire the right to fish "in a creek or river to the exclusion of the pub- "lic by the King's Grant." (Washburne, on Easements and Servitudes, pp. 410, 412.) "The bed of all navigable rivers where the "tide flows and reflows and of all estuaries or "arms of the sea is by law vested in the Crown." (Gann vs. The Free Fishers of Whitstable, House of Lords 11, H. L. C. 192, Lord West- bury.) I50 ENGLISH CROWN GRANTS Itr 'The right of the Sovereign exists in every "navigable river where the sea ebbs and flows. "Every such river is a royal river and the fishing "of it is a royal fishery and belongs to the Queen "by her prerogatives." (Nelll vs. Duke of Dev onshire, 8 App. Cas. (135) 157 Lord O'Hagan.) "The private right of fishery ceases to exist "below the point where the right of the Crown "to the soil commences." (Doss on Law of Ri parian Rights, 90.) THE GRIP OF CROWN GRANTS It has been clearly established that the English Crown had a good and perfect title to all lands on and about Staten Island, in the State of New York. The Crown's title included all lands above water and all lands under water together with all lands be tween high and low water mark in the County of Richmond. This proposition is absolutely correct. It was a complete and perfect title as a proposi tion of law. It covered every square foot of land from the highest point on the uplands to the most submerged soil in the rivers, bays and seas, to the utmost limits and bounds of Richmond County. Not one square foot of land within the present County of Richmond was exempt or escaped from the grasp and grip of that Royal Title. Not one foot of land within the County's boundaries but originally belonged to the Royal estate. Each and every title descends from and rests upon the Crown's purchase of Staten Island from the Indian inhabitants thereof as well as upon the right of discovery. The Crown held, through the Duke of York's pur chase, all lands owned by the Indians of Staten Isl and and closed out to Its grantees all that It had so 151 152 ENGLISH CROWN GRANTS acquired. The language of the Symes Grant is con clusive and thereafter the Crown never again exer cised a single right or claim of ownership to lands in Richmond County In the State of New York. The Crown Lands on Staten Island constituted one solid and unbroken estate under one Imperial proprietorship. It was the personal estate of the English Crown. The Crown owned every right, title and use in and pertaining to the fee and was in com plete possession thereof. The English Crown could have permitted its sub jects to cultivate the lands; erect houses thereon, es tablish ferries therefrom or thereto. It could have also granted the right to fish, hawk and hunt thereon, cultivate and dig oysters in the seas and bays thereof; or it could have refused or denied each and every such privilege. No English citizens would have ques tioned such indulgence or forbearance by their Sover eign. The English Crown was the owner of the lands in fee, pure and simple as an individual proprietor. What is more, and it is a very important historical fact, it undertook to and did attach Staten Island to the Crown's personal Manor of East Greenwich in the County of Kent, England. Staten Island by such Royal act became an integral part of that Manor to which for a long time legal accountings were made of all revenues received therefrom by the Crown's agents pursuant to the terms of the Crown Grants issued for lands thereon. Individual and personal rights and privileges be longing to the Crown as the personal owner of the Manor of East Greenwich in the County of Kent, ENGLISH CROWN GRANTS 153 England, also belonged to the Crown as the personal owner of Staten Island. If the Crown could sell the one it could sell the other. It could lease Its country estate at East Greenwich, and it could lease its lands on Staten Island. While the Sovereign was King or Queen that same Sovereign was also Lord or Lady of the Manor of East Greenwich In the County of Kent. Staten Island, while under the political juris diction of the Crown was the personal property of the Lord or Lady of the Manor of East Greenwich. The laws governing and protecting proprietorship of manorial lands in England, whether owned by prince or plebian, likewise threw their protection over title to lands in the province of New York, whether held by the Sovereign or the settler, as a part of a personal and individual estate. The above being true, we turn to an investigation of the various English Crown Grants made by the English crown to lands on Staten Island based upon the indisputable title vested in the English Crown, as Lord or Lady of the Manor. To understand the rights and privileges covered and included in the Crown Grants to lands on Staten Island three acts are desirable, yea, in fact are es sential : First — Seal up or dismiss from all consideration every statute enacted since the year 1708, whether by Parliament, Province, State or Federal Government. Second — Use profound discrimination in reading the decisions of the English, State and Fed eral Courts. 154 ENGLISH CROWN GRANTS Third — In so far as they interpret the common law of England from 1635 to 1708 they apply and govern. Vested rights acquired In that period cannot be adversely affected by any subsequent changes in statutory or common law rights in property. Remember that the facts must be similar If the decision Is to control. All of the Grants made by the Crown of England to lands on Staten Island were apparently leases in form, but were deeds in fact. They were all subject to the payment of annual "quit-rents," representing a strict condition that the grantee should pay to the Crown a certain fixed sum each year or forfeit pos session thereof at the will of the Crown. The fail ure to pay the quit-rents entitled the Crown to re enter and take possession of the land theretofore granted. A Crown Grant did not become void upon failure to pay the quit-rents until notice of forfeiture was served by the Crown upon the Grantee and proper legal proceedings were completed, to vacate the Grant or nullify the same. It has been judicially decided that this rental con dition "ran with the land." The Grant when prop erly recorded, gave good and sufficient public notice that the Grantee's right of occupancy or pos session under his title absolutely depended upon the payment by him of the stipulated quit-rents. Notice of a default In quit-rents and a notice of the cancel lation of the Grant by the Crown was necessary to make the Grant void. Proceedings in court must ENGLISH CROWN GRANTS 155 then be undertaken by the Crown in order to re- obtain possession. The term "quit-rents" was simply another name for rents. When the Grantee paid the quit rent it "quit the rent" for the period covered by the pay ment. "Pay rent, keep possession; "Default In rent, lose possession. This is a maxim relating to leases which is too well understood by all generations to need any amplifi cation here. The same rule applied to Grants of lands or deeds thereto which were subject to even nominal rental. Certain conditions were necessary to make a Grant complete, valid and not subject to forfeiture. (a) It must be dated. (b) It must be patented. (c) Its quit rents must be regularly paid, or its quit rents must be commuted; that is paid In advance by one Inclusive payment. There were over one hundred and fifty English Crown Grants issued by the Crown, to lands on Staten Island. These Grants may be classified in eight distinct groups or classes : (Class A) Grants under which rents were paid until further payments were com muted under New York Statutes, by a cash payment in full. Titles in fee and clear. 156 ENGLISH CROWN GRANTS (Class B) Grants under which quit rents were paid for a time, but payments then ceased. They were not commuted. Rights of forfeiture of titles and repossession of lands thereby accrued under the terms of the original Grants. (Class C) Grants under which no quit rents were paid. Right of forfeiture of titles and repossession of lands thereby accrued under the terms of the original Grants. (Class D) Grants which were made but not confirmed by Council. No titles passed. No quit rents were paid. Confirmation of Grants was neces sary to their legality and payment of quit rents was required under the terms of the original Grants. (Class E) Grants which were prepared but not dated and not patented. No quit rents were paid. No titles passed. (Class F) Grants which were prepared but not dated and not patented. No titles passed. Pending the uncertainty as to the Issue of the patents, some small quit rents were paid. (Class G) Grants which were not recorded un til after the Grant to Lancaster Symes had been made, issued and re corded covering all vacant and un appropriated lands within the limits and bounds of Richmond County. ENGLISH CROWN GRANTS 157 Class G Grants were as follows : 1st To Adriensen from a form er Grantee of the Crown. 2nd To Dusachoy, consented to by Lancaster Symes and con firmed by the Crown. 3rd To Jorissee from former grantee of the Crown. It was a common custom for a Grantee when holding land under a Crown Grant to file a request with the Crown to Issue a Grant to his customer or sub-grantee. This gave such a sub-grantee a Royal Grant direct from the Sov ereign and released the origi nal Grantee. 4th To Bellue and Dove. A 20 year lease by Lancaster Symes of Shore front on Sand Bay for Ferry pur poses, and a ferry franchise from the Crown. 5th To Shotwell. This was a Royal confirmation of a title by adverse possession "up ward of 35 years." As forty years adverse pos session was necessary to ob tain a title against the Crown, this Grant was made 158 ENGLISH CROWN GRANTS by directions from Symes or by his consent. (Class H) This class covers only the Crown Grant to Lancaster Symes. Quit rents were paid until commuted un der the New York Statutes, by a cash payment in full, which commutation was in effect under the law a new Grant to Lancaster Symes from the 'State of New York. The commuta tion of quit rents has been judicially decided as being In legal effect, the issue of a New Grant. (Class H is the same in every respect as Class A.) By a comparison of this schedule with the map of classified lands on Staten Island, due reference being had to the conditions set forth herein as necessary to make a Crown Grant legal and valid, the reader can readily understand where the legal title to any and every piece of land on Staten Island rested after the final and inclusive Grant was made by the English Crown to Lancaster Symes in 1708. This Grant to Lancaster Symes covered and included all lands not previously granted and patented. Whatever titles to lands in Richmond County were then (1708) vested in the English Crown and which it had the right to grant away, it did grant to Lan caster Symes. It has been found that many Grants were applied for but were not issued by the Crown; many other Grants having been applied for were issued by the ENGLISH CROWN GRANTS 159 Crown, but were not patented by the Grantees. Many other Grants went through such formalities but the Grantee paid no quit rents thereunder. Other errors and omissions are clearly shown of record, which ren dered nugatory and of no legal force or effect certain other Grants. It Is now possible for the State of New York to cure these defects by exercising its right of forfeiture of and re-entry upon the lands affected by such errors and defaults. Thereupon it might regrant such lands to the present record owners thereof and every cloud would vanish from land titles on Staten Island where such defects are created by the difficulties enumerated here. Class A Grants — These Crown Grants were per fect. They were duly issued, properly dated and pat ented. The quit rents thereunder were paid up to the time when they were subsequently commuted. That is, all quit rents thereunder were paid for a time and then the State of New York, after the Revolutionary War, accepted one pajmient in full of all further de mands whereupon all rents ceased. It has been judi cially determined that the complete settlement of quit rents under a Crown Grant by a payment in advance, of an agreed sum, in full payment therefor converts such a title into a complete fee. It has been likewise determined that the acceptance of such a payment by the State is equivalent to and "constitutes a new Grant In fee, by the State." The acceptance of such a pay ment by the State deprives the State of any right thereafter to challenge the validity and regularity of such Grant. There appears to be but two Crown Grants on i6o ENGLISH CROWN GRANTS Staten Island which can be properly included in Class A. One of the two Grants referred to is the Crown Grant to Lancaster Symes, but which Grant, because of its extent, has been specially listed in Class H. Class B Grants — ^The Grantees in this classification received their Grants and patented the same. They paid their quit rents for a time, but subsequently de faulted thereon and ceased to pay. As these Grants were issued conditional upon the payment by the Grantee of annual rentals and as the quit rents were not paid as required under the terms of the Grant, the Crown's right of forfeiture and re-entry accrued, which right Is now vested in the State of New York. Class C Grants — The Grantees in this class went through the proper forms of having their Grants is sued, dated and patented, but no quit rents were ever paid thereunder. The consideration for the issue of these Class C Grants was the payment of quit rents and rentals thereunder were never paid. All of the Grants in this class became and in fact always were null and void and of no effect. "No title or Interest in lands can pass under any Instrument where a good and valid consideration is not paid." Class D Grants — ^The titles In this class are even more striking in their defects. The parties securing these Grants apparently not caring to pay the quit rents or perchance having changed their minds as to the desired locations did not patent their Grants. As a fundamental proposition of law, a Grant must be patented to be valid. The Grants in this class not having been patented no quit rents were paid there under. Such being the case the Grants themselves ENGLISH CROWN GRANTS i6i were never completed. This vital and fundamental defect renders these so-called Grants as if never ap plied for. Class E Grants — The Grants in this class were pre pared by the Crown, but evidently awaiting some proper action by the Grantees, were not even dated. Not being dated, and no rents or consideration hav ing been paid thereunder, they were clearly and plainly null and void, and of no effect from their very inception. No date, no consideration, no patent means beyond cavil no Grant. Class F, Grants — The Grants in this class, for some undisclosed reasons, were held up by the Crown. They were not dated nor patented. The Grantees made a few payments to the English Crown in anticipation of receiving a Grant, or as was fre quently done in those days, they rented for one or a few seasons certain pasturage or tillable lands and then quit the use or occupancy thereof without the issue to them of a Grant. Not having been issued or patented and the rentals having ceased, no rights as Grantees ever accrued thereunder. Class G Grants — ^As above explained, these Grants were recorded after the Crown Grant to Lancaster Symes was recorded. They were Grants made sub ject to the rights and consent of Lancaster Symes, as previously explained In this chapter or of lands which had been granted by the Crown previous to its Grant to Lancaster Symes. Class H Grants — This is the Grant to Lancaster 1 62 ENGLISH CROWN GRANTS Symes and Is on a parity with and is properly In cluded in Class A Grants. In the light of the foregoing statement covering every English Crown Grant issued to lands on Staten Island we turn to a map of the Island on which there has been clearly outlined the above classified lands. This map of classified lands is based upon a map of Crown Grants prepared by official surveyors on which map every English Crown Grant to lands on Staten Island Is located, by metes and bounds. We have followed with great care the official rec ords and the map prepared by the Government Sur veyors in order that the information disclosed on this classified map might rest upon official documentary proof and be in no wise a conjecture, or the expres sion of an individual judgment or opinion on the part of the author. We simply submit the historic proofs at hand for what they may be worth for use In clearing up the titles to lands on Staten Island. On the map of lands which we have classified ac cording to information obtained by us from official sources we show the relation of all titles to lands on Staten Island at the close of the year 1708 as such titles appear related to the Original English Crown Grants from which they did or supposedly did descend. It is a pertinent Inquiry as to whether any of the Grantees referred to, who were in default in payment of their quit rents, continued to occupy and possess the lands which may have been taken over by them under their respective Grants. Adverse possession as against the Crown required ENGLISH CROWN GRANTS 163 forty years of continuous occupancy under strict and arbitrary conditions difficult to perform and the per formance of which is more difficult to prove. With this possibility in view, we examined with great care other proper public records and discovered that practically all of the Grantees, so in default, never gave a deed or lease to any other person or persons of the lands described in their respective Grants. Neither do we find the lands so referred to Included as an asset in their respective estates at their decease. It is a very proper conclusion that the Grantees (a) whose lands were not patented, and (b) who failed to pay any of their quit rents, and (c) who is sued no leases or deeds therefor during their life time, and (d) whose estates failed to include as an asset lands referred to, either never took physical pos session of the lands included in such Grants, or then abandoned the land. In fact, failure to occupy, or abandonment, speak out from a vast majority of the Staten Island Crown Grants issued by the English Crown, under Class B Grants to Class G Grants in clusive. This reasonable presumption Is not only sustained by the public records, but is supported by historical authorities. Many of the early English settlers aban doned their lands and moved to New Jersey and Pennsylvania, where they took up other lands. Many others, descendants of original Grantees, being loyal ists, took the side of England in the Revolutionary War and fled when peace was made. Much land was thereby abandoned, while other land was escheated by the State of New York for treason. 1 64 ENGLISH CROWN GRANTS In 1708 the Crown closed out to Lancaster Symes all of the Crown lands within "the bounds and limits of Richmond County," New York. It is in no wise strange that after the treatment the English Crown had received from a large majority of its Staten Island Grantees, it should have closed out Its title therein to "its loyal and faithful subject," Lancaster Symes. It is not intended by the foregoing statement to even imply that at the present time all of the lands so originally included under Class, B Grants to Class G Grants, Inclusive, descended to and are now possessed by the present owner of the Lan caster Symes title. Such a theory would be contrary to the fact, unfair, unjust, and hurtful to many inno cent and true owners of much of the lands so re ferred to. There are two distinct ways by which lands orig inally granted, and which we have Included in Class H Grants, may have become the properties of parties In no wise interested in the original Crown Grants and who can now claim no direct descent of title therefrom. The record title should, however, be tracable back to an original Crown Grant to avert danger of de feat under even an apparently strong claim of ad verse possession on the part of those now In posses sion or from whom their claim of tide may descend. Even to establish a title by adverse possession such a transcript of record is very desirable. Titles may have been obtained through the medium of tax sales. If any of the lands covered by and included in the original Crown Grants have been duly and properly assessed and the owners thereof ENGLISH CROWN GRANTS 165 have defaulted in the payment of taxes thereon, and if such properties have thereafter been properly ex posed for sale and properly and legally sold for taxes in strict conformity with the statutes, then the title thereto may have passed by virtue of such tax sale to parties other than the original owners or their de scendants in title of record. In matters of tax sales, "the State proceeds in "a summary way to seize and appropriate the "property of the citizen in invitum, and the sale "and conveyance are but steps In the proceeding "which must be shown to have been duly instl- "tuted and regularly prosecuted, or the at- "tempted confiscation will fail unless there is "some statute which makes the deed presumptive "or conclusive evidence of regularity." (Da- lancey vs. Piepgras 138, N. Y. 26.) In view, however, of the manner in which assess ments and tax sales were conducted up to within a very short period on Staten Island the average tax title, acquired by virtue of a tax sale, is somewhat of the nature of "a snair and delusion," and is easily set aside by a proper procedure, if we correctly judge the record. Parties now in possession of lands included In and covered by any of the Original Crown Grants and who cannot In any wise trace their chain of tides back to the Crown Grants originally covering the lands they occupy, may be able to show a good and valid title to the lands referred to through adverse posses sion on their part or from some one from whom their title descended who was able to and did clearly show 1 66 ENGLISH CROWN GRANTS such proof of adverse possession as permitted under the law. The statutes of the State clearly provide a method by which tide to a property actually owned by another may be obtained by adverse possession under certain circumstances and conditions. The procedure under such legislation and the method to be pursued in order to obtain such a title are very clearly and distinctly prescribed In the Stat utes, while the decisions of the courts are very con sistent as to what is necessary to establish a title by adverse possession. It is obnoxious to the law and contrary to con science or equity that a man shall knowingly and in a hostile manner seize upon, take possession of, and hold property that is not his own, and by such pro cedure divest the lawful owner thereof of his rights therein, to the benefit and enrichment of the party who by legal force and violence obtained possession thereof. Judges shrink from decreeing that a moral wrong, from age and persistence therein, has be come a legal right. The state of mind, however, which protests against a practice which in itself is of the nature of larceny is mollified and altered to a degree by miti gating and extenuating circumstances. In order that a member pf society shall transform an act that was originally of the nature of a legal and moral wrong Into an act that Is to be tolerated, permitted and ap proved by a Court of Justice or Equity, the party thereto is sternly required to strictly comply with ENGLISH CROWN GRANTS 167 severe conditions laid down by the law. To main tain a title based upon adverse possession is a difficult task and presents an Issue which, though tolerated, is not welcomed in the Halls of Justice and Equity. It is therefore not strange that Title Companies in the majority of instances refuse to guarantee titles obtained by adverse possession or tax sales, and con servative money lenders turn from such titles as too hazardous a security for loans. The American Title and Trust Company, the re cent record owner of the titles to land on Staten Island descending from and through Lancaster Symes, had no purpose nor did It desire to deprive any one of the possession of lands on Staten Island if such an one had properly and lawfully obtained his title by adverse possession, legal tax sale, or in any other manner approved by the law of the land or the conscience of the community. The Title Company referred to, upon satisfying Itself of such a state of facts in any particular in stance, proposed to frankly and unhesitatingly admit and recognize the same, regardless of original wrong ful trespass upon and violent assertion of a forcible possession of lands of which it had been so deprived. To illustrate this latter conclusion, we cite the fol lowing Instance: The American Title and Trust Company was called upon by a citizen of Staten Island whose chief and practically only estate Is a comfortable house in which he lives and a few acres of land on Staten Island favorably situated and upon which his house is located. The elderly man informed the Title Company that 1 68 ENGLISH CROWN GRANTS he had suffered from many sleepless nights since the acquisition by the American Title and Trust Com pany of the Symes title to lands on Staten Island. He said that he knew that the land he occupied had be longed to Lancaster Symes. He further stated that he "wanted to be true and honest with all men and that he did not wish to die holding lands which were In fact not his own." He further remarked that he "wanted no trouble to occur after his decease over his small possession." With this statement he offered to surrender the title to his home and so "square his con science" with the world. The American Tide and Trust Company knew as a proposition of law that this honest old citizen had In fact acquired a good and perfect legal possessory right to his home, by adverse possession. It so in formed him and explained to him the law. He was shown that in the first instance Lancaster Symes had a perfect title to the plot of ground referred to, but that now under the Statutes of the State of New York, such right of possession had ceased. There fore, the American Title and Trust Company refused to accept the tender of the deed on the theory that it would be depriving the old gentleman of property that was lawfully possessed by him and to which the Title Company had no legal or equitable claim. "He who asks equity must do equity." The officers of the Title Company, somewhat like the old man, wanted their consciences "square with the world." Adverse possession cannot be obtained by the State or by the City, but only by such private citizens and corporations who for not less than twenty years in some instances and for not less than forty years in ENGLISH CROWN GRANTS 169 other circumstances have strictly complied with the very stringent law, under which definite and com plete proof necessary to maintain adverse possession is difficult and trying to establish. While such ad verse possession may be a fact, the proof thereof as prescribed by law and insisted upon by the courts is exceedingly difficult in the majority of Instances. TITLE GUARANTEES AND CROWN GRANTS. The Book entided "THE MAJOR AND THE QUEEN" was written that It might rescue from al most complete oblivion the name and reputation of Major Lancaster Symes, a prominent character in the Colonial History of the Province of New York. Major Lancaster Symes died possessed of an ex tensive estate. He was the owner of more than one half of Staten Island. His property interests at the time of his decease were very widespread. They in cluded possessions in Holland, hereditary rights in England and real estate in several counties in the Province of New York. No Crown Grant to Lancaster Symes covering lands in any other County In the State of New York has ever been voided, nor has his Richmond County Grant ever been traversed. During the past several years the author of this narrative has been making a successful International search for records and documents relating to Major Lancaster Symes. These efforts resulted In remarkable disclosures. The awe-inspiring mystery with which vivid imagina tions had cloaked the name and fame of Major Symes has been completely dispelled. In the brighter light 170 ENGLISH CROWN GRANTS 171 of recently revealed history there stands before the mind the historic picture of a gallant officer and a loyal and true citizen who was the owner of a valu able estate, a portion of which was located on Staten Island. He died, having bequeathed his property to his family. He died fully trusting that the conscience and the laws of the public which he had so faithfully de fended and served, would safeguard his posterity in their rightful inheritance. The generation in which he had lived remembered him with affection and the following generation hon ored his memory. Then the stern resolve and defi ance of the Colonists hurled at the English Crown precipitated the American Revolutionary War, In the wild excitement of which much that was English was execrated. The Colonists had little time or thought for the memory of the dead English soldier or for that of earlier generations, when fighting two of their battles in the very churchyard and Colonial burying ground given by this same Lancaster Symes to St. Andrew's Church and in which "God's Acre" slept many of their own sacred dead. The passions of war smothered the impulses of gratitude. St. Andrew's Protestant Episcopal Church In Richmond, Staten Island, which Major Symes had generously aided by gifts of lands, became a war hos pital, a battle ground and fuel for battle flames. Some of its English members were driven Into exile for not espousing the cause of the Colonists. Others of its friends were banished under sentence of death 172 ENGLISH CROWN GRANTS for loyalty to their Mother Country. The rejuv enated St. Andrew's Church, having been previously rent, torn and impoverished for a time by war de spoilment and flames, forgot its benefactor. It even dreamed that he belonged to the myths. His memory so completely faded from its recollections that for generations it appears to have lost all thought of him in connection with a large acreage of land received by It as a gift from Major Lancaster Symes, notwith standing the fact that the deed conveying such en dowment was clearly recorded within two hundred feet of the parish house. If the Church, the receiver of his substantial bene factions, could so forget its benefactor, is it at all strange that after the passions of Revolutionary War and the troubles of reconstructing social order at its close, the public should also have forgotten him, a faithful public servant? Many tracts of Staten Island lands were sold and transferred, immediately subsequent to the Grant made to Lancaster Symes In 1708. Such operations in real estate have continued on Staten Island down to the present time, a period of over two centuries. According to official records in the County Seat of Richmond County, not a map showing one single transfer of lands on Staten Island appears of record in the County Clerk's Office for one century follow ing the Grant to Symes. Not a map of record in that County Seat showing the transfer of any Staten Island real estate for a period of over one hundred years I For a time following that absolute void of one cen tury in the map records in Richmond County, such ENGLISH CROWN GRANTS 173 maps as were filed covered but small plots of land and single farms. In many cases such maps did not even adequately or clearly represent the descriptions In the deeds to which they referred. One of the most respected, conservative and pro gressive of Title Companies recently made public an announcement that it will not make guaranteed searches of titles to lands on Staten Island extending back to the original Crown Grants. This is seemingly a strange policy to be announced or pursued by such a representative Title Company, but as the author understands the situation, it is In harmony with a policy quite uniformly adopted by other Title Companies doing business on Staten Island. The situation as to many of the titles to Staten Island real estate, however, demanded such an atti tude. Title Company officers, directors and counsel acting as trustees for interests they represent must take notice of and be governed by conditions as they exist. The amazing attitude of public officialdom down to within a recent "handbreadth" of time has been based upon the Incorrect theory that no official survey of Staten Island has been made in the past and that the Island has not been mapped. The records of Richmond County fail to show any complete official survey of Staten Island. We have stated that for a space of one century (1710-1810) not a map is there recorded covering any transfer of lands on Staten Island, though history and official books of record show a steady conveyance of real property. The deeds and mortgages recorded during that 174 ENGLISH CROWN GRANTS period fill book after book, but no maps are recorded accompanying the same. It is thought by many that there were some maps prepared and filed during that time In Richmond, the County Seat, but that in several fires which occurred there and which destroyed many valuable records, the maps representing that period of time were con sumed. Be that as It may, the fact remains that no maps representing land transfers for over one century are now" of record in the County Seat. An examination of Staten Island deeds recorded at the County Seat disclosed a very curious state of facts. The description In a deed may run from a "small pile of stones," now scattered, to an "elm tree," now destroyed. It then may take a turn to a "brook," the name of which is lost or was never gen erally known or preserved of record. Then the de scribed boundary wanders, perchance, to a "salt meadow," said on the record to belong to a person named therein but who, upon examination of Liber or Book of Deeds does not appear as an owner of record of any real estate on the Island. The description In a deed taken at random from the Richmond County Public Records runs as fol lows: A certain party, "an Attorney at Law," purports to sell to another party, a "Doctor of Physic," a cer tain piece of land "once owned by" a certain named and doubtlessly then highly respected female. No description by "metes and bounds" accompanies this last mentioned deed. No public record shows that the said "Attorney at Law" ever owned it or had any ENGLISH CROWN GRANTS 175 right to sell It. The nearest approach to a declared ownership in the property Is the disingenuous state ment that a certain female "once owned" it, but no public record shows such ownership on her part. The lawyer purported to sell it to a "Doctor of Physic" as eighty acres. The "Doctor of Physic" gave a deed the following day for one hundred acres. The plot kept expanding on the records by systematic "accretions" due to vivid imaginations or cumulative cupidity combined with "remarkable descriptive pow ers," until it became a comely estate. First it ex tended to a salt meadow ; at the next turn it extended to the beach. Following that It absorbed the land be tween high and low water mark. The last heard of it was that it had extended out to sea, and submarine fashion was moving out along the bottom of the Great Deep. It is too deep for us to fathom. Present titles (?) to that property rest upon an erstwhile "lawyer" and a "doctor of physic," buying and selling lands said to have belonged to another, while the records fail to show either one of them ever owned any portion of the land In question. Is it strange that one of three title searchers re cently conferring together in the County Seat, after looking up the record of still another piece of land on Staten Island, remarked In desperation, "Well, be tween the three of us we ought to be able to 'dope' out some kind of a title to this piece of land." Why does such a situation exist? It Is intolerable ! The excellent Title Companies represented in Rich mond County have been a powerful influence in help ing to steady public confidence and have greatly aided real estate business in a multitude of cases. They 176 ENGLISH CROWN GRANTS have made possible sales and loans that otherwise would not have been realized. Every real estate operator and every Title Company conversant with all the facts, together with the legally constituted pub lic officials in Richmond, fully realize the deplorable conditions existing as to the records of early titles on Staten Island. The English Crown owned Staten Island — every foot of it. It issued a series of Crown Grants thereof to private Individuals and closed out all of the Crown's ownership in Staten Island — every foot of it. Instead of "no survey having been made of Staten Island," a complete survey of the Island was made by the English Crown and the official map thereof is In the possession of and is owned by the American Title and Trust Company. The same Company has also an official location of each and every English Crown Grant shown on a map of Staten Island, pre pared by official surveyors. It has also an official record of each and every Grant, showing the dates of their issue and other essential facts affecting the descent or non-descent of titles therefrom. It has also certified copies of the Grants covering lands granted on Staten Island by the English Crown. These facts relate to every square foot of land on Staten Island to the utmost "bounds and limits of Richmond County." The information covers the seas, bays and rivers included by the United States Government, the State of New jersey and the State of New York within the defined and fixed boundaries of Richmond County. In addition to the above, the American Title and Trust Company has many other official maps, field notes and historical proofs cover- ENGLISH CROWN GRANTS 177 ing Staten Island from the early dawn of English Colonial History in America down to the present time. Many of these archives have never seen the light of publicity. The identity, authenticity and official character of each, however. Is apparent upon its face and can be promptly and effectively confirmed. These invaluable proofs settle once and for all the location of each and every English Crown Grant of lands on Staten Island. There is not now a single building lot on Staten Island that cannot be located on the original tract of land covered by the English Crown Grant to which as a proposition of law it must look as the original source of its title. These proofs cover upland, salt meadows, beaches, land between high and low water mark and lands un der the sea, bays and rivers, to the bounds and limits of Richmond County. For the first time since the chaotic conditions fol lowing the American Revolution, It should be possible to clear up all old titles to lands on Staten Isand and to properly support every good modern title by estab lishing it upon the basis of the Original Crown Grant from which it descended. To this definite proposi tion the American Title and Trust Company in the Dupont Building, Wilmington, Delaware, and the American Title and Security Company of Staten Island, are devoting their best resources. These two Title Companies are not interested in and devote no time or attention to the regular lines of title searching and guaranteeing done by the Title Guarantee and Trust Company, the Lawyers Tide 178 ENGLISH CROWN GRANTS and Trust Company, and the New York Title and Mortgage Company of New York City, all so ably and efficiently represented on Staten Island. These two American Title Companies are, how ever, preparing and are able to prove the Crown Grant basis to any and all titles to lands on Staten Island where the source of present titles cannot be traced by any Title Company to its original Crown Grant. This Information will remedy the defects which for more than a century have harassed property hold ers on Staten Island and caused title searching to fall short of perfecting complete chains of title extending back to their true and legitimate fountain head, the English Crown Grants. The well-informed public deplores the issuance of thousands of restricted and conditional policies of so- called title insurance to home seekers and house builders who may have taken defective titles for building lots under the delusion that they were receiv ing a complete and perfect policy of title insurance. A policy of title insurance is adversely affected by each "exception" endorsed on its back and in a multi tude of instances is rendered absolutely valueless thereby. Among the many "exceptions" noted on the bacic of policies of title insurance issued by the thousands on Staten Island is one which reads substantially as follows :"This title is not insured as against any facts "which may be disclosed upon an accurate or "correct survey," or words to that effect. ENGLISH CROWN GRANTS 179 Without Intending to Impugn any motives but giv ing full credit to the caution which presumably directs the policy of conservative title companies, we ask one pertinent question: If a "correct survey" should disclose the "fact" that the land covered by the policy is on the Symes Grant, then under the terms of the policy the Insurance would be void, would it not? A Title Guarantee Company is only justified in writing a policy consistent with the risk it assumes. It must in the very nature of things disavow liability against what to it Is the absolutely unknown danger which clearly threatens It. The horror of it is, how ever, that innocent purchasers are not informed by many sellers of real estate as to the limitations hidden away In the terms of such title insurance policies. Se rious risks are oft-times actually assumed and unques tionably carried by the one who Innocently thinks that the title to his home Is fully and completely Insured, and for which he pays his hard-earned wages. To what extent a Title Company is bound in morals to explain to its client the true meaning In the restrictions on the back of its title Insurance policies is not for us to determine. We have been furthermore creditably informed by one who claims to have been a party to the conversa tion, that thousands of dead are being buried on Staten Island lands the present title record to which lands is held by a corporation, one of the chief officers of which stated that the Company owning the same could not satisfactorily trace back its title. It is a ghastly statement and worthy of a Ghoul 1 I So ENGLISH CROWN GRANTS To betray the poor and Innocent and to mislead them into accepting defective titles and paying their money for the same Is inhuman, but for private gain to knowingly, wilfully and deceitfully involve the burial place of the dead should place the guilty be yond the pale of human association ! "Such, If admitted, would of high heaven a "hades make." The American Title and Trust Company recendy examined a deed given to a home seeker on Staten Island by a so-called Realty Company. The deed was drawn in such a manner as to be of absolutely no value to him in the form delivered. This was no act of a Title Company, but of an alleged Realty Com pany which had accepted his money and left him in a desperate position as to the actual title to the lands which he had presumably purchased. The American Title and Trust Company exposed the fraud and offered to bring to Bar without costs to the victim the perpetrator thereof, if the transaction was not forthwith remedied, which was prompdy done. But why do not Title Insurance Companies make a general business of unqualifiedly guaranteeing the title to and peaceable possession of dock properties in Manhattan, Brooklyn, Jersey City, Hoboken, Staten Island and elsewhere on tidal waters? The explanation if made' in full would be beyond the scope and limits of this work. In brief, the State controls and regulates commerce and the waters of the harbors are free. The lands under water and between high and low ENGLISH CROWN GRANTS iSi water mark on tidal streams are subject to private ownership, but the State wisely and happily has the power to designate where docks may and may not be built, so as not to Interfere with reasonable naviga tion of the waters. It may regulate their length, width and form. It can prescribe of what they shall be constructed and their distance apart. These are rights inherent in the State for the regu lation of commerce and for public safety. Harbor regulations may change from time to time as the in terests of commerce may dictate. Hence to unqualifiedly warrant a quiet and peace able possession of lands subject to a Governmental regulation which may and does limit and control the occupancy thereof and the use to which it may be put is Impracticable. Notwithstanding this fact, among the most valu able lands in a city, we find its shore fronts. Among the safest investments we find dock bonds. No clearer, cleaner or straighter descent of title to lands can be found than the dock fronts and shore fronts of Staten Island, the Governmental regulation of which is an unmixed blessing to all. ANALYSIS OF ONE OF THE CROWN GRANTS. English Crown Grant to Lancaster Symes of Lands on Staten Island, New York City. "ANNE BY THE GRACE OF GOD, OF "GREAT BRITTAIN, FRANCE, IRE- "LAND, QUEEN, DEFENDER OF THE "FAITH." "She was certainly one of the best and most "unblemished Sovereigns that ever sat upon the "throne of England and well deserved the ex- "pressive though simple epithet of 'Good "Queen Anne.'" (Smollett, History of Eng land, Vol. 3, p. 311; The Major and The Queen, pp. 28, 29.) 'TO ALL TO WHOM. THESE PRESENTS "SHALL COME, OR MAY CONCERN, "SENDETH GREETINGS"— 182 ENGLISH CROWN GRANTS 183 This was not only notice to her realm but to all the world at large. "WHEN AS OUR LOVING SUBJECT, LAN- "CASTER SYMES, BY HIS PETITION "PRESENTED TO"— A Royal Grant when couched in strict legal language must always be construed favorably for the Crown and unfavorably for the subject, when uncertainty of language or expression ob scures or renders doubtful its exact meaning. When the Grantor, the Crown, used the term "our loving subject' it was always intended to clearly Indicate that the Crown knew that It was dealing with a true, faithful and affectionate subject and by the use of that term indicated that the consideration due such an one should at all times be accorded to him. The conditions of the Grant were to be interpreted In the terms of loving consideration for him who was so highly regarded by the Sovereign. "OUR RIGHT TRUSTY AND WELL-BE LOVED COUZIN, EDWARD, VISCT CORNBURY CAPT. GENLL AND GOV.R IN CHIEFE OF THE PROVINCE OF NEW YORK AND TERRITORIES DE PENDING THEREON IN AMERICA AND VICE ADMIRALL OF THE SAME &C IN COUNSELL"— Queen Anne and Lord Cornbury were cousins. Lancaster Symes was held in very high per- 1 84 ENGLISH CROWN GRANTS sonal regard by the Queen and was Lord Corn- bury's most Intimate and truest personal friend. For particulars as to the happy relationship and friendship existing between this trio see "The Major and the Queen," pages 38, 39. "HATH PRAYED OUR GRANT AND CON FIRMATION FOR ALL AND ANY THE PIECES AND PARCELLS OF VACANT AND UNAPPROPRIATED LAND AND MEADOW"— "The vacant and unappropriated land" of the realm was distinctively and admittedly the property of the Crown and could be granted by It under English common law. Staten Island lands were also vested in the Crown as personal Crown lands, by right of private purchase from the Indians, by the Duke of York. "ON STATEN ISLAND IN THE COUNTY OF RICHMOND, THE WHICH PETITION WEE BEING WILLING TO GRANT,"— In a legal sense, an island is never legally defined in the school book description as "a body of land surrounded by water." The law does not recognize any proprletopship In water. Water may or may not be present on the land. Staten Island extends by legal definition, to the bounds and limits of Richmond County. "Richmond (County) which comprehends the whole of Staten Island." (Gov. Tryons Report to the English Crown.) ENGLISH CROWN GRANTS 185 The Grant made of Manhattan Island was for the vacant and unappropriated land "on Manhattan Island," which carried with It much of the bed of the East River. No notice was taken therein of the latter being submerged land. In ejectment to recover submerged lands in the Great South Bay, the Bay was described as being "ON" the south side of the Island, form erly called Long Island." The water was not referred to, but the bot tom of the Bay was held to have been conveyed. The Grant of land ON Manhattan Island in cluded land under water in the East River. The Grant of land ON the South side of Long Island Included the lands under water in the Great South Bay. The Grant of land ON Staten Island included the lands under water "to the bounds and limits of Richmond County." Sand Bay was officially described in Colonial days as "ON Staten Island." (17 12.) Sand Bay was again officially described as "ON the Eastermost part of Staten Island." (1713.) A Bay is not upland and yet it is ON Staten Island. "Etymologically ON and UPON differ in meaning." (Webster.) This Grant does not limit its conveyance to lands UPON Staten Island, but to lands ON Staten Island. Your coat is ON you when It enwraps your form. 1 86 ENGLISH CROWN GRANTS The barnacles are ON the hull of the ship, whether attached to its sides or bottom. The ring is ON when it encircles the finger. "In a position, state or adherance. In such a position as to cover, surround or overspread." (Webster.) "KNOW YEE THAT OF OUR ESPECIAL GRACE"— The term "especial grace" can only be com prehended in the light of the true meaning of the English word "Grace." It carries "wealth of an exalted and noble love." Students of Eng lish Common Law fully understand that a Crown Grant made out of the most exalted im pulse of the soul, to a "loving subject" does not legally carry narrowness of interpretation but on the contrary a full, free and generous con struction. This Is clearly stated in Blackstone's Com mentaries and In the within chapter "The New World and Crown Grants." "CERTAIN KNOWLEDGE"— The expression "certain knowledge" Is the Crown's voluntary and gracious way of relieving the applicant of all possible charge of having misrepresented the facts. It was as if the Sovereign said to the world, "I do not wish to hear a word about or against this application ENGLISH CROWN GRANTS 187 or applicant. I know all about it and him. I have positive and sure information." "AND MEER MOTION"— "Meer motion," in other words it would properly read, "off hand." It is as if the Crown had said, "Did my loving subject for whom I have such a deep and pure affection petition for these lands and rights ? I Grant them with the 'wave of a hand.' " "WEE HAVE GIVEN, GRANTED, RATIFIED AND CONFIRMED AND IN AND BY THESE PRESENTS DOE FOR US OUR HEIRS AND SUCCESSORS, GIVE, GRANT, RATIFYE AND CONFIRME UNTO THE SAID LANCASTER SYMES, HIS HEIRS AND ASSIGNS FOREVER." The Grant was made by the Crown to Lancaster Symes in behalf of ,^ — First: The Crown. Second: The "heirs" of the Crown. The Duke of York had purchased Staten Island. It became annexed to the Crown's pri vate Manor of East Greenwich In the County of Kent, England. The Crown had children who were heirs of the blood or body. Hence the Crown in view of its personal proprietorship of Staten Island bound its "heirs" to the 1 88 ENGLISH CROWN GRANTS Grant to Lancaster Symes. By this the Crown admitted Its personal title. Third: The Crown bound Its "successors" on the throne. This was notice to the world that no Royal successor on the throne of England should ever reassert a claim to the lands granted by the Queen of England, but especially by the Lady of the Monor of East Greenwich. This provision estoppes the State of New York. It was in effect a Grant by the Lady of the Manor of a part of her manorial estate, which Grant was confirmed by the Crown, the Sov ereign acting in a dual capacity. The Great Seal of the Province was a ratification by the people. The State of New York subsequently con firmed this Grant. The Grant was not simply a life tenure to Symes, but was a Grant of title to him and his "heirs and assigns forever." "ALL THE BEFORE MENCONED PIECES AND PARCELLS OF VACANT AND UN APPROPRIATED LAND AND PREM ISES AND ALL AND SINGULAR THE HEREDITAMENTS AND APPUTE- NANCES THEREUNTO BELONGING." "The vacant and unappropriated lands" on Staten Island belonged to the Crown (Uplands, lands between high and low water mark, and ENGLISH CROWN GRANTS 189 lands under water to the bounds and limits of Richmond County). They were not only granted, but the hereditaments and appurte nances also "belonging" thereto. First: "The hereditaments" — "Things capable of being inherited." Second: "The appurtenances" ¦ — "Every thing passes which is necessary to the full enjoyment thereof and which is in use as incident or appurtenant thereto." "WITHIN THE BOUNDS AND LIMITS ABOVE IN THESE PRESENTS MEN CONED AND EXPRESSED." This is a clear reference to the hereinbefore set forth expression "In the County of Rich mond." Legally there is no difference in force and effect between "on Staten Island" and "in the County of Richmond." The two are in terchangeable terms, — the County of Rich mond and Staten Island being legally co-exten sive and with common boundaries. Staten Is land represents the land, the County of Rich mond the local governmental jurisdiction there over. One is material the other is political and governmental. They are co-extensive. "TOGETHER WITH ALL AND SINGULAR, THE WOODS, UNDERWOODS, TREES, TIMBER, FEEDINGS, MEADOWS, I90 ENGLISH CROWN GRANTS MASHES, SWAMPS, POOLES, PONDS, WATERS, WATERCOURSES, RIVERS, RIVOLETTS, RUNS AND STREAMS OF WATER, BROOKS, FFISHING AND FFOWLING, HUNTING, HAWKING, MINES AND MINERALLS, STANDING, GROWING LYEING, OR BEING OR TO BE HAD"— The Crown further granted "together with all and singular the "woods, underwoods," According to Lord Coke, "a grant to an other of all his woods will pass not only all his trees but the land on which they grow." "trees," Trees are a part of the real estate, while growing and before they are severed from the freehold. When they are cut down they become personal property. "timber," Timber trees are those used in building and in mechanical arts. Timber trees con stitute a portion of the realty. "ffeedings," These are pasturing lands where catde and ENGLISH CROWN GRANTS 191 herds may graze and from which fodder may be cut and taken. "meadows," These consist of low ground adjacent to streams, tracts of low or level land, produc ing grass which is mowed for hay; culti vated land, growing grass sowed thereon; tillable, mowing or grass land. The term is applied to the tracts which lie above the shore and are or may be overflowed by spring and extraordinary tides only and yield grasses which are good for hay. "mashes," In this word the English Crown "dropped , Its r." Mashes are low and wet ground, much if not all of the time being overflow ed by water. "swamps," Low lying land covered more or less with water ,^ — bogs. "pooles," A small lake of standing water. "By the grant of a pool, both the land and the water will pass. Undoubtedly the right to fish will be acquired by such a grant." 192 ENGLISH CROWN GRANTS "ponds," "pools," "waters," A pool of water or a stream of water Is considered as part of the land. A mere grant of water passes a fishery. "watercourses," This term is applied to the flow or move ment of the water in rivers, creeks, and other streams. "In a legal sense property in a water course is comprehended under the general name of land." (Bouvler — "watercourse.") rivers, A natural stream of water flowing between banks. The only rivers within the "bounds and limits of Richmond County" are the Hudson, Kill von KuU, Arthur Kill and Raritan Bay, which is the confluent of the three rivers. ' "rivoletts," "runs and streams of water, "brooks," This description comprehends every stream of running water "in the County of Rich mond." "ffishing," By the common law of England the fish eries in all the navigable waters of the ENGLISH CROWN GRANTS 193 realm belonged to the Crown. "An indi vidual claiming an exclusive fishery in such waters must show it by Grant or Prescrip tion." "fowling, hunting, hawking," These rights and privileges theretofore pos sessed by the Crown as a Royal preroga tive or as the private owner under manorial rights were conveyed by the Crown to Lan caster Symes. "mines and minerals," Gold and silver mines (as later referred to herein) were held under the common law of England as Royal mines and belonged to the Crown. It was an open question where mines, producing minerals of the baser sort, contained mixed in such ore, gold or silver of a value equal to or exceeding the value of the baser metals, whether the same were not of Royal value and belonged to the Crown. To remedy this uncertainty laws were passed by Parliament (in the Statutes I William and Mary st I, c 30, and 8 w. and M., c. 6). Under these Statutes the usual gold bearing ores,^ — copper, tin, lead and Iron, were exempt from all claims by the Crown as Royal mines and as Its ex clusive property on condition, however, that the King should have the right to pur chase such products of the mines at prices 194 ENGLISH CROWN GRANTS stated in the act. This provision made by Parliament was accepted by Crown and people as just and equitable. The "mines and minerals" on Staten Island were owned by the Crown through the purchase thereof by the Duke of York. Under the Grant to Lancaster Symes the Crown conveyed to him all mining rights, excepting those of gold and silver, in the lands conveyed under the said Grant. Le gend has it, though sharply testing human credulity, that some gold was at one time mined on Staten Island near Richmond. Considerable iron ore, large quantities of clay for making brick, and a certain grade of kaolin have been mined on Staten Island. "standing, growing, lyeing, or being or to be "had," This term covered and Included timber and trees together with any and all of the afore said natural growths and earth deposits therein contained or existing thereon. "USED AND ENJOYED IN THEM THE BOUNDS AND LIMITS AFORESAID." This provision specifically grants all rights of use and enjoyment at the time possessed by the Crown within "the bounds and limitts" of Rich mond County. The Crown had thereinbefore granted the tide to the described lands and in this latter clause of the Grant gave to the ENGLISH CROWN GRANTS 195 Grantee the use and enjoyment thereof to the bounds and limits of Richmond County (a) of every class of timbered growth thereon. (b) of all agricultural soil thereon. (c) of all lands thereon of a marshy na ture, towit : occaslonly submerged lands, semi-submerged lands on which vegeta tion grows and appears above the sur face of the water (d) of all pools with unknown oudets, ponds of like character or with oudets. Lakes of every kind and character which are comprehended in the forego ing, in brooks that run, rivolets that flow, rivers that course their way, water-courses, the characteristics of which are included In the name thereof. Then lacking descriptive power as to further details the comprehensive words are added "runs and streams of water." All such are to be "used and enjoyed" by the Grantee, his heirs and assigns forever. The sporting strain in the English blood is further evi denced by the additional Grant of the fishing (which legally includes shell and swimming fish) rights, fowling rights and hunting rights, on all classes of land referred to and on and in the standing, running, flowing and tidal waters legally Included In the Encyclo- 196 ENGLISH CROWN GRANTS pedlcally described waters. But where are all these rights and privileges to be enjoyed and to what bounds do the lands and waters extend? The Grant says "In them the bounds and limits aforesaid." The ultra-narrow con structionist who, legally unadvised might say "on Staten Island" would overlook the words "in them the bounds and limits aforesaid." The possibility of such a construction abso lutely disappears in face of the fact that the County of Richmond referred to therein had been delimited and its boundaries fixed by Statute. That the Grant was intended to cov er all lands under water in Richmond County is clear when we remember that the bounds and limits of Staten Island at every point are in the Rivers and to reach the bounds and limits the lands must of necessity extend at every point under water. The word ON as it appears in the term "on Staten Island," has been ex haustively commented on in this chap ter. "AND ALL OTHER PROFITTS, BENEFITTS, ADVANTAGES, HEREDITAMENTS AND APPURTENANCES WHATSO EVER UNTO THE SD PEICES AND PARCELLS OF LAND AND PREMISES ENGLISH CROWN GRANTS 197 BELONGING OR IN ANY WISE APPUR- TEYING (EXCEPT AND ALWAYS RE SERVED OUT OF THIS OUR PRESENT GRANT ALL GOLD AND SILVER MINES)." It would appear that the rights and powers granted therein by the Crown, prior to this lat ter clause were sufficiently couched In broadest language. It, however, adds "all other profits, benefits, advantages, hereditaments and appur tenances whatsoever." The Crown fearing that even that term might lack sufficiency then added, "in any wise appurtalning." (We note the exception of "gold and silver mines therefrom.) "TO HAVE AND TO HOLD THE SAID PEICES AND PARCELLS OF LAND AND PREMISES WITH THEIR APPUR TENANCES HEREBY GRANTED MEN CONED OR INTENDED TO BE HERE BY GRANTED AS AFORSAID (EXCEPT BEFORE EXCEPTED) UNTO THE SAID LANCASTER SYMES, HIS HEIRS AND ASSIGNS FOREVER TO THE ONLY PROPER USE AND BEHOOF OF THE SD LANCASTER SYMES HIS HEIRS AND ASSIGNS FOREVER." This paragraph in the light of the preceding terms needs no additional comment, excepting however that a broad and generous construction is required to be placed upon this Grant, by the 198 ENGLISH CROWN GRANTS use of the words "or intended to be hereby granted." The Crown then suddenly puts a final and arbitrary restriction upon the exercise of the rights and privileges hereinbefore de scribed, by absolutely limiting the same "to the only proper use and behoofe of the said Lan caster Symes his heirs and assigns forever." "TO BE HOLDIN OF US OUR HEIRS AND SUCCESSORS IN FFREE AND COM MON SOCCAGE." The Crown Grants to lands on Staten Island provided that the title to such lands should be held "in free and common soccage." Some authorities claim that this word is derived from the old Saxon word "soke," meaning a "Plough share." If so, it signifies that the Grantee who received a Grant of land from the Crown ob tained his title under the condition that he would perform certain (or sure) services; hence the legal maxim, "Soccage is the same as service of the plough." Pel. Leg. Max. — also Coke Litt. 86a. Blackstone and others have held that the word "soccage" Is derived from the word "soc," which meant "free" or "privileged." This con clusion is consistent with the fact that any one who held "title in soccage" under a Crown Grant, while required to perform certain or definite services to the Crown as a consideration for holding such title, was not required under ENGLISH CROWN GRANTS 199 the terms of the Grant to perform military serv ice. The meaning of the term, therefore as used In the Staten Island Crown Grants is that the Grantees, as long as they held title to their lands, were required to perform the definite services provided for in the Grants, free from military duty. The failure of such performance permitted re-entry upon and re-possession of the land by the Crown. In the year 1830, the State of New York, by special enactment, prohibited any further issue of any Grants of lands in the State of New York, the tenure of which was to be held on a soccage basis. 'AS OF OUR MANOR OF EAST GREEN WICH IN THE COUNTY OF KENT WITHIN THE REALME OF ENGLAND YEILDING, RENDRING AND PAYING THEREFORE YEARLY AND EVERY YEAR FROM HENCEFORTH FOREVER UNTO US OUR HEIRS AND SUCCES SORS ATT OUR CUSTOME HOUSE ATT NEW YORKE TO OUR COLLER RE- CEIVR GENLL THEREFORE THE TIME BEING ATT OR UPON THE FEAST DAY OF THE ANNUNCIATION OF OUR BLESSED VIRGIN MARY (COMMONLY CALLED LADY DAY) THE RENT OR SUME OF SIX SHILL INGS CEINT MONEY OF NEW YORK IN LIEU AND STEAD OF ALL OTHER 200 ENGLISH CROWN GRANTS RENTS, DUTYS, SERVICES, DUES AND DEMANDS WHATSOEVER." We now find that while the Grant conveyed all the Crown's title, rights and privileges (ex cepting gold and silver mining) , the Grant has a dual character. That is — the Crown acted in a dual capacity. The Queen made the Grant with all her Royal authority but the same per son, Anne, Lady of the Manor of East Green wich, to which Manor Staten Island was attach ed, made the Grant as from that Manor and required that the accounting should be made through the New York Custom House to the Manor House in East Greenwich in the County of Kent, England. (See Chapter herein entitled "Manor of East Greenwich and Crown Grants.") "IN TESTIMONY WHEREON WEE HAVE CAUSED THESE OUR LETTERS TO BE MADE PATTENTS AND THE SEALE OF OUR SAID PROVINCE OF NEW YORK TO OUR SD LETTERS, PA TTENTS TO BE AFFIXED AND THE SAME TO BE RECORDED IN TH SECRYR OF OUR SAID PROVINCE. WITNESS OUR RIGHT, TRUSTY AND WELL BELOVED COUZIN EDWD VIS- COT CORNBURY CAPT GENLL & GOVR IN CHIEFE IN AND OUT THEREON PROVINCE OF NEW YORK AFORESD ENGLISH CROWN GRANTS 201 AND TERRITORIES DEPENDING THEREON IN AMERICA AND VICE ADMIRAL OF THE SAME &C. IN COUNSEL ATT OUR OWN FORT ATT NEW YORK THE TWENTY SEVENTH DAY OF OCTOBER IN THE SEVENTH YEAR OF OUR REIGN ANNY DOMINI, 1708." The Royal Seal carved in hard wood was pend ant from the Grant. The Seal of the Province of New York was also attached to the Grant. "Words are not to be looked at so much as "the cause and nature of the thing, since the "intention of the contracting parties may appear "from those rather than from words." (Calvinus Lex.) "It seems, however, the provisions of Colo- "nial charters are to be liberally construed, "whenever necessary to accomplish the pur- "pose of the Grant." (Delancey vs. Piepgras, 138 N. Y., 26.) "English political economy and English popu- "lar notions are very deeply and extensively "pervaded by the assumption that all property "has been acquired through an original trans- "actlon of purchase and that whatever be the "disadvantages of the form it takes they were "nal sale." "allowed for in the consideration for the origi- 202 ENGLISH CROWN GRANTS (Maine, Early Laws and Customs, page 325-) "By coming to the Crown they became grant- able in that way to the subject." ( Burke, Dormant Claims of the Church. ) QUIT RENTS AND CROWN GRANTS The King's Grants were matters of public record. No freehold may be given to a King, nor derived from him but by matter of record. All Grants made by the King must first pass through the hands of several regular subordinate officers appointed for that purpose whose duty it was to transcribe and en roll the same. The paramount duty of these subor dinate officers Is to closely examine and inspect the form, nature and character of such Grants and to Inform the King if anything contained therein is improper or unlawful to be granted. Such Grants are contained in charters or letters patent, that is, open letters. They are so called, because they are not sealed up, but are exposed to open view, with the Great Seal pending at the bottom, and are usually directed or addressed by the King to all his subjects at large. A Grant or letters patent must first pass by Bill, prepared by the Attorney General, pursuant to a war rant from the Crown. It is then subscribed at the top, with the King's own sign manual and sealed with his privy-signet, which is always held in the custody of the principal Secretary of State. At times. Grants immediately pass under the Great Seal, in which case 203 204 ENGLISH CROWN GRANTS the patent is subscribed in the following words. "Per Ipsum Regem," by the King himself. Certain Grants of minor importance are issued with less ceremony, but always with care, caution and circumspection. A Crown Grant issued at the petition of the Grantee, is construed most favorably for the Crown and against the Grantee, whereas a Grant made by a subject to another citizen, is construed strongly against the Grantor. To overcome this legal presumption in favor of the Crown as against the Grantee, the Crown at times adopted a phrase asserting the exercise "of special Grace," "certain knowledge" and "mere mo tion" on the part of the Crown. In making a Grant expressing clemency, generosity and good will on the part of the Crown toward the Grantee, the Crown imparted to the construction of the Grant a liberal and generous interpretation in behalf of the Grantee. (The foregoing paragraph condensed and adopted from Blackstone, Vol. 2, pages 346, 347-) The gracious attitude of Queen Anne towards Lan caster Symes Is evidenced in the final Grant of lands on Staten Island, made to him by the Crown, as in dicated In the following expressions from the Crown Grant Issued to him : "Our loving subject Lancaster Symes," — "Know "yee that of our Especial Grace certain knowl- "edge and meer motion wee have given granted "etc., unto the said Lancaster Symes his heirs "and assigns forever." ENGLISH CROWN GRANTS 205 This form of language used by the Crown in the Symes Grant gave to it the broadest construction under common law. Digby, in his History of the Law of Real Prop erty, page 34, states that, 'by the conquest. King William (of Nor- 'mandy) succeeded to all of the rights of the 'Anglo Saxon Kings. The rights over the 'land which they had became his." 'The great possessions held by them in their 'private capacity devolved upon William, and 'no distinction any longer existed between the 'King's ownership of lands in his private capa- 'city and his' suzerainty over the folkland as 'chief of the nation." 'all alike became 'terra regis.' " (king's 'land.) We find In Freeman's "Constitutional History," Vol. 5, page 787: "It was necessary at the time of Doomsday, to "a good title to any land, except that held by "ecclesiastical bodies, that the tenant should be "able to adduce evidence of a Grant, re-grant "or confirmation by William." This theory of tracing real estate back to English Crown Grants has been a recognized principle In English Common Law from the time of the "Dooms day Book" and the same principle became funda- 2o6 ENGLISH CROWN GRANTS mental in America when English Common Law was brought to the Colonies upon the establishment there in of English sovereignty. It is In accordance with this theory of Common Law, established In England and adopted in America, that all titles to land on Staten Island must find their source in an English Crown Grant. The Grants made by the English Crown for lands on Staten Island were in fact deeds which passed the title to the Grantee. They were issued subject to the annual payment of quit-rents (meaning quit-the- rents) . In the event of non-payment of such rentals, the right of re-entry upon and re-possession of such lands so conveyed was retained and possessed by the English sovereign. This form of deed Is now substantially obsolete In this country. It has been proscribed by nearly all. If not all, of our states. The quit-rents provided to be paid under the terms of the Staten Island Grants were payable at the Cus tom House In the City of New York and on account of the rent roll of the Manor of East Greenwich in the County of Kent, England. This arrangement for the collection of the quit- rents proved to be extremely unsatisfactory. His torians disagree as to the proportion of the rentals collected from Staten Island, which eventually reached the Manor House of East Greenwich. Some authorities claim that "it was as much as twenty per cent." In addition to the difficulties. Incident to distance, connected with the collection of quit-rents, unbusi nesslike methods on the part of the Grantees pre- ENGLISH CROWN GRANTS 207] dominated. Many of them defaulted in payments, much of the lands granted were abandoned by the Grantees without notice to the Crown. Others of the Grants were not recorded, while a number of them were not patented. The official records clearly show that many of the Grantees applied for their Grants, and upon secur ing the Issue thereof, failed to record the same. Others recorded their Grants but paid no quit-rents. There were other Grants applied for. Issued, but were not confirmed. We even find at this day modern titles claiming unconfirmed Grants and unpatented lands as a source from which their so-called rights descend. "In the absence of a statute, a ground rent is not within any statute of limitations nor is there any pre sumption that it has ceased to exist from the mere lapse of time without payment of the rent or from mere delay of the owner of the ground rent in de manding it." (20 Cyc. 1379.) It has been held that in the event of the non-pay ment of quit-rents for a period of twenty years, and no demand having been made by the Grantor for such payment within said consecutive years the Court will presume that such quit-rents have been paid, but proof to the contrary Is admissable. Such atti tude of the Court will in no wise release the Grantee from the payment of prior quit-rents which remain unpaid. The non-payment of quit-rents for a period of twenty years does not give adverse possession to the title as against the Grantor. Any and all parties laying claim to title under a Grant conveying such title subject to a quit-rent (which runs with the land) 2o8 ENGLISH CROWN GRANTS cannot claim adverse possession against the Grantor nor be relieved from liability to pay such quit-rents except by act of the Grantor. Any Grants made, sub sequent to 1830 and subject to quit-rents are void in the State of New York, by special enactment of the State Legislature. Crown Grants made prior thereto are unaffected thereby. In the years from 1814 to 1816 inclusive there were several acts passed by the New York Legisla ture contemplating and providing for the commuta tion of quit-rents then due or to become payable to the State. Such commutation was to be conditioned upon election on the part of the Grantees to com mute the same. Pursuant thereto, the quit-rents under the Crown Grant to Lancaster Symes were commuted and paid in full forever, as is shown in the records of the Comptroller's office at Albany. "The effect of the commutation of the quit- rents Is the same upon the rights of the parties as if the people had made a new grant of the patent without reservation." (People vs. Renssellaer, 9 N. Y., 291, 328.) "People may not bring ejectment after com muting quit-rents." (People vs. van Renssellaer, 9 N. Y., 292.) Under this and like decisions the State of New York representing the people, has no standing in the Courts upon which it could base an action for the nullification or cancellation of the English Crown ENGLISH CROWN GRANTS 209 Grant to Lancaster Symes. It has evidenced no dis position so to do, and is barred from pleading that the Crown Grant to Lancaster Symes is null and void. On the contrary, the State of New York has ad mitted the Grant and denied title to any land in it self on Staten Island. MANOR OF EAST GREENWICH AND CROWN GRANTS Students of American Colonial History have been much Interested in the fact that substantially all of the English Colonial charters have not been directly issued "as of" the English Crown. In nearly all such charters It Is provided that while the land so granted is to be held as from the Crown of England it is, how ever, to be held "as of the Manor of East Greenwich in the County of Kent, in free and common soccage and not in capite or of knight service?" It is a perti nent inquiry, "Why should the land granted in the New World, by the English Sovereign be held from some Manor and not from the Crown direct?" Why was it to be held in free and common soccage and not by knight service? Why should the Manor of East Greenwich have been nearly always selected in pref erence to other Royal Manors?" Above all, the one inquiry is of paramount importance — ^why should Colonial Charters of various kinds and why should Colonial Grants to lands in America be held as of a Royal Manor or Manors of which the King was "the Lord of the Manor," rather than directly from the Sovereign of England? If there was no legal significance in this arrangement, why were not some of these Grants or Charters held as of Westminster, 210 ENGLISH CROWN GRANTS 211 one of the Crown residences, with its full, complete and efficient administrative force? The answer is: "Westminster was not a Manor." The Manor of East Greenwich and Hundred of Blackheath In the County of Kent, England, situated about four miles from London Bridge, em braced among other lands what Is now Greenwich, with Its Royal Observatory and Naval Hospital. The old palace was known as the "Greenwich House," and was a favorite royal residence as early as 1300 A. D. The title to the Manor of East Greenwich, with its manorial rights and privileges, has been at times held by various English Sovereigns as a part or por tion of their personal Crown lands and at other times by Grantees of the Crown outside of the line of royal descent. Henry V granted it to Thomas Beauford, the Duke of Exeter, from whom it passed as a manorial estate to Humphrey the Duke of Gloucester. The latter greatly Improved and beautified the property and named It "Placenria." At his death in 1447 it was acquired by the then reigning King and was again added to the Crown's private estate. In this palace was born Henry VIII. It was the birth place of both Queen Mary and Queen Eliza beth and under its roof King Edward VI died. The Manor House was enlarged by Edward IV, also by Henry VIII, who made it one of his favorite residences. James I added to it and Charles I erected the "Queen House" adjacent to it for Hen rietta Maria. 212 ENGLISH CROWN GRANTS At the time of the English Revolution the Pro- tector appropriated to his own use this Manor with other personal Crown estates and private palaces of the Crown, but It was returned upon the restoration of Charles II. Upon the acquisition of this Manor by Charles II, what was left of the historic Manor House with its Improvements, was demolished by the King and a building which now constitutes the West wing of the Naval Hospital was erected as one unit of a very elaborate design contemplating a royal residence of great splendor. The plan was not carried out but the building so erected was occasionally used by that King as a residence. The building so constructed was granted by King William and Queen Mary at the suggestion of the latter, as a royal gift, for a home for disabled sailors of the Royal Na'vy. It was a personal endowment accompanied by a gift of two thousand pounds from the private purse of the Royal benefactors. "On the restoration of Charles II in 1660 the Manor (East Greenwich) and those demesnes, un- demised by the Crown returned to the Royal rev enue, part of which the Manor itself, continues at this time." (1886.) It Is now (19 17) a part of the personal estate of the English Sovereign from which Grants may even yet be made by the Crown without let or hinderance. England's great architects such as Inigo Jones, his son-in-law Webb and the immortal Sir Christopher Wren with others here displayed their genius In architecture. Sovereign after Sovereign and others of wealth have here poured out their gifts for the ENGLISH CROWN GRANTS 213 Men of the Sea. Englishmen here show with pride a wonderful group of buildings bearing the names of many English Sovereigns representing great bene factions to the sea defenders of the realm. Not all of the old Manor of East Greenwich was included In the Hospital and Observatory Grants. One Interesting prerogative still clings to the English Sovereigns under their East Greenwich manorial privileges still retained and held by each as Lord of this Manor of East Greenwich. It Is the patronage of the living of St. Marys, the Greenwich Vicarage. St. Mary's Church is within the bounds of the old Manor of East Greenwich in the County of Kent. His English Majesty may be largely an ornamental Sovereign, useful at social and State functions, but as Lord of the Manor he yet has absolute power to appoint the Vicar of St. Mary's Parish. The Manor Is the property of the King and not of the kingdom and Its benefits Inure to the private Income of the English Crown. The House of Commons may vote the downfall of the Empire's Ministry, to which the Sovereign must bow, but the King as Lord of the Manor has the absolute power to retain or discharge the Vicar of St. Mary's Parish, before which the people must bow. We find that any Grant having been made by the English Crown covering lands In America, the cus tom prevailed In England of making such Grants of Crown lands as of the Sovereign's Manor. The rights and powers possessed under the charter of the Manor of East Greenwich, and exercised by the Lord or Lady of the Manor, did not differ in any material or substantial way from th